State of Utah v. Dittmer

MEMORANDUM DECISION
(Not For Official Publication)

State of Utah,
Plaintiff and Appellee,

v.

Michael Rene Dittmer,
Defendant and Appellant.

Case No. 981169-CA

F I L E D
(October 29, 1998)

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Second District, Ogden Department
The Honorable Parley R. Baldwin

Attorneys:
Maurice Richards and Randine Salerno, Ogden, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Billings, and Greenwood.

PER CURIAM:

There is inadequate support in the record for us to fully consider several of Dittmer's claims. See State v. Garrett, 849 P.2d 578, 580 (Utah Ct. App.), cert. denied, 860 P.2d 943 (Utah 1993) (stating that we can only entertain an ineffective assistance of counsel claim on direct appeal "if the record is adequate to permit a decision"); State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991) (concluding that when a defendant raises an ineffective assistance claim for the first time on appeal, the claim will be reviewed only if "the trial record is adequate to permit decision of the issue"). For instance, there is insufficient evidence to support Dittmer's assertion that counsel should have investigated past storage unit break-ins. The record reveals that counsel was aware that other storage units had been broken into in recent weeks and that he asked witnesses about this, but there is no evidence in the record to support Dittmer's assertion that his counsel failed to investigate the break-ins. Accordingly, we cannot consider the claim further.

Similarly, the record does not support Dittmer's assertion that other witnesses should have been called. Only Dittmer testified on his own behalf, but since the record is silent concerning other unidentified witnesses, we have insufficient information upon which to consider whether other witnesses should have been called. See Wulffenstein, 657 P.2d at 293 (stating that "[w]hen a defendant predicates error to [an appellate court], he has the duty and responsibility of supporting such allegation by an adequate record"); State v. Miller, 718 P.2d 403, 405 (Utah 1986) (stating that if "an appellant fails to provide an adequate record on appeal [the appellate court] must assume the regularity of the proceedings below").

Likewise, Dittmer cannot support his theory that counsel should have objected to the admission of the State's photographs. Based upon the record, it is apparent that the photographer did not testify about the photographs, but the record does reveal that other witnesses testified that the State's photos were accurate depictions of their missing property. Moreover, Dittmer's counsel objected to the introduction of a photo that depicted an item for which Dittmer was not charged with stealing. Since Dittmer did not have the photos included in the record on appeal, we cannot determine whether there was any other basis for counsel to object to the photos. See Fernandez v. Cook, 870 P.2d 870, 877 (Utah 1993) (stating "that proof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality").

As for those claims for which there is an adequate record, Dittmer, must demonstrate "(1) that counsel's performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel's deficient performance there is a reasonable probability that the outcome of the trial would have been different" to succeed on his claim of ineffective assistance of counsel. State v. Smith, 909 P.2d 236 (Utah 1995) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674 (1984)).

Dittmer has not shown that trial counsel's performance fell below an objective standard of reasonableness. It is true that counsel did not file pre-trial motions to suppress regarding Dittmer's pre-Miranda silence or his in-custody statements, but Dittmer has not shown that this was unreasonable. Rather than file a motion, counsel objected to the admission of these statements at trial and even moved for a mistrial. Counsel conducted voir dire of witness Solomon LeDoux. LeDoux testified about his own personal experience having his storage shed locked by the storage unit owner for past due payments and did not profess to speak on behalf of the owner. Thus, there was no basis to object to this testimony.

Contrary to his assertions, counsel defended Dittmer at trial, including cross-examining all witnesses and making objections throughout the proceedings. Counsel allowed Dittmer to testify at his request and asked him a series of questions in support of the theory that Dittmer took items he believed to be abandoned.

Contrary to Dittmer's claims, counsel did object to questions by the prosecutor concerning subjects not covered during direct examination. Dittmer's counsel objected to the prosecutor's questions concerning the "hype kit" and marijuana as being irrelevant and prejudicial. By choosing to testify, Dittmer subjected himself to cross examination to which he now objects. Finally, there is no basis for Dittmer's argument that there was no reasonable suspicion to stop him. The police were summoned to the storage units at the request of witness Solomon LeDoux who had seen two suspicious men loading up a truck near the storage units. Based upon this information and their own observations, the officers had reasonable suspicion to stop Dittmer. Moreover, the uncontroverted evidence shows that Dittmer gave the police permission to search his truck.

Even if we were to assume that trial counsel's performance was deficient, Dittmer's arguments fail because there is no reasonable probability that the outcome of the trial would have been different. There is compelling evidence of Dittmer's guilt. Two of the victims testified that their property, which had been in locked storage units, was strapped to or inside Dittmer's truck.

Similarly, we cannot say that there was prosecutorial misconduct. An appellate court will reverse on the basis of prosecutorial misconduct only if the defendant has shown that: the actions or remarks of [prosecuting] counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result. . . .

In determining 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 on whether the prosecutor's conduct merits a mistrial will not be overturned absent an abuse of discretion.

State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992) (citations omitted). Looking to the totality of the evidence at trial, we cannot say that the prosecutor engaged in misconduct. Moreover, Dittmer's counsel objected whenever he felt the prosecutor's comments were inappropriate and thereby limited any alleged misconduct.

Accordingly, we reject Dittmer's claims of ineffective assistance of counsel and prosecutorial misconduct. His conviction is affirmed.
 

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Russell W. Bench, Judge
 

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Judith M. Billings, Judge
 

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Pamela T. Greenwood, Judge