2005 UT 72
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. 20020935
Plaintiff and Appellee,
v.
F I L E D
Arthur Anthony Gonzales,
Defendant and Appellant.
November 4, 2005
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Third District, Salt Lake
The Honorable Joseph C. Fratto, Jr.
No. 011905307
Attorneys: Mark L. Shurtleff, Att'y Gen., Marian Decker,
Asst. Att'y Gen., Michaela D. Andruzzi, Salt Lake
City, for plaintiff
Kent R. Hart, Salt Lake City, for defendant
Gregory G. Skordas, Jack M. Morgan, Salt Lake City,
Douglas E. Beloof, Liana Jeanheh Reeve, Portland, OR,
for State of Utah amicus
---
NEHRING, Justice:
¶1
Arthur Anthony Gonzales appeals his conviction for
attempted rape and forcible sexual abuse. Mr. Gonzales
challenges the trial court's rulings quashing a subpoena for the
victim's mental health records, removing his counsel, and denying
him the opportunity to cross-examine the victim about her
previous juvenile adjudications. He also claims that his
attorney rendered ineffective assistance, and that, cumulatively,
all these errors require reversal. We affirm.
FACTS
¶2
Elizabeth Snodgrass and her sixteen-year-old daughter
Jessica moved next door to Mr. Gonzales and his children in 1999.
Ms. Snodgrass and Mr. Gonzales began dating and became engaged.
During the engagement, each maintained a separate residence, but

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they began to blend their families with activities such as joint
dinners.
¶3
Mr. Gonzales and Ms. Snodgrass began to discuss their
differences in discipline, which was creating contention between
the two families. When disagreements over parenting styles would
arise, Mr. Gonzales and Ms. Snodgrass would host "table talks" to
discuss the issue. One of these meetings was held after Ms.
Snodgrass broke off the engagement when Jessica accused Mr.
Gonzales of grabbing her buttocks and pressing himself against
her during a hug. After discussing the matter with the family,
Ms. Snodgrass concluded Jessica either was lying or misunderstood
Mr. Gonzales's actions and subsequently recommitted to marry Mr.
Gonzales.
¶4
On the Saturday before the planned wedding, Mr.
Gonzales drove Ms. Snodgrass to work. When he dropped her off,
Ms. Snodgrass took only her office keys, leaving her car and
house keys with Mr. Gonzales. Around 9:00 a.m., Mr. Gonzales
told his daughter that he was going next door to do laundry.
Access to the laundry room could only be gained by passing
through Jessica's bedroom. At approximately 10:00 a.m., Mr.
Gonzales again told his daughter he was going to check on the
laundry.
¶5
Jessica alleged that around that same time, she felt a
man crawl into her bed and put his arms around her. He began to
rub his pelvis against her backside and to "hump" her on her
buttocks. She says that when she saw the man's hand, she knew it
was Mr. Gonzales. He put his hand under her shirt and bra and
started touching her breasts, to which she responded by stating
"no." He said "it's okay" and then pulled down her pants and
underpants, grabbed her buttocks, and placed his finger inside of
her vagina. He then rubbed his penis on her buttocks before
placing it between her legs and tried to penetrate her. At that
point, Jessica put her feet against the wall and pushed Mr.
Gonzales off of the bed. She told him it wasn't right and that
"this is not what fathers and daughters do." According to
Jessica, Mr. Gonzales warned her not to tell anyone because no
one would believe her and that he would give her whatever she
wanted. She also said that Mr. Gonzales asked her not to notify
the police.
¶6
In Mr. Gonzales's version of events, he kneeled on
Jessica's bed to wake her up. He put his arms around and under
her while calling her by her nickname and saying, "Come on . . .
let's go . . . I need your help." Jessica then became "irate"
and began yelling at him. He threw his hands in the air and told
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her if she was hungry to come over and eat and repeated that he
needed her help.
¶7
After Mr. Gonzales left, Jessica called her friend
Anjali, who testified that Jessica was scared and upset. Jessica
also spoke with Anjali's father, Rajiv Kulkarni. He testified
that Jessica was crying and upset when he spoke to her that
morning. Mr. Kulkarni called the police, and then went to pick
up Jessica, leaving his car parked about a block away. Jessica
came running toward Mr. Kulkarni, carrying her bed sheets.
Jessica suspected that some of the stains on her sheets might be
semen. Mr. Kulkarni drove Jessica to meet with the police.
During her police interview, Jessica told police that a week
before this incident Mr. Gonzales had tried to hypnotize her,
asked her to remove her clothing, and touched her breast.
¶8
The morning of the incident, Mr. Gonzales paged Ms.
Snodgrass twice. The second time, he included a "911" along with
his cell phone number, indicating to her that she needed to call
back immediately. Ms. Snodgrass called Mr. Gonzales, who said he
thought he scared Jessica when he awoke her for breakfast and
that she may have run away.
¶9
The police officers who interviewed Mr. Gonzales said
that he admitted "wrestling" with Jessica. Jessica was not
tested for seminal fluid or other physical evidence. No semen
was found on Jessica's sheets or pants.
PROCEDURAL HISTORY
¶10
Mr. Gonzales was charged with one count of attempted
rape and one count of forcible sexual abuse. Despite having
appointed counsel, Mr. Gonzales filed a pro se motion stating
that Jessica's claim was a retaliation against an unwanted
marriage. He also claimed, apparently to suggest that Jessica's
ability to tell the truth was impaired, that Jessica was
undergoing psychological therapy, and that she was taking
medicine for a psychological condition. Mr. Gonzales's counsel
withdrew and the trial court appointed Mr. Edward Montgomery as
new counsel.
¶11
Although Mr. Gonzales's motion was filed without the
knowledge or over the objection of his attorney, the matters
raised in it were at the core of his defense. His effort to
advance the cause of his theory that his accuser was a mentally
disturbed teen bent on retaliation gives rise to the first issue
that we decide today: the admissibility of Jessica's mental
health records.
3
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I. THE SUBPOENAS FOR JESSICA'S MENTAL HEALTH RECORDS
¶12
Mr. Montgomery served a subpoena on the University of
Utah Neuropsychiatric Institute (UNI) for Jessica's treatment
records. UNI responded with a letter stating that the records
were privileged under Utah Rule of Evidence 506 and could only be
released if an affidavit attesting that the request for records
satisfied an exception to the privilege. Mr. Montgomery
completed an affidavit for medical records entitled "PATIENT HAS
PLACED MENTAL OR PHYSICAL CONDITION AT ISSUE AS A CLAIM OR
DEFENSE IN A LAWSUIT" and checked the boxes indicating that
Jessica's mental and physical condition were "an element of a
claim or defense in this lawsuit." UNI sent Jessica's treatment
records directly to Mr. Montgomery. Not long after Mr.
Montgomery received the records, UNI's general counsel called him
to say that a mistake had been made; UNI should not have released
the records; and instead, should have moved to quash the
subpoena.
¶13
Investigators retained by Mr. Gonzales's counsel also
contacted Ms. Snodgrass at her home and attempted to serve her
with subpoenas seeking the names of Jessica's mental health
providers. These actions prompted the prosecutor to request that
any contact with State witnesses should be made through her. The
prosecutor also told Mr. Montgomery to serve subpoenas on mental
health service providers directly, but indicated an intention to
move to quash any subpoenas regarding Jessica's mental health.
On April 2, 2002, Mr. Montgomery served subpoenas on two of
Jessica's private therapists.
¶14
At a pre-trial conference, the State challenged Mr.
Gonzales's acquisition of the UNI treatment records. Having
learned that the records had been obtained by Mr. Montgomery, the
State sought to have them turned over to the court. The State
asserted that Mr. Montgomery had obtained the documents
improperly because he had signed the form provided by UNI as a
condition to its release of Jessica's treatment records that
included the false representation that Jessica had placed her
mental or physical condition at issue.
¶15
Mr. Montgomery admitted that he looked at the records,
but said that after UNI general counsel alerted him that UNI
believed that he had acquired the records improperly, he safe-
guarded them until the matter was resolved. The trial court
ordered Mr. Montgomery to submit the records to the court and the
trial court sealed them, conditioning their disclosure on the
acquisition of a court order.
No. 20020935
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¶16
At a subsequent hearing on the fate of the records, the
State sought to quash the subpoenas for the records and to
exclude any evidence obtained from them. The State argued that
Mr. Montgomery's access to the records had been gained
fraudulently and that, by inspecting them, Mr. Montgomery had
violated Jessica's rights. Mr. Montgomery replied that Jessica's
mental state was an element of the defense. Mr. Montgomery
understood Jessica's relevant mental state to be an inability to
tell the truth. Thus, he argued, because of the likelihood of
finding exculpatory evidence that Jessica "cannot be believed" in
her mental health records, the defense was entitled to an in
camera review under State v. Cardall, 1999 UT 51, 982 P.2d 79.
¶17
Mr. Montgomery also stated that Mr. Gonzales had
independent knowledge of Jessica's severe emotional problems
because Mr. Gonzales personally knew of Jessica's medical
conditions and had attended one of her therapy sessions. Mr.
Montgomery therefore asserted that the records were obtained for
good cause and through proper procedures.
¶18
The trial court disagreed and quashed the subpoenas for
the records. The court further ruled that the information
obtained from the records could not be used at trial, and noted
that Mr. Montgomery had created a possibly insurmountable
conflict of interest, as "it is impossible to divorce defense
counsel's knowledge obtained from the privileged information from
his knowledge of the rest of the case." Three days later, Mr.
Montgomery submitted a motion to withdraw, which the trial court
granted. Ms. Janet Miller replaced Mr. Montgomery as Mr.
Gonzales's trial counsel.
II. TRIAL TESTIMONY
¶19
Once the case went to trial, Ms. Miller moved in limine
to exclude evidence concerning Mr. Gonzales's previous firearms
and drug possession convictions, as well as two prior accusations
of sexual misconduct made by Jessica. The trial court allowed
introduction of the prior convictions for the limited purpose of
impeaching Mr. Gonzales. The court deferred ruling on the
admissibility of Jessica's uncharged allegations until the
evidence was presented.
¶20
On direct examination, Ms. Miller asked Mr. Gonzales if
he had ever been accused of sexual assault. Mr. Gonzales
answered that he had not. Outside of the presence of the jury,
the State argued that Ms. Miller had opened the door for
admission of prior bad acts. The State sought permission to
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No. 20020935

