State v. Glasscock , 769 Utah Adv. Rep. 18 ( 2014 )

2014 UT App 221_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
DAVID WAYNE GLASSCOCK,
Defendant and Appellant.
Opinion
No. 20120615-CA
Filed September 18, 2014
Third District Court, Salt Lake Department
The Honorable Robin W. Reese
No. 111903576
Peter A. Daines and John B. Plimpton, Attorneys
for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE
JOHN A. PEARCE and SENIOR JUDGE PAMELA T. GREENWOOD
concurred.1
ROTH, Judge:
¶1 After a bench trial, David Wayne Glasscock was convicted
of aggravated robbery and possession of a firearm by a restricted
person. The conviction hinged on an eyewitness identification
and incriminating statements Glasscock made during an
1. The Honorable Pamela T. Greenwood, Senior Judge, sat by
special assignment as authorized by law. See generally Utah Code
Jud. Admin. R. 11-201(6).
State v. Glasscock
interview with police. On appeal, Glasscock argues that the
confession should have been suppressed because he was heavily
intoxicated and police took advantage of his impaired condition
by employing coercive interrogation tactics. He also argues that
the eyewitness identification was unconstitutionally unreliable.
Finally, Glasscock asserts that his trial counsel provided
ineffective assistance when he failed to challenge the admission
of a prior felony conviction into evidence. We affirm.
BACKGROUND2
¶2 In May 2011, a young man (Victim) was standing outside
of a community center in Salt Lake County when three men in a
gray Dodge Stratus pulled over and parked nearby. One of the
men got out of the back seat of the car, ran toward Victim, and
put a gun to Victim’s head. The man asked Victim if he had any
drugs. When Victim did not respond, one of the men in the
Stratus told the assailant to hurry up. The assailant took Victim’s
backpack and got back in the Stratus, which then sped away.
¶3 A woman who saw the Stratus drive off called 911. When
police arrived, Victim described his assailant as ‚a white male in
his early 40s‛ who was ‚wearing an eye patch.‛ Police located a
gray Stratus and followed it to a gas station on North Temple
and Redwood Road, not far from where the robbery took place.
There were three men in the vehicle—Patrick Woods, a black
male in his mid-twenties; Randall Cropper, a white male in his
late twenties or early thirties with long hair; and Glasscock, a
white male in his fifties with long hair. Woods was driving,
Cropper was in the passenger seat, and Glasscock was in the
2. ‚On appeal from a bench trial, we view the evidence in a light
most favorable to the trial court’s findings,‛ and ‚we present
conflicting evidence‛ only ‚to the extent necessary to clarify the
issues raised on appeal.‛ State v. Nichols, 2003 UT App 287, ¶ 2
n.1, 76 P.3d 1173 (citation and internal quotation marks omitted).
20120615-CA 2 2014 UT App 221State v. Glasscock
back seat. Police ordered the men out of the car and handcuffed
them.
¶4 In the meantime, another officer drove Victim to the gas
station and parked across the street. Using binoculars, Victim got
a ‚clear view‛ of each man and identified Glasscock as his
assailant. Police searched the vehicle, finding a loaded pistol
under the driver’s seat and a short rifle and an empty vodka
bottle in the trunk. Police then took Glasscock into custody for
further investigation.
¶5 During a half-hour interrogation, Glasscock initially
claimed that he could not remember what happened because he
had been in a ‚stupor‛—he was ‚toasted‛ from ‚eating Lortabs‛
for his broken hand and foot, and he had been drinking vodka.
When pressed, Glasscock admitted that Woods handed him a
gun and pressured him to approach Victim. Glasscock denied
pointing the gun at Victim and also claimed he could not
remember taking a backpack. But when police told him that the
backpack had Victim’s homework in it, Glasscock admitted that
Cropper had thrown the backpack out of the car before police
arrived.
¶6 Glasscock was charged with aggravated robbery and
possession of a firearm by a restricted person, based on a prior
felony conviction. He waived his right to a jury trial and moved
to suppress the statements he made to police and Victim’s
identification.
