State of Utah v. Taylor

murder in 1991. After a sentencing hearing, the jury returned two verdicts

imposing the death sentence. Taylor appealed the sentence and subsequently fired

his attorney, Elliot Levine. Taylor maintained his appeal with new counsel,

asserting claims of inadequate representation at trial. In 1994, when the matter

came before this court the first time, we remanded it to the trial court to hold a

rule 23B hearing on the ineffective assistance of counsel claims and collateral

claims. We now have the results of that hearing and treat all issues raised in

aggravated burglary. Subsequently, Taylor and Edward Steven Deli broke into the

Tiede family cabin near Beaver Springs, Utah, while the Tiedes were in Salt Lake

City. Once in the cabin, Taylor called a friend and told him that he intended "to

shoot some people." Shortly thereafter, Mrs. Tiede arrived at the cabin with her

mother and her daughter. Taylor and Deli confronted them with guns, and Taylor

shot Mrs. Tiede and her mother. When Mrs. Tiede's daughter started to pray,

Taylor told her it would do no good because he worshiped the devil. Later that

afternoon, Mr. Tiede and another of the Tiedes' children arrived at the cabin.

Defendant held Mr. Tiede at gun point, stole $105 from him, and shot him in the

face with bird shot at least once and possibly twice. After trying to set fire to

Mr. Tiede, the house, and the garage, Taylor and Deli fled by snowmobile and then

by car, taking the two Tiede daughters with them. The police apprehended Taylor

arson, two counts of aggravated kidnaping, aggravated robbery, theft, failure to

respond to an officer's signal to stop, and aggravated assault. When Taylor

agreed to plead guilty to the two counts of criminal homicide, the State dropped

counsel and in doing so prejudiced the outcome. Taylor asserts multiple grounds

for finding ineffective assistance of counsel: (1) Levine misinformed him about

the effect of a guilty plea, which led him to plead guilty when he would not

otherwise have done so; (2) Levine's philosophy about the role of the defense

attorney conflicted with his duty to represent Taylor and caused Taylor to plead

guilty involuntarily; and (3) the minimal compensation Levine received for

Taylor's representation created a conflict of interest depriving Taylor of

effective assistance of counsel. Taylor also suggests that the various errors by

Levine resulted in cumulative error at the penalty phase, rendering the sentence

one person witnessed the murders; multiple people saw the attempted murder and the

aggravated kidnapings; and a police officer apprehended Taylor as Taylor fled the

crime scene with hostages. The trial court also found, contrary to Taylor's

testimony, that Levine did not tell Taylor that the penalty phase would exclude

evidence of the crimes for which charges had been dropped. During plea

discussions, with Taylor present, the court explicitly stated that it would have

to rule on the admissibility of the evidence relevant to the dropped charges at

the penalty phase. Levine had prepared to take the case to trial and advised

Taylor to do so; he did not pressure Taylor to plead guilty. Taylor pled

voluntarily because he did not want to put his family and the victims through a

attorney. In that argument, Levine described his role as helping defendants admit

their guilt and take the appropriate punishment. Nonetheless, the court believed

Levine's testimony at the rule 23B hearing that his real beliefs differ from those

he described at trial and that he made the statements at trial to garner the

jury's trust and encourage its leniency. Furthermore, Taylor failed to provide

any evidence that Levine actually encouraged him to plead guilty. The court also

found that Levine's statement did not prejudice Taylor because it fell within the

provide criminal defense services. For two years of services, Levine received

$24,000. As the legal defender for the county, Levine defended clients in various

courts and pursued habeas claims. Levine also maintained a private practice that,

during the months he represented Taylor, provided eighty to ninety percent of his

gross income. Levine spent approximately sixty-nine percent of his time between

January and May 1991 on the Taylor case. He spent fifty percent of that time in

consultation with Taylor and with Taylor's parents. The trial court found that

money did not matter to Levine and that his income did not affect his decisions in

