State v. Wight
| Decision Date | 01 December 1988 |
| Docket Number | No. 870558-CA,870558-CA |
| Citation | 765 P.2d 12 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Gregory Raymond WIGHT, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Randall Gaither (argued), Salt Lake City, for defendant and appellant.
David L. Wilkinson, State Atty. Gen., Melvin C. Wilson, Davis County Atty., J. Mark Andrus, Brian Namba (argued), Deputy Davis County Attys., Farmington, for plaintiff and respondent.
Before GARFF, BILLINGS and GREENWOOD, JJ.
Gregory R. Wight appeals his jury conviction of automobile homicide under Utah Code Ann. § 76-5-207(1)(a) (1985). Wight asserts the trial court erred in: 1) admitting expert testimony into evidence without adequate foundation; 2) failing to order a new trial based on ineffective assistance of counsel; 3) failing to declare a mistrial due to juror bias; 4) admitting Wight's blood sample and blood test results into evidence; and 5) denying Wight's motion to exclude his prior robbery conviction. No objections were raised at the trial court on the issues of juror bias or admissibility of the blood sample and test results.
At about 1:00 a.m. on November 17, 1985, Wight was driving southbound on Redwood Road when his vehicle collided with a vehicle traveling northbound. Reid Nielsen, driver of the other vehicle, died in the accident. Wight was taken to a hospital where Utah Highway Patrol Trooper Steven Bytheway observed that Wight was unconscious and detected the odor of alcohol on his breath. Bytheway arrested Wight and directed a certified technician, Kathy Burns, to draw Wight's blood. Burns drew the blood at about 3:30 a.m., took the blood home and stored it in her refrigerator until November 21, 1985, when she took it to the state laboratory for analysis.
Wight was charged with automobile homicide and tried by a jury on June 12 and 13, 1986. Prior to trial, Wight filed a motion in limine seeking to exclude evidence of his 1977 aggravated robbery conviction. The court denied the motion.
At trial, after the jury was impaneled and the prosecution made its opening statement, the court asked the jurors if anyone knew Nielsen, the deceased. One juror stated that she knew his wife as a former neighbor and through the L.D.S. Church. When the court asked the juror if she could be fair and impartial, the juror stated that she could. Defense counsel discussed the juror's possible bias with defendant and did not raise an objection to proceeding. Defense counsel informed the jury in his opening statement that Wight had been convicted of aggravated robbery in 1977.
At trial, Wight testified he had consumed at least ten beers the night of the accident, most of it between midnight and 1:00 a.m. He also stated that he was not intoxicated, but was very tired on the night of the accident. Wight recalled that just prior to the collision he was traveling at about 53 miles per hour and barely missed one car which was traveling in the opposite direction. Almost immediately after the near collision, Wight again fell asleep at the wheel and woke up just as he saw Nielsen's headlights. Wight also testified he had been convicted of aggravated robbery, but did not elaborate further. Wight was not questioned about the robbery conviction during cross-examination.
Two Utah Highway Patrol troopers testified that Wight's vehicle was traveling about 71 miles per hour just prior to the accident. Further, Bruce Beck, the state toxicologist who analyzed Wight's blood sample, testified that the blood sample contained a blood alcohol content of .20%.
The jury convicted Wight of automobile homicide, a third degree felony. On October 9, Wight, through a new attorney, filed a motion for a new trial, claiming that his trial attorney did not effectively represent him. After hearing, the motion was denied.
We first determine whether the trial court erred in admitting the testimony of the two highway patrol officers into evidence. Experts are permitted to testify as to their opinion if scientific, technical or other specialized knowledge will assist the trier of fact. Utah R.Evid. 702. The expert must be qualified by knowledge, skill, experience, training, or education. Id. Trial courts are granted considerable discretion in determining whether an expert is qualified to give an opinion. Wessel v. Erickson Landscaping Co., 711 P.2d 250 253 (Utah 1985). The expert's opinion may be based on facts or data the expert perceived, or facts or data made known to the expert at or before the hearing. Utah R.Evid. 703.