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introduce details of past accusations of sexual assault made by
Jessica against Mr. Gonzales. The trial court allowed the
evidence. On cross-examination, Mr. Gonzales admitted to trying
to hypnotize Jessica, but denied touching her sexually or asking
her to remove her shirt.
¶21
Mr. Gonzales testified that his children were his
"life." This led the prosecutor to ask Mr. Gonzales, if this was
so, why he owed $47,000 in child support arrears. Ms. Miller
initially objected to this question on the grounds of foundation,
but later withdrew her objection. Mr. Gonzales then admitted to
owing the money.
¶22
Finally, Ms. Miller sought to admit evidence of Jessica
and Anjali's retail theft convictions for purposes of
impeachment. The trial court rejected the evidence under Utah
Rule of Evidence 609 as inadmissible misdemeanor theft
convictions that do not involve dishonesty.
¶23
The jury convicted Mr. Gonzales of both attempted rape,
a first degree felony, and forcible sex abuse, a second degree
felony. This appeal followed.
ISSUES
¶24
Mr. Gonzales raises five issues: (1) that the trial
court erred in granting the State's motion to quash subpoenas for
Jessica's mental health records from UNI; (2) that by removing
Mr. Gonzales's counsel for having a conflict of interest, the
trial court denied him the right to the counsel of his choice;
(3) that the trial court erred in denying Mr. Gonzales the
opportunity to cross-examine the victim and her friend about
prior juvenile convictions; (4) that his attorney rendered
ineffective assistance of counsel by opening the door to prior
bad acts and also by withdrawing an objection to irrelevant
prejudicial evidence; and (5) that the errors in the trial, if
they do not individually warrant reversal, cumulatively merit a
new trial.
ANALYSIS
I. MOTION TO QUASH
¶25
Mr. Gonzales claims that the trial court erred when it
quashed the subpoenas for the victim's mental health records.
Although Mr. Gonzales raises complex evidentiary issues, the real
issue is actually very narrow: did the trial court err in
quashing the subpoenas? We conclude that it did not. The trial
No. 20020935
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court supported its decision to quash1 the subpoenas in two ways:
first, because Mr. Montgomery failed to notify opposing counsel
of the subpoenas, and second, because Mr. Montgomery failed to
turn the records over to the court for an in camera review of the
privileged information before inspecting the contents of the
records. Mr. Gonzales argues that the process by which his
attorney obtained and reviewed the records was not flawed. We
review for correctness the trial court's conclusion of law that
Mr. Gonzales failed to follow the proper procedures for
subpoenaing documents. State v. Pena, 869 P.2d 932, 936 (Utah
1994). We affirm.
A. Subpoena of Records Without Notifying
the Prosecution, Victim, or Trial Court
¶26
Mr. Gonzales first argues that he had no duty to notify
either the State or the court of his pending subpoenas to UNI.
He relies on rule 14 of the Utah Rules of Criminal Procedure,
which states:
The clerk of the court in which a case
is pending shall issue in blank to the
defendant, without charge, as many
signed subpoenas as the defendant may
require. An attorney admitted to
practice in the court in which the
action is pending may also issue and
sign a subpoena as an officer of the
court.
A subpoena may command the person to
whom it is directed to appear and
testify or to produce in court or to
allow inspection of records, papers, or
other objects.

