STATE of Utah, Plaintiff, Appellant, and Cross-appellee, v. Andy RASABOUT, Defendant and Appellee, and Levitz London Kaykeo, Defendant, Appellee, and Cross-appellant.
No. 20100284-CA
Court of Appeals of Utah
March 21, 2013
2013 UT App 71
625
Debra M. Nelson and Daniel M. Torrence, Attorneys for Appellee Andy Rasabout.
Kelly Ann Booth, Attorney for Appellee and Cross-appellant Levitz London Kaykeo.
Judge J. FREDERIC VOROS JR. authored the Opinion, in which Judge WILLIAM A. THORNE JR. concurred. Judge GREGORY K. ORME concurred in part and concurred in the result in part, with opinion.
Opinion
VOROS, Judge:
¶1 Following a jury trial, Andy Rasabout and Levitz London Kaykeo (collectively, Defendants) were each convicted of one count of possession of alcohol by a minor, a class B misdemeanor, see
BACKGROUND1
¶2 In the early hours of the morning on November 1, 2007, a man standing outside his house smoking a cigarette saw a white Honda Civic drive past, make a U-turn, and circle back toward him. When he heard a shot fired from the car, he ducked inside the house. He then heard another “eight or nine shots” fired “one right after another, just nonstop.” After the car had gone, he ran through the house to check on his family and
¶3 Police arrived in minutes. While one officer was outside the house, he saw Defendants drive by in a white Honda Civic, followed by a BMW. The officer got into his car and pulled Defendants over. Both the driver of the Civic, Kaykeo, and the passenger, Rasabout, showed signs that they had been drinking. The officer also noticed shell casings in plain view in the passenger compartment of the Civic. After the car was impounded and searched, a nine-millimeter semiautomatic handgun with an empty magazine was found hidden in a compartment under the glove box, and four nine-millimeter shell casings were found in the passenger compartment. Eight additional nine-millimeter shell casings were found near the house.
¶4 Kaykeo presented an alibi at trial, testifying that he was at a party at the time of the shooting. According to Kaykeo‘s testimony, Rasabout approached Kaykeo at the party and asked him to drive Rasabout home because he had drunk too much. They were pulled over within a few minutes of leaving the party. Kaykeo called no other witnesses to corroborate his alibi.
¶5 The jury returned a verdict of guilty on all counts against Defendants. Before sentencing, the trial court granted a motion to merge convictions. The court merged the twelve counts of discharge of a firearm from a vehicle into a single count for each defendant.
¶6 After sentencing, Kaykeo filed a motion for new trial, arguing that his trial counsel was ineffective because he did not investigate possible witnesses who could verify Kaykeo‘s alibi. Kaykeo supported his motion with signed declarations from himself and two friends. The State opposed the motion for new trial and filed an affidavit from Kaykeo‘s trial attorney countering the assertions in Kaykeo‘s declaration. The trial court found Kaykeo‘s declaration not credible, found his trial attorney‘s affidavit credible, and accordingly rejected Kaykeo‘s ineffective assistance claim.
ISSUES AND STANDARDS OF REVIEW
¶7 On appeal, the State contends that the trial court erred by merging the counts of discharging a firearm from a vehicle. “Because merger questions are legal in nature, we review them for correctness.” State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.
¶8 On cross-appeal, Kaykeo challenges his conviction, arguing that he was deprived of his constitutional right to counsel because his trial counsel was ineffective. An ineffective assistance claim presents mixed questions of law and fact. State v. Templin, 805 P.2d 182, 186 (Utah 1990) (citing Strickland v. Washington, 466 U.S. 668, 698, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). “Therefore, in a situation where a trial court has previously heard a motion based on ineffective assistance of counsel,” as here, “reviewing courts are free to make an independent determination of a trial court‘s conclusions. The factual findings of the trial court, however, shall not be set aside on appeal unless clearly erroneous.” Id. (footnote citations omitted). But “[b]ecause this appeal comes to us on a motion for a new trial, there are few, if any, factual findings to review.” State v. Lenkart, 2011 UT 27, ¶ 20 n. 7, 262 P.3d 1.
