State v. McNeil

• Citation: 735 Utah Adv. Rep. 39,302 P.3d 844
• Decision Date: 23 May 2013
• Docket Number: No. 20100695–CA.,20100695–CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Roland McNEIL, Defendant and Appellant.
• Court: Court of Appeals of Utah

302 P.3d 844

735 Utah Adv. Rep. 39

STATE of Utah, Plaintiff and Appellee,

v.Roland McNEIL, Defendant and Appellant.

No. 20100695–CA.

Court of Appeals of Utah.

May 23, 2013.

E. Rich Hawkes, Christine Seaman, and Peter A. Daines, Attorneys for Appellant.

John E. Swallow and Marian Decker, Attorneys for Appellee.

Opinion

VOROS, Judge:

¶ 1 Roland McNeil appeals his conviction for aggravated assault. McNeil contends that the trial court committed reversible error by improperly admitting three pieces of evidence: paraphrased portions of telephone records, a statement made by the victim's daughter, and testimony regarding an unavailable witness's prior inconsistent statements. We affirm.

BACKGROUND ¹

¶ 2 McNeil and a coworker named Allen worked the graveyard shift. A friendship developed, and they began driving to work together. McNeil's adult son, Quentin, saw Allen pick McNeil up for work and talked to Allen on occasion. A rift between workplace teams ended the friendship after McNeil accusedAllen of failing to support him in the conflict. On the drive home that day, McNeil was “very upset with [Allen]” and “scream[ed] at [Allen] all the way home, pounding [the] dash.” Thereafter, McNeil and Allen stopped driving to work together and never spoke again.

¶ 3 McNeil told Quentin about the falling out, and Quentin began following Allen home from work. About a month later, Allen was returning to his residence when he noticed but did not recognize Quentin in the parking lot. As Allen opened his apartment door, Quentin approached and asked to use Allen's phone. He then shoved Allen into the apartment and shut the door. Quentin attacked Allen with a knife and with his hands. He broke Allen's nose and knocked out eight teeth. In the course of the attack, Quentin claimed that Allen's daughter and Allen's daughter's husband owed him a $10,000 drug debt and demanded the money. When Allen denied having any money in the apartment, Quentin stated, “I know you don't trust banks.” Quentin then ransacked a jewelry box belonging to Allen's girlfriend.

¶ 4 Quentin knew more about Allen than his opinion of banks. He knew where Allen worked, what vehicle he owned, where Allen's daughter worked, and Allen's opinion of his daughter's husband. When Allen asked how Quentin knew so much, Quentin replied, “We've been following you. We know where you go eat. We know where you do everything.” Before leaving, Quentin dragged Allen to the shower, threw him in, and said, “Big daddy is going to let you live.”

¶ 5 Allen was taken to a hospital and visited by detectives and family members. He had not recognized Quentin as McNeil's son and had no idea who his assailant was. Allen asked his daughter, whom he thought was “pure as snow,” about the drug allegations. She replied, “Dad, if you don't know me by now, you never will.”

¶ 6 Quentin was arrested and told investigators that McNeil had “sent [him] over there to beat [Allen] up.” Quentin pleaded guilty to first degree aggravated burglary, first degree aggravated robbery, and second degree aggravated assault. After Quentin's pleas were accepted but before he was sentenced, he contacted the prosecutor in his case, Kimberly Crandall. Quentin and Crandall agreed, through intermediaries, that if Quentin told the truth in court about what had happened, Crandall would “write a letter to the Board of Pardons indicating that [Quentin] had told the whole truth of what happened and taken responsibility for his role in it.”

¶ 7 But at McNeil's preliminary hearing, Quentin repudiated his statements about McNeil's involvement. He testified that he had lied to conform his statements to the prosecution's theory of his case. He believed this was necessary, he testified, to make the State “think I was taking responsibility” and thereby “get a better sentence for myself.” Quentin then testified that McNeil had not told him to beat up Allen, that Quentin had confronted Allen to tell Allen to stay away from McNeil, and that “it turned ugly” when Allen pulled out a knife.

¶ 8 At McNeil's trial, Quentin refused to testify; accordingly, his preliminary hearing testimony was read into the record. Crandall then testified that she had not written the promised letter for Quentin because he had not told the whole truth at the preliminary hearing.

