State v. Malmrose

• Decision Date: 22 June 1982
• Docket Number: No. 17661,17661
• Citation: 649 P.2d 56
• Parties: STATE of Utah, Plaintiff and Respondent, v. Donald Leon MALMROSE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 56

649 P.2d 56

STATE of Utah, Plaintiff and Respondent, v. Donald Leon MALMROSE, Defendant and Appellant.

No. 17661.

Supreme Court of Utah.

June 22, 1982.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for defendant and appellant.

John B. Hutchison and Brian R. Florence of Florence & Hutchison, Ogden, for plaintiff and respondent.

HOWE, Justice:

Defendant appeals from his conviction by a jury of the crime of forcible sexual abuse.

The victim was sexually assaulted while jogging during the daytime on a running course at Weber State college. The only disputed issue at trial was the identity of her assailant. Immediately after the assault she reported it to the police and gave them a description of her assailant. Over a period of weeks she reviewed photographs until she identified the defendant from a school yearbook where he appeared as an athletic coach. She later identified the defendant in a lineup but that identification was suppressed subsequently because no recording had been made as required by statute. At trial, the victim stated there was no doubt whatsoever in her mind that the defendant was the man who had assaulted her. She had observed him during the entire episode with the exception of a moment when she turned her head in order to avoid a blow to the face. She was always conscious. He was clearly in front of her as he hovered over her, going through the act of Defendant, on the other hand, testified that he was not at the running course on the day of the assault. Instead, he was attending to his duties as a teacher and coach at a middle school. Before going home, he stopped briefly at a market. Various witnesses testified in support of his alibi. After three days of trial, including rebuttal testimony by the prosecution, the jury returned a verdict of guilty.

sexual assault for a total period of seven or eight minutes.

Defendant engaged new counsel to pursue this appeal. His assignments of error may be categorized into three major issues. The first issue is whether the defendant had effective assistance of counsel at trial as guaranteed under the Sixth Amendment of the United States Constitution and Article 1, Section 12 of the Utah State Constitution. Defendant recognizes that many of the points he raises on appeal were not properly preserved by defense counsel at trial and cites them as illustrations of ineffective representation. The second issue is whether prejudicial error was committed by the court in some of its rulings. Finally, the third major issue is whether an instance of prosecutorial misconduct occurred at trial which prejudiced the defendant.

Defendant relies upon the U.S. v. Bosch, 584 F.2d 1113 (1st Cir. 1978) standard of "reasonably competent assistance of counsel." The court in Dyer v. Crisp, 613 F.2d 275 (10th Cir. 1980) interpreted the standard to impose a four-part test to determine whether there has been "reasonably competent assistance of counsel." The test requires the defendant to (1) establish proof of the ineffectiveness of counsel, (2) show that the ineffectiveness was due to the inadequacy of counsel and not as a result of trial strategy, (3) demonstrate that better representation might have had some effect upon the result of the trial, and (4) prove that motions and objections which were not made would not have been futile if raised. The standard in Dyer has not been expressly adopted in Utah.

However, there are Utah cases which when read together parallel that standard. In State v. Gray, Utah, 601 P.2d 918 (1979), we held that the accused has a right to effective counsel who does more than satisfy a pretense of representation. We stated that the defendant bears the burden of establishing ineffectiveness. The proof must be demonstrable, not speculative. In State v. McNicol, Utah, 554 P.2d 203, 205 (1976), we stated that the courts will not second guess "legitimate exercise of judgment as to trial tactics or strategy." Other Utah cases have held that there is no prejudicial error warranting reversal of the conviction unless better representation is likely to have produced a different result. State v. Gray, supra; State v. Forsyth, Utah, 560 P.2d 337 (1977); Jaramillo v. Turner, 24 Utah 2d 19, 465 P.2d 343 (1970); Alires v. Turner, 22 Utah 2d 118, 449 P.2d 241 (1969). In Heinlin v. Smith, Utah, 542 P.2d 1081 (1975), we held that the failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance. In order to show ineffective assistance of counsel in this case, therefore, defendant must show that the standards we have enumerated in previous cases were not satisfied.

