State v. King , 834 Utah Adv. Rep. 4 ( 2017 )

2017 UT App 43THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
LEVI GENE KING,
Appellant.
Opinion
No. 20130223-CA
Filed March 9, 2017
Second District Court, Farmington Department
The Honorable Thomas L. Kay
No. 121701223
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes, Ryan D. Tenney, and William M.
Hains, Attorneys for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Levi Gene King appeals from his convictions
for theft as a second-degree felony, theft as a third-degree felony,
and failure to stop at the command of a law enforcement officer
as a class A misdemeanor. See Utah Code Ann. § 76-6-404
(LexisNexis 2012); id. § 76-6-412(1); id. § 76-8-305.5. Primarily, he
contends that his trial counsel was constitutionally ineffective for
failing to introduce expert testimony regarding the reliability of
eyewitness identification. Because declining to introduce
potentially harmful testimony was sound trial strategy under the
facts of this case, we affirm.
State v. King
BACKGROUND
¶2 ‚On appeal from a jury verdict, we view the evidence and
all reasonable inferences in the light most favorable to that
verdict and recite the facts accordingly.‛ State v. Dozah, 2016 UT
App 13, ¶ 2, 368 P.3d 863. ‚We include conflicting evidence as
relevant and necessary to understand the issues on appeal.‛ Id.
¶3 Victim parked his truck outside his wife’s salon one
morning. He left the keys and his wife’s iPod on the truck’s
center console while he unloaded supplies. Later that morning,
Victim’s wife (Wife) drove to her salon. As she pulled into a side
street behind the salon, she saw her husband’s truck being
driven the other way. Wife slowed to a stop and rolled down her
window. To her surprise, the other driver was not her husband.
She noted that the driver had a shaved head and was wearing a
white tee shirt. She hurried to the salon and told her husband
that somebody was driving off in his truck. Victim borrowed
Wife’s SUV to go look for his truck while she called 911.
¶4 Descriptions of the stolen vehicle and the driver were
relayed to police in the area. A police officer (Officer) spotted the
truck at an intersection and ‚focused on the driver‛ to see if he
matched the description. It was daytime and Officer could see
that the driver was a ‚white male, short, dark hair‛ and was
wearing a ‚white shirt.‛ Officer turned to follow the truck,
which accelerated above the speed limit and turned onto a
curving side street. He lost sight of the truck for one to two
minutes but then spotted it parked behind a building. The driver
seen by Officer earlier was still inside but the driver’s door was
partially open. No one else was nearby.
¶5 The driver spotted Officer, fled the vehicle, and hopped a
nearby fence. Officer gave chase, radioing nearby police to let
them know he had found the truck. While pursuing the driver,
Officer saw that the driver was wearing a white tee shirt with a
‚dark logo on the back of it‛ and jeans with a hole around the
right knee.
20130223-CA 2 2017 UT App 43State v. King
¶6 Several minutes later, a witness (Witness) was in his front
yard preparing to take his daughter to school when a man
approached and asked if he could get inside Witness’s car.
Witness testified that the man was ‚wearing a white tee shirt
with some sort of logo on the back‛ and ‚blue jeans.‛ After
Witness refused to let the man into his car, the man went onto
Witness’s porch and tried to enter the house. A police car then
pulled up and the man tried to run away but was apprehended.
The man apprehended was Defendant.
¶7 Shortly after Defendant’s capture, Officer arrived and
identified Defendant as the person he had seen driving the
stolen truck and given chase to. Victim and Wife then arrived;
Victim identified the truck as his and Wife identified Defendant
as the man she had seen driving it. A search of Defendant’s
person revealed Wife’s iPod. Neither Officer nor Wife was
presented with a lineup of suspects; rather, at the scene of his
arrest, each was only shown Defendant—a procedure often
referred to as a showup.
¶8 At trial, the State argued that Defendant stole the truck
and the iPod and failed to heed a police officer’s orders to stop.
