State v. Shepherd

State v. Shepherd

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Ron Dennis Shepherd,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030863-CA
 

F I L E D
(June 9, 2005)
 

2005 UT App 262

 

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Fourth District, Heber Department, 021500129

The Honorable Donald J. Eyre Jr.

Attorneys: Kimberly D. Washburn, Draper, for Appellant

Mark L. Shurtleff and Joanne C. Slotnik, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Orme.

DAVIS, Judge:

    Defendant Ron Dennis Shepherd argues that the trial court erred by admitting evidence of the victim's eyewitness identification of Defendant. When we review a trial court's decision to admit evidence of an eyewitness identification,

we defer to the trial court's fact-finding role by viewing the facts in the light most favorable to the trial court's decision to admit and by reversing its factual findings only if they are against the clear weight of the evidence. On the other hand, whether these facts are sufficient to demonstrate reliability is a question of law, which we review for correctness.

State v. Ramirez, 817 P.2d 774, 782 (Utah 1991) (citations omitted). In order for an eyewitness identification to be admissible, it must be constitutionally reliable. See id. at 781. The Utah Supreme Court has articulated five factors "by which reliability must be determined." Id.

    Although Defendant has marshaled the evidence in support of the trial court's factual findings contained in its order denying Defendant's motion to suppress the victim's eyewitness identification of Defendant, he has not demonstrated that these findings "are against the clear weight of the evidence." Id. at 782. As a result, he has not demonstrated that they are clearly erroneous. See State v. Gamblin, 2000 UT 44,¶17 n.2, 1 P.3d 1108 (stating that an appellant wishing to challenge a trial court's findings of fact must not only marshal the evidence in support of the findings, but also "show that the trial court's findings so lack support as to be against the clear weight of the evidence, thus making them clearly erroneous" (quotations and citations omitted)). Instead, he simply reargues the weight of the evidence supporting his position, which is a futile tactic on appeal. See Covey v. Covey, 2003 UT App 380,¶28, 80 P.3d 553, cert. denied, 90 P.3d 1041 (Utah 2004); see also State v. Lafferty, 749 P.2d 1239, 1244 (Utah 1988) (noting that the same "clearly erroneous standard applies to judicial findings of fact in both civil and criminal proceedings"). Therefore, we do not disturb the trial court's findings. Because these undisturbed findings are more than sufficient to establish each of the factors articulated in Ramirez, see 817 P.2d at 781, we conclude that the victim's eyewitness identification of Defendant was constitutionally reliable. See id. Accordingly, the trial court did not err by admitting evidence of the identification.

    Defendant also argues that he received ineffective assistance from his trial counsel. At trial, Defendant's counsel filed a motion to call an eyewitness identification expert. In response, the trial court directed Defendant's counsel to provide it with certain preliminary information before it would rule on Defendant's motion. Defendant's counsel never provided the trial court with this information and, as a result, did not call an eyewitness identification expert at trial. Defendant asserts that his trial counsel's failure to provide the preliminary information to the trial court constituted ineffective assistance of counsel. We disagree. Given the trial court's initial reaction to Defendant's motion, his trial counsel could have easily made the tactical decision not to pursue the use of an eyewitness identification expert. See State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 1995) ("An ineffectiveness claim succeeds only when no conceivable legitimate tactic or strategy can be surmised from counsel's actions. Moreover, this court will not second-guess trial counsel's legitimate strategic choices, however flawed those choices might appear in retrospect." (quotations and citations omitted)). Therefore, we
conclude that Defendant's ineffective assistance of counsel argument fails.

    Affirmed.

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James Z. Davis, Judge

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WE CONCUR:

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Pamela T. Greenwood, Judge

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Gregory K. Orme, Judge