Rule 4, Utah Rules of Evidence, requires a clear and definite objection to evidence at trial before appellate review can be requested. Stagmeyer v. Leatham Brothers, Inc., 20 Utah 2d 421, 439 P.2d 279 (1969); White v. Newman, 10 Utah 2d 62, 348 P.2d 343 (1960). The assignments of error where no objection was made at trial, therefore, are considered only to the extent that they may bear upon the claim of incompetence of counsel.

Defendant asserts that the victim's identification of him at trial was tainted and should have been suppressed. His counsel did not then object to the identification, but did provide assistance to his client by raising the issue at a pre-trial suppression hearing. The issue was argued and ruled upon. The court found that the victim could testify at trial because the identification at the preliminary hearing was not the product of the lineup but was a product of "sufficient look-alike characteristics" to the assailant Defense counsel need not have made objection at trial if the objection would have been futile. He did raise and argue the issue at a suppression hearing where the court ruled that identification at trial would be allowed since it was independent of suggestive influences, but the lineup would be suppressed. This Court has held that the question of whether the lineup was conducted unfairly and the evidence from it was tainted is within the discretion of the trial court. State v. Ervin, 22 Utah 2d 216, 451 P.2d 372 (1969). Under the standard in State v. Perry, 27 Utah 2d 48, 492 P.2d 1349 (1972), reversal is demanded where the identification is so unnecessarily suggestive and conducive to irreparable mistaken identification that the defendant is denied due process.

that the victim picked him. State v. Harris, 26 Utah 2d 365, 489 P.2d 1008 (1971), supports such a ruling. The hearing court also determined that the identifications were made independently of any suggestive influences. The identification of the defendant in the lineup was suppressed, not because of any police misstatement or missuggestion with the photos, but because of failure of the police to maintain a record as required by statute.

There is nothing in the record to suggest that the findings of the suppression hearing that the victim's identifications were made independently of suggestive influences should or would have been different had that issue been considered again at trial. Under the rule in Niel v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which requires viewing the reliability of identification in light of the totality of circumstances, there is sufficient evidence in the record that the victim had the opportunity to view the defendant, exhibited a sufficient degree of attention during the crime, had previously described the defendant accurately, was sufficiently certain of her identification and identified the defendant within a reasonable length of time from the crime to the confrontation. Accordingly, the trial court's finding is reasonable and the failure of defense counsel to again object to identification at trial did not prejudice defendant.

The admission of expert testimony based upon official weather reports and the admission of a written laboratory report linking defendant's blood type to the assailant are further examples cited by defendant of the admission of evidence without objection at trial by his counsel.

The trial court found the admission of expert testimony based upon official weather reports was "clearly admissible as an exception to the hearsay rule." We agree. It is therefore understandable why trial counsel made no objection. Effective representation does not require counsel to object when doing so would be futile.

The trial court inquired of defense counsel whether he objected to the written laboratory report, but he answered that he did not. The trial court on motion for new trial found that "the court cannot know at that point what defendant counsel's tactical position (was) and must rely on (his) failure to object." An examination of the written laboratory report reveals that it is not a laboratory report at all; it is merely a letter stating the conclusion of the lab test which had already been testified to by the witness. This Court will not second guess the strategy of counsel at trial. Counsel did argue the lack of certainty in the conclusions of the report with relation to his client. The exhibit would not be admissible as a hearsay exception. Under Rule 4 of Utah Rules of Evidence, however, an erroneous admission of evidence is treated as harmless error absent a showing that it had substantial influence in bringing about the verdict. Defendant has made no such showing.

Defendant also argues that the prosecution's alibi rebuttal witnesses had a devastating effect on defendant's case and that the prosecution did not provide advance notice of their identity as required under § 77-14-2, Utah Code Ann. 1953. Again, no objection was made by defense counsel at trial and it is understandable why. He himself had failed to comply with the statute Defendant cites three other examples of what he considers evidence of ineffectiveness of his trial counsel.

by not disclosing the names of all of his alibi witnesses before the expiration...