already performed to determine sanity and competency would be disclosed to the

jury, hurting Taylor's case. The reports from the previous exams included

information regarding Taylor's interests in Satanism and witchcraft, as well as

previous drug abuse. One of the psychological evaluations did say that Taylor

showed signs of antisocial personality disorder with schizoid personality

features, but Levine determined that the negative information about Taylor's

character and behavior would offset any potential benefit from suggesting the

existence of a personality disorder. The court found that Levine's decision to

omit mental health testimony fell within the broad range of reasonable

professional judgment. Levine did not obtain Taylor's school records but did ask

Taylor about his school days. Levine also failed to obtain Taylor's health

records, his juvenile court records, and his family's psychological records. He

did not interview Taylor's friends or family members other than his mother and

father. Taylor, on the other hand, has failed to provide any evidence that if

Levine had performed any of the suggested investigations, the outcome of the trial

would have differed. He does not even suggest what such investigation would have

revealed and how the revelations would have improved his position with the jury.

The court found that Levine's performance did not fall below the reasonableness

decide whether Taylor received ineffective assistance of counsel in violation of

the Sixth Amendment of the United States Constitution.⁽¹⁾ See id. This court

reviews Sixth Amendment ineffective assistance questions under a two-part

analysis: (1) The defendant must demonstrate that counsel's performance "'fell

below an objective standard of reasonableness'"; and (2) he must show that absent

counsel's errors, he had a reasonable chance to prevail, and thus the errors

undermine confidence in the outcome. State v. Templin, 805 P.2d 182, 186-87 (Utah

1990. (quoting Strickland v. Washington, 466 U.S. 668, 688 (1984)). When

reviewing counsel's performance, "'a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

arson, aggravated kidnaping, aggravated robbery, theft, etc. Taylor argues that

the trial court's factual finding that Levine did not misinform Taylor about the

likelihood of preventing this evidence from entering into the penalty phase was

(Utah 1987). Evidence presented at the rule 23B hearing supports the finding that

Levine correctly informed Taylor about the scope of the penalty phase. Levine

testified that he told Taylor that the penalty phase would resemble very closely a

guilt phase but that Levine could possibly prevent the State from introducing

certain inflammatory photographs as evidence. The transcript of the plea

proceedings supports Levine's version and undermines Taylor's testimony to the

contrary. At the plea hearing, Taylor heard the prosecution say that it intended

to introduce evidence of the dismissed charges. Levine registered his intent to

object to such evidence. When asked by the court if he was satisfied with

Levine's performance, Taylor responded affirmatively on two occasions during the

plea proceedings. Although the judge could have found Taylor credible at the

rule 23B hearing, he did not, and enough evidence supports the judge's finding to

prevent us from holding it clearly erroneous. Hence, Levine did not misinform

plea and prejudicing the outcome of the penalty phase. The right to counsel

encompasses "'the right to counsel free from conflicts of interest.'" State v.

Webb, 790 P.2d 65, 72 (Utah Ct. App. 1990) (quoting Strickland, 466 U.S. at 688),

denial of habeas aff'd sub nom. by Webb v. Van Der Veur, 853 P.2d 898 (Utah Ct.

App. 1993) and by Webb v. Van Der Veur, 67 F.2d 312 (10th Cir. 1995). Defendants

claiming ineffective assistance of counsel resulting from a conflict of interest

must show that "an actual conflict of interest adversely affected his lawyer's

performance." Cuyler v. Sullivan, 446 U.S. 335, 348 (1980). "In order to

establish an actual conflict, [the defendant] must demonstrate 'as a threshold

matter . . . that the defense attorney was required to make a choice advancing his

own interests to the detriment of his client's interests.'" United States v.

Acevedo, 891 F.2d 607, 610 (7th Cir. 1989) (ellipsis in original) (quoting United

States v. Horton, 845 F.2d 1414, 1419 (7th Cir. 1988)). Once a defendant

demonstrates an actual conflict, there is no need to show prejudice. Cuyler at

in an effort to acquire credibility with the jury. Levine's testimony at the

rule 23B hearing provided adequate evidence to support that finding. Furthermore,

nothing in the record indicates that Levine behaved in any way that was in

conflict with Taylor's interests. Levine never told Taylor to plead guilty and in

fact tried to discourage him from doing so. Moreover, Taylor himself testified

that he pled guilty for personal reasons, not because of his attorney's advice.

