State v. Marchet

287 P.3d 490

718 Utah Adv. Rep. 83

2012 UT App 267

STATE of Utah, Plaintiff and Appellee,

v.Azlen Adieu Farquoit MARCHET, Defendant and Appellant.

No. 20110165–CA.

Court of Appeals of Utah.

Sept. 27, 2012.

Herschel Bullen, Salt Lake City, for Appellant.

Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.

Before Judges ORME, DAVIS, and THORNE.

MEMORANDUM DECISION

DAVIS, Judge:

¶ 1 Azlen Adieu Farquoit Marchet appeals his conviction for two counts of aggravated sexual assault, first degree felonies, seeUtah Code Ann. § 76–5–405 (2003) (current versionat id. § 76–5–405 (Supp.2012)). On appeal, Marchet argues that he received ineffective assistance from his trial counsel, that the trial court erroneously admitted evidence of prior bad acts under rule 404(b) of the Utah Rules of Evidence, and that the trial court erroneously determined that exculpatory out-of-court statements Marchet made in a pretext telephone call were not admissible. We affirm.

I. Ineffective Assistance of Counsel

¶ 2 Marchet raises several ineffective assistance of trial counsel arguments on appeal. He argues that his trial counsel was ineffective for failing to object to the majority of Nurse Practitioner Diane Fuller's testimony, for failing to object to the prosecutor's alleged misconduct, and for failing to object more enthusiastically to the mens rea jury instructions. “[W]hen an ineffective assistance claim is first raised on direct appeal, this court can ... determine that the defendant was denied effective assistance of counsel [only] if it can do so as a matter of law.” State v. Bair, 2012 UT App 106, ¶ 12, 275 P.3d 1050 (second alteration and omission in original) (citation and internal quotation marks omitted); see also Menzies v. Galetka, 2006 UT 81, ¶ 58, 150 P.3d 480 (“Ineffective assistance of counsel claims are a unique species of claim that are frequently raised for the first time on appeal and are regularly decided based on the record.”). To succeed on an ineffective assistance of counsel claim, “a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment,” which “requires that a defendant rebut the strong presumption that under the circumstances, the challenged action might be considered sound trial strategy.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (internal quotation marks omitted) (citing Strickland v. Washington, 466 U.S. 668, 687–89, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The second prong of the Strickland analysis requires that the defendant demonstrate “that counsel's deficient performance was prejudicial—i.e., that it affected the outcome of the case.” Id. (citing Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052).

¶ 3 Marchet's first ineffectiveness claim centers on trial counsel's failure to object to Nurse Fuller's ability to testify as a lay witness because her testimony was based on her professional interpretation of Exhibit 17—a sexual assault examination report completed by Nurse Sandra Dunn after examining the complainant, A.H., hours after A.H. was raped—rather than her memory of being present during A.H.'s examination. See generallyUtah R. Evid. 602 (“A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.... This rule does not apply to a witness's expert testimony under Rule 703.”). While it does appear that Nurse Fuller's actual memories from A.H.'s examination were minimal, Marchet's argument overlooks the fact that the trial court allowed Nurse Fuller to testify as an expert witness, not a lay witness. The State began its direct examination of Nurse Fuller by establishing that she has nearly thirty years of experience as a nurse practitioner with specializations in sexual assault nursing and forensic nursing. Marchet does not challenge Nurse Fuller's ability to testify as an expert witness or her ability to base that expert testimony on a review of Exhibit 17, which is exactly what Marchet's own expert witness did. See generally id. R. 703 (“An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed.”). We are therefore unconvinced that an objection under rule 602 would have been anything but futile, and “[f]ailure to raise futile objections does not constitute ineffective assistance of counsel.” State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546. Additionally, trial counsel clarified the basis of Nurse Fuller's testimony on cross-examination by garnering admissions from her explaining that she did not “have an independent recollection of what specific tasks [she] did when [Exhibit 17] was being prepared” by Nurse Dunn and that her testimony was “based upon the report of somebody else, and the photographs taken during” the examination, of which she also lacked an independent recollection.

