State v. Voeltz Jr.

State v. Voeltz Jr.

IN THE UTAH COURT OF APPEALS
 

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State of Utah,

Plaintiff and Appellee,

v.

Howard Oliver Voeltz Jr.,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20040019-CA
 

F I L E D
(May 12, 2005)
 

2005 UT App 213

 

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Second District, Farmington Department, 031700940

The Honorable Glen R. Dawson

Attorneys: Scott L. Wiggins, Salt Lake City, for Appellant

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

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Before Judges Billings, Bench, 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 issue presented is readily resolved under applicable law.

    Although a prosecutor may not make comments that are "of such character that a jury would naturally and necessarily construe [them] to amount to a comment on the failure of the accused to testify," State v. Hales, 652 P.2d 1290, 1291 (Utah 1982), the law is clear that "a prosecutor's comments about the 'paucity or absence' of a defendant's evidence does not offend constitutional guarantees against self-incrimination." State v. Nelson-Waggoner, 2004 UT 29,¶31, 94 P.3d 186 (citation omitted).

    The State's remarks during closing argument that Defendant now takes issue with, when viewed in context, are fairly construed only as comments about the absence of Defendant's evidence rebutting T.V.'s testimony about his conversation with defense counsel. When understood in this context, it is clear that the State was not referring to Defendant's failure to testify since Defendant was not present during T.V.'s conversation with defense counsel and could not have refuted T.V.'s version of what was said during the conversation. Therefore, the State's comments were not improper, and trial counsel had no reason to object. See State v. Whittle, 1999 UT 96,¶34, 989 P.2d 52 (holding that counsel is not required to make futile objections). It follows that trial counsel's performance was not deficient and that Defendant's claim of ineffective assistance of counsel fails. See Strickland v. Washington, 466 U.S. 668, 687 (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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Russell W. Bench,

Associate Presiding Judge