State of Utah v. Harper

State of Utah v. Harper

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Ronald Leroy Harper,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981359-CA

F I L E D

(December 10, 1998)

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Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys:  Randine Salerno, Ogden, for Appellant

Jan Graham and Kenneth A. Bronston, Salt Lake City,

for Appellee

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Before Judges Billings, Greenwood, and Jackson.

PER CURIAM:

When a defendant raises an ineffective assistance claim for the first time on appeal, the claim will be reviewed only if "the trial record is adequate to permit decision of the issue." State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991); see also State v. Garrett, 849 P.2d 578, 580 (Utah Ct. App.), cert. denied, 860 P.2d 943 (Utah 1993) (stating that we can only entertain an ineffective assistance of counsel claim on direct appeal "if the record is adequate to permit a decision"). There is inadequate support in the record for us to consider Harper's claim of ineffective assistance of counsel.(1) Accordingly, we decline to do so.

Similarly, the record does not support Harper's claim that the trial court abused its discretion in refusing to give a jury instruction concerning testimony of an accomplice. See State v. Pierce, 722 P.2d 780, 782 (Utah 1986) (stating that the decision of whether to give an instruction on accomplice testimony is entirely discretionary with the trial court, and will be reversed only when that discretion has been abused).

According to Utah Code Ann. § 77-17-7:

(1) A conviction may be had on the uncorroborated testimony of an accomplice.

(2) In the discretion of the court, an instruction to the jury may be given to the effect that such uncorroborated testimony should be viewed with caution, and such an instruction shall be given if the trial judge finds the testimony of the accomplice to be self contradictory, uncertain or improbable.

It cannot be said that the testimony of Ray Howe or Jeff Hill was "self contradictory, uncertain or improbable." Howe immediately confessed to police when they raided his house and his testimony remained consistent throughout--that he let Harper use his basement in exchange for drugs. Hill testified that he acted as Harper's "gopher" in exchange for drugs. Howe's and Hill's testimonies were also consistent with each other. Other witnesses provided evidence in support of Harper's conviction. Howe's girlfriend testified that she had seen Harper at the house at least 10 times (discounting Harper's contention that he was innocently caught in the drug raid); the police testified concerning Howe's immediate confession, Harper's efforts to hide from them, and about Harper giving them a false name; and a chemist testified that the materials found in the home were illegal substances or those used to make illegal substances.

Instead of the accomplice testimony instruction, the trial court gave five instructions--No. 13, 14, 15, 16, and 20--which provided guidance to the jury in evaluating Howe's and Hill's testimony. Moreover, these instructions about witness credibility, believability, and bias were in keeping with Harper's defense that Howe and Hill were unreliable given their own criminal histories and the fact that they received reduced charges in exchange for their testimony.

Harper's conviction is affirmed.

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Judith M. Billings, Judge

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Pamela T. Greenwood, Judge

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Norman H. Jackson, Judge

1. In response to the State's argument in its brief, that there was an inadequate record to support Harper's claim of ineffective assistance of counsel, Harper sought a remand pursuant to Utah R. App. P. 23B. However, we concluded that he failed to meet the requirements for such a remand, specifically, he did not demonstrate prejudice.