State v. Hunter

State v. Hunter

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Kenneth Paul Hunter,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030126-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 345

 

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Third District, Salt Lake Department

The Honorable Robin W. Reese

Attorneys: Margaret P. Lindsay and Patrick V. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Greenwood.

BENCH, Associate Presiding Judge:

    Kenneth Paul Hunter appeals his convictions of murder and aggravated kidnapping. He asserts that testimony of his membership in the Silent Aryan Warriors gang, as well as testimony of the nature of the gang, should not have been admitted pursuant to rule 404(b) of the Utah Rules of Evidence.

    "'To preserve a substantive issue for appeal, a party must first raise the issue before the trial court.'" State v. Schultz, 2002 UT App 366,¶19, 58 P.3d 879 (quoting Hart v. Salt Lake County Comm'n, 945 P.2d 125, 129 (Utah Ct. App. 1997)). While Hunter objected to some of the testimony regarding the structure and hierarchy of the gang, he and his codefendant relied upon gang membership as a matter of trial strategy.

    The strategy of codefendant Grueber was to introduce the structure and initiation requirements of the gang. Grueber relied on this information to show that he had no motive to commit the crime. Hunter did not file a motion to sever. Further, Hunter failed to object to Grueber's initial discussion of the gang, and even conceded in his own opening statement that he was a member of the gang. Hunter does not contend that trial counsel was ineffective.

    It was reasonable trial strategy for Hunter to have remained a codefendant in order to divert attention from himself and to appear to the jury as a much less culpable participant in the crime. Therefore, "the tactical decision not to object, thereby foregoing a ruling or instruction that may cure an error, constitutes a knowing waiver, and we will decline to consider the claim of plain error in such instances." State v. Winward, 941 P.2d 627, 633 (Utah Ct. App. 1997). To rely on such a strategy opened the door to the evidence of gang membership, thus affirmatively waiving the right to appeal on such grounds and allowing the State to use such evidence in subsequent stages of the trial.

    Because Hunter's strategy at trial was to compare his own culpability to that of Grueber, he affirmatively waived his challenge to the evidence under rule 404(b). It is therefore unnecessary for this court to decide whether this evidence qualifies as rule 404(b) noncharacter evidence.

    Accordingly, we affirm Hunter's convictions.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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Pamela T. Greenwood, Judge