State v. McClellan

2009 UT 50
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah, 	No. 20080350
Plaintiff and Respondent,
v.
F I L E D
Carl McClellan,
Defendant and Petitioner. 	July 31, 2009
---
The Honorable Samuel D. McVey
Fourth District, Provo Dep’t
No. 881402711
Attorneys: 	Mark L. Shurtleff, Att’y Gen., Marian Decker, Asst.
Att’y Gen., Salt Lake City, for respondent
Margaret P. Lindsay, Spanish Fork, for petitioner
---
On Certiorari to the Utah Court of Appeals
WILKINS, Justice:
INTRODUCTION
¶1 	This court granted certiorari on the following issues:
(1) Whether the court of appeals erred in its assessment of
defendant Carl McClellan’s contention of plain error and
ineffective assistance of counsel to support his argument that
the Utah County Attorney’s Office should have been disqualified
by the association of his former defense counsel, and (2) Whether
the court of appeals erred in its assessment of Defendant’s claim
of error as to the State’s presentation of an audio recording as
rebuttal evidence. 	We affirm in part and reverse in part.
BACKGROUND
¶2 	This appeal stems from McClellan’s conviction for
first-degree rape. 	The rape occurred on July 5, 1988, when
McClellan stopped at the victim’s house while selling cleaning
supplies door-to-door in her American Fork neighborhood. 	He
visited the victim’s house twice during the day, once between

No. 20080350 	2
1:00 and 1:30 p.m. and then again around 4:00 p.m. 	The rape took
place during the first visit. 	The victim reported the rape to
police that evening and McClellan was arrested three days later.
¶3 	During interrogation by police officers, McClellan
stated that he had been to the victim’s house only once. 	When
the officers challenged this statement, McClellan admitted to
lying and confirmed that he had in fact been there twice.
Unbeknownst to McClellan, this police interview was recorded.
¶4 	Phil Hadfield undertook McClellan’s representation and
appeared with him at his preliminary hearing and arraignment.
Trial was set for August 2, 1988, then continued to August 29,
1988. 	Three days before the scheduled trial, McClellan appeared
for a hearing on a defense motion for a second continuance. 	At
that time, McClellan learned that Hadfield had left private
practice and had accepted employment with the Utah County
Attorney’s Office-–the entity that was conducting McClellan’s
prosecution. 	Hadfield neither told McClellan of his new
employment nor sought the permission of the trial court to
withdraw from representation. 	Newly appointed defense counsel
James Rupper sought this second continuance in order to be able
to provide his client adequate representation at trial. 	However,
when McClellan learned a continuance would require him to waive
his constitutional right to a speedy trial, he refused, and the
trial proceeded as scheduled.
¶5 	At trial, McClellan testified that he had never told
police officers that he had been to the victim’s house only once.
When asked on cross-examination if he would change his testimony
if he knew that there was a tape recording of the interview, he
indicated that he would not. 	The interviewing officer then
testified that McClellan had admitted to lying during the
interview, and disclosed for the first time that the interview
had been taped. 	The prosecution sought to play the contradictory
portion of the taped interview, to which McClellan’s counsel
objected on the grounds that the defense had not been given a
copy of the tape or even notified of its existence.
¶6 	McClellan was allowed to listen to the tape overnight.
The defense objected again the next morning, asserting a
violation of McClellan’s Miranda rights and unfair surprise. 	All
objections were overruled and the court allowed the admission of
the tape for rebuttal purposes. 	Portions were then played for
the jury, but the audio was not transcribed as part of the
record. 	On surrebuttal, McClellan testified that he had been
nervous during his testimony the previous day and that the tape
accurately reflected the interview. 	McClellan was convicted as

