State v. Labrum
| Decision Date | 16 August 1994 |
| Docket Number | No. 930235-CA,930235-CA |
| Citation | 881 P.2d 900 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Troy LABRUM, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Before ORME, Associate P.J., and BILLINGS and DAVIS, JJ.
Defendant Troy Labrum appeals his conviction for attempted criminal homicide, a second degree felony. 1 We affirm the conviction, but clarify the calculation of defendant's sentence.
"We recite the facts in the light most favorable to the jury's verdict." State v. Cosey, 873 P.2d 1177, 1178 (Utah App.1994). Accord State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992).
On September 20, 1992, Daniel Suluai, Wilmer and Sergio Weffer, and Daniel Owen were in a Mitsubishi, traveling eastbound on 2100 South in Salt Lake City, Utah. At the intersection of 2100 South and West Temple, while stopped at a light, the front-seat passenger in a Mercury Topaz flashed gang signs at the occupants of the Mitsubishi. David Mills was driving the Topaz, defendant Troy Labrum was the front-seat passenger, and Joshua Behunin was riding in the back seat. The Topaz followed the Mitsubishi to the intersection of 2100 South and Seventh East, at which point Troy Labrum leaned out of the front-seat passenger window, extended his arms over the top of the car, and fired at least five bullets into the Mitsubishi. The barrage broke out both passenger-side windows, and one bullet struck Daniel Suluai in the back while another passed through Sergio Weffer's hair.
The State charged Troy Labrum, David Mills, and Joshua Behunin with the second degree felony of attempted murder. 2 See note 1. The State also sought firearm and "gang" sentence enhancements. See Utah Code Ann. §§ 76-3-203 (1990), 76-3-203.1 (Supp.1993).
Defendants were tried by jury over the course of three days. In his closing argument, the prosecutor made the following statements concerning the credibility of witnesses that testified for the State:
But I thought Mr. Owens was at least candid and honest and he said, I didn't recognize [Mr. Mills] because he changed his appearance and it threw me off.
....
It's just an incredible coincidence that a police officer sees these three people together?
I thought [the officer] was very candid and honest. He didn't try to overstep it. He didn't say he was positive Mr. Mills was driving the car. He said it was a black man. It looked like Mr. Mills; I assumed it was Mr. Mills.
At the close of the trial, the judge instructed the jury concerning its responsibilities, the elements of the charged offense, and the burden of proof. While the court reporter did not transcribe the judge's reading of the final jury instructions, she noted that the judge added comments to the final written jury instructions while reading them to the jury. According to the court reporter,
[t]hroughout the reading of the Instructions, the Judge injected comments which were not part of the written Instructions. These comments were inserted in an ad lib manner, and I was not aware that his words were anything other than what was on the printed page until after hearing completed sentences. Therefore, these comments were not reported.
After deliberating, the jury convicted Labrum and co-defendant Mills of the crimes charged. On March 22, 1993, the trial court sentenced Labrum to a term of 1-15 years for attempted murder, to run consecutively with a six-year gang enhancement and a 1-5 years firearm enhancement. 3 At Labrum's initial hearing before the Board of Pardons, the Board indicated that his total sentence would run twenty-six years, expiring on October 1, 2018.
Labrum appeals his conviction, arguing that gaps in the transcribed jury instructions prevent meaningful review and that the prosecutor engaged in reversible misconduct by vouching for the truthfulness of the State's witnesses. Labrum also challenges his sentence, arguing that the trial court erred in imposing a firearm enhancement absent a specific finding that a firearm was used in the offense and that the gang enhancement statute is unconstitutional or, if constitutional, was misapplied by the trial court. Finally, Labrum contends that the Board of Pardons has misconstrued the sentence imposed by the trial court. 4 The State counters Labrum's arguments, but chiefly contends that he failed to preserve these issues for appeal.
"As a general rule, appellate courts will not consider an issue, including a constitutional argument, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances." State v. Brown, 856 P.2d 358, 359 (Utah App.1993). In the instant case, defendant failed to object to the trial court's deviations from the written jury instructions 5 or to the prosecutor's comments, and did not challenge the adequacy of the findings supporting the sentence enhancements or the constitutionality of the gang enhancement statute before the trial court. Therefore, absent plain error or exceptional circumstances, defendant will not now be heard to complain that the judge erroneously instructed the jury, that the prosecutor's conduct was improper, that the findings are inadequate, or that the gang enhancement statute is unconstitutional. See, e.g., State v. Emmett, 839 P.2d 781, 785 (Utah 1992) (); State v. Bywater, 748 P.2d 568, 569 (Utah 1987) (); State v. Verde, 770 P.2d 116, 120 (Utah 1989) (); Utah R.Crim.P. 19(c) (same); State v. Palmer, 860 P.2d 339, 342 (Utah App.) (failure to object to prosecutor's allegedly improper remarks constitutes waiver of claim, unless remarks constitute plain error), cert. denied, 868 P.2d 95 (Utah 1993); State v. Cummins, 839 P.2d 848, 853 (Utah App.1992) (same), cert. denied, 853 P.2d 897 (Utah 1993); State v. Ross, 782 P.2d 529, 532 (Utah App.1989) (same).
