State v. Gardner

2018 UT App 126

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
DAVID RUSSELL GARDNER,
Appellant.

Opinion
No. 20160028-CA
Filed June 21, 2018

Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 131800128

Laura J. Fuller, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which
JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
concurred.

TOOMEY, Judge:

¶1 David Russell Gardner was convicted of eleven counts of
first-degree felony rape against a fourteen-year-old victim
(Victim). He appeals his convictions, contending the district
court erred in denying his motion to suppress because his
confession to police was made in violation of his Fifth
Amendment rights. He also contends the district court exceeded
its discretion when it rejected his guilty plea. Finally, he
contends he received constitutionally ineffective assistance of
counsel. We conclude Gardner knowingly and voluntarily
waived his right to counsel and his confession was therefore not
in violation of his constitutional rights. Gardner failed to
preserve his challenge to the rejected guilty plea, and he has not
 State v. Gardner

shown that his counsel’s performance was deficient or that the
deficient performance, if any, was prejudicial. Accordingly, we
affirm.

BACKGROUND

¶2 Victim and her mother reported to police that Gardner
had raped Victim and that she was pregnant with his child. 1
During an interview at the Children’s Justice Center, Victim
disclosed that Gardner raped her no less than eleven times in a
span of six months. Officers interviewed Victim about these
allegations. They also interviewed Gardner’s son, who reported
he had observed Gardner sexually abusing Victim and that
Gardner told him that he would kill him if he ever disclosed
what he saw.

¶3 Based on these allegations, the police determined they
needed to question Gardner. Two officers (First Officer and
Second Officer) were in the interrogation room with Gardner.
Gardner received Miranda warnings and he affirmed that he
understood them. Gardner then asked why he was being
questioned, and First Officer said it was about Victim. Gardner
immediately asked for his attorney. First Officer asked if it was
the same attorney who had represented him in connection with
prior charges, and Gardner responded in the affirmative. Before
the officers could leave to try to reach his attorney, Gardner
“immediately launched into a monologue concerning an assault
[against him] purportedly involving [Victim’s] mother.” He also
explained, unprompted, that Victim’s mother had threatened to
report to the police that Gardner had sexually abused Victim. He

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (quotation
simplified). “We present conflicting evidence only as necessary
to understand issues raised on appeal.” Id.

20160028-CA 2 2018 UT App 126
 State v. Gardner

spoke to the officers for nearly three minutes without the officers
asking any questions or responding in any way.

¶4 First Officer again asked if Gardner wanted his attorney
and, when Gardner answered in the affirmative, left to try to
contact the attorney. Gardner continued to speak to Second
Officer, unprompted, until First Officer returned. When First
Officer returned, he told Gardner that he could not reach
Gardner’s attorney and that he was not going to ask Gardner
any questions. Despite saying this, First Officer then added,
“This thing is, what you just have to think about, is that is there a
possibility that this child she’s carrying is yours?” 2 Gardner
attempted to respond, but the officers cut him off and left the
room.

¶5 Gardner sat alone in the interrogation room for almost
five minutes before opening the door and asking Second Officer
to return. Both officers returned and did not ask any questions,
and Gardner explained that the reason he wanted his attorney
present was to “corroborate his story concerning the alleged
assault perpetrated on him by [Victim’s] mother.” He further
explained that he did not need his attorney present, because
“there [was] no way that baby was [his].” First Officer again left
to try to reach Gardner’s attorney, and Gardner continued to talk
to Second Officer, who offered to take a statement from Gardner
with respect to the alleged abuse by Victim’s mother.

¶6 When First Officer returned, he informed Gardner that his
attorney did not want to represent him in connection with these
new allegations but that his attorney generally advised him to
remain silent. First Officer said that Gardner’s silence would not

2. The State concedes on appeal that this question amounted to
interrogation but argues that Gardner had already waived his
right to counsel because he had already begun to talk,
unsolicited, about Victim and her mother’s threats to report that
he sexually abused Victim.

