November 22, 2013 Utah Supreme Court Case Summaries

State v. Larrabee, 2013 UT 70, No. 20110739 (November 22, 2013)

ISSUES:  Prosecutorial Misconduct, Issue Preservation, Ineffective Assistance of Counsel, Sound Trial Strategy

Justice Durrant,

Michael D. Larrabee (Defendant) appeals three criminal convictions: two for aggravated sexual abuse of a child, and one for dealing in material harmful to a minor. Defendant argues that the convictions cannot stand because . . . the prosecutor prejudiced the jury by making several improper remarks during closing arguments. 

At ¶ 1.

After careful review of the record, we conclude that Defendant failed to preserve the issue of prosecutorial misconduct for appeal. Nevertheless, we hold that defense counsel’s failure to object to the prosecutor’s conduct at trial constitutes ineffective assistance of counsel. We therefore remand this case to the trial court for a new trial on all counts.

At ¶ 2.

The Court outlines the allegations and evidence against the Defendant.

At ¶¶ 3-10.

. . . The state then tried to introduce evidence that Defendant had sexually molested Jamie, but, after excusing the jury, the trial court ruled that her testimony was inadmissible due to unreliability and instructed both Jamie and counsel not to refer to these new allegations in the presence of the jury. Nevertheless, despite the trial court’s warning that reference to these allegations would lead to a mistrial, during closing arguments the prosecutor did refer to Jamie’s allegations of sexual abuse. Neither defense counsel nor the court intervened, however, and Defendant was eventually convicted on the two counts of aggravated sexual abuse regarding B.B., the count of dealing in material harmful to a minor, but he was acquitted on the count of aggravated sexual abuse regarding M.V.

At ¶ 10.

After trial, Defendant filed a motion to arrest judgment pursuant to rule 23 of the Utah Rules of Criminal Procedure, wherein he raised the same arguments he raises in this appeal, namely that . . . the prosecutor’s conduct during closing arguments was prejudicial. The district court denied Defendant’s motion and upheld the convictions. Defendant now appeals. We have jurisdiction over this matter pursuant to Utah Code section 78A-3-102(3)(i).

At ¶ 11.

Preservation

We turn first to the issue of preservation. Defendant argues that he properly preserved his claim for prosecutorial misconduct because he raised it in his motion to arrest judgment. We disagree.

At ¶ 14.

“We have consistently held that a defendant who fails to preserve an objection at trial will not be able to raise that objection on appeal unless he is able to demonstrate either plain error or exceptional circumstances.” And with respect to appellate review of closing arguments, we have previously held that we “will not examine the State’s closing argument if the defendant failed to timely object to it.” The reason behind this “preservation rule” is two-fold. First, the rule affords the trial court “an opportunity to address the claimed error, and if appropriate, correct it,” thereby promoting judicial economy. And second, the rule prevents defendants from foregoing an objection “with the strategy of enhancing the defendant’s chances of acquittal and then, if that strategy fails . . . claiming on appeal that the [c]ourt should reverse,” thereby encouraging fairness. In order to further both policies through this rule, “we have held that the preservation rule applies to every claim, including constitutional questions, unless a defendant can demonstrate that exceptional circumstances exist or plain error occurred.”

At ¶ 15.

Defendant’s motion to arrest judgment was filed almost two months after the trial concluded, which hardly counts as a “timely objection” to the statements made by the prosecutor during closing arguments. Furthermore, allowing defendants to preserve issues like prosecutorial misconduct through motions to arrest judgment would directly contradict the purposes of the preservation rule articulated above. That is, if a motion to arrest judgment was sufficient to preserve this issue, then not only would the trial court be deprived of the opportunity to address the issue at trial, but defendants could also strategically forgo an objection without the risk that by so doing they might lose their ability to appeal that particular issue. Therefore, because Defendant’s counsel failed to timely object to the statements that Defendant now contests as improper, we hold that the prosecutorial misconduct issue was not properly preserved. Nevertheless, Defendant correctly argues that the prosecutor’s conduct is still relevant to our analysis of his ineffective assistance of counsel claim, to which we now turn.