1 The details of this appeal are set forth in Currier v.
Holden, 862 P.2d 1357, 1360-72 (Utah Ct. App. 1993).
3 	No. 20080350
charged and sentenced to an indeterminate term of five years to
life.
¶7 	Following sentencing, the defense filed a motion for a
new trial. 	In denying the motion, the judge held that admission
of the tape was proper because “the defense had essentially the
same notice of the existence of the recording as the
prosecution,” and therefore, “its introduction was not
prejudicial.”
¶8 	On October 3, 1988, the trial court received a letter
from McClellan requesting a rehearing, alleging improprieties in
his trial and sentencing, including the introduction of the taped
interview and the representation of his counsel. 	The trial court
treated this letter as a motion for a new trial and Rupper filed
a formal memorandum in support of the motion. 	An evidentiary
hearing was held in which both McClellan and Hadfield testified.
The trial court denied McClellan’s motion for a new trial,
holding again that introduction of the tape was not prejudicial
because both McClellan and the prosecution had the same notice of
the existence of the tape, and holding that McClellan’s
dissatisfaction with his representation was founded on the
limited time that Rupper had to prepare for trial, which could
have been cured by McClellan’s acceptance of the continuance his
counsel proposed. 	No record of this hearing survives.
¶9 	McClellan filed a notice of appeal on February 27,
1989. 	On July 12, 1990, Rupper withdrew as appellate counsel.
He was replaced by Kent O. Willis, who was in turn replaced by
Don Elkins on August 14, 1991. 	The appellate court was not
provided with a complete transcript of McClellan’s trial until
November 1991, thirty-two months after the notice of appeal was
filed. 	The appeal was ultimately dismissed two months later, in
January 1992, for failure of McClellan’s counsel to file a brief.
¶10 	Meanwhile, in October 1991, McClellan, acting pro se,
had filed a Petition for Writ of Habeas Corpus, seeking vacation
of his conviction and a new trial. 	Defense counsel Steven J.
Aeschbacher was appointed to represent him in these proceedings.
Ultimately, this petition was dismissed by the district court as
untimely. 	McClellan appealed, and the court of appeals reversed
on constitutional grounds and remanded for consideration of the
substantive claims. 1

No. 20080350 	4
¶11 	Thereafter, Aeschbacher entered into a stipulation with
the State to allow McClellan to be resentenced nunc pro tunc to
facilitate his direct appeal. 	An order to this effect was issued
on May 24, 1994. 	However, the record does not indicate that this
order was ever filed.
¶12 	Two years later, in June 1996, the district court
issued a Notice of Intent to Dispose of Exhibits and Orders,
advising the parties of its intent to dispose of the exhibits in
McClellan’s file unless a written objection was filed. 	McClellan
had no counsel of record at that time and was not notified
personally. 	No objection was filed, and the exhibits, including
the audio tape of McClellan’s interview, were presumably
destroyed.
¶13 	For nearly ten years, McClellan remained unaware he had
been resentenced and was once again able to exercise his right to
appeal his conviction of sixteen years earlier. 	McClellan was
not made aware of the resentencing order until the spring of 2004
when he and his family finally contacted Aeschbacher’s former
firm. 	He sought to have the order enforced in July 2004, at
which time the Utah County Public Defender Association was
appointed to represent him.
¶14 	Resentencing finally occurred more than a year later,
in October 2005. 	The district court reimposed McClellan’s
original sentence and denied all his post-trial motions.
McClellan timely appealed, claiming that he was provided
ineffective assistance of counsel because Rupper did not move to
disqualify the entire Utah County Attorney’s office and claiming
that the trial court erred by admitting the recording of his
interrogation. 	State v. McClellan, 2008 UT App 48, ¶¶ 10, 12,
179 P.3d 825.
¶15 	While the appeal was pending, in December 2006,
McClellan filed a motion for remand under rule 23B of the Utah
Rules of Appellate Procedure to develop a record in support of
his allegations of ineffective assistance of counsel. 	The court
of appeals denied this motion on the grounds that it was based
largely on the assertion of facts already of record and because
it failed to set forth any nonspeculative facts that established
ineffective assistance and resulting prejudice.
¶16 	The court of appeals subsequently denied both of
McClellan’s claims on appeal, affirming his conviction. 	It held
that while a presumption arises that all prosecutors have been
exposed to confidential information when former defense counsel
joins a prosecutor’s office, that presumption can be rebutted by

