STATE of Utah, Plaintiff and Appellee, v. Deon Lomax CLOPTEN, Defendant and Appellant.
No. 20060254-CA.
Court of Appeals of Utah.
May 30, 2008.
2008 UT App 205
VI. Attorney Fees on Appeal
¶ 49 The HOA requests its attorney fees on appeal. “[W]hen a party who received attorney fees below prevails on appeal, ‘the party is also entitled to fees reasonably incurred on appeal.‘” Valcarce v. Fitzgerald, 961 P.2d 305, 319 (Utah 1998) (quoting Utah Dep‘t of Soc. Servs. v. Adams, 806 P.2d 1193, 1197 (Utah Ct. App. 1991)). We therefore grant the HOA its attorney fees reasonably incurred on appeal.
CONCLUSION
¶ 50 We conclude that the district court did not abuse its discretion in determining that Rich‘s untimely demand for arbitration constituted a waiver of his right to arbitrate his dispute with the HOA. Given that the Acknowledgment did not constitute a separate agreement to arbitrate, the district court did not err in vacating the arbitration award. The district court properly asserted jurisdiction over Rich and did not clearly err in determining that service of process had been effected on Rich or that the defect in the summons was inconsequential. Because the remaining claim at the time of trial was equitable, the district court properly proceeded with a bench trial. The court did not err by not requiring the HOA to post a bond at the time the TRO was issued against Rich because there was no showing of harm. In light of the plain language of the Declaration, the district court did not err in concluding that the HOA, as the prevailing party, was entitled to attorney fees and that Rich was not entitled to a limitation of liability for such. Finally, the affidavit submitted by the HOA for attorney fees was sufficient and the district court did not abuse its discretion in calculating reasonable attorney fees in this case.
¶ 51 We therefore affirm. The case is remanded to the district court for an award to the HOA of attorney fees it has reasonably incurred on appeal.
¶ 52 WE CONCUR: PAMELA T. GREENWOOD, Presiding Judge, and GREGORY K. ORME, Judge.
Mark L. Shurtleff, atty. gen., and Joanne C. Slotnik, asst. atty. gen., Salt Lake City, for Appellee.
Before GREENWOOD, P.J., THORNE, Associate P.J., and McHUGH, J.
McHUGH, Judge:
¶ 1 Deon Clopten appeals his conviction of murder, see
BACKGROUND2
¶ 2 Tony Fuailemaa was shot and killed on December 1, 2002, shortly after leaving a concert in Salt Lake City with his girlfriend, Shannon Pantoja.
¶ 3 Clopten also attended the concert, along with three of his friends. Clopten was dressed in red pants and a red jacket or sweatshirt. Before the concert, Pantoja exchanged greetings with a member of Clopten‘s group. Once inside, Fuailemaa asked Pantoja if she knew the man in the red outfit. When Pantoja stated that she did not, Fuailemaa said the man‘s name was Deon Clopten. Fuailemaa explained that he and Clopten had been incarcerated together and that Clopten “had had some problems with some of the homies out in the prison.”
¶ 4 During the concert, four undercover police officers observed the crowd. “[T]he individual that was wearing the red suit” and his group “ha[d] some sort of a confrontation” with another group that included Fuailemaa and Pantoja. No physical blows resulted, and eventually the groups separated. Sometime later, but before the concert ended, Clopten and his group left. Shortly thereafter, Fuailemaa and Pantoja also left the concert.
¶ 5 As Pantoja and Fuailemaa exited the concert, Pantoja saw three of the four men from Clopten‘s group. The three men “were kind of like hiding behind—crouched behind the building” and they “peeked out and then immediately ducked back again.” Fuailemaa told Pantoja, “I think I‘m going to have some problems with these guys.” “Then, at that moment, that‘s when Deon Clo[pten] came out with his arm extended. He had a gun in his hand.” Pantoja heard the shooter say, “What‘s up now,” and then she watched as Clopten shot Fuailemaa twice in the head. Clopten then ran away.
¶ 6 After hearing gun shots, one of the undercover officers attending the concert ran to Pantoja and asked, “Who did it?” Pantoja answered by saying, “It‘s the guy in all red.” After the police arrested Clopten and his group, Pantoja identified Clopten as the shooter. Pantoja told the officer that the shooter‘s name was “Deon Compton.” More than one year later, Pantoja again identified Clopten as the shooter during a police lineup. Pantoja also identified Clopten as the shooter during his trial.