1 We note initially that, although the trial court used the
term "quash," and we continue to do so here, the circumstances of
this case do not follow the typical sequence of quashing events.
Ordinarily, a trial court quashes a subpoena before the records
are obtained. Here, however, the trial court set aside
information found in records that had already been obtained
citing a failure to comply with proper procedures. The trial
court did so in a retroactive attempt to right the wrongs that
had been created by Mr. Montgomery's premature acquisition of
Jessica's mental health records. The trial court referred to its
actions as "quashing," a term we adopt.
7
No. 20020935

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Utah R. Crim. P. 14(a), (b). This rule does not specifically
require a party seeking a subpoena to notify anyone of his
intention, and therefore, according to Mr. Gonzales, Mr.
Montgomery acted properly when he subpoenaed Jessica's records
from UNI.
¶27
The text of rule 14 does not, however, end the
discussion of this matter. The Utah Rules of Criminal Procedure
are subject to some of the requirements of the Utah Rules of
Civil Procedure. Prominent among these is civil rule 81(e),
which states, "[t]hese rules of [civil] procedure shall also
govern in any aspect of criminal proceedings where there is no
other applicable statute or rule, provided, that any rule so
applied does not conflict with any statutory or constitutional
requirement." Utah R. Civ. P. 81(e). The rules of civil
procedure mandate notice to parties of an attempt to procure
documents by subpoena. Specifically, civil rule 45(b) requires
"[p]rior notice of any commanded production or inspection of
documents . . . before trial shall be served on each party in the
manner prescribed by Rule 5(b)."2 Utah R. Civ. P. 45(b).
¶28
Mr. Gonzales contends that civil rule 81's general
incorporation language does not merge civil rule 45's notice
requirement into criminal rule 14. He understands criminal rule
14 to be an independent, stand-alone rule that communicates all
there is to say about subpoenas in criminal cases. Its silence
on notice is, according to Mr. Gonzales, an affirmative
declaration that notice is not required. Thus, criminal rule 14
serves as the "other applicable rule" on the subject of notice,
rendering it immune from the incorporation language of civil rule
81.
¶29
The applicability of civil rule 81 cannot be determined
merely by comparing rule titles, index entries, or the contents
of the rules of criminal and civil procedure. Instead, our
"applicable statute or rule" analysis obliges us to consider the
text and purpose of a rule of criminal procedure against the text
and purposes of the related statutes and rules, and thereby
determine whether an applicable rule of civil procedure should be
grafted onto a rule of criminal procedure through civil rule 81.
An inquiry central to this task is the assessment of what more a
civil rule may permit or require than the criminal rule on a
similar topic, and what reasons, if any, justify the differences.
¶30
The civil subpoena rules are both more comprehensive
and more exacting than the criminal rules. For example, criminal

2 Rule 5(b) outlines the rules governing proper service.
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rule 14(b) states that the court may quash or modify a subpoena
if compliance is "unreasonable," but provides no further
guidance. Utah R. Crim. P. 14(b). In contrast, civil rules
45(c)(3)(A) and (B) each provide for four occasions when the
court may quash or modify the subpoena, and provide direction for
doing so. Utah R. Civ. P. 45(c)(3)(A), (B). Similarly, civil
rule 45 expressly addresses the status of unsubpoenaed persons
who are present in the courtroom whose testimony is sought, while
criminal rule 14 does not. Criminal rule 14 also does not
specify what information is required to appear in a subpoena,
such as name or address, whereas civil rule 45(a) provides
detailed instructions concerning the contents of any subpoena.
¶31
In evaluating the merits of Mr. Gonzales's
interpretation that criminal rule 14's silence regarding notice
is intentional, we note that the text of rule 14(b) clearly
signals that some notice to adverse parties of the issuance of a
subpoena is contemplated. It expressly authorizes trial courts
to quash or modify unreasonable subpoenas. In doing so, criminal
rule 14(b) was not inviting unilateral action by trial courts.
Rather, the rule expects those parties affected by unreasonable
compliance to seek relief from the court. Of course no
application for an order to quash or modify could be made by an
adversely affected party who received no notice of the subpoena.
¶32
Policy considerations underlying civil rule 45(b)
reinforce the right of an opposing party to be informed of
subpoenas for documents. The Advisory Committee Note describing
the addition of the notification requirement to civil rule 45
states, "[Rule 45(b)(1)(A)] ensures that other parties will have
notice enabling them to object or participate in discovery, or to
serve a demand for additional materials." Utah R. Civ. P. 45
Adv. Note. This policy applies equally to the rules of criminal
procedure; the right of a victim of a crime to be aware of any
subpoenas concerning privileged information is at least as
important as the same right of a civil defendant.3 "[T]he
fundamental requisite of due process of law is the opportunity to
be heard, a right which has little reality or worth unless one is
informed that the matter is pending and one can choose for
himself whether to contest." Worrall v. Ogden City Fire Dep't.,
616 P.2d 598, 601 (Utah 1980).

3 Mr. Gonzales was aware that the State felt strongly about
this issue. In this case, the prosecution had previously advised
Mr. Gonzales that the victim did not intend to waive her
privilege to her mental health records, and accordingly, the
prosecution would move to quash any subpoenas for them.
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No. 20020935

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¶33
The Utah legislature has codified its intent "to ensure
that all victims . . . of crime are treated with dignity,
respect, courtesy, and sensitivity, and that the rights . . . to
victims . . . are honored and protected by law." Utah Code Ann.
§ 77-37-1 (2003). When a victim's confidential records are
reviewed before she even knows they are subpoenaed, she cannot
choose to protect them. The only way to prevent this is to
ensure that the party receives notification that a subpoena has
been issued. In light of the purpose behind the notification
requirements of civil rule 45, it is clear that the same policies
must apply in a criminal setting to protect the rights of
victims.
¶34
Similar policy considerations have contributed to our
earlier application of civil rule 81(d) to the rules of criminal
procedure. See, e.g., State v. Walker, 743 P.2d 191, 192-93
(Utah 1987) (applying civil rule 52(a) to a criminal matter),
State v. Bell, 770 P.2d 100, 109 (Utah 1988) (applying civil rule
49 to a criminal matter),4 and State v. Anderson, 797 P.2d 1114,
1116-17 (Utah 1990) (applying civil rule 58A to a criminal
matter).
¶35
Mr. Gonzales argues that civil rule 45 cannot be
applied to his case under our holding in State v. Nielsen, 522
P.2d 1366 (Utah 1974), in which we determined that the rules of
civil procedure did not apply to discovery in a criminal matter.
See id. at 1367. Mr. Gonzales culls language from that case
which stated, without analysis, "the Rules of Civil Procedure
pertaining to discovery may not be used in criminal cases." Id.
However, Nielsen is easily distinguished from this case and thus
does not hinder our holding here.
¶36
The defendant in Nielsen was charged with a felony and
a misdemeanor. Mr. Nielsen claimed the right to take depositions
of various witnesses. The State sought a court declaration as to
whether or not the defendant was entitled to pursue discovery
under the Utah Rules of Civil Procedure. At the time, the rules
of criminal procedure were codified in the Utah Code. Utah Code
section 77-46-1, which governed the taking of depositions stated
that "[w]hen a defendant has been held to answer a charge for a

