State of Utah v. Bostwick

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Donald D. Bostwick,
Defendant and Appellant.

Case No. 971610-CA

F I L E D
(November 19, 1998)
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Second District, Ogden Department
The Honorable Pamela G. Heffernan

Attorneys:
Randine Salerno, Ogden, for Appellant
Jan Graham and Thomas B. Brunker, Salt Lake City, for Appellee

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Before Judges Davis, Bench, and Greenwood.

PER CURIAM:

Appellant appeals from his conviction by a jury of possession of a controlled substance and drug paraphernalia. Appellant asserts that he was denied his constitutional right to effective counsel and that the trial court erred in ruling that an out-of-court statement allegedly prepared by an uncooperative witness was inadmissible hearsay. We affirm appellant's conviction.

To prove a claim of ineffective assistance of counsel, appellant has the burden of satisfying a two-part test set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), and adopted by the Utah courts. See State v. Templin, 805 P.2d 182, 185-86 (Utah 1990). The first prong requires appellant to identify the acts or omission which, under the circumstances, show that counsel's representation fell below an objective standard of reasonableness. Templin, 805 P.2d at 186. The second prong requires appellant to show that, under the totality of the circumstances, but for his counsel's alleged deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Id. In this case, appellant has failed to satisfy either prong of the test.

Appellant asserts that his trial counsel performed deficiently in failing to object to the admission of evidence seized from the interior of a stolen vehicle in which appellant was found. He contends that because the stolen vehicle was searched without a warrant before anyone was arrested and before proper impounding, the search was per se unreasonable and without probable cause. We disagree.

There is a strong presumption that defense counsel's conduct falls within the wide range of reasonable professional assistance, and that the challenged action was sound trial strategy. Templin, 805 P.2d at 186. Counsel does not perform deficiently by opting not to make objections or motions that would be futile. State v. Hovater, 914 P.2d 37, 44 (Utah 1996). It is clear from the record viewed in light of well-established case law that it would have been futile for defense counsel to object to the admission of the evidence seized from the stolen vehicle, as the car was searched incident to a lawful arrest and the evidence was properly seized. See State v. Giron, 943 P.2d 1114, 1117-18 (Utah Ct. App. 1997). Thus, appellant cannot show that trial counsel performed deficiently by determining not to try to suppress the evidence.

Even assuming, arguendo, that a motion to suppress evidence recovered from the stolen vehicle would have been successful, appellant fails to show that suppression would have affected the outcome. Appellant, who denied ownership or control of the stolen vehicle and of the evidence seized therefrom, had no standing to challenge the search of the stolen vehicle. See State v. DeAlo, 748 P.2d 194, 196 (Utah Ct. App. 1987) (person who asserts neither property or possessory interest in an automobile nor an interest in the property seized has no legitimate expectation of privacy and thus no standing to challenge the search) (citing Rakas v. Illinois, 439 U.S. 128, 148, 99 S. Ct. 421, 432 (1978). Therefore, the only evidence that could possibly have been suppressed is the evidence recovered from appellant's brown bag. The evidence discovered on the floor of the vehicle--the brass pipe, the plastic baggies with marijuana and the plastic bottle containing methamphetamine--was properly admitted and was sufficient to support appellant's conviction for all three counts of possession. Accordingly, appellant cannot show that there is a reasonable probability that defense counsel's failure to file the suppression motion affected the outcome of the case.

Appellant next argues that his constitutional right to due process was violated when the trial court refused to allow appellant to examine Paul Van Dyke "concerning his involvement with the stolen car and drugs found therein." A thorough review of the transcript reveals that the trial court did not refuse to allow appellant to examine the witness. The trial court only refused to admit a prior statement of the witness into evidence either directly, or through questioning of the witness about its contents, for purposes of getting the substance of the statement before the jury.

Appellant ignores the applicable rules of evidence in arguing that he should have been able to question Mr. Van Dyke about his prior statement. The statement is hearsay, and appellant has identified no exception to the hearsay rule under which the statement could be admitted. Further, appellant has identified no constitutional right to circumvent the rules of evidence. The trial court properly exercised its discretion by prohibiting defense counsel from questioning Mr. Van Dyke about the statement's substance.

Appellant's conviction is affirmed.
 

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James Z. Davis, Presiding Judge
 

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Russell W. Bench, Judge
 

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Pamela T. Greenwood, Judge