State v. Cummins

• Decision Date: 25 August 1992
• Docket Number: No. 900419-CA,900419-CA
• Citation: 839 P.2d 848
• Parties: STATE of Utah, Plaintiff and Appellee, v. William Robert CUMMINS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 848

839 P.2d 848

STATE of Utah, Plaintiff and Appellee, v. William Robert CUMMINS, Defendant and Appellant.

No. 900419-CA.

Court of Appeals of Utah.

Aug. 25, 1992.

Karl R. Johnson and Robert Michael Archuleta, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Charlene Barlow, Salt Lake City, for plaintiff and appellee.

Before BENCH, BILLINGS and ORME, JJ.

OPINION

ORME, Judge:

Defendant was convicted of one count of second degree murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1990). On appeal, defendant claims (1) the trial court committed reversible error in failing to remedy several instances of prosecutorial misconduct, and (2) he was deprived of the effective assistance of counsel because his trial attorney, who does not represent him on appeal, failed to timely file notices necessary for the use of psychiatric expert testimony. ¹ We affirm in part and remand in part.

FACTS

In the autumn of 1989, defendant was one of a group of men, employed by the Western Brine Shrimp Company, who resided and worked in a small trailer camp on the northwest shore of the Great Salt Lake. On the evening of October 25, 1989, defendant and several co-workers became extremely intoxicated at the camp, and engaged each other in a series of drunken confrontations involving a variety of weapons. At some point during the evening's bizarre revelry, defendant, in concert with three other employees, allegedly caused the death of co-worker Miguel Ramirez by repeatedly striking him with hands, feet, and a wrench. ² Defendant was charged with second degree murder. Following a preliminary hearing and bindover by the circuit court, defendant was arraigned on January 2, 1990, and entered a plea of not guilty. Trial was scheduled to begin on February 5, 1990.

During pre-trial preparation of the case, defense counsel apparently decided the best strategy at trial would be to introduce expert psychiatric testimony showing that, because defendant was severely intoxicated when the events in question occurred, he was unable to form any of the possible mental states for second degree murder. Accordingly, on January 16, 1990, defense counsel filed with the trial court a Motion for Appointment of Court Appointed Experts, which included requests for appointment of a blood-alcohol expert and of a psychiatrist, and a Motion to Allow Psychological Testing and Mental Evaluation. On the same day, defense counsel also filed a Notice of Intent to Claim Lack of Capacity to Form Intent, and a Notice of Intent to Call Psychiatric and Other Expert Witnesses.

The trial court held that defendant was prohibited from introducing evidence of his mental state, because his counsel had not filed the two notices within the time limits specified in Utah Code Ann. § 77-14-3 (1990), which provides the time period during which defense counsel must inform the prosecutor of the intent to assert a mental state defense. However, the trial court did grant defendant's request for a blood-alcohol expert. Although his testimony would address defendant's level of intoxication, and its physical and mental effects on defendant, the trial court expressly prohibited the blood-alcohol expert from discussing how such consumption may have diminished defendant's capacity to form intent. ³ In effect, the court found the blood-alcohol expert exempt from the notice requirement of section 77-14-3.

Defendant's attorney called the blood-alcohol expert at trial, and the expert testified that someone of defendant's weight, who had consumed alcohol in the quantity and timeframe claimed by defendant, ⁴ would probably have achieved a blood-alcohol level between .30% and .40% on the night of the murder, the figure the expert mentioned most frequently being .38%. Prosecution witnesses and the defendant testified as to the great amount of alcohol defendant drank that night, and defendant testified as to his long-term alcoholism. However, since defense counsel was prohibited from offering psychiatric testimony as to the effect such a high blood-alcohol level would have on defendant's capacity to form the requisite mental state for second degree murder, defense counsel was effectively barred from completing his preferred defense. ⁵ Defense counsel unsuccessfully asserted an alternative theory at trial--that defendant had not participated in the fatal phase of the altercation. Defendant was convicted of second degree murder, and was sentenced to a term of five years to life.