Defendant presented alternative facts. Defendant testified that
he had left his house that morning intending to apply for jobs at
local businesses until the local library opened. He claimed that
he had run into an acquaintance named Kyle,1 who was sitting in
a black truck. According to Defendant, Kyle offered to sell
Defendant an iPod for $30. Although he initially hesitated,
Defendant decided to buy the iPod. He testified that he then
began to smoke marijuana, that Kyle grew increasingly nervous,
and that Kyle eventually jumped out of the truck, ran behind it,
and disappeared over a fence. Defendant further testified that he
saw a police car drive by and that, when the car turned around,
1. Defendant either did not know or could not remember Kyle’s
surname. Kyle was not apprehended and did not appear at trial.
20130223-CA 3 2017 UT App 43State v. King
he took off running as well. Defendant admitted that he had not
stopped when the police officer told him to.2
¶9 During jury selection and opening statements, a deputy
sat behind Defendant. Before testimony began, trial counsel
objected to the presence of ‚an armed deputy in uniform sitting
behind my client.‛ Trial counsel conceded that officers were
generally present for security reasons but asserted that such
officers were normally ‚dressed in plainclothes.‛ Trial counsel
stated that ‚if he wants to sit in the back of the court, that’s fine,
but I don’t think sitting behind my client is appropriate‛ and
that Defendant was unlikely to be a threat because he had
‚handcuffs on.‛ The judge asked the officer to ‚sit a little farther
back‛ in the audience and trial counsel raised no further
objection.
¶10 Before Defendant testified, and outside the jury’s
presence, the court and counsel discussed the logistics of his
testimony. Trial counsel suggested seating Defendant in the
witness box and swearing him in before the jury returned to the
room. The court agreed to ‚have him seated up here‛ and
explained that ‚we’ll have him sworn before the jury comes in.‛
The court later decided ‚we’ll just have him sworn in just after
the jury comes in, so why don’t we have the jury come in. So
when I say, ‘You can be seated,’ just stand or just stay standing
and then *the court deputy+ will swear you in.‛
¶11 The defense presented no other witnesses. In closing
argument, trial counsel argued that Wife and Officer were
mistaken in their identifications. She highlighted the height
difference between Victim’s truck and Wife’s SUV and noted
that both Wife and Officer had observed the driver of the truck
while it was in motion. Trial counsel did not request an
instruction regarding eyewitness-identification pitfalls.
2. Nevertheless, he challenges his conviction for failure to stop at
the command of a law enforcement officer.
20130223-CA 4 2017 UT App 43State v. King
¶12 The jury convicted Defendant on all three charges. As part
of his appeal, Defendant sought a rule 23B remand for findings
necessary to determine whether he received ineffective
assistance from trial counsel. See Utah R. App. P. 23B. After this
court granted that motion, the trial court conducted a hearing
and entered findings. The parties have now addressed those
findings in supplemental briefing to this court.
ISSUES AND STANDARDS OF REVIEW
¶13 Defendant first contends that trial counsel’s failure to call
an expert witness to testify about the pitfalls of eyewitness
identification deprived him of his constitutional right to the
effective assistance of counsel. ‚In ruling on an ineffective
assistance [of counsel] claim following a Rule 23B hearing, we
defer to the trial court’s findings of fact, but review its legal
conclusions for correctness.‛ State v. Patterson, 2013 UT App 11,
¶ 7, 294 P.3d 662 (citation and internal quotation marks omitted).
¶14 Defendant next contends that the trial court deprived him
of his right to a fair and impartial trial by ‚having *Defendant+
handcuffed during the jury trial with a uniformed officer sitting
directly behind him.‛ Because this issue was not preserved for
appeal, see infra ¶ 31, Defendant seeks review under the plain-
error doctrine. ‚The plain error standard of review requires an
appellant to show the existence of a harmful error that should
have been obvious to the district court.‛ State v. Waterfield, 2014
UT App 67, ¶ 18, 322 P.3d 1194.
¶15 Defendant also contends that the cumulative effect of
these errors merits reversal pursuant to the cumulative-error
doctrine. But the cumulative-error doctrine may only be
considered when the appellate court has determined, or
assumed without deciding, that two or more errors occurred.