¶7 At trial, Victim testified and identified Glasscock as his
assailant. The State played a video of Glasscock’s confession, and
the officers that arrested Glasscock and searched the Stratus also
testified. In his defense, Glasscock raised the possibility that
Victim mistook Cropper for him, arguing that Cropper had
access to Glasscock’s eye patch and could have used it.
Glasscock testified that he did not remember what happened the
day of the robbery because, at the time, he had not been taking
his medication for a mental illness, he was using heroin, and he
had drunk ‚about three-quarters of a gallon‛ of vodka. He
20120615-CA 3 2014 UT App 221State v. Glasscock
claimed not to remember ‚robbing anybody‛ or ‚threatening
anybody with a firearm.‛ And he explained that he had tried to
tell the detectives what really happened during his interrogation,
but they ‚basically forced [him] to say what they wanted [him]
to say.‛ According to Glasscock, he went along with the
detectives only because he ‚was scared to death‛ after a ‚bad
run-in with the Salt Lake Police Department back in 1987‛ and
because he was ‚still intoxicated‛ but ‚was trying to maintain‛
so that he did not look intoxicated.
¶8 One of the detectives that interrogated Glasscock
countered that Glasscock ‚seemed pretty good actually, all
things considered.‛ And he testified that ‚compare[d] . . . to
other intoxicated individuals‛ the detective had questioned,
Glasscock appeared to be ‚in pretty good condition.‛ The State
also introduced evidence of Glasscock’s prior felony conviction
for attempted sexual abuse of a child in support of the charge
that he was a restricted person in possession of a firearm.
¶9 The district court denied Glasscock’s motions to suppress
the confession and Victim’s identification and found Glasscock
guilty of both charges.
ISSUES AND STANDARDS OF REVIEW
¶10 Glasscock raises four claims on appeal. First, he argues
that the district court should have granted his motion to
suppress the statements he made during the police interrogation
because ‚the interrogating officers exploited his intoxicated,
medicated, and injured state,‛ rendering his confession
involuntary. We review a district court’s ‚ultimate
determination of [the] voluntariness [of a confession] . . . for
correctness.‛ State v. Rettenberger, 1999 UT 80, ¶ 10, 984 P.2d
1009. But we defer to the court’s underlying factual findings
unless ‚they are clearly erroneous.‛ Id.¶11 Second, Glasscock argues that Victim’s identification
should have been suppressed because the showup procedure
20120615-CA 4 2014 UT App 221State v. Glasscock
was ‚unconstitutionally suggestive.‛ The reliability of an
eyewitness identification is a question of law, and we review the
district court’s decision for correctness. State v. Hollen, 2002 UT
35, ¶ 28, 44 P.3d 794.
¶12 Third, Glasscock asserts that he received ineffective
assistance of counsel when his attorney failed to object to the
admission of his prior felony conviction because ‚it was not
admissible under the applicable rules of evidence and was
prejudicial to Glasscock’s case.‛ ‚An ineffective assistance claim
raised for the first time on appeal presents a question of law.‛
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶13 Finally, Glasscock argues that the cumulative effect of
these errors deprived him of a fair trial. ‚Under the cumulative
error doctrine, we apply the standard of review applicable to
each underlying claim of error‛ and ‚will reverse only if the
cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.‛ State v. McNeil, 2013 UT
App 134, ¶ 16, 302 P.3d 844 (omission in original) (citations and
internal quotation marks omitted), cert. granted, 317 P.3d 432(Utah 2013).
ANALYSIS
I. Glasscock’s Confession
¶14 Glasscock argues that his confession was involuntary
because the detectives employed ‚coercive police interrogation
tactics‛ to take advantage of his unstable mental condition, and
he argues that ‚*s+everal of the [court’s] findings of fact‛
supporting the court’s denial of his motion to suppress ‚were
clearly erroneous.‛ Specifically, Glasscock maintains that he was
‚significantly impaired from alcohol, heroin, pain pills‛ and that
‚he suffered from multiple disorders, including ‘bipolar Type I,’
‘post-traumatic stress,’ and ‘borderline personality.’‛ And even
though the detectives ‚knew that Glasscock had consumed a
number of impairing substances‛ that had ‚significantly
20120615-CA 5 2014 UT App 221State v. Glasscock
impacted *Glasscock’s+ memory,‛ Glasscock contends that they
employed a ‚false friend technique‛ and other coercive
strategies that ‚basically forced [him] to say what they wanted
[him] to say.‛ After carefully reviewing the evidence in the
record, including the video of Glasscock’s police interrogation,
we agree with the district court that Glasscock’s confession was
not coerced.
