State v. Doutre

• Decision Date: 14 August 2014
• Docket Number: No. 20120944–CA.,20120944–CA.
• Citation: 335 P.3d 366,2014 UT App 192
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Christopher B. DOUTRE, Defendant and Appellant.

335 P.3d 366

2014 UT App 192

STATE of Utah, Plaintiff and Appellee

v.Christopher B. DOUTRE, Defendant and Appellant.

No. 20120944–CA.

Court of Appeals of Utah.

Aug. 14, 2014.

Rehearing Denied Oct. 16, 2014.

Samuel P. Newton, for Appellant.

Sean D. Reyes, Daniel W. Boyer, and Michelle I. Young, for Appellee.

Judge GREGORY K. ORME authored this Opinion, in which Senior Judges RUSSELL W. BENCH and PAMELA T. GREENWOOD concurred.¹

Opinion

ORME, Judge:

¶ 1 Defendant Christopher B. Doutre was convicted of attempted kidnapping, a first degree felony. He appeals that conviction, primarily arguing that the trial court improperly discouraged him from attending a jury view and that his trial counsel was ineffective for failing to object to the testimony of the State's expert witness. We reverse and remand.

BACKGROUND²

¶ 2 Making use of a few inches of late January snow before it melted, three girls went sledding on a small hill in an undeveloped lot in their Ogden neighborhood. One girl separated from the other two girls and began walking toward a nearby house where her mother was visiting with a friend. The girl testified that at some point she fell through the ice that had formed at the bottom of the hill and got stuck in the mud. She recounted that a man she had never met approached her from behind and grabbed her hand. She testified that he told her that her mother was by his truck, but she knew her mother was in the nearby house.

¶ 3 The other girls began yelling, and, according to their testimonies, the man fled. Based on the girls' descriptions of the truck and the clothes the man was wearing, police were able to find and arrest Defendant at his nearby apartment.

¶ 4 Defendant did not testify at trial, but Defendant's girlfriend testified that Defendant told her that he was leaving the apartment to get cigarettes. She told police that Defendant said that he saw a girl fall and walked over to see if she needed help. A police officer also testified that Defendant stated that he went out of his apartment for a smoke and talked to the girl, but that he only told her that her friends were calling her and that she should go with them.

¶ 5 During trial, the State requested that the jury be allowed to visit the sledding area in person. Defendant did not object to the proposed jury view, but jail policy required that law enforcement officers would need to restrain and escort Defendant during the visit. Both the trial court and Defendant's trial counsel were concerned about the prejudicial effect this might have in the minds of the jurors, and they engaged in an extended discussion about how to properly conduct the jury view. During this discussion, the trial court asked Defendant's counsel why she wanted him to attend the jury view at all, considering the high risk of unfair prejudice. She replied, “I don't want, but he may. That's his choice.” Defendant then volunteered, “I won't go, Your Honor.” The trial court did not immediately accept Defendant's offer, emphasizing that it did not want to “force [Defendant] one way or the other,” and encouraged Defendant to discuss the matter with his attorney. Defendant ultimately did not attend the jury view. Defendant's counsel was present during the jury view and did not raise any objections to the way in which it was conducted.

¶ 6 Back in the courtroom, the jury heard from several witnesses, including Detective Glenn Buss, one of the investigating police officers. The jury had already met Buss because he was appointed by the court to guide the jury during the jury view earlier that day. In addition to testifying about his investigation in general, the State used Buss as an expert witness to testify about what appeared to be evidence of footprints left in the snow. Buss claimed to have found footprints in the melting snow five days after the attempted kidnapping that he identified in court as coming from an adult wearing shoes and running—or at least striding—down the hill. He agreed with the State that the footprints “were consistent” with the girls' story.

¶ 7 After hearing all the evidence, the jury convicted Defendant of attempted kidnapping. He appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Defendant first argues that he was unlawfully deprived of his right to attend the jury view during his trial. Defendant contends that his trial counsel was ineffective for failing to object to conducting the jury view in Defendant's absence and that the trial court plainly erred in its handling of the matter. A claim of ineffective assistance of counsel raised for the first time on appeal presents a question of law. State v. Alfatlawi, 2006 UT App 511, ¶ 11, 153 P.3d 804. Normally, a claim of plain error requires a showing that “(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

¶ 9 Defendant also asserts that his trial counsel was ineffective for failing to object to the State's expert witness on the grounds that the expert lacked proper qualifications and that his testimony violated rule 702 of the Utah Rules of Evidence. Whether Defendant's counsel was ineffective in this regard presents a question of law. See Alfatlawi, 2006 UT App 511, ¶ 11, 153 P.3d 804.