¶ 4 Marchet also argues that trial counsel was ineffective for failing to object on foundational grounds to Nurse Fuller's testimony regarding “the incidence of injury during nonconsensual versus consensual sex.” Again, instead of objecting, Marchet's trial counsel addressed this issue while cross-examining Nurse Fuller, eliciting several favorable admissions from her that clarified that her statements on this issue were based “purely” on her professional experience and not on any specific study or scientific data, and that she did not believe being injured during sex necessitated the presumption that the sex was not consensual. Addressing this issue on cross-examination was a reasonable trial strategy, especially in light of the fact that Nurse Fuller had already been qualified to testify as an expert witness and that the statements at issue were based on her own experience.¹Cf. State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (“While there may have been grounds to object to [the witnesses'] testimony under Rules 701, 702, or 704 of the Utah Rules of Evidence, defense counsel may well have made a reasonable tactical choice when he did not object.” (footnote omitted)).

¶ 5 Next, Marchet argues that the prosecutor committed misconduct by “foist[ing N]urse Fuller ... onto the court, jury, and defense counsel, as having prepared [Exhibit 17] herself” and as “having an independent recollection” of participating in the sexual assault examination of A.H., when “all she was capable of doing was reading the report and drawing inferences based upon ‘custom and practice.’ ” Marchet contends that this misrepresentation by the State amounts to a suppression of exculpatory evidence. See Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (“[T]he suppression by the prosecution of evidence favorable to an accused ... violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”). Marchet admits that this prosecutorial misconduct argument was “not specifically preserved” and argues that we should review it under his ineffectiveness argument and a plain error framework.²See State v. Palmer, 860 P.2d 339, 342 (Utah Ct.App.1993) (“Failure to object to the improper remarks [of a prosecutor] ... waives the claim unless the remarks reach the level of plain error.”). To demonstrate plain error, Marchet must show that “an error exists, it should have been obvious to the trial court, and it was harmful.” See id. “The ‘harm’ factor in the plain error analysis is equivalent to the prejudice test applied in assessing claims of ineffective assistance of counsel.” Bair, 2012 UT App 106, ¶ 35, 275 P.3d 1050 (citation and internal quotation marks omitted). To succeed on this claim of prosecutorial misconduct, Marchet must demonstrate the following: “(1) the evidence at issue is ‘favorable to the accused, either because it is exculpatory, or because it is impeaching’; (2) the evidence was ‘suppressed by the State, either willfully or inadvertently’; and (3) prejudice ensued.” Tillman v. State, 2005 UT 56, ¶ 28, 128 P.3d 1123 (quoting Strickler v. Greene, 527 U.S. 263, 281–82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)).

¶ 6 While the State's initial disclosure of Nurse Fuller as one of its expert witnesses appears to have incorrectly described Exhibit 17 as a report she authored, we cannot say that such an error amounted to prosecutorial misconduct, especially where Marchet has not demonstrated how he was prejudiced by this misattribution; indeed, Marchet's trial counsel was not only aware of the misattribution several months before trial but also used it to attack Nurse Fuller's credibility on cross-examination. Additionally, we disagree with Marchet's characterization of Nurse Fuller's testimony on direct examination as misleading; it was clear that she was testifying as an expert and that her statements were based primarily on her expertise. Thus, the State's actions did not amount to prosecutorial misconduct, and trial counsel's failure to object on prosecutorial misconduct grounds was not ineffective assistance. See Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.

¶ 7 As his last ineffectiveness argument, Marchet contends that his trial counsel's “tepid objection to the court's refusal to give his [proposed mens rea] jury instructions” amounted to ineffective assistance. Marchet concludes that instructions 37 and 38 are confusing and contradictory when read together and that this obvious flaw in the instructions amounted to such a glaring error by the trial court that had trial counsel objected with more gusto, the trial court was bound to recognize and correct the error of its ways, specifically by adopting Marchet's previously rejected proposals for the mens rea jury instruction. We, however, are not convinced that had Marchet's trial counsel objected more enthusiastically, the trial court would have reconsidered and reversed its decision on the jury instructions.³Cf....