State v. Clopten
| Citation | 2008 UT App 205,186 P.3d 1004 |
| Decision Date | 30 May 2008 |
| Docket Number | No. 20060254-CA.,20060254-CA. |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Deon Lomax CLOPTEN, Defendant and Appellant. |
| Court | Court of Appeals of Utah |
Ronald S. Fujino, Salt Lake City, for Appellant.
Mark L. Shurtleff, atty. gen., and Joanne C. Slotnik, asst. atty. gen., Salt Lake City, for Appellee.
Before GREENWOOD, P.J., THORNE, Associate P.J., and McHUGH, J.
¶ 1 Deon Clopten appeals his conviction of murder, see Utah Code Ann. § 76-5-203 (Supp.2007); failure to respond to a police command, see Utah Code Ann. § 41-6a-210 (2005); and possession of a dangerous weapon by a restricted person, see Utah Code Ann. § 76-10-503(2)(a) (2003).1 We affirm.
¶ 2 Tony Fuailemaa was shot and killed on December 1, 2002, shortly after leaving a concert in Salt Lake City with his girlfriend, Shannon Pantoja.
¶ 3 Clopten also attended the concert, along with three of his friends. Clopten was dressed in red pants and a red jacket or sweatshirt. Before the concert, Pantoja exchanged greetings with a member of Clopten's group. Once inside, Fuailemaa asked Pantoja if she knew the man in the red outfit. When Pantoja stated that she did not, Fuailemaa said the man's name was Deon Clopten. Fuailemaa explained that he and Clopten had been incarcerated together and that Clopten "had had some problems with some of the homies out in the prison."
¶ 4 During the concert, four undercover police officers observed the crowd. "[T]he individual that was wearing the red suit" and his group "ha[d] some sort of a confrontation" with another group that included Fuailemaa and Pantoja. No physical blows resulted, and eventually the groups separated. Sometime later, but before the concert ended, Clopten and his group left. Shortly thereafter, Fuailemaa and Pantoja also left the concert.
¶ 5 As Pantoja and Fuailemaa exited the concert, Pantoja saw three of the four men from Clopten's group. The three men "were kind of like hiding behind—crouched behind the building" and they "peeked out and then immediately ducked back again." Fuailemaa told Pantoja, "I think I'm going to have some problems with these guys." Pantoja heard the shooter say, "What's up now," and then she watched as Clopten shot Fuailemaa twice in the head. Clopten then ran away.
¶ 6 After hearing gun shots, one of the undercover officers attending the concert ran to Pantoja and asked, "Who did it?" Pantoja answered by saying, "It's the guy in all red." After the police arrested Clopten and his group, Pantoja identified Clopten as the shooter. Pantoja told the officer that the shooter's name was "Deon Compton." More than one year later, Pantoja again identified Clopten as the shooter during a police lineup. Pantoja also identified Clopten as the shooter during his trial.
¶ 7 Melissa Valdez also attended the concert and witnessed Fuailemaa's murder. Before the concert, Valdez talked to a group of men about getting tickets. One of the men was wearing red pants and a red sweatshirt. Like Fuailemaa and Pantoja, Valdez left the concert shortly before it was finished. As she was leaving the venue, she saw the man in the red sweat suit that she had spoken with earlier. She asked the man if he had obtained tickets, and the man indicated that he had and passed by her. Shortly thereafter, Valdez happened to look back over her shoulder. At that moment, she saw the man in red standing behind the victim with his right arm extended and holding what appeared to be a gun, and heard a gunshot. When presented with a photo array, Valdez twice identified Clopten as the shooter. She also identified Clopten as the shooter during his trial.
¶ 8 Andre Christopher Hamby, who attended the concert with Clopten and witnessed Fuailemaa's murder, also testified against Clopten.3 Hamby testified that he Clopten, and two other men approached their vehicle after they left the concert and that Clopten declared, "I'm goin' shoot him." At that point, Clopten told another member of the group to "[h]and me the gun." Hamby watched as Clopten obtained the gun, threw on the hood of his red sweatshirt, walked up to Fuailemaa, put the gun straight behind Fuailemaa's head, and, "at point-blank range," shot him twice "in the back of the head." Hamby then ran back to the vehicle with the rest of the group; once everyone was in, Clopten "took off" driving. Clopten then passed his gun to another member of the group "and told him to throw it out" the window.
