State v. Malmrose

649 P.2d 56, 1982 Utah LEXIS 1010

Opinions

HOWE, Justice:

Defendant appeals from his conviction by a jury of the crime of forcible sexual abuse.

The victim was sexually assaulted while jogging during the daytime on a running course at Weber State college. The only disputed issue at trial was the identity of her assailant. Immediately after the assault she reported it to the police and gave them a description of her assailant. Over a period of weeks she reviewed photographs until she identified the defendant from a school yearbook where he appeared as an athletic coach. She later identified the defendant in a lineup but that identification was suppressed subsequently because no recording had been made as required by statute. At trial, the victim stated there was no doubt whatsoever in her mind that the defendant was the man who had assaulted her. She had observed him during the entire episode with the exception of a moment when she turned her head in order to avoid a blow to the face. She was always conscious. He was clearly in front of her as he hovered over her, going through the act of sexual assault for a total period of seven or eight minutes.

Defendant, on the other hand, testified that he was not at the running course on the day of the assault. Instead, he was attending to his duties as a teacher and coach at a middle school. Before going home, he stopped briefly at a market. Various witnesses testified in support of his alibi. After three days of trial, including rebuttal testimony by the prosecution, the jury returned a verdict of guilty.

Defendant engaged new counsel to pursue this appeal. His assignments of error may be categorized into three major issues. The first issue is whether the defendant had effective assistance of counsel at trial as guaranteed under the Sixth Amendment of the United States Constitution and Article 1, Section 12 of the Utah State Constitution. Defendant recognizes that many of the points he raises on appeal were not properly preserved by defense counsel at trial and cites them as illustrations of ineffective representation. The second issue is whether prejudicial error was committed by the court in some of its rulings. Finally, the third major issue is whether an instance of prosecutorial misconduct occurred at trial which prejudiced the defendant.

Defendant relies upon the U.S. v. Bosch, 584 F.2d 1113 (1st Cir. 1978) standard of “reasonably competent assistance of counsel.” The court in Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980) interpreted the standard to impose a four-part test to determine whether there has been “reasonably competent assistance of counsel.” The test requires the defendant to (1) establish proof of the ineffectiveness of counsel, (2) show that the ineffectiveness was due to the inadequacy of counsel and not as a result of trial strategy, (3) demonstrate that better representation might have had some effect upon the result of the trial, and (4) prove that motions and objections which were not made would not have been futile if raised. The standard in Dyer has not been expressly adopted in Utah.

However, there are Utah cases which when read together parallel that standard. In State v. Gray, Utah, 601 P.2d 918 (1979), we held that the accused has a right to effective counsel who does more than satisfy a pretense of representation. We stated that the defendant bears the burden of establishing ineffectiveness. The proof must be demonstrable, not speculative. In State v. McNicol, Utah, 554 P.2d 203, 205 (1976), we stated that the courts will not second guess “legitimate exercise of judgment as to trial tactics or strategy.” Other Utah cases have held that there is no prejudicial error warranting reversal of the conviction unless better representation is likely to have produced a different result. State v. Gray, supra; State v. Forsyth, Utah, 560 P.2d 337 (1977); Jaramillo v. Turner, 24 Utah 2d 19, 465 P.2d 343 (1970); Alires v. Turner, 22 Utah 2d 118, 449 P.2d 241 (1969). In Heinlin v. Smith, Utah, 542 P.2d 1081 (1975), we held that the failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance. In order to show ineffective assistance of counsel in this case, therefore, defendant must show that the standards we have enumerated in previous cases were not satisfied.

Rule 4, Utah Rules of Evidence, requires a clear and definite objection to evidence at trial before appellate review can be requested. Stagmeyer v. Leatham Brothers, Inc., 20 Utah 2d 421, 439 P.2d 279 (1969); White v. Newman, 10 Utah 2d 62, 348 P.2d 343 (1960). The assignments of error where no objection was made at trial, therefore, are considered only to the extent that they may bear upon the claim of incompetence of counsel.

Defendant asserts that the victim’s identification of him at trial was tainted and should have been suppressed. His counsel did not then object to the identification, but did provide assistance to his client by raising the issue at a pre-trial suppression hearing. The issue was argued and ruled upon. The court found that the victim could testify at trial because the identification at the preliminary hearing was not the product of the lineup but was a product of “sufficient look-alike characteristics” to the assailant that the victim picked him. State v. Harris, 26 Utah 2d 365, 489 P.2d 1008 (1971), supports such a ruling. The hearing court also determined that the identifications were made independently of any suggestive influences. The identification of the defendant in the lineup was suppressed, not because of any police misstatement or missug-gestion with the photos, but because of failure of the police to maintain a record as required by statute.

Defense counsel need not have made objection at trial if the objection would have been futile. He did raise and argue the issue at a suppression hearing where the court ruled that identification at trial would be allowed since it was independent of suggestive influences, but the lineup would be suppressed. This Court has held that the question of whether the lineup was conducted unfairly and the evidence from it was tainted is within the discretion of the trial court. State v. Ervin, 22 Utah 2d 216, 451 P.2d 372 (1969). Under the standard in State v. Perry, 27 Utah 2d 48, 492 P.2d 1349 (1972), reversal is demanded where the identification is so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant is denied due process.

