State v. Hovater
| Decision Date | 20 March 1996 |
| Docket Number | No. 940618,940618 |
| Citation | 914 P.2d 37 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Michael Roger HOVATER, Jr., Defendant and Appellant. |
| Court | Utah Supreme Court |
Jan Graham, Atty. Gen., Joanne C. Slotnik, Asst. Atty. Gen., Salt Lake City, and William F. Daines, Ogden, for plaintiff.
Kent E. Snider, Ogden, for defendant.
Michael Hovater appeals from a conviction of distributing a controlled substance within 1,000 feet of a park, a first degree felony, in violation of section 58-37-8(1)(a)(ii), -8(5)(a)(v) of the Utah Code. -Hovater asserts that his trial attorney's conduct was so deficient that he was denied his constitutional right to the effective assistance of counsel under the Sixth Amendment to the United States Constitution, made applicable to the states through the Fourteenth Amendment, and article I, section 12 of the Utah Constitution. We affirm Hovater's conviction.
During the latter part of October 1993, Michael Thorton telephoned the Weber Morgan Narcotics Strike Force on a "tip-a-cop" line and spoke with Tony Faux, an undercover police officer. Thorton informed Faux that he possessed information about drug dealers and was willing to help police arrest and prosecute them. Thereafter, Thorton assisted Officer Faux in several undercover drug purchases by introducing the officer to drug dealers. On January 12, 1994, Thorton informed Officer Faux that Michael Hovater was selling narcotics from his home. Officer Faux decided to utilize Thorton in an attempt to purchase drugs from Hovater. Before embarking for Hovater's home, Officer Faux performed a routine search of Thorton to ensure that he possessed no contraband. Finding none, the two men traveled to Hovater's home, which was located directly across the street from a park and down the street from a school in Ogden, Utah. When they arrived, informant Thorton introduced Officer Faux to Hovater as "Jeff" and requested that Hovater sell methamphetamine to him. Hovater was reluctant to deal directly with Faux and, therefore, led Thorton into his bedroom. There, he gave Thorton a quantity of methamphetamine. Thorton left the bedroom and delivered the methamphetamine to Officer Faux. Faux then entered the bedroom and handed Hovater $50. Faux and Thorton then departed.
Hovater was subsequently charged by information with unlawful distribution of methamphetamine "within 1,000 feet of a school." He pleaded not guilty, and the matter was set for trial. On the first day of trial, the prosecution moved to amend the information to charge Hovater with unlawful methamphetamine distribution "within 1,000 feet of a park" instead of within 1,000 feet of "a school." Hovater objected to the amendment on the ground that the defense was deprived of adequate notice of the proposed amendment. His objection was overruled, and the matter proceeded to trial. A jury found Hovater guilty of unlawful distribution of methamphetamine within 1,000 feet of a park, and he was sentenced to five years to life in the Utah State Prison. Hovater appealed.
On appeal, Hovater claims that he was denied the effective assistance of counsel in violation of article I, section 12 of the Utah Constitution and the Sixth Amendment to the United States Constitution made applicable to the states through the Fourteenth Amendment. 1 Hovater claims that his legal representation was ineffective inasmuch as his attorney (1) failed to prepare an adequate defense by overly relying upon the original information alleging that the drug purchase occurred within 1,000 feet of a school; (2) failed to object to the prosecutor's direct examination of its witness, Officer Faux, whose testimony improperly bolstered informant Thorton's credibility; (3) failed to object when the prosecutor accused him of attempting to "skewer" the State's witnesses; and (4) failed to object to a remark by the prosecution during its closing argument implying that Hovater bore the burden of proving his innocence. The State responds that Hovater's attorney did not commit errors constituting ineffective legal representation and, even if such errors had indeed been made, the errors did not result in prejudice to Hovater.
To demonstrate constitutionally ineffective representation, a defendant must establish that (1) his counsel's performance was so deficient as to fall below an objective standard of reasonableness, and (2) but for his counsel's deficient performance, there is a reasonable probability that the outcome of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 2064, 2068, 80 L.Ed.2d 674 (1984); State v. Templin, 805 P.2d 182, 186-87 (Utah 1990). " 'A reasonable probability is a probability sufficient to undermine confidence in the outcome.' " Templin, 805 P.2d at 187 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). The determination of whether deficient performance affected the outcome of the trial must be made by considering "the totality of the evidence [and] taking into account such factors as whether the errors affect the entire evidentiary picture or have an isolated effect and how strongly the verdict is supported by the record." Id. Because Hovater's claim is raised for the first time on appeal, it will be reviewed "if the trial record is adequate to permit decision of the issue and defendant is represented by counsel other than trial counsel." State v. Humphries, 818 P.2d 1027, 1029 (Utah 1991). We find the trial record adequate and that Hovater is represented by counsel other than his trial counsel. Therefore, we will proceed to review his claim.
Hovater claims that he was denied effective assistance of counsel because his attorney overly relied, to the detriment of the overall defense, upon the original information that charged Hovater with unlawful methamphetamine distribution "within 1,000 feet of a school." When the prosecutor moved to amend the information to charge Hovater with unlawful methamphetamine distribution "within 1,000 feet of a park," Hovater's attorney objected, stating: Despite this argument, the trial court allowed the amendment.
Hovater contends that his attorney prepared no defense other than to rebut the State's allegation that the offense occurred within 1,000 feet of a school. However, the record shows otherwise. Hovater's main defense theory was that the methamphetamine belonged to Thorton and that on the morning of January 12, Thorton left his drugs at Hovater's home and then later that day, sold his drugs to Officer Faux pretending that the drugs belonged to Hovater. Hovater's attorney adduced testimony to this effect from two witnesses, Hovater and his wife. The same defense would have been pursued regardless of the crime's distance from the park or the school. His attorney's exuberance in objecting to the motion to amend the information does not contradict the fact that his counsel was prepared to proceed, and indeed did proceed, to defend Hovater by calling and questioning witnesses who testified as to his theory of defense. Hovater has failed to demonstrate that his attorney's intention to rebut the allegation that the crime occurred within a thousand feet of a school had a detrimental impact on the presentation of his primary defense--that Thorton sold the methamphetamine to Officer Faux.
Hovater asserts that his attorney was ineffective for failing to object to testimony offered by the prosecution to bolster informant Thorton's credibility in violation of rule 608 of the Utah Rules of Evidence. At trial, the prosecution's first witness was Officer Faux. During direct examination, the prosecutor asked him about the reliability of Thorton and specifically asked about Thorton's involvement in other cases:
....
....
During this exchange, Hovater's attorney did not object to either the prosecutor's questions or Officer Faux's responses thereto.
Hovater argues that Officer Faux's testimony concerning other convictions secured in part by the use of Thorton was adduced for the purpose of bolstering Thorton's credibility in clear violation of rule 608(a) of the Utah Rules of Evidence. Rule 608(a) provides:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:
...;
(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
Hovater contends that Thorton's credibility was never impugned prior to Officer Faux's bolstering testimony, this testimony was improperly elicited, and therefore, Hovater's lawyer should have objected to its admission.
The State responds that Thorton's credibility was indeed attacked during the opening statement of Hovater's attorney when he stated: ...
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Utah Standards of Appellate Review – Revised [1]
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