4 At the time Walker and Bell were issued, Utah Code section
77-35-26(g) provided that "[t]he rules of civil procedure
relating to appeals shall govern criminal appeals to the Supreme
Court except as otherwise provided." Utah Code Ann. § 77-35-
26(g) (1982). This chapter was repealed in 1990 and the Supreme
Court adopted the rules of procedure as provided in the Utah
Court Rules Annotated.
No. 20020935
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public offense . . . he may, either before or after an indictment
or information, have witnesses examined conditionally on his
behalf as prescribed in this chapter, and not otherwise." Utah
Code Ann. § 77-46-1 (1978) (emphasis added). We read "not
otherwise" to mean that a defendant could access no other
discovery tool, including the rules of civil procedure. We
therefore concluded that "[i]t appears that the wording of the
statutes above set forth makes Rule 81(e) inapplicable and that
the Rules of Civil Procedure pertaining to discovery may not be
used in criminal cases." Nielsen, 522 P.2d at 1367. We noted
that "until such time as the [relevant] statutes . . . are
modified or repealed by the legislature this court would be
without power to provide for discovery proceedings by court
rule." Id. Utah Code section 77-46-1 (1978) was repealed in
1980, and no longer exists in that form.5 Accordingly, there now
exists no prohibition against using the rules of civil procedure
to inform discovery in a criminal matter.
¶37
Furthermore, we stated in Nielsen that there was a
sound policy reason not to apply civil rule 30's broad use of
depositions to a criminal case, noting that such application may
well infringe a defendant's constitutional right against self-
incrimination. Id. Mr. Gonzales's case, however, marks the
emergence of an equally persuasive policy reason to apply the
rules of civil procedure to a criminal case--an obligation to
give practical effect to the statutory mandate that a victim's
interest be meaningfully considered. The circumstances present
here underscore why Nielsen should not be read to create an
inflexible prohibition against the application of civil procedure
rules to discovery in criminal matters.
¶38
Mr. Gonzales further attempts to buttress his argument
by invoking State v. Pliego, 1999 UT 8, 974 P.2d 279, in which we

5 The statutes at issue in Nielsen were 77-46-1 and 77-46-2
(1978). In 1980, Title 77 was repealed, reorganized, and
reenacted, again as Title 77. Former chapter 46 was reenacted as
Utah Code section 77-35-14 (1982). Former section 77-46-1 did
not survive the repeal and does not appear in Utah Code section
77-35-14 (1982). Former section 77-46-2, on the other hand,
reemerged more or less intact as Utah Code section 77-35-14(h)
(1980). In 1989, the legislature repealed the entirety of
chapter 35 of Title 77. The Utah Supreme Court adopted the
statutory rules of procedure contained in Utah Code sections 77-
35-1 to -33 (1982 & Supp. 1988) and transformed them into the
current Utah Rules of Criminal Procedure. Section 77-35-14(h)
(1982) is currently located at rule 14(h). The former section
77-46-1, discussed here, no longer exists.
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directed a defendant to subpoena the victim's mental health
records, and State v. Hansen, 2002 UT 114, 61 P.3d 1062, in which
we applied the rule of Pliego to privately held documents.
However, these cases do not stand for the propositions that Mr.
Gonzales advances.
¶39
Mr. Gonzales correctly states that in Pliego, we
directed the defendant to subpoena the rape victim's mental
health records. He suggests that this statement allows any
defendant to subpoena a rape victim's mental health records.
However, to the extent that Pliego mandates a procedure for
acquiring mental health records by subpoena, it is limited by the
facts presented to us in that case. The Pliego result emerged in
the context of rejecting the defendant's preferred discovery
technique of seeking a court order requiring the prosecution to
subpoena the records under rule 16(a) of the Utah Rules of
Criminal Procedure.6 Pliego, 1999 UT 8 at ¶ 20. We affirmed the
trial court's ruling that this would place too great a burden on
the prosecution, and if the defendant wanted to see the records,
he should subpoena them himself. Id. We neither stated nor
implied that subpoenas could or should be served without
notification to opposing counsel.
¶40
Mr. Gonzales also relies on our statement in Hansen
that "[i]n order to obtain privileged mental health records, a
party must first `serv[e] the holders of [those] records with a
subpoena duces tecum.'" Hansen, 2002 UT 114, ¶ 6 n.1. (some
brackets in original) (quoting Pliego, 1999 UT 8 at ¶ 21).
Again, Mr. Gonzales reads too much into this simple statement; we
neither stated nor implied that serving subpoenas on holders of
privileged records can be done without notification to the court
and opposing counsel, or that a defendant is entitled to examine
the records without an in camera review.
¶41
Accordingly, we hold that rule 45(b)(1)(A)'s
notification requirement applies to criminal matters where
privileged information is at stake. Because Mr. Gonzales's
attorney improperly subpoenaed Jessica's private mental health
records in violation of her right to privacy, we affirm the trial
court's ruling that the subpoenas must be quashed.

6 Rule 16(a) requires the prosecutor to disclose to the
defendant various pieces of evidence relevant to the defendant's
case. However, in Pliego, we clarified that this rule is limited
to only that evidence "of which [the prosecutor] has knowledge.
It does not require [the prosecutor] to make an investigation on
behalf of the defendant." Pliego, 1999 UT 8 at ¶ 9.
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B. Failure to Turn Records Over to Court
for In Camera Review
¶42
Next, Mr. Gonzales argues that he was entitled to
review Jessica's mental health records because her mental health
is an element or claim of his defense. Utah Rule of Evidence
506, which defines a privilege between a patient and a mental
health therapist, excludes communications that concern a
patient's condition where the condition is "an element of any
claim or defense." This is the same wording that is found on the
UNI form that Mr. Montgomery filled out. Mr. Gonzales argues
that Jessica's mental health was an element of a claim or defense
in the lawsuit, and therefore his request for the records was
proper.
¶43
Mr. Gonzales's argument is flawed in two ways. First,
his defense is simply "I didn't do it." He wishes to use
Jessica's mental health records to impeach her credibility as a
witness--part of his defense strategy, but not actually an
element of his defense. Second, regardless of whether Jessica's
mental health is an "element" of Mr. Gonzales's defense, it is
the process by which the records were obtained, not the status of
the records as privileged or unprivileged, that prevents Mr.
Gonzales from reviewing them. Even if it were true that the
records were an element of the defense, or were never privileged
in the first place, Mr. Gonzales would still be obligated to
obtain them using the proper avenue.
¶44
Mr. Montgomery used a flawed subpoena process to obtain
privileged records.7 His authority to examine those records,
however obtained, depended on approval of the trial court
following an in camera review. Drawing on a United States
Supreme Court case, Pennsylvania v. Ritchie, 480 U.S. 39 (1987),