At ¶ 16.

Ineffective Assistance of Counsel

We have repeatedly classified the burden that defendants bear when asserting an ineffective assistance of counsel claim as a “heavy” one. This is so because under the standard set forth in Strickland v. Washington, the defendant must prove both of the following: “(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.”

At ¶ 18.

Furthermore, it is important to note that Strickland imposes two additional presumptions in favor of the objective reasonableness of defense counsel’s performance. First, “[g]enerally speaking, [t]here is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” In other words, “the general presumption of objective reasonableness requires a petitioner to ‘overcome the presumption that, under [all] the circumstances, the challenged action might be considered sound trial strategy.’” Second, if it can be shown that “after thorough investigation of law and facts relevant to plausible options” counsel made a “strategic choice[],” then that choice is “virtually unchallengeable.”

At ¶ 19.

In this case, neither party has argued that defense counsel’s decision not to object to the prosecutor’s comments during closing arguments was the result of a “strategic choice made after thorough investigation of law and facts,” and thus the second presumption does not apply here. Instead, the State argues that defense counsel’s decision “might be considered sound trial strategy.” We disagree. Given the extremely prejudicial nature of the remarks and “under the circumstances” of this case, we conclude that counsel’s choice not to object was not a “sound trial strategy.” Additionally, in light of the improper, inflammatory, and prejudicial nature of the comments, we hold that defense counsel’s failure to object also falls below Strickland’s objective standard of reasonableness and that it was reasonably likely the outcome of the trial would have been different but for defense counsel’s performance. Therefore, we conclude that the Strickland requirements have been met here and that Defendant is entitled to a new trial on all counts due to his counsel’s ineffective assistance.

At ¶ 20.

      A. Objective Standard of Reasonableness

During trial, the State attempted to call Jamie, B.B.’s mother, as a witness to testify about how Defendant had molested her when she was eleven years old. At the suggestion of defense counsel, the trial court heard this testimony outside the presence of the jury and ruled that Jamie’s testimony was inadmissible due to unreliability. The trial court then instructed both Jamie and counsel not to refer to these allegations. But despite the trial court’s warning that any reference to these allegations would lead to a mistrial, during closing arguments the prosecutor made the following remark[], which, Defendant argues, w[as] improper:

. . .When he’s dragging [B.B.’s mother] back to the house in Arizona, how come she doesn’t scream and say look what he’s doing to me? He’s sexually abusing me. He’s doing all these things. Why didn’t she come out herself and say [Defendant’s] doing these terrible things to me? Why didn’t she have that vengeance then? Why does she wait until she’s not in his life at all?

. . .

At ¶ 21.

The State argues that defense counsel might not have objected to the Contested Statement because he feared that it would highlight its prejudicial nature. The State also argues that this qualified as a “sound” strategy. But given the obvious impropriety of the Contested Statement, as well as its inflammatory and prejudicial nature, under the facts of this case we cannot agree and therefore refuse to recognize such a strategy as “sound.” Accordingly, we conclude that the first Strickland presumption is overcome. We further conclude that because it was unreasonable for defense counsel not to object, his performance fell below Strickland’s objective standard of reasonableness.

At ¶ 22.

The fact that the Contested Statement was improper and inflammatory should have been immediately apparent to defense counsel. The . . . remark was, of course, damaging  . . . because it explicitly referred to allegations of child sexual abuse that the trial court had previously ruled inadmissible. Specifically, the prosecutor referred to allegations brought by B.B.’s mother that Defendant had sexually abused her many years prior to the events at issue in this case. This was improper for a number of reasons. First, “[t]he Utah Rules of Professional Conduct . . . prohibit an attorney from alluding to matters not introduced as evidence at trial.” Second, when a prosecutor insinuates “that other evidence exists [he] encourages the jury to determine its verdict based upon evidence outside the record and jeopardizes a defendant’s right to a trial based upon the evidence presented.” And finally, by referring to these allegations, the prosecutor “demonstrated a complete disregard for the tribunal’s rulings.”