5 	No. 20080350
a showing that the former defense counsel has been effectively
screened from the ongoing prosecution. 	In McClellan’s case,
there was no evidence in the record that Hadfield either had or
had not been screened; therefore, the court of appeals assumed
that “the prosecutor’s office adequately rebutted the presumption
of shared confidences and that McClellan’s [new] trial counsel
was satisfied with the precautions taken to screen Hadfield.”
Id. ¶ 23. 	It thus concluded that Rupper had not rendered
ineffective assistance. 	The court of appeals further held that
McClellan had waived his right to claim error as to the admission
of the tape because he had not sought a continuance to attempt to
mitigate the impact of the tape during his trial. 	Id. ¶ 31.
STANDARD OF REVIEW
¶17 	On certiorari, we review the decision of the court of
appeals for correctness, granting no deference to its conclusions
of law. 	State v. Brake, 2004 UT 95, ¶ 11, 103 P.3d 699. 	“When
confronted with ineffective assistance of counsel claims, we
review a lower court's purely factual findings for clear error,
but review the application of the law to the facts for
correctness.” 	Taylor v. State, 2007 UT 12, ¶ 13, 156 P.3d 739.
Additionally, we review the legal questions underlying the
admissibility of evidence for correctness. 	See State v. Workman,
2005 UT 66, ¶ 10, 122 P.3d 639.
ANALYSIS
¶18 	We will first address the effect of the conflict of
interest created when McClellan’s former defense counsel became
associated with the public office responsible for McClellan’s
prosecution. 	Second, we will address the admissibility of the
audio tape of McClellan’s police interview. 	Finally, we will
address McClellan’s pending motion to terminate his
representation by his current defense counsel.
I. 	THE UTAH COUNTY ATTORNEY’S OFFICE SHOULD HAVE BEEN
DISQUALIFIED FROM MCCLELLAN’S PROSECUTION
A. 	Former Defense Counsel’s Association with the Prosecutor’s
Office Creates a Rebuttable Presumption of Shared Confidences
¶19 	The limited issue of whether an entire county
attorney’s office must be disqualified from a defendant’s
prosecution when that defendant’s former defense counsel becomes
employed by the county attorney’s office is a question of first
impression in Utah. 	McClellan urges us to adopt a rule requiring
per se disqualification. 	We decline to do so. 	We agree with the

No. 20080350 	6
court of appeals that a more flexible rule better reflects Utah’s
rules, precedent, and policy. 	Accordingly, we adopt the rule
formulated by the court of appeals:
[T]o ensure faith in the impartiality and
integrity of the criminal justice system, and
to prevent a chilling effect on a defendant’s
willingness to confide in defense counsel,
the entire prosecutor’s office will be
assumed to be privy to the confidences
obtained by the former defense lawyer. 	The
prosecutor may rebut this presumption by
showing that effective screening procedures
have been used to isolate the defendant’s
former counsel from the prosecution of the
substantially related criminal charges.
State v. McClellan, 2008 UT App 48, ¶ 22, 179 P.3d 825.
¶20 	While we have not previously addressed the precise
question of the consequences of defense counsel’s association
with the prosecuting entity during the course of prosecution, the
concerns underlying this issue are not new. 	In State v. Brown,
this court adopted a rule prohibiting a city prosecutor from
assisting in the defense of an accused, emphasizing that such
dual representation would “jeopardize[]” the “vital interests of
the criminal justice system,” and that “fairness and impartiality
in the adjudication process must be diligently maintained” in
order to “ensure [public] faith in the impartiality and integrity
of the justice system.” 	853 P.2d 851, 856-58 (Utah 1992). 	These
same policy considerations are at issue here. 	A presumption of
shared confidences between the former defense counsel and the
county attorney’s office adequately addresses these
considerations.
¶21 	In adopting this rule, we are also guided by the Utah
Rules of Professional Conduct. 	Clearly, under rule 1.9(a), a
former defense attorney is prohibited from participating in the
prosecution of his or her former client “in the same or a
substantially related matter” absent that client’s “informed
consent, confirmed in writing.” 	Utah Rules of Prof’l Conduct R.
1.9(a) (2009). 	Ordinarily, such a conflict of interest is
attributed to all members of a disqualified attorney’s firm. 	Id.
R. 1.10. 	However, the Rules of Professional Conduct contemplate
that the conflict need not be generally attributed if “the
personally disqualified lawyer is timely screened from any
participation in the matter and is apportioned no part of the fee
therefrom.” 	Id. R.1.10(c)(1). 	While this rule applies

