State v. Zampedri

State v. Zampedri

IN THE UTAH COURT OF APPEALS
 

----ooOoo----

State of Utah,

Plaintiff and Appellee,

v.

Albert Dennis Zampedri,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030579-CA
 

F I L E D
(October 7, 2004)
 

2004 UT App 348

 

-----

Second District, Ogden Department

The Honorable Michael D. Lyon

Attorneys: Randall W. Richards, Ogden, for Appellant

Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

-----

Before Judges Billings, Davis, and Orme.

DAVIS, Judge:

    Albert Dennis Zampedri (Defendant) appeals his convictions of attempted aggravated murder and attempted murder. We affirm.

    Defendant argues that the trial court erred by instructing the jury that it could convict Defendant of attempted aggravated murder and attempted murder if it found that he committed either crime "knowingly." Because Defendant's trial counsel did not object to the instructions at issue, we will review those instructions for error "only 'to avoid a manifest injustice.'" State v. Powell, 872 P.2d 1027, 1029 (Utah 1994) (citation omitted); see Utah R. Crim. P. 19(e) ("Unless a party objects to an instruction or the failure to give an instruction, the instruction may not be assigned as error except to avoid a manifest injustice."). "'[I]n most circumstances, the term "manifest injustice" is synonymous with the "plain error" standard . . . .'" Powell, 872 P.2d at 1029 (citation omitted).

"[T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must show the following: (i) [a]n 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 the appellant, or phrased differently, our confidence in the verdict is undermined." . . . [I]f any one of those requirements is not met, plain error is not established.

Id. at 1031 (first alteration in original) (citation omitted). In Defendant's case, the challenged instructions comported with the mens rea requirements for both attempted aggravated murder and attempted murder in effect at the time of the incident and at the time he was charged, tried, and convicted. As such, the alleged error could not "'have been obvious to the trial court.'" Id. (citation omitted). Therefore, Defendant has not established the existence of plain error. See id.

    Defendant also argues that his trial counsel rendered ineffective assistance by failing to request that the trial court strike the term "knowingly" from its instructions to the jury on attempted aggravated murder and attempted murder. Because the challenged instructions comported with the mens rea requirements for both attempted aggravated murder and attempted murder in effect at the time of the incident and at the time Defendant was charged, tried, and convicted, it would have been futile for Defendant's trial counsel to request that the trial court strike the term "knowingly" from those instructions. Therefore, Defendant's trial counsel did not render ineffective assistance by failing to make such a request. See State v. Wallace, 2002 UT App 295,¶22, 55 P.3d 1147 (stating that "'failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance'" (citation omitted)).(1)

    Finally, Defendant argues that the evidence presented at trial was insufficient to support a determination that he possessed the requisite mens rea for either attempted aggravated murder or attempted murder. Based upon this argument, Defendant asserts that his trial counsel rendered ineffective assistance by failing to move for a directed verdict, and that the trial court committed plain error by failing to enter a directed verdict on its own motion. After reviewing the record, we conclude that there was sufficient evidence to support a determination that Defendant possessed the requisite mens rea, under the then-correct instructions given to the jury, for both attempted aggravated murder and attempted murder. Because a motion for directed verdict would have been futile, Defendant's counsel did not render ineffective assistance by failing to make such a motion. See id. Further, because the trial court did not err by failing to enter a directed verdict on its own motion, Defendant cannot, by definition, establish the existence of plain error. See Powell, 872 P.2d at 1031.

    Affirmed.

______________________________

James Z. Davis, Judge

-----

WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

______________________________

Gregory K. Orme, Judge

1. In support of his first two arguments, Defendant relies exclusively upon State v. Casey, 2003 UT 55, 82 P.3d 1106. However, Defendant makes no attempt to explain why Casey is retroactively applicable to his case. In addition, Defendant fails to address whether the legislature's recent amendment to the attempt statute is retroactively applicable to his case. Although the State addresses the latter issue, we do not address either issue because of Defendant's failure to analyze them in his brief. See State v. Thomas, 961 P.2d 299, 304-05 (Utah 1998).