Failing to Make Futile Objections ≠ Ineffective Assistance of Counsel

State v. C.D.L. 2011 UT App 55 (Utah Court of Appeals, February 25, 2011).

Defendant was convicted of four counts of aggravated assault with a deadly weapon.  Defendant now asserts ineffective assistance of counsel because his attorney (1) failed to request a directed verdict, (2) failed to renew objections to admissibility of the 911 transcript and (3) failed to move for a new trial.

(1) Defendant claims that a car is not a deadly weapon, and that his attorney should have moved for a directed verdict on the enhancement.  The Court of Appeals found that because the car was used in an attempt to cause serious bodily injury to another, it is a dangerous weapon.  Further, because a motion for a directed verdict would have been futile, failing to make such a motion is not ineffective assistance.

(2) Defendant argued that the 911 call was not properly authenticated hearsay.  However, the caller identified herself and witnesses who observed the events corroborated the circumstances she described, thus it was authenticated.  Further, the statements may have been hearsay evidence, but were excited utterances and thus excepted from the hearsay exclusion.  The 911 calls are greatly probative and carry little unfair prejudice, the Court did not err in admitting, neither was it ineffective assistance when counsel chose not to object.

Lastly, Defendant asserts ineffective assistance of counsel, when his attorney failed to request a new trial based on Wife’s victim impact statement in which she describes the incident as her fault and not as serious as witnesses claim.  The Court notes that wife was not present at trial and was not a witness for either party.  Because there are so many unknown s about wife, it is impossible to overcome the strong presumption in favor of effectiveness.  Affirmed on all claims.

Full Decision available at http://www.utcourts.gov/opinions/appopin/cdl022511.pdf

A Reliability Hearing Serves No Purpose In a Bench Trial

State of Utah v. K.O., 2010 UT App. 155, (Utah Court of Appeals June 17, 2010).

K.O. appeals his conviction of burglary of a vehicle because of insufficient evidence; second, because the Juvenile Court failed to hold a reliability hearing before admitting eyewitness testimony; third, because the court failed to exclude hearsay evidence. 

The Court of Appeals concluded that the eyewitness testimony combined with the testimony of K.O.’s conduct of attempting to avoid police detection was sufficient to uphold his conviction.  Second, because reliability hearing is to protect the jury from hearing unreliable testimony it is only helpful in jury trials. A judge has an opportunity to evaluate the reliability of the eyewitness at the time of trial.  Finally, the Court concluded that the testimony of the arresting officer was not hearsay because the officer (declarant) was available for cross examination and under Utah Rules of Evidence 801(d), such evidence is not hearsay.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ko061710.pdf

Must Show Prejudice for Conviction to Be Remanded

State of Utah v. Jackson, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Jackson was convicted of attempted murder during the trial the trial court admitted officer testimony of statements by witnesses at the scene and photos of the injuries caused by the Defendant.  Defendant also asserted that the State disposed the car used in the act without allowing Defendant to examine it.  The Defendant also challenged the jury verdict because alleging that one of the state peremptory challenges was motivated by race.  The Court of appeals affirmed the trial court finding that even if the evidence was improperly admitted, there was sufficient other evidence on which the jury could have come to the same conclusion and as such, he was not prejudiced and the error was harmless.  The Court found that in the disposal of the care the State was not acting in bad faith because they had no control over the Sheriff’s release of the car to its owner; and the likelihood of Defendant finding favorable evidence in the vehicle is too remote to have had a real effect on the outcome of the case.  Finally, the Court found that the State provided a sufficiently racially neutral grounds for eliminating the juror.

Full Decision available at http://www.utcourts.gov/opinions/appopin/AMD_jackson111810.pdf 

If There is Any Rational Basis for Counsel’s Actions Then He is Not Ineffective

Utah v. Pedersen, 2010 UT App. 38, (Utah Court of Appeals, February 19, 2010).

Pedersen was charged and convicted of two counts of sexual assault.  He appealed.  He argued that his counsel was ineffective for failing to make several motions.  The Court affirmed that each missed motion could have been a tactical basis for each decision, and therefore there was a rational basis for the actions taken by counsel.  Further, the Court of appeals affirmed that there was no showing of actual prejudice as a result of counsel’s actions.  Next, Defendant challenged the trial court decision allowing testimony of another alleged victim because it is a prior bad act and therefore improper character evidence.  However, the Court of Appeals affirmed the trial court, finding the testimony to be appropriate evidence for a non-character purpose to show absence of mistake and intent.

Full Decision available at http://www.utcourts.gov/opinions/appopin/pedersen021910.pdf 

Not Hearsay if Not for the Truth, & Irrelevant Evidence is Not Admissible

SLC v. Denier, 2010 UT App. 24, (Utah Court of Appeals, February 4, 2010).

Denier violated a Protective Order by leaving a message for the Petitioner.  He was charged and convicted of violating the Protective Order.  He appealed. 

Denier argued that the message left for the Petitioner was inadmissible hearsay.  In the message, Denier indicated that he knew his message was being recorded and that in all previous complaints he had been found innocent.  The Court of Appeals affirmed the trial court, finding the truth of the statements left in the message as unimportant.  The issue was whether Denier left the message.

Denier next objected the trial court findings that testimony regarding the visitation order was irrelevant.  The Court of Appeals affirmed that the custody agreement would have little bearing as to whether a message left was a violation of the Protective Order.  In part, this was due to Denier failing to describe or proffer the visitation order.

Full Decision available at http://www.utcourts.gov/opinions/mds/denier020410.pdf