State v. Hararah

534 P.3d 1129

STATE of Utah, Appellee,

v.Houston Raefat HARARAH, Appellant.

No. 20220276-CA

Court of Appeals of Utah.

Filed July 20, 2023

Nicolas C. Wilde and Trevor J. Lee, Attorneys for Appellant

Tegan M. Troutner and Rachelle Shumway, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judges Ryan M. Harris and Amy J. Oliver concurred.

Opinion

MORTENSEN, Judge:

¶1 Houston Raefat Hararah was charged with assault for throwing a potted plant at his then-girlfriend. He waived his right to a preliminary hearing and proceeded to trial, following which he was convicted. He now contends that he was coerced into waiving his right to a preliminary hearing because the district court¹ stated, at various points in the proceedings, that it would not permit Hararah to accept any plea deal if he chose to have a preliminary hearing. But the record indicates that Hararah rejected the State's "best offer" and independently decided to waive the preliminary hearing and proceed to trial, so we cannot agree that the court forced his waiver. Hararah also asserts that his defense counsel (Counsel² ) provided ineffective assistance for not objecting to the court's allegedly problematic statements, as well as for telling the jury, during opening statements at trial, that they would not hear that Hararah had punched the victim, when the victim went on to testify that he did so. We do not agree that his counsel performed deficiently in either respect, so we affirm.

BACKGROUND

¶2 After police responded to an argument between Hararah and his then-girlfriend, Hararah was charged with assault, with a domestic violence enhancement. The Information alleged that Hararah "threw a potted plant at his girlfriend[,] striking her in the face and causing a cut above her eye." As a result, the district court issued a no-contact order against Hararah. At a hearing to review the no-contact order, held in July 2020, the following exchange took place between Hararah, the district court, and Counsel:

Counsel: Judge, do you want to keep [the next hearing] on the 28th? I think that at this point, I've discussed a plea with Mr. Hararah and it looks like we're probably going to be setting it for a preliminary hearing.

District Court: Well, let's go ahead and ... take it on the 28th and see—Mr. Hararah, do you understand if you go to preliminary hearing, you're going to trial on the original charges? I won't allow a plea negotiation after that.

Hararah: Yes, Your Honor.

District Court: Okay. Well, you think long and hard on that and I'll talk to you on the 28th. Thank you.

¶3 The minutes for the next hearing, held in August 2020, indicate that "[t]he defendant request[ed] a Preliminary Hearing" and that "the [c]ourt set[ ] this matter for Preliminary Hearing."

¶4 In court on the date set for the preliminary hearing, in September 2020, Counsel said, "I've had a chance to speak with Mr. Hararah, [and] he's willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step." Then the following exchange took place:

District Court: So you talked to [Counsel] about what a preliminary hearing is[,] right?

Hararah: Yes.

District Court: Okay. And you are, in fact, willing to waive your rights to a preliminary hearing and allow the matter to be bound over; is that correct?

Hararah: Yes.

District Court: Very good. I will go ahead and allow the waiver[;] I'll bind the matter over. How long do you think you need to have discussions, [Counsel]?

Counsel: Your Honor, I think that the best offer has been made and Mr. Hararah has had a chance to discuss it, and I think we're just going to need to figure out when we can get it on for a trial as soon as possible in front of a jury.

Later in the hearing, the district court added,

District Court: [W]e will have a trial as soon as possible. And seeing as we did not go to prelim, we could still have discussions regarding, you know, some other outcome to the ... litigation.

¶5 The case eventually went to trial, and during opening statements, Counsel said to the jury, "You will not hear any testimony about [Hararah] punching [the alleged victim] .... [Y]ou'll hear ... that the only item that he had to protect himself from [a] taser [the alleged victim held] was the plant that was on the floor. And he picked it up and he threw it so that he could get out ...."

¶6 But when the victim testified, she stated that Hararah had hit her through a pillow. She testified that the pair had been drinking and started arguing when "[a] verbal argument turned into a physical [one]." She said, "I had tried knocking over his drink. I knew the conversation wasn't ending anywhere. He ended up on top of me hitting me." She described how she tried to leave the room but "was hit in the face" with "a pillow and his fist." She clarified that "he was punching [her] and hitting [her] through the pillow."