7 It is not in dispute that UNI erroneously released the
records to Mr. Montgomery based upon an affidavit that he signed
asserting that Jessica's mental state was an element of the
crime. Everyone agrees that UNI should properly have moved to
quash the subpoena itself, rather than turning the records over
to Mr. Montgomery. That UNI could have and likely should have
acted to protect its patient's privacy interest in no way
diminishes our conviction that Mr. Montgomery was obligated by
rule to notify the State of the UNI subpoenas.
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we made this clear in State v. Cardall, 1999 UT 51, 982 P.2d 79.8
We stated:
In Ritchie, the Supreme Court held that where
an exception to privilege allows a defendant
access to otherwise confidential records, the
defendant does not have the right to examine
all of the confidential information or to
search through state files without
supervision. However, if a defendant can
show with reasonable certainty that
exculpatory evidence exists which would be
favorable to his defense, Ritchie gives him
the right to have the otherwise confidential
records reviewed by the trial court to
determine if they contain material evidence.
. . .
[W]here "a defendant is aware of specific
information contained in the file . . ., he
is free to request it directly from the
court, and argue in favor of its
materiality."
Cardall, 1999 UT 51 at ¶¶ 30, 32 (citations omitted).
¶45
Here, Mr. Montgomery was obligated to seek an in camera
review of Jessica's mental health records before searching
through them. Because he did not follow proper procedures in
subpoenaing the records or requesting an in camera review, we
affirm the trial court's conclusion that the subpoenas must be
quashed.
II. ORDER TO WITHDRAW
¶46
Mr. Gonzales next argues that the trial court's grant
of the State's motion to quash and accompanying ruling that Mr.
Montgomery now had a conflict of interest denied him his right to
the counsel of his choice. This issue is moot because the trial
court did not remove Mr. Montgomery. Rather, the trial court

8 We have since issued another case, State v. Blake, 2002 UT
113, 63 P.3d 56, in which we discussed this at length. Blake,
however, was not available at the time Mr. Montgomery obtained
the records or at the time the trial court issued its decision.
Accordingly, we rely on Cardall, which adequately explained the
law in Utah at the time.
No. 20020935
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responded to Mr. Montgomery's unauthorized acquisition of the
contents of Jessica's therapy records by ordering him to write an
apology to the victim, questioning whether the trial could be
fair under the circumstances, and suggesting that he had created
a conflict that "call[ed] into question the professional ethics
of his continued representation of the defendant." Following
this strong reprimand, Mr. Montgomery voluntarily moved to
withdraw. The trial court granted the motion, and referred the
case to the Salt Lake Legal Defenders Association for appointment
of new counsel. On appeal, Mr. Gonzales suggests that "less
drastic options" might have been appropriate. However, because
Mr. Gonzales did not offer these options at trial or even object
to the trial court's grant of Mr. Montgomery's motion to
withdraw, this issue is not properly before us, and we do not
review it.9
III. RIGHT TO CROSS-EXAMINE
¶47
We now turn to Mr. Gonzales's claim that the trial
court erred when it denied his motion in limine seeking leave to
cross-examine Jessica and Anjali about their prior juvenile
adjudications for shoplifting. This question appears to be a
straightforward question of evidence, which is how the trial
court viewed it, and has embedded within it is the constitutional
question of whether the trial court infringed Mr. Gonzales's
right of confrontation by denying him the opportunity to ask
Jessica and Anjali about their juvenile adjudications. However,
denial of the right to confront and cross-examine witnesses
presents a question of law which is reviewed for correctness.
Lander v. Indust. Comm'n of Utah, 894 P.2d 552, 554 (Utah Ct.
App. 1995).
¶48
The Sixth Amendment right to confrontation "guarantees
the right of an accused in a criminal prosecution `to be
confronted with the witnesses against him.'" Davis v. Alaska,
415 U.S. 308, 315 (1974) (quoting U.S. Const. amend. VI). Cross-
examination is the tool that gives practical effect to the right
of confrontation. Id. Through its use, an accused can test the
believability and truthfulness of a witness's testimony. Id. at
315-16. However, "the right of cross-examination is not without
limitation." State v. Hackford, 737 P.2d 200, 203 (Utah 1987).

9 Mr. Gonzales also argued that if we were to determine that
the records reasonably contained exculpatory evidence, then the
trial court would have erred in suggesting that a conflict had
been created. However, we need not address this issue because it
is irrelevant to the matter at hand in light of Mr. Montgomery's
voluntary withdrawal of his services.
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No. 20020935

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For example, "the right to cross-examine `does not entail the
right to harass, annoy, or humiliate [the] witness on cross-
examination, nor to engage in repetitive questioning, nor to
inquire into matters which would expose the witness to danger of
physical harm.'" Id. (quoting State v. Chesnut, 621 P.2d 1228,
1233 (Utah 1980)). Likewise, Utah Rule of Evidence 403 excludes
relevant evidence "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence."
¶49
At trial, Mr. Gonzales made a motion in limine seeking
leave to cross-examine Jessica and Anjali about their shoplifting
adjudications. His motion was primarily grounded in rule 609 of
the Utah Rules of Evidence, which governs the admissibility of
prior criminal convictions. Mr. Gonzales explained that he
sought to use the juvenile adjudications to counter any
statements that Jessica and Anjali might make in support of their
veracity. He intended to use their shoplifting adjudications to
refute these potential claims to honesty.
¶50
Rule 609(a) permits the introduction of prior
convictions for the purpose of attacking the credibility of a
witness, but only if the conviction was for a felony or a crime
that involved dishonesty. Utah R. Evid. 609(a).
¶51
Rule 609(d) governs the use of prior juvenile
adjudications to attack credibility. This section of rule 609
begins with a general disapproval of the use of prior juvenile
adjudications. The rule qualifies its rejection of adjudications
when three conditions are met: the witness against whom the
adjudication is offered cannot be the accused, the adjudication
must be for an offense that would be admissible if committed by
an adult, and the court must also be "satisfied that admission in
evidence is necessary for a fair determination of the issue of
guilt or innocence." Utah R. Evid. 609(d).10 We have previously