¶ 7 Melissa Valdez also attended the concert and witnessed Fuailemaa‘s murder. Before the concert, Valdez talked to a group of men about getting tickets. One of the men was wearing red pants and a red sweatshirt. Like Fuailemaa and Pantoja, Valdez left the concert shortly before it was finished. As she was leaving the venue, she saw the man in the red sweat suit that she had spoken with earlier. She asked the man if he had obtained tickets, and the man indicated that he had and passed by her. Shortly thereafter, Valdez happened to look back over her shoulder. At that moment, she saw the man in red standing behind the victim with his right arm extended and holding what appeared to be a gun, and heard a gunshot. When presented with a photo array, Valdez twice identified Clopten as the shooter. She also identified Clopten as the shooter during his trial.
¶ 8 Andre Christopher Hamby, who attended the concert with Clopten and witnessed Fuailemaa‘s murder, also testified against Clopten.3 Hamby testified that he,
¶ 9 Finally, Robert Land testified that Clopten admitted to the murder. Land knew Clopten because they previously had been cellmates. Land and Clopten were reunited in December of 2002 while Clopten was being held in prison for the current offense. It was during this period that Clopten bragged to Land about committing the murder.
¶ 10 The defense sought to introduce reasonable doubt that Clopten was the shooter. As acknowledged on appeal, its “theory of the case was misidentification or mistaken identity.” Accordingly, the defense presented testimony that a different individual had admitted to being the shooter and that the man in red had entered the passenger‘s side of the vehicle, as opposed to the driver‘s side. The defense also sought to present expert testimony regarding the fallibility of eyewitness identification. The trial court excluded the testimony, but instructed the jury regarding this issue.
¶ 11 After hearing all of the evidence, the jury convicted Clopten of murder, see
ISSUES AND STANDARDS OF REVIEW
¶ 12 Clopten presents two issues on appeal. First, Clopten argues the trial court erred when it excluded expert testimony regarding the fallibility of eyewitness identification. “‘The trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard. Under this standard, we will not reverse [a decision to admit or exclude expert testimony] unless the decision exceeds the limits of reasonability.‘” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (alteration in original) (quoting State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993)). Second, Clopten argues that he received ineffective assistance of counsel. “Ineffective assistance of counsel arguments raised for the first time on appeal are reviewed for correctness as a matter of law.” State v. Vos, 2007 UT App 215, ¶ 9, 164 P.3d 1258, cert. denied, No. 20070653, 186 P.3d 347, 2007 Utah Lexis 225 (Nov. 29, 2007).
ANALYSIS
I. Expert Testimony
¶ 13 Clopten first argues the trial court erred when it excluded the testimony of Dr. Dodd, an expert witness prepared to testify about the fallibility of eyewitness identification. Because of the highly deferential standard of review on this issue, we affirm the trial court‘s ruling.
¶ 14 “‘[T]he vagaries of eyewitness identification are well-known; the annals of criminal law are rife with instances of mistaken identification.‘” State v. Long, 721 P.2d 483, 491 (Utah 1986) (quoting United States v. Wade, 388 U.S. 218, 228, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967)). Indeed, “[t]he literature is replete with empirical studies documenting the unreliability of eyewitness identification[, and t]here is no significant division of opinion on the issue. The studies all lead inexorably to the conclusion that human perception is inexact and that human memory is both limited and fallible.” Id. at 488 (citations omitted).
¶ 15 However, “jurors are, for the most part, unaware of these problems.” Id. at 490. Accordingly, the Utah Supreme Court has declared “that, at a minimum, additional judicial guidance to the jury in evaluating
¶ 16 In this case, the trial court gave a specific jury instruction regarding the fallibility of eyewitness identification. The jury instruction was adopted almost verbatim from an instruction the supreme court has identified as “satisfy[ing the] expressed concerns about the need for cautionary instructions.” See Long, 721 P.2d at 494-95 & n.8. Clopten does not appeal his conviction based on that instruction.4 Instead, Clopten argues the trial court erred when it excluded expert testimony that would have elaborated on the fallibility of such identification and specifically addressed some of the relevant factors in this case.