There is nothing in the record to suggest that the findings of the suppression hearing that the victim’s identifications were made independently of suggestive influences should or would have been different had that issue been considered again at trial. Under the rule in Niel v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which requires viewing the reliability of identification in light of the totality of circumstances, there is sufficient evidence in the record that the victim had the opportunity to view the defendant, exhibited a sufficient degree of attention during the crime, had previously described the defendant accurately, was sufficiently certain of her identification and identified the defendant within a reasonable length of time from the crime to the confrontation. Accordingly, the trial court’s finding is reasonable and the failure of defense counsel to again object to identification at trial did not prejudice defendant.

The admission of expert testimony based upon official weather reports and the admission of a written laboratory report linking defendant’s blood type to the assailant are further examples cited by defendant of the admission of evidence without objection at trial by his counsel.

The trial court found the admission of expert testimony based upon official weather reports was “clearly admissible as an exception to the hearsay rule.” We agree. It is therefore understandable why trial counsel made no objection. Effective representation does not require counsel to object when doing so would be futile.

The trial court inquired of defense counsel whether he objected to the written laboratory report, but he answered that he did not. The trial court on motion for new trial found that “the court cannot know at that point what defendant counsel’s tactical position [was] and must rely on [his] failure to object.” An examination of the written laboratory report reveals that it is not a laboratory report at all; it is merely a letter stating the conclusion of the lab test which had already been testified to by the witness. This Court will not second guess the strategy of counsel at trial. Counsel did argue the lack of certainty in the conclusions of the report with relation to his client. The exhibit would not be admissible as a hearsay exception. Under Rule 4 of Utah Rules of Evidence, however, an erroneous admission of evidence is treated as harmless error absent a showing that it had substantial influence in bringing about the verdict. Defendant has made no such showing.

Defendant also argues that the prosecution’s alibi rebuttal witnesses had a devastating effect on defendant’s case and that the prosecution did not provide advance notice of their identity as required under § 77-14-2, Utah Code Ann. 1953. Again, no objection was made by defense counsel at trial and it is understandable why. He himself had failed to comply with the stat ute by not disclosing the names of all of his alibi witnesses before the expiration of the ten-day period imposed by the statute. In other words, both attorneys appear to have failed to comply with the statute. Had the lack of notice been made an issue at trial, the statute allows the trial court to waive, for good cause, its strict requirements. As it was, the trial court specifically found on motion for new trial that no harm resulted to defendant since his counsel had actual knowledge well before the trial commenced as to who the prosecution’s witnesses were and how they would be used.

Defendant cites three other examples of what he considers evidence of ineffectiveness of his trial counsel.

First, defendant contends that jury voir dire by trial counsel was deficient in that “many areas of potential bias and competency were inadequately explored by the court or counsel.” Other than an incomplete recitation of facts from the record, he offers no support or authority for the contention. Traditionally, the trial court is given considerable latitude as to the manner and form of conducting the voir dire examination and is only restricted in that discretion from committing prejudicial error. Utah State Road Commission v. Marriott, 21 Utah 2d 238, 444 P.2d 57 (1968). Defendant does not state that or how the allegedly inadequate exploration in voir dire resulted in prejudicial error. Neither does the trial record support any abuse of discretion or that the exploration which was conducted was, in fact, inadequate. Defendant does not argue that the result of the trial would have been different or that defense counsel’s choice not to ask more questions was due to incompetence rather than trial strategy.

Secondly, defendant argues that a statement made by his counsel in his opening argument was a prejudicial suggestion. The statement was that the defendant had been charged with the crime through a series of coincidences, chiefly that his car was found by the police parked in an area where exhibitionists had been known to loiter. Undoubtedly counsel’s purpose in making the statement' was to provide to the jury a suggestion as to how the defendant came to be a suspect. Counsel obviously thought that it would have an exculpating effect on the defendant and we believe that his remark falls into the category of trial strategy, a subject about which even the best of trial lawyers may not always agree. Furthermore, defendant has not shown any harm from the statement nor given us any indication that the statement had any adverse influence on the jury.

Thirdly, defendant asserts that the failure of his counsel to attempt to introduce polygraph results was error. He fails to recognize that the results were excluded at the suppression hearing, may not have been admitted at trial under the holdings in State v. Abel, Utah, 600 P.2d 994 (1979), and in State v. Jenkins, Utah, 523 P.2d 1232 (1974), and would have opened the door to the prosecution using the results of its polygraph. That the non-introduction of the polygraph results was a trial strategy is a reasonable conclusion. That the introduction of the results would have changed the outcome of the trial was not argued. We find no prejudice to defendant on this point.

None of the points raised by defendant has either individually or collectively been shown by him to be ineffective assistance of counsel as opposed to trial strategy. Nowhere has defendant effectively argued with any support that a different result would have occurred had defense counsel’s conduct of the trial been different. In some instances such objections would have been futile if they had been made by defense counsel. Even taken together, all of the points raised by defendant do not appear to have been prejudicial to him.

