State v. Redcap

• Decision Date: 16 January 2014
• Docket Number: No. 20120077–CA.,20120077–CA.
• Citation: 318 P.3d 1202,752 Utah Adv. Rep. 32
• Court: Utah Court of Appeals
• Parties: STATE of Utah, Plaintiff and Appellee, v. Nathan REDCAP, Defendant and Appellant.

318 P.3d 1202

752 Utah Adv. Rep. 32

STATE of Utah, Plaintiff and Appellee,

v.Nathan REDCAP, Defendant and Appellant.

No. 20120077–CA.

Court of Appeals of Utah.

Jan. 16, 2014.

Lori J. Seppi, for Appellant.

Sean D. Reyes and Jeanne B. Inouye, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges JAMES Z. DAVIS and MICHELE M. CHRISTIANSEN concurred.

Opinion

VOROS, Judge:

¶ 1 This case arises from a fight at the Utah State Prison. Uncontroverted evidence at trial established that Defendant Nathan Redcap, an inmate, stabbed an inmate named Wilson. Redcap had surreptitiously remained out of his cell after he should have returned to it. He shielded his torso with body armor improvised from magazines and attached a shank to each hand. ¹ Redcap was charged with attempted murder and other offenses. He was convicted of one count of aggravated assault by a prisoner and two counts of possessing items prohibited in a correctional facility.² We affirm.

BACKGROUND

¶ 2 November 29, 2005, was laundry day in the prison. On laundry day, cells are opened one at a time to allow inmates to collect their laundry bags from the common area. Redcap retrieved his laundry bag, but instead of returning to his cell as required, he hid. When Wilson was released to retrieve his laundry bag from the common area, Redcap attacked him. Wilson eventually escaped to the shower room adjacent to the common area.

¶ 3 Two correctional officers who responded to the incident later testified that they did not see the fight begin. But they did see a shank in each of Redcap's hands and did not see a weapon in Wilson's hands. After quelling the fight, the officers ordered Redcap to disarm. He removed a loop securing the first shank to one hand and then untied the other shank from his other hand. He dropped both shanks to the floor. When Redcap removed his sweatshirt, several magazines wrapped around his torso for protection fell to the ground.

¶ 4 A low-resolution security camera recorded part of the incident. The footage shows Wilson emerging from his cell to retrieve his laundry from the common area. Redcap descends the stairs and confronts Wilson. Wilson initially retreats and Redcap follows as they begin circling and feinting at one another. Approximately thirty-five seconds later, Redcap moves out of the camera's view and Wilson follows.

¶ 5 At trial, Redcap claimed self-defense. He argued that Wilson had previously threatened his life and that Wilson instigated the fight. Redcap called two inmates to the stand who each claimed to have observed the fight from his cell. The first inmate testified that he had seen most of the fight, that Redcap had not been holding a weapon, and that Wilson took something from his laundry bag that the inmate believed was a weapon. The inmate also testified that Wilson was the aggressor. The second inmate (Witness) was a friend of Wilson's. According to Witness, Wilson had threatened to kill Redcap a few days before the fight. At that time, Redcap replied that he was not going to run from Wilson. Witness further testified that both Wilson and Redcap had shanks during the fight and that Wilson, after retreating to the shower area, had thrown his to the floor near Redcap.

¶ 6 The prosecution impeached Witness with testimony from an investigator. The investigator testified that he visited Witness's cell a week before trial and “took some photographs from inside the cell ... [to] kind of get a [perspective] of that view that the inmate would have.” He listed the limitations on the view from inside the cell: “your view is obstructed looking out into the common area,” “you can't see down into the shower area,” and “you can't see directly [along] the wall because there's some pillars that are sticking out a little ways from the cement wall.” When asked whether he was “able to see ... down towards the shower where [Witness] said he could see things,” the investigator responded, “No.” To support this testimony, the prosecution then introduced several photographs taken by the investigator of the cell and from within the cell.

¶ 7 The defense objected to the investigator's testimony and to admission of the photographs on the ground that they had not been disclosed before trial as required by rule 16 of the Utah Rules of Criminal Procedure. The trial court overruled the objection “for the time being.” On redirect examination, the defense elicited from the investigator admissions that a camera could not depict the entire view possible from within the cell, that Witness could have seen the area by the stairs where the fight began and the common area where it continued, and that the investigator's testimony challenged only Witness's claim to have seen the fight end by the shower. The next day, the trial court announced it would postpone a final decision on this discovery issue until after the verdict.