20160028-CA 3 2018 UT App 126
 State v. Gardner

matter, because they had enough evidence to arrest him for
rape. 3 Although the officers explained that the interrogation was
over because he was being arrested, Gardner asked them to
remain in the room and talk with him and then posed questions
about DNA testing. After discussing the different means of
testing DNA, Gardner stated, “I’m taking responsibility for me. I
did it.”

¶7 After his arrest, Gardner filed a motion to suppress his
confession, alleging that the officers violated his Fifth
Amendment rights in obtaining it because the officers continued
to question him after he had invoked his right to counsel. The
court denied the motion because it determined that, from the
beginning of the interview, Gardner’s “actions clearly showed he
was willing to talk to the Officers independent of counsel.”
Without being asked any questions, Gardner explained that he
had problems with Victim’s mother, and later—after again being
asked if he wanted his attorney present before he continued to
talk with the officers—Gardner “continu[ed] into a story
involving [Victim] and her mother.” The court found that only
after this exchange did First Officer “initiate a question by asking
[Gardner] to think if there was a possibility the child [Victim]
was carrying was his.” The court further found that even when
the officers attempted to end the interrogation on two occasions,
Gardner reinitiated the conversation with respect to Victim and

3. Gardner strenuously challenges this part of the exchange with
First Officer, specifically with respect to First Officer’s response
to the attorney’s comment to remain silent: “However, that’s
not—that’s not really going to work for us as far as that goes.”
Gardner contends First Officer’s statement was a violation of his
right to remain silent because First Officer said that the
attorney’s advice not to talk was “not really going to work.” We
construe this differently: First Officer explained that Gardner did
not need to speak, because there was sufficient evidence to arrest
him without any statement from him. We therefore do not
address this further.

20160028-CA 4 2018 UT App 126
 State v. Gardner

her mother. The second time, after the officers explained that
they had enough evidence to arrest him, 4 Gardner asked them to
stay and then confessed to the crime.

¶8 The court concluded that he “knowingly and intelligently
waived his right to counsel during interrogation.” In support of
this conclusion, it found that Gardner had “experience in the
criminal justice system” as a convicted sex offender and that
“during this particular interrogation, [Gardner] was due in court
on an unrelated crime.” The court further found that, being
familiar with his rights, Gardner “chose to speak without his
attorney present after the Officers clearly warned him that he
was not obligated to do so” and there was “no dispute that the
Miranda warning . . . was adequate.” The court therefore denied
Gardner’s motion to suppress.

¶9 On the first day of trial, Gardner attempted to enter an
Alford plea 5 to one count of rape in exchange for dismissing the
remaining charges and being sentenced that same day. The court
said it was not “pleased with the deal or the timing of it,”

4. Gardner does not argue, and it is not apparent from the
record, that this was a trick or ruse on the part of the officers.
From all that appears in the record, the officers in fact did have
probable cause to arrest him, given the report from Victim that
was corroborated by Gardner’s son.

5. An Alford plea, or a plea of no contest or nolo contendere, is “a
plea by which a defendant does not expressly admit his guilt,
but nonetheless waives his right to a trial and authorizes the
court for purposes of the case to treat him as if he were guilty.”
North Carolina v. Alford, 400 U.S. 25, 35 (1970). These pleas allow
courts to impose “a prison sentence upon an accused who is
unwilling expressly to admit his guilt but who, faced with grim
alternatives, is willing to waive his trial and accept the
sentence.” Id. at 36.

