State v. C.D.L.

• Decision Date: 25 February 2011
• Docket Number: No. 20090474–CA.,20090474–CA.
• Citation: 250 P.3d 69,676 Utah Adv. Rep. 11,2011 UT App 55
• Parties: STATE of Utah, Plaintiff and Appellee,v.C.D.L., Defendant and Appellant.
• Court: Utah Court of Appeals

250 P.3d 69

676 Utah Adv. Rep. 11

2011 UT App 55

STATE of Utah, Plaintiff and Appellee,

v.C.D.L., Defendant and Appellant.

No. 20090474–CA.

Court of Appeals of Utah.

Feb. 25, 2011.

Troy L. Booher and M. Lane Molen, Salt Lake City, for Appellant.Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee.Before Judges DAVIS, THORNE, and ROTH.

OPINION

ROTH, Judge:

¶ 1 Defendant C.D.L.¹ (Husband) appeals his conviction of four counts of aggravated assault, see Utah Code Ann. § 76–5–103 (2008), alleging that he received ineffective assistance from his trial counsel. We affirm.

BACKGROUND ²

¶ 2 While driving through traffic in Salt Lake City, Utah, near the intersection of 300 East and Williams Avenue at around 6:00 p.m. on a weekday, Husband ran his green Dodge Shadow two times into a red Ford Escort driven by his wife (Wife), who was accompanied by a passenger (Friend). In the first collision, Husband's vehicle struck Wife's vehicle with an audible crash, jolting her vehicle forward. Then, with little distance left between the two vehicles, Husband accelerated to approximately fifteen miles per hour before striking Wife's vehicle a second time. The impacts left only a few faint scratches on each vehicle, the airbags did not deploy, and Husband, Wife, and Friend did not report any injuries.

¶ 3 After the second collision, Wife drove toward the red traffic light at 300 East and 900 South and, in an attempt to evade Husband, maneuvered around another car already stopped at the light and ran through the red signal. Husband followed Wife for several blocks until both stopped at another red light by Liberty Park at the intersection of 700 East and 1300 South. While stopped at this light, Husband, visibly angry and yelling, got out of his vehicle and started toward Wife's vehicle on foot. Before Husband reached her vehicle, Wife sped around the other cars stopped at the red light, ran that red light, and drove away. Husband returned to his vehicle but ceased following Wife.

¶ 4 From another vehicle, two adult eyewitnesses (the Witnesses) had observed this “rolling domestic” as it unfolded. The Witnesses were stopped at the intersection of 300 East and Williams Avenue where, just ten feet in front of them, they watched Husband repeatedly run into Wife's car. They called 911 after witnessing the second impact. With authorities on the phone and fearful for Wife's and Friend's safety, the Witnesses followed Husband and Wife during the subsequent car chase and observed the entire course of events. At the intersection of 700 East and 1300 South where Husband got out of his car, one of the Witnesses began exiting his own vehicle intending to intervene, but Wife sped away and Husband's pursuit ended.

¶ 5 The Witnesses' 911 call provided police officers with a description of both vehicles, Husband's license plate number, and a report of the collisions and subsequent chase. From the Dodge Shadow's license plate number, police obtained the address and name of Wife, as both the Dodge Shadow driven by Husband and the Ford Escort she drove were registered under her name. Police convened at Wife's address and found the Dodge Shadow parked in the front lot and only Husband inside the residence. Husband admitted to police that he chased Wife in an attempt “to sort out some of the problems that they had.” Husband also told police his vehicle unintentionally collided with Wife's during the chase. Wife arrived at that address in the Ford Escort later in the evening and briefly met with police officers.

¶ 6 Husband was subsequently charged with four counts of aggravated assault. The State's theory of the case was that Husband's vehicle constituted a dangerous weapon when used to repeatedly hit Wife's vehicle. Husband's defense was that the collisions were accidental. In so arguing, Husband relied on the testimony of Friend, who described the entire incident as a “funny” misunderstanding that was not particularly startling. Friend testified that the first collision occurred because Wife stopped short and the second occurred when Wife rolled backwards into Husband because she improperly engaged the vehicle's clutch.