7 	No. 20080350
specifically only to attorneys working in the private sector, it
demonstrates our preference for screening over per se
disqualification of an entire group of associated attorneys.
¶22 	We note that other courts are divided over whether per
se disqualification of the entire prosecutor’s office is
necessary to adequately protect the rights of the accused. 	Lux
v. Virginia, 484 S.E.2d 145, 150 (Va. Ct. App. 1997). 	However,
the majority of jurisdictions that have addressed this issue have
rejected the inflexibility of a per se rule and have held instead
that “the entire staff ordinarily need not be disqualified from
prosecuting the defendant if the staff member who had previously
worked for the defendant is isolated from any participation in
the prosecution of the defendant.” 	New Mexico v. Pennington, 851
P.2d 494, 498 (N.M. Ct. App. 1993); see also Nebraska v.
Kinkennon, 747 N.W.2d 437, 444 (Neb. 2008)(“[W]hen the
disqualified attorney is effectively screened from any
participation in the prosecution of the defendant, the
prosecutor’s office may, in general, proceed with the
prosecution.”); In re R.B., 583 N.W.2d 839, 842 (“Based upon the
extensive efforts made to screen [former defense counsel] from
any communication with anyone in the State’s Attorney’s Office
about this case after her employment with that office . . . , we
find no error in the trial court’s denial of [defendant’s]
motions to dismiss or recuse [the entire office].”).
¶23 	The rebuttable presumption of shared confidences which
we adopt today avoids the drastic result of disqualifying an
entire county attorney’s office based on only the appearance of
impropriety, without regard to whether any confidence was
actually breached or any prejudice to the defendant actually
resulted, while at the same time ensuring the rights of the
accused are protected. 	See Kinkennon, 747 N.W.2d at 443. 	The
rebuttable presumption allows “the trial court [to] evaluate[]
the circumstances of a particular case and then determine[]
whether disqualification of the entire office is appropriate.”
Id. 	In order to rebut the presumption, the burden rests with the
prosecutor’s office to demonstrate that necessary and effective
steps have been taken to prevent the transfer of any confidential
information between former defense counsel and those conducting
the prosecution. 	The prosecutor’s office must show that it has
implemented sufficient measures to screen former defense counsel
and that it has consistently followed through with those
measures. 	See Michigan v. Davenport, 760 N.W.2d 743, 750 (Mich
Ct. App. 2008).
B. 	The Utah County Attorney’s Office Did Not Rebut the
Presumption of Shared Confidences