20160028-CA 5 2018 UT App 126
 State v. Gardner

because it was a significant reduction in charges. 6 The court
explained that, under Utah law, it could refuse to accept a plea
deal so long as the refusal was not arbitrary. The court asked the
State why it offered the deal, and the State responded that, by
making the deal, it would be “exchanging a sure thing for
something that is not completely certain.” The court was
“extremely reluctant to accept the plea” in light of Gardner’s
stipulation that he was the father of Victim’s child, the evidence
presented in the motion to suppress and the State’s opposition,
and the fact that an Alford plea meant that Gardner would not be
admitting guilt even to the one charge of rape. Accordingly, the
court gave the State and Gardner time to negotiate a different
deal, but instead, the State withdrew the deal completely. The
court said, “All right,” and Gardner stated, “Hold on.” The court
explained to Gardner that it would not have accepted the
original offer “unless [Victim] was extremely reluctant or
refused to testify,” and because that was not the case, they
would “continue with the trial.” Gardner did not raise an
objection but instead responded, “Thank you, Your Honor.”

¶10 The jury convicted Gardner on all eleven counts of rape.
Gardner appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Gardner contends the district court erred in denying his
motion to suppress his confession because he was denied the
right to counsel during the interrogation. We review a district
court’s ruling on a motion to suppress for correctness, and we

6. In addition to the eleven rape charges, the State charged
Gardner with two counts of forcible sexual abuse and one count
of retaliation against a witness, victim, or informant. Before the
court gave the jury final instructions, the State dismissed the two
counts of forcible sexual abuse and one count of retaliation
against a witness, victim, or informant.

20160028-CA 6 2018 UT App 126
 State v. Gardner

review its factual findings in support of its ruling for clear error.
State v. Tripp, 2010 UT 9, ¶ 23, 227 P.3d 1251. “When a [district]
court bases its ultimate conclusions concerning the waiver of [a]
defendant’s Miranda rights, upon essentially undisputed facts, in
particular the transcript of an officer’s colloquy with [the]
defendant, its conclusions present questions of law which we
review under a correction of error standard.” State v. Gutierrez,
864 P.2d 894, 898 (Utah Ct. App. 1993) (quotation simplified).

¶12 Gardner also contends the district court exceeded its
discretion when it rejected “the plea agreement reached by the
parties.” Gardner asserts that this issue was preserved below
when the court explained its hesitation in accepting an Alford
plea to one count of rape and then asked the parties to take time
to negotiate a different plea. But this does not constitute
preservation because Gardner did not challenge the “rejection”
before the district court. To preserve an issue for appeal,
Gardner must have raised it before the court in such a way that
the court had an opportunity to rule on it. See State v. Brocksmith,
2018 UT App 76, ¶ 9. Here, after the State withdrew the plea
deal, Gardner’s only response was: “Hold on.” The court again
explained why it would not have accepted an Alford plea to one
rape charge and Gardner responded, “Thank you, Your Honor.”
Because Gardner did not challenge the court’s rejection of the
plea deal, the issue was not preserved, and on appeal Gardner
should have argued that an exception to the preservation rule
applies to allow us to reach the merits of his argument. State v.
Algaza, 2015 UT App 133, ¶ 40, 352 P.3d 107 (explaining that
when a defendant does not preserve claims before the district
court, the defendant “must establish plain error, ineffective
assistance of counsel, or exceptional circumstances to warrant
[appellate] review” (quotation simplified)). Because he has failed
to argue the applicability of an exception, we do not reach this
issue.

¶13 Finally, Gardner contends his counsel was
constitutionally ineffective in numerous respects. “When a claim
of ineffective assistance of counsel is raised for the first time on

20160028-CA 7 2018 UT App 126
 State v. Gardner

appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Craft, 2017 UT
App 87, ¶ 15, 397 P.3d 889 (quotation simplified).

ANALYSIS

I. Motion to Suppress

¶14 Gardner contends he was denied the right to counsel
during his interrogation in violation of his Fifth Amendment
rights and therefore his motion to suppress should have been
granted. 7 The Fifth Amendment of the United States
Constitution commands that no person “shall be compelled in
any criminal case to be a witness against himself.” U.S. Const.
amend. V.

