State v. Cunningham

2013 UT App 277, 316 P.3d 963, 748 Utah Adv. Rep. 14, 2013 WL 6115610, 2013 Utah App. LEXIS 279
CourtCourt of Appeals of Utah
DecidedNovember 21, 2013
DocketNo. 20120475-CA
StatusPublished

This text of 2013 UT App 277 (State v. Cunningham) 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
State v. Cunningham, 2013 UT App 277, 316 P.3d 963, 748 Utah Adv. Rep. 14, 2013 WL 6115610, 2013 Utah App. LEXIS 279 (Utah Ct. App. 2013).

Opinion

McHUGH, Judge:

T1 Justin Cunningham appeals from his conviction for distribution of a controlled substance within 1,000 feet of a church and recreation center, a first degree felony, see Utah Code Ann. $ 58-87-8(1)(@)@), (4)(a), (4)(b)(i) (LexisNexis 2012).2 In particular, he argues that trial counsel performed ineffectively and that the trial court plainly erred because trial counsel did not withdraw as counsel to provide testimony on behalf of the defense. We conclude that trial counsel did not perform deficiently and that there was no obvious error that should have been corrected by the trial court. As a result, we affirm.

BACKGROUND 3

T2 On April 1, 2011, a confidential informant (Informant) working for local law enforcement arranged to meet Mr. Cunning ham, with whom she was already acquainted, to purchase methamphetamine in Uintah County, Utah. Although police officers typically have an informant wear a transmitting wire so the officers can ensure the safety of the informant during drug transactions, there was a risk that Mr. Cunningham would check Informant for such a device before the drug deal. Consequently, Officer Bevan Watkins decided to monitor the transaction by having Informant carry a cellular telephone with an open line to his telephone. In accordance with that plan, Informant called Officer Watkins's cellular telephone and then placed her cellular telephone in her pocket while still connected. Officer Watkins then activated the speaker on his telephone so that he and Officer Michael Gledhill, another officer involved in the operation, could hear the deal through the open line.4 Officer Watkins also tried to record what was transmitted over the open telephone line but explained at trial, "I'm not very good at the smartphone and so it didn't-I couldn't pull it back up. But my main concern was that I could hear [Informant]."

T3 Although Officers Watkins and Gledhill listened to the transaction over the open telephone line, they did not arrest Mr. Cunningham at that time in order to preserve Informant's effectiveness as an informant. Mr. Cunningham was arrested several months later at a different location and charged with one count of distribution of a controlled substance, enhanced to a first degree felony because the offense occurred within 1,000 feet of a church and a recreation center.

T4 At a jury trial held on April 2, 2012, Officer Watkins related in detail what he heard during the transaction. He explained that Informant proceeded to Mr. Cunningham's location and that Officer Watkins was able to hear a "short conversation" over the telephone during their exchange that was "something about come back later." Informant then left Mr. Cunningham and returned to the officers. They waited about forty minutes before Informant returned to Mr. Cunningham's location. With respect to [965]*965this second exchange between Informant and Mr. Cunningham, Officer Watkins testified as follows:

Q. Let me just ask you then the second time, let's get more details about that. Were you able to hear anything on the phone during the second time that there was an attempt to make contact with [Mr.] Cunningham?
A. I could hear a male subject that mentioned he'd have to go get the meth. I don't remember the exact wording. It was somewhat hard to hear because the phone was in [Informant's] pocket. We didn't want it obvious. Of course, it was easier to hear [Informant] because the phone was on her.

5 Officer Watkins continued his testimony, stating that Informant gave Mr. Cunningham $120 and Mr. Cunningham then left to retrieve the methamphetamine from a different location while Informant waited. Officer Watkins reported that when Mr. Cunningham returned, he gave the methamphetamine to Informant. The direct examination of Officer Watkins included the following exchange:

Q. Were you able to hear any of that conversation?
A. It was muffled, I couldn't tell you verbatim what it was, just that there was something mentioned about possibly smoking meth, but I don't know the details. Like I say, it was kind of difficult to hear. Something about she gave an excuse that she had to leave. Don't know the details of that. But I could just hear bits and pieces. Once again, this was kind of a last minute setup. -It was basically a safety issue, make sure that [Informant] was safe.

1 6 The prosecutor then asked Officer Watkins whether he was "able to identify the sound or the voice," and trial counsel objected. After a discussion off the record, the prosecutor provided foundation for his prior question to Officer Watkins:

Q. Without going into any detail, have you had any occasion to hear Mr. Cunningham's voice prior to April lst of 20117?
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A. No, I did not.
Q. So the voice that you heard, were you able to identify who it was?
A. Later I was.
Q. Okay. Let me ask you then, after this occurred, have you had any chance to listen to [Mr.] Cunningham's voice?
A. I have.
Q. But at the time you hadn't heard his voice?
A. That is correct.
Q. Having heard his voice after April 1st of 2011, were you able to make any conclusions as to who you believed you heard on the telephone, the male subject on the telephone on April Ist, 20117
A. It was my belief that it was Mr. Cunningham. There was a comparison. I couldn't tell you for 100-you know, I just, once again, it was kind of hard to hear him. But listening to-after-wards there was a comparison, yes.

T 7 During cross-examination, trial counsel established that Officer Watkins never saw Mr. Cunningham during the transaction and that he relied on Informant's report that she met with Mr. Cunningham. Trial counsel then questioned Officer Watkins about his attempts to record the incident.

Q. And you said that you tried to record something; is that correct?
A. As far as a phone conversation I did, yes.
Q. Yeah, with a telephone, correct?
A. That is correct.
Q. Now, I met with you about a month ago, do you remember?
A. Yes.
Q. In your office, do you remember?
A. Yes, I do.
Q. And we tried to listen to that tape recording, correct? $
A. Yes, I couldn't open the phone one up, yes.
And we couldn't-there wasn't anything on there, was there? Q.
[966]*966A. I couldn't even get it to open in my computer. Once again, that was the first time I ever tried that.
Q. So we-the technology that you had didn't have anybody's voice on it the day that I sat with you, did it?
A. I was unable to open that recording.

T8 Following Officer Watkins's cross-examination and outside of the presence of the jury, Mr.

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Bluebook (online)
2013 UT App 277, 316 P.3d 963, 748 Utah Adv. Rep. 14, 2013 WL 6115610, 2013 Utah App. LEXIS 279, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-cunningham-utahctapp-2013.