10 The full language of rule 609 states:
(a) General rule. For the purpose of
attacking the credibility of a witness,
(1) evidence that a witness other than the
accused has been convicted of a crime shall
be admitted, subject to Rule 403, if the
crime was punishable by death or imprisonment
in excess of one year under the law under
which the witness was convicted, and evidence
(continued...)
No. 20020935
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10 (...continued)
that an accused has been convicted of such a
crime shall be admitted if the court
determines that the probative value of
admitting this evidence outweighs its
prejudicial effect to the accused; and
(2) evidence that any witness has been
convicted of a crime shall be admitted if it
involved dishonesty or false statement,
regardless of the punishment.
(b) Time limit. Evidence of a conviction
under this rule is not admissible if a period
of more than ten years has elapsed since the
date of the conviction or of the release of
the witness from the confinement imposed for
that conviction, whichever is the later date,
unless the court determines, in the interests
of justice, that the probative value of the
conviction supported by specific facts and
circumstances substantially outweighs its
prejudicial effect. However, evidence of a
conviction more than ten years old as
calculated herein, is not admissible unless
the proponent gives to the adverse party
sufficient advance written notice of intent
to use such evidence to provide the adverse
party with a fair opportunity to contest the
use of such evidence.
(c) Effect of pardon, annulment, or
certificate of rehabilitation. Evidence of a
conviction is not admissible under this rule
if (1) the conviction has been the subject of
a pardon, annulment, certificate of
rehabilitation, or other equivalent procedure
based on a finding of the rehabilitation of
the person convicted, and that person has not
been convicted of a subsequent crime which
was punishable by death or imprisonment in
excess of one year, or (2) the conviction has
been the subject of a pardon, annulment, or
other equivalent procedure based on a finding
of innocence.
(d) Juvenile adjudications. Evidence of
juvenile adjudications is generally not
admissible under this rule. The court may,
however, in a criminal case allow evidence of
(continued...)
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No. 20020935

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stated that "[t]heft is not a crime involving `dishonesty or
false statement' within the meaning of rule 609(a)(2)." State v.
Bruce, 779 P.2d 646, 656 (Utah 1989) (quoting United States v.
Yeo, 739 F.2d 385, 387 (8th Cir. 1984)). Because shoplifting is
neither a felony nor a crime involving dishonesty, the trial
court correctly refused to allow Mr. Gonzales to cross-examine
Jessica and Anjali about their prior shoplifting adjudications
under rule 609.
¶52
Mr. Gonzales attempted to widen the spectrum of
admissible juvenile adjudications beyond those permitted by rule
609(d) by invoking Davis v. Alaska, 415 U.S. 308 (1974). There,
the United States Supreme Court permitted a juvenile witness to
be cross-examined about his past adjudications when they were
demonstrably relevant to show the juvenile's bias, prejudice, or
motive to lie. Davis, 415 U.S. at 320. Read in the manner
preferred by Mr. Gonzales, Davis would entirely do away with rule
609's linkage between impeachment for credibility and criminal
conduct associated with dishonesty, thereby broadening the
permissible use of prior juvenile adjudications beyond the use of
prior convictions for adults.
¶53
However, as the trial court implicitly recognized,
Davis did not revolutionize the use of juvenile adjudications as
Mr. Gonzales would have us believe. There are several reasons
for this. First, it is implausible to believe that by paring
away a portion of the confidentiality traditionally afforded
juvenile proceedings to accommodate the Sixth Amendment right to
confrontation, the Supreme Court intended to bring about the
incongruous result of making juvenile adjudications easier to
admit than adult convictions. Although Davis did not set out a
test to measure whether a juvenile adjudication has a nexus to
bias, prejudice, or motive to lie, no mere assertion of linkage

10 (...continued)
a juvenile adjudication of a witness other
than the accused if conviction of the offense
would be admissible to attack the credibility
of an adult and the court is satisfied that
admission in evidence is necessary for a fair
determination of the issue of guilt or
innocence.
(e) Pendency of appeal. The pendency of an
appeal therefrom does not render evidence of
a conviction inadmissible. Evidence of the
pendency of an appeal is admissible.
Utah R. Evid. 609.
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will suffice. A closer look at the Davis facts underscores this
point.
¶54
The prosecution's key witness in Davis was a juvenile
who identified Mr. Davis as the man who had committed a burglary.
Id. at 310. Both at the time of the offense and at the time of
trial, the witness was on probation following two adjudications,
both for burglary. Id. at 310-11. The prosecutor sought a
protective order, which the trial court granted, preventing the
defense from asking the witness about the adjudications. Id. At
trial, defense counsel's cross-examination of the witness was as
follows:
Q. Were you upset at all by the fact that
this safe was found on your property?
A. No, sir.
Q. Did you feel that they might in some way
suspect you of this?
A. No.
Q. Did you feel uncomfortable about this
though?
A. No, not really.
Q. The fact that a safe was found on your
property?
A. No.
Q. Did you suspect for a moment that the
police might somehow think that you were
involved in this?
A. I thought they might ask a few questions
is all.
Q. Did that thought ever enter your mind
that you--that the police might think that
you were somehow connected with this?
A. No, it didn't really bother me, no.
Q. Well, but . . . .
A. I mean, you know, it didn't--it didn't
come into my mind as worrying me, you know.
Q. That really wasn't--wasn't my question,
Mr. Green. Did you think that--not whether
it worried you so much or not, but did you
feel that there was a possibility that the
police might somehow think that you had
something to do with this, that they might
have that in their mind, not that you . . . .
A. That came across my mind, yes, sir.
Q. That did cross your mind?
A. Yes.
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No. 20020935

