State of Utah v. Whiteman

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Michael Whiteman,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990520-CA

F I L E D
October 13, 2000 2000 UT App 283 -----

Third District, Salt Lake Department
The Honorable William A. Thorne, Jr.

Attorneys:
Clark R. Nielsen, Salt Lake City, for Appellant
Jan Graham and Scott Keith Wilson, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Orme.

BILLINGS, Judge:

Defendant appeals his murder conviction. We affirm.

Defendant first argues the trial court erred in failing to grant a new trial based on newly discovered evidence. "[W]e review the decision to grant or deny a motion for a new trial only for abuse of discretion." State v. Loose, 2000 UT 11,¶8, 994 P.2d 1237. To be afforded a new trial based on newly discovered evidence, defendant "must demonstrate from the proffered evidence that: '(i) it could not, with reasonable diligence, have been discovered and produced at trial; (ii) it is not merely cumulative; and (iii) it must make a different result probable on retrial.'" Id. at ¶16 (quoting State v. Martin, 1999 UT 72,¶5, 984 P.2d 975).

First, defendant claims to have discovered new evidence of the victim's gang membership. The trial court determined that even had the tattoos allegedly identifying the victim as a gang member been discovered and disclosed prior to trial, the jury's verdict would not have been different. We agree. The defendant himself testified regarding the violent, well-organized groups of Hispanic drug dealers who controlled the drug trade in the park. Other witnesses testified that the drug dealers worked in groups and carried weapons, and that they engaged in violence to protect their territory. Further, there is no evidence that the defendant was aware of either the tattoos or the particular gang affiliation they represented at the time of the homicide and thus this evidence was not particularly probative of his state of mind. We therefore agree with the trial court that evidence of the tattoos would not have made a different result probable.

Defendant also claims to have uncovered additional eyewitness testimony. The trial court found Julian Valdez's testimony cumulative, lacking in credibility, and to be of little material value to defendant because much of it supported the State's case. The court found the alleged statements of Gilmar Pinelo to be inadmissible hearsay. While Valdez did testify regarding the victim's violence, that evidence is merely cumulative of other evidence presented at trial. See Loose, 2000 UT 11 at ¶16. Thus, it was not an abuse of discretion to refuse to grant a new trial based on the proffered testimony of Valdez and Pinelo.

Defendant also claims new evidence exists that the State waived payment of an additional $300 fine resulting from a DUI charge against witness Robert Young in exchange for Young's testimony. We agree with the trial court that the presentation of Young's failure to pay the fine would not have made a different result probable on retrial.

Next, defendant argues the trial court erred in not instructing the jury on the lesser-included offense of manslaughter. Although defendant claims he submitted a requested instruction on manslaughter, our review of the record has uncovered no such request. The trial court found that defendant would have been entitled to the instruction if he had requested it, but he did not. Moreover, the trial court found, and our review of the record confirms, that his attorneys made no objection to the instructions as given. "Where no grounds are apparent from the text of the instruction and no objection is stated, the objection is presumed waived." State v. Perdue, 813 P.2d 1201, 1203 (Utah Ct. App. 1991). However, "error may be assigned to instructions in order to avoid a manifest injustice." Utah R. Crim. P. 19(c); see State v. Blubaugh, 904 P.2d 688, 700 (Utah Ct. App. 1995) (stating that "[b]ecause defendant failed to object to the instruction at trial, we can reach the issue only to avoid manifest injustice"); cf. State v. Rudolph, 970 P.2d 1221, 1226 (Utah 1998) (stating that "[w]hen reviewing a claim of manifest injustice, we generally use the same standard that is applied to determine whether plain error exists").

In this case the record indicates that defendant considered requesting a manslaughter instruction, but decided against it. The trial court found this to be "appropriate trial tactics, and a reasonable gamble."

Because we agree with the trial court that the failure to request the manslaughter instruction was deliberate trial strategy, rather than egregious oversight, we conclude defendant has not demonstrated obvious error or manifest injustice. It is long settled that a defendant has a choice whether to seek a lesser-included instruction, and the court has no independent duty to give such an instruction if not requested. See State v. Howell, 649 P.2d 91, 94 (Utah 1992); State v. Mitchell, 278 P.2d 618, 621 (Utah 1955). Indeed, were we to find this strategic choice to fall under the plain error or manifest injustice doctrines, defendants in all cases could gamble that the jury would acquit, then appeal the failure to instruct as a manifest injustice should they lose. See Howell, 649 P.2d at 94; State v. Valdez, 432 P.2d 53, 54 (Utah 1967) (noting that "[h]aving made his choice, [defendant] is bound by it; and he cannot thus elect to make no request as to a lesser included offense, with a reservation in mind that if he is convicted he can claim error and obtain a new trial"). Accordingly, the trial court did not abuse its discretion in refusing to grant a new trial based on the failure to give a manslaughter instruction.

Third, defendant claims his trial counsel provided ineffective assistance because counsel failed to fully investigate the victim's gang involvement, the additional eyewitness testimony, and the alleged leniency to witness Young. To prevail on this claim, defendant "must show that his counsel's representation fell below an objective standard of reasonable conduct and that he was prejudiced thereby." Bruner v. Carver, 920 P.2d 1153, 1157 (Utah Ct. App. 1996). Because we have determined that defendant would not have obtained a more favorable result in a new trial including this evidence, we conclude defendant was not prejudiced by trial counsel's treatment of these issues.

Defendant also claims ineffective assistance of counsel due to counsel's failure to request a lesser-included offense instruction on manslaughter. As discussed above, this failure to request the instruction was a reasonable trial strategy and does not constitute ineffective assistance. See State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 1995). Similarly, counsel's failure to present mitigating evidence of defendant's possible mental illness was a reasonable strategy given the defense theory of self-defense. See id.

Next, defendant claims the State failed to provide him with exculpatory evidence, resulting in a violation of due process. Defendant must show that the prosecutor failed to disclose evidence favorable to the defense and that there is "a 'reasonable probability' that the result . . . would have been different if the evidence had been disclosed." State v. Bakalov, 1999 UT 45,¶39, 979 P.2d 799 (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). However, we have determined above that even had this evidence been presented, a different result on retrial would not be probable. Therefore, defendant has failed to show his due process rights were violated.

Finally, defendant claims there was insufficient evidence of his intent to kill the victim. To prevail in his challenge, defendant "must first marshal all the evidence supporting the . . . verdict and then demonstrate how this evidence, even viewed in the most favorable light, is insufficient to support the verdict." State v. Strain, 885 P.2d 810, 819 (Utah Ct. App. 1994). Defendant has failed to meet his burden to marshal the evidence and instead recites only selected evidence supporting his theory of self-defense. Thus, we need not consider whether the evidence was insufficient. See State v. Hopkins, 1999 UT 98, ¶16, 989 P.2d 1065. Moreover, our independent review of the record indicates that the jury did hear sufficient evidence upon which to base its guilty verdict. For example, witnesses testified that defendant retrieved his knife from storage on the morning of the stabbing in order to take care of a "problem" and that when defendant raised the knife after being hit by the victim, the victim backed away with his empty hands raised while defendant took several steps forward to stab him in the chest. This evidence is sufficient to support the verdict; therefore, defendant's challenge to the sufficiency of the evidence fails.

Accordingly, we affirm defendant's conviction.
 
 
 

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

WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 

______________________________
Gregory K. Orme, Judge