Appeals court weighs remand request in State v. Mendoza over absent medical expert and Rule 23B proffer

The Utah Court of Appeals heard argument in State v. Mendoza on whether a Rule 23B remand should be granted so the defendant can augment the record with medical-expert testimony and records relevant to an ineffective-assistance claim. Defense counsel argued that trial counsel failed to secure an expert to corroborate the defendant’s proffered medical defense; the State said the post-conviction records and the proffered affidavit cannot carry the defendant’s burden to show counsel was ineffective.

Davis Pope, who argued for Mr. Mendoza, told the panel that the defense’s primary theory at trial was medical: the defendant suffered from testicular hernias that impaired his ability to obtain or sustain an erection and diminished sexual drive, evidence the defense says would have undermined the State’s allegations. Pope urged the court that nurse-practitioner Jeanette Carver’s declaration (filed with the Rule 23B proffer) demonstrates the factual predicate for remand: Carver reviewed later medical records and described how chronic hernias and pain would reduce sexual function.

The State, through Daniel Day, replied that the medical records Carver cites postdate the trial and that her affidavit is speculative — mapping what she “would have done” rather than presenting contemporaneous findings that could have been offered at trial. Day also questioned whether Carver has the necessary qualifications to opine about erectile capacity and sexual drive in a male with testicular hernias; he argued the 23B proffered evidence, even taken at face value, would not establish ineffective assistance of counsel under Strickland.

Judges on the panel pressed both sides on the standard for a 23B remand. Several questions focused on what the proffer actually proves: whether Carver’s affidavit supplies a specific, testable opinion that the jurors would have found persuasive; whether counsel attempted to obtain records or an expert before trial; and whether an expert’s testimony could have been refuted by State rebuttal experts. The court also explored whether the absence of a counsel affidavit explaining strategic choices undercuts the remand request.

On a related evidentiary point, the panel discussed the admissibility and scope of a child-abuse interview/expert (a “blind” expert) under Utah law and State v. Francis. Defense counsel argued that trial counsel did not press Rule 702 objections to the State’s expert and that the expert’s testimony ventured improperly into witness credibility; the State responded that Francis supports admission of properly qualified blind experts and that the record does not show counsel’s failure to object was deficient.

The judges repeatedly noted the practical hurdle for the appellant: to secure a remand under Rule 23B the proffered evidence must be specific enough to show the trial record would have supported a different outcome or that counsel’s performance was objectively unreasonable. The court indicated it would review the proffer and the record before deciding whether to remand.