PROSECUTORIAL MISCONDUCT

Defendant first claims the trial court committed reversible error by failing to remedy several instances of prosecutorial misconduct that occurred during the trial. Specifically, defendant points to statements the prosecution made to the jury during closing arguments, and alleges those statements improperly (1) compared the strength of the evidence in this case with that of other cases, (2) misstated the testimony of several witnesses who testified as to defendant's intoxication, (3) personally vouched for the credibility of a prosecution witness, (4) disparaged the defense's strategy of acknowledging the propriety of a conviction on a lesser-included offense, (5) addressed the fact that a co-defendant had been convicted of second degree murder at a separate trial after asserting the same defense as defendant, (6) referred to defendant as a "criminal" and a "liar," and (7) suggested that defendant and a co-defendant had conspired to fabricate a false account of the circumstances surrounding Ramirez's death.

A. Standard of Review

This court will reverse on the basis of prosecutorial misconduct only if defendant has shown that

the actions or remarks of [prosecuting] counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result....

State v. Peters, 796 P.2d 708, 712 (Utah App.1990) (quoting State v. Gardner, 789 P.2d 273, 287 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990)). In determining whether a given statement constitutes prosecutorial misconduct, the statement must be viewed in light of the totality of the evidence presented at trial. Further, because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings on whether the prosecutor's conduct merits a mistrial will not be overturned absent an abuse of discretion. Gardner, 789 P.2d at 287.

B. Claims Properly Preserved For Appeal

Defendant moved for a mistrial immediately after the jury retired to deliberate. He claimed that the prosecution's statements during closing argument that defendant was a criminal ⁶ and that defendant and a co-defendant, Ray Cabututan, must have manufactured their testimony together ⁷ were so prejudicial as to warrant a new trial. We think defendant's motion adequately preserved those claims for review. See, e.g., Gardner, 789 P.2d at 277, 287 (when defendant, at close of penalty phase of trial, but before jury has returned a sentence, moves for mistrial on grounds of prosecutorial misconduct that occurred during penalty phase, issue of prosecutorial misconduct is preserved for appeal). Cf. Salt Lake County v. Carlston, 776 P.2d 653, 655 (Utah App.1989) (when defendant did not challenge jury selection until after return of adverse verdict, objection was not timely made). But see State v. White, 577 P.2d 552, 555 (Utah 1978) (objection made after jury retires to deliberate is not timely, as it does not give the trial court an opportunity to rectify any error or impropriety and therefore avoid the necessity of a new trial).

Utah law affords trial attorneys considerable latitude in closing arguments. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Counsel for both sides have a "right to discuss fully from their standpoints the evidence and the inferences and deductions arising therefrom." State v. Parsons, 781 P.2d 1275, 1284 (Utah 1989) (quoting State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988), cert. denied, 504 U.S. 911, 112 S.Ct. 1942, 118 L.Ed.2d 548 (1992)). Here, the trial court denied defendant's motion for mistrial on the grounds that the prosecution's characterization of defendant as a "criminal," and its suggestion that defendant had manufactured his testimony in corroboration with Cabututan, were "logically extensions of ... the facts of this case," and "reasonable inference[s]." ⁸ Thus, the trial court applied the correct standard to its determination of whether the statements were inappropriate, and we do not perceive any abuse of discretion in the court's denial of defendant's motion. See, e.g., State v. Day, 815 P.2d 1345, 1350 (Utah.App.1991) (given that counsel are generally afforded considerable latitude during closing arguments, prosecutor's statements did not rise to level of misconduct); Gardner, 789 P.2d at 287; State v. Tillman, 750 P.2d 546, 555 (Utah 1987). Cf. State v. Johnson, 663 P.2d 48, 51 (Utah 1983) (prosecution's statements in closing argument constituted misconduct when they brought to the jury's attention matters the jury would not be justified in considering), overruled on other grounds, State v. Roberts, 711 P.2d 235, 237 (Utah 1985); Walker v. State, 624 P.2d 687, 691 (Utah 1981) (in closing arguments, prosecution's express reliance on police testimony the prosecution knew to be false constituted misconduct).

C. Plain Error

Defendant failed to raise timely objections at trial to any of the other alleged instances of prosecutorial misconduct. However, he claims they are reviewable under Utah R.Evid. 103(d) as "plain error." See State v. Whittle, 780 P.2d 819, 821 (Utah 1989) ("[a]bsent a timely objection, we will review an alleged error ... only if it constitutes ...