Thus, the alleged conflict does not undermine our confidence in the voluntariness

of the guilty plea. Likewise, Levine's theory that the views expressed in his

jury argument constituted a reasonable strategy under the circumstances is

plausible; Levine wanted the jury to see him as a defense lawyer committed to

truth and justice, with a client who was honest and repentant and thus not

the sentencing phase of a capital crime in Utah, the fact finder must weigh the

mitigating factors against the aggravating factors, imposing the death penalty

only if the aggravating circumstances outweigh the mitigating beyond a reasonable

doubt and the death penalty is appropriate beyond a reasonable doubt. Utah Code

Ann. § 76-3-207; State v. Wood, 648 P.2d 71 (Utah 1981). Possible mitigating

circumstances include an accused's minimal history of prior criminal activity,

extreme mental or emotional disturbance, extreme duress, mental disease,

intoxication, drug influence, youth, minimal participation in the offense, or any

defense attorneys, to provide effective assistance of counsel at the sentencing

phase, must adequately investigate all potentially mitigating factors. See

Strickland, 466 U.S. at 691 (stating that "counsel has a duty to make reasonable

investigations"). Nevertheless, where the attorney can reasonably rule out a

mitigating factor, further investigation is not required. See id. For example,

one theoretically available mitigating circumstance would be the "substantial

domination" of the defendant by another person. Utah Code Ann. § 76-3-207(3)(c).

In this case, Taylor makes no such claim, and the evidence does not suggest it in

any way. Therefore, no investigation of this factor was warranted. However,

where the defendant claims to have suffered from mental illness at the time of the

crime or to have suffered serious mental illness previously, the attorney must

investigate potential mitigation by mental disease or extreme mental disturbance.

Nonetheless, the attorney does not have an obligation to introduce such evidence

if she believes after a thorough investigation that it will harm the case or if

childhood psychological problems resulting from a facial scar, a learning

disorder, and substance abuse in his family. Moreover, Levine had access to both

of the psychological reports from the examinations that had been performed to

determine sanity and competence. The trial court found that Levine made the

reasonable decision that introducing evidence regarding mental health would hurt

Taylor rather than help because of the negative information it would disclose to

the jury, specifically Taylor's prior drug abuse and involvement with Satanism and

witchcraft, including the drinking of animal blood. Levine quite plausibly

decided that Satanic worship and blood drinking did not comport with the "boy next

door" image he hoped to portray. The trial court's finding that this decision was

cases where failure to conduct a psychological exam has been held to constitute

ineffective assistance of counsel, the defendants had a history of serious mental

illness and could show how an investigation would have furthered their defenses.

See, e.g., Bouchillon v. Collins, 907 F.2d 589, 596-97 (5th Cir. 1990) (subsequent

history on other grounds omitted) (discussing various cases of ineffective

assistance when attorney knew defendant had previously been hospitalized for

mental illness). A defendant must show not only that counsel failed to seek

mitigating evidence, but also that some actually existed to be found. Blake v.

Kemp, 758 F.2d 523, 534 (11th Cir. 1985) ("[Defendant] has adequately demonstrated

a reasonable probability that he would have received a lesser sentence but for

[attorney's] complete failure to search out mitigating character evidence. As the

district court found, 'Petitioner has demonstrated that no favorable evidence was

sought and that some was in fact available.'" (quoting Blake v. Zant, 513 F. Supp.

772 (S.D. Ga. 1981))). Taylor has not suggested a helpful strategy that would

have been supported by evidence not known to Levine. Failure to investigate

mitigating factors can constitute ineffective assistance of counsel only where

its brief that an extensive mitigation workup or investigation may not always be

necessary (apparently such investigations were not universally undertaken in Utah

at the time this case was tried). We are troubled by that proposition if it is

intended to suggest that a less-than-adequate investigation will suffice. We hold

here that Levine's mitigation investigation, although very limited, appears to

have been adequate; there are no indications that he overlooked anything useful in

