State v. Malaga, 20030347-CA.

• Decision Date: 16 March 2006
• Docket Number: No. 20030347-CA.,20030347-CA.
• Citation: 132 P.3d 703,2006 UT App 103
• Parties: STATE of Utah, Plaintiff and Appellee, v. Darius Peni MALAGA, Defendant and Appellant.
• Court: Utah Court of Appeals

132 P.3d 703

2006 UT App 103

STATE of Utah, Plaintiff and Appellee, v. Darius Peni MALAGA, Defendant and Appellant.

No. 20030347-CA.

Court of Appeals of Utah.

March 16, 2006.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Elizabeth Hunt, Elizabeth Hunt LLC, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Karen A. Klucznik, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

DAVIS, Judge:

¶ 1 Darius Malaga (Defendant) appeals his conviction for murder, aggravated kidnaping, aggravated robbery, and conspiracy to commit murder. We affirm.

BACKGROUND

¶ 2 These appellate proceedings arise out of a trial held in January 2003, in which Defendant was convicted of the murder of Amy Tavey, as well as the conspiracy to murder and the aggravated kidnaping and aggravated robbery of Keith Williams. Codefendant Silia Olive was convicted of aggravated kidnaping and felony murder.

¶ 3 On May 3, 2002, Olive and her minor friend, A.M., lured Williams and his girlfriend Tavey to Olive's home in order to assault, kidnap, and murder Williams in retribution for something Williams allegedly had done. Immediately upon entering Olive's home, Williams was ambushed — Defendant hit him over the head with a gun, others joined in beating him, and Williams's wallet, necklace, ring, cell phone, watch, and car keys were stolen. Williams's hands and mouth were then bound with duct tape and he was forced to get into the trunk of his own vehicle, Defendant all the while telling Williams that Defendant was going to kill him. Tavey, meanwhile, was forced into another vehicle with Olive, A.M., and two other people who had been in Olive's home during the assault.

¶ 4 The two vehicles then left Olive's home, with Defendant driving Williams's vehicle and Olive driving the other vehicle. The cars drove in tandem towards a residence where A.M. was staying, which was near the Jordan River. Not long into the trip, Williams was able to free his hands from the duct tape, pop the trunk from the inside, and escape undetected from his own car. Meanwhile, in the other car, Tavey was being assured that nothing would happen to her if she "[kept her] mouth shut."

¶ 5 As the two cars approached the residence, Defendant pulled up next to Olive. Defendant briefly spoke to Olive and then drove away. Olive parked the car and let A.M. get out. A.M. entered the residence, while Tavey and the three others stayed in or near the car. Approximately thirty minutes later, Defendant returned. He appeared very angry and agitated, as he had apparently discovered Williams's escape. He demanded to know where Tavey was, then pulled Tavey from the car and led her away by her arm. A few minutes later, Olive and the others in the car heard multiple gunshots. Inside the residence, A.M. also heard gunshots.

¶ 6 Tavey's body was found the next morning floating near the north shore of the Jordan River. An autopsy revealed that she had been killed by gunshots fired into her back that penetrated her heart and lungs. On January 29, 2003, Defendant was convicted of the murder of Tavey, as well as the conspiracy to murder and the aggravated kidnaping and aggravated robbery of Williams. Defendant was sentenced to the maximum sentence possible on each count, the sentences to run consecutively. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 7 Defendant argues that many of the instructions given to the jury constituted either trial errors or structural errors. See Arizona v. Fulminante, 499 U.S. 279, 310, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (defining trial error as "simply an error in the trial process itself" and structural error as a "structural defect affecting the framework within which the trial proceeds"). Generally, "whether a jury instruction correctly states the law presents a question of law which we review for correctness." State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 566 (quotations, citation, and alteration omitted). Here, however, Defendant concedes that he affirmatively approved the jury instructions at trial, and therefore argues that we should address purported errors made in the jury instructions under the doctrines of plain error/manifest injustice, exceptional circumstances, or ineffective assistance of counsel. For the reasons discussed below, we review the jury instructions only under the ineffective assistance of counsel doctrine.

