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State v. Hulse

Court of Appeals of Utah

June 13, 2019

State of Utah, Appellee,
Douglas John Hulse, Appellant.

          First District Court, Brigham City Department The Honorable Thomas Willmore No. 141100180

          John Robinson Jr., Attorney for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Gregory K. Orme authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.

          ORME, JUDGE

         ¶1 Douglas John Hulse (Defendant) appeals his convictions for aggravated assault and unlawful detention. He argues that he received ineffective assistance of counsel because his attorney (Trial Counsel) failed to investigate and use his victim's prior fraud conviction to attack her character for truthfulness, failed to object to allegedly improper expert testimony, failed to object to inadmissible evidence of his abusive nature, and failed to object to inappropriate comments made by the State during closing argument. We affirm.

         BACKGROUND [1]

         ¶2 Defendant and the victim (Victim) were in a turbulent on-again, off-again relationship spanning over 14 years. In 2014, the couple spent Memorial Day weekend camping in Brigham Canyon, where they both ingested "a lot of drugs." By early morning of the following Tuesday-May 27, 2014-Victim wanted to return to their home in Tremonton. Victim testified that she had not used any drugs that morning, but she believed that Defendant had.

         ¶3 On their way home, the couple decided to visit Defendant's father at a construction site in Brigham City. On the way there, Defendant and Victim started arguing and yelling at each other. Victim testified that such arguments were common when Defendant used drugs. Upon arrival at the construction site, Defendant tried to pull Victim out of the Jeep, but Victim put the vehicle into drive and drove off, heading to Tremonton without Defendant. Victim had almost made it home when her Jeep ran out of gas on the interstate. She texted Defendant, and he brought her some gas-the record does not reveal how. They soon recommenced their arguing. Instead of continuing to Tremonton, they headed back to the construction site in Brigham City for Defendant to retrieve some tools from his father. At the site, Defendant placed the tools between the Jeep's two front seats. The couple had not ceased arguing, so Defendant's father-who at trial described the two as "out of control" and probably "on something"-requested that they leave.

         ¶4 Defendant and Victim next pulled into a gas station in Brigham City. Defendant grabbed the keys out of the ignition and began walking around. Victim, wanting to go home, began yelling at Defendant and demanding to know where the keys were. Defendant replied that he did not have them. The gas station clerk soon approached them and requested that they move their vehicle because it was blocking traffic at the pumps. Frustrated, Victim continued to demand that Defendant return the keys to the Jeep, and Defendant continued to insist that he did not have them. They were both "screaming and yelling" at each other. After approximately 45 minutes, Defendant, who apparently no longer had the keys or at least pretended he did not, was able to start the Jeep by "hot-wiring" it with a screwdriver.

         ¶5 Defendant and Victim then left the gas station and headed toward Tremonton, with Defendant behind the wheel. During the drive home, Victim "tr[ied] to be quiet and stay calm" because she knew Defendant was irritated with her. Defendant kept giving Victim "dirty looks," mumbled that he hated her, said that it was her fault that he was like this, and called her a whore. Victim testified that Defendant had previously told her that men should not hit women but that "whores deserve to be beat and die."

         ¶6 Defendant eventually pulled the Jeep over in Deweyville. Victim immediately became fearful and attempted to escape the vehicle, but Defendant grabbed her by the hair and pulled her back inside. He told her that if she knew "what's good for [her], [she] better stay in the . . . f'ing vehicle." He then put Victim in a headlock, bent her over toward him, and started "pounding on" her with his fist and a pellet gun. Defendant hit her in the ribs, on the back, and on the back of her head. Victim managed to break away briefly, but Defendant again grabbed her and slammed her face down onto the tools that he had stored between the seats. One of the tools cut her, leaving a gash across her forehead. While once more holding Victim in a headlock, Defendant pointed the screwdriver he had used to hot-wire the Jeep at her head; again called her a "whore"; and told her "[she] deserved to die, [she'd] be better off dead," and "[her] kids would be better off if [she] was dead." Fearing for her life, Victim managed to escape from Defendant's grasp and ran toward the road. Defendant did not pursue her, but he shouted for her to return to the vehicle.

