State of Utah v. McCloy

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Tracey Joe McCloy,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990117-CA

F I L E D
May 4, 2000
  2000 UT App 128 -----

Second District, Ogden Department
The Honorable Roger S. Dutson

Attorneys:
Maurice Richards, Ogden, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Bench, and Orme.

GREENWOOD, Presiding Judge:

Defendant appeals from three controlled substance offense convictions. We have considered the briefs submitted by both defendant, acting pro se, and his counsel, and affirm the convictions.

Defendant and his counsel raise a number of concerns, one of which is whether the affidavit submitted in support of the search warrant met the requirements for probable cause. A magistrate's probable cause determination is not reviewed de novo, but rather, we "'determine whether the issuing magistrate had a substantial basis for concluding that there were enough facts within the affidavit to find that probable cause existed.'" State v. Potter, 860 P.2d 952, 956 (Utah Ct. App. 1993) (quoting State v. Collard, 810 P.2d 884, 885 (Utah Ct. App. 1991)). An affidavit is reviewed "in '"'its entirety and in a common sense fashion,'"' according deference to the magistrate's determination." State v. Jackson, 937 P.2d 545, 547 (Utah Ct. App.), cert. granted, 945 P.2d 1118 (Utah 1997) (citations omitted).

Defendant argues that the affidavit was inadequate because it contained inadmissible and unreliable evidence. However, the trial court explicitly recognized both of these considerations, purged the objectionable evidence, and determined that the affidavit still supported a probable cause determination. Specifically, the trial court found the affidavit referred to several reliable sources, including: a citizen, who received nothing from the Ogden Police in exchange for information, described in detail the nature of the pedestrian and vehicular traffic and told police that many people brought stereos, VCR's, and other property into the house; and a second confidential informant who corroborated the citizen's story, stating defendant was a known source for drugs. The affidavit also discussed the confidential informant's history of furnishing reliable information leading to multiple convictions and at least two successful search warrants. Additionally, the affidavit contained information about two controlled drug buys executed at defendant's house that were electronically and visually monitored. Defendant failed to show how the trial court's reliance on this evidence was improper or could not lead to a probable cause determination.

Further, defendant cites to only one case, State v. Covington, 904 P.2d 209 (Utah Ct. App. 1995), but provides no analysis regarding how this case supports his argument. To the contrary, Covington supports the trial court's probable cause determination. See Covington, 904 P.2d at 211-13 (holding affidavit supported probable cause determination necessary for "all persons" search).

Defendant also argues he was denied effective assistance of counsel at trial. A claim of ineffective assistance of counsel raised for the first time on appeal is reviewed as a matter of law. See State v. Callahan, 866 P.2d 590, 593 (Utah Ct. App. 1993). To succeed in this claim, defendant must "'show that counsel's representation fell below an objective standard of reasonableness[,]'" and "'but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (citation omitted). Defendant offers no citations to the record and identifies no specific witnesses or evidence to demonstrate that the outcome would have been different but for his counsel's allegedly deficient performance. Similarly, the defendant in Callahan argued his counsel was inadequately prepared and failed to investigate the underlying facts of his case. See id. In rejecting this argument, however, this court explained "there is nothing in the record or even in defendant's brief identifying these supposed witnesses, much less the substance of their testimony." Id. In this case, the record does not divulge, nor does defendant identify, the substance of the missing evidence that his counsel purportedly neglected. As a result, defendant has not met his burden and his claim of ineffective assistance of counsel fails.

Finally, defendant's pro se brief raises other issues, but contains no citations to the record and consequently does not demonstrate that the trial court's rulings were not supported by the record. "'"[A] reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research."'" State v. Thomas, 1999 UT 2,¶11, 974 P.2d 269 (citations omitted). Because McCloy's brief wholly fails to cite to the record or otherwise conform with Rule 24 of the Utah Rules of Appellate Procedure, we decline to address these other issues.

Accordingly, we affirm.
 
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge -----

WE CONCUR:
 
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 
 

______________________________
Gregory K. Orme, Judge