No. 20080350 	8
¶24 	While we concur in the rule and reasoning adopted by
the court of appeals, we disagree with that court’s application
of the rule. 	The court of appeals was unable to determine from
the incomplete record extant in this case whether McClellan’s
former defense counsel Hadfield had or had not been suitably
screened. 	Because a defendant bears the burden of ensuring an
adequate record on which to prove ineffective assistance of
counsel on appeal, see State v. Litherland, 2000 UT 76, ¶ 16, 12
P.3d 92, the court of appeals construed the deficiencies in the
record against McClellan and “assume[d] that the prosecutor’s
office adequately rebutted the presumption of shared
confidences.” 	McClellan, 2008 UT App 48, ¶ 23. 	We disagree.
¶25 	We begin with the presumption that when defense counsel
Hadfield joined the Utah County Attorney’s Office three days
before McClellan’s trial, an impermissible conflict of interest
was created. 	That conflict should have been imputed to the
entire county attorney’s office unless it was rebutted. 	The
county attorney’s office was required to show that it had adopted
effective measures to prevent the transfer of any of McClellan’s
confidences from Hadfield to those engaged in the prosecution.
The record in this case is not simply inadequate on this point,
it is nonexistent. 	There is no evidence of any attempt by the
prosecutor to show that Hadfield was effectively screened because
none was offered. 	Neither the prosecutor nor the court ever
raised the issue. 	McClellan’s new defense counsel also failed to
raise the issue. 	However, no objection is required, and the lack
of an objection does not change the analysis.
¶26 	The presumption of impermissibly shared confidences was
not rebutted, and consequently stands. 	The trial court was under
an obligation to disqualify the entire Utah County Attorney’s
Office. 	Its failure to do so was error.
C. 	The Egregious Mismanagement of McClellan’s Case Compels a
Presumption of Prejudice
¶27 	To support reversal on a finding of error, we require a
showing of prejudice–-a showing by the defendant in this case
that absent the failure of the court to disqualify the prosecutor
there is a reasonable likelihood that the outcome of his trial
would have been more favorable. 	See State v. Lee, 2006 UT 5,
¶ 26, 128 P.3d 1179. 	On the specific facts of McClellan’s case,
however, we will presume prejudice. 	It has taken more than
twenty years for McClellan’s first appeal, his constitutionally
guaranteed right to review of his conviction, to reach us. 	Much
of the record has been lost or destroyed. 	The exhibits have been

9 	No. 20080350
destroyed. 	Prompt attention to motions, notices, and orders has
been dramatically lacking. 	None of these difficulties appear to
be McClellan’s doing. 	We cannot in good conscience assume
regularity in a circumstance when so much time has passed, so
many defense lawyers have come and gone, and so many mistakes
have been allowed. 	In such a circumstance, it would be unjust to
hold an incarcerated defendant responsible for the loss of the
court records by requiring him to demonstrate the likelihood of a
more favorable outcome.
¶28 	We are also compelled to note that we are not pleased
with the result we are forced to reach in this case. 	We have no
reason to assume that the verdict that would have been reached on
a timely retrial would have differed from that reached
originally. 	However, McClellan’s rights have been so severely
trodden upon in this instance that it is impossible for us to do
otherwise. 	After twenty years, this is McClellan’s first appeal
of right. 	It is an appeal that should have been heard in 1989
when the first notice of appeal was filed, but was not because of
missteps outside of McClellan’s control: the district court
delayed for almost three years before transferring his file to
the appellate court and his defense counsel never filed a brief
on his behalf. 	Although the court eventually sought to remedy
this error by ordering resentencing, McClellan was not informed
of this result, the order was never filed, and resentencing did
not take place until 2005. 	Meanwhile, the court record was
destroyed. 	In the years since McClellan’s conviction, his case
has been passed from attorney to attorney. 	He has been ignored
and forgotten. 	After twenty years in prison, McClellan is still
entitled to a fair trial. 	We therefore remand for a new trial.
¶29 	We recognize that this result is also unfair to
McClellan’s victim. 	She has absolutely no responsibility for the
errors in this case. 	However, our constitutional system is
primarily designed to protect the innocent, not punish the
guilty. 	When, as here, the two are in conflict, the greater good
lies in protecting the rights of the innocently accused rather
than ensuring the conviction of all who are guilty. 	When the
constitutionally protected rights of a defendant are blatantly
violated, that violation must be corrected in order to prevent
the same occurring to an innocent defendant in the future. 	Our
constitutional compact has already made that choice.
II. 	MCCLELLAN’S AUDIO-TAPED POLICE INTERVIEW WAS ADMISSIBLE AS
REBUTTAL EVIDENCE
¶30 	Having remanded McClellan’s entire case for a new trial
on the basis of the conflict of interest, the outcome of the