¶15 ‚The due process clauses of the Fifth and Fourteenth
Amendments of the U.S. Constitution protect individuals from
being compelled to incriminate themselves.‛ State v. Arriaga-
Luna, 2013 UT 56, ¶ 9, 311 P.3d 1028. A confession is not
compelled, however, ‚‘*s+imply because *a defendant+ was
under the influence of drugs *or alcohol+’‛ at the time police
questioned him. State v. Maestas, 2012 UT App 53, ¶ 39, 272 P.3d
769 (alterations in original) (quoting United States v. Howard, 532
F.3d 755, 763 (8th Cir. 2008)). And even if police are aware ‚of a
suspect’s mental illness or deficiencies at the time‛ he confesses,
that fact alone is insufficient to demonstrate that the confession
is the product of compulsion; the defendant must still
demonstrate that police ‚effectively exploit*ed+ those
weaknesses‛ to obtain it. State v. Rettenberger, 1999 UT 80, ¶ 18,
984 P.2d 1009 (citing Colorado v. Connelly, 479 U.S. 157, 164–65
(1986)). ‚In other words, the evidence must show that‛ police
employed ‚coercive tactics . . . *and+ overcame the defendant’s
free will.‛ State v. Galli, 967 P.2d 930, 936 (Utah 1998), superseded
by statute on other grounds as recognized in State v. Bowers, 2012 UT
App 353, ¶ 15, 292 P.3d 711.
¶16 To determine whether a confession was voluntary, we
look to ‚*t+he totality of the circumstances,‛ including ‚both the
characteristics of the accused and the details of the
interrogation.‛ Arriaga-Luna, 2013 UT 56, ¶ 10 (citation and
internal quotation marks omitted). Characteristics of the accused
that may indicate a particular susceptibility to coercive police
tactics include ‚the defendant’s mental health, mental deficiency,
emotional instability, education, age, and familiarity with the
judicial system.‛ Id. (citation and internal quotation marks
omitted). And details of the interrogation that may be relevant
20120615-CA 6 2014 UT App 221State v. Glasscock
are ‚the duration of the interrogation, the persistence of the
officers, police trickery, absence of family and counsel, and
threats and promises made to the defendant by the officers.‛ Id.(citation and internal quotation marks omitted).
¶17 For example, in State v. Rettenberger, 1999 UT 80, 984 P.2d
1009, the Utah Supreme Court concluded that a defendant’s
confession was coerced where police made thirty-six false
statements ‚about testimonial and physical evidence of [the
defendant’s+ guilt‛ even though ‚they had no physical evidence
linking *the defendant+ to the crime.‛ Id. ¶¶ 21, 45. The court
noted that police used a ‚‘false friend technique’‛ to convince
the defendant ‚that they were his friends and that they were
acting in his best interest.‛ Id. ¶ 24. Additionally, police made
‚significant references to *the+ defendant being charged with
capital murder,‛ and they ‚strongly suggested that *the
defendant] would not face the death penalty as long as he
confessed to the crime.‛ Id. ¶ 29 (internal quotation marks
omitted). The court observed that the defendant was
interrogated over a two-day period and kept in solitary
confinement for twenty-two hours, id. ¶ 33, and that when he
finally confessed, he offered ‚little information that was not first
provided or suggested by the interrogating officers,‛ id. ¶ 40.
And the court also noted that the defendant was vulnerable: he
had ‚below-average cognitive abilities‛ and other mental
conditions that made him particularly susceptible to the coercive
tactics police employed. Id. ¶ 26.
¶18 Here, the district court found that Glasscock ‚was lucid
and properly oriented‛ during his interview with the detectives.