¶ 8 Defendant first requests that we review the jury instructions under the plain error/manifest injustice doctrine. See Utah R.Crim. P. 19(e) ("Unless a party objects to an instruction . . ., the instruction may not be assigned as error except to avoid a manifest injustice."); State v. Casey, 2003 UT 55, ¶ 40, 82 P.3d 1106 (equating manifest injustice to the plain error standard). We decline to do so because Defendant affirmatively approved of the jury instructions, and he conceded in his reply brief that the invited error doctrine precludes our examining the purported structural and trial errors under the plain error/manifest injustice doctrine. See State v. Hamilton, 2003 UT 22, ¶ 54, 70 P.3d 111 (holding that jury instruction may not be assigned as error "if counsel, either by statement or act, affirmatively represented to the court that he or she had no objection to the jury instruction"); see also State v. Geukgeuzian, 2004 UT 16, ¶¶ 8-12, 86 P.3d 742 (holding that invited error doctrine precluded court from addressing purported structural error); State v. Chaney, 1999 UT App 309, ¶¶ 52-55, 989 P.2d 1091 (refusing to review elements instruction that omitted mens rea, despite the fact that such an instruction constituted reversible error, because defendant invited error); State v. Perdue, 813 P.2d 1201, 1205 (Utah Ct.App.1991) (refusing to review reasonable doubt instruction that purportedly constituted structural error because defendant invited the error).

¶ 9 Similarly, Defendant cannot rely upon the exceptional circumstances doctrine. The concept of exceptional circumstances is "used sparingly, properly reserved for truly exceptional situations . . . involving rare procedural anomalies." State v. Irwin, 924 P.2d 5, 11 (Utah Ct.App.1996) (quotations and citation omitted). In order to find exceptional circumstances, Utah authority "requires something much more exceptional than mere oversight by trial counsel in failing to object" to jury instructions. Id. "To permit the use of the exceptional circumstances concept here, we would have to employ it in every case where there might have been ineffective assistance at trial. . . ." Id.

¶ 10 We will, however, examine Defendant's claims of structural and trial errors in the jury instructions under the ineffective assistance of counsel doctrine. "Where, as here, a claim of ineffective assistance of counsel is raised for the first time on appeal without a prior evidentiary hearing, it presents a question of law." State v. Bryant, 965 P.2d 539, 542 (Utah Ct.App.1998). "To prevail on a claim of ineffective assistance of counsel, [Defendant] must show that (1) trial counsel's performance was objectively deficient and (2) there exists a reasonable probability that absent the deficient conduct, the outcome would likely have been more favorable to [Defendant]." State v. Mecham, 2000 UT App 247, ¶ 21, 9 P.3d 777 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). "The failure of counsel to make . . . objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (quotations and citation omitted).

¶ 11 Although there are certain circumstances in which prejudice may be presumed under Strickland, see Strickland, 466 U.S. at 692, 104 S.Ct. 2052, here Defendant has the burden of demonstrating prejudice despite the fact that he has alleged structural error, see State v. Cruz, 2005 UT 45, ¶ 18, 122 P.3d 543 (stating in dicta that "a defendant claiming constitutional error who did not object at trial may only argue plain error or ineffective assistance of counsel on appeal and thus must prove prejudice, even if the constitutional error claimed on appeal is structural in nature"); State v. Arguelles, 921 P.2d 439, 441-42 (Utah 1996) (naming circumstances in which prejudice may be presumed, but refusing to presume prejudice despite the fact that defendant argued that structural error occurred); see also Batiste v. State, 888 S.W.2d 9, 14-16 (Tex.Crim.App. 1994) (en banc) (declining to hold that every structural defect is per se exempt from the prejudice prong of Strickland); State v. Flynn, 190 Wis.2d 31, 527 N.W.2d 343, 353 (Ct.App.1994) ("[E]ven certain structural defects in the trial mechanism are subject to Strickland's prejudice prong. . . ."). "Further, in cases in which it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, we will do so without addressing whether counsel's performance was professionally unreasonable." State v. Strain, 885 P.2d 810, 814 (Utah Ct.App.1994) (quotations and citation omitted).

¶ 12 Defendant also alleges the trial court erred in imposing the maximum mandatory sentence for aggravated kidnaping without making findings regarding mitigating factors. See Utah Code Ann. § 76-3-201(6)(d) (Supp.2002). Generally, we review sentencing decisions "to determine whether the court exceeded its permitted range of discretion," State v. Diaz, 2002 UT App 288, ¶ 27, 55 P.3d 1131, and we will reverse only "if we determine that the trial court has failed to consider all legally relevant factors, or imposed a sentence that exceeds legally prescribed limits," State v. Moreno, 2005 UT App 200, ¶ 8, 113 P.3d 992 (quotations and citation omitted). However, Defendant concedes that this issue was not preserved by his trial counsel and therefore asks us to review this purported error under the plain error or ineffective assistance of counsel doctr...