At ¶ 23.

We agree with Defendant that the Contested Statement was improper because a prosecutor may not “assert arguments he knows to be inaccurate,”20 especially when those arguments refer to evidence not in the record or evidence that has been excluded by the trial court. Therefore, we conclude that the improper nature of the prosecutor’s comments should have been obvious to defense counsel.

At ¶ 24.

In addition to recognizing their impropriety, defense counsel should have also recognized that the Contested Statement was inflammatory. Within the context of a criminal trial for the sexual abuse of a child, it is difficult to conceive of a more inflammatory statement than that offered by the prosecutor—namely, that Defendant had a prior history of child sex abuse. This is especially true in this case, where the jury had, to that point, heard absolutely nothing regarding such a prior offense. For these reasons, defense counsel should have been immediately aware that these comments were both improper and inflammatory.

At ¶ 25.

      B. “Fear of Highlighting” Prosecutorial Abuse is Not a “Sound” Trial Strategy to Justify Failure to Object in the Context of This Case

Given the circumstances of this case as outlined above, we are at a loss to conceive of a “sound trial strategy” that would justify defense counsel’s decision to remain completely silent while the prosecutor made the Contested Statement. In the face of such obviously improper and inflammatory comments, defense counsel should have immediately objected and moved for a mistrial or, at the very least, demanded a curative instruction. But by failing to do so, not only did defense counsel fail to address the prejudice elicited by the Contested Statement, but he also failed to preserve the issue for appeal. And in our view these failures are sufficiently egregious to support the conclusions that defense counsel’s decision cannot be considered to be a “sound trial strategy,” as required by Strickland, and that defense counsel’s performance fell below Strickland’s objective standard of reasonableness.

At ¶ 26.

The State attempts to counter this line of argument by asserting that defense counsel’s decision to remain silent does qualify as a “sound” trial strategy because counsel may have feared that an objection or motion might highlight or compound the prejudicial nature of the Contested Statement for the jury. The dissent agrees and goes to great lengths to make the point that, under certain circumstances, strategically refusing to object is an acceptable trial strategy. But here we are not disputing the fact that there are times when counsel’s decision not to object can be both strategic and proper. That proposition is axiomatic. We simply conclude that this was not one of those times.

At ¶ 27.

As the dissent acknowledges, “[t]he question of where to draw the line—of when to object and when to stand pat—is . . . difficult.” And under the circumstances of this case, we are simply drawing this line in a different place than that advocated by the dissent. We believe that, given the improper and inflammatory nature of the prosecutor’s remarks, it was not reasonable for defense counsel to stand silent. Thus, contrary to what is asserted by the dissent, we are not departing from Strickland, we are applying it. And while we recognize that it can be a legitimate strategy to remain silent due to a fear of prejudice, under the facts of this case such a strategy does not qualify as “reasonable” or “sound,” since no more prejudicial accusation can be made within the context of a child sex abuse case than that the defendant has a history of sexually abusing children, which is precisely the accusation the prosecutor made here. Within the context of this case, therefore, we decline to assume, as the State and dissent urge us to do, that defense counsel failed to object because he had made a reasonable and sound strategic decision. Instead, we conclude that, given the nature of the Contested Statement, such a strategy was patently unreasonable.

At ¶ 28.

[W]e think it important to note that, even in closer cases, the “fear of highlighting” argument should be analyzed with some skepticism. For at bottom, when accepted, it permits the State to engage in improper conduct without consequence. It insulates the State from objection to its misconduct by the very fact that an objection might render that misconduct even more effective by bolstering the State’s case. Further, in those cases where defense counsel fails to object to improper comments by the State, the imputation of a “fear of highlighting” argument will almost always be available to the State. And were that argument too readily accepted, it would significantly undermine our ineffective assistance of counsel doctrine.