¶ 9 A detective's preliminary hearing testimony was also read into the trial record. At McNeil's preliminary hearing, this detective had testified without objection that, according to telephone records summarized in his police report, McNeil and Quentin had called each other several times immediately before and immediately after the crime. The telephone records and police report were not introduced into evidence at the preliminary hearing. Because the detective died before trial, the trial court allowed his preliminary hearing testimony to be read into the record at McNeil's trial. Defense counsel initially objected on hearsay grounds; the parties differ as to whether that objection was withdrawn.

¶ 10 McNeil was acquitted of aggravated burglary, aggravated robbery, and aggravated kidnapping. He was convicted of aggravated assault. SeeUtah Code Ann. § 76–5–103 (LexisNexis 2012). He timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 11 On appeal, McNeil challenges the admission of three items of evidence, each under multiple theories and standards of review.

¶ 12 First, he contends that admission of the detective's preliminary hearing testimony about the telephone records violated the hearsay rule, the Confrontation Clause of the United States Constitution, and the best evidence rule. “When a party fails to preserve an issue for appeal, we will address the issue only if (1) the appellant establishes that the district court committed plain error, (2) exceptional circumstances exist, or (3) in some situations, if the appellant raises a claim of ineffective assistance of counsel in failing to preserve the issue.” State v. Low, 2008 UT 58, ¶ 19, 192 P.3d 867 (citations and internal quotation marks omitted).

¶ 13 McNeil also asserts the hearsay and best evidence claims under the doctrines of plain error and ineffective assistance of counsel. Plain error review is inappropriate when the error was invited by the appellant or resulted from the appellant's strategic decision. State v. Bullock, 791 P.2d 155, 159 (Utah 1989); State v. Patterson, 2013 UT App 11, ¶ 22, 294 P.3d 662. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” State v. Ott, 2010 UT 1, ¶ 22, 247 P.3d 344 (citation and internal quotation marks omitted).

¶ 14 Second, McNeil contends that Allen's daughter's statement, “[I]f you don't know me by now, you never will,” was admitted in violation of the hearsay rule. In reviewing hearsay rulings, we review legal questions for correctness, factual questions for clear error, and the final ruling on admissibility for abuse of discretion. State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639;State v. Jackson, 2010 UT App 328, ¶ 9, 243 P.3d 902.

¶ 15 Third, McNeil contends that Crandall's statement that Quentin had not testified truthfully at McNeil's preliminary hearing was admitted in violation of the hearsay rule, the Confrontation Clause, and rule 608(a) of the Utah Rules of Evidence. He concedes that this claim of error was not preserved and thus argues plain error and ineffective assistance of counsel. To establish plain error on appeal, an appellant must show that “(i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993). As noted above, “[a]n ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” Ott, 2010 UT1, ¶ 22, 247 P.3d 344 (citation and internal quotation marks omitted).

¶ 16 Finally, McNeil contends that, even if no single error requires reversal, the cumulative effect of these errors requires reversal. Under the cumulative error doctrine, we apply the “standard of review applicable to each underlying claim of error....” Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d 668. And “we will reverse only if the cumulative effect of the several errors undermines our confidence ... that a fair trial was had.” Dunn, 850 P.2d at 1229 (omission original) (citations and internal quotation marks omitted).

ANALYSIS

I. The Telephone Records

¶ 17 McNeil first contends that the trial court erred by allowing portions of the detective's preliminary hearing testimony about the telephone records to be read into evidence at trial. McNeil asserts that admission of this testimony violated the hearsay rule, the Confrontation Clause, and the best evidence rule.

A. Hearsay

1. Preserved Error

¶ 18 McNeil first argues that this claim of error was preserved, so that admission of the challenged testimony constituted ordinary trial error. The State maintains that McNeil invited the error he complains of on appeal. McNeil counters that his counsel “repeatedly objected on hearsay ... grounds.” We conclude that McNeil invited any hearsay error.

¶ 19 The invited error doctrine ensures that “a party cannot take advantage of an error committed at trial when that party led the trial court into committing the error.” State v. Winfield, 2006 UT 4, ¶ 15, 128 P.3d 1171 (citations and internal quotation marks omitted). Counsel's stipulation that no error has been committed “represents a classic example of invited error.” State v. Moa, 2012 UT 28, ¶ 31, 282 P.3d 985. This is so even when the party stipulates in a later hearing and not in the hearing where the alleged error occurs. Id. ¶ 32;see also Braun v. Nevada Chems., Inc., 2010 UT App 188, ¶ 15, 236 P.3d 176. The doctrine also extends to counsel's failure to object in response to a specific question from the court. See State v. Geukgeuzian, 2004 UT 16, ¶ 10, 86 P.3d 742.

¶ 20 Here, the trial court discussed the detective's preliminary...