State v. Marchet

• Decision Date: 26 June 2014
• Docket Number: No. 20100777–CA.,20100777–CA.
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Azlen Adieu Farquat MARCHET, Defendant and Appellant.

330 P.3d 138

763 Utah Adv. Rep. 66

STATE of Utah, Plaintiff and Appellee,

v.Azlen Adieu Farquat MARCHET, Defendant and Appellant.

No. 20100777–CA.

Court of Appeals of Utah.

June 26, 2014.

David M. Corbett, Craig L. Pankratz, and Steve S. Christensen, for Appellant.

Sean D. Reyes and Mark C. Field, for Appellee.

Judge JOHN A. PEARCE authored this Opinion, in which Judge STEPHEN L. ROTH and Senior Judge PAMELA T. GREENWOOD concurred.¹

Opinion

PEARCE, Judge:

¶ 1 Azlen Adieu Farquat Marchet appeals from his conviction of rape, a first degree felony.² We affirm.

BACKGROUND ³

¶ 2 Marchet's conviction results from his 2003 rape of S.W., a woman he knew casually through her place of employment. On October 16, 2003, S.W. visited a Salt Lake City dance club. By apparent coincidence, Marchet was also at the club that evening. Marchet approached her. She recognized and hugged him. Marchet asked her if she wanted to see a new luxury SUV he had parked outside. She did, and the two walked out the front door of the club together.

¶ 3 Marchet guided S.W. to an unlit parking area, but S.W. stopped when she did not see the vehicle that Marchet had described. At that point, Marchet—who was much larger than S.W.—nudged S.W. between two parked cars and began to kiss her. She struggled and managed to temporarily break away, but Marchet grabbed her arm and pulled her back. He then placed her hand on his exposed penis. She told him, “That's not what I came out here for.”

¶ 4 Despite her protests, Marchet grabbed S.W. by the waist and flipped her around so that she was facing away from him. Marchet pinned S.W.'s arms against her midsection with one arm and pulled her pants down. S.W. continued to struggle and protest as Marchet attempted to penetrate her anally. When that attempt failed, Marchet penetrated her vaginally. Marchet eventually released S.W. She then pulled up her pants and ran back toward the club. He chased after her, caught up, and asked, “[Y]ou're not going to pull a Kobe Bryant on me, are you?” ⁴ She ran back into the club distraught and crying. She immediately told club employees that she had been raped.

¶ 5 A Salt Lake City Police Department officer, Officer Miller, was at the club performing a bar check. Club employees notified Miller of S.W.'s rape allegations. Miller met with S.W. for about forty-five minutes. During their discussion, S.W. was upset, shaking, and crying. S.W. told Miller that Marchet had just sexually assaulted her. That same night, a forensic nurse, Nurse Thompson, examined S.W. During the examination,Thompson documented no readily apparent physical injuries. She did, however, observe redness around S.W.'s vaginal opening that she interpreted as an injury consistent with nonconsensual sex.

¶ 6 The State charged Marchet with one count of rape. Prior to trial, the State moved for the admission of evidence of sexual assaults that Marchet had committed against two other women, A.H. and P.C.⁵ The State argued that the testimony of the two women would be offered for the noncharacter purposes of proving intent, a common scheme or plan, absence of mistake or accident, and lack of S.W.'s consent. After examining the similarities between the other sexual assaults and the charged rape of S.W. to determine relevance and potential for unfair prejudice, the district court granted the State's motion and allowed the testimony.⁶

¶ 7 At trial, S.W. recounted her version of events as described above. Officer Miller testified about the interview she had conducted with S.W. shortly after the assault, including S.W.'s “hysterical” demeanor and apparent lack of intoxication.⁷ Club employees also testified that S.W. was crying and upset upon returning from the parking lot.

¶ 8 A.H. testified that she had met Marchet at a night club in June 2003. About a month after first meeting him, A.H. again encountered Marchet at a club. After the club closed, Marchet asked A.H. to talk with him outside. A.H. accompanied him toward what she thought was his car. Marchet then grabbed A.H.'s waist and pulled her into an unlit alley, where he turned her around and restrained her. Despite her vocal protests, Marchet then penetrated her anally and vaginally. Immediately afterwards, A.H. confronted Marchet, who responded that they “both just probably needed to have a little—a little fun, just blow off a little steam.”