¶ 17 Although the supreme court created a “rigorous approach to cautionary [jury] instructions,” id. at 488, a majority of the court has not required the admission of expert witness testimony, see generally, e.g., State v. Maestas (Maestas II), 2002 UT 123, ¶ 57, 63 P.3d 621 (plurality opinion). Instead, the supreme court “‘recognize[s] that whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court‘s discretion.‘” Id. ¶ 68 (Durrant, J., dissenting) (quoting State v. Hubbard, 2002 UT 45, ¶ 14, 48 P.3d 953); accord id. ¶ 136 (Russon, J., dissenting); State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794. Thus, “the trial court‘s ruling on the admissibility of expert testimony [regarding the unreliability of eyewitness identification] will stand unless the ruling ‘exceeds the limits of reasonability.‘” Maestas II, 2002 UT 123, ¶ 136, 63 P.3d 621 (Russon, J., dissenting) (quoting Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794).5
¶ 18 In State v. Hubbard, 2002 UT 45, 48 P.3d 953, the supreme court affirmed “the trial court‘s exclusion of the proffered expert testimony regarding the dangers and fallibility of eyewitness identification.” Id. ¶ 13. In that case, “the trial court gave a cautionary [jury] instruction instead of permitting expert testimony regarding eyewitness identification.” Id. ¶ 19. Although the supreme court found shortcomings with the cautionary instruction, it affirmed. See id. The court held that “expert testimony is the type of lecture testimony that, in cases such as these, can be adequately conveyed to the jury through an instruction.” Id.; see also Maestas II, 2002 UT 123, ¶ 138, 63 P.3d 621 (Russon, J., dissenting) (approving of a trial court‘s exclusion of expert testimony based on the defendant‘s ability to cross-examine the witness and to “request an appropriate jury instruction“); State v. Brink, 2007 UT App 353, ¶¶ 6, 11, 173 P.3d 183 (affirming trial court‘s decision “to educate the jury through the use of appropriate instructions instead of through expert testimony” (internal quotation marks omitted)).
¶ 19 Thus, we follow the precedent affording trial judges significant deference to exclude expert testimony on this topic. However, we note that courts and legal commentators have argued that jury instructions and cross-examinations do not adequately address the vagaries of eyewitness identification. See, e.g., United States v. Downing, 753 F.2d 1224, 1230 n.6 (3d Cir. 1985) (“To the extent that a mistaken witness may retain great confidence in an inaccurate identification, cross-examination can hardly be seen as an effective way to reveal the weaknesses in a witness’ recol-
¶ 20 The precise situation in this case is somewhat different than the cases discussed in these articles. Three of the eyewitnesses here were not complete strangers to Clopten at the time of the shooting. Hamby attended the concert with Clopten, saw the murder, and rode with Clopten in the get-away vehicle. Valdez had a conversation with Clopten earlier in the evening. Moments before the shooting, Valdez recognized Clopten and made a reference to the prior conversation which he acknowledged. She then heard the shots and turned her head in time to see Clopten holding the gun that had just been fired into the victim‘s head. Finally, the victim‘s girlfriend, Pantoja, learned Clopten‘s name, observed the confrontation between her date and Clopten earlier in the evening, saw Clopten shoot Fuailemaa, and identified the shooter to police by description and by name. She then identified him again at the time of his arrest one year later during an in-person lineup, and during his trial. Consequently, even if admission of expert testimony on this issue were required, we would conclude there was no prejudicial error in this case.
¶ 21 Following existing Utah precedent, we hold the trial court did not exceed its discretion when it excluded Dr. Dodd‘s testimony. The trial court carefully and repeatedly considered the proposed testimony, the facts of this case, and the cautionary jury instructions.6 Ultimately, the trial court excluded
II. Ineffective Assistance of Counsel
¶ 22 Clopten next argues his trial counsel was ineffective because counsel failed to obtain certain documents detailing an alleged sentence reduction Land obtained in exchange for his testimony implicating Clopten and because counsel failed to request a jury instruction of manslaughter. We are not convinced.
¶ 23 “To establish ineffective assistance of counsel, a defendant must show (1) that counsel‘s performance was so deficient as to fall below an objective standard of reasonableness and (2) that but for counsel‘s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” State v. Cruz, 2005 UT 45, ¶ 38, 122 P.3d 543 (internal quotation marks omitted). Moreover, Clopten must overcome “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. (internal quotation marks omitted).
