State of Utah v. Hughes

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Tarrell McKay Hughes,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971686-CA

F I L E D
October 10, 2002 2002 UT App 336 -----

Fifth District, St. George Department
The Honorable G. Rand Beacham

Attorneys:
Brenda Whiteley, St. George, for Appellant
Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee -----

Before Judges Jackson, Billings, and Thorne.
BILLINGS, Associate Presiding Judge:

Defendant Tarrel McKay Hughes first argues he is entitled to a new trial because the trial judge failed to ascertain the reason for a juror's (the Juror) response to the polling question "[I]s this your verdict?" According to the trial transcript, the Juror responded, "Because there was not clarification of one of my answers, yes, it is--[inaudible] questions, I mean." Because Defendant's trial counsel did not ask the trial judge to inquire further or object to the dismissal of the jury, Defendant must establish plain error to prevail on appeal. See State v. Cram, 2002 UT 37,¶¶9-11, 46 P.3d 230. "'Plain error requires a showing that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [Defendant]."'" State v. Frausto, 2002 UT App 259,¶12, 453 Utah Adv. Rep. 12 (alternation in original) (citations omitted).

"'[W]here a juror when polled gives an uncertain or equivocal answer, it would seem that before discharging the jury . . . , a [trial] judge should first attempt to clear up the uncertainty.'" State v. Heaps, 2000 UT 5,¶16, 999 P.2d 565 (quoting United States v. Hernandez-Garcia, 901 F.2d 875, 878 (10th Cir. 1990)). However, "'where [a] juror indicates merely some degree of reluctance or reservation about the verdict, the proper course of action depends largely upon the discretion of the trial judge.'" Id. (citation omitted). We conclude the Juror's response was not equivocal or conditional, but rather indicates at most "some degree of reluctance" about the verdict. Thus, we conclude the trial judge did not err in not inquiring further.

Defendant next speculates that during deliberations the trial judge gave a coercive Allen instruction(1) to the jury and failed to include the instruction in the record. Generally, when no objection to a jury instruction appears in the record, a defendant is required to establish plain error to prevail on appeal. See State v. Labrum, 881 P.2d 900, 903 (Utah Ct. App. 1994), rev'd on other grounds, 925 P.2d 937 (Utah 1996).

Although Rule 17(m) of the Utah Rules of Criminal Procedure places a duty to make a record of communications with the jury on the trial judge, in the present case, the only evidence Defendant offers(2) that any communications occurred between the judge and the jurors during deliberations is the statement made by the Juror that "there was not clarification of one of my answers, yes, it is--[inaudible] questions, I mean."

The trial transcript shows that before the jury retired to deliberate, the trial judge offered to give "stock" instruction 16, a "log-jam breaking" instruction "in case the jury were to start to get deadlocked." However, Defendant's trial counsel stated he preferred that the judge save the instruction, and the judge did not read the instruction before the jury retired to deliberate. Instruction 16 is not included among the written instructions in the record. After the jury finished deliberating, the trial judge asked counsel if anything needed to be put on the record. Defendant's trial counsel stated, "Nothing that I know of."

On appeal "'[t]he burden of showing error is on the party who seeks to upset the judgment. In the absence of record evidence to the contrary, we assume regularity in the proceedings below, and affirm the judgment.'" State v. Gardea, 712 P.2d 195, 197 (Utah 1985) (citations omitted). We conclude Defendant has failed to meet his burden to show that the trial judge communicated with the jury during deliberations or gave a supplemental jury instruction. See State v. Neeley, 26 Utah 2d 334, 489 P.2d 433, 434 (Utah 1971).

Defendant maintains it is impossible to reconstruct the substance of the trial judge's Allen instruction in the present case due to passage of time. However, the transcript shows that instruction 16 was a "stock" instruction. Moreover, Defendant has not shown that he has attempted to reconstruct the record to show whether the trial judge gave a supplemental instruction, regardless of its substance. Thus, we conclude Defendant has failed to establish that he could not satisfactorily reconstruct the record.

Defendant next argues the trial judge violated his right to due process and to an appeal by failing to make a record of all bench conferences. Because Defendant's counsel did not object at trial, Defendant must establish plain error to prevail on appeal. See State v. Boyd, 2001 UT 30,¶21, 25 P.3d 985.

"While the [trial] court shares responsibility to insure that an adequate record is made, at the same time '[t]he burden is on the parties to make certain that the record they compile will adequately preserve their arguments for review in the event of an appeal.'" Birch v. Birch, 771 P.2d 1114, 1116 (Utah Ct. App. 1989) (second alteration in original) (citation omitted); see also State v. Worthen, 765 P.2d 839, 845 (Utah 1988). The record shows that at the end of the State's case and again following deliberations before the jury returned with a verdict, the trial judge gave counsel the opportunity to make a record, but counsel declined to do so. Therefore, we conclude Defendant has not established that the trial judge erred.

Finally, Defendant argues his trial counsel was ineffective in failing to make a record of any questions asked by the jurors during deliberations and of all bench conferences; "to object to, or adequately answer, questions submitted by the jury;" and to move for a new trial based on the Juror's comments during polling. To establish his trial counsel was ineffective, Defendant must show that his counsel's representation "was deficient, in that it fell below an objective standard of reasonable professional judgment," and "that counsel's deficient performance was prejudicial." State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92. In support of his claim that his trial counsel's representation was deficient, Defendant offers only his trial counsel's affidavit submitted in support of his motion for remand under rule 23(b). This affidavit was stricken by another panel of this court. Thus, Defendant has failed to meet the first element of his ineffective assistance claims.

Based upon the foregoing, we affirm Defendant's convictions.
 
 

______________________________
Judith M. Billings,
Associate Presiding Judge -----

WE CONCUR:
 
 

______________________________
Norman H. Jackson,
Presiding Judge
 
 

______________________________
William A. Thorne Jr., Judge

1. An Allen instruction is a supplemental instruction given to a jury having difficulty in arriving at a unanimous verdict. See State v. Brown, 853 P.2d 851, 861 (Utah 1992). Utah appellate courts have recognized that such instructions are potentially coercive depending on their content. See id.

2. Defendant also relies upon his trial counsel's affidavit, which indicates the jury sent a question or questions to the trial judge during deliberations. The affidavit was submitted in support of Defendant's motion for remand under Rule 23(b) of the Utah Rules of Appellate Procedure. Defendant's rule 23(b) motion was denied by a panel of this court. Subsequently, the State made a motion to strike the affidavit from Defendant's appellate brief. Another panel of this court, relying upon State v. Bredehoft, 966 P.2d 285 (Utah Ct. App. 1998), granted the State's motion to strike. The order granting the motion to strike is law of the case; thus, we do not consider the affidavit on appeal.