State v. Harrison, 990773.

• Decision Date: 13 April 2001
• Docket Number: No. 990773.,990773.
• Citation: 24 P.3d 936,2001 UT 33
• Parties: STATE of Utah, Plaintiff and Appellee, v. Flint Wayne HARRISON, Defendant and Appellant.
• Court: Utah Supreme Court

24 P.3d 936

2001 UT 33

STATE of Utah, Plaintiff and Appellee, v. Flint Wayne HARRISON, Defendant and Appellant.

No. 990773.

Supreme Court of Utah.

April 13, 2001.

Rehearing Denied May 16, 2001.

Mark L. Shurtleff, Att'y Gen., and Laura B. Dupaix, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Aric Cramer and Amy L. Clayton, Bountiful, for defendant. WILKINS, Justice:

¶ 1 A jury found defendant Flint Wayne Harrison guilty of first degree rape and second degree forcible sexual abuse, violations of sections 76-5-402 and 76-5-404 of the Utah Code. Defendant appeals, arguing that procedures that occurred at trial deprived him of his constitutional right to a fair trial. We reverse and remand for a new trial.

BACKGROUND¹

¶ 2 Defendant and the victim, A.G., both attended a party. The victim, a seventeen-year-old girl, testified that she became intoxicated at the party and passed out on the bathroom floor where she was raped by defendant. Defendant admitted that he and the victim engaged in sexual intercourse, but he insisted that the victim consented.

¶ 3 Prior to trial, the trial court appointed a guardian ad litem to represent the victim because she was a minor. During the trial, the court also permitted a victim's advocate to sit near the victim while she testified. In addition, the court permitted the guardian ad litem to sit at counsel table with the prosecutor, to question witnesses, and to make objections during the trial. In particular, the court permitted the guardian ad litem to ask follow-up questions of the State's witnesses, to object to defense counsel's questions on cross-examination, and to follow-up on the cross-examination of an expert witness called by defendant. However, the court expressly refused to permit the guardian ad litem to give an opening statement or closing argument. On one occasion, defense counsel objected to a question by the guardian ad litem of an expert witness, and the trial court sustained the objection, but the trial court did not instruct the jury to disregard the guardian ad litem's question.

¶ 4 The jury found defendant guilty of first degree felony rape and second degree forcible sexual abuse.

ANALYSIS

¶ 5 The crux of defendant's claim on appeal is that his constitutional right to a fair and impartial trial was violated because the trial court permitted the victim's advocate to sit near the victim while she testified, permitted the guardian ad litem to sit at counsel table with the State and to question witnesses, and failed to issue a curative instruction regarding the guardian ad litem's alleged improper question. Defendant further contends that if these errors standing alone did not deprive him of his right to a fair trial, the cumulative effect of the errors did.

¶ 6 The trial judge has broad latitude to control and manage the proceedings and preserve the integrity of the trial process. State v. Parsons, 781 P.2d 1275, 1282 (Utah 1989). However, when a courtroom action or arrangement is challenged as inherently prejudicial, as it is here, we consider whether the practice presents an unacceptable risk of bringing into play impermissible factors which might erode the presumption of innocence. See Holbrook v. Flynn, 475 U.S. 560, 570, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)

; Estelle v. Williams, 425 U.S. 501, 505, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). If the challenged practice is not inherently prejudicial, or the defendant fails to show actual prejudice, the judgment of the trial court will be affirmed. Holbrook, 475 U.S. at 572,

106 S.Ct. 1340.

I. THE VICTIM'S ADVOCATE

¶ 7 It is established law in Utah that a witness of tender years may be accompanied by an adult to ease the emotional turmoil of testifying in court. See State v. Keeley, 8 Utah 2d 70, 71-72, 328 P.2d 724, 725 (1958)

. This practice is one legitimately within the trial court's inherent powers. Neither party has identified, nor do we find express authority for or limitation of, this practice either in statute or in court rule.²

¶ 8 In this case, the victim was within a month of her eighteenth birthday at the time of trial. The prosecutor asked the trial court for permission to have the victim's advocate sit near A.G. at the time of her testimony to give her a sense of comfort. Defendant objected, arguing that A.G.'s birthday was only two weeks away, that there had been no showing of necessity for the presence of the victim's advocate, and that the requested arrangement presented the possibility of "non-verbal communication" between the advocate and the victim. In response, the prosecutor said that he had talked with A.G. and that she did not "particularly care either way" about having the victim's advocate sit near her during her testimony.