ANALYSIS
I. Merger2
¶9 The State contends that the trial court erred by merging the twelve counts of discharge of a firearm into a single count for each defendant. The trial court ruled that the multiple shots fired toward the house and cars constituted one offense because the shots were all part of a “single criminal episode.” See
¶10 Though not presented in this fashion, the question before the trial court was one of multiplicity and double jeopardy. Among the protections embodied in the Double Jeopardy Clause of the
¶11 The trial court answered this question by turning to the definition of “single criminal episode” in the Utah Code. See
¶12 The statute defines a single criminal episode as “all conduct which is closely related in time and is incident to an attempt or an accomplishment of a single criminal objective.”
¶13 The trial court also applied a test used to determine what constitutes a single offense in the context of theft. Our supreme court has held that the test to determine whether multiple takings constitute a single offense or multiple offenses considers the intent of the defendant:
“[T]he general test as to whether there are separate offenses or one offense is whether the evidence discloses one general intent or discloses separate and distinct intents.... If there is but one intention, one general impulse, and one plan, even though there is a series of transactions, there is but one offense....”
State v. Kimbel, 620 P.2d 515, 518 (Utah 1980) (alteration and second omission in original) (quoting People v. Howes, 99 Cal.App.2d 808, 222 P.2d 969, 976 (1950)); see also State v. Crosby, 927 P.2d 638, 645 (Utah 1996) (following Kimbel in context of theft); State v. Irvin, 2007 UT App 319, ¶¶ 18-19, 169 P.3d 798 (following Kimbel in context of aggravated robbery).
¶14 This rule is sometimes referred to as the “single larceny doctrine.” See State v. Barker, 624 P.2d 694, 695 (Utah 1981); State v. McClanahan, 251 Kan. 533, 836 P.2d 1164, 1166-67 (1992). The gist of the doctrine is that “if the taking ... constitutes but a single act, then there is but one offense and the multiple ownership of the property taken is immaterial.” Barker, 624 P.2d at 695. “The overriding principle behind the single larceny doctrine is to prevent the state from aggregating multiple criminal penalties for a single criminal act.” Richardson v. Commonwealth, 25 Va.App. 491, 489 S.E.2d 697, 700 (1997) (en banc). The doctrine thus often operates as a “humane rule,” because “[i]f each article stolen were of a value sufficient to make the crime a felony, and a separate charge could be filed as to each, a defendant, if convicted, might be sentenced to the penitentiary for the rest of his life.” Sweek v. People, 85 Colo. 479, 277 P. 1, 3 (1929). See generally 50 Am.Jur.2d Larceny §§ 4-8.5
¶15 The single larceny doctrine thus evolved to limit charging discretion in the context of aggregating or separating theft counts based on their dollar values for the purpose of maximizing criminal liability. No Utah court has applied this test beyond the context of theft-related crimes. See State v. Escamilla-Hernandez, 2008 UT App 419, ¶¶ 10-11, 198 P.3d 997 (“We are not persuaded that competent counsel should have argued for an extension of these larceny cases to the arena of child sexual abuse.“); State v. Smith, 2003 UT App 179, ¶¶ 17-19, 72 P.3d 692 (distinguishing cases involving “theft over time” from attempted tax evasion); see also Barker, 624 P.2d at 696 (analogizing to the doctrine without adopting it in the context of a criminal mischief charge for damaging the windshields of sixteen vehicles, and rejecting the State‘s argument that the doctrine required reversal, because “the factual prerequisite for the application of the single larceny doctrine, i.e., a single act, is absent“). We similarly decline to extend the single larceny doctrine to this case, which does not involve the grouping of multiple thefts.