Although Glasscock’s answers evinced some ‚hesitation at first,‛
the court determined that he ‚voluntarily cooperated‛
throughout the interview. The court also determined that there
‚was insufficient evidence of intoxication, mental defect, or
coercion to justify excluding the interview,‛ so the ‚confession
was fully knowing and voluntary.‛ At Glasscock’s urging, we
have reviewed the video recording of Glasscock’s interrogation
and find that the district court’s findings and conclusions are
unassailable.
20120615-CA 7 2014 UT App 221State v. Glasscock
¶19 Unlike the interrogation in Rettenberger, which involved
multiple two-hour sessions and a twenty-two-hour period of
solitary confinement, Glasscock’s interview lasted roughly thirty
minutes. The detectives engaged in several minutes of small talk,
asking Glasscock where his accent was from, inquiring about
why he relocated to Utah from Louisiana, and comparing the
catfish in the two states. They also asked him for his birthdate
and contact information, which he provided without hesitation.
The detectives then advised Glasscock of his rights, and he
affirmed that he was willing to continue the interview.
¶20 For the next fifteen minutes, Glasscock offered vague
details of his role in the robbery and blamed his spotty memory
on alcohol, pain medication, and other drugs. However, his
recounting of how he came to be with his two companions, their
travels over the hours before the robbery, and other aspects of
their interactions was detailed and lucid. He admitted that he
handled a gun that day, but claimed he did so only because
Woods had handed him the weapon. When asked why he was in
Salt Lake City, Glasscock told the detectives that Woods gave
him a ride to run some errands before Glasscock could catch a
bus back to Layton. But he claimed he had been in a ‚stupor‛
after taking pain medication and drinking heavily when ‚all of a
sudden‛ he found himself lying in the backseat of a car
‚surrounded by cops.‛ Without any prodding from the
detectives, he also mentioned that he ‚ran into a Mexican dude
today‛ that he initially thought ‚was one of the Romero brothers
from the joint who had tried to stab‛ him. When he saw him,
Glasscock said, he asked Woods to pull over, then ‚jumped out‛
and ‚was fixing to knock the dude on his ass.‛ But he
apologized and got back in the car when he realized he was
mistaken. When the detectives asked Glasscock if the man had a
backpack, he claimed he could not remember because he was
‚toasted‛ from ‚eating Lortabs‛ and drinking vodka.
¶21 At that point, one detective leaned forward on the table
toward Glasscock and began questioning him more aggressively:
‚Listen. You robbed that guy of his backpack with a gun. Okay?
That’s what happened. There’s no argument there. There’s no
20120615-CA 8 2014 UT App 221State v. Glasscock
discussion there. That’s what happened. I want to know what
was going through your mind at the time.‛ Glasscock continued
to assert that he could not remember because he was ‚so drunk,‛
and he claimed that ‚one of the only things‛ he could remember
was that Woods and Cropper ‚were pressuring‛ him to find
drug dealers to rob. One of the detectives then suggested that
Glasscock had mistaken ‚an 18-year-old kid who is trying to get
his GED‛ for a drug dealer and stole his backpack, and ‚now
[the kid] has to make up all that work because he can’t find his
backpack.‛
¶22 When Glasscock continued to plead ignorance, one of the
detectives informed him that the other two men in the car ‚seem
like angels to us‛ because ‚they’re talking to us. You’re the only
one who is playing this other card.‛ He continued, ‚Do you
want . . . the courts to look at you as a cold blooded straight-up
liar . . . or do you want to look like a guy who told the truth?‛ At
that point, Glasscock admitted that Woods had handed him a
gun and that he had approached Victim and asked Victim if he
was ‚a dope dealer.‛ He denied taking the backpack, but
minutes later admitted that he had taken it and Cropper had
thrown the backpack out the window while police were
following them to the gas station. Near the end of the interview,
one of the detectives asked Glasscock if he was sorry for robbing
Victim, and he said yes.