Taylor's background. We emphasize that the failure to perform an adequate

mitigation workup represents ineffective assistance of counsel. To demonstrate

that counsel made an unreasonable judgment in not pursuing an investigation

further, a defendant must identify potentially mitigating circumstances that the

investigation would have uncovered. See, e.g., Taylor v. Warden, 905 P.2d 277,

286 n.6 (Utah 1995) (holding that where defendant did not introduce psychological

report containing potentially mitigating evidence at effectiveness hearing, court

cannot make judgments about its contents). Defense attorneys need not present all

Taylor argues that flat fee compensation encourages lawyers to spend as little

time on a case as possible and to promote plea bargains. We acknowledge that the

problem of inadequate resources for defending capital cases creates significant

potential for harm.⁽²⁾ But Taylor has failed to allege, let alone identify,

anything in this particular case to support the theory that his defense

suffered.⁽³⁾ At no time did Levine say, "We can't afford to have you

psychologically tested," or anything of the kind. Moreover, Levine personally had

substantial income from other sources during the period he represented Taylor and

knew he could obtain extra compensation from the county if needed. Taylor did not

introduce any evidence regarding other demands on Levine's time or point to

inadequacies in the time spent on this case. Without this information, we must

accept the lower court's assessment that Levine's income and resources did not

affect his strategy and efforts in this case. Hence, under the conflict of

interest standard discussed in part II above, Taylor has failed to demonstrate an

Despite citing the Eighth and Fourteenth Amendments, Taylor argues only the Sixth

Amendment claim. He has, quite simply, failed to identify deficiencies in

Levine's performance that had any apparent effect on the outcome of his penalty

trial. We note that Taylor pled guilty to horrendous crimes and has never been

able to suggest mitigating circumstances or undisclosed evidence which might have

favorably influenced the jury. Fairness requires the observation that Levine did

Levine began by telling a Native American story about how death came into the

world but then failed to connect the story to his argument. Levine never asked

the jury directly to spare his client's life, although he did say that "the

killing has to stop somewhere." He told the jurors that balancing mitigating and

aggravating factors meaningfully was extremely difficult if not impossible but

that they had to do it anyway. He emphasized that Taylor himself thought his own

crimes were "gross" and "vile." He repeatedly reminded the jury that Taylor, like

criminals generally, did not think like "you and I." He mentioned, but did not

elaborate on, the only mitigating factors he had, i.e., Taylor's relative youth

an attorney's performance need only be "reasonable," Templin, 805 P.2d at 186-87,

and the range of reasonableness is broad, Strickland, 466 U.S. at 689. In the

following cases, courts have held that defense attorneys' closing arguments did

not meet the standard of effective assistance of counsel. In United States v.

Hammonds, 425 F.2d 597, 604 (D.C. Cir. 1970), the court found that "the totality

of the omissions and errors, and particularly the futile closing argument, clearly

reflect a pro forma defense and a lack of adequate representation in the

preparation and trial of the case." The attorney's argument in Hammonds consisted

primarily of telling the jury he did not intend to make a summation of the case

and asking the jurors to do what the court told them to and that would constitute

justice. Id. at 602. He failed to mention the presumption of innocence, the

elements of the offense, the reasonable doubt standard, and the linchpin of the

case--the defendant's lack of intent. Id. at 603. In Wade v. Calderon, 29 F.3d

1312, 1324 (9th Cir. 1994), the court held that defense counsel's closing

argument, which included telling the jury that the defendant would benefit from a

death sentence because it would put him out of his misery, erased any doubt as to

counsel's ineffectiveness. The court held that such an argument caused a

"'breakdown in the adversarial process that our system counts on to produce just

failure to appear at arraignment, to conduct voir dire, to make opening statement,

etc.); Wade at 1325 (discussing failure to remind jury about child abuse, use of

inflammatory testimony by defendant, reuse of twice-rejected multiple personality

theory). Nonetheless, both courts found the deficiencies of the closing arguments

to be so serious as to make the representation, beyond question, ineffective and

"a tortuous existence," perhaps to suggest it would be a suitable punishment.

Compared to Hammonds and Wade, these factors and the lack of other significant

failings in his representation suggest that Levine provided effective, albeit not

heard all the witnesses, and has received the applicable instructions. Some

jurors may already have made up their minds. Oral argument builds on this base of

information and attempts to operate on the hearts and minds of the jurors.