¶16 Rasabout and the State both suggest, and we agree, that distinguishing a single, continuous offense from separate, distinct offenses is primarily a question of inter-
¶17 The key question in reviewing the statute is what the legislature has determined to be the “allowable unit of prosecution.” See United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221, 73 S.Ct. 227, 97 L.Ed. 260 (1952). “The test is whether the individual acts are prohibited, or the course of action which they constitute. If the former, then each act is punishable separately.... If the latter, there can be but one penalty.” Blockburger v. United States, 284 U.S. 299, 302, 52 S.Ct. 180, 76 L.Ed. 306 (1932) (omission in original) (quoting Wharton‘s Criminal Law § 34 n. 3 (11th ed.)). “Whether a particular course of conduct involves one or more distinct ‘offenses’ under the statute depends on this [legislative] choice.” Sanabria, 437 U.S. at 70. Thus, “‘[t]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed.‘” State v. McCovey, 803 P.2d 1234, 1239 (Utah 1990) (quoting Albernaz v. United States, 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981)), modified by State v. Smith, 2005 UT 57, ¶ 11 & n. 4, 122 P.3d 615 (addressing the method of determining “what punishments the Legislative Branch intended to be imposed“). We therefore turn to an analysis of the firearm discharge statute.
¶18 “When interpreting a statute, we look first to its text.” Richards v. Brown, 2012 UT 14, ¶ 23, 274 P.3d 911. The text of the statute under which Defendants were convicted makes it a crime to discharge a firearm from a vehicle:
(1)(a) A person may not discharge any kind of dangerous weapon or firearm:
(i) from an automobile or other vehicle;
(ii) from, upon, or across any highway;
...
(vii) without written permission to discharge the dangerous weapon from the owner or person in charge of the property within 600 feet of:
(A) a house, dwelling, or any other building....
¶19 The Utah Legislature has given us tools for construing criminal statutes. Sec-
¶20 Our supreme court has applied these principles in analyzing a multiplicity challenge. For example, in State v. Morrison, 2001 UT 73, 31 P.3d 547, the court addressed a challenge to the sexual exploitation of a minor statute. Morrison argued that, under the statute, possession of fifty offending images constituted a single offense, not fifty offenses. The statute in effect at that time forbade the possession or production of “‘any visual representation’ of child pornography.” Id. ¶ 25 (quoting
¶21 We approach the firearm discharge statute in the same straightforward way. Under this statute, “[a] person may not discharge any kind of dangerous weapon or firearm” under the stated conditions.
¶22 So interpreted, the statute is sufficiently clear to “safeguard conduct that is without fault from condemnation as criminal.” See
¶23 Rasabout argues that because the statute “does not specifically define” the term discharge, “the plain language of the statute does not clearly indicate whether the legislature intended the allowable unit of
¶24 Rasabout and Kaykeo also rely on the unchallenged finding of the trial court that “most of the shots were fired nonstop, and all the shots were fired in less than a minute,” and thus that Defendants had “one general intent in firing the several shots, which was to intimidate or harass” the occupants of the house. This finding is relevant to a determination of whether Defendants’ acts were committed within a single criminal episode. But as noted above, the fact that criminal acts fall within a single criminal episode means that they must be charged in a single prosecution, not that they must be charged in a single count.
¶25 Rasabout notes that other states are divided over whether a series of gunshots constitutes a single discharge or multiple discharges. This is certainly true. Some courts hold that each shot fired constitutes a separate offense. See, e.g., Hennemeyer v. Commonwealth, 580 S.W.2d 211, 214 (Ky. 1979) (holding that six separate gunshots fired by a defendant at pursuing police over a span of fifteen minutes constituted six separate counts of wanton endangerment); State v. Morrow, 888 S.W.2d 387, 392-93 (Mo.Ct. App.1994) (“The conduct proscribed is complete on one shot. A subsequent shot, whether moments or a substantial amount of time later, creates the same danger which the statute was intended to prevent.... [T]he individual act of shooting a single shot is prohibited.“), superseded by statute on other grounds as stated in State v. French, 79 S.W.3d 896, 899-900 (Mo.2002) (en banc); State v. Rambert, 341 N.C. 173, 459 S.E.2d 510, 513 (1995) (holding that defendant was properly charged with three counts of discharging a firearm where “defendant‘s actions were three distinct and, therefore, separate events,” explaining that “[e]ach shot, fired from a pistol, as opposed to a machine gun or other automatic weapon, required that defendant employ his thought processes each time he fired the weapon” and that “[e]ach act was distinct in time, and each bullet hit the vehicle in a different place“).
