State v. Mecham, 971013-CA.

• Decision Date: 17 August 2000
• Docket Number: No. 971013-CA.,971013-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jeffery Devon MECHAM, Defendant and Appellant.
• Court: Utah Court of Appeals

9 P.3d 777

2000 Utah Ct. App. 247

STATE of Utah, Plaintiff and Appellee, v. Jeffery Devon MECHAM, Defendant and Appellant.

No. 971013-CA.

Court of Appeals of Utah.

August 17, 2000.

Laura K. Thompson, Patterson & Barking, Ogden, for Appellant.

Jan Graham, Attorney General, and Scott Keith Wilson, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, DAVIS, and ORME.

OPINION

ORME, Judge:

¶ 1 Defendant Jeffery Devon Mecham was convicted by a jury of aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999), and aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (1999). Mecham appeals the convictions, claiming ineffective assistance of counsel, and that the trial court erred in not merging the two convictions. We affirm.

BACKGROUND

¶ 2 On May 29, 1998, the trial court held an evidentiary hearing after this court remanded, pursuant to Rule 23B of the Utah Rules of Appellate Procedure, so the trial court could enter findings of fact regarding Mecham's ineffective assistance of counsel claim. We defer to the trial court's findings of fact regarding ineffective assistance of counsel. See State v. Bredehoft, 966 P.2d 285, 289 (Utah Ct.App.1998),

cert. denied, 982 P.2d 88 (Utah 1999). We view and recite all other facts regarding the kidnaping and robbery in the light most favorable to the jury verdict. See State v. Loose, 2000 UT 11,¶ 2, 994 P.2d 1237.

¶ 3 At approximately 1:00 a.m. on June 25, 1995, two men, identified months later as Mecham and Phillip E. Hollen, sought to enrich themselves at the expense of the Cinemark 10 movie theaters in Layton, Utah. The robbers entered the theater during the "midnight movies," shown in several of the ten theaters, which share a common lobby. Three female concessions employees were closing and cleaning up, one at the front and the other two in the back kitchen area. Two managers were upstairs reconciling the books for the day, and two ushers were walking through the already empty theaters to make sure everyone was gone and to retrieve any items forgotten by the departing patrons. A dark-haired man with a gauze bandage taped to his left cheek entered the back kitchen area brandishing a .22 caliber semi-automatic hand gun, and pointed it at the two workers. They were instructed to look at the floor. The dark-haired robber asked the employees where they kept the money and was told it was upstairs, in the manager's office. When he asked about other employees, he was told about the managers and ushers.

¶ 4 Just then the third concessions worker walked to the back kitchen area and was forced to join her co-workers. The third concessions worker, upon entering the area, saw the second robber standing silently in the room. The second robber apparently had entered at some point after the dark-haired robber began his dialogue with the employees. The second robber was described as blond and wearing cowboy boots, brandishing a weapon, and sporadically attempting to conceal his face with the collar of his turtleneck.¹

¶ 5 The three concessions employees, escorted by the dark-haired robber, went upstairs, proceeded down the hall, and knocked on the door to the manager's office, which was locked. One of the managers looked through the peephole, saw the three employees without seeing the robber, and opened the door. The robber quickly escorted the three women inside.

¶ 6 The dark-haired robber threw a bag to one of the managers and told him to fill it with money. The manager put the money he had been counting in the bag and then opened the safe and emptied its contents into the bag. The blond robber joined the group, and the two robbers took packing tape and, while telling the employees, "everything's going to be fine, nobody is going to get hurt, just like in the movies," taped up the employees, securing their hands behind their backs. They told the employees not to do anything for ten minutes, and left temporarily.

¶ 7 Meanwhile, one of the two ushers, after clearing the empty theaters and taking a bathroom break, noticed the concessions employees had abandoned their posts without finishing their work. He then heard movement at the top of the stairs. He hollered the name of the other usher to see if it was him. Instead, the blond robber leaned out from the stairway on the second floor and pointed his gun at the usher. The blond robber quickly descended the stairs and forced the usher upstairs, where he joined the other usher who had already been located by the robbers and taken to the top of the stairs. The robbers then forced the two ushers into the manager's office, taped the ushers' hands, and then left for good, leaving all of the theater employees bound. The robbers escaped with over eleven thousand dollars in cash. A few minutes after the robbers left, the employees freed themselves by breaking the tape and promptly called the police.

