State of Utah v. Spinks

State v. Spinks

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Edward Dovell Spinks,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010985-CA
 

F I L E D
(June 5, 2003)
 

2003 UT App 182

 

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Second District, Ogden Department

The Honorable Stanton M. Taylor

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Jackson, Bench, and Orme.

BENCH, Judge:

In the context of explaining Detective Lucas's investigation, the prosecutor noted in his opening statement that both Daniel Moore and Leota Ray told the detective that the clothing found with the victim's blood on it belonged to Defendant. Detective Lucas later testified to the statements of Moore and Ray. These statements were admissible because they were not offered for their truth, but rather as an explanation of why Detective Lucas did what he did. See Utah R. Evid. 801(c). The prosecutor's comment in his opening statement was not, therefore, misconduct since he did not "call to the attention of the jurors matters which they would not be justified in considering." State v. Valdez, 30 Utah 2d 54, 513 P.2d 422, 426 (1973).

Defendant also asserts a violation of his confrontation rights based on Detective Lucas's testimony regarding the statements of Moore and Ray, as well as his testimony regarding statements by Sheldon Reeves, Dorinda Blankenship, Melissa Padilla, Elizabeth Stitt, and Nancy Palacios. Defense counsel, however, explicitly allowed the testimony Defendant now complains of to "be[] offered [not] for the truth of the matter[s] asserted, [but] simply to explain what Officer Lucas did and why he did it." We therefore do not address Defendant's confrontation claims further. See State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989).

Defendant also contends that his counsel's performance was deficient in allowing the State to introduce those out-of-court statements and in not moving for a mistrial when some of those witnesses were not called. Before concluding that counsel's performance was deficient, "[w]e must . . . be persuaded that there was a 'lack of any conceivable tactical basis' for counsel's actions." State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (citation omitted). Reeves's statements were clearly not offered for their truth and were thus non-hearsay. The statements of Blankenship, Moore, Padilla, and Ray were later corroborated either by Defendant's admissions or by stipulation. Stitt and Palacios were called to testify. As the State aptly observes, defense counsel's options were either to allow "the [uncalled] witnesses' statements to come in through Officer Lucas's testimony [and] not for the matters asserted" or to require "the State to present a parade of witnesses who would have emphasized [D]efendant's connection to Tonya's murder." We cannot say that defense counsel's decision "'lack[ed] any conceivable tactical basis.'" Id. (citation omitted). Further, having sanctioned the admission of the statements through Detective Lucas, any mistrial motion on that basis would have been unavailing.

Defendant claims that the prosecutor improperly argued that defense counsel was misleading the jury. On appeal, this amounts to a claim that the trial court exceeded its discretion by denying the motion for a mistrial made on those grounds. The parties both rely upon State v. Harmon, 956 P.2d 262 (Utah 1998). In Harmon, the prosecutor argued four times that the defense counsel was misleading the jury. See id. at 275-76. Following the first time, "the prosecutor apologized after he realized he was mistaken." Id. at 275. Following the second time, the court "ruled that the jury could interpret the matter itself." Id. Following the third time, the court "admonished the prosecutor that his comment was inappropriate, and in the fourth instance, the trial court sternly reprimanded the prosecutor." Id. at 277. "While the court denied defense counsel's mistrial motion, the court warned that a mistrial may be forthcoming if the prosecutor's misconduct continued. However, the court gave a curative instruction to the jury to the effect that defense counsel had done nothing inappropriate . . . ." Id. On appeal, the supreme court found no abuse of discretion. See id.

After one similar instance in this case, the trial court admonished the prosecutor both in and outside the presence of the jury for his improper argument. Then, although the court eventually sustained the prosecutor's objection, it declined to announce that ruling to the jury. Comparing the extent of the misconduct and curative efforts in Harmon and the instant case, we conclude that the trial court here likewise did not exceed its discretion in denying Defendant's motion for a mistrial. See id. at 275-77.

Defendant claims error in the admission of evidence that he and Detective Minor had met before. Any such error was harmless. Documentary and testimonial evidence, as well as a stipulation, placed Defendant at the victim's apartment immediately prior to her death; Defendant admitted that he stabbed the victim five times and that clothing with the victim's blood on it was his; and his palm print was found in blood at the scene. The evidence of Defendant's guilt far outweighs any prejudice resulting from this possible error. See State v. Helmick, 2000 UT 70,¶9, 9 P.3d 164.

Defendant asserts that the prosecutor impermissibly shifted the burden of proof during closing argument by remarking that Defendant had put on insufficient evidence to support his theory. "[T]he prosecution has the duty to argue the case based on the total picture of the evidence or lack of evidence, including the paucity or absence of evidence adduced by the defense." State v. Bailey, 712 P.2d 281, 286 (Utah 1985). "Defendant opened the door to [the prosecutor's] comments by arguing . . . in his closing argument to the jury that it should acquit the defendant based," inter alia, on the State's failure to prove (1) that the palm print had not been fabricated, and (2) that Reeves had not committed the crime. State v. Bowman, 945 P.2d 153, 157 (Utah Ct. App. 1997). "The prosecutor was entitled to rebut the defendant's remarks," id., and thus we conclude that the prosecutor's argument did not shift the burden of proof to Defendant.

Defendant makes two additional ineffective assistance claims. He argues ineffective assistance in defense counsel's failure to object to alleged instances of prosecutorial misconduct. We concluded above that the prosecutor's opening statement was proper; therefore, any objection thereto would have failed. As to counsel's failure to object to the questions regarding a witness being "scared to death" to testify and the Defendant having met an officer previously, as well as to the prosecutor's statement that the judge did not want the jury to consider certain evidence, we conclude that it is conceivable that defense counsel opted for the sound strategy of not calling further attention to those remarks by objecting to them. See Garrett, 849 P.2d at 579. Finally, Defendant asserts deficient performance in his counsel's "failing to establish a defense." Defendant has failed, however, to explain what evidence he believes Sheldon Reeves, or any other witness, could have provided and how that evidence would have helped his case. He has, therefore, not shown that his counsel's performance prejudiced him. See State v. Chacon, 962 P.2d 48, 51 (Utah 1998).

Affirmed.(1)

______________________________

Russell W. Bench, Judge

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WE CONCUR:

______________________________

Norman H. Jackson,

Presiding Judge

______________________________

Gregory K. Orme, Judge

1. Defendant's cumulative error argument fails. Defendant has shown no prejudice in his counsel's "failing to put on a defense." The only other possible errors we have identified are the prosecutor's elicitation of testimony that Defendant and an officer had met previously and the prosecutor's argument that defense counsel was misleading the jury. Given the strength of the evidence against Defendant "the cumulative effect of the [possible] errors [does not] undermine[] our confidence . . . that a fair trial was had." State v. Kohl, 2000 UT 35,¶25, 999 P.2d 7 (quotations and citations omitted). Defendant's other claims are raised for the first time on appeal. Because Defendant does not assert plain error or exceptional circumstances, we decline to address them. See State v. Cramer, 2002 UT 9,¶35, 44 P.3d 690.