State v. Bryant

• Decision Date: 13 August 1998
• Docket Number: No. 971170-CA,971170-CA
• Citation: 965 P.2d 539
• Parties: 349 Utah Adv. Rep. 42 STATE of Utah, Plaintiff and Appellee, v. Wilbert BRYANT, Jr., Defendant and Appellant.
• Court: Utah Court of Appeals

Page 539

965 P.2d 539

349 Utah Adv. Rep. 42

STATE of Utah, Plaintiff and Appellee, v. Wilbert BRYANT, Jr., Defendant and Appellant.

No. 971170-CA.

Court of Appeals of Utah.

Aug. 13, 1998.

Edwin Stanton Wall, Salt Lake City, for Defendant and Appellant.

Jan Graham, Atty. Gen., and J. Frederic Voros, Jr., Asst. Atty. Gen., Criminal Appeals Div., Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., and BILLINGS and JACKSON, JJ.

DAVIS, Presiding Judge:

Defendant Wilbert Bryant, Jr., appeals his jury convictions for aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1995), aggravated sexual assault, a first degree felony, in violation of Utah Code Ann. § 76-5-405 (1995) (amended 1996 & 1997), and aggravated burglary, a first degree felony, in violation of Utah Code Ann. § 76-6-203 (1995). We affirm.

FACTS

" 'In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict,' and recite the facts of this case accordingly." State v. Scales, 946 P.2d 377, 379 (Utah Ct.App.1997) (quoting State v. Dunn, 850 P.2d 1201, 1205-06 (Utah 1993)).

The victim is a seventy-one-year-old woman who for thirty-five years has lived and worked at the Spiking Tourist Lodge in Salt Lake City, Utah, as its manager. On March 13, 1996, at 10:30 p.m., the victim was watching television in the manager's apartment of the motel when the doorbell rang. Looking through the locked door, she recognized defendant who had rented a room the previous weekend, and assumed he intended to rent a room again. Defendant then entered the office and grabbed the victim by the arms and said, "I want your money." In a struggle, defendant pushed the victim into her living room and onto a couch and told her "that he had a gun and that he would kill [her] if [she] didn't be quiet."

Defendant jerked the victim's blouse, popping five buttons off, and ripped her pants open, pulling off a button and tearing the zipper. Defendant then removed the victim's pants and exercise stretch pants worn underneath her pants. Next, he pulled her off the couch and started pushing her toward her bedroom. Again, defendant told the victim "that he had a gun, that he would kill [her] if [she] didn't give him the money." She told him that the money was in the drawer in the office. The victim did not see a gun and "wasn't sure" if defendant had one, but testified, "[w]hen someone tells you they have one, you assume maybe they are saying that they do."

Defendant pushed the victim onto the foot of her bed. Although she continued to struggle, the victim did not scream for fear that defendant would fulfill his threat to kill her. Defendant tied the victim's hands behind her back and put a pair of pantyhose around her open mouth. Then he pushed her legs apart and put two or three of his fingers inside of her vagina for 15-30 seconds. The victim testified that he pushed her legs apart so hard "that it was like he was going to push one of my legs out of its joint." Defendant then walked out of the bedroom.

After about five minutes of effort, the victim untied her hands, removed the gag, and, in hysterics, telephoned a co-worker/friend. At that time, the victim noticed that her purse and the "folding money" from the cash drawer were gone. When the police arrived, the victim gave them defendant's name, his physical description, including a tattoo on his neck, and a description of his car. She also later identified defendant's picture from a photo array. Although personnel at the crime scene encouraged the victim to go to the hospital to learn the extent of her injuries, she was too upset and wanted only to rest. The victim testified that she was in so much pain that evening that "[she] thought [she] better not sit down in the tub for fear there was so much injury that it might cause [her] to have some problems."

Defendant was charged with the following offenses: aggravated robbery, aggravated sexual assault, aggravated kidnaping, and aggravated burglary. Defendant filed a Notice of Intention to Offer Evidence of Alibi, including the testimony of Marie and Yolanda Sellers. During jury selection, when the court asked defense counsel to state the names of the witnesses he intended to call, he said he would call Marie and Yolanda Sellers, not stating that they were alibi witnesses. However, defense counsel neither subpoenaed nor called them.

