State v. McNeil

• Citation: 365 P.3d 699
• Decision Date: 06 January 2016
• Docket Number: No. 20130664.,20130664.
• Parties: STATE of Utah, Respondent, v. Roland McNEIL, Petitioner.
• Court: Supreme Court of Utah

365 P.3d 699

STATE of Utah, Respondent,

v.Roland McNEIL, Petitioner.

No. 20130664.

Supreme Court of Utah.

Jan. 6, 2016.

Sean D. Reyes, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, for respondent.

Joan C. Watt, E. Rich Hawkes, Christine Seaman, Salt Lake City, for petitioner.

Justice DURHAM authored the opinion of this Court, in which Chief Justice DURRANT, Associate Chief Justice LEE, and Justice HIMONAS joined.

Associate Chief Justice LEE filed a concurrence.

Justice PARRISH sat for oral argument. Due to her resignation from this court, however, she did not participate herein.

Justice JOHN A. PEARCE became a member of the Court on December 17, 2015, after oral argument in this matter, and accordingly did not participate.

On Certiorari to the Utah Court of Appeals

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 Petitioner Roland McNeil was convicted of assaulting his co-worker. Mr. McNeil did not commit the actual assault—his son Quentin did—but Mr. McNeil was charged as an accomplice because phone records showed that calls were made between his phone and his son's phone just before and after the assault.

¶ 2 At trial, the State relied on the phone records to prove Mr. McNeil's involvement. But the State did not introduce the phone records directly into evidence; instead, it sought to introduce preliminary hearing testimony about the records from a detective who had died before trial. The defense objected, arguing that the detective's testimony about the records was hearsay. The trial court expressed disagreement, and defense counsel apparently acquiesced, saying "Okay, it's not hearsay," before renewing the objection on other grounds. The testimony was ultimately admitted, and the State relied on it heavily, presenting little other evidence that the telephone calls occurred.

¶ 3 Ultimately, Mr. McNeil was convicted and decided to appeal. Before the court of appeals, he argued again that the testimony was hearsay—though on a different basis from the one he argued below—and argued further that his lawyer's objection on this point had been so inadequate as to violate Mr. McNeil's right to the effective assistance of counsel. State v. McNeil, 2013 UT App 134, ¶¶ 17, 25, 302 P.3d 844. The court of appeals rejected these arguments, concluding that (1) Mr. McNeil's counsel invited the error in admitting the detective's testimony and (2) any ineffective assistance by defense counsel in objecting to the admittance of the detective's testimony was not prejudicial. Id. ¶¶ 23–24, 32. Mr. McNeil, on certiorari, asks us to reverse.

BACKGROUND

¶ 4 Mr. McNeil worked at Kennecott Mines in 2006 and 2007. He became friends with a co-worker and they began carpooling to work together, but the arrangement did not last. One day the two had a furious argument at work, leaving Mr. McNeil so upset that he pounded the dashboard for the entire forty-minute ride home. They never spoke again. Mr. McNeil told his son Quentin about his conflict at work with his co-worker. He also shared with Quentin a tape recording of his co-worker and other individuals threatening Mr. McNeil. They threatened to cut off Mr. McNeil's fingers and throw him in a ditch. After hearing the tape, Quentin became enraged and began stalking his father's co-worker. Quentin learned where he lived, what car and motorcycle he drove, where his daughter worked, his opinion of his future son-in-law, and that he did not trust banks and kept his savings at home.

¶ 5 Quentin eventually decided to confront his father's co-worker. One morning, he drove to his apartment complex and waited for him to return from breakfast. When he arrived home, Quentin asked him for a cigarette and a telephone while following him to his apartment. The co-worker declined Quentin's requests and began to open the door to his apartment. As he was opening the door, Quentin shoved him to the ground inside his apartment. Quentin closed the door and began attacking him.

¶ 6 During the attack, Quentin used the information he had gathered about his father's co-worker both to scare him and to attempt to locate cash. Quentin was not able to locate any cash, but he stole jewelry and broke his victim's nose and eight teeth. Before leaving, Quentin threw him in his bathtub, saying, "big daddy is going to let you live."

¶ 7 When the police investigated the assault, they found security footage showing that Quentin was talking on his mobile phone as he entered the complex. The police then obtained phone records that showed six telephone calls between Quentin and his father on the morning of the attack. The police observed that these calls included a fourteen-minute call that overlapped with the time that Quentin entered the complex, and a thirty-five second telephone call shortly after the attack. Based largely on this evidence, Mr. McNeil was arrested and charged with aggravated assault.

