State v. Alfatlawi

• Citation: 153 P.3d 804,2006 UT App 511
• Decision Date: 21 December 2006
• Docket Number: No. 20050678-CA.,20050678-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Azharn ALFATLAWI, Defendant and Appellant.
• Court: Court of Appeals of Utah

153 P.3d 804

2006 UT App 511

STATE of Utah, Plaintiff and Appellee, v. Azharn ALFATLAWI, Defendant and Appellant.

No. 20050678-CA.

Court of Appeals of Utah.

December 21, 2006.

John Pace, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Laura B. Dupaix, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before GREENWOOD, Associate P.J., DAVIS and THORNE, JJ.

OPINION

DAVIS, Judge:

¶ 1 Defendant Azharn Alfatlawi appeals from his first degree felony convictions and sentences for six counts of aggravated robbery, see Utah Code Ann. § 76-6-302 (2003), and one count of aggravated burglary, see id. § 76-6-203 (2003).

BACKGROUND

¶ 2 "We relate the facts and `all reasonable inferences that may be drawn [therefrom] in a light most favorable to the [jury] verdict.'" State v. Hamilton, 2003 UT 22, ¶ 2, 70 P.3d 111 (first alteration in original) (quoting State v. Dunn, 850 P.2d 1201, 1212 (Utah 1993)).

¶ 3 Seven days after being paroled, Defendant and two accomplices committed three robberies by driving up to their victims, pointing a gun at them, and demanding money. Two days later, Defendant and his accomplices committed additional robberies using the same technique. One of the later robberies also resulted in a burglary because Defendant and his accomplices forced their way into their victim's home and stole her money and property. Police arrested Defendant and his two accomplices and charged them with eight counts of aggravated robbery and one count of aggravated burglary. Both accomplices negotiated plea bargains and only Defendant proceeded to trial.

¶ 4 At the preliminary hearing, the court dismissed one count of aggravated robbery against Defendant. The seven remaining counts of aggravated robbery and the aggravated burglary charge were tried to a jury. For each charge, the State sought a dangerous weapon enhancement, see Utah Code Ann. § 76-3-203.8 (Supp.2006), and an "in concert," or group criminal activity enhancement, id. § 76-3-203.1 (Supp.2006).

¶ 5 During jury selection, the trial court asked the prospective jurors to state where they and their family members worked. Prospective juror number ten (Juror Ten) stated that his or her child worked for "Utah Patrols." At the request of Defendant's trial counsel, the trial court asked the jurors if any of their family members worked in law enforcement, and Juror Ten did not reply. The trial court also asked if any of the prospective jurors or their family members had been the victims of a crime. Juror Ten stated that his or her spouse had been robbed at random and hit in the head with a tire iron. For that reason, trial counsel equivocally challenged Juror Ten for cause while discussing the juror in the trial judge's chambers. Trial counsel asked the trial judge and prosecutor if Juror Ten should be specifically questioned about whether the mugging would affect his or her impartiality. In response, the trial judge stated that Juror Ten did not need to be rehabilitated, and that he would deny a challenge for cause. The trial court rejected the challenge because Juror Ten stated that the mugging of his or her spouse would not affect his or her ability to be impartial and to follow the directions of the court. Juror Ten was empaneled.

¶ 6 The trial court also asked the potential jurors if Defendant's tattoo, which prominently stated "Iraqi Pride" across his forehead, would affect their impartiality. Prospective juror thirty-one (Juror Thirty-One) stated in open court that he or she would not be affected by the "Iraqi Pride" tattoo, but that Defendant's teardrop tattoo below his eye would affect his or her impartiality. The trial court questioned Juror Thirty-One in chambers, where he or she stated that teardrop tattoos signify the tattoo wearer's gang involvement, prior imprisonment, or commission of murder. The trial court struck Juror Thirty-One for cause, but did not ask the remaining potential jurors if anyone else had concerns about Defendant's teardrop tattoo. During the remainder of jury selection trial counsel used peremptory challenges on a former police officer, an individual whose sibling worked as a parole officer, and two burglary victims.