¶15 In Arizona v. Miranda, 384 U.S. 436 (1966), the United
States Supreme Court articulated a prophylactic rule that

7. Gardner asks this court to review his Fifth Amendment claims
under the “primacy approach,” which provides that “a state
court looks first to state constitutional law, develops
independent doctrine and precedent, and decides federal
questions only when state law is not dispositive.” West v.
Thomson Newspapers, 872 P.2d 999, 1006 (Utah 1994) (quotation
simplified). But while there is sound logic to this approach,
when a party fails to “adequately analyze[] the state
constitutional claim as an issue separate and distinct from its
federal counterpart, we will not address it.” State v. Rynhart, 2005
UT 84, ¶ 12, 125 P.3d 938. Here, Gardner has not asserted that
the Utah Constitution offers him more protection, and he has
relied heavily on United States Supreme Court cases, as well as
Utah Supreme Court cases analyzing the federal constitution, to
support his arguments. We therefore do not address them under
state constitutional law.

20160028-CA 8 2018 UT App 126
 State v. Gardner

protects a suspect’s Fifth Amendment rights against compelled
self-incrimination, id. at 478–79, and requires that suspects be
informed of their right to remain silent and their right to counsel
before a custodial interrogation begins, id. at 444–45. After
Miranda rights are read, “the suspect must unambiguously
request counsel” in such a way that the “desire to have counsel
present is sufficiently clear.” Davis v. United States, 512 U.S. 452,
459 (1994). If at any point during the interrogation the suspect
expresses a “desire to deal with the police only through counsel,
[the suspect] is not subject to further interrogation by the
authorities until counsel has been made available to him.”
Edwards v. Arizona, 451 U.S. 477, 484–85 (1981) (quotation
simplified); see also Miranda, 384 U.S. at 444–45. But if “the
[suspect] himself initiates further communication, exchanges, or
conversations with the police,” then he has effectively waived
his right to counsel and the interrogation may continue. Edwards,
451 U.S. at 484–85.

¶16 At the outset of the interrogation, the officers informed
Gardner of his Miranda rights, and Gardner stated he understood
those rights. Then Gardner asked why he was being questioned,
and First Officer responded that it was about Victim. Gardner
immediately asked for his attorney, and the officers asked if he
wanted the same attorney who was representing him in other
matters. Gardner responded in the affirmative. Before the
officers could leave to contact his attorney, Gardner started to
explain that Victim and her mother had been threatening him for
years about reporting inappropriate conduct between himself
and Victim. He then told a long story about some problems with
Victim’s mother. First Officer eventually interrupted Gardner
and asked again if he should try to reach Gardner’s attorney, to
which Gardner again responded in the affirmative. First Officer
left the room to call the attorney, but Gardner continued to speak
to Second Officer unsolicited about domestic issues with
Victim’s mother.

¶17 Once Gardner told the officers that Victim and her mother
had been threatening to report him for engaging in

20160028-CA 9 2018 UT App 126
 State v. Gardner

inappropriate conduct with Victim, without being asked a
question by the officers, he effectively waived his right to
counsel because he “initiate[d] further communication,
exchanges, or conversations” with the officers specifically related
to the crime for which he was being interrogated. See id.; see also
id. at 485 (“[N]othing in the Fifth and Fourteenth Amendments
would prohibit the police from merely listening to [a
defendant’s] voluntary, volunteered statements and using them
against [the defendant] at the trial.”).

¶18 Because Gardner waived his right to have counsel present
during the interrogation, we must determine whether he waived
this right knowingly and voluntarily. See Miranda, 384 U.S. at
444. To determine whether a defendant has knowingly and
voluntarily waived his Miranda rights, we examine “the
particular facts and circumstances surrounding the case,
including the background, experience, and conduct of the
accused.” Oregon v. Bradshaw, 462 U.S. 1039, 1046 (1983)
(quotation simplified); see also State v. Barrett, 2006 UT App 417,
¶ 11, 147 P.3d 491. Gardner has not identified anything in the
record that would support a conclusion that his waiver was not
knowing and voluntary but instead relies solely on the argument
that he did not waive his right to an attorney.