Defendant contends we should reach two of his issues on plain error grounds. In order for defendant to succeed on a plain error argument, he must demonstrate that the error should have been obvious to the trial court and that the error is harmful in the sense that there is a reasonable likelihood of a more favorable outcome for the accused in the absence of the error. See State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993).
Defendant asserts that the failure to record the court's jury instructions and the court's extemporaneous remarks constituted plain error. However, the mere existence of transcription errors does not mandate a new trial. State v. Menzies, 845 P.2d 220, 228 (Utah 1992). Defendant has neither shown that a possible error exists as a result of the ad lib commentaries, nor that the missing transcript impairs his ability to argue his case on appeal. 6 Because he is unable to demonstrate prejudice, defendant has failed to show that the extemporaneous remarks and the failure to record the reading of the jury instructions constituted plain error on the court's part. Cf. State v. Gray, 601 P.2d 918, 920-21 (Utah 1979) ().
Defendant contends that the prosecutor's comments during closing argument bolstered the credibility of the State's witnesses and that the court committed plain error in permitting the remarks to be made. However, while a prosecutor may not assert personal knowledge of the facts, a prosecutor may draw permissible inferences from the evidence, State v. Parsons, 781 P.2d 1275, 1284 (Utah 1989), and a prosecutor may comment on a witness's credibility to that extent. State v. Cummins, 839 P.2d 848, 854 n. 15 (Utah App.1992), cert. denied, 853 P.2d 897 (Utah 1993).
The prosecutor's comments in this case were not asserted as personal knowledge concerning the accuracy of the witnesses' testimony. Rather, the prosecutor simply commented on the witnesses' credibility by pointing out that the witnesses were willing to admit when they could not testify to specific facts. These statements were nothing more than inferences about witness credibility that the prosecutor properly drew from the content of the testimony. Accordingly, there was no error, plain or otherwise, in permitting the prosecutor's comments.
Defendant claims that exceptional circumstances require us to hear his constitutional challenge to the "gang enhancement" statute, Utah Code Ann. § 76-3-203.1 (Supp.1993). 7 Defendant concedes that he failed to raise this challenge before the trial court. However, he points out that the trial court failed to make written findings as required by Utah Code Ann. § 76-3-203.1(5)(c) (Supp.1993). Defendant claims that such a failure requires us to remand for the entry of findings and, therefore, we should, in the interest of judicial economy, address his constitutional claim in order to guide the trial court, as defendant would challenge the constitutionality of the statute on remand.
While we doubt, in any event, defendant's ability to make substantive arguments not raised at trial on a remand ordered merely for the entry of findings, defendant has advanced no legal authority to support the conclusion that judicial economy is a...
To continue reading
Request your trial
-
State v. Saunders
...sexual abuse or the jury instruction on unanimity constituted ineffective assistance of counsel. We recently observed in State v. Labrum, 881 P.2d 900 (Utah App.1994), that "if the error was plain to the trial court, it should also have been plain to trial counsel, who should have raised an......
-
State v. Irwin
...economy would be regarded as a valid exceptional circumstance, but subsequent case law suggests otherwise. See, e.g., State v. Labrum, 881 P.2d 900, 904 (Utah App.1994) (explicitly rejecting considerations of judicial economy as adequate to trigger exceptional circumstances doctrine), rev'd......
-
State v. Labrum, 940499
...enhancement imposed on Troy Labrum after his conviction for attempted criminal homicide, a second degree felony. See State v. Labrum, 881 P.2d 900 (Ct.App.1994), cert. granted, 892 P.2d 13 (Utah 1995). Labrum asserted in the Court of Appeals that the trial court erred in not entering writte......
-
State v. Moreno, 950213-CA
...will not consider issues raised for the first time on appeal unless plain error or exceptional circumstances exist. State v. Labrum, 881 P.2d 900, 903 (Utah App.1994), cert. granted 892 P.2d 13 (Utah 1995). Defendant has made no argument of plain error or exceptional circumstances. We there......