¶26 Other courts hold that multiple shots fired in rapid succession—or even not-so-rapid succession—constitute a single offense. See, e.g., McPherson v. State, 933 So.2d 1114, 1118 (Ala.Crim.App.2005) (holding that defendant could only be convicted of one count of discharging a firearm into an occupied dwelling because, regardless of the number of victims inside a dwelling, defendant‘s two shots “involved only one unit of prosecution, which was the [defendant‘s] act of discharging the firearm into the [victims‘] occupied dwelling“); Williams v. State, 90 So.3d 931, 933-34 (Fla.Ct.App.2012) (rejecting prosecution‘s argument that “each discharged bullet constituted a distinct act upon which separate convictions could rest” where defendant “fired eight shots in a short period of time with only a few seconds’ pause between gunshots“); State v. Demongey, 2008-NMCA-066, ¶ 15, 144 N.M. 333, 187 P.3d 679 (holding that firing three shots separated by minutes and distance traveled was “unitary conduct,” where the shots were fired during “one high-speed chase, in an extreme attempt to escape from the pursuing officer“).9
¶28 However, our analysis begins with the text of the statute and, if that text is unambiguous, ends there. See Richards, 2012 UT 14, ¶ 23 (“Where a statute‘s language is unambiguous and provides a workable result, we need not resort to other interpretive tools, and our analysis ends.“). And the fact that courts in other states—looking at other factual situations, interpreting other statutes, and in many cases using other interpretive approaches—come to inconsistent conclusions does not persuade us that our statute is ambiguous.
¶29 Finally, Rasabout argues, where the statute does not address the allowable unit of prosecution, he is entitled to lenity. Rasabout cites the United States Supreme Court‘s statement that “it is appropriate, before we choose the harsher alternative, to require that [the legislature] should have spoken in language that is clear and definite. We should not derive criminal outlawry from some ambiguous implication.” United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-22, 73 S.Ct. 227, 97 L.Ed. 260 (1952).
¶30 To be clear, while the rule of lenity may in some contexts serve to safeguard a defendant‘s constitutional rights, the rule is one of statutory construction, not constitutional law. See, e.g., Clark v. Martinez, 543 U.S. 371, 398, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005) (Thomas, J., dissenting) (“[T]he rule of lenity is wholly independent of the rules governing constitutional adjudication.“); Bifulco v. United States, 447 U.S. 381, 387, 100 S.Ct. 2247, 65 L.Ed.2d 205 (1980) (describing the rule of lenity as a “principle of statutory construction“); Gollehon v. Mahoney, 626 F.3d 1019, 1027 (9th Cir.2010) (describing the rule of lenity as “simply a canon of statutory construction“); United States v. Rivera, 265 F.3d 310, 312 (5th Cir.2001) (describing the rule of lenity as “a rule of statutory construction ... rather than a separate constitutional framework for raising claims“); Lurie v. Wittner, 228 F.3d 113, 126 (2d Cir.2000) (“The rule of lenity is a canon of statutory construction, not in itself federal law.“); Sabetti v. Dipaolo, 16 F.3d 16, 19 (1st Cir.1994) (stating that, other than the “fair notice” guarantee, petitioner “has not pointed to anything in the federal Constitution ... that would require a state court to apply the rule of lenity when interpreting a state statute“).
¶31 More specifically, lenity is “‘an ancient rule of statutory construction that penal statutes should be strictly construed against the government ... and in favor of the persons on whom such penalties are sought to be imposed.‘” United States v. Mabry, 518 F.3d 442, 452 (6th Cir.2008) (omission in original) (quoting 3 N. Singer, Sutherland Statutory Construction (6th ed. 2007)). However, our Legislature appears to have rejected the rule of lenity as a permissible canon of statutory construction, stating that “[t]he rule that a penal statute is to be strictly construed shall not apply to this code, any of its provisions, or any offense defined by the laws of this state.”
¶32 At any rate, even if section 76-1-106 would permit us to invoke the rule of lenity where a criminal statute suffers from ambiguity, as Rasabout urges, or “egregious ambiguity,” as at least one court has held, see People v. Manzo, 53 Cal.4th 880, 138 Cal.Rptr.3d 16, 270 P.3d 711, 717 (2012), we are not persuaded that the statute before us falls into either category. Thus, we need not resort to that interpretive canon here.
