State of Utah v. Smith

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Warren Smith,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000036-CA

F I L E D
March 8, 2001 2001 UT App 70 -----

Second District, Ogden Department
The Honorable W. Brent West

Attorneys:
Maurice Richards, Ogden, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

-----

Before Judges Jackson, Bench, and Billings.

JACKSON, Associate Presiding Judge:

Smith first challenges the sufficiency of the evidence supporting his conviction for manslaughter, in violation of Utah Code Ann. § 76-5-205 (1995). "It is well established that a defendant's burden on appeal when challenging the sufficiency of the evidence after a jury trial is to marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict." State v. Rudolph, 2000 UT App 155,¶18, 3 P.3d 192 (internal quotations and citations omitted). Smith has failed to marshal the evidence, merely presenting the evidence contrary to the verdict. "When a party fails to marshal the evidence supporting a challenged fact finding, we reject the challenge as nothing more than an attempt to reargue the case before [the appellate] court." Campbell v. Box Elder County, 962 P.2d 806, 808 (Ct. App. 1998) (alteration in original) (internal quotations and citations omitted). Thus, we affirm the verdict.

Even had Smith satisfied the marshaling requirement, his sufficiency of the evidence challenge still fails. "When examining the sufficiency of the evidence in a criminal jury trial . . . [w]ith regard to the facts, 'we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury.' Under this standard, we will reverse a conviction only when the evidence . . . 'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted.'" State v. Widdison, 2000 UT App 185,¶16, 4 P.3d 100 (alteration in original) (quoting State v. Fisher, 972 P.2d 90, 97 (Utah Ct. App. 1998)). Smith contends that there must be reasonable doubt as to whether it was the first shot that killed the victim, but he ignores evidence to the contrary.(1) Similarly, Smith ignores the evidence, including his own testimony at trial, that the second shot missed Jones. With this evidence before us, viewed in the light most favorable to the verdict, we cannot say that "reasonable minds must have entertained a reasonable doubt." Id. (Emphasis added.)

Smith next challenges the jury's finding that the shooting was not justified under Utah Code Ann. § 76-2-402 (1995). However, Smith fails to marshal the evidence supporting the jury's finding that the shooting was not justified; accordingly, we rely upon the jury's findings. Also, the standard of review for insufficiency of the evidence "applies to arguments of insufficiency of evidence raised in [the] defense of self-defense." State v. Kirgan, 712 P.2d 240, 241 (Utah 1985). Under this standard, we cannot say that reasonable minds must have harbored a reasonable doubt that the shooting was unjustified, particularly in light of the evidence to the contrary.(2) Thus, we affirm the jury's finding that the shooting was not justified.

Third, Smith alleges prosecutorial misconduct. In ascertaining whether a given statement constitutes prosecutorial misconduct, the statement must be viewed in light of the totality of the evidence presented at trial. Further, because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings . . . will not be overturned absent an abuse of discretion. State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992). Here, Smith failed to object to the prosecutor's statement at trial, but Smith makes no argument that a plain error occurred. See State v. Adams, 2000 UT 42,¶9, 5 P.3d 642. "Ordinarily, the failure to raise an issue before the trial court precludes its consideration on appeal, absent a claim of exceptional circumstances or plain error." State v. Jennings, 875 P.2d 566, 570 (Utah Ct. App. 1994). Smith does not assert exceptional circumstances or plain error. "We therefore decline to consider this issue for the first time on appeal." Id.

Fourth, Smith argues his trial counsel was ineffective for failing to object to statements the prosecutor made during his closing arguments. Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law. However, "appellate review of counsel's performance must be highly deferential; otherwise the 'distorting effects of hindsight' would produce too great a temptation for courts to second-guess trial counsel's performance on the basis of an inanimate record." State v. Bryant, 965 P.2d 539, 542 (Utah Ct. App. 1998) (internal citations omitted).

"To prevail on a claim of ineffective assistance of counsel, [Smith] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [Smith]." State v. Mecham, 2000 UT App 247,¶21, 9 P.3d 777 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 693, 104 S. Ct. 2052, 2064, 2066-67 (1984)).

Smith asserts that his trial counsel was objectively deficient since he failed to object when the prosecutor argued during closing arguments that it was the first shot that killed Jones because "[t]he statements of the prosecutor were not supported by any evidence presented to the jury during the trial." We disagree. The prosecutor's statements were supported by evidence presented at trial, thus making any objection to those statements futile, and "[t]he failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52 (internal quotations and citations omitted). Since Smith cannot show that he satisfied the first part of the Strickland test, we need not consider the second. See State v. Marvin, 964 P.2d 313, 315 (Utah 1998). Accordingly, we reject Smith's ineffective assistance of counsel claim.

Finally, Smith argues that a mistrial should have been granted because at least one member of the jury saw at least one family member of the victim wearing a sympathy ribbon in memory of the victim. The trial court denied Smith's motion for mistrial, concluding that the incident was not "enough to grant a mistrial." This court "will not reverse a trial court's denial of a motion for mistrial absent an abuse of discretion." If the trial court determines that the incident probably did not prejudice the jury, the court should deny the motion. "Unless a review of the record shows that the court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court's decision was an abuse of discretion." Widdison, 2000 UT App 185 at ¶57 (internal citations omitted). The trial court determined that the incident in question was not enough to influence the jury, and Smith failed to show how the trial court abused its discretion in making that determination. Instead, he only restates that the incident occurred. Accordingly, Smith has not met his burden of showing abuse of discretion, and we reject this argument.

Affirmed.
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 
 

______________________________
Judith M. Billings, Judge

1. Smith ignores testimony that Smith told Officer Lucas that he was only two to three feet away when he fired the gun, that the position of Jones's body at the time of the first shot was consistent with the bullet's course through Jones's body, and that the shot was fired while Jones was jumping over Foster's lap toward Smith.

2. Smith ignores his own testimony that Jones and Jones's friends used only their fists and that Jones hit Foster four or less times before Smith fired his weapon. Smith also ignores testimony that Foster seemed to be capable of defending himself, at least to a degree.