¶ 24 In this case, Clopten‘s trial counsel adequately cross-examined Land about his reduced sentence. During cross-examination, Land admitted that he had been facing federal charges that carried a potential life sentence and that he met with federal authorities to discuss testifying in this case. Land further acknowledged that, after “[he] agreed to testify against Deon Clopten,” “when [he] got sentenced, [he] got eight years.”7 Moreover, Clopten‘s trial counsel read from the transcript of Land‘s interview with the federal authorities. The transcript demonstrated that Land was testifying against Clopten to obtain a reduced sentence in his federal case. In addition, Clopten‘s trial counsel reiterated during closing arguments that “Land is in the business of making deals to testify against other people” and that “by testifying in this case,” Land‘s federal sentence was reduced.
¶ 25 Clopten‘s trial counsel effectively questioned Land‘s veracity. Although additional documents from the federal court may have provided further evidence of Land‘s motives, Land‘s testimony at trial, the transcript read into the record, and counsel‘s closing arguments convince us that Clopten‘s trial counsel was not ineffective and that the outcome of the trial would not have been any different with these documents. Accordingly, we affirm on this issue.
¶ 26 Likewise, we reject Clopten‘s argument that his counsel rendered ineffective assistance by failing to request a manslaughter instruction as a lesser included offense to murder.
[W]hen a defendant requests a jury instruction on a lesser included offense, the evidence-based standard requires that the instruction be given when the trial court determines that (1) the lesser offense is “included” in the offense charged, and (2) there is evidence to justify acquittal of the greater offense and conviction of the lesser offense.
State v. Kruger, 2000 UT 60, ¶ 15, 6 P.3d 1116.
¶ 28 Here, there was no evidence to justify acquittal of the greater offense and conviction of the lesser offense. In Utah, “[c]riminal homicide constitutes manslaughter if the actor ... recklessly causes the death of another.”
¶ 29 The evidence at trial indicated that the shooter saw the victim and announced, “I‘m goin’ shoot him.” The perpetrator then cocked the gun, “walked up on [the victim] close and, at point-blank range, he shot him [twice] in the back of the head” in “an execution type shooting.” The shooting was “[v]ery quickly lethal.” Indeed, Clopten concedes that “[the] manner of [the victim‘s] death is not in dispute.” Given these undisputed facts, there simply is no evidence to suggest that the shooter, whoever he was, did not act knowingly or intentionally when he marched up to the victim and shot him twice at point-blank range in the back of the head. Accordingly, any request for a manslaughter instruction would have been meritless under the circumstances. Counsel was not ineffective for refusing to make a futile request. See Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
CONCLUSION
¶ 30 Because the trial court did not err in excluding Dr. Dodd‘s testimony and because Clopten did not receive ineffective assistance of counsel, we affirm.
¶ 31 I CONCUR: PAMELA T. GREENWOOD, Presiding Judge.
THORNE, Judge (concurring):
¶ 32 I concur in the thoughtful analysis, as well as the result, of the majority opinion. However, I write separately to suggest that in light of the persuasive authorities cited by the majority in explaining the shortcomings of eyewitness testimony, the time has come to revisit the boundaries of trial court discretion in excluding expert testimony on the subject. Such a decision is not for this court to make, but I would urge the Utah Supreme Court to consider mandating the admission of such testimony in appropriate cases.
¶ 33 As explained in detail in State v. Long, 721 P.2d 483 (Utah 1986), eyewitness testimony is subject to the inexact vagaries of human perception and memory and inevitably leads to mistaken identifications in a substantial number of cases. See id. at 488-91. Not only are jurors largely unaware of the problems with eyewitness testimony, they may actually give it greater weight than other forms of evidence. I see little to lose and much to gain if criminal defendants are allowed to present expert testimony explaining how and why the eyewitness testimony in any particular case may be unreliable. This conclusion is only bolstered by the post-Long cases and articles cited by the majority. See, e.g., Richard A. Wise et al., A Tripartite Solution to Eyewitness Error, 97 J. Crim. L. & Criminology 807, 823-42 (2007) (arguing for admission of expert testimony when the primary or sole evidence against the defendant is eyewitness testimony).
¶ 34 While a Long instruction is certainly better than nothing in terms of ameliorating the shortcomings of eyewitness testimony, it may not be as helpful to a jury as a live witness who can address the particular circumstances of any individual case. In appropriate cases, i.e., cases where the State‘s case rests substantially on eyewitness testimony,
¶ 35 For the very reasons enunciated in the majority opinion, I urge the supreme court to revisit the issue of expert testimony in eyewitness cases. Nevertheless, the majority opinion faithfully implements the law as it currently stands, and under the current state of the law I concur in that opinion in all respects.
See also 2006 WL 302411.