¶ 9 P.C. testified that she met Marchet at a hotel dance club in January 2005. Around closing time, Marchet accompanied P.C. to the hotel lobby, and eventually led her into a stairwell. He began to kiss her, but she protested, at which point he pulled her to the stair landing, grabbed her, and spun her around so her back was toward him. As she continued to protest, Marchet restrained her arms and pulled her skirt down to her thighs. P.C. heard the sound of a zipper and believed that Marchet was about to rape her. She struggled free, but Marchet again grabbed her, pulled up her shirt, and began kissing her breasts. Marchet released her after she began yelling. Marchet called her on the phone about a half hour later and told her, “I just wanted to check on you because you ran out of here pretty quick and you seemed upset.”

¶ 10 Thompson, the forensic nurse who had examined S.W., testified about the exam, the redness she observed, and her opinion that the redness was an injury consistent with nonconsensual sex. On cross-examination, Thompson conceded that the redness was not something that most people would consider an injury and that she had observed the redness with an instrument that provided 15x magnification. She also opined that some form of injury will occur in 70 to 80% of nonconsensual penetration cases, while consensual penetration results in injury approximately 10% of the time.

¶ 11 During his cross-examination of Thompson, Marchet's counsel sought to introduce her forensic examination report into evidence.⁸ The State objected, arguing that the report contained information that S.W. had engaged in sexual intercourse with another man within seventy-two hours before the incident with Marchet.⁹ The State argued that this information was irrelevant and should be redacted from the report pursuant to rule 412 of the Utah Rules of Evidence, which generally prohibits “evidence offered to prove that a victim engaged in other sexual behavior.” Utah R. Evid. 412(a)(1).

¶ 12 Marchet's counsel argued that the evidence was admissible to demonstrate that someone other than Marchet could have caused S.W.'s injury. See id. R. 412(b)(1). When the district court pointed out that rule 412 generally requires pretrial notice when evidence of a victim's sexual activity will be offered to show an alternate source of injury, Marchet's counsel candidly admitted that he had not discovered the information about S.W.'s prior sexual encounter during his preparations for trial. The district court ruled that the information would be redacted.

¶ 13 Despite the district court's ruling, Marchet's counsel filed a written motion to admit the prior sexual activity evidence under rule 412(b) for the purpose of providing an alternate explanation for S.W.'s injury. Marchet's counsel again took full responsibility for failing to discover the evidence in time to seek its admission before trial, stating, “[I]t is my problem. I didn't see that. Absolutely.” The State objected to the motion, arguing that Marchet had proffered no evidence to prove that the prior consensual sexual encounter could have caused the injury. The district court expressed concern that if it failed to conduct a rule 412 hearing, Marchet might later claim ineffective assistance of counsel. Nevertheless, the court informed Marchet's counsel that unless he could present expert testimony tying the prior sex act to S.W.'s injury, the evidence would not be relevant.

¶ 14 Counsel for the State reminded Marchet's counsel that Marchet's prior attorney had designated a defense expert, Nurse Carver. Marchet's counsel explained that he had not spoken with an expert because he knew that S.W. had not suffered any acute injuries and he did not want to emphasize the minimal redness observed by Thompson. The district court took a recess to allow counsel to speak with Carver. When he returned, counsel stated that he would no longer seek to introduce the rule 412(b) evidence, as Carver would testify that the redness Thompson had observed was not an injury, obviating the need for evidence of an alternative source of the redness. The district court then indicated on the record that Marchet's counsel had made a strategic decision not to pursue admission of the rule 412(b) evidence.

¶ 15 Marchet testified in his own defense. He acknowledged having had sex with S.W. outside of the club on the night in question but insisted that it was consensual. He admitted saying “don't go pull a Kobe on me” after the encounter, but he explained that he did so only because S.W. had “freaked out.” Carver also testified for the defense and opined that the redness that Thompson had observed was not significant and did not indicate nonconsensual sex. She also testified that if the encounter happened as S.W. had described, then Carver “would have expected to see injuries.”

¶ 16 The jury convicted Marchet of rape, and the district court sentenced him to a prison term of five years to life, to be served consecutively to any other prison terms that Marchet was then serving. Marchet filed a motion for new trial alleging that his counsel provided ineffective assistance by mishandling the rule 412 evidence and that the jury had used A.H. and P.C.'s testimony for the improper purpose of evaluating Marchet's character. The district court denied Marchet's motion, and he now appeals his conviction.

ISSUES AND STANDARDS OF REVIEW

¶ 17 Marchet raises two issues on appeal. First, he argues that his trial counsel was ineffective because counsel failed to secure the admission of the rule 412(b) evidencethat would have provided...