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Q. So as I understand it you went down to
the--you drove in with the police in--in
their car from mile 25, Glenn Highway down to
the city police station?
A. Yes, sir.
Q. And then went into the investigators'
room with Investigator Gray and Investigator
Weaver?
A. Yeah.
Q. And they started asking you questions
about--about the incident, is that correct?
A. Yeah.
Q. Had you ever been questioned like that
before by any law enforcement officers?
A. No.
Id. at 312-13.
¶55
The Supreme Court found that the witness's answers were
almost certainly untrue in light of his burglary adjudications,
but were uttered without risk because the juvenile knew he was
immune from questions that would require him to disclose them.
Id. at 314. It is easy to understand how, faced with a situation
in which a key witness had uttered obvious falsehoods with
impunity, the Supreme Court found its way clear to restore
fairness to Mr. Davis's trial by requiring the witness to endure
the full rigor of cross-examination. The Court concluded that
not only was Mr. Davis deprived of an opportunity to present
meaningfully his defense theory, but that, perhaps worse, the
jury may have erroneously interpreted Mr. Davis's accusatory
cross-examination of the witness as a gratuitous and baseless
attack on his credibility. Id. at 317-18.
¶56
The Davis court took pains to explain that its holding
did not open the door to the use of juvenile adjudications to
attack generally the credibility of a witness. For his part,
even Mr. Davis acknowledged that his right to confrontation was
not so potent as to overpower entirely the long standing
restrictions on the admissibility of juvenile adjudications.
That an adequate foundation be laid to show that a witness's
testimony was the product of bias, prejudice, or a motive to lie
is the essential element that must be present before the
proscriptions against admitting juvenile adjudications can be
overcome. Deciding the quantity and quality of foundational
evidence a defendant must present before a court may admit a
witness's juvenile adjudication poses a more challenging
question, one that the Supreme Court did not directly answer.
No. 20020935
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¶57
In this case, the trial court denied Mr. Gonzales's
request to allow the cross-examination under Davis, stating that
in Davis, the adjudications were relevant to the matter at hand,
whereas here, they were not. At the time Mr. Gonzales moved for
permission to cross-examine the women about their adjudications,
only opening statements had been presented. Defense counsel
raised the theory that Jessica didn't want her mother to marry
Mr. Gonzales and this is why she fabricated the allegation
against Mr. Gonzales as grounds for permitting the cross-
examination. Defense counsel did not, however, connect the
women's adjudications to bias, prejudice, or motive to lie,
either during opening arguments or in her argument to the trial
court. In contrast to Mr. Davis, who insisted he did not wish to
use the witness's juvenile adjudications simply to attack the
witness's credibility, Mr. Gonzales's only stated purpose was to
make a broadside attack on Jessica and Anjali's credibility.
¶58
On appeal, Mr. Gonzales attempts to shore up the
relevance of Jessica and Anjali's adjudications and to align his
case more closely to Davis. He argues to us, for the first time,
that both women had personal animus toward him because he allowed
them to stay in detention overnight following their shoplifting
arrests. Whatever foundational merit this suggestion of motive
to lie may have, the details of this substantially fact-dependent
issue appear nowhere in the trial record, and we decline to
conduct our own evaluation of it.
¶59
Mr. Gonzales further argues that Jessica and Anjali's
adjudications are relevant because they show that the women had
motive to lie in the hopes of pleasing law enforcement and
thereby receiving more favorable treatment from the State in
their own cases. Mr. Gonzales thus ties the shoplifting
adjudications directly to bias, and argues that he ought to be
able to cross-examine the women about their adjudications in
order to demonstrate the cause of their bias. We reject this
argument, recognizing that the introduction of Jessica and
Anjali's juvenile adjudications for this reason would invite the
introduction of the adjudication of any witness who, at the time
his testimony was sought, was under the supervision of the court
or was in some way eligible to extract some benefit in return for
testimony favorable to the prosecution. This standard would fall
well short of the degree of foundation necessary to justify the
admission of juvenile adjudications.
¶60
Mr. Gonzales couples this Davis-based argument to Utah
Rule of Evidence 608(c), a rule not invoked until this appeal.
Rule 608(c) states: "Bias, prejudice, or any motive to
misrepresent may be shown to impeach the witness either by
21
No. 20020935

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examination of the witness or by evidence otherwise adduced."
Utah R. Evid. 608(c). Mr. Gonzales did not raise this issue
directly at trial as a justification for cross-examining the
young women about their adjudications.11 In fact, when the trial
court sought Mr. Gonzales's authority for his position, he
specifically stated that he relied on rule 609 and no other rule.
¶61
We reject Mr. Gonzales's argument, both as to rule 608
and Davis, because although he hinted at the question of bias by
raising Davis, he failed to state any basis to believe that the
women were biased against him. He did not present to the trial
court any foundational evidence of bias that could be subjected
to a Davis test. The trial court never had the opportunity to
rule on the question that is now before us and ruled correctly on
the question it did confront. Because Mr. Gonzales failed to
preserve this claim at trial, and in the absence of a
demonstration of plain error or exceptional circumstances, we do
not address its merits on appeal. State v. Labrum, 925 P.2d 937,
939 (Utah 1996).
¶62
We conclude that rule 609 did not allow for the
admission of cross-examination concerning the young women's
shoplifting adjudications. We also conclude that Mr. Gonzales
failed to preserve his rule 608 claim and to develop his Davis
argument in a manner that would allow for the testimony to be
admitted. Therefore, Mr. Gonzales's Sixth Amendment right to
confrontation was not violated. We affirm the rulings of the
trial court.
IV. INEFFECTIVE ASSISTANCE
¶63
Next, Mr. Gonzales seeks reversal of his conviction
because his trial counsel, Ms. Miller, was ineffective in two
ways: first, she "opened the door" to prior bad acts, and
second, she withdrew an objection to irrelevant prejudicial
evidence being proffered by the State. The trial court did not
address this issue directly. However, criminal defendants may
raise ineffective assistance of counsel claims on direct appeal
when, as here, they are represented by new counsel, and "the
record is adequate." State v. Litherland, 2000 UT 76, ¶ 16, 12
P.3d 92. Accordingly, we take up the merits of this claim.

11 The State argues that Mr. Gonzales failed to preserve the
bias argument entirely and it is therefore waived. However, it
is clear from the record that, although Mr. Gonzales stated he
relied on rule 609 and had no other bases, he did raise the
issues of bias by pointing to Davis. We address the argument,
but reject it on different grounds.
No. 20020935
22

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¶64
To test an attorney's performance, we rely on the
United States Supreme Court's two-part test established in
Strickland v. Washington, 466 U.S. 668 (1984):
To prevail on an ineffective assistance of
counsel claim under the Strickland test, "a
defendant must show (1) that counsel's
performance was so deficient as to fall below
an objective standard of reasonableness and
(2) that but for counsel's deficient
performance there is a reasonable probability
that the outcome of the trial would have been
different."
State v. Nelson-Waggoner, 2004 UT 29, ¶ 27, 94 P.3d 186 (quoting
State v. Montoya, 2004 UT 5, ¶ 23, 84 P.3d 1183) (other quotation
marks omitted).
A. Mr. Gonzales's Attorney Was Not Ineffective When
She Opened the Door to Inadmissible Prior Bad Acts
¶65
Mr. Gonzales first argues that Ms. Miller was
ineffective when she opened the door for questioning about past
accusations made against Mr. Gonzales by Jessica. Ms. Miller
asked Mr. Gonzales if he had ever been "accused" of sexual
assault. He responded that he had not. On cross-examination,
the State drew testimony from Mr. Gonzales that he had in fact
been previously accused by Jessica of sexual assault but had
never been charged with this crime.12 On re-direct examination,
Ms. Miller asked if he had ever been charged or convicted of
sexual assault. Mr. Gonzales argues now that by inadvertently
asking if he had been accused, as opposed to limiting her
question to whether or not he had been charged or convicted, Ms.
Miller opened the door for the State to ask him questions about
prior accusations of sexual assault, and that this line of
questioning by the State severely prejudiced him and ultimately
prompted the jury to convict. At the close of trial, Ms. Miller
moved for a mistrial based on her own ineffectiveness. She
argued that she had erred in using the term "accused," and meant