¶ 8 In the ensuing investigation, two suspects other than Mecham and Hollen were initially considered by the police. One was dark complected and had recently been seen wearing a bandage on his cheek matching the one described by the witnesses. The Layton Police Department assembled a black and white photo lineup that included a picture of this suspect. Two of the seven witnesses picked this individual's photo and identified it as looking like one of the robbers. One witness had a frightened emotional reaction when shown a color photo of the suspect. However, during a physical lineup, while the suspect was identified by one witness as looking and sounding the "most like" the robber with the bandage, there was no positive identification and the suspect was released.

¶ 9 A photo lineup of the second suspect also failed to produce a positive identification, and he, too, was released. The investigation by the Layton Police Department appeared to be at a dead end. No physical evidence had been left at the scene, and there were no other apparent suspects.

¶ 10 Four months later the Layton Police Department was contacted by the Salt Lake City Police Department and given the names of Mecham and Hollen as suspects because of similarities between the Cinemark 10 robbery and other robberies in Salt Lake City for which the two defendants had already been arrested. A photo lineup of Hollen and a separate photo lineup of Mecham were prepared and presented to the witnesses. All seven witnesses identified Hollen as the dark-haired robber with the gauze patch. Four of the seven identified Mecham as the blond robber with the cowboy boots; the other three witnesses never saw the blond robber well enough to even attempt to identify him. Mecham and Hollen were subsequently charged.

¶ 11 A public defender was appointed to represent each defendant. The two attorneys worked closely together and discussed in detail both the case law involved and the strategy they intended to employ. Both received copies of all police reports and witness statements.

¶ 12 At a preliminary hearing, the attorneys cross-examined the Layton police officer who had conducted the photo lineup. The attorneys were also able to view the actual photo array used to identify their clients. The officer testified that the array was presented to each witness out of the presence of the other witnesses and in no particular order. All the pictures used in the photo lineup were of similar dimensions and the subjects were of the same general appearance. The photos were not suggestive towards Mecham and Hollen, who were bound over for trial at the conclusion of the preliminary hearing. Both defendants later appeared in court for arraignment and entered pleas of not guilty.

¶ 13 Sometime before trial, Mecham's attorney received a handwritten letter from Mecham which discussed filing a motion to suppress the identification of him by the witnesses who attended the preliminary hearing² and to challenge the reliability of the eyewitness identification of all the witnesses. Mecham sought the exclusion of the eyewitness identifications because of the fundamental unreliability of eyewitness identification as discussed in State v. Ramirez, 817 P.2d 774, 778-81 (Utah 1991), and State v. Lopez, 886 P.2d 1105, 1110-11 (Utah 1994).³ Mecham's attorney discussed the letter with Hollen's attorney, and both were familiar with the Ramirez and Lopez standards. Mecham's attorney discussed Mecham's suggestions with him in person. He explained that some of Mecham's suggestions would not "fly" but that he would look into the others.

¶ 14 Mecham's attorney personally inspected the scene of the robbery, where he met with the prosecutor and five of the seven witnesses. He interviewed the witnesses about their observations as well as the circumstances and sequence of those observations. He observed the physical layout and lighting of the crime scene and even used a stop watch to run time calculations on various aspects of the robbery. The two defense attorneys again met and discussed all the information gleaned during this visit.

¶ 15 Understanding what Ramirez and Lopez required, both attorneys concluded they had little or no chance of success if they tried to suppress the identifications made by the witnesses. Their personal investigations revealed that the Layton Police Department's photo lineup was not unduly suggestive and that the identifications by the witnesses showed a high degree of certainty. They reasoned that filing a motion under such circumstances would only have the effect of educating the prosecution more about their defense theory and, in the evidentiary hearing likely to follow, give the already strong identification witnesses yet another chance to rehearse their testimony and further solidify their identifications of the two defendants.

¶ 16 Thus, as a tactical matter, the attorneys chose not to file a motion to suppress the identifications, despite the earlier misidentification of an uninvolved suspect by a...