N.A.D. v. State

2014 UT App 249, 338 P.3d 226
CourtCourt of Appeals of Utah
DecidedOctober 23, 2014
DocketNo. 20130669-CA
StatusPublished

This text of 2014 UT App 249 (N.A.D. v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
N.A.D. v. State, 2014 UT App 249, 338 P.3d 226 (Utah Ct. App. 2014).

Opinion

Memorandum Decision

DAVIS, Judge:

T1 Fourteen-year-old N.A.D. was accused of raping and threatening to kill seven-year-old K.W. while N.A.D. and his sister were sleeping at K.W.'s home. N.A.D. was subsequently adjudicated delinquent for rape of a child and threatening the life of a child. We affirm. ~

T2 N.AD. first argues that he was denied due process because the same judge who ruled on his motion to suppress presided over his trial. Because this issue was not preserved below, he raises it on grounds of plain error and ineffective assistance of counsel.

18 In order to prevail on grounds of plain error, an appellant must show that "() [aln error exists; (M) the error should have been obvious to the trial court; and (ii) the error is harmful, ie., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). "An error is obvious only if the law governing the error was clear at the time the alleged error was made." State v. Maestas, 2012 UT 46, ¶37, 299 P.3d 892 (citation and internal quotation marks omitted).

14 NAD. asserts that the juvenile court judge could not impartially hear his case because the judge had previously heard evidence of his confession when she considered and granted his motion to suppress. He therefore maintains that it was plain error for the judge not to recuse herself from the trial. However, N.A.D. identifies no settled law supporting his argument. Instead, N.AD. points to case law indicating that a defendant whose motion to suppress was denied before trial need not renew his motion at a bench trial in order to preserve the suppression issue for appeal where the same judge who heard the motion presides over the trial. See, eg., State v. Griffin, 754 P.2d 965, 968 (Utah Ct.App.1988). He then argues that because judges are presumed to be aware of pretrial issues they have ruled on for preservation purposes, they should also be presumed to have been influenced by them in their rulings at trial.

15 Even if we were inclined to agree with N.A.D., the inference he asks us to draw from Griffin and similar cases does not constitute settled law sufficient to support a plain error claim. Indeed, not only is N.AD.'s position not supported by settled law, it is actually contradicted by settled law. When a jury hears a case, the court is required to conduct the trial "so that inadmissible evidence is not suggested to the jury by any means." Utah R. Evid. 108(d). However, "judges in bench trials are presumed to be less likely than juries to be prejudiced by [inadmissible] evidence." State v. Adams, 2011 UT App 163, ¶12, 257 P.3d 470; see also State v. Burke, 102 Utah 249, 129 P.2d 560, 562 (1942) ("The court, sitting without a jury, is presumed to have disregarded any irrelevant, immaterial or other evidence not pertinent to the issue."). We have therefore "recognize[d] a presumption that the court considers only admissible evidence and disregards any inadmissible evidence." Adams, 2011 UT App 163, ¶12, 257 P.3d 470; see also 46 Am.Jur.2d Judges § 158 (2006) ("A judge is not disqualified to sit in a trial on the merits by having heard and decided a «preliminary proceeding in the same cause on the basis that a judge is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite the awareness of facts which cannot properly be relied upon in making the decision." (footnotes omitted)). To rebut this presumption, the defendant must demonstrate that "the inadmissible evidence actually factored into the trial court's determination of the defendant's (guilt." Adams, 2011 UT App 163, ¶ 14, 257 P.3d 470. N.A.D. has pointed to nothing in the juvenile court's ruling suggesting that the judge relied on his confession apart from his speculation that the judge would not have found the State's evidence credible had she not known about the confession. But speculation is not enough, and there is no evidentiary basis on which to conclude that the juvenile court [229]*229judge should have sua sponte recused herself from conducting the bench trial.

16 For the same reasons, NAD. cannot prevail on his ineffective assistance of counsel claim. In order to prevail on grounds of ineffective assistance, a defendant must demonstrate, first, "that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment" and, second, "that counsel's deficient performance was prejudicial-iLe., that it affected the outcome of the case." State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 LEd.2d 674 (1984)). In demonstrating deficient performance, "a defendant bears the burden of demonstrating why, on the basis of the law in effect at the time of trial, his or her trial counsel's performance was deficient." Dunn, 850 P.2d at 1228; see also State v. Kelley, 2000 UT 41, ¶26, 1 P.3d 546 ("Failure to raise futile objections does not constitute ineffective assistance of counsel."). Because there was no basis in existing law for N.AD.'s counsel to have requested that the juvenile court judge recuse herself, N.A.D. cannot show that his counsel performed defi-ciently.

17 N.A.D. next argues that his trial counsel was ineffective for failing to call an expert witness to testify regarding the ef-feets of N.A.D.'s medication. N.A.D. relies on our supreme court's ruling in State v. Hales, 2007 UT 14, 152 P.3d 321, which determined that the failure of a defendant's attorneys "to conduct an adequate investigation" by enlisting an expert to review CT seans vital to the State's case constituted ineffective assistance. Id. 198. Counsel in Hales failed to consult an expert until the morning of trial, and the expert consulted was not qualified to testify. Id. 129. When Hales moved for a new trial based on ineffective assistance, he provided an affidavit from a qualified expert interpreting the CT seans in a manner that had the potential to exonerate Hales. Id. 131. Based on this information, the supreme court concluded that "there was a 'reasonable probability' that, but for the errors, Hales would not have been convicted." Id. 192.

T8 Unlike Hales, NAD. has not shown either that his counsel failed to adequately investigate the effect of his medication or that an expert would have provided helpful testimony if called as a witness. The record indicates that N.A.D.'s counsel had enlisted "Wasatch Mental Health Professionals" as prospective witnesses, although those witnesses were not ultimately identified or called to testify. This belies N.A.D.'s claim that his counsel did not consult with experts regarding his health issues and medication. But even if counsel's investigation was inadequate, the record does not indicate what an expert would have testified to if called. N.A.D. points to his mother's testimony that he was taking medication, that he could not sleep without it, and that it was very difficult to wake him after he had taken it. But unlike Hales, who provided an affidavit by an expert indicating what the expert would have testified to if called at trial, N.A.D. has provided us with nothing to indicate that an expert would have corroborated or added to his mother's testimony, and the record does not even identify the precise medication NAD. was taking. Cf. State v.

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
State v. Tyler
850 P.2d 1250 (Utah Supreme Court, 1993)
State v. Dunn
850 P.2d 1201 (Utah Supreme Court, 1993)
State v. Griffin
754 P.2d 965 (Court of Appeals of Utah, 1988)
State v. Charles
2011 UT App 291 (Court of Appeals of Utah, 2011)
State v. Adams
2011 UT App 163 (Court of Appeals of Utah, 2011)
State v. Kelley
2000 UT 41 (Utah Supreme Court, 2000)
State v. Hales
2007 UT 14 (Utah Supreme Court, 2007)
State v. Litherland
2000 UT 76 (Utah Supreme Court, 2000)
State v. Burke
129 P.2d 560 (Utah Supreme Court, 1942)
State v. C.C.R.
2011 UT App 228 (Court of Appeals of Utah, 2011)
D.V. v. State
2011 UT App 241 (Court of Appeals of Utah, 2011)
State v. Maestas
2012 UT 46 (Utah Supreme Court, 2012)

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Bluebook (online)
2014 UT App 249, 338 P.3d 226, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nad-v-state-utahctapp-2014.