¶23 Throughout the interrogation, there is no indication, other
than his own statements, that Glasscock was significantly
impaired or suffering from a mental illness, and Glasscock
offered neither expert testimony nor medical records at trial to
support his own assertion that several mental illnesses—and
having gone without medication—made him particularly
susceptible to coercive questioning. To the contrary, on the video
recording of the interview, he appears alert, he has no difficulty
understanding the detectives’ questions, and his answers are
responsive and lucid. As a consequence, Glasscock has failed to
show that the detectives had reason to believe that his drug use
was as extensive as he had claimed or that there was any
indication that Glasscock was so impaired that he was
20120615-CA 9 2014 UT App 221State v. Glasscock
‚incapable of making a voluntary statement.‛ See State v.
Maestas, 2012 UT App 53, ¶¶ 39–41, 47, 272 P.3d 769 (concluding
a confession was voluntary where, even though the defendant
was intoxicated and on pain medication, the defendant did not
exhibit any ‚truly bizarre behavior‛ that would have alerted
police that the defendant was impaired). And even if Glasscock
was suffering from the mental disorders he identified in his trial
testimony, police are ‚not routinely required to inquire into a
defendant’s medical condition prior to questioning him‛ absent
behavior that provides ‚notice that *the d+efendant’s mental
state warrant*s+ special concern.‛ Id. ¶ 40. Glasscock’s demeanor
throughout the interview simply did not provide the detectives
with any reason to question his mental stability.
¶24 Further, even if Glasscock were mentally impaired during
the interview, Glasscock has not identified any evidence that
calls into question the district court’s finding that there was
insufficient evidence of coercive tactics that would have
overcome his free will. Unlike the officers in Rettenberger who
employed a variety of threats, made false promises, placed the
defendant in solitary confinement for twenty-two hours, and
refused his request to speak with his parents, 1999 UT 80, ¶¶ 21–
36, 984 P.2d 1009, the detectives’ questioning in this case was
straightforward, built on Glasscock’s own statements and
inconsistencies, and lasted only half an hour. The detectives did
not misrepresent the strength of the evidence against Glasscock,
make any threats, or falsely promise significantly more lenient
treatment if he confessed. Glasscock has therefore failed to show
that the district court was incorrect when it found that ‚*t+here
was insufficient evidence of intoxication, mental defect, or
coercion to justify excluding the interview.‛ As a consequence,
we also agree with the court’s ultimate legal conclusion that
Glasscock’s confession ‚was fully knowing and voluntary.‛
II. The Lineup Procedure
¶25 Glasscock also argues that his ‚due process rights were
violated when the prosecution was allowed to introduce
*Victim’s+ identification of him as the robber because the
20120615-CA 10 2014 UT App 221State v. Glasscock
circumstances surrounding the identification were
unconstitutionally suggestive.‛ In particular, he maintains that
Victim offered a ‚fairly generic description‛ of his assailant that
‚fits Cropper about as much as it fits Glasscock‛ and provided
more specific details only after he saw Glasscock during a
‚highly suggestive show up procedure.‛
¶26 The Due Process Clause of the Utah Constitution bars the
admission of unreliable eyewitness identifications into evidence.
State v. Hollen, 2002 UT 35, ¶ 26, 44 P.3d 794. To evaluate the
admissibility of an eyewitness identification, we examine the
‚totality of the circumstances‛ to determine whether ‚the
eyewitness testimony . . . is sufficiently reliable [so] as not to
offend a defendant’s right to due process.‛ State v. Guzman, 2006
UT 12, ¶ 21, 133 P.3d 363. The Utah Supreme Court has set forth
five factors that guide this inquiry:
(1) [T]he opportunity of the witness to view the
actor during the event; (2) the witness’s degree of
attention to the actor at the time of the event; (3)
the witness’s capacity to observe the event,
including his or her physical and mental acuity; (4)
whether the witness’s identification was made
spontaneously and remained consistent thereafter,
or whether it was the product of suggestion; and
(5) the nature of the event being observed and the
likelihood that the witness would perceive,
remember and relate it correctly.
State v. Ramirez, 817 P.2d 774, 781 (Utah 1991) (alteration in
original) (citation and internal quotation marks omitted), holding
modified by State v. Thurman, 846 P.2d 1256 (Utah 1993). After
carefully examining the evidence in the record, we conclude that
the district court did not err in concluding that the eyewitness
identification in Glasscock’s case was sufficiently reliable.
