State of Utah v. Ha

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Minh Ngoc Ha,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971746-CA

F I L E D
September 30, 1999
  1999 UT App 274 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Linda M. Jones, Salt Lake City, for Appellant
Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

-----

Before Judges Wilkins, Greenwood, and Davis.

WILKINS, Presiding Judge:

Defendant, Minh Ngoc Ha, appeals from a conviction of aggravated assault, a second degree felony, in violation of Utah Code Ann. § 76-5-103(1)(a) (Supp. 1999), and assault, a class B misdemeanor, in violation of Utah Code Ann. § 76-5-102 (Supp. 1999). We affirm.

I. APPOINTMENT OF INTERPRETER

First, defendant argues that the trial court erred in appointing Tam Huynh to serve as a court interpreter because Huynh was not appointed in accordance with Rule 3-306 of the Utah Code of Judicial Administration.

Although we would generally review the court's appointment of an interpreter for an abuse of discretion, see State v. Fung, 907 P.2d 1192, 1194 (Utah Ct. App. 1995), defendant's failure to properly preserve this issue requires us to review the court's appointment for plain error. See State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct. App. 1992) (stating "[wh]en objections are not made at trial and properly preserved, appellate review is under a 'plain error' standard"). However, the State responds that we should refuse to review defendant's plain error claim because he invited the error. Moreover, the State argues that even if we choose to address the merits of defendant's claim, defendant has failed to make the requisite showing of plain error.

We agree with the State and reject defendant's argument. Defendant did not ask the court to obtain a separate interpreter for defendant's sister before trial. Rather, defendant announced for the first time that he needed an interpreter for his sister, and had one available in court, when he called her to testify. In essence, defendant set up the error he now complains of on appeal. To hear defendant now complain of this procedural deficiency "smacks of invited error, which is procedurally unjustified and viewed with disfavor." Miller v. Martineau & Co., 372 Utah Adv. Rep. 34, 38 (Utah Ct. App. 1999) (citations and internal quotations omitted) (stating doctrine of invited error "prohibits a party from setting up an error at trial and then complaining of it on appeal"); see State v. Betha, 957 P.2d 611, 617 (Utah Ct. App. 1998) ("'[O]n appeal, a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.'"). Because "invited error precludes judicial review," we decline to address this argument further. Miller, 372 Utah Adv. Rep. at 38 (citations and internal quotations omitted).(1)

II. PROSECUTORIAL MISCONDUCT

Second, defendant argues the prosecutor's surrebuttal remarks during closing argument, that defendant is probably the only person in this society with a tattoo of a question mark on his forehead, was unsupported by evidence and constitutes prosecutorial misconduct warranting reversal. Normally, we review prosecutorial misconduct claims for an abuse of discretion and will reverse only if defendant has shown that [1] the actions or remarks of [prosecuting] counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, [2] under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result . . . . State v. Longshaw, 961 P.2d 925, 928 (Utah Ct. App. 1998) (citations and internal quotations omitted). However, because defendant's claim of prosecutorial misconduct was not raised below, we review it only for plain error. See State v. Winward, 941 P.2d 627, 634-35 (Utah Ct. App. 1997); State v. Cummins, 839 P.2d 848, 853 (Utah Ct. App. 1992) (providing when defendant fails to timely object to prosecutorial misconduct, court reviews argument for plain error). "Plain errors are those that 'should have been obvious to the trial court and that affect the substantial rights of the accused.'" Ellifritz, 835 P.2d at 174 (citation omitted); see Davis, 905 P.2d at 892.

We reject defendant's plain error argument. This was not an improper comment by a prosecutor asking the jury to consider matters outside the evidence. See State v. Palmer, 860 P.2d 339, 344 (Utah Ct. App. 1993) (indicating "[a] comment by a prosecutor during closing argument that the jury consider matters outside the evidence is prosecutorial misconduct"). Rather, the prosecutor's remarks could have been reasonably inferred from the evidence adduced at trial, i.e., from the identification testimony of several witnesses. See Cummins, 839 P.2d at 853-54 (stating no plain error when prosecutor's comments can be inferred from evidence). Simply put, the prosecutor's remarks were a reasonable deduction from several witnesses' descriptions and identification of defendant at trial. Because defendant has failed to establish the requisite error, this claim fails.

III. INEFFECTIVE ASSISTANCE OF COUNSEL

Third, defendant contends that his trial counsel's failure to object to the prosecutor's closing remarks and to request a curative instruction constitute ineffective assistance of counsel. To prevail in this argument, defendant must affirmatively prove that his "counsel's performance was deficient in that it 'fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984)). A defendant must prove both prongs of the Strickland test, see Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994); failure to do so precludes the necessity to consider the other. "Additionally, [t]o prevail on a claim of ineffective assistance . . . [defendant] must demonstrate that counsel's actions were not conscious trial strategy, and that there was a lack of any conceivable tactical basis for counsel's actions." State v. Haga, 954 P.2d 1284, 1289 (Utah Ct. App. 1998) (citation and internal quotations omitted).

We also reject this argument. Because we hold that the prosecutor's closing remarks were not improper, there is no deficiency by trial counsel of which to complain. In any event, defendant has failed to demonstrate that trial counsel's failure to object was not conscious trial strategy. See id.

IV. CUMULATIVE ERROR

Finally, defendant invokes the cumulative error doctrine by arguing that even if the trial court's failure to properly appoint an interpreter and the prosecutor's comments are harmless individually, together, they were cumulatively harmful. We disagree. "Under the cumulative error doctrine, we will reverse only if 'the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had.'" State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993) (citation omitted). However, because the prosecutor's closing remarks were not improper, the only viable claim of error defendant asserts was the appointment of a non-qualified interpreter for the witness. Therefore, defendant has not actually listed a cumulation of errors. As a result, defendant's cumulative error argument fails.

Affirmed.
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge

-----

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge

1. In any event, defendant's plain error argument fails. An essential requirement for a finding of plain error is that the error be plain (i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error). See Davis v. Grand County Service Area, 905 P.2d 888, 892 (Utah Ct. App. 1995). An additional requirement is that the error affect the substantial rights of a party (i.e., that the error be harmful). See id. In other words, "[t]he appellant must be able to demonstrate a reasonable likelihood that absent the plain error, the outcome at trial 'would have been more favorable.'" Ellifritz, 835 P.2d at 174 (citation omitted).  Assuming the first of these requirements is met in this case, we conclude that the second prong cannot be met. See State v. Anderson, 929 P.2d 1107, 1109 (Utah 1996) (foregoing analysis of first prong when second prong of plain error test not met). Defendant has not met his burden of demonstrating that the error in this case, if any, affected the outcome of the verdict. He has not shown that absent the error, there was a reasonable likelihood that the outcome at trial would have been more favorable.