Only when this court has determined that multiple errors
occurred below do we apply the standard of review applicable
to each underlying claim of error and reverse if the cumulative
20130223-CA 5 2017 UT App 43State v. King
effect of the several errors undermines our confidence that a fair
trial was had. See State v. McNeil, 2013 UT App 134, ¶ 16, 302
P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699.
ANALYSIS
I. Eyewitness Identification
A. Failure to Present Expert Witness Testimony
¶16 Defendant contends that trial counsel was constitutionally
ineffective for failing to present an expert witness to testify about
the unreliability of eyewitness identifications. ‚To succeed on a
claim of ineffective assistance of counsel, a defendant must show
that trial counsel’s performance was deficient and that the
defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App
42, ¶ 18, 345 P.3d 769 (citing Strickland v. Washington, 466 U.S.
668, 687 (1984)). ‚Because both deficient performance and
resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.‛ Id. (citing Strickland, 466 U.S. at 697). To
demonstrate deficient performance, ‚the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.‛
Strickland, 466 U.S. at 689 (citation and internal quotation marks
omitted). ‚In order to ‘eliminate the distorting effects of
hindsight,’ our examination of an attorney’s tactical decisions
must ‘evaluate the conduct from counsel’s perspective at the
time’‛ of the now-challenged decision. Burke v. State, 2015 UT
App 1, ¶ 21, 342 P.3d 299 (quoting Strickland, 466 U.S. at 689).
¶17 Here, trial counsel testified at the rule 23B remand
hearing. The trial court then found that trial counsel had
‚consciously decided to not consult with an eyewitness
identification expert before trial or call such an expert at trial.‛
The question before us is therefore whether trial counsel’s
conscious decision not to consult or call an eyewitness-
20130223-CA 6 2017 UT App 43State v. King
identification expert amounted to deficient performance, i.e.,
whether that decision could not have been considered ‚sound
trial strategy‛ at the time it was made. See Strickland, 466 U.S. at
689; see also, e.g., State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164(discussing deficient performance in the context of failure to call
a particular witness). This question requires us to consider the
then-apparent advantages and disadvantages of introducing an
eyewitness-identification expert’s testimony as well as the
advantages and disadvantages of not doing so.
¶18 The United States Supreme Court and the Utah Supreme
Court have recognized that ‚‘the vagaries of eyewitness
identification are well-known; the annals of criminal law are rife
with instances of mistaken identification.’‛ State v. Long, 721 P.2d
483, 491 (Utah 1986) (brackets omitted) (quoting United States v.
Wade, 388 U.S. 218, 228 (1967)). ‚Decades of study, both before
and particularly after Long, have established that eyewitnesses
are prone to identifying the wrong person as the perpetrator of a
crime, particularly when certain factors are present.‛ State v.
Clopten, 2009 UT 84, ¶ 15, 223 P.3d 1103. ‚*T+here is little doubt
that juries are generally unaware of [the] deficiencies in human
perception and memory and thus give great weight to
eyewitness identifications. Indeed, juries seemed to be swayed
the most by the confidence of an eyewitness, even though such
confidence correlates only weakly with accuracy.‛ Id. (citation
omitted).
¶19 The Utah Supreme Court has noted that expert testimony
about the deficiencies of eyewitness identification can be helpful
to juries and should therefore routinely be admitted. Id. ¶¶ 16,
49. However, such expert testimony does not always benefit the
defendant. When the factors that impact the reliability of
eyewitness testimony—‚such as the amount of time the culprit
was in view, lighting conditions, use of a disguise,
distinctiveness of the culprit’s appearance, and the presence of a
weapon or other distractions‛—weigh in favor of a reliable
identification, ‚expert testimony actually makes jurors more
likely to convict.‛ See id. ¶¶ 15, 20. As a result, when an
20130223-CA 7 2017 UT App 43State v. King
eyewitness-identification expert’s testimony is likely to reinforce
the credibility of identifications made by eyewitnesses, declining
to bring the expert to the witness stand may be sound trial
strategy. Consequently, trial counsel’s failure to call such an
expert as a witness does not necessarily translate into a finding
of deficient performance.