¶19 Our review of the record shows that Gardner was no
stranger to the criminal justice system. Indeed, he had been
convicted of similar sexual charges before. He was also “due in
court on an unrelated crime” on the day of the interrogation. In
addition, the officers spoke very little to Gardner prior to his
confession, and Gardner, unprompted and uninterrupted,
offered many statements related to Victim’s accusations. The
district court noted that Gardner’s characterization of the
interrogation as a “conversation or a talk” between Gardner and
the officers was a “complete mischaracterization.” We agree. The
officers left Gardner alone in the interrogation room while
attempting to contact his attorney, and Gardner called them back
to talk. He explained he wanted his attorney for one purpose—to
corroborate that he has problems with Victim’s mother—but that

20160028-CA 10 2018 UT App 126
 State v. Gardner

he did not need his attorney to address Victim’s accusations. The
officers asked no questions and let Gardner continue speaking
uninterrupted. When Gardner asked questions specifically about
the accusations, the officers refused to respond and said they
were respecting his invocation of the right to counsel. By the
time Gardner confessed, he had been in the interrogation room
for just twenty minutes and had been offered food and a
beverage. Although First Officer asked Gardner to think about
whether there was a possibility the baby was his, Gardner had
already initiated discussion of the matter for which he was being
interrogated.

¶20 Under the circumstances of this case, Gardner knowingly
and voluntarily waived his right to an attorney and therefore his
confession following this waiver was not in violation of his Fifth
Amendment rights. We conclude the district court properly
denied his motion to suppress.

II. Ineffective Assistance of Counsel

¶21 Gardner contends his counsel was constitutionally
ineffective for numerous reasons not apparent in the record.
Gardner filed a rule 23B motion to remand to the district court to
supplement the record with non-speculative facts, see Utah R.
App. P. 23B, which this court denied prior to setting a briefing
schedule. Gardner now asserts—and refers us to his rule 23B
motion—that at trial his defense counsel should have sought to
admit other pieces of exculpatory evidence: evidence related to
his sex offender treatment and polygraph test, evidence of one of
the investigating officer’s alleged misconduct, and a DVD of
Victim’s Children’s Justice Center interview “where she denied
[Gardner] had sexual relations with her.”

¶22 To succeed on a claim of ineffective assistance of counsel,
a defendant must show that counsel’s deficient performance was
prejudicial to his defense. Strickland v. Washington, 466 U.S. 668,
687 (1984); see also State v. Guzman, 2018 UT App 93, ¶ 47. But if
an issue is to be addressed on appeal, it must be adequately

20160028-CA 11 2018 UT App 126
 State v. Gardner

briefed. Rule 24(a)(8) of the Utah Rules of Appellate Procedure
requires an appellant’s brief to contain an argument that
explains, “with reasoned analysis supported by citations to legal
authority and the record, why the party should prevail on
appeal.” Although inadequate briefing is not an absolute bar to
our review of an argument on appeal, an appellant who “fails to
devote adequate attention” to an argument and marshal the
relevant evidence “will almost certainly fail to carry its burden
of persuasion.” Rose v. Office of Prof’l Conduct, 2017 UT 50, ¶¶ 64–
65 (quotation simplified).