PREJUDICIAL ERROR BY COURT

In addition to the argument that counsel and the court should have conducted a more extensive voir dire of the jury, defendant contends that the court committed prejudicial error in other instances as well.

He argues that the challenge for cause of two jurors was improperly denied. He makes no claim that the court’s failure to excuse the jurors compelled defense counsel to use the peremptory challenge he might have used to strike other prospective jurors’ names from the list. Nor does he show that any prejudice resulted because of the trial court’s failure to grant the challenges for cause. State v. Bautista, 30 Utah 2d 112, 514 P.2d 530 (1973). Further, only one jur- or who had been challenged for cause was eliminated with a peremptory challenge; and, an examination of the trial record does not support “the existence of a state of mind on the part of the juror which leads to a just inference in reference to the case that [s]he [did] not act with entire impartiality.” Utah Code Ann., § 77-30-18(2) (1978).

In State v. Moore, Utah, 562 P.2d 629 (1977), we held that compelling a party to exercise a peremptory challenge to eliminate a juror was prejudicial error where the juror should have been excused for cause because he expressed bias and repeatedly stated a concern as to whether he could be fair and impartial. The juror in the case before us neither expressed a bias nor voiced a concern that she could not be fair and impartial. At the beginning of voir dire she merely questioned whether she should hear the case; however, in the course of voir dire she did not evidence any strong feelings that would close her mind to the testimony to be offered. That is the standard required for dismissal under State v. Bailey, Utah, 605 P.2d 765 (1980).

Defendant further contends that the denial of expert testimony on the issue of the reliability of eyewitness testimony was prejudicial error. In State v. Griffin, 626 P.2d 478 (1981), this Court held that whether expert testimony should be allowed as to the merits of eyewitness identification is within the discretion of the trial court. The trial court in this case found that such testimony would amount to a lecture to the jury about how they should perform their duties. Such a conclusion is not an abuse of discretion, particularly where there has been no showing that the excluded evidence would probably have had a substantial influence in bringing about a different verdict.

At the trial defense counsel took no exception to jury instructions; however, defendant now argues that the fact the trial court failed to give an instruction on the inherent frailties of eyewitness identification was prejudicial error. Rule 19(c) of the Utah Rules of Criminal Procedure, Utah Code Ann., § 77-35-19(c) (1953), prohibits the assigning of error unless an objection was made before the jury was instructed except where it is necessary to do so to avoid manifest injustice. Defendant makes no showing of injustice. We have not heretofore held that such an instruction is required. We believe the giving of it should be left to the discretion of the trial court.

PROSECUTORIAL MISCONDUCT

Defendant argues that prosecutorial misconduct occurred in two instances. In one instance, defendant contends that the prosecution knowingly fostered a false impression which could have affected the judgment of the jury and deprived him of a fair trial. See Walker v. State, 624 P.2d 687 (1981). The trial court on motion for new trial found that it could not be concluded that the prosecution had intended to mislead the jury. The trial record supports that finding. The prosecution asked a witness on rebuttal to read the dates of the last two journal entries which she had made. Those dates were later than the date of the assault. The prosecution asked no further questions. Defense counsel asked no questions in an attempt to clarify the matter although he had the opportunity. The record contains no evidence that any misunderstanding was created. Certainly, as the trial court found, there was no evidence in the record that a false impression was knowingly fostered by the prosecution.

In the other instance, the defendant claims prejudicial error by the court’s refusal to give a cautionary instruction regarding a question asked him by the prosecutor as to whether the defendant had admitted to a police officer that he was a voyeur. The trial court found that to have granted a cautionary instruction would only have drawn further attention to the remark. The jury had already been instructed that counsel’s statements are not evidence. Defense counsel objected to the question and the court did not allow the prosecution to continue along that line of questioning.

There is reversible error only if there is a reasonable likelihood that an improper question by the prosecutor so prejudiced the jury that in its absence there might have been a different result. State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322 (1974). While the question concerning voyeurism was not a direct reference to prior criminal misconduct, because of its inflama-tory nature, its propriety was questionable. Nonetheless we believe the trial judge did not err in refusing to dignify it with a cautionary instruction. In denying defendant’s motion for a new trial, the trial court apparently thought that the remark was not prejudicial so as to warrant a new trial. Such a determination is better left to the trial judge due to his advantaged position. See State v. Hodges, supra. There is certainly no evidence pointed to by defendant anywhere in the record to suggest that the jury either relied on the statement for its verdict or that there is a likelihood that they would have found the defendant not guilty had the statement not been made.

The only disputed issue at trial was the identification of the assailant. The victim was very positive in her identification of the defendant. Whatever else defense counsel may or may not have done in areas other than identification appears to have been of less importance. On the firm identification of the victim alone, it was reasonable for the jury to have found the defendant guilty. While at this point defendant may be convinced that he would have preferred another strategy than the one that he used at trial, he has not shown prejudicial error.

Judgment affirmed.

HALL, C. J., and OAKS, J., concur.