¶20 In Clopten, the Utah Supreme Court identified a
nonexhaustive list of factors that may affect the reliability of an
eyewitness identification and divided that list into three
categories: those relating to the eyewitness, those relating to the
event witnessed, and those relating to the identification itself. See
id. ¶ 32 n.22. The first category includes ‚factors such as
uncorrected visual defects, fatigue, injury, intoxication, presence
of a bias, an exceptional mental condition . . . , age . . . , and the
race of the eyewitness relative to the race of the suspect.‛ Id. The
second category includes ‚the effects of stress or fright, limited
visibility, distance, distractions, the presence of a weapon . . . ,
disguises, the distinctiveness of the suspect’s appearance, the
amount of attention given to the event by the eyewitness, and
whether the eyewitness was aware at the time that a crime was
occurring.‛ Id. And the third category includes ‚such factors as
the length of time between observation and identification, any
instances in which the eyewitness failed to identify the suspect
or gave an inconsistent description, the value of lineups
compared to showups, the value of photo identifications
compared to in-person identifications, and any exposure of the
eyewitness to influences such as news reports or interaction with
other witnesses.‛ Id. The third category also includes
‚potentially suggestive police conduct, such as the instructions
given to the eyewitness by police, the composition of the lineup,
the way in which the lineup was carried out, and the behaviors
of the person conducting the lineup.‛ Id. Not every Clopten factor
is present in every case nor are the factors always of equal
weight; consequently, determining the value of eyewitness-
identification expert testimony is more complex than simply
tallying the number of factors suggesting reliability and the
number of factors suggesting unreliability.
20130223-CA 8 2017 UT App 43State v. King
¶21 Wife and Officer were the two eyewitnesses, and both
testified at the rule 23B hearing on remand. Defendant’s
proposed eyewitness-identification expert, Dr. Dodd, then
explained how he would have interpreted their testimony at trial
with respect to the Clopten factors. The trial court entered
findings regarding what Wife and Officer would have testified
to at trial had they been questioned about Clopten factors and
regarding Dr. Dodd’s interpretation. We must defer to these
factual findings. See State v. Patterson, 2013 UT App 11, ¶ 7, 294
P.3d 662.
¶22 According to the trial court’s factual findings, Dr. Dodd
would have testified that some factors suggested that the
eyewitness identifications were unreliable: (1) neither Wife nor
Officer viewed the suspect for a lengthy period of time, (2) the
showups focused exclusively on Defendant (as opposed to
multi-suspect lineups), (3) the eyewitnesses did not provide
‚statement[s] of certainty‛ at the time of the identifications, and
(4) when she spotted Victim’s car, Wife had a poor angle from
which to view the suspect. The court further found that, on
cross-examination, Dr. Dodd would have testified that other
factors suggested that the identifications were reliable: (1) both
eyewitnesses observed the suspect in daylight; (2) both
eyewitnesses were of the same race as the suspect; (3) neither
eyewitness was impaired by fatigue; (4) neither eyewitness was
impaired by drug use; (5) neither eyewitness was impaired by
alcohol; (6) neither eyewitness suffered from uncorrected visual
defects; (7) neither eyewitness suffered from an exceptional
mental condition; (8) neither eyewitness was distracted by a
weapon; (9) neither eyewitness’s observation was impaired by a
disguise; (10) neither eyewitness was under any marked degree
of stress; and (11) both eyewitnesses had particular reasons to
pay attention to the suspect—Wife was trying to see who was
driving her husband’s truck and Officer was trying to locate and
stop the stolen truck. Based on these factual findings, the trial
court came to the legal conclusion that trial counsel ‚made an
informed, reasonable strategic decision that an eyewitness
identification expert would not be helpful to the defense but
20130223-CA 9 2017 UT App 43State v. King
would instead likely end up hurting it.‛ In so concluding, the
trial court appears to have credited trial counsel’s testimony that
