State v. Larrabee
2013 UT 70
| Utah | 2013Background
- Defendant Michael D. Larrabee was convicted of two counts of aggravated sexual abuse of a child (relating to B.B.) and one count of dealing in material harmful to a minor after jury trial; acquitted on one abuse count (relating to M.V.).
- Allegations arose after the children (guardianship by defendant and his ex-wife) disclosed sexualized play by the youngest child and B.B. later accused Defendant of repeated molestation and showing pornography during hotel visits.
- At trial the court excluded testimony from B.B.’s mother (Jamie) about alleged prior abuse as unreliable and instructed parties not to mention it; the prosecutor nevertheless referred to those allegations during closing argument.
- Defense counsel did not object to the prosecutor’s closing remarks; Defendant later moved to arrest judgment raising preservation, exclusion of expert testimony, and prosecutorial misconduct arguments; the motion was denied.
- On appeal the Utah Supreme Court held the motion to arrest judgment did not preserve the prosecutorial-misconduct claim, but found defense counsel’s failure to object constituted ineffective assistance under Strickland and remanded for a new trial on all counts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a post-trial motion to arrest judgment preserved prosecutorial-misconduct claims for appeal | State: preservation rules require timely objection at trial; motion to arrest judgment filed two months later is untimely | Larrabee: motion to arrest judgment preserved the prosecutorial-misconduct claim | Held: Not preserved; motion was untimely and does not substitute for a timely objection at trial |
| Whether prosecutor’s closing remark referencing excluded prior-abuse allegations was reversible misconduct | State: argument was part of closing and not preserved; prosecution’s remarks were not properly objected to | Larrabee: remark improperly injected excluded evidence and was inflammatory, likely prejudicing the jury | Held: Court did not reach misconduct reversal because issue was unpreserved, but recognized the remark was improper and inflammatory |
| Whether failure of defense counsel to object to the prosecutor’s remark constituted ineffective assistance of counsel | State: silence could reflect reasonable trial strategy (avoid "highlighting") | Larrabee: counsel’s silence was unreasonable given the comment’s obvious impropriety and prejudice | Held: Defense counsel’s performance was objectively unreasonable under Strickland; counsel’s failure to object prejudiced the verdict; Strickland test satisfied; new trial ordered |
| Remedy where ineffective assistance shown due to failure to object to prosecutorial comment | State: no direct argument on remedy beyond affirmance | Larrabee: convictions should be vacated and retrial ordered | Held: Convictions vacated and case remanded for a new trial on all counts |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance: deficient performance and prejudice)
- State v. King, 131 P.3d 202 (Utah 2006) (preservation rule; requiring timely objection)
- State v. Nelson-Waggoner, 94 P.3d 186 (Utah 2004) (closing-argument review generally unreviewable on appeal absent timely objection)
- State v. Ross, 174 P.3d 628 (Utah 2007) (articulating test for prosecutorial misconduct in closing argument)
- State v. Calliham, 55 P.3d 573 (Utah 2002) (discussing prosecutorial misconduct and plain error review)