¶ 7 Once the jury was empaneled, a two-day trial occurred. Defendant alleged that he did not commit the crimes at issue. The State called one of Defendant's accomplices, James Butcher, to testify that Defendant committed the crimes, along with a third accomplice, James Arthur. Defendant's trial counsel attacked Butcher's credibility during cross-examination. In response, the State corroborated Butcher's testimony with physical evidence tying Defendant to three of the crimes — the burglary and two robberies — and with testimony from four of the robbery victims identifying Defendant as the gunman. When the parties and the court discussed jury instructions, trial counsel did not request, and the court did not offer, an instruction on the unreliability of accomplice testimony. See id. § 77-17-7(2) (2003). However, the jury did receive general instructions on the credibility of witnesses. Trial counsel also did not request, and the court did not offer, a jury instruction containing a detailed definition of the "in concert" element of the group criminal activity enhancement to Defendant's crimes. Id. § 76-3-203.1(1)(b).

¶ 8 When the jury finished deliberating, the trial court ordered Defendant to be shackled prior to the return of the jury. The trial court stated that the shackling was in response to allegations that witnesses testifying against Defendant had been threatened. Trial counsel did not object to this shackling and the jury returned and rendered its verdict. Defendant remained shackled while the jury was polled, and nothing in the record suggests the jurors were aware that Defendant was shackled. The jury acquitted Defendant of one count of aggravated robbery, and convicted him of the six remaining counts of aggravated robbery and the aggravated burglary charge.

¶ 9 At the sentencing hearing, Defendant asked the trial court to order the sentences to run concurrently. The trial judge began discussing Defendant's sentence and noted that Defendant had "been involved in the criminal justice system since [he] was very young." The judge also stated that during trial he learned of "the trauma that the victims went through." Later in the hearing, Defendant interrupted the trial judge and, consistent with his defense at trial, stated that he did not commit the crimes at issue. After the trial judge told him to be quiet, Defendant responded by swearing at the judge and making abusive threats to the judge and his family. As a result of this outburst, the trial judge ordered Defendant removed from the courtroom. The judge then proceeded with sentencing, stating:

If that's the kind of people we got over in Iraq, maybe we ought to get out. I suspect that's not the case. I suspect there are good people, just like everywhere else in the world. Mr. Alfatlawi is not one of them. He is a criminal of the worst kind. He preys on people that are minding their own business. He robbed a store where a lady was trying to make a new store work, in the middle of the night. They took advantage of a widow in the Cove area, who went out . . . to try and give assistance, and they terrorized her. A man coming home, unloading his baggage in his home, they robbed. A young woman walking down the street, who was out of gas, in the night, coming home from work, they attempted to rob her. She didn't have anything, so they couldn't take it. Random acts of violence, for example, on [one of the victims]. This is just outside the pizza store on 13th there. They pull up and point a gun at him and demand money. He only has five dollars, but he gives it to them. And on and on and on.

This is the kind of guy that ought to be off the street for a long period of time, as long as I can make it. Considering his attitude, if the Board of Pardons let's [sic] him out in other than a box, they are nuts, because he will do this again. It is too bad we can't deport him back to Iraq. If I had any say-so about it, that's exactly where he would go, and he can deal with the situation over there. He would last about 20 minutes, with his attitude.

But, in any event, Mr. Alfatlawi has earned and he gets from me a consecutive sentence on each one of these. They all run consecutively. By my count it is 70 years to life. . . . This guy deserves to be in prison for a long, long time. Commitment forthwith. You can give him the good news, Mr. Simms.

. . . .

. . . . Tell Mr. Alfatlawi to have a nice life.

Thus, the trial court ordered Defendant to serve his seven sentences consecutively. See id. § 76-3-401 (2003).

¶ 10 Appellate counsel moved for a remand to determine whether trial counsel performed ineffectively, see Utah R.App. P. 23B, which motion was denied. Defendant now appeals his convictions and sentences.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Defendant raises eight issues on appeal. Six of Defendant's claims involve allegations of ineffective assistance of counsel in violation of his rights under both the United States and Utah Constitutions. See U.S. Const. amend. VI; Utah Const. art. I, § 12. "When an ineffective assistance of counsel claim `is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law.'" State v. Holbert, 2002 UT App 426, ¶ 26, 61 P.3d 291 (quoting State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998)).

¶ 12 Five of Defendant's arguments include allegations of plain error. To establish plain error and to obtain appellate relief from an alleged error that was not properly objected to, Defendant must show that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for [Defendant]." State v. Cruz, 2005 UT 45, ¶ 16, 122 P.3d 543 (...