she had consciously decided not to call an eyewitness
identification expert to the stand because she ‚was concerned
that it would actually provide more credibility to the State’s
witnesses‛ and because an expert’s testimony on all of the
Clopten factors could be ‚used against [Defendant] to show there
actually wasn’t a problem with the identification.‛
¶23 Defendant contends that this conclusion was erroneous as
a matter of law. But his argument in this regard merely
highlights that some of the expert’s testimony would have
undermined the reliability of the identifications made by Wife
and Officer. Defendant does not mention that other portions of
the expert’s testimony may have reinforced the credibility of the
eyewitnesses by suggesting that their identifications were in fact
reliable. Nor does Defendant explain why, or even claim that,
the helpful aspects of the expert’s testimony would have
outweighed its harmful aspects. See State v. Heywood, 2015 UT
App 191, ¶ 29, 357 P.3d 565 (evaluating the reasonableness of a
trial counsel’s decision not to call an eyewitness identification
expert by weighing the factors suggesting eyewitness reliability
against the factors suggesting unreliability). Accordingly,
Defendant has failed to show error in the trial court’s conclusion
that trial counsel performed reasonably in deciding that the
harms brought about by presenting expert testimony
outweighed the benefits of such testimony in this case.3
3. In Defendant’s pre-remand brief, he states that ‚*t+he fact that
each party may be able to benefit from the expert witness does
not diminish the court’s holding and requirement ‘that, in cases
where eyewitnesses are identifying a stranger and where one or
more established factors affecting accuracy are present, the
testimony of an eyewitness expert will meet rule 702’s
requirement to ‚assist the trier of fact.‛’‛ (Quoting State v.
Clopten, 2009 UT 84, ¶ 32, 223 P.3d 1103.) But rule 702 of the Utah
(continued…)
20130223-CA 10 2017 UT App 43State v. King
¶24 Moreover, we can see no such error. The Utah Supreme
Court has explicitly recognized that unfavorable eyewitness-
identification expert testimony ‚makes jurors more likely to
convict.‛ See State v. Clopten, 2009 UT 84, ¶ 20, 223 P.3d 1103. We
therefore agree with the trial court that trial counsel’s election to
forgo expert testimony was sound trial strategy when trial
counsel reasonably determined that the testimony was likely to
be more harmful than helpful to the defense.
B. Failure to Consult an Expert
¶25 Defendant also contends that trial counsel’s performance
was deficient because ‚trial counsel failed to fulfill her duty to
conduct an adequate investigation of the facts and evidence in
this case.‛ But Defendant does not explain why he believes trial
counsel’s investigation was inadequate. In fact, while he does
cite supporting case law, Defendant does not tie that case law to
any of the facts of his case. ‚An appellate court is not a
depository in which a party may dump the burden of argument
and research.‛ Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903(brackets, citation, and internal quotation marks omitted).
Accordingly, this conclusory contention is inadequately briefed,
see Utah R. App. P. 24(a)(9), and we reject it.
¶26 In any event, to the extent Defendant is arguing that trial
counsel should have consulted an eyewitness-identification
expert before determining whether the expert’s testimony would
have been more harmful than helpful, that argument fails on its
(…continued)
Rules of Evidence governs only the admissibility of expert
testimony, and Clopten did not transform admissible expert
testimony into required expert testimony. The issue of whether
Dr. Dodd’s testimony would have been legally admissible sheds
no light on whether the admission of that (seemingly harmful)
testimony was desirable, or whether trial counsel was required
to seek its admission.
20130223-CA 11 2017 UT App 43State v. King
merits. ‚The Sixth Amendment to the United States Constitution
does not require counsel to fully investigate every potential
lead.‛ Burke v. State, 2015 UT App 1, ¶ 20, 342 P.3d 299(emphasis in original) (brackets, ellipsis, citation, and internal
quotation marks omitted). Rather, ‚counsel has a duty to make
reasonable investigations or to make a reasonable decision that
makes particular investigations unnecessary.‛ Strickland v.
