STATE OF UTAH, Appellee, v. CHAD JACOB ROBERTS, Appellant.
No. 20170616-CA
THE UTAH COURT OF APPEALS
January 10, 2019
2019 UT App 9
POHLMAN, Judge
Fourth District Court, Provo Department; The Honorable Thomas Low; No. 161401733
Michael D. Esplin, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys for Appellee
JUDGE JILL M. POHLMAN authored this Opinion, in which JUDGES MICHELE M. CHRISTIANSEN FORSTER and DIANA HAGEN concurred.
POHLMAN, Judge:
¶1 Chad Jacob Roberts appeals his conviction for aggravated sexual abuse of a child and also seeks a remand under
Sexual Abuse, Disclosure, and Investigation
¶2 Victim is the adoptive sister, and natural cousin, of Roberts. After their biological father relinquished his parental rights, Victim and her two older siblings (Sister and Brother) were adopted by Roberts‘s mother (Mother).2 Roberts would frequently visit the house where Mother and Victim lived and would “cuddle” with Victim and Sister and read them books at bedtime. Often, Roberts would “fall asleep with them in the bed.”
¶4 Because she “still loved and cared about” Roberts and was “happy living at” Mother‘s house, Victim “decided [she]
¶5 After this disclosure and a report made by Brother, police interviewed Roberts. Roberts admitted that he would sleep in Victim and Sister‘s bunkbed and “cuddle with them,” but he denied ever touching Victim inappropriately. The police investigator asked whether on the night in question he could have touched Victim‘s vagina “accidentally,” and Roberts responded, “Possibly,” but denied that it would have been for sexual gratification.
Trial
¶6 At trial, the defense called Mother, who testified that Roberts and Victim had a “[l]oving, caring” relationship. She also testified that, although Roberts would cuddle with Victim and Sister, their room was not far from hers and their doors were “[a]lways open.” On cross-examination, the prosecutor asked Mother whether she was ever interviewed by the Division of Child and Family Services (DCFS) “about [her] being emotionally abusive to” Victim. After Mother testified that she
¶7 Later, during closing argument, the prosecutor twice stated that Roberts‘s penis was “pressed up against” Victim‘s buttocks as he lay with her. The second time, after the prosecutor said that Roberts was “spooning with his front pushed against [Victim‘s] back with his penis around her buttocks,” defense counsel objected. The trial court sustained the objection and explained to the jury that there was no evidence in the record of the “relative positions” of Roberts and Victim. The prosecutor then told the jury that it could use its “common sense understanding” to infer the relative positions of Roberts and Victim as they lay in the bed. Defense counsel did not renew the objection or ask the court to take any further action.
¶8 The defense‘s strategy at trial was to focus on Roberts‘s lack of sexual intent rather than attack the credibility of Victim, who had testified emotionally about the abuse. Roberts, who testified at trial, admitted that he cuddled with Victim and Sister and that he told police that he may have touched Victim‘s vagina accidentally, but he denied touching her with any sexual intent. In his closing argument, defense counsel stated that he did not think Victim was lying, and that the jury could believe both Victim and Roberts and still find Roberts not guilty. Counsel emphasized the isolated nature of the incident and argued that, because he did not have “the specific intent to arouse or gratify somebody‘s sexual desire,” Roberts was not guilty.
¶9 At the close of evidence, the State asked the trial court “to expand [by one year] the time frame that was originally pled” in the information. Without hearing “much of an opposition” to such an amendment, the trial court granted the request. After being given instructions, including an instruction that counsel‘s “statements and arguments are not evidence,” the jury retired to
ISSUES AND STANDARDS OF REVIEW
¶10 Roberts raises several issues on appeal that can be separated into three categories. First, Roberts contends that the prosecutor made improper statements during closing argument that warranted a mistrial or a limiting instruction. Defense counsel did not request these remedies at trial, and Roberts asks us to review this unpreserved issue under the doctrines of plain error and ineffective assistance of counsel.3 See State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443 (explaining that plain error and ineffective assistance of counsel are exceptions to the preservation requirement). A trial court plainly errs when it commits obvious, prejudicial error. See State v. Griffin, 2016 UT 33, ¶ 17, 384 P.3d 186. “An ineffective assistance of counsel claim raised for the first time on appeal presents a question of law.” Id. ¶ 16 (quotation simplified).