         ¶7 Victim was able to convince the driver of a passing truck, who had stopped to see if she needed help, to give her a ride to Tremonton. Once home, one of her neighbors drove her to the emergency room. Although Victim did not sustain a concussion or broken bones, the assault left her covered in cuts and bruises. The hospital notified the authorities, and Deputy Archuletta and Deputy Palmer soon arrived. They discussed the assault with Victim and took photographs of her injuries.

         ¶8 Defendant was arrested later that evening. While being interrogated by Deputy Palmer, Defendant admitted to being with Victim at the construction site and gas station in Brigham City earlier that day. During the course of the interrogation, however, Defendant gave two differing answers as to where he had last seen Victim. At one point, he told Deputy Palmer that he had last seen her in Deweyville-the location of the assault. But at another time, he stated that he last saw her at the gas station in Brigham City. When Deputy Palmer asked about Victim's injuries, Defendant first stated that "she gets bruises at work."[2] But after the deputy recounted Victim's account to Defendant, he responded, "If she said so."

         ¶9 The State charged Defendant with one count of aggravated assault, a third-degree felony, see Utah Code Ann. § 76-5-103(1), (2)(a) (LexisNexis 2014), and one count of unlawful detention, a class B misdemeanor, see id. § 76-5-304(1), (4). Defendant pled not guilty to both charges. He was tried in February 2015.

         The Prosecution Case

         ¶10 In its case-in-chief, the State relied on Victim's testimony, photographs of Victim's injuries, the two deputies' testimonies, and a video recording of Defendant's interrogation.[3] Victim's injuries were difficult to discern in the photographs, and the State acknowledged that the injuries were "hard to see." For that reason, the State asked Deputy Archuletta, who took the photographs, to describe each photograph to the jury.

         ¶11 In laying the foundation for Deputy Archuletta's testimony, the State asked generally about her training and experience. After she replied that she was P.O.S.T. certified,[4]the State inquired whether she had "receive[d] training in injuries involving domestic violence." Deputy Archuletta responded that she had. The State later asked how many domestic violence calls she had responded to during her 17 years of service. Deputy Archuletta responded that she "would not want to even guess" but that "[she'd] had numerous" calls of that nature. The State inquired whether some of the calls involved injuries, to which she replied affirmatively. It then asked whether she knew "the difference between fresh injuries and old injuries," and Deputy Archuletta responded that she did.

         ¶12 After laying this foundation, the State requested that Deputy Archuletta describe each photograph to the jury and asked whether the injuries depicted in the photographs were "fresh." For example, the following exchange addressed exhibit 2:

[Deputy Archuletta]: Okay. Right here, she had like psoriasis right here and you can see off to the inner portion of the knee fresh markings, red markings. This is a -has, I guess, an abrasion has taken a portion of the psoriasis off. You can see through, up through here like a-more still on the kneecap, the line of like a, I don't know, some type of a dragging, but there's-and this isn't clear here, but there's a line through here and then red up into here.
[The prosecutor]: But this spot right here and these spots right here that you pointed to outside of the psoriasis, would you consider those fresh?
[Deputy Archuletta]: . . . [Y]es, this is fresh . . . .

         For the other exhibits, Deputy Archuletta indicated that the photographs showed "fresh" injuries, including redness on the back of Victim's head, right arm and wrist, left rib, chin, jaw, nose, right cheekbone, right eye, neck, shoulders, and clavicle. She also identified some scratches, an abrasion on Victim's kneecap, "road rash" and the "stippling of . . . blood vessels" on Victim's right neck and shoulder area, and a fresh injury behind her left ear. Deputy Archuletta also identified some "old bruising" on Victim's left leg.

