State of Utah v. Russell

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Anthony Paul Russell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990390-CA

F I L E D
November 2, 2000 2000 UT App 296 -----

Third District, Salt Lake Department
The Honorable Homer F. Wilkinson

Attorneys:
John D. O'Connell, Holladay, for Appellant
Jan Graham and Christine Soltis, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

BENCH, Judge:

Appellant first contends that he received ineffective assistance of counsel at trial. He argues that his counsel was deficient by failing to interview and call Andrea Barney to testify of prior affectionate contact between the victim and Appellant, and by failing to call an alcohol expert to demonstrate that the victim's testimony concerning the amount of alcohol she consumed was not credible. He further argues that these deficiencies were prejudicial to his defense. We disagree.

Assuming for purposes of this appeal that counsel's performance was deficient, we are not satisfied that it prejudiced Appellant. We agree with the trial court's Rule 23B finding that "in light of the evidence of defendant's guilt, including his taped confession to the police, there is no reasonable probability of a different result at trial even if Ms. Barney and/or an alcohol expert had testified." Appellant simply has not "proffer[ed] sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068 (1984)).

Appellant next contends that the trial court's voir dire was inadequate and its refusal to strike juror number seven, Mr. Klenk, for cause was reversible error. Specifically, he argues that forcing him to use a peremptory challenge to remove Mr. Klenk constitutes prejudice because Appellant would have used the challenge on juror number two, Ms. Lagerberg, who seemed to be a "rather conservative lady." We again disagree.

Our supreme court has "reject[ed] the notion that the loss of a peremptory challenge constitutes a violation of the constitutional right to an impartial jury. So long as the jury that sits is impartial, the fact that the defendant had to use a peremptory challenge to achieve that result does not mean the [Constitution] was violated." State v. Menzies, 889 P.2d 393, 398 (Utah 1994) (citations omitted) (second alteration in original). For Appellant to prevail on this claim, he "must demonstrate prejudice, viz., show that a member of the jury was partial or incompetent." Id.

Appellant does not argue on appeal that any member of the jury that sat was partial or incompetent. In fact, Appellant did not move to strike Ms. Lagerberg for cause, and his only reason for wanting to remove her from the jury was that she seemed to be rather conservative. Simply put, Appellant has not made the required showing of prejudice.

Accordingly, we affirm.
 
 
 

______________________________
Russell W. Bench, Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge
 
 
 

______________________________
Gregory K. Orme, Judge