12 Before doing so, the State asked for permission from the
trial court to pursue this line of questioning. The State
admitted that Ms. Miller had made a mistake and acknowledged that
she had intended only to ask about charges and convictions.
However, the State argued that it was entitled to capitalize on
the error once it was made. The trial court allowed the
questioning.
23
No. 20020935

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to ask only about charges or convictions. She contended that she
never intended to open the door for the prosecution to ask about
Jessica's previous accusations. The trial court denied the
motion.
¶66
We review Ms. Miller's actions under Strickland, and
conclude that her line of questioning, although possibly harmful
to Mr. Gonzales, was neither objectively unreasonable nor so
deficient that the outcome of the trial would have been
different.
¶67
It is clear from the record that Ms. Miller mistakenly
used the term "accused" in asking Mr. Gonzales about previous
episodes involving sexual assault. She had been clear before
trial that she hoped Jessica's previous accusations would not be
admitted, and she was clear during a bench conference that she
intended to limit her questions to past charges or convictions.
Even the prosecutor admitted that Ms. Miller had inadvertently
used the term "accuse."
¶68
This error enabled the prosecution to attack as untrue
Mr. Gonzales's response that he had never been accused of sexual
assault and to inquire after the details of Jessica's past
accusations against him. However, we do not think the outcome
would have been different but for the mistake for two reasons:
first, Ms. Miller was given the opportunity to rehabilitate Mr.
Gonzales to the best of her ability, and second, the evidence
regarding Jessica's past accusations was not otherwise
inadmissible. We address each in turn.
¶69
First, Ms. Miller was given the opportunity to
rehabilitate Mr. Gonzales, and did so in a manner that
effectively diminished the importance of the past accusations.
She asked him specifically what the allegations and the outcomes
of those allegations were. In his response, he stated that he
and Ms. Snodgrass had discussed the accusations with Jessica, and
although Jessica's accusations temporarily derailed the
engagement, they had concluded she was lying and put it behind
them. Twice he stated that Jessica had lied about the
allegations. Although both parties assume that it was indeed
harmful to Mr. Gonzales's credibility that he had previously been
accused of sexual assault, he capitalized on the opportunity to
attack Jessica's credibility and turned the disclosure of the
accusations to his advantage by pointing out that her own mother
believed she lied about the past incident.
¶70
Next, the evidence concerned previous wrongs or bad
acts. Previous wrongs are inadmissible under rule 404(b) for the
No. 20020935
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purposes of showing character, but are admissible for the
purposes of showing "proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or
accident." Utah R. Evid. 404(b). Here, the State argues that
the past accusations should have been admissible in order to show
the reason that Jessica had chosen to not report the attempted
rape to her mother: namely, that she had previously told her
mother that Mr. Gonzales had inappropriately touched her, and her
mother had not done anything about it, and for this reason,
Jessica chose to disclose the rape allegation to Anjali, rather
than to Ms. Snodgrass. This information was discussed during
Jessica's testimony. Because the rules of evidence would not
prevent Jessica from discussing these matters, any harm done to
Mr. Gonzales's testimony is mitigated by the fact that it might
have arisen anyway.
¶71
We conclude that although Ms. Miller may have asked an
unintended question, any harm done would not have changed the
outcome of the trial. The evidence was likely admissible in any
event and Ms. Miller effectively rehabilitated Mr. Gonzales. We
therefore reject Mr. Gonzales's claim of ineffective assistance
of counsel relating to this incident.
B. Mr. Gonzales's Attorney Was Not Ineffective When She
Withdrew Her Objection to Irrelevant Prejudicial Evidence
¶72
Mr. Gonzales next argues that Ms. Miller rendered
ineffective assistance when she withdrew her objection to the
State's introduction of evidence that Mr. Gonzales was in arrears
on his child support payments. He argues that this information
was not relevant and was unfairly prejudicial.
In analyzing a defendant's complaints about
counsel, this Court usually gives great
deference to counsel's trial decisions, and
mistakes in trial strategy or tactics do not
render counsel's performance ineffective.
Generally, an attorney's performance will be
held ineffective only when there is no
tactical or strategic justification for his
conduct of the trial.
State v. Colonna, 766 P.2d 1062, 1066 (Utah 1988). "[I]n making
such an analysis, this court will not second-guess trial
counsel's legitimate strategic choices." State v. Callahan, 866
P.2d 590, 593 (Utah 1993) (internal citation omitted). Here, Ms.
Miller objected to the statement regarding child support arrears
on the basis of lack of foundation. After being provided with a
25
No. 20020935

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document by the State, she withdrew her objection and did not
renew it based on any other grounds. Because Ms. Miller may have
felt that the objection was futile and chose not to object for
strategic reasons (such as not drawing attention to this
unfortunate information), we will not question her strategy.
¶73
The second prong of the Strickland test requires Mr.
Gonzales to show that but for the action, the results of the
proceedings would have been different. Although Mr. Gonzales has
suggested to us that his credibility was harmed by the
introduction of this evidence, he has been unable to convince us
that but for these mistakes, the jury would have reached a
different result.
V. CUMULATIVE ERROR
¶74
Mr. Gonzales finally argues that all the errors in this
case cumulatively warrant reversal under the cumulative error
doctrine. "Under the cumulative error doctrine, we will reverse
only if `the cumulative effect of the several errors undermines
our confidence . . . that a fair trial was had.'" State v. Kohl,
2000 UT 35, ¶ 25, 999 P.2d 7 (quoting State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993)). If the claims are found on appeal to
not constitute error, or the errors are found to be so minor as
to result in no harm, the doctrine will not be applied. Id. at
¶ 15. The cumulative error doctrine does not apply to this case.
We affirm the rulings of the trial court and thus conclude that
there are no errors warranting reversal.
CONCLUSION
¶75
In conclusion, we affirm the trial court's rulings that
Mr. Gonzales's subpoena of Jessica's mental health records from
UNI should be quashed and that Mr. Gonzales was not entitled to
cross-examine Jessica and Anjali about their previous juvenile
adjudications. The issue of choice of counsel is moot because
Mr. Montgomery voluntarily withdrew as Mr. Gonzales's counsel.
We also conclude that Ms. Miller's assistance, although
containing errors, was not harmful and thus was not ineffective.
Finally, we conclude that the errors Mr. Gonzales alleges
occurred in this case do not amount to a cumulative error
requiring reversal.
---
¶76
Chief Justice Durham, Associate Chief Justice Wilkins,
Justice Durrant, and Justice Parrish concur in Justice Nehring's
opinion.
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