ANALYSIS

I. Jury View

¶ 10 While they may be rare, jury views of crime scenes are explicitly authorized under the Utah Rules of Criminal Procedure. See Utah R.Crim. P. 17(j) (“When in the opinion of the court it is proper for the jury to view the place in which the offense is alleged to have been committed ... it may order them to be conducted ... to the place, which shall be shown to them by some person appointed by the court for that purpose.”). Generally, a criminal defendant has a constitutional right to be present during all phases of his or her trial, see Utah Const. art. I, § 12 ; State v. Hubbard, 2002 UT 45, ¶ 33, 48 P.3d 953, although it is not clear whether a simple jury view, where no evidence is admitted and no testimony is given, merits the same protections, see State v. Scott, 541 P.2d 810, 810 (Utah 1975) (noting that jury views are discretionary and that nothing in Utah law “gives the defendant or counsel any right or even privilege to be included in the” jury view). See also Snyder v. Massachusetts, 291 U.S. 97, 108–22, 54 S.Ct. 330, 78 L.Ed. 674 (1934) (holding that the “Fourteenth Amendment does not assure to a defendant the privilege to be present” at a jury view where no words are spoken because “[t]here is nothing he could do if he were there, and almost nothing he could gain,” but in all other circumstances “the justice or injustice of [excluding the defendant] must be determined in the light of the whole record”), overruled in part on other grounds by Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). But even assuming, arguendo, that Defendant did have a constitutional right to attend the jury's visit to the crime scene, this right can be validly waived. “[F]ailure by a criminal defendant to invoke his right to be present ... constitutes a valid waiver of that right.” United States v. Gagnon, 470 U.S. 522, 529, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (dealing with a defendant's right to be present pursuant to rule 43 of the Federal Rules of Criminal Procedure ). The same principle applies here, and we conclude that whatever right Defendant may have had to attend the jury view was waived when he voluntarily stated that he wished to stay behind.³

¶ 11 Defendant knew the jury view was going to take place. The trial court and trial counsel discussed several options to ensure that Defendant would be able to attend the jury view in a way that minimized, as much as possible, any prejudice. Defendant not only failed to assert any right to attend the jury view, but he affirmatively volunteered to stay behind. Under the circumstances, we must conclude that his waiver was knowing and voluntary. Thus, he cannot now claim plain error on the part of the trial court for its acceptance of his valid waiver.

¶ 12 Furthermore, we conclude that Defendant's trial counsel was not deficient for failing to insist, against her client's clearly stated wishes, that he attend the jury view. To demonstrate ineffective assistance of counsel, Defendant must show that his trial counsel's “representation fell below an objective standard of reasonableness,” see Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and that he was prejudiced thereby, see id. at 687, 104 S.Ct. 2052. If the “defendant has failed to prove that his counsel had no conceivable tactical basis for his actions,” then we will not consider trial counsel's representation to be constitutionally deficient. See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (internal quotation marks omitted).

¶ 13 In this case, we can readily conceive of tactical and otherwise reasonable bases for trial counsel's decisions. To begin with, trial counsel may have wisely concluded that the danger of the jury catching even a glimpse of Defendant being shackled and escorted like an already-convicted prisoner overwhelmed the scant benefit of his being present but silent at the jury view. Even if there was some imaginable way for Defendant to attend the jury view without visible restraints, Defendant's trial counsel may also have been worried about how his body language at the scene could be construed or misconstrued by attentive jurors. And she may well have felt that she would be better able to keep an eye on the jurors and their police escort if she was not also monitoring Defendant and fielding his questions or comments. Finally, trial counsel, like the trial court, may have accepted Defendant's knowing and voluntary waiver as sincere and sensible and therefore elected not to raise an objection out of a desire to “advance the legitimate interests of” her client. See Utah Standards of Professionalism & Civility 1. Because there is a conceivable tactical basis...