¶ 7 In response, the State relied primarily on testimony from the Witnesses and the two responding police officers. Wife did not testify at trial, and the State implied that her absence was illustrative of a broader cycle of domestic violence between her and Husband. Despite Wife's absence from trial, the Witnesses were able to testify that Wife's brake lights did not turn on and that she did not induce the first accident by stopping short, nor did she cause the second impact by rolling backwards into Husband. Rather, the Witnesses described both impacts as “rammings” resulting from deliberate actions taken by Husband to “terrorize” Wife in what they perceived to be more than a standard car accident.

¶ 8 The State also submitted a recording and the transcript of a 911 call placed by a woman who identified herself as Wife. Amidst a flurry of curses and yelling, the caller described her pursuer as her husband. She also described the location of both collisions, the subsequent chase, and the makes and models of the two vehicles involved. The caller's entire description of the events matched that provided by the Witnesses during their testimonies; and the caller's descriptions of the vehicles involved also corresponded with the vehicles described by the Witnesses as well as the vehicles police eventually found at Husband and Wife's home registered under Wife's name. Friend did not deny that this 911 call was placed by Wife and was unable to explain why, in light of Friend's own testimony that the situation was not startling, Wife would call 911.

¶ 9 Prior to trial, Husband's trial counsel objected to the admission of the recording and transcript of the 911 call on the grounds that they “lacked foundation, could not be properly authenticated, was hearsay, and was highly prejudicial,” specifically noting that there was no direct evidence that the caller, in fact, was Wife. The trial court overruled the hearsay and unfair prejudice objections, ruling that the 911 call constituted an excited utterance and was not unfairly prejudicial. The trial court, however, reserved ruling on the authentication objection in order to see what evidence on the issue was presented at trial. In this regard, the 911 dispatcher who answered the 911 call testified at trial, confirming that it was his voice on the recording and that the contents of both the recording and transcript accurately reflected the call as he remembered it. The State then moved to admit both the recording and transcript into evidence. At that time, the trial court asked whether Husband's trial counsel had any objections, and he declined to renew his authentication objection.

¶ 10 The jury found Husband guilty of four counts of aggravated assault. After trial and before sentencing, Wife submitted a Victim Impact Statement and an unsworn letter addressed to the trial court (collectively, the VIS), in which she admitted that she made the 911 call but described it as a fabrication intended to harm Husband. She further described the 911 call itself and her description of the collisions in the call as the premeditated product of her jealousy and anger originating from unspecified domestic problems. Wife also attributed the scratches on her Ford Escort to an earlier, unrelated car accident. She wrote of her desire to tell her story at trial but stated cryptically that she had been unable to testify because of her “legal situation.” Husband now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Husband raises three separate claims of ineffective assistance of counsel, alleging that his trial counsel was ineffective for (1) failing to move for a directed verdict on the basis that there was insufficient evidence to sustain the dangerous weapon aggravating element of the assault charges; (2) failing to renew his objections at trial to the admission of the recording and transcript of the 911 call as unauthenticated, hearsay, and unfairly prejudicial; and (3) failing to move for a new trial based upon newly discovered evidence—namely, Wife's posttrial statements in the VIS discrediting those statements made in the 911 call.

¶ 12 Ineffective assistance of counsel claims raised for the first time on appeal present questions of law. See State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). Review of Husband's ineffectiveness claims, however, implicates subsidiary standards of review for issues such as a motion for directed verdict based on insufficiency of the evidence, the admissibility of hearsay, and whether evidence is unfairly prejudicial. In order to facilitate our analysis, we will address the applicable subsidiary standard of review before analyzing each such issue.

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 13 To succeed on an ineffective assistance of counsel claim, Husband must show that his trial counsel's performance was both deficient and prejudicial. See Nicholls v. State, 2009 UT 12, ¶ 36, 203 P.3d 976 (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Failure to satisfy either component of this test is fatal to an ineffective assistance of counsel claim. See State v. Holbert, 2002 UT App 426, ¶ 53, 61 P.3d 291. The deficiency prong can be satisfied by showing that trial “ ‘counsel's representation fell below an objective standard of reasonableness' ” due to “ ‘errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” Nicholls, 2009 UT 12, ¶ 37, 203 P.3d 976 (footnote omitted) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Trial counsel's actions, however, are presumed to be part of a “sound trial strategy ... within the wide range of reasonable professional assistance.” Bryant, 965 P.2d at 542 (internal quotation marks omitted). To overcome this...