Washington, 466 U.S. 668, 691 (1984). ‚*S+trategic choices made
after less than complete investigation are reasonable precisely to
the extent that reasonable professional judgments support the
limitations on investigation.‛ Id. at 690–91; see also State v.
Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (‚If counsel has reason to
believe that pursuing certain evidence would be fruitless or even
harmful, a tactical decision not to investigate may indeed be
reasonable.‛ (Citation and internal quotation marks omitted)).
¶27 On rule 23B remand, the trial court found that trial
counsel was experienced, having practiced law for over twenty
years; that trial counsel was ‚generally familiar‛ with ‚the issues
surrounding eyewitness identifications‛; and that trial counsel
had ‚consulted with eyewitness identification experts in several
of her past cases.‛ The trial court noted that counsel had
questioned such experts in some cases but, in others, had
‚consciously chosen not to call eyewitness experts to testify at
trial because, under the circumstances, she believed the expert’s
testimony would not have been helpful to the defense.‛
¶28 Here, trial counsel compared her knowledge of the
Clopten factors to the facts of Defendant’s case and determined
that calling an eyewitness-identification expert to the stand
would be detrimental to the defense. Trial counsel recounted,
‚In fact, my concern was that if I brought an expert in, it actually
could have been turned against us and created more of a
problem for the defense.‛ Specifically, trial counsel explained
that the fact that the eyewitnesses were of the same race as
Defendant, that they saw him in daytime, that there was no
weapon involved, and that nothing obscured Defendant’s face,
led counsel to conclude that an eyewitness-identification expert’s
20130223-CA 12 2017 UT App 43State v. King
testimony ‚would actually provide more credibility to the State’s
witnesses than it would be helpful in the defense.‛ In light of
trial counsel’s familiarity with eyewitness-identification issues
and her previous consultations, we do not think trial counsel
was required to consult an expert to make a reasonable
determination regarding trial strategy.4
¶29 We conclude that the trial court was correct in ruling that
trial counsel did not perform deficiently when she declined to
introduce what appeared to be testimony harmful to Defendant.
4. At oral argument before this court, Defendant also suggested
that trial counsel was ineffective for failing to consult an
eyewitness-identification expert with regard to the
suggestiveness of the showup—i.e., ‚whether the witness’s
identification was the product of suggestion‛ as a result of the
use of a single-suspect showup rather than a multi-suspect
lineup. See State v. Ramirez, 817 P.2d 774, 784 (Utah 1991) (ellipsis
omitted) (expressing concern with the ‚blatant suggestiveness of
the showup‛ procedure). But the trial court found that trial
counsel was familiar with the Clopten factors, and the
suggestiveness of a poorly conducted showup is one of the
Clopten factors. We cannot say it was outside the ‚wide range of
reasonable professional assistance‛ for an attorney, familiar with
those factors and confronted with these circumstances, to decide
that it was unnecessary to consult an expert before determining
that the benefits of expert testimony regarding the
suggestiveness of the showup would be outweighed by the
expert’s accompanying cross-examination testimony that the
other Clopten factors supported the eyewitnesses’ identifications.
See Strickland v. Washington, 466 U.S. 668, 689 (1984) (explaining
that, for ineffective assistance of counsel purposes, deficient
performance exists only when counsel’s conduct falls outside the
‚wide range of reasonable professional assistance‛).
20130223-CA 13 2017 UT App 43State v. King
II. Courtroom Logistics
¶30 Defendant contends that the trial court ‚erred in having
Defendant appear at trial before a jury wearing handcuffs with a
uniformed and armed officer sitting directly behind him.‛
A. Presence of a Uniformed Officer
¶31 A uniformed officer sat directly behind Defendant during
jury selection and opening statements. Trial counsel objected to
that arrangement before the jury re-entered the room for the
evidence phase of trial. The trial court asked the officer to sit
further back in the gallery, and trial counsel acquiesced to this
solution. Thus, the record does not support Defendant’s
assertion that the jury saw ‚a uniformed and armed officer
sitting directly behind [Defendant]‛ during the trial. By agreeing
to the court’s proposed solution, trial counsel waived appellate
review. See State v. Binkerd, 2013 UT App 216, ¶ 21, 310 P.3d 755;
see also State v. McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (‚A
claim is not preserved for appeal if a party initially objects but
later, while ‘the wheel’s still in spin,’ abandons the objection and
stipulates to the court’s intended action.‛ (Quoting Bob Dylan,
The Times They Are A–Changin’ (Columbia Records, 1964))),
aff’d, 2016 UT 3, 365 P.3d 699.