¶7 Later in the trial and outside the presence of the jury, Counsel objected to "the uncharged misconduct that we've now heard about for the first time today, which is this witness ... now saying that she was punched in the face by Mr. Hararah prior to the throwing of the plant." Counsel asserted, "That is nowhere in the State's discovery. It is not in the officer's report, it isn't anywhere in the body cam. And so what we are now entertaining is the fact that these jurors can ... believe that the bruising on her face comes from those punches rather than from the plant." Counsel explained why this was problematic: "We don't have the ability to bring in a rebuttal expert to say, ‘Hey, do you think these bruis[es] came from punching or ... from a plant?’ So, I maintain that [this] is prejudicial." The trial court responded, "I've previously ruled during the course of the trial that I would allow the testimony as long as it was consecutive to the day ... in question [and] I would allow testimony from ... the witness about the arguing and the conduct that happened during that date in question."

¶8 The State went on to call the deputy who had arrested Hararah. On cross-examination, he testified that "[t]he only assault [he] was aware of was the plant being thrown," and he agreed that if the victim had "mentioned being punched in the face, [he] would have put that in [his] report." In closing arguments, Counsel portrayed the victim as an unreliable witness based on the inconsistencies between her previous accounts of what happened and her trial testimony.

¶9 Ultimately, the jury found Hararah guilty of domestic violence-related assault. Hararah now appeals.

ISSUES AND STANDARDS OF REVIEW

¶10 Hararah presents two issues on appeal. First, he asserts that the district court erred "when it coerced [him] into waiving his right to a preliminary hearing by threatening to not allow him to accept a plea bargain from the State if he exercised his fundamental right to a preliminary hearing." He argues that this error "violated Article I, Section 13 and Article V, Section 1 of the Utah Constitution ; Utah Rules of Criminal Procedure 7(e) and 11(i) ; and our adversarial system of justice." Hararah admits that this "issue was not preserved," but he claims that "either the exceptional circumstances exception or the plain error exception applies here."

¶11 Second, Hararah asserts that Counsel provided ineffective assistance in two respects: (1) by "fail[ing] to object to the district court coercing [Hararah] into waiving his fundamental right to a preliminary hearing" and (2) by telling the jury "during opening statements that the jury would not hear any testimony about the alleged victim being punched." "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and [the appellate court] must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." State v. Reid , 2018 UT App 146, ¶ 17, 427 P.3d 1261 (cleaned up), cert. denied , 432 P.3d 1225 (Utah 2018).

ANALYSIS

I. Preliminary Hearing Waiver

¶12 Hararah argues that the district court "violated [his] rights ... when it—by threatening to prevent him from accepting a plea deal from the State—forced him to waive his right to a preliminary hearing." Hararah acknowledges that he did not object or otherwise preserve this argument. He argues that either the plain error exception or the exceptional circumstances exception applies. But Hararah cannot prevail under either theory.

A. Plain Error

¶13 To show plain error, "a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant, or phrased differently, our confidence in the verdict is undermined." State v. Holgate , 2000 UT 74, ¶ 13, 10 P.3d 346 (cleaned up).

¶14 We first address Hararah's argument that the district court erred by "coercing" or "forcing" him to waive his right to the preliminary hearing. Hararah takes issue with the district court's statement made at the July 2020 hearing: "Mr. Hararah, do you understand if you go to preliminary hearing, you're going to trial on the original charges? I won't allow a plea negotiation after that." The advisability of this comment³ is immaterial here because the record indicates that Hararah chose to waive his right to a preliminary hearing for reasons unrelated to the district court's statement. In other words, the record is clear that the court did not, in fact, force or coerce Hararah to waive the preliminary hearing because he made an independent choice to waive it.

¶15 At the outset of the September 2020 hearing, Counsel said, "I've had a chance to speak with Mr. Hararah, [and] he's willing to waive his right to a preliminary hearing and we can set the case for trial—for the next step." Critically, Counsel also said during that hearing that "the best offer has been made and Mr. Hararah has had a chance...