¶ 8 At Mr. McNeil's preliminary hearing, the State called a police detective who testified in detail regarding the times and length of the six telephone calls that morning, relying on notes in his case file based on his review of the phone records. At trial, the State asked to read in the detective's preliminary hearing testimony because the detective had died since the preliminary hearing.

¶ 9 Before the detective's preliminary hearing testimony was read to the jury, Mr. McNeil argued that the portion of the testimony that related to the telephone calls should not be read. He articulated through counsel a number of arguments for his position. Defense counsel first argued against reading the testimony regarding the telephone calls because he could not cross-examine the witness. Counsel then claimed that the telephone records were "neutral statements" but that these "neutral statements" may not be used when they lead to inappropriate inferences.

¶ 10 When counsel's arguments were not immediately accepted, counsel expanded the argument, saying that "[t]his is hearsay at this point, this is hearsay. It's a prior recorded statement from a witness who is unavailable." The trial court then interjected, saying "Hold the phone here. Hearsay says an out-of-court statement. This was in Court." In response, counsel said, "Okay, it's not hearsay[;] it's a neutral statement. I said it right the first time. I did. I said it right the first time." The trial court then made its ruling:

This is not hearsay. It's a sworn statement under oath recorded, subject to cross[-]examination. If the statement did contain hearsay, we obviously would redact that. Both sides at this time are stipulating that in fact it doesn't. [Defense counsel] is objecting on different terms than hearsay terms; therefore, we will say [the parties are] stipulating to the fact that it's not hearsay. So that being said, it's going to come in.

Based on this ruling, the testimony regarding the phone calls was read to the jury.

¶ 11 After the prosecution rested, Mr. McNeil's counsel attempted to exclude the same portion of the detective's testimony by arguing that the testimony lacked the required foundation. The trial court rejected counsel's argument as untimely, ruling for the State without hearing the State's response to the argument.

¶ 12 Mr. McNeil was convicted, and he appealed to the court of appeals. He claimed that the trial court erred in failing to exclude the detective's testimony regarding the phone records. State v. McNeil, 2013 UT App 134, ¶¶ 18–32, 302 P.3d 844. He argued that the error constituted "plain error," that is, an error that can be addressed on appeal regardless of whether it was preserved. Id. ¶ 24. He also argued that his counsel was ineffective in not pursuing the hearsay objection, and that the trial's outcome may have been different but for counsel's ineffectiveness. Id. ¶ 25.

¶ 13 The court of appeals held that the plain error claim failed because Utah courts do not review plain error claims when counsel "invites" the error below. The court concluded that defense counsel invited the error because the claim of hearsay was made and then withdrawn. Id. ¶ 23. The court further ruled that, even if defense counsel was ineffective in not pursuing the hearsay objection, Mr. McNeil did not demonstrate that this lack of an objection was prejudicial. Id. ¶¶ 25–32. The court affirmed his conviction. Id. ¶ 72.

STANDARD OF REVIEW

¶ 14 The doctrines we are asked to address here—invited error, plain error, and ineffective assistance of counsel—pertain only to claims that are raised after the initial trial. See State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171 ; State v. Cram, 2002 UT 37, ¶ 4, 46 P.3d 230. These doctrines were raised for the first time in the court of appeals. We are thus reviewing how the court of appeals applied these doctrines. In doing so, we review the court of appeals' decision for correctness. State v. Levin, 2006 UT 50, ¶ 15, 144 P.3d 1096. This standard of review allows us to apply the doctrines at issue here as if we were the first appellate court to consider them.

ANALYSIS

¶ 15 We granted certiorari on two issues, and we consider them in order. First, we address whether any error in admitting the detective's testimony was invited, concluding it was not invited because there was no clear affirmative statement by counsel inviting the court to err. Second, we address whether the alleged error was prejudicial, and we conclude that even if the trial court erred, the error did not prejudice Mr. McNeil.

I. THERE IS NO INVITED ERROR

¶ 16 Mr. McNeil claims that the trial court plainly erred in not excluding the testimony regarding the content of the phone records as hearsay testimony. Before we address his plain error claim, we first review the State's argument that any error here was invited and thus not reviewable.

¶ 17 Under the doctrine of invited error, an error is invited when counsel encourages the trial court to make an erroneous ruling. The rule discourages "parties from intentionally misleading the trial court so as to preserve a hidden...