¶11 Second, Roberts contends that the prosecutor‘s inquiry of Mother about a DCFS investigation constituted prosecutorial misconduct and that defense counsel was constitutionally
¶12 Finally, Roberts raises a number of other ineffective assistance claims relating to defense counsel‘s choices not to request a bill of particulars and not to attack Victim‘s credibility, which he asserts require a remand under
ANALYSIS
I. Prosecutor‘s Comments During Closing Argument
¶13 Roberts first contends that the trial court “committed plain error by failing to sua sponte order a mistrial or by failing to give a limiting instruction to the jury” after the prosecutor twice remarked in closing that Roberts‘s penis was “pressed up against” Victim‘s buttocks. Alternatively, he contends that his defense counsel was constitutionally ineffective “by failing to move for a mistrial or request[] a specific” limiting instruction in response to those comments. We conclude, however, that a mistrial was not required here and that, even assuming a limiting instruction was required, the court adequately instructed the jury. We also conclude that Roberts‘s defense
A. Plain Error
¶14 Not “every misstep of counsel in closing amounts to plain error.” State v. Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314. “We must ask first whether counsel‘s missteps were so egregious that it would be plain error for the district court to decline to intervene sua sponte.” Id. (emphasis omitted). And our supreme court has long recognized that prosecutors have “considerable latitude in their closing arguments.” State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989). Specifically, “[t]hey have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports,” id., and have “the duty and right to argue the case based on the total picture shown by the evidence,” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). Thus, the court “must be certain” that a prosecutor‘s statement is “both highly prejudicial and obviously” wrong before interrupting closing argument sua sponte. Hummel, 2017 UT 19, ¶ 119 n.35; see also State v. King, 2006 UT 3, ¶ 14, 131 P.3d 202 (observing that a “trial court should not assume the role of advocate” (quotation simplified)).
¶15 Intervening by declaring a mistrial is a particularly drastic remedy that is warranted “only when no reasonable alternatives” exist. See West Valley City v. Patten, 1999 UT App 149, ¶ 12, 981 P.2d 420. Indeed, declaring mistrials sua sponte “at the end of counsel‘s statement to the jury must be indulged with a high degree of caution and circumspection.” State v. Dennis, 385 P.2d 152, 153 (Utah 1963). The Utah Supreme Court has suggested that any duty to sua sponte declare a mistrial would arise only if the underlying error “render[ed] the trial a farce and a mockery.” Id. at 153 n.2 (quotation simplified).
¶16 Here, the prosecutor made two statements during closing argument describing Roberts‘s penis as being “pressed up
¶17 Roberts alternatively suggests that the trial court plainly erred by not providing a limiting instruction in response to the prosecutor‘s closing argument. But after defense counsel objected to the prosecutor‘s statements, the court sustained his objection and gave some instruction to the jury. The court explained to the jury that the objection to counsel‘s argument was sustained because “no evidence regarding the size of the
B. Ineffective Assistance of Counsel
¶18 Having concluded that the trial court did not plainly err, we address Roberts‘s alternative contention that defense counsel was constitutionally ineffective when he “failed to request a remedy, either moving for a mistrial or requesting a curative instruction” in response to the prosecutor‘s statements. Although Roberts requests a rule 23B remand on this claim, it “is not necessary to remand” when the existing record “demonstrate[s] that counsel‘s performance was not deficient.” State v. Griffin, 2015 UT 18, ¶ 42.
¶19 Proving deficient performance is a “heavy burden.” State v. Nelson, 2015 UT 62, ¶ 11, 355 P.3d 1031 (quotation simplified). To meet that burden, Roberts “must overcome the strong presumption that his trial counsel rendered adequate assistance by persuading the court that there was no conceivable tactical basis for counsel‘s acts or omissions.” Id. ¶ 10 (quotation simplified). In an analogous context, the Utah Supreme Court has recognized “the prerogative of opposing counsel to swallow their tongue instead of making an objection that might have the risk of highlighting problematic evidence or even just annoying the jury.” Hummel, 2017 UT 19, ¶ 110 & n.34. Indeed, several cases have recognized that the decision not to object at all may be a “legitimate strategic decision.” State v. Bedell, 2014 UT 1, ¶¶ 24–25, 322 P.3d 697; see also State v. Houston, 2015 UT 40, ¶ 76; State v. Shepherd, 2015 UT App 208, ¶¶ 52–53, 357 P.3d 598.
II. The Prosecutor‘s Cross-examination of Mother
¶21 We next turn to Roberts‘s contention that the prosecutor‘s cross-examination of Mother about a DCFS investigation into allegations that she had been emotionally abusive to Victim was improper and requires reversal of his conviction. The Utah Supreme Court recently clarified that an unpreserved claim of prosecutorial misconduct is not “a standalone basis for independent judicial review.” State v. Hummel, 2017 UT 19, ¶ 111. Rather, unpreserved challenges of prosecutorial misconduct must be reviewed “under established
¶22 Roberts has not asserted exceptional circumstances or plain error,6 but he has argued that his prosecutorial misconduct claim should be reviewed under the rubric of ineffective assistance of counsel. Specifically, Roberts contends that defense counsel was ineffective “by failing to timely object” to this line of questioning and for not requesting that “the testimony be stricken.”