Persuasion depends greatly on the quality of the interpersonal dynamic between

counsel and the jury. There are nuances to oral communication that cannot be

reflected on the printed page. Levine, having become acquainted with the jurors,

may have decided that aggressive advocacy would have alienated or offended them;

he may have been convinced that a low-key, minimalist approach would elicit their

sympathy. We acknowledge that Levine's argument is so minimal as to represent the

lower threshold of reasonableness and that if he had had any more to work with in

the evidence or his client, we might have reached another result. Given the

nature of the crime and substantial evidence against Taylor, however, even the

finest closing argument is not likely to have saved him from the death penalty.

The few mitigating circumstances operating in this case fall well below the level

needed to offset the vicious character of his crimes. In our judgment, the

understatement of Levine's closing argument did not lead to the death penalty for

voluntarily pled guilty to committing heinous crimes without provocation, and the

State had irrefutable, detailed evidence of those crimes. The chances that Taylor

would have fared any better had the best criminal defense attorney in the country

made the perfect argument are slim. For this reason, Taylor cannot show prejudice

related to Levine's performance. Similarly, with regard to his conflict of

interest claims, Taylor failed to show an actual conflict. The judgment of the

Nevertheless, whether the death penalty should be imposed was a question to be

decided solely by the jury, but only after all the requisite legal procedures and

requirements had been complied with. Defense counsel's failure to meet those

requirements resulted in defendant's being denied the effective assistance of

counsel as required by the Sixth Amendment. Strickland v. Washington, 466 U.S.

opinion characterizes defense counsel's mitigation investigation as "very limited"

but "adequate." Id. I cannot agree that it was adequate. Defense counsel did

not conduct an in-depth investigation of defendant's psychological history and

condition. It is simply not sufficient that the attorney knew about some of

defendant's childhood psychological problems, his learning disorder, and substance

abuse in his family. All those factors and possibly others that may have

seriously affected defendant's character were simply not explored in any

meaningful way for the purpose of providing some evidence that would weigh in

favor of a life sentence. It may be that nothing would have come from an adequate

mitigation workup that would have persuaded a jury to reach a different conclusion

as to the appropriate penalty, but it is not possible to know what might have been

adhere to fundamental professional standards of competence and conduct. See State

v. Holland, 876 P.2d 357 (Utah 1994) (discussing and disapproving defense

counsel's personal approach and strategy in conducting defense of criminal cases);

see also id. at 361 (opinion of Stewart, Assoc. C.J., & Durham, J.). Indeed,

defense counsel's closing argument to the jury, to the extent it even addresses

issues somewhat pertinent to the case, is more a self-justification of defense

1. Taylor did not advance a claim under the Utah Constitution.

2. See Douglas W. Vick, Poorhouse Justice: Underfunded Indigent Defense Services and Arbitrary Death Sentences, 43

Buff. L. Rev. 329 (Fall 1995). Poor compensation for capital defense attorneys appears to attract poor attorneys as

evidenced by the rate of disciplinary action and disbarment for these attorneys in various states. Id. at 398. Also, many

capital defense attorneys lack general experience and have not received the training needed to defend a client in "one of the

most specialized fields of practice in American law." Id. at 398-99. Furthermore, because of the minimal pay, attorneys

often fail to spend the time needed to prepare for a case. Id. at 402-03. Instead, in order to survive economically, they must

take on other cases that also demand time. Id. This lack of preparation becomes particularly apparent in sentencing

proceedings where attorneys fail to present mitigating evidence that does exist. Id. at 403-04; see also Anthony Paduano &

Clive A. Stafford Smith, The Unconscionability of Sub-Minimum Wages Paid Appointed Counsel in Capital Cases, 43

Rutgers L. Rev. 281, 283 (1991) (examining whether statutorily set fees for capital defense attorneys remunerate lawyers so

poorly that losing is more profitable than doing "everything possible to prevent a guilty verdict and death sentence").

3. We make no judgment about the efficacy of this argument in other cases with more evidence or in a system-wide

challenge.