State of Utah v. Villalobos

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State of Utah,
Plaintiff and Appellee,

v.

Marco Villalobos,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981794-CA

F I L E D
December 14, 2000 2000 UT App 354 -----

Fourth District, Provo Department
The Honorable Lynn W. Davis
The Honorable Steven L. Hansen(1)

Attorneys:
Nelson Abbott, Provo, for Appellant
Jan Graham and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Thorne.

DAVIS, Judge:

Villalobos first asserts that the trial court erred when it stated that: (1) Villalobos appeared to be Hispanic; (2) the case was not about a "widow's peak"; and (3) the witness had already testified that she believed that Villalobos has dark skin. Villalobos did not object to these comments during trial; therefore, Villalobos must show that the trial court's comments amounted to plain error. See State v. Parker, 2000 UT 51,¶6, 4 P.3d 778. To establish the existence of "plain error" and obtain relief from an alleged error that was not properly objected to, [defendant] must show the following: "(i) an 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]." Id. at ¶7 (quoting State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993)).

Here, viewed in context, it is clear that the trial court's comments were not in error. The trial court's comment regarding Villalobos's Hispanic background was made during voir dire, and it was clearly an attempt to determine whether members of the jury pool had any biases that would interfere with a fair trial. See State v. Ball, 685 P.2d 1055, 1058 (Utah 1984) (holding that voir dire is intended as a tool to determine whether juror biases and prejudices will interfere with a fair trial). Likewise, the court's other comments were not improper because they were a part of the court's explanations of its rulings on objections. SeeState v. Alonzo-Nolasco, 973 P.2d 975, 980 (Utah 1998) (finding trial court's comments, in context, did not rise to level of reversible error because trial judge's comments were merely explanatory in nature).

Even if we assume that the trial judge's comments amounted to obvious error, Villalobos has not shown that he suffered any prejudice, nor has he shown that absent the alleged error there is a reasonable likelihood of a more favorable outcome. Specifically, the Utah Rules of Criminal Procedure state that the trial court "shall not comment on the evidence in the case, and if the court refers to any of the evidence, it shall instruct the jury that they are the exclusive judges of all questions of fact." Utah R. Crim. P. 19(d). Here, consistent with Rule 19(d), the trial court's instructions to the jury included an admonition that the jury not be influenced by any statement which they may have interpreted as indicating the trial court's views on the evidence. See Parker, 2000 UT 51 at ¶8 ("[A]ny improper impressions created by the trial judge's comments were remedied by the jury instructions . . . ."). Therefore, any improper impressions the trial judge's comments may have created were cured by the jury instructions, and there was no prejudice to Villalobos.

Villalobos next asserts that he was denied effective assistance of counsel. "To bring a successful ineffective assistance of counsel claim, 'a defendant must show that trial counsel's performance was deficient in that it "fell below an objective standard of reasonableness," and that the deficient performance prejudiced the outcome of the trial.'" State v. Gallegos, 967 P.2d 973, 976 (Utah Ct. App. 1998) (quoting State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984))). This court may reject an ineffective assistance claim if the defendant fails to meet either prong of the Strickland test; however, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697; see also State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) ("Unless [defendant] has demonstrated that he was prejudiced by his trial counsel's performance, we need not decide whether that performance was deficient."). "To show prejudice under the second component of the test, a defendant must proffer sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (quoting Strickland, 466 U.S. at 694).

Here, Villalobos argues that his trial counsel was ineffective because: (1) trial counsel failed to show a willingness to identify himself with his client's interests; (2) trial counsel failed to prepare for trial; and (3) trial counsel did not have a sufficient understanding of the Utah Rules of Evidence. We disagree with Villalobos's assertion that he was denied effective assistance of counsel. Even if we were to find that the performance of Villalobos's trial counsel was deficient, Villalobos has not demonstrated that he was prejudiced by his counsel's performance.

Villalobos argues that he was prejudiced by his counsel's alleged failure to identify with his client's interests because, during his opening statement, his counsel stated that he would rather be teaching Spanish. However, when viewed in context,(2) it is clear that counsel was merely describing his own interests in an attempt to personalize himself to the jury. Villalobos also complains about two other comments that his trial counsel made during his opening statement. However, we are not convinced that these comments impugned defendant's character because it is clear that the statements were harmless descriptions of the defendant's rights and the jury's obligation. Therefore, Villalobos has failed to demonstrate how counsel's comments may have created "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. (citation omitted). Likewise, Villalobos has failed to demonstrate that he was prejudiced by his trial counsel's alleged failure to prepare for trial. Villalobos contends that, had his counsel adequately prepared for trial, counsel would have been able to impeach the identification testimony of one of the victims. However, even had trial counsel been able to impeach the witness's identification of Villalobos, the State presented two other witnesses, including an accomplice, who positively identified Villalobos as one of the perpetrators. Therefore, Villalobos has not demonstrated that a more thorough interview or a better understanding of the facts would have created a reasonable probability that the outcome of the proceeding would have been different. See id. Finally, Villalobos argues that he was denied effective assistance of counsel because his trial counsel did not have adequate trial experience or a sufficient understanding of the Utah Rules of Evidence. While the record indicates that Villalobos's counsel had difficulty introducing some testimony, the record also indicates that the desired testimony was eventually elicited by either Villalobos's counsel or by co-defendant's counsel. Furthermore, although Villalobos's counsel was unsuccessful in one of his attempts to impeach a witness's identification testimony, he was later able to impeach that witness without objection. Therefore, Villalobos was not prejudiced by his counsel's alleged lack of experience or his alleged insufficient understanding of the rules of evidence.

Finally, although it would not affect his sentence, Villalobos argues that the trial court erred when it failed to consider his objection to misinformation in the presentence investigation report. Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten working days the inaccuracies cannot be resolved, the court shall make a determination of relevance and accuracy on the record. Utah Code Ann. § 77-18-1(6)(a) (2000). The Utah Supreme Court has stated that "section 77-18-1(6)(a) requires the sentencing judge to consider the party's objections to the report, make findings on the record as to whether the information objected to is accurate, and determine on the record whether that information is relevant to the issue of sentencing." State v. Jaeger, 1999 UT 1,¶44, 973 P.2d 404. Here, Villalobos objected to information in the presentence investigation report indicating that he used a weapon in the commission of the robbery. However, the trial court did not make any findings regarding Villalobos's objection. Therefore, we conclude that the trial court erred by failing to properly resolve [defendants's] objections to the presentence investigation report. However, because [defendant] does not contend that such error affected his sentence, this error does not require reversal. Rather, the proper remedy is to remand this case to the trial court with instructions that it expressly resolve [defendant's] objections in full compliance with section 77-18-1(6)(a). Id. at ¶45 (footnote omitted).

We affirm Villalobos's conviction and sentence but remand the case to the trial court for the limited purpose of resolving defendant's objection to the alleged misinformation contained in the presentence investigation report.
 
 

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

WE CONCUR:
 
 

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Russell W. Bench, Judge
 
 

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William A. Thorne, Jr., Judge

1. As a result of the Wasatch County rotation policy of the Fourth District Court, Judge Davis presided over the jury trial, and Judge Hansen imposed sentence.

2. Counsel made this statement while introducing himself to the jury.