¶23 To establish ineffective assistance of counsel, Roberts “must show both that counsel‘s performance was objectively deficient, and a reasonable probability exists that but for the deficient conduct defendant would have obtained a more favorable outcome at trial.” State v. Reid, 2018 UT App 146, ¶ 19, 427 P.3d 1261 (quotation simplified). In practice, we
¶24 During cross-examination, the prosecutor asked Mother about a DCFS investigation into an allegation that she had emotionally abused Victim. Although defense counsel ultimately succeeded in terminating this line of questioning on relevance grounds, the jury heard Mother testify that she did not recall that her sister had accused her of emotionally abusing Victim and she denied that DCFS interviewed her about the allegation. Roberts contends that defense counsel performed deficiently by not objecting sooner or moving to strike the testimony. Without deciding whether defense counsel performed deficiently, Roberts has not shown that but for that testimony it is reasonably probable that he would have obtained a more favorable outcome at trial.
¶25 Roberts contends that as a result of defense counsel‘s delayed action, “the jury was able to hear inadmissible evidence prejudicial to [Mother‘s] credibility.” But Roberts offers no further explanation of how the evidence prejudiced him. He states that “[w]ithout the inadmissible evidence, there would be a likelihood of a more favorable verdict,” but his analysis ends there. Roberts does not explain how the jury would have viewed this relatively brief exchange or, even assuming the testimony undermined Mother‘s credibility, why Mother‘s testimony was important to Roberts‘s defense. Without more, Roberts “has failed to show that ‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” Reid, 2018 UT App 146, ¶ 39
III. Ineffective Assistance of Counsel and Rule 23B Remand
¶26 Finally, Roberts raises a number of other ineffective assistance of counsel claims, separate from those addressed above, which he contends either require reversal of his conviction or a remand to develop the record. As explained above, the test for ineffective assistance of counsel is objectively unreasonable performance and accompanying prejudice. State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031. If there are inadequate “findings of fact, necessary for the appellate court‘s determination of a claim of ineffective assistance of counsel,” a party may move for remand to the trial court for entry of those facts.
A. Bill of Particulars
¶27 First, Roberts contends that defense counsel was “ineffective by not filing a bill of particulars” and a “demand for specific date, time and place of commission of offense.”8 He acknowledges that “time is not necessarily an element of the offense,” but he asserts that “the State is required to provide as much evidence as it has.” This is true, see State v. Robbins, 709 P.2d 771, 773 (Utah 1985), but there is nothing in the record to suggest that the State had information helpful to narrowing the time frame that it did not provide. Thus, defense counsel was not ineffective by not asking for a bill of particulars. See State v. Johnson, 2015 UT App 312, ¶ 16, 365 P.3d 730 (noting “the failure to file a futile motion” is not ineffective assistance of counsel).9
¶28 Second, Roberts contends that defense counsel may have been ineffective for not challenging Victim‘s credibility at trial and seeks a remand to “be able to determine whether or not counsel had some strategy in abandoning the credibility issue.” Specifically, Roberts raises the following related arguments:
- Defense counsel should have obtained Victim‘s medical records;
- Defense counsel should have investigated whether Victim suffered from reactive attachment disorder (RAD);
- Defense counsel should have called Sister as a witness to undermine Victim‘s account of sexual abuse;
- Defense counsel should have challenged Victim‘s credibility through the testimony of Brother and Fiancée; and
- Defense counsel should not have vouched for Victim in his closing argument by saying that he did not believe Victim was lying.
To support his arguments, Roberts includes an affidavit from a private investigator detailing that Sister never saw or experienced any inappropriate behavior herself and that Brother and Fiancée stated to the investigator that Victim is untruthful. Because these arguments all relate to defense counsel‘s decision not to attack Victim‘s credibility, we analyze them together and conclude that this claim does not require remand.
¶30 Here, defense counsel reasonably chose not to attack Victim‘s credibility, focusing instead on Roberts‘s lack of sexual intent. The record reflects that, at least at one point, defense counsel considered the strategy Roberts advocates on appeal. For example, he intended to have Mother testify to Victim‘s character for truthfulness and introduce evidence that Victim received counseling and therapy for self-harming behavior. In addition, Mother informed defense counsel of her belief that Victim suffered from RAD. At trial, however, defense counsel abandoned this strategy. After Victim‘s apparently emotional testimony, during which Victim stated that she still loved Roberts and that it was “hard” for her to testify at trial, it was not unreasonable for defense counsel to decide that he did not want to attack Victim‘s credibility and appear unsympathetic to the jury.10
CONCLUSION
¶32 The trial court did not plainly err when it did not sua sponte order a mistrial or give a limiting instruction in response to the prosecutor‘s closing argument; neither was Roberts‘s defense counsel constitutionally ineffective for not requesting that relief. We reject Roberts‘s other prosecutorial misconduct claim arising from the prosecutor‘s cross-examination of Mother because he did not assert it under the rubric of plain error and has not established ineffective assistance of counsel. Finally,