State v. Andrews

¶1(concurring):

¶2I concur in the majority’s disposition of this matter. I write only to explain why the position I take today is consistent with my position in Andrews v. Shulsen, 773 P.2d 832 (Utah 1989). In Shulsen, I did not join the Chief Justice, Justice Howe, and Justice Stewart in finding a procedural waiver of, inter alia, the claim of ineffective assistance of counsel as respects an entitlement to an instruction for a lesser included offense; however, I concurred in the denial of the writ. I was of the view that we should not find a procedural waiver of the claims asserted. See, e.g., Fernandez v. Cook, 783 P.2d 547, 550 (Utah 1989) (holding that defendant may raise ineffectiveness-of-counsel claim in a habeas proceeding despite failure to raise claim on direct appeal under unusual circumstances). But I was also of the view that if the merits of Andrews’ claims were reached, either those claims of error would be found to be without merit or any technical error would have been found harmless. Cf. Andrews v. DeLand, 943 F.2d 1162, 1193-96 (10th Cir.1991) (rejecting Andrews’ claims of ineffectiveness of counsel on their merits as an alternative ground for affirmance).

¶3By joining the majority today, I do not suggest that Justice Durham’s concerns are chimerical. But even where death is the penalty, perfection is not the standard by which we are to judge counsel, the jury, the trial judge, or the appellate proceedings. If it were, no sentence of death would ever be carried out. Whatever my views might be of the utility or morality of the death penalty, and however I might have voted as a juror in the present case, my duty as an appellate judge is to affirm the judgment below unless I am convinced that an error of prejudicial proportions has been committed. See State v. Bishop, 753 P.2d 439, 477 (Utah 1988); State v. Tillman, 750 P.2d 546, 561 (Utah 1987); see also Utah R.Evid. 103(d); Utah R.Crim.P. 19(c).

¶4The proceedings in this case show that the justice system is not flawless, a judgment attested to by the division in almost every tribunal and panel that has reviewed the case.1 Certainty about whether a par*1035ticular judgment by court or counsel constituted error or whether a particular error was prejudicial is seldom possible. And I acknowledge that something approaching certainty is required when the judgment that an error did not occur or that an error did occur but was not prejudicial will result in a judicially-sanctioned killing. See, e.g., Tillman, 750 P.2d at 553 (noting the “well-established” proposition that, in capital cases, the contemporary objection rule does not apply). Yet having said all this, I remain convinced that none of the deficiencies in this case satisfy the legal standard for granting William Andrews relief from the judgment of guilt, or from the sentence of death. And, as Justice Stewart observes, we are empowered to look to no other standard.