WVC v. Christensen

WVC v. Christensen

IN THE UTAH COURT OF APPEALS
 

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West Valley City,

Plaintiff and Appellee,

v.

Gordon R. Christensen,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20020623-CA
 

F I L E D
(February 3, 2005)
 

2005 UT App 39

 

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Third District, West Valley Department

The Honorable Terry Christiansen

Attorneys: J. Franklin Allred, Erda, for Appellant

J. Richard Catten, West Valley City, for Appellee

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Before Judges Billings, Davis, and Orme.

ORME, Judge:

    We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record[,] and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3). Moreover, the issues presented are readily resolved under applicable law.

    Under the Utah Rules of Evidence, the trial court "may interrogate witnesses, whether called by itself or by a party." Utah R. Evid. 614(b). Additionally, the trial court may, to aid the jury in understanding a material issue, invite jurors to ask questions of witnesses. See State v. Martinez, 7 Utah 2d 387, 326 P.2d 102, 103 (1958). In this case, the trial court's questions bore directly on testimony given by Defendant and were designed to clarify apparent inconsistencies in his testimony. At least in part, the questions posed were ones the jurors themselves had asked. "It is within the judge's prerogative to 'ask whatever questions of witnesses as in his judgment is necessary or desirable to clarify, explain or add to the evidence as it relates to the disputed issues.'" State v. Boyatt, 854 P.2d 550, 553 (Utah Ct. App. 1993) (quoting State v. Mellen, 583 P.2d 46, 48 (Utah 1978)).

    In view of the foregoing, Defendant has not demonstrated that the trial court committed error, plain or otherwise, when it questioned him. See generally State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993) (explaining that, to establish plain error, defendant must show "(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful"). It follows that the court's questions do not reflect bias on the part of the trial court. It likewise follows that trial counsel's decision not to object to the court's questions does not constitute "performance [which] fell below an objective standard of reasonable professional judgment." Bundy v. Deland, 763 P.2d 803, 805 (Utah 1988). See Strickland v. Washington, 466 U.S. 668, 690 (1984).

    Affirmed.

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Gregory K. Orme, Judge

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WE CONCUR:

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Judith M. Billings,

Presiding Judge

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James Z. Davis, Judge