In the present case, Officer Erickson testified that he had approximately 120 hours of accident investigation training at the time of the accident and had investigated about 75 accidents. He also stated that he visited the accident scene, took measurements and estimated that Wight's vehicle was traveling 71 miles per hour prior to impact. Officer Dahle, who had similar training and experience but who had not visited the scene of the accident or made his own measurements, testified that based on Officer Erickson's measurements, Wight's vehicle was traveling 71 miles per hour prior to the accident. Both officers were adequately qualified under Utah R.Evid. 702 and, in accordance with Utah R.Evid. 703, testified as to facts either known to them or made known to them. Based on the foregoing, we find no merit in Wight's contention that the trial court abused its discretion in admitting the testimony of the two police officers.
Wight asserts he was denied effective assistance of counsel, primarily because his attorney failed to move for a mistrial on the basis of juror bias and failed to object to admission of the blood sample or blood analysis test results. Generally, this Court will not consider matters raised for the first time on appeal without a timely objection in the trial court. State v. Mitchell, 671 P.2d 213, 214 (Utah 1983); State v. Steggell, 660 P.2d 252, 254 (Utah 1983). However, we may consider assignments of error where no objection is made at trial to the extent that they bear upon a claim of incompetence of counsel. State v. Malmrose, 649 P.2d 56, 58 (Utah 1982).
In order to prevail on a claim of ineffective assistance of counsel, defendant must overcome the strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. State v. Frame, 723 P.2d 401, 405 (Utah 1986). Defendant must prove not only that counsel's representation fell below an objective standard of reasonableness, but also that counsel's performance prejudiced defendant. State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App.1987). This Court will not second-guess a trial attorney's legitimate use of judgment as to trial tactics or strategy. Codianna v. Morris, 660 P.2d 1101, 1110 (Utah 1983); Layton City v. Noon, 736 P.2d 1035, 1040 (Utah Ct.App.1987). Also, failure to raise motions or objections which would be futile does not constitute ineffective assistance of counsel. Malmrose, 649 P.2d at 58. Therefore, we will examine the two issues not raised by counsel below for the limited purposes of deciding if counsel's failures constitute ineffective assistance of counsel.
We examine first the failure to move for a new trial on the basis of juror bias. The record discloses that Wight's trial attorney discussed the juror's possible bias and the option of moving for a mistrial with Wight. Although Wight claims he did not understand his attorney's explanation of the available options, Wight stated that he left the decision of whether to move for a mistrial to his attorney. Under the circumstances, we believe that the attorney's decision to proceed with the trial was a legitimate tactical judgment. Further, Wight has not shown that his trial counsel's representation fell below an objective standard of reasonableness. Accordingly, because we will not substitute our judgment for that of Wight's trial attorney, we hold that Wight was not denied effective assistance of counsel by his attorney's failure to move for a mistrial.
We next consider the failure of Wight's counsel to object to admission of the blood sample and blood test results. Wight argues that the trial court erred in admitting his blood sample and blood test results into evidence because the blood was not seized pursuant to a valid arrest and a proper foundation was not established. Utah Code Ann. § 41-6-44.10 (1985) provides that blood may be drawn from an unconscious person whether or not that person is under arrest, and defines the circumstances under which a person has consented to having blood drawn for purposes of establishing whether the person was driving while having a statutorily prohibited blood alcohol content. Section 41-6-44.10 states:
(1) Any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test ... of his breath, blood, or urine for the purpose of determining whether he was driving ... while having a blood alcohol content statutorily prohibited ... so long as the test is ... administered at the direction of a peace officer having grounds to believe that person to have been driving ... while having a blood alcohol content statutorily prohibited .......
(3) Any person who is ... unconscious ... shall be deemed not to have withdrawn the consent provided for in subsection (1) of this section, and the test or tests may be administered whether such person has been arrested or not.
Wight claims that, according to In re R.L.I., 739 P.2d 1123 (Utah Ct.App.1987), section 41-6-44.10 requires a valid arrest before blood may be drawn. However, R.L.I. stands only for the proposition that if an arrest has not taken place, the subject is entitled to know the purpose for which the blood is drawn and the subject may withdraw the statutory implied consent. In this case, Wight had been arrested and has failed to set forth any...
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Case Summaries
...State v. Bruce, 114 Utah Adv. Rep. 5, 10-13 (1989) (Justice Howe). Accord State v. Brown, 114 P.2d 1093 (Utah App. 1989); State v. Wight, 765 P.2d 12 (Utah App. 1988). HEARSAY IN SEX ABUSE CASES The trial court erroneously admitted hearsay statements of a sex abuse victim under Sect. 76-5-4......