¶27 The circumstances surrounding Victim’s identification of
Glasscock are far less troubling than those in State v. Ramirez, 817
P.2d 774 (Utah 1991), holding modified by State v. Thurman, 846
20120615-CA 11 2014 UT App 221State v. Glasscock
P.2d 1256 (Utah 1993), where our supreme court concluded no
constitutional violation occurred. In Ramirez, an eyewitness saw
a man with a gun ‚crouched near the end of *a+ building,
wearing a mask over the lower part of his face.‛ Id. at 782. The
witness viewed the gunman for less than a minute while another
man with a pipe was ‚threatening and swinging the pipe‛ at the
witness. Id. at 782–83. At one point, the man with the pipe ‚hit
[the witness] in the stomach‛ while a ‚masked robber . . .
point*ed+ a pistol at him.‛ Id. at 783. The witness identified the
defendant as the gunman ‚thirty minutes to an hour after the
crime‛ when he saw the defendant ‚on the street in the middle
of the night,‛ alone, ‚with his hands cuffed to a chain link fence
behind his back,‛ and the ‚headlights of several police cars . . .
trained on him.‛ Id. at 783–84. The court noted that despite the
‚blatant suggestiveness of the showup‛ procedure and the fact
that the witness never ‚saw the full face of the gunman,‛ it was
‚an extremely close case.‛ Id. at 784. Ultimately, the court
concluded that admitting the eyewitness testimony did not
violate the defendant’s constitutional rights. Id.
¶28 Here, the fact that Victim had a gun pointed at his head
during the robbery likely affected his capacity to observe his
assailant. But unlike the witness in Ramirez, who never saw the
defendant without a mask and identified him during a
‚blatant*ly+ suggestive*+‛ showup procedure at night, see id. at
782, 784, Victim was assaulted around 2:30 p.m., was face-to-face
with his assailant, and identified Glasscock as the robber less
than one hour later in broad daylight. And unlike the highly
suggestive showup procedure in Ramirez where the witness
viewed the defendant all alone, handcuffed to a fence, and
spotlighted, see id. at 784, Victim was able to see all three of the
men the police apprehended in the Stratus—including Cropper,
the man Glasscock claims may have committed the robbery. We
therefore agree with the district court that Victim’s eyewitness
identification was not unreliable and its admission into evidence
did not violate Glasscock’s constitutional rights.
20120615-CA 12 2014 UT App 221State v. Glasscock
III. Ineffective Assistance
¶29 Glasscock next claims that he received ineffective
assistance of counsel when his attorney failed to object to the
admission into evidence of his prior conviction for attempted
sexual abuse of a child. He argues that the conviction ‚was not
admissible under rule 404(b) of the Utah Rules of Evidence‛ and
that the nature of the charge ‚allowed the trial court to look past
the many troubling aspects of the State’s case.‛ To prevail on an
ineffective assistance of counsel claim, Glasscock must show
both that his trial counsel’s performance ‚was deficient‛ and
‚that the deficient performance prejudiced‛ his defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984). We conclude
that failing to object to the admission of Glasscock’s felony
conviction into evidence was not deficient performance because
the conviction was admissible, and Glasscock was not
prejudiced by the timing of its admission because he was tried
before a judge, not a jury.
¶30 Glasscock is correct that rule 404(b) of the Utah Rules of
Evidence bars the admission of bad acts evidence to prove a
propensity for criminal behavior. The rule is designed ‚to ensure
that a defendant is only convicted because he committed the
charged offense and not because the jury is convinced of his
cumulative bad behavior.‛ State v. Houskeeper, 2002 UT 118, ¶ 24,
62 P.3d 444. And it is certainly true that evidence of ‚a prior
sexual offense against a child is particularly likely to suggest a
verdict on an improper, emotional basis.‛ State v. Fowers, 2011
UT App 383, ¶ 22, 265 P.3d 832 (citation and internal quotation
marks omitted).
