Opinion
Case No. 20010219-CA.
Filed May 26, 2005. Not For Official Publication.
Appeal from the Second District, Farmington Department, 001700592 The Honorable Michael G. Allphin.
Kendall Peterson, Salt Lake City, for Appellant.
Mark L. Shurtleff and J. Frederic Voros Jr., Salt Lake City, for Appellee.
Before Judges Bench, Greenwood, and Jackson.
MEMORANDUM DECISION
Stephen Lamar Geukgeuzian appeals his conviction of tampering with a witness, a third degree felony. See Utah Code Ann. § 76-8-508 (2003). We affirm.
Geukgeuzian was convicted of two charges — tampering with a witness and making a written false statement. This is our second opportunity to consider this conviction because Geukgeuzian appealed to this court directly from his trial. In his first appeal before this court, Geukgeuzian argued, with regard to each charge, that the trial court failed to properly instruct the jury on elements and that he received ineffective assistance of counsel. See State v. Geukgeuzian, 2002 UT App 130, 54 P.3d 640 (Geukgeuzian I), rev'd, 2004 UT 16, 86 P.3d 742 (Geukgeuzian II).
We reversed and remanded the tampering with a witness charge, ruling that the trial court failed to properly instruct the jury on the required mental state and that such a failure constituted a manifest injustice. See id. at ¶ 10. Because we reversed and remanded for those reasons, we did not consider whether Geukgeuzian received ineffective assistance on that charge. See id. at n. 3.
We affirmed the written false statement conviction. See id. at ¶ 17. We rejected Geukgeuzian's argument that the jury instruction was erroneously incomplete because Geukgeuzian had failed to show that he was prejudiced by any error. See id. at ¶ 14. Geukgeuzian also argued that he received ineffective assistance on that charge because his trial counsel failed to object to questioning of Jason Lyons that asked Lyons to ascertain Geukgeuzian's state of mind. See id. at ¶¶ 16-17. We concluded that there was abundant evidence in the record to show that Geukgeuzian had the requisite knowledge, and thus that Geukgeuzian had not shown that he was prejudiced. See id. at ¶ 17.
The Supreme Court granted certiorari and held that Geukgeuzian invited the error in the instructions for the tampering with a witness charge. See Geukgeuzian II, 2004 UT 16 at ¶ 14. The Supreme Court remanded the case to this court to consider whether Geukgeuzian received ineffective assistance of counsel on the tampering with a witness charge. See id. Because this case has such an extensive appellate history, including two prior published opinions, we do not recite additional facts.
Geukgeuzian argues that his trial counsel made two errors — (i) offering and failing to object to erroneous jury instructions and (ii) failing to object to Lyons's improper testimony — and that together these errors constitute ineffective assistance of counsel. This is a question of law, which we review for correctness. See State v. Maestas, 2000 UT App 22, ¶ 11, 997 P.3d 314.
Strickland v. Washington outlines "two components" that must both be satisfied to reverse a conviction for ineffective assistance of counsel. 466 U.S. 668, 687 (1984). "First, the defendant must show that counsel's performance was deficient. . . . Second, the defendant must show that the deficient performance prejudiced the defense." Id. To demonstrate prejudice, Geukgeuzian "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." State v. Archuleta, 747 P.2d 1019, 1023 (Utah 1987) (quotations and citation omitted).
Though Strickland announced the test in a death penalty case context, see Strickland v. Washington, 466 U.S. 668, 684-85 (1984), the test has been applied to all criminal defendants. See, e.g., Massaro v. United States, 538 U.S. 500 (2003).
The previous decisions determined that the trial court erred in giving the instructions to the jury, and trial counsel gave the trial court instructions that contained the error. See Geukgeuzian II, 2004 UT 16, ¶ 4, 86 P.3d 742. Thus, we conclude that trial counsel erred in presenting the tampering with a witness jury instructions to the judge and in failing to object to the proffered instructions. In Geukgeuzian I, we concluded that Geukgeuzian was not prejudiced by his counsel's failure to object to the improper questioning because the jury would have still heard evidence of Lyon's personal knowledge. See Geukgeuzian I, 2002 UT App 130 at ¶ 17. Therefore, we need not address that contention further.
But here, for the same reason, we conclude that even if Geukgeuzian's counsel had requested a jury instruction that included a mens rea element, there is not a reasonable probability that the result would change. Geukgeuzian's defense was not that he did not intend to procure a false statement but that the statement was true. Geukgeuzian has not shown prejudice to satisfy the second prong of Strickland. Accordingly, we affirm.
WE CONCUR: Russell W. Bench, Associate Presiding Judge, Pamela T. Greenwood, Judge.