¶23 Here, Gardner’s claim of ineffective assistance of counsel
is inadequately briefed because there is no record support for his
claim. Instead, he relies on his rule 23B motion for factual
support. Because this court denied his rule 23B motion prior to
setting the briefing schedule, we have already determined that
Gardner did not meet his burden of proving there was sufficient
evidence of deficient performance and resulting prejudice that
would have warranted a remand for supplementation of the
record. See Utah R. App. P. 23B; see also State v. Crespo, 2017 UT
App 219, ¶ 47, 409 P.3d 99 (explaining that a rule 23B motion
“(1) must be supported by affidavits alleging facts outside the
existing record, (2) the alleged facts must be non-speculative,
and (3) these allegations could support a determination that
counsel’s ineffectiveness prejudiced the result” (quotation
simplified)). He therefore cannot succeed on an ineffective
assistance of counsel claim based on the exact same facts, not
within the record before us, that this court has already decided
do not merit a remand to develop. See IHC Health Services, Inc. v.
D & K Mgmt., Inc., 2008 UT 73, ¶ 26, 196 P.3d 588 (explaining
that, “under the law of the case doctrine, a decision made on an
issue during one stage of a case is binding in successive stages of
the same litigation” (quotation simplified)); Lewis v. Nelson, 2017
UT App 230, ¶ 10, 409 P.3d 149 (explaining that the law of the
case doctrine precludes appellate courts from addressing
arguments that have already been disposed). As a result, his
argument is inadequately briefed, and he therefore has failed to

20160028-CA 12 2018 UT App 126
 State v. Gardner

carry his burden of persuasion on appeal. See Rose, 2017 UT 50,
¶ 64.

¶24 Gardner’s briefing is further inadequate because he fails
to argue prejudice, a necessary element of his ineffective
assistance of counsel claim. See State v. Vu, 2017 UT App 179,
¶ 17, 405 P.3d 879. Instead, he relies on his conclusory statement
that “[h]ad the defense attorney presented all the evidence that
[Gardner] had requested it could have created reasonable doubt
in the minds of the [jurors].” Gardner offers nothing to overcome
the fact that he stipulated to the DNA test results establishing
that he was the father of Victim’s baby. Although Gardner
argues that this “provides evidence of one count, not eleven
counts” of rape, he fails to consider the totality of the evidence
before the jury and then undermine the result. See Strickland, 466
U.S. at 695 (“[A] court hearing an ineffective assistance of
counsel claim must consider the totality of the evidence before
the judge or jury.”). Gardner has also failed to marshal the
evidence that supports Victim’s distinct descriptions of more
than eleven separate occasions when Gardner raped her, see State
v. Nielsen, 2014 UT 10, ¶¶ 35, 40–41, 326 P.3d 645 (explaining
that, while not a hard-and-fast rule, marshalling relevant
evidence is a “natural extension of an appellant’s burden of
persuasion”), and then to explain how the evidence he claims
should have been offered by defense counsel would have
sufficiently countered the overwhelming evidence of guilt, 8 see
State v. Thompson, 2014 UT App 14, ¶ 73, 318 P.3d 1221 (“While
we more readily find errors to be harmless when confronted
with overwhelming evidence of the defendant’s guilt, we are
more willing to reverse when a conviction is based on

8. When confronted with his stipulation to the DNA evidence
that established he was the father of Victim’s baby, Gardner
testified at trial that his son and Victim’s mother “artificially
inseminated [Victim] with a medical syringe” after Victim’s
mother performed oral sex on him. No other evidence supports
this self-serving and incredible assertion.

20160028-CA 13 2018 UT App 126
 State v. Gardner

comparatively thin evidence.” (quotation simplified)).
Accordingly, he has failed to carry his burden to demonstrate
prejudice.

CONCLUSION

¶25 We conclude the district court did not err in denying
Gardner’s motion to suppress because he knowingly and
voluntarily waived his right to counsel during the interrogation
prior to confessing. We further conclude that his challenge to the
court’s rejection of the plea agreement was not preserved and
that he failed to argue that an exception to the preservation rule
applies. Finally, Gardner’s ineffective assistance of counsel claim
was inadequately briefed because he failed to cite to record facts
in support of his argument, instead relying on his rule 23B
motion that this court denied, and he failed to argue prejudice.
Accordingly, we affirm.

20160028-CA 14 2018 UT App 126