State v. Carreno, 2007 UT App 38 (Utah App. 2/8/2007), Case No. 20030927-CA.

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2007 UT App 38

State of Utah, Plaintiff and Appellee, v. Noe Rodriguez Carreno, Defendant and Appellant.

Case No. 20030927-CA.

Utah Court of Appeals.

Filed February 8, 2007.

(Not For Official Publication)

Appeal from the First District, Brigham City Department, 001100703 The Honorable Ben H. Hadfield.

Bernard L. Allen, Ogden, for Appellant.

Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.

Before Judges Bench, Billings, and Davis.

MEMORANDUM DECISION

JUDITH M. BILLINGS, Judge:

Defendant Noe Rodriguez Carreno appeals his convictions for attempted aggravated murder, a first degree felony, see Utah Code Ann. § 76-5-202 (Supp. 2006); aggravated burglary, a first degree felony, see id. § 76-6-203 (2003); aggravated kidnapping, a first degree felony, see id. § 76-5-302 (2003); and damaging or interrupting a communication device, a class B misdemeanor, see id. § 76-6-108 (2003). Defendant argues that he received ineffective assistance of counsel at trial because his trial counsel failed to adequately investigate his defenses and failed to object to jury instructions #30 and #33. ¹

To prove a claim for ineffective assistance of counsel, a defendant must meet the two-pronged test established by Strickland v. Washington, 466 U.S. 668, 687 (1984). "First, the defendant must show that counsel's performance was deficient." Id. "Second, the defendant must show that the deficient performance prejudiced the defense." Id. Defendant must satisfy both prongs of this test. See State v. Diaz, 2002 UT App 288,¶38, 55 P.3d 1131. "Failure to satisfy either prong will result in our concluding that counsel's behavior was not ineffective." Id. To satisfy the prejudice prong of the Strickland test, Defendant must demonstrate "that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.

First, Defendant argues that his trial counsel rendered ineffective assistance because counsel did not adequately pursue an investigation of Defendant's case. On January 16, 2001, Defendant filed his first motion to appoint an investigator. The trial court denied this motion because "[n]o specific issues [were] raised [in Defendant's motion] which would require the assistance of an investigator." The trial court further admonished Defendant's counsel for failing to meet the court-mandated deadlines. Defendant then filed a renewed motion to appoint an investigator, including a more comprehensive memorandum in support of the motion. The trial court granted the renewed motion. Defendant argues that his trial counsel was ineffective for failing to investigate his defenses. He further argues that he was prejudiced because trial counsel failed to timely file his motion to appoint an investigator and failed to adequately brief the initial motion, which led to prejudicial delay in obtaining an investigator.

However, Defendant does not point to any record evidence to establish his claim that trial counsel failed to investigate his defenses. "[D]efendant bears the burden of assuring the record is adequate." State v. Litherland, 2000 UT 76,¶16, 12 P.3d 92. "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." Id. at ¶17. From the record, Defendant cannot establish that his counsel's performance was deficient for failing to investigate because Defendant has failed to establish what investigation his counsel actually performed.

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." Parsons v. Barnes, 871 P.2d 516, 523-24 (Utah 1994). Because Defendant does not prove what information further investigation might have discovered, he cannot establish that he was prejudiced by trial counsel's alleged failure to investigate his defenses.

Neither can Defendant prove that he was prejudiced by his counsel's failure to timely file a motion to appoint an investigator. Although Defendant asserts that the trial court's eventual granting of the motion to appoint an investigator was so close in time to trial that the granted motion did not cure the problems caused by the court's earlier denial, he does not explain, or even allege, what problems the initial denial actually caused. Defendant filed his renewed motion to appoint an investigator two weeks after the initial motion was denied. The hearing was held on February 27, 2001, and Defendant was advised at that time that he could hire an investigator at a total cost of up to $500. Although the trial court did not enter the order until March 22, 2001, Defendant knew on February 22, 2001, that his motion was granted, and trial in the case was not held until April 17, 2001. Therefore, Defendant's motion to appoint an investigator was granted approximately seven weeks prior to trial, and any alleged error in failing to timely motion for an investigator was not prejudicial. Because Defendant cannot establish that his counsel prejudiced him by failing to adequately investigate his defenses, we cannot conclude that his trial counsel provided ineffective assistance.

Second, Defendant asserts that he received ineffective assistance of counsel when counsel failed to object to two jury instructions at trial: one concerning Defendant's right to testify on his own behalf and the other concerning the jury's decision-making process. Specifically, Defendant contends that jury instruction #30 was an impermissible comment on Defendant's failure to testify, and that jury instruction #33 improperly emphasized the importance of the collective jury's conclusions over the individual juror's opinion. However, "[f]ailure to raise futile objections does not constitute ineffective assistance of counsel." State v. Kelley, 2000 UT 41,¶26, 1 P.3d 546. Because we conclude that these instructions were proper, trial counsel cannot be deficient for failing to object to them. See id.

Jury instruction #30 advised the jury of Defendant's right to testify on his own behalf and his right to choose not to testify. Defendant argues that he did not request this instruction and that it had the likely effect of highlighting his failure to testify. However, Utah law authorizes giving such an instruction, even when a defendant does not request it. In State v. Nomeland, 581 P.2d 1010 (Utah 1978), the Utah Supreme Court held that an instruction regarding the failure of a defendant to testify was not erroneous, even though the defendant did not request the instruction. See id. at 1010, 1012. The court noted that "an instruction on defendant's failure to testify is actually a benefit as a caution to the jury." Id. at 1011 (quotations and citation omitted). Thus, we conclude that jury instruction #30 was not improper, even though it was not requested by Defendant. Because jury instruction #30 was proper, we conclude that Defendant's trial counsel was not ineffective in failing to object to it. See Kelley, 2000 UT 41 at ¶26.

Defendant also argues that trial counsel was ineffective for not objecting to jury instruction #33, which advised the...