At ¶ 31.

Finally, the “fear of highlighting” argument also puts defense counsel at a significant disadvantage at trial. She faces a Hobson’s choice: on the one hand, if she objects, she risks highlighting the improper comment. If she does not, she is effectively barred from raising the issue on appeal because her silence may be deemed a “sound” strategy. Thus, if the argument is too readily accepted, it could stand as a substantial obstacle to a fair trial. This is not to say it should never be accepted. Our rules of preservation are critical to the appellate process and are themselves an important mechanism for promoting fairness. It is only to say that it is an argument that always warrants careful scrutiny, with the inequities we have noted in mind.

At ¶ 32.

      C. Prejudice

We now turn to Strickland’s second requirement, under which the defendant must show that “but for counsel’s deficient performance there is a reasonable probability that the outcome of the trial would have been different.” The Supreme Court has defined “reasonable probability” as “a probability sufficient to undermine [our] confidence in the outcome.” Defendant argues that this requirement is met here because, in addition to the improper and inflammatory nature of the Contested Statement discussed above, it was also highly prejudicial. We agree.

At ¶ 34. 

In this case, the jury was being asked to render a verdict based solely on its assessment of the credibility of two witnesses: Defendant and B.B. There was no physical, direct, or even circumstantial evidence corroborating B.B.’s allegations. It was simply her accusations pitted against Defendant’s denials. We also find it significant that the prosecutor presented no evidence (other than his improper remarks during closing arguments) that undermined Defendant’s credibility. Instead, numerous witnesses—including Jan, Defendant’s ex-wife and B.B.’s grandmother—testified that it was “not in [Defendant’s] nature” to do this, that Defendant was “a loving . . . protector of young people,” and that the kids “loved [him],” “adored [him],” and “jumped on his lap and his knee.”

At ¶ 35.

Given these circumstances, it should have been obvious to defense counsel that the prosecutor’s comments were highly prejudicial since they went to the heart of what the jury was being asked to decide: whether Defendant’s testimony was credible. But by making the Contested Statement, the prosecutor (a) improperly referred to excluded evidence and (b) implied that Defendant had committed sexual abuse previously. Given these factors, the prejudicial nature of these remarks should have been readily apparent to defense counsel and should have motivated him to object and demand a curative instruction or a mistrial.

At ¶ 36.

But because defense counsel failed to do so, we conclude that—given the improper, inflammatory, and highly prejudicial nature of the Contested Statement—it most likely influenced the jury’s deliberations. There was a “reasonable probability that . . . the result of the [trial] would have been different,”33 and our confidence in the jury’s verdict is undermined. Accordingly, we conclude that both of the requirements set forth in Strickland are met here and that Defendant is entitled to a new trial on all counts due to ineffective assistance of counsel.

At ¶ 37.

Justice Lee, Dissenting,

Justice Lee argues that Defense counsel’s failure to object to the prosecutor’s statement during closing arguments could have been a strategic choice to avoid highlighting the prejudicial statement.  Accordingly, Justice Lee would not find that defense counsel was ineffective.

At ¶¶ 39-62.

I would also reject Larrabee’s alternative ground for reversal, which is rooted in a so-called doctrine of prosecutorial misconduct. In support of this argument, Larrabee invokes case law purportedly calling for reversal in the face of prosecutorial statements that “call to the attention of . . . jurors matters which they would not be justified in considering in determining their verdict,” see State v. Ross, 2007 UT 89, ¶ 54, 174 P.3d 628—at least where jurors were “probably influenced by those remarks,” id., and where the prosecutor’s comments were “so obviously improper that the trial court had an opportunity to address the error,” State v. Calliham, 2002 UT 86, ¶ 62, 55 P.3d 573.

At ¶ 63.

The standards invoked by Larrabee are problematic. His notion of a standalone doctrine of prosecutorial misconduct is a distortion of our adversary system, of our law of preservation, and of the constitutional and statutory restraints on our appellate power. And his proposed standard of review is an effective override of the settled plain error standard.