         ¶13 Trial Counsel did not object to the content of Deputy Archuletta's testimony as a whole, but he did object twice during the course of her testimony. Trial Counsel first objected when the State asked Deputy Archuletta to estimate a time frame for one of Victim's injuries. He next objected to the speculative nature of Deputy Archuletta's opinion concerning the cause of one particular mark. The district court sustained both objections. Trial Counsel did not cross-examine Deputy Archuletta.

         ¶14 The State next called Deputy Palmer to testify. Because Deputy Palmer was the officer primarily responsible for questioning Victim at the hospital about her injuries, his testimony mainly concerned that conversation and his later interrogation of Defendant. But the State did ask Deputy Palmer whether he was able to observe Victim's injuries at the hospital and whether they appeared to be "fresh." He responded in the affirmative to both questions.

         The Defense Case

         ¶15 Defendant denied that the alleged assault ever took place. Rather, he claimed that Victim sustained her injuries during the camping trip from which they had returned that same day. Specifically, shifting from his initial bruising-at-work theory, he alleged that Victim sustained her injuries the night before while gathering firewood in dense underbrush. To corroborate this theory, Defendant called a friend who had accompanied them on the camping trip. The friend testified that she and Victim had gone searching for firewood on the last night of the trip. She described the terrain as "pretty rough," full of rocks, trees, and fallen branches. As a result, the friend testified that she herself "hit [her] head a couple of times on the trees" and "had scratches all over [her]" arms and legs. Trial Counsel showed the photographs of Victim's injuries to the friend and asked whether they were consistent with the kinds of injuries the friend had sustained while gathering firewood. The friend replied, "Yeah. Definitely."

         ¶16 In addition to providing an alternative theory concerning the source of Victim's injuries, Trial Counsel attempted to impeach Victim's account in a number of ways. On cross-examination, Trial Counsel noted that although Victim had testified that Defendant had threatened her with a screwdriver, she made no mention of this in her written statement provided to the police on the day of the assault. To contradict Victim's claim that the tools were located between the two front seats of the Jeep at the time of the assault, Trial Counsel also called another of Defendant's friends as a witness. She testified that on the day of the assault, Defendant had walked to her house in Brigham City from the construction site and had asked whether he could leave his tools there. After he stayed at her house for approximately 45 minutes, she stated that she drove him to the gas station. Trial Counsel also called Defendant's mother as a witness. She testified that Victim was a "chronical liar" and that Victim admitted to her that, contrary to her denial at trial, she had also used drugs on the day of the assault. Finally, Trial Counsel called Victim as an adverse witness and successfully elicited testimony that she often threatened self-harm to manipulate Defendant.

         ¶17 Despite Trial Counsel's efforts, the jury convicted Defendant on both charges. He was sentenced to an indeterminate term not to exceed five years on the aggravated assault charge and to a concurrent six-month term on the unlawful detention charge.

         Rule 23B Remand

         ¶18 Defendant timely appealed his conviction. In conjunction with the opening brief, Defendant's prior appellate counsel filed a motion for remand under rule 23B of the Utah Rules of Appellate Procedure requesting an evidentiary hearing regarding four of Defendant's claims of ineffective assistance, which motion we granted. The four claims subject to remand included a claim for Trial Counsel's failure to investigate and present Victim's prior fraud conviction at trial. Following the hearing, the district court held that all four of the ineffective assistance of counsel claims "fail[ed] one or both elements of the [Strickland] test."

         ¶19 Shortly after the rule 23B hearing, current appellate counsel was substituted for prior appellate counsel. With the stipulation of the State and our approval, current appellate counsel filed a replacement brief in which he pursued only one of the four claims of ineffective assistance that were the subject of the rule 23B remand, namely the fraud matter. As such, the claim of ineffective assistance for failure to investigate and use Victim's prior fraud conviction is the only claim dealt with in the rule 23B hearing that is currently before us. Therefore, we address ...

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