The aggravated kidnaping count was dismissed on the State's motion, but the jury convicted defendant on all other counts. The day after the guilty verdict, defense counsel filed a motion for a new trial supported by no memorandum of law, but only by the affidavits of Marie Sellers and Yolanda Sellers incorporated by reference in the motion. Both affidavits state that defendant spent the entire evening with them drinking beer and eating pizza. However, Marie Sellers's affidavit also includes the following concluding paragraph:

A few days later after [defendant] was in jail for hitting my sister and for saying some hateful things to me, I was interviewed by the police at Yolanda's apartment. I did not tell them the truth. I told them that [defendant] had talked about robbing the old lady, because I was mad at him. He never said any such thing.

The trial court denied the motion, apparently without conducting a hearing, "for the reason that this [was] not 'newly discovered evidence.' " Also, these witnesses were known to defendant before trial, were not subpoenaed, and "there [was] no explanation in their affidavits as to why they did not appear as witnesses for the defendant at the time of trial." Defendant timely appealed.

ISSUES

Defendant presents several issues on appeal: 1) whether he was denied effective assistance of counsel when, after filing a notice of alibi, defendant's counsel failed to subpoena the alibi witnesses and proceeded to trial without them; 2) whether the trial court erred by instructing the jury concerning the elements of aggravated robbery and aggravated sexual assault; 3) whether a law enforcement officer's recital of the victim's account of the crime was inadmissible hearsay; 4) whether the trial court committed plain error in the following instances: a) when the prosecutor elicited from the victim witness that she told a fellow worker "who had robbed us," on the ground that she testified to a legal conclusion, b) in seating the jury, and c) when the prosecutor allegedly argued his personal beliefs and opinions in closing argument; and 5) whether cumulative error deprived defendant of a fair trial.

ANALYSIS

A. Ineffective Assistance of Counsel

Defendant argues his trial counsel was ineffective for failing to use compulsory process to secure the attendance and testimony of the alibi witnesses after filing the Notice of Alibi and then proceeding to trial. Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law. See State v. Ellifritz, 835 P.2d 170, 175 (Utah Ct.App.1992). However, "appellate review of counsel's performance must be highly deferential; otherwise the 'distorting effects of hindsight' would produce too great a temptation for courts to second-guess trial counsel's performance on the basis of an inanimate record." State v. Tennyson, 850 P.2d 461, 466 (Utah Ct.App.1993) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984)); accord State v. Callahan, 866 P.2d 590, 593 (Utah Ct.App.1993).

"In order to bring a successful ineffective assistance of counsel claim, appellant must show that his trial counsel's performance was deficient, in that 'it fell below an objective standard of reasonableness,' and that the deficient performance prejudiced the outcome of the trial." State v. Winward, 941 P.2d 627, 635 (Utah Ct.App.1997) (quoting Strickland, 466 U.S. at 687-88, 693, 104 S.Ct. at 2064, 2067); accord State v. Garrett, 849 P.2d 578, 579 (Utah Ct.App.1993). In reviewing an alleged deficiency in counsel's trial performance, "we must 'indulge in the strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that under the circumstances, the challenged action "might be considered sound trial strategy." ' " Garrett, 849 P.2d at 579 (quoting Strickland, 466 U.S. at 689, 104 S.Ct. at 2065) (citation omitted). Therefore, before we will reverse a conviction based on ineffective assistance of counsel, we must be persuaded that there was a " 'lack of any conceivable tactical basis' for counsel's actions." Id. (quoting State v. Moritzsky, 771 P.2d 688, 692 (Utah Ct.App.1989)); accord State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993). Put another way, "[i]f a rational basis for counsel's performance can be articulated, [the court] will assume counsel acted competently." Tennyson, 850 P.2d at 468.

Defense counsel filed a Notice of Intention to Offer Evidence of Alibi, naming Marie Sellers, Yolanda Sellers, and an unidentified Domino's Pizza delivery person as potential witnesses. During voir dire, defense counsel identified Marie and Yolanda as potential witnesses, but not as alibi witnesses. At trial, defense counsel structured the defense around defendant's alibi, but only defendant testified for the defense. Defendant claimed that, when the crime occurred, he was with his "ex-girlfriend" Marie Sellers, his "sister-in-law" Yolanda Sellers, and Yolanda's boyfriend, Mike, at Yolanda's house, eating pizza, drinking beer, and watching the evening news.

Defendant argues that his trial counsel's failure to compel the attendance of the alibi witnesses was ineffective assistance and prejudicial because the jury expected to hear from the alibi witnesses. We disagree and hold that failure to call the alibi witnesses was not ineffective assistance because there were...