¶33 In sum, because we conclude that the unit of prosecution under the firearm discharge statute is each discrete shot, we reverse the trial court‘s ruling merging the twelve counts into a single count for each defendant.10
II. Ineffective Assistance of Counsel
¶34 On cross-appeal, Kaykeo contends that his trial counsel was constitutionally deficient because he did not adequately investigate Kaykeo‘s alibi. Kaykeo argues that his counsel‘s investigation was inadequate because he failed to contact corroborating witnesses and failed to request police dispatch logs that would have corroborated the time frame of his alibi.
¶35 A claim of ineffective assistance of counsel requires proof of two elements: “First, the defendant must show that counsel‘s performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also State v. Lenkart, 2011 UT 27, ¶ 25, 262 P.3d 1. To prove constitutionally deficient performance, “the defendant must show that counsel‘s representation fell below an objective standard of reasonableness” in light of all the circumstances. Strickland, 466 U.S. at 687-88. Furthermore, the defendant must overcome “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance” and that “under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689 (citation and internal quotation marks omitted); see also State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
¶36 “[O]ne of criminal defense counsel‘s most fundamental obligations is to investigate the underlying facts of a case. This duty is not optional; it is indispensable.” Lenkart, 2011 UT 27, ¶ 28. As our supreme court held in State v. Templin, 805 P.2d 182 (Utah 1990), the failure to adequately investigate a case constitutes deficient performance:
If counsel does not adequately investigate the underlying facts of a case, including the availability of prospective defense witnesses, counsel‘s performance cannot fall within the “wide range of reasonable professional assistance.” This is because a decision not to investigate cannot be considered a tactical decision. It is only after an adequate inquiry has been made that counsel can make a reasonable decision to call or not to call particular witnesses for tactical reasons.
Id. at 188 (quoting Strickland, 466 U.S. at 689); see also Gregg v. State, 2012 UT 32, ¶¶ 23-25, 279 P.3d 396; Lenkart, 2011 UT 27, ¶¶ 27-28.
¶37 The adequacy or reasonableness of the investigation is the controlling factor. See Taylor v. State, 2007 UT 12, ¶ 47, 156 P.3d 739 (citing Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003)); State v. Hales, 2007 UT 14, ¶¶ 69-70, 152 P.3d 321. “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.” Strickland, 466 U.S. at 690-91; see also Taylor, 2007 UT 12, ¶ 47. Thus, “a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel‘s judgments.” Strickland, 466 U.S. at 691; see also Taylor, 2007 UT 12, ¶ 48.
¶38 In determining the reasonableness of an investigation, “we look to the information available to trial counsel” at the time of the challenged conduct. Taylor, 2007 UT 12, ¶¶ 48-49; see also Hales, 2007 UT 14, ¶ 70. Thus, “inquiry into counsel‘s conversations with the defendant may be critical to a proper assessment of counsel‘s investigation decisions.” Strickland, 466 U.S. at 691. “[W]hen a defendant has given counsel reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel‘s failure to pursue those investigations may not later be challenged as unreasonable.” Id.
¶39 That is precisely what happened here. Kaykeo claims that his counsel was ineffective because he failed to contact potential alibi witnesses. Kaykeo stated in his declaration that he provided his defense counsel the names and contact information of four people who were at the party with him at the time of the shooting. Although Kaykeo did not name the four individuals in his declaration, Kaykeo provided the trial court with declarations from the host of the party and the driver of the BMW that was pulled over with Kaykeo and Rasabout. If believed, these witnesses’ testimony may well have exonerated Kaykeo. The host stated that Kaykeo was at the party until he left to take Rasabout home. The driver of the BMW confirmed this account and stated that he followed Kaykeo and Rasabout from the party, that the car Kaykeo was driving never left his sight, and that he never saw or heard any shots fired from Kaykeo‘s car.