¶ 9 The trial court overruled defendant's objection, because it determined that it was common practice to have a victim's advocate sit with a minor called to testify "if they choose," so long as the adult did not prompt testimony in any way. The trial court further indicated that because of the physical arrangement of the courtroom, any inappropriate behavior by the victim's advocate would be obvious to the court, and would be dealt with appropriately. Consequently, the trial court exercised its inherent powers to control and manage the trial process and allowed the victim's advocate to sit near A.G. as she testified.

¶ 10 Defendant now argues that the very presence of the victim's advocate creates an improper and impermissible suggestion to the jury that A.G.'s testimony was more truthful than it would otherwise have been perceived by the jury without the victim's advocate present. However, defendant alleges no inappropriate behavior by the victim's advocate during A.G.'s testimony, nor is any revealed by our review of the trial record. As a result, we find no error in permitting the victim's advocate to sit near A.G. during her testimony. The practice of allowing a victim's advocate to accompany and sit near a minor victim during trial testimony is not inherently prejudicial to defendant, and defendant has made no showing of actual prejudice.

¶ 11 However, where A.G. apparently did not particularly care about having the victim's advocate nearby, and where A.G. was within two weeks of majority, the presence of the victim's advocate appears to have served little purpose. Although permitting the victim's advocate to sit nearby was clearly within the broad discretion afforded the trial court in managing the proceedings, any presumption that allowing such an advocate to accompany A.G. under these circumstances was required would be in error. The trial court just as easily could have denied the request of the prosecutor under these circumstances without committing error.

¶ 12 Clearly, the need for a victim's advocate or other support person to accompany a witness while testifying decreases with the increasing maturity of the witness. However, absent a showing of prejudice, the matter is one best left to the sound discretion of the trial court after taking into consideration the age, maturity, emotional stability, and rigors facing a particular child witness, among other factors. These must be weighed against any appearance of inappropriate bolstering of the testimony by the presence of the support person, and any likelihood of interference with the testimony. While A.G. may not have been a witness of "tender years" entitled to, or needing, the support of another nearby while testifying, the record discloses no factors other than her chronological age upon which we may independently review the propriety of the court's decision. As such, we defer to the trial court, assuming other factors were evident upon which it relied. We decline defendant's invitation to say that being nearly eighteen years old excludes A.G. from this category as a matter of law.

II. EXTENT OF TRIAL PARTICIPATION OF THE GUARDIAN AD LITEM

¶ 13 The defendant next claims that the extent of the guardian ad litem's participation in the criminal trial exceeded any statutory authority, and that it implicated his constitutional right to due process and a fair trial. Specifically, defendant insists that the trial court erred in permitting the guardian ad litem to sit at counsel table with the prosecutor, to make objections, and to question witnesses during the trial. The State responds that the role played by the guardian ad litem at trial was nearly trivial, involving only three witnesses, and that the guardian ad litem's questions revealed no new evidence. As a result, the State contends that any error associated with the guardian ad litem's role in the criminal trial is without legal consequence and is therefore harmless.

A. Standard of Review

¶ 14 The State initially insists that the defendant should be precluded from presenting on appeal issues relating to the guardian ad litem's participation at trial because they were not raised before the trial court. Defendant counters that he objected to the guardian ad litem's questioning of witnesses at the pretrial conference. However, a transcript of the pretrial conference does not exist. In fact, we cannot identify any evidence in the record indicating that defense counsel preserved this issue for appeal by asking the trial court to rule on it. Nevertheless, claims not raised before the trial court may be raised on appeal where, as the defendant argues here, the trial court committed plain error. Consequently, we review the extent of the guardian ad litem's participation for plain error.

¶ 15 To establish the existence of plain error, a defendant must demonstrate 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 the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).

B. The Guardian Ad Litem's...