State of Utah v. Cardona

State of Utah v. Cardona

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Renee Cardona,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981327-CA

F I L E D

(January 28, 1999)

1999 UT App 020

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Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys:  Randine Salerno, Ogden, for Appellant

Jan Graham and Laura B. Dupaix, Salt Lake City, for

Appellee

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Before Judges Greenwood, Davis, and Jackson.

PER CURIAM:

¶1 "It is a well-established rule that a defendant who fails to bring an issue before the trial court is generally barred from raising it for the first time on appeal." State v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996) (citations omitted). The exceptions to the rule are: 1) the trial court committed "plain error"; 2) there are "exceptional circumstances"; and 3) "if a claim of ineffective assistance of counsel is raised on appeal, even though by reason of the claimed ineffectiveness, the matter was not raised below." Id. (citations omitted). None of these exceptions apply here.

¶2 To be successful under the "plain error" doctrine, Cardona had to show that an error exists, the error should have been obvious to the trial court, and the error is harmful. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). Cardona cannot meet the first element--showing that an error exists. From the beginning, the victim (Giddens) told the police that she suspected that "Cuba"/Cardona was her attacker. Though her attacker's face was somewhat covered, Giddens recognized Cardona because of his distinctive voice--broken English spoken with an accent and sounding like he was missing his front teeth. The police only showed Giddens a picture of Cardona after Giddens named him as her attacker and only for the purposes of confirming they knew who her claimed attacker was. This was necessitated, in large part, by the fact that Cardona went by a nickname. The photo was not shown as part of a photo line-up and had no influence on Giddens in selecting Cardona since she had already named him. Giddens's identification of Cardona was reliable and there was no basis for trial counsel to object to it. See also, State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)(outlining factors to consider in determining reliability of eyewitness identification).

¶3 Similarly, no unique procedural circumstances exist in this case which would allow us to consider the issue of eyewitness identification under the "exceptional circumstances" exception. See State v. Irwin, 924 P.2d 5, 8 (Utah Ct. App. 1996) (discussing the "exceptional circumstances" exception).

¶4 Likewise we reject Cardona's claim that his counsel was ineffective for failing to object to the victim's eyewitness identification of him. A claim of ineffective assistance may only "be raised on appeal if the trial record is adequate to permit a decision of the issue and defendant is represented by counsel other than trial counsel." State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991). Though we have no information as to whether counsel considered objecting to the victim's eyewitness identification, there appears to be no basis upon which Cardona's counsel could have objected to Giddens's identification of Cardona given the reliability of her testimony and the other compelling evidence to show that Cardona was the attacker. See State v. Hall, 946 P.2d 712, 719 (Utah Ct. App. 1997); State v. Garrett, 849 P.2d 579 (Utah Ct. App. 1993). Moreover, such an objection would have been inconsistent with Cardona's theory that he was framed.

¶5 In support of his claim that the State failed to prove that Cardona's offenses were "aggravated", i.e., that he used a gun, Cardona attempts to discredit Giddens's testimony, arguing that it was contradictory and improbable. However, the record does not bear this out. Cardona omits evidence and focuses on immaterial, minor inconsistencies in Giddens's testimony, as well as others, to support his assertions, but cannot overcome the fact that Giddens consistently stated that Cardona threatened her with a gun during the course of the attack. Another witness, Maxine Rios, testified that she saw Cardona with a gun, like the one Giddens described, a few hours before the attack. It was Cardona's testimony that the trial court found to be implausible. See Yelderman v. Yelderman, 669 P.2d 406, 408 (Utah 1983) (stating that "it is within the province of the fact finder to believe those witnesses or evidence it chooses"). The trial court chose to believe Giddens, her roommates, the police, the criminologist, and the DNA experts. Given the strong evidence supporting Giddens's testimony, the credibility determination was not an abuse of discretion and the conclusion that Cardona's crimes were "aggravated" was not against the weight of the evidence.

¶6 Accordingly, the trial court is affirmed.

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Pamela T. Greenwood,

Associate Presiding Judge

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James Z. Davis, Judge

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Norman H. Jackson, Judge