No. 20080350 	10
remaining issue on appeal is without consequence. 	However, we
briefly address the admissibility of McClellan’s taped police
interview for guidance to the bench and bar.
¶31 	McClellan argues that the trial court erred in allowing
portions of his recorded police interview to be played for the
jury because he had not previously been made aware of the
existence of the recording. 	He argues that this failure was a
violation of the discovery rules found in Rule 16 of the Utah
Rules of Criminal Procedure and constitutes plain error. 	The
State argues that any violation was merely technical in nature.
¶32 	In order for the admission of evidence to constitute
plain error, “a defendant must demonstrate that (i) an error
exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error,
there is a reasonable likelihood of a more favorable outcome."
State v. Ross, 2007 UT 89, ¶ 17, 174 P.3d 628 (internal citations
and quotation marks omitted). 	Here, McClellan is unable to
satisfy the third prong of the test; there is no realistic
possibility that the outcome of his trial would have been
different had the recording not been admitted. 	Identical
evidence was already before the jury in the form of the testimony
of the interviewing officer. 	And while it is true that had
McClellan been aware of the recording he may have altered his
testimony and chosen not to perjure himself, there is no
privilege to testify falsely in the mistaken belief that prior
statements will not be disclosed.
III. 	REPRESENTATION BY MCCLELLAN’S CURRENT DEFENSE COUNSEL IS
TERMINATED
¶33 	This court is in receipt of McClellan’s Motion to
Terminate Counsel, received directly from McClellan on February
9, 2009. 	In his motion, McClellan requests that his
representation by Margaret P. Lindsay be terminated. 	Upon the
issuance of this opinion, McClellan’s motion is granted, new
counsel to be appointed on remand.
CONCLUSION
¶34 	As there was no showing that McClellan’s former defense
counsel Hadfield was screened following his association with the
Utah County Attorney’s Office, Hadfield’s conflict of interest
should have been imputed to that entire office. 	Therefore, the
Utah County Attorney’s Office should have been disqualified from
McClellan’s prosecution. 	Because of the egregious mismanagement
of McClellan’s case, we presume that the failure to disqualify

11 	No. 20080350
resulted in prejudice to McClellan. 	Finally, we grant
McClellan’s motion to terminate his representation by his current
defense counsel.
¶35 	The conviction is reversed and the case remanded for a
new trial.
---
¶36 	Chief Justice Durham and Associate Chief Justice
Durrant concur in Justice Wilkins’ opinion.
---
NEHRING, Justice, concurring and concurring in the result:
¶37 	I concur in parts I.A. and I.B. and concur in the
result of part I.C. 	I disagree, however, with the assumption
that a defendant whose confidences we presume were impermissibly
shared may not obtain relief unless he can show prejudice. 	This
view would place a defendant whose confidences were presumed
shared in the untenable position of being required to prove what
confidences were disclosed and why the outcome of his trial would
have been more favorable had the confidences not been disclosed.
The presumption that confidential information was shared when a
defendant’s attorney joins the office of the prosecutor is
necessary because the prosecutor is the only party who knows
whether confidential information was in fact disclosed.
Additionally, where the presumption is unrebutted, it logically
follows that all confidences are presumed shared. 	Likewise, only
the prosecutor knows if confidential information was used against
the defendant. 	When the presumption is unrebutted, the defendant
is as limited in his knowledge of whether confidential
information was used against him as he is regarding whether
confidential information was disclosed. 	Thus, I believe that it
is inconsistent to relieve the defendant of the burden of proving
a confidence was shared and then saddle him with the burden of
showing that the confidences were used against him and that such
use was prejudicial. 	I am simply unable to harmonize the notion
that confidences can be impermissibly shared with the concept
that while the sharing was wrongful, it may not have mattered. 	I
would therefore hold that an unrebutted presumption of wrongfully
shared confidences results in an unrebuttable presumption of
prejudice.
---
¶38 	Justice Parrish concurs in Justice Nehring’s concurring
opinion.