¶40 However, according to the affidavit provided by Kaykeo‘s defense counsel, Kaykeo told his attorney that he did not know anyone at the party and he never provided an address or location of the party. Kaykeo‘s defense counsel stated that despite his requests for potential witness names, Kaykeo never provided him with any names, stating only that he was at the party with his girlfriend but that she “would not be helpful because she was ‘mad at him.‘”
¶41 The trial court accepted Kaykeo‘s defense counsel‘s version of events. Kaykeo had stated at trial that he only knew the general location of the party and, aside from his girlfriend and Rasabout, the others at the party were only acquaintances. In light of this testimony, the trial court stated that the affidavit provided by Kaykeo‘s counsel was consistent with Kaykeo‘s trial testimony, while Kaykeo‘s declaration was not.
¶42 Kaykeo did not request an evidentiary hearing below. Therefore, our review is limited to the affidavits and declarations provided to the trial court. See State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. Nor does Kaykeo mention or challenge the trial court‘s credibility determination. When “[n]either party challenges the trial court‘s findings of fact, ... we assume them to be correct.” Jacobs v. Hafen, 917 P.2d 1078, 1078 (Utah 1996). We also defer to the trial court‘s determination of the credibility of Kaykeo and his counsel, not based on its review of the dueling affidavits, but based on its superior position to judge the credibility of Kaykeo and his counsel, having observed them at trial. Cf. State v. Calliham, 2002 UT 86, ¶ 23, 55 P.3d 573 (deferring to a trial court‘s ruling that a psychological examination was not needed, even though that ruling was based primarily on a preliminary trial transcript, because in contrast to the appellate court‘s examination of a cold record, the trial court made its determination “having personally observed the quality of the evidence, the tenor of the proceedings, and the demeanor of the parties“).
¶44 Based on these facts, the only possible basis for a claim of inadequate investigation is counsel‘s failure to follow up with the girlfriend. But this failure did not constitute deficient performance in this case. As noted above, in deciding whether Kaykeo‘s counsel provided deficient performance, we “must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Strickland, 466 U.S. at 689. Furthermore, the adequacy of an investigation “may be determined or substantially influenced by the defendant‘s own statements or actions.” Id. at 691. Accordingly, we cannot ignore—nor can we expect Kaykeo‘s counsel to have ignored—Kaykeo‘s statement that his girlfriend “would not be helpful because she was ‘mad at him.‘” Counsel could have interpreted this statement to mean that she would not be willing to provide names of other witnesses, that she would lie out of spite and provide harmful but false testimony, or that she would be unwilling to lie and would provide harmful but true testimony. Because Kaykeo gave his counsel “reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel‘s failure to pursue those investigations may not later be challenged as unreasonable.” See id. In light of these facts, Kaykeo‘s counsel “rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” See id. at 690.
¶45 Regarding Kaykeo‘s claim of ineffective assistance based on his counsel‘s failure to obtain the police dispatch logs, we note that the dispatch logs are not part of the record on appeal. Without them, Kaykeo cannot prove that his counsel acted deficiently. “Where the record appears inadequate in any fashion, ambiguities or deficiencies resulting therefrom simply will be construed in favor of a finding that counsel performed effectively.” Litherland, 2000 UT 76, ¶ 17. Furthermore, Kaykeo cannot prove that he was prejudiced by his counsel‘s failure to request the dispatch logs. A defendant “cannot meet the prejudice prong of the Strickland test simply by identifying unexplored avenues of investigation. Rather, he must demonstrate a reasonable probability that further investigation would have yielded sufficient information to alter the outcome of his [case].” Parsons v. Barnes, 871 P.2d 516, 523-24 (Utah 1994); see also Litherland, 2000 UT 76, ¶ 17; State v. Chacon, 962 P.2d 48, 50 (Utah 1998) (stating that prejudice may not be established as “a speculative matter” (citation and internal quotation marks omitted)).
¶46 Because Kaykeo has failed to demonstrate that his counsel was deficient in failing to contact potential witnesses, and that his counsel‘s failure to obtain the dispatch logs was deficient and prejudiced his case, Kaykeo‘s claim of ineffective assistance fails.11
¶47 The trial court erred by merging Rasabout‘s and Kaykeo‘s twelve counts of discharge of a firearm into one count each. Based on the language of the statute, the allowable unit of prosecution is one count for each shot fired from the weapon. Therefore, we reverse the trial court‘s order merging the separate counts and remand for resentencing.