At ¶ 64.

State v. Younge, 2013 UT 71, No. 20100146 (November 22, 2013)

ISSUES: Statute of Limitations for Aggravated Sexual Assault, Right to Speedy Trial, Name of Defendant on Information

Justice Nehring,

Donald E. Younge Jr. contends that the State did not commence its prosecution of him within the statute of limitations. He also claims that his right to a speedy trial was violated. We hold that the State commenced Mr. Younge’s prosecution within the applicable statute of limitations and that his right to a speedy trial was not violated and accordingly affirm his convictions.

At ¶ 1.

The Court outlines the facts and history of this case.  Most importantly: 1) in November 1996, an unknown assailant sexually assaulted a victim; 2) in March 2000, with the four statute of limitations approaching and without further leads as to the attacker’s identity, the State filed an information in March 2000 charging “John Doe, an unknown male” with the crime and identifying the unknown assailant by DNA profile; 3) two years later, a match for the DNA profile of the unknown assailant was identified in CODIS; 4) in September 2002, the State filed an amended information identifying Donald E. Younge Jr. by name, and an arrest warrant was issued the same day; 5) because defendant was being held in Illinois awaiting trial on a murder charge, Defendant was not extradited to Utah until February 2009; 6) on July 9, 2009, Defendant was bound over for trial on all counts and he was arraigned on August 28; 7) Defendant filed two motions related to his right to a speedy trial and the statute of limitations and the district court set a briefing schedule for the motions, granting the State an extra week to respond due to a week-long trial that the prosecutor was involved in and passing over an October 16 hearing date because the prosecutor had a scheduling conflict; 8) the district court denied defense counsel’s initial request that the trial commence on October 26 because the prosecutor was not available that day; 9) the trial court’s order setting the trial on November 9 and 10, and a final pretrial conference on November 6, as requested by defendant; 10) the district court’s ruling that the statute of limitations had been tolled from 1999 until defendant’s extradition because he had been out of state, and that he had not been deprived of his right to a speedy trial; 11) the district court’s order granting the prosecution a continuation of the trial because the State Crime Lab had not provided DNA reports to defense counsel; and 12) defendant’s conviction after a jury trial conducted on December 11, 2009.

At ¶¶ 2-9.

Statute of Limitations/ Adequacy of Information

Mr. Younge alleges that the first information did not meet the requirements for a valid charging document because it did not identify him by name. We disagree. The Utah Code of Criminal Procedure defines a “criminal action” as “the proceedings by which a person is charged, accused, and brought to trial for a public offense.” The Utah Rules of Criminal Procedure require that to initiate a criminal action, “[u]nless otherwise provided, all criminal prosecutions . . . shall be commenced by the filing of an information or the return of an indictment.” An information is “an accusation, in writing, charging a person with a public offense which is presented, signed, and filed in the office of the clerk where the prosecution is commenced pursuant to Section 77-2-1.1.” The Rules of Criminal Procedure mandate that [a]n indictment or information shall charge the offense for which the defendant is being prosecuted by using the name given to the offense by common law or by statute or by stating in concise terms the definition of the offense sufficient to give the defendant notice of the charge. An information may contain or be accompanied by a statement of facts sufficient to make out probable cause to sustain the offense charged where appropriate.

At ¶ 12.

While the Rules of Criminal Procedure require that the information “charg[e] a person,” there is no specific requirement as to how the individual to be charged is identified other than that “[a]n indictment or information shall not be held invalid because any name contained therein may be incorrectly spelled or stated.”

At ¶ 13.

The only challenge Mr. Younge raises as to the sufficiency of the first information is that it did not identify him by name, and therefore violated his right to due process under the Utah Constitution. Mr. Younge alleges that his “right to notice is guaranteed by article I, section 12 of the Utah Constitution.” However, an information “is an accusation against a person, and not against a name. A name is not the substance of an indictment.” Section 77-1-3 requires that the information “charg[e] a person” but does not require that the individual be charged by name. And a DNA profile “is as close to an infallible measure of identity as science can presently obtain.”