¶31 Here, however, Glasscock was charged with a second
degree felony for possession of a firearm by a restricted person,
which requires evidence that the defendant has a prior
conviction for a ‚violent felony.‛ Utah Code Ann. § 76-10-503(1)
20120615-CA 13 2014 UT App 221State v. Glasscock
(LexisNexis 2012).3 Attempted sexual abuse of a child is a violent
felony. Id. § 76-3-203.5(1)(c)(i)(W). When evidence of a
‚defendant’s prior convictions *is+ relevant to establish an
essential element of the crime charged, it is admissible at the
appropriate time of trial . . . unless ‘its probative value is
substantially outweighed by the danger of unfair prejudice.’‛
State v. Florez, 777 P.2d 452, 456 (Utah 1989) (quoting Utah R.
Evid. 403). Here, Glasscock’s conviction was directly relevant to
establishing an element of the unlawful firearm possession
charge and was therefore admissible. And because the evidence
was admissible, the only real issue for his counsel was the timing
of its admission, something that Glasscock does not address on
appeal.
¶32 However, even if Glasscock had addressed the issue, it is
unlikely that he could have shown prejudice in this case.
Glasscock’s central concern is that a factfinder would be unable
to objectively examine the evidence pertinent to the aggravated
robbery charge after being advised that he had a prior felony
conviction for attempted sexual abuse of a child. We are
certainly mindful that evidence that a defendant attempted to
sexually abuse a child ‚may have an emotional impact on a jury
that could suggest a decision on an improper basis.‛ State v.
Burke, 2011 UT App 168, ¶ 40, 256 P.3d 1102. But this was a
bench trial, not a jury trial, and the district court’s knowledge of
a prior conviction does not raise the specter of prejudice to the
same degree that a jury’s awareness would.4 Indeed, ‚we have
3. Because these statutory provisions have not been
substantively amended, we cite to the current version of the
Utah Code.
4. Glasscock has not argued that his trial counsel should have
asked the court to bifurcate the trial, nor has he asserted that trial
counsel should have stipulated that Glasscock committed a
felony for purposes of the firearms charge to avoid revealing the
(continued...)
20120615-CA 14 2014 UT App 221State v. Glasscock
traditionally assumed that judges are capable of properly sorting
and evaluating evidence presented to them and are much less
subject to improper influence than a lay jury.‛ State v. Hallet, 796
P.2d 701, 707 (Utah Ct. App. 1990), aff’d, 856 P.2d 1060 (Utah
1993); see also Adams, 2011 UT App 163, ¶ 12 (noting that ‚judges
in bench trials are presumed to be less likely than juries to be
prejudiced by prior bad acts evidence‛). Glasscock has not
demonstrated that the evidence of his prior conviction affected
the district court’s decision in any material way.
¶33 We therefore conclude that the failure of Glasscock’s
counsel to challenge the admission of his felony conviction did
not amount to ineffective assistance of counsel. Evidence of the
felony conviction was admissible on the firearms charge, and
because Glasscock was tried before a judge, admitting the felony
conviction in the same proceeding as the aggravated robbery
charge does not undermine our confidence in the verdict. See
State v. Hales, 2007 UT 14, ¶ 86, 152 P.3d 321 (noting that to
demonstrate prejudice, a defendant must show ‚a reasonable
probability that, absent the errors, the factfinder would have had
a reasonable doubt respecting guilt,‛ or in other words, the
errors ‚undermine confidence in the *verdict+‛ (citations and
internal quotation marks omitted)).
IV. Cumulative Error
¶34 Finally, Glasscock argues that the cumulative effect of the
three errors he identifies should undermine our confidence that
he had a fair trial. ‚Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors
undermines our confidence . . . that a fair trial was had.‛ State v.
Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (omission in original) (citation
and internal quotation marks omitted). Having found no error,
Glasscock’s cumulative error claim fails.
nature of his offense. We therefore do not discuss the availability
or propriety of either option.
20120615-CA 15 2014 UT App 221State v. Glasscock
CONCLUSION
¶35 We affirm the district court’s decision denying
Glasscock’s motions to suppress his confession and the
eyewitness identification. We also conclude that Glasscock did
not receive ineffective assistance of counsel. Consequently,
Glasscock’s convictions are affirmed.
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20120615-CA 16 2014 UT App 221