State v. Valdez

>State v. Valdez

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Anthony James Valdez,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030163-CA
 

F I L E D
(June 10, 2004)
 

2004 UT App 200

 

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Third District, Salt Lake Department

The Honorable Sheila K. McCleve

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

Mark L. Shurtleff and Matthew D. Bates, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

THORNE, Judge:

Anthony James Valdez appeals his convictions for receiving or transferring a stolen motor vehicle, a second degree felony, in violation of Utah Code Annotated section 41-1a-1316(2) (1998), and failure to respond to an officer's signal to stop, a third degree felony, in violation of Utah Code Annotated section 41-6-13.5 (Supp. 1999). We affirm.

Valdez raises two allegations of ineffective assistance of counsel. Specifically, Valdez alleges that his trial counsel was ineffective when he referred to Valdez and a companion as "fleeing felons" in his closing argument, and by failing to object to a jury instruction on flight.(1) "To establish an ineffective assistance of counsel claim, 'a defendant first must demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgement.'" State v. Bluff, 2002 UT 66,¶29, 52 P.3d 1210 (quoting State v. Litherland, 2000 UT 76,¶19, 12 P.3d 92), cert. denied, 537 U.S. 1172, 123 S. Ct. 999 (2003). "Second, the defendant must show that counsel's deficient performance was prejudicial--i.e., that it affected the outcome of the case." Id. (quotations and citation omitted); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984).

The State argues that the actions of Valdez's counsel reflect a legitimate trial strategy rather than ineffective assistance. We agree. "'[A]ppellate 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) (quoting State v. Tennyson, 850 P.2d 461, 466 (Utah Ct. App. 1993)) (other citation omitted). "Furthermore, we will not 'second-guess trial counsel's legitimate strategic choices, however flawed those choices might appear in retrospect.'" State v. Bradley, 2002 UT App 348,¶58, 57 P.3d 1139 (quoting State v. Strain, 885 P.2d 810, 814 (Utah Ct. App. 1994)). A defendant must therefore overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance" and "that under the circumstances, the challenged action might be considered sound trial strategy." State v. Diaz, 2002 UT App 288,¶39, 55 P.3d 1134 (quotations and citation omitted), cert. denied, 63 P.3d 104 (Utah 2003); see also Strickland, 466 U.S. at 689-91, 104 S. Ct. at 2065-66.

Under the circumstances of this case, we have no difficulty rejecting both of Valdez's challenges to his counsel's performance. Counsel's statement that "[the arresting officer] was chasing fleeing felons and everything happened very quickly" was clearly a characterization of the officer's state of mind, offered to suggest that in the excitement, distraction, and danger of the chase the officer had confused Valdez with the other occupant of the car. Similarly, the flight instruction contained language favorable to Valdez, and counsel, in his closing argument, specifically referenced the flight instruction as he offered his own interpretation of the reasons for, and significance of, Valdez's flight.(2) These actions represent legitimate trial strategy and tactics, and cannot be deemed ineffective assistance of counsel.

We determine that Valdez has not established ineffective assistance of counsel. Rather, he has identified trial tactics that, while ultimately unsuccessful, were well within counsel's latitude in defending Valdez against the crimes charged.

Accordingly, we affirm Valdez's convictions.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Judith M. Billings, Judge

Presiding Judge

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Russell W. Bench,

Associate Presiding Judge

1. The challenged instruction states in its entirety:

The flight or attempted flight of a person immediately after the commission of a crime or after that person is accused of a crime that has been committed, is not sufficient in itself to establish the defendant's guilt. However, such flight, if proved, may be considered by you in light of all other proven facts in the case in determining guilt or innocence.

Although consciousness of guilt may be inferred from flight, it does not necessarily reflect actual guilt of the crime charged, and there may be reasons for flight fully consistent with innocence. Therefore, whether or not evidence of flight shows a consciousness of guilt and the significance, if any, to be attached to any such evidence are matters exclusively within the province of the jury.

2. Even if counsel's failure to object to the flight instruction could not be deemed trial strategy, we see no error in the instruction or the failure to object thereto. The challenged instruction is identical to one approved in State v. Riggs, 1999 UT App 271,¶¶9-14, 987 P.2d 1281. We are not persuaded by Valdez's argument that the flight instruction was improper as to the failure to stop charge. There was evidence that Valdez did commit the crime of failing to stop at the direction of a police officer, and further evidence that he fled on foot after that crime had been completed. The jury was entitled to weigh the significance of that further flight pursuant to the challenged instruction.