¶ 9 Finally, Robert Land testified that Clopten admitted to the murder. Land knew Clopten because they previously had been cellmates. Land and Clopten were reunited in December of 2002 while Clopten was being held in prison for the current offense. It was during this period that Clopten bragged to Land about committing the murder.
¶ 10 The defense sought to introduce reasonable doubt that Clopten was the shooter. As acknowledged on appeal, its "theory of the case was misidentification or mistaken identity." Accordingly, the defense presented testimony that a different individual had admitted to being the shooter and that the man in red had entered the passenger's side of the vehicle, as opposed to the driver's side. The defense also sought to present expert testimony regarding the fallibility of eyewitness identification. The trial court excluded the testimony, but instructed the jury regarding this issue.
¶ 11 After hearing all of the evidence, the jury convicted Clopten of murder, see Utah Code Ann. § 76-5-203 (Supp.2007), and failure to respond to a police command, see Utah Code Ann. § 41-6a-210 (2005). Defense counsel submitted the charge for possession of a firearm by a restricted person to the trial court, which found him guilty, see Utah Code Ann. § 76-10-503(2)(a) (2003). Clopten now appeals.
¶ 12 Clopten presents two issues on appeal. First, Clopten argues the trial court erred when it excluded expert testimony regarding the fallibility of eyewitness identification. " " State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (alteration in original) (quoting State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). Second, Clopten argues that he received ineffective assistance of counsel. "Ineffective assistance of counsel arguments raised for the first time on appeal are reviewed for correctness as a matter of law." State v. Vos, 2007 UT App 215, ¶ 9, 164 P.3d 1258, cert. denied, No. 20070653, 186 P.3d 347, 2007 Utah Lexis 225 (Nov. 29, 2007).
¶ 13 Clopten first argues the trial court erred when it excluded the testimony of Dr. Dodd, an expert witness prepared to testify about the fallibility of eyewitness identification. Because of the highly deferential standard of review on this issue, we affirm the trial court's ruling.
¶ 14 "`[T]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.'" State v. Long, 721 P.2d 483, 491 (Utah 1986) (quoting United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967)). Indeed, Id. at 488 (citations omitted).
¶ 15 However, "jurors are, for the most part, unaware of these problems." Id. at 490. Accordingly, the Utah Supreme Court has declared "that, at a minimum, additional judicial guidance to the jury in evaluating such testimony is warranted." Id. at 492. Thus, in the absence of any reasonable tactic explaining otherwise, effective assistance requires that defense counsel request a cautionary jury instruction. See id.; State v. Maestas (Maestas I), 1999 UT 32, ¶¶ 32 & n. 2, 37, 984 P.2d 376.
¶ 16 In this case, the trial court gave a specific jury instruction regarding the fallibility of eyewitness identification. The jury instruction was adopted almost verbatim from an instruction the supreme court has identified as "satisfy[ing the] expressed concerns about the need for cautionary instructions." See Long, 721 P.2d at 494-95 & n. 8. Clopten does not appeal his conviction based on that instruction.4 Instead, Clopten argues the trial court erred when it excluded expert testimony that would have elaborated on the fallibility of such identification and specifically addressed some of the relevant factors in this case.
¶ 17 Although the supreme court created a "rigorous approach to cautionary [jury] instructions," id. at 488, a majority of the court has not required the admission of expert witness testimony, see generally, e.g., State v. Maestas (Maestas II), 2002 UT 123, ¶ 57, 63 P.3d 621 (plurality opinion). Instead, the supreme court "`recognize[s] that whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court's discretion.'" Id. ¶ 68 (Durrant, J., dissenting) (quoting State v. Hubbard, 2002 UT 45, ¶ 14, 48 P.3d 953); accord id. ¶ 136 (Russon, J., dissenting); State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794. Thus, "the trial court's ruling on the admissibility of expert testimony [regarding the unreliability of eyewitness identification] will stand unless the ruling `exceeds the limits of reasonability.'" Maestas II, 2002 UT 123, ¶ 136, 63 P.3d 621 (Russon, J., dissenting) (quoting Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794).5
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