State of Utah v. Wells

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

James Michael Wells,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990635-CA

F I L E D
October 12, 2001 2001 UT App 295 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
Julie George, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee -----

Before Judges Davis, Orme, and Thorne.

DAVIS, Judge:

Wells appeals his conviction of aggravated kidnaping, a first degree felony under Utah Code Ann. § 76-5-302(1)(b)(iii) (1999).(1) Wells was represented by counsel at trial, and he is represented by new counsel on appeal. His appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct. 1396 (1967), on April 11, 2000, in which she stated that she had reviewed the record, addressed issues that Wells had raised, and concluded that there were no nonfrivolous issues that could be raised. Wells's counsel also filed a motion to withdraw on that same date. Thereafter, Wells filed a pro se brief replying to the Anders brief, raising additional issues. The State responded by filing a motion seeking to have this court order Wells's counsel to file a supplemental brief responding to Wells's reply brief. In a published per curiam opinion, we reviewed the relevant case law, concluded that Wells's appellate counsel should have given Wells an opportunity to review and respond to the Anders brief before filing it, and ordered that Wells's counsel either file a supplemental brief addressing the additional issues raised by Wells or file a regular appellant's brief. See State v. Wells, 2000 UT App 304,¶¶9-10, 13 P.3d 1056. Wells's counsel filed a supplemental brief addressing Wells's additional claims of error, and the State filed a reply brief.

After a thorough and independent review of the record and due consideration of all the issues raised by Wells's various filings, we conclude that there are no nonfrivolous issues, and we thus dismiss Wells's appeal and grant the motion to withdraw filed by his appellate counsel. See Anders, 386 U.S. at 744, 87 S. Ct at 1400; State v. Clayton, 639 P.2d 168, 170 (Utah 1981). We set forth the various arguments raised by Wells, and our analysis, below.

In the original Anders brief filed by Wells's appellate counsel, Wells challenges the sufficiency of the evidence. This claim is clearly without merit. Section 76-5-302 states that one is guilty of aggravated kidnaping if one detains another with the intent to terrorize the victim. See Utah Code Ann. § 76-5-302(1)(b)(iii). The State's theory of the case was that Wells sought to control the victim by terrorizing her. Based on the testimony of the victim and the police officers who responded to the scene, there was ample evidence to support the jury verdict. See State v. Silva, 2000 UT App 292,¶13, 13 P.3d 604.

Wells also raised an ineffective assistance of counsel claim in the Anders brief, based on the fact that trial counsel did not move for a change of venue, did not pursue alleged discrepancies between testimony given by various witnesses at the preliminary hearing and at trial, and did not raise the defense of voluntary intoxication. This ineffectiveness of counsel claim is likewise without merit. Counsel is not required to make motions which would be futile. See State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52. A motion for a change of venue, based on allegedly prejudicial pretrial publicity, would have been without merit and would have been futile. See State v. Cayer, 814 P.2d 604, 610 (Utah Ct. App. 1991). After a careful review of the record, we conclude that the minor discrepancies between the testimony of the witnesses at the preliminary hearing and at trial are so inconsequential that there was no prejudicial error in not drawing attention to them. We conclude that choosing not to try to impeach the witnesses with these minor discrepancies was a reasonable tactical decision within the discretion of trial counsel. See State v. Simmons, 2000 UT App 190,¶15, 5 P.3d 1228. We likewise reject Wells's argument that counsel was ineffective for failing to present a voluntary intoxication defense because his own testimony and theory of the case indicated that he was aware of what he was doing and such a defense would have been futile. See State v. Chacon, 962 P.2d 48, 51 (Utah 1998).

Wells, in his pro se brief, argues that remarks by the prosecutor in his closing were improper and prejudicial and that the Tooele County Attorney's Office should have been disqualified due to an alleged relationship between the victim and a prosecutor from that office.(2) The supplemental brief filed by Wells's appellate counsel elaborated on the allegedly improper remarks of the prosecutor, the prosecutorial conflict of interest, and argued that failing to object to the prosecutor's remarks or move to disqualify the prosecutors' office were further instances of ineffective assistance of counsel.

In his closing, Wells argued that the evidence supported his claim that all he intended was to detain the victim and not to terrorize her. He conceded that he might be guilty of kidnaping but disputed that his actions supported a conviction of aggravated kidnaping. Wells argued that wrapping the victim's head and face with duct tape was an effort to control the victim, and the prosecutor argued in response that even if control was Wells's objective, he had used terror as a means to that end. We conclude that the prosecutor's remarks were entirely appropriate in the context of the evidence of this case. See State v. Tuckett, 2000 UT App 295,¶14, 13 P.3d 1060. Therefore, it was not ineffective assistance for counsel not to have objected to the remarks.

Wells claims that the victim is the ex-wife of a brother of one of the prosecutors in the Tooele County prosecutors' office, and that, even though it was another prosecutor who conducted the case for the State, this presented a conflict of interest that should have disqualified the entire office. He claims that it was plain error for the court not to have done so sua sponte. As the State points out in its brief, Wells does not cite to the record to support this claim. There is nothing in the record that demonstrates the existence of this relationship. On this record, we cannot say that this was an error that should have been obvious to the trial court. See State v. Litherland, 2000 UT 76,¶31, 12 P.3d 92 (plain error requires a showing that "an error occurred that should have been obvious to the trial court").

Wells next argues that the failure of trial counsel to move for the disqualification of the prosecutors' office was a further instance of ineffective assistance of counsel. Again, because the record is devoid of support for this argument, we presume counsel performed effectively. See id. at ¶17.

Wells, through counsel in his supplemental brief, also hints at a possible conflict of interest between his trial counsel and the prosecutor because they are supposedly friends. Wells states that he may file a motion pursuant to Rule 23B of the Utah Rules of Appellate Procedure to develop the record in support of this argument. The time for filing such a motion, however, is now past, and we reject this argument for the reasons set forth above.

We therefore dismiss the appeal, affirm Wells's convictions, and grant the motion to withdraw.
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 

______________________________
Gregory K. Orme, Judge
 
 
 

______________________________
William A. Thorne, Jr., Judge

1. Wells was also convicted of misdemeanor interruption of a communication device under Utah Code Ann. § 76-6-108 (1999), but does not challenge this conviction on appeal. Wells was acquitted of attempted murder.

2. Wells also challenged the sentence he received. However, during the pendency of this appeal, this issue was resolved in Wells's favor by the trial court.