¶48 On cross-appeal, Kaykeo has not established that his counsel provided ineffective assistance at trial. Therefore, the trial court correctly denied his motion for new trial on this ground, and we affirm.
ORME, Judge (concurring in part and concurring in the result in part):
¶49 I concur in section I of the lead opinion but concur only in the result reached in section II. Given the difficulties in determining the adequacy of trial counsel‘s performance based on conflicting affidavits and given the lack of an evidentiary hearing below to resolve the conflict, I am persuaded that the best course is to resolve the ineffective assistance claim raised by Kaykeo12 purely on the prejudice prong, as our cases allow us to do. See, e.g., State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) (“Unless [the defendant] has demonstrated that he was prejudiced by his trial counsel‘s performance, we need not decide whether that performance was deficient.“); State v. Strain, 885 P.2d 810, 814 (Utah Ct.App.1994) (“[I]n cases in which it is ‘easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice,’ we will do so without addressing whether counsel‘s performance was professionally unreasonable.“) (quoting Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
¶50 The requisite showing of prejudice in an ineffective assistance claim cannot be established by simply “identifying unexplored avenues of investigation.” Parsons v. Barnes, 871 P.2d 516, 523 (Utah 1994). Instead, a defendant must show a reasonable probability that further investigation would have resulted in a more favorable outcome at trial. See id. at 523-24. While Kaykeo avers that his trial counsel failed to investigate and call witnesses capable of corroborating his version of the events, Kaykeo wholly fails to establish that the added testimony of these witnesses would create a reasonable probability of acquittal. Even assuming that (1) these potential witnesses were subject to subpoena at the time of trial or that they were ready, willing, and able to testify voluntarily and (2) that there was no obvious obstacle to these witnesses being believed by the jury—e.g., prior criminal history admissible under rule 609 of the Utah Rules of Evidence—it is doubtful that the story these witnesses were ostensibly prepared to tell was even possible, let alone plausible.
¶51 According to the declarations of the two uncalled witnesses, Kaykeo had been at a party approximately five miles from where the shootings occurred for the entire evening and did not leave until Rasabout appeared and asked Kaykeo to be his designated driver. The uncalled witness who claims he drove behind them after they left the party declared that Rasabout‘s vehicle, which Kaykeo was driving, never left his sight and that he did not see or hear any gunshots coming from the vehicle before they were pulled over. This proposed testimony, according to Kaykeo, supposedly substantiates his unconvincing narrative that Rasabout, after engaging in two drive-by shooting attacks on the same house, immediately drove five miles to a party with the hope of finding a designated driver to take him home and then—to add insult to injury—allowed his unwitting driver to go right past the home he had riddled with bullets only minutes before. To believe such a fantastical tale, a jury would also have to believe that although Rasabout formed the plan to drive five miles in search of a designated driver, he did not have the good sense to direct that driver away from the scene of his just-completed crimes.13
¶53 In my view, the proposed testimony of the uncalled witnesses does nothing to alleviate the many failings of Kaykeo‘s outlandish alibi defense. Consequently, I would resolve Kaykeo‘s ineffective assistance claim entirely on the prejudice prong of the Strickland test. He simply was not prejudiced by the jury‘s being spared these tall tales.
Given that, the jury would have to assume that Rasabout was completely indifferent to the obvious risk that his close friend could be implicated in his crime if they drove past the scene of the crime on their way home.
Notes
(2) A violation of any provision of this section is a class B misdemeanor unless the actor discharges a firearm under any of the following circumstances not amounting to criminal homicide or attempted criminal homicide, in which case it is a third degree felony and the convicted person shall be sentenced to an enhanced minimum term of three years in prison:
(a) the actor discharges a firearm in the direction of any person or persons, knowing or having reason to believe that any person may be endangered;
(b) the actor, with intent to intimidate or harass another or with intent to damage a habitable structure as defined in Subsection 76-6-101(2), discharges a firearm in the direction of any building; or
(c) the actor, with intent to intimidate or harass another, discharges a firearm in the direction of any vehicle.