State v. Prettyman

544 P.3d 1059

2024 UT App 20

STATE of Utah, Appellee,

v.Arlen J. PRETTYMAN, Appellant.

No. 20210868-CA

Court of Appeals of Utah.

Filed February 15, 2024

Seventh District Court, Price Department, The Honorable Jeremiah Humes, No. 201700454

Emily Adams, Cherise Bacalski, Freyja Johnson, Salt Lake City, and Hannah Leavitt-Howell, Attorneys for Appellant

Sean D. Reyes, Salt Lake City, and Connor Nelson, Attorneys for Appellee

Judge John D. Luthy authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

LUTHY, Judge:

¶1 Arlen J. Prettyman was arrested after driving erratically and failing subsequent field sobriety tests. A search of his vehicle revealed approximately fifty grams each of heroin and methamphetamine, along with drug paraphernalia and cash. Prettyman was later convicted on two counts of possession of a controlled substance with intent to distribute. He now appeals those convictions, asserting that his trial counsel provided ineffective assistance by not objecting on various grounds to expert testimony regarding the amounts of these drugs that are typically possessed for personal use and comparing those amounts to the quantities possessed by Prettyman. As to each of his arguments, Prettyman has not shown that his counsel performed deficiently, that he was prejudiced thereby, or both. Accordingly, we affirm.

BACKGROUND

¶2 In July 2020, police received a report of a white truck "swerving all over the road, almost hitting the curb." A Utah Highway Patrol trooper (Trooper) responded and observed a truck driving erratically. Trooper pulled the truck over and found the driver to be Prettyman.

¶3 Trooper instructed Prettyman to get out of the truck to do some tests, explaining that the tests were to see if Prettyman was "good to drive." When Prettyman got out of the truck, he was wearing only underwear, dirty socks with no shoes, and a winter jacket. "His speech was slow and slurred," "he had very dilated pupils," a "cigarette [was] falling out of his mouth," "[h]e wasn’t fully alert," he "was struggling to understand or struggling to respond to … questions," and he had very poor balance. Trooper administered several field sobriety tests, during which Prettyman exhibited additional signs of impairment. Afterward, Trooper explained to Prettyman that he believed Prettyman was "under the influence of something," specifically "some kind of drug," and on that basis he arrested Prettyman.

¶4 Following the arrest, another trooper and a police officer (Officer) performed a search of Prettyman’s truck. During the search, they found multiple baggies of methamphetamine; a "large chunk of heroin"; a fanny pack containing cash and several smaller baggies, including some with heroin residue; and a false can of iced tea for hiding contraband. The drugs were weighed, and they totaled 44.702 grams of methamphetamine and 52.128 grams of heroin. The cash totaled $239.

¶5 Trooper then took Prettyman to the hospital for a blood draw. The blood draw revealed methamphetamine as well as morphine, a metabolite of heroin.

¶6 The State charged Prettyman with two counts of possession of a controlled substance with intent to distribute, one count of driving under the influence of alcohol or drugs, one count of possession of drug paraphernalia, and one count of unsafe lane travel.

¶7 At trial, Trooper and Officer testified to the foregoing facts. Each also provided testimony comparing the quantity of drugs found in Prettyman’s truck to quantities that, based on their training and experience, are typically associated with personal use. The State asked Trooper, "[S]o in your training and experience[,] … with the fanny pack, the cash inside with all the little separate baggies and the presence of these big chunks of this dark substance and then all this crystal-like substance, all that combined together, in your training and experience what does that lead you to believe?" Trooper responded, "That it was distribution. It was way more than a normal everyday user would use." The State then asked, "And how much would a normal everyday user use typically?" Trooper responded, "[M]y experience is a gram is about what a normal user would have on them at any one time."

¶8 During cross-examination, Prettyman’s defense counsel (Counsel) asked Trooper, "[H]ave you had … other occasions to pull over people who have drugs in their car?" Trooper responded, "Yes." Counsel asked, "And have you ever pulled over people that were later found to have been engaged in the distribution of drugs?" Trooper responded, "Yes." Trooper also affirmed that about one gram a day is "generally what [he’s] seen" with people who use narcotics. Then he had the following exchange with Counsel:

Q. And so heavy drug use would be more; right?

A. There’s a possibility, a little bit more.

Q. And even at the rate of one gram a day, if this were Mr. Prettyman’s own drugs, … he would have had less than a two month’s supply; correct?