¶ 8 The jury acquitted Redcap of attempted murder but convicted him of aggravated assault and two counts of possessing prison contraband. Redcap moved for a new trial on the ground that the prosecution committed discovery violations involving the second investigation and the photographs taken by the investigator. After an evidentiary hearing, the trial court denied Redcap's motion.³

ISSUES AND STANDARDS OF REVIEW

¶ 9 Redcap first contends that the trial court erred by denying his motion for new trial due to the prosecution's failure to turn over relevant discovery as required by rule 16 of the Utah Rules of Criminal Procedure. “A trial court's ruling on a rule 16 issue is reviewed for an abuse of discretion.” State v. Dick, 2012 UT App 161, ¶ 2, 280 P.3d 445.

¶ 10 Redcap next contends that several statements in the prosecutor's closing rebuttal argument constituted prosecutorial misconduct. Redcap concedes that this claim was not preserved and seeks review under the plain error exception to the preservation requirement. He also alleges ineffective assistance of counsel. To establish plain error, an appellant must show that “(i) [a]n 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). And “[a]n 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).

ANALYSIS

I. Discovery Violations

¶ 11 Redcap contends that the trial court erred in denying his motion for new trial. That motion alleged that the prosecution had failed to turn over relevant evidence in discovery. In 2006, Redcap requested any photographs taken of the scene by any law enforcement officer and any investigative reports made during the course of investigation. The prosecution initially complied and provided several photographs taken immediately after the fight and a report from the investigator. However, a week before trial, the investigator conducted another investigation of the views possible from Witness's cell. In the course of the second investigation, he took several additional photographs (the Photographs). The prosecution did not turn over the Photographs or other results of this investigation. At trial, the prosecution cross-examined the investigator about the second investigation and introduced the Photographs. Redcap objected to both the investigator's testimony and the Photographs.

¶ 12 Rule 16 of the Utah Rules of Criminal Procedure governs the discovery process and imposes on the prosecution a “continuing duty to make disclosure.” Utah R.Crim. P. 16(b). When the prosecution responds voluntarily to a discovery request, as it did here, two duties arise. First, the prosecution must either produce all of the material requested or specifically identify those portions that will not be produced. State v. Knight, 734 P.2d 913, 916–17 (Utah 1987). “Second, when the prosecution agrees to produce any of the material requested, it must continue to disclose such material on an ongoing basis to the defense.” Id. at 917. “Therefore, if the prosecution agrees to produce certain specified material and it later comes into possession of additional material that falls within that same specification, it has to produce the later-acquired material.” Id. Failure to do so is a discovery violation. Id. “For the misleading-the-defense rationale to apply, the discovery request must be sufficiently specific to permit the prosecution to understand what is sought and to justify the parallel assumption on the part of the defense that material not produced does not exist.” Id.

¶ 13 Rule 30(a) of the Utah Rules of Criminal Procedure provides that “[a]ny error ... which does not affect the substantial rights of a party shall be disregarded.” Rule 30 ordinarily places the burden to show prejudice on the defendant. See State v. Bell, 770 P.2d 100, 106 (Utah 1988). But a discovery violation claim may shift the burden to the State to show that the violation was harmless. See id. This is because a rule 30 inquiry “normally is based upon a review of the record,” and when the error consists of the prosecution's failure to produce inculpatory evidence, “the record does not provide much assistance in discovering the nature or magnitude of the resulting prejudice to the defense.” Knight, 734 P.2d at 920. “The record cannot reveal how knowledge of this evidence would have affected the actions of defense counsel, either in preparing for trial or in presenting the case to the jury.” Id.

¶ 14 Therefore, in such cases, “when the defendant can make a credible argument that the prosecutor's errors have impaired the defense, it is up to the State to persuade the court that there is no reasonable likelihood that absent the error, the outcome of trial would have been more favorable for the defendant.” Id. at 921. The State can meet this burden “by showing that despite the errors, the outcome of trial merits confidence and there is no...