At ¶ 14.

With regard to Mr. Younge’s due process challenge, a statute of limitations “is a statutory creation and affords no positive rights of constitutional dimension. . . . [T]he statute is not a source of constitutional liberties, nor does it by its own terms require actual or constructive notice to a defendant in order to be satisfied.” Neither the Utah Code nor the Utah Rules of Criminal Procedure require that actual or constructive notice be provided to a defendant before the commencement of a prosecution. While the Utah Constitution “requires that the accused be given sufficient information so that he [or she] can know the particulars of the alleged wrongful conduct and can adequately prepare his [or her] defense,”18 we have explained that an information may be “an extremely summary statement of the charge, that would not provide the accused with sufficient particulars to prepare an adequate defense.” To protect the rights of the charged individuals, defendants are entitled to request a bill of particulars in instances when the charging document is not detailed enough to provide adequate information for the preparation of a defense. Therefore, the first information, which charged a John Doe defendant by DNA profile, was valid and did not violate Mr. Younge’s right to due process under the Utah Constitution. Because we determine the first information was valid, we need not address Mr. Younge’s challenges to the amended information, and therefore do not need to address the tolling of the statute of limitations.

At ¶ 15.

Right to a Speedy Trial

Mr. Younge also challenges the district court’s ruling that his right to a speedy trial under the Sixth Amendment to the United States Constitution was not violated. The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial.” The “right to a speedy trial is ‘fundamental’ and is imposed by the Due Process Clause of the Fourteenth Amendment on the States.” The right “does not arise until there has been an indictment or information, as the applicable statute of limitations is controlling as to the time within which an indictment or information must be brought.” And when a defendant’s right has been violated, it “leads to the unsatisfactorily severe remedy of dismissal of the indictment.”

At ¶ 16.

The appropriate analysis for a speedy trial claim comes from the United States Supreme Court decision in Barker v. Wingo and involves a four-factor “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” The Barker factors are, “[l]ength of delay, the reason for the delay, the defendant’s assertion of his right, and prejudice to the defendant.” No specific factor is “either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial” because “they are related factors and must be considered together with such other circumstances as may be relevant.” While “these factors have no talismanic qualities,” we must “engage in a difficult and sensitive balancing process.”

At ¶ 17.

The Court analyzes the four factors in a speedy trial analysis and determines: (1) the delay between the filing of the first information in March 2000 and the trial in December 2009 was undeniably “extraordinary”; (2) the reason for the delay weighs in the State’s favor because a) they did not know the identity of the Defendant, b) they acted quickly after learning defendant’s identity, considering that defendant was in Illinois, and c) after filing the amended complaint the trial court properly balanced genuine scheduling conflicts, adequate time for motion practice, and a delay to hedge against a potential claim of ineffective assistance of counsel after the prosecution realized that the Utah State Crime Lab required more time to turn over documents; (3) The State Complied with Mr. Younge’s Speedy Trial Demands to the Extent Possible; and (4) Defendant was not prejudiced by any delay because the evidence against him was compelling.

At ¶¶ 18-28.

On balance, Mr. Younge cannot demonstrate that his right to a speedy trial was violated under the Barker factors. While the delay in this case was undeniably extraordinary, the vast majority of that delay was beyond the State’s control. The remaining three factors weigh in favor of the State and against Mr. Younge. 

At ¶ 29.

The first information filed by the State identifying R.C.’s unknown assailant by his DNA profile was valid. Therefore, we affirm the district court’s determination that the prosecution was commenced within the statute of limitations. Mr. Younge’s right to a speedy trial was not violated. While this case involved an extraordinary delay, this delay was not the fault of the State and Mr. Younge was not prejudiced. Therefore, we affirm Mr. Younge’s convictions. At ¶ 30.