A. … [N]o, it would be more than a two month’s supply from what I experience ….

Q. You said about one gram a day. Was it either the meth or the heroin was a little over 50 and the other was a little under 50; correct?

A. I guess if he did both drugs in one day then, yes ….

Q. Okay. And so if it was heavy use, it would be a shorter period of time; correct?

A. Possibly, yes.

Q. So it’s conceivable that someone who is a heavy drug addict could—if they are able [to—] … get their hands oil as much drugs as possible to … keep their addiction fed for as long as possible; correct?

A. In my training and experience, no, they would not have that amount of drugs on them.

Q. But they certainly could couldn’t they?

A. Obviously they could, but it’s … not typical.

Upon redirect, Trooper again asserted that, in his experience, it was not normal for people to carry approximately fifty grams of each of these drugs in their vehicles for personal use.

¶9 Counsel did not object to any of these statements from Trooper, but he did inquire into Trooper’s qualifications related to narcotics. In response to Counsel’s questions, Trooper testified that he had been with the highway patrol for about a year at the time of Prettyman’s arrest, that he had gone through Peace Officer Standards and Training (POST) for approximately sixteen weeks at the beginning of that time, and that at POST he had "received some training on drug trafficking and identification of drugs." Counsel characterized this as just "one of the multitude of trainings that [Trooper had] received during POST" and then asked Trooper if that was "the limit of [his] experience in those matters." Trooper responded, "No, that’s not," and he stated that he had also completed a "ride along with a more experienced officer for 12 weeks," with this having "a strong focus on standardized field sobriety tests, as well as identification of different drugs, narcotics and contraband." Counsel stated, "So you receive[d] drug training as one of a multitude of trainings at POST and then you [went] on a 12-week-ride-along [where] you cover[ed] pretty much everything that a highway patrolman needs to cover in order to do his job?" Trooper responded, "Yes." Counsel continued, "Okay. And that’s the limit of your training in such matters; correct?" And Trooper again said, "Yes."

¶10 Officer’s testimony was similar to Trooper’s with regard to the implications of the quantities of drugs Prettyman possessed. He said that what "stood out" to him about the heroin was that "it was an amount that’s not commonly seen with a personal amount of illicit substances when [he had] arrested people for personal use " The State then questioned Officer on his tenure and experiences as a police officer. Officer testified that he had been an officer—at the time of trial—for three years and seven months, that he had arrested people who possessed heroin and people who possessed methamphetamine, and that he had arrested some users more than once. The State then asked, "Do you have some experience knowing whether a person is … simply an addict, somebody who uses, who buys and uses drugs, and are you able to distinguish that person sometimes from a seller or distributor of those drugs?" Officer responded, "Yes."

¶11 Counsel then objected as to foundation, and the State said, "[L]et me back up. … How many people have you arrested in your lifetime for … drugs?" Officer responded, "Several. … [B]eing in Carbon County, there is a known opioid abuse problem. And with that being said, a lot of people I have taken to jail usually have illicit substances on them, whether it’s marijuana, heroin, [or] methamphetamine." The State asked, "Haye you arrested people … on more than one occasion who have what you’d call a personal use amount or a small use amount?" Officer responded, "Yes, I have." The State asked, "And what is the typical small use amount that you see?" Officer replied, "Commonly seen upon interviewing people [who] have admitted to personal use, commonly seen with people who struggle with a drug addiction usually is a half gram to a gram" of methamphetamine or heroin. He repeated, "Typically that’s what we commonly see people possess."

¶12 The State asked, "When you see more than that amount, … does that alert any red flags to you?" Officer said that it did, explaining, "Based on what I had observed that day with Mr. Prettyman, with the large amount of suspected heroin and methamphetamine, along with other paraphernalia items such as baggies, those are commonly seen with people who distribute illicit substances." Officer confirmed that he had arrested "people who’ve had significant amounts of" drugs and people who he had "suspected of being drug dealers or who have had drugs that they intended to sell." The State asked, "How does the amount you saw in Mr. Prettyman’s possession compare with other persons you’ve arrested who have had more than say a gram?" Officer replied, "[In] my personal experience, I had arrested...