¶32 To the extent that the jury saw the officer during jury
selection and opening statements, counsel did not raise an
objection or move for a mistrial. Because Defendant’s challenge
is thus unpreserved, he seeks plain-error review. See State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (‚As a general rule, claims
not raised before the trial court may not be raised on appeal.‛).
‚The plain error standard of review requires an appellant to
show the existence of a harmful error that should have been
obvious to the district court.‛ State v. Waterfield, 2014 UT App 67,
¶ 18, 322 P.3d 1194.
¶33 Defendant argues that this alleged error was obvious
‚because Defendant’s right to a fair and impartial trial and the
20130223-CA 14 2017 UT App 43State v. King
court’s duty to affirmatively afford him this right under the
aforementioned circumstances were well settled at the time of
trial.‛ However, the mere presence of one or more additional
uniformed officers at a trial is not an error that should have been
obvious to the trial court. There may be compelling security
concerns necessitating extra safety measures, and a judge has no
affirmative duty to determine the appropriate number of officers
for each trial and limit the number present accordingly. Cf.
Holbrook v. Flynn, 475 U.S. 560, 570–71 (1986) (concluding that,
during a trial of six codefendants, the presence of ‚four
uniformed state troopers‛ ‚quietly sitting in the first row,‛ in
addition to two deputy sheriffs and ‚six Committing Squad
officers,‛ did not create an unacceptable risk of prejudice,
because ‚*f+our troopers are unlikely to have been taken as a
sign of anything other than a normal official concern for the
safety and order of the proceedings.‛); id. at 571 (‚Even had the
jurors been aware that the deployment of troopers was not
common practice in Rhode Island, we cannot believe that the use
of the four troopers tended to brand respondent in their eyes
with an unmistakable mark of guilt.‛ (citation and internal
quotation marks omitted)). We conclude that Defendant cannot
establish plain error, because allowing a uniformed officer, in
addition to the assigned courtroom security officer, to sit behind
Defendant during jury selection and opening statements was not
an error that should have been obvious to the trial court.
B. Restraints
¶34 Absent compelling security reasons, ‚*t+he rule that a
defendant be tried in the ‘garb of innocence’ has generally been
extended to include a defendant’s right to be tried without being
shackled, chained, bound, handcuffed, gagged, or otherwise
physically restrained.‛ State v. Mitchell, 824 P.2d 469, 473 (Utah
Ct. App. 1991). But see State v. Yocum, 2006 UT App 334U, para. 4
(‚If necessary to secure the courtroom, a trial court may even
require a defendant to be shackled.‛).
20130223-CA 15 2017 UT App 43State v. King
¶35 Trial counsel noted before trial, ‚My client’s got handcuffs
on,‛ but did not object to that situation. Only after the State
rested its case and Defendant elected to testify in his defense did
trial counsel raise an objection. Specifically, both the trial court
and trial counsel were concerned that Defendant ‚walk*ing+ up
there‛ to the witness box would be problematic. The solution
they hit upon was ‚to have him seated [in the witness box] and
sworn in before the jury comes in.‛5 Trial counsel also
considered whether Defendant’s restraints would be visible if
everyone stood for the jury to exit. She noted, ‚I was just looking
to see how he stands up, so when the jury goes to leave and he
stands up, is that going to be noticeable, and I don’t see that it is.
So I think we’re okay.‛
¶36 The State argues that the concern expressed by the trial
court and trial counsel regarding Defendant moving about the
courtroom and their lack of concern regarding Defendant sitting
at the counsel table or at the stand indicate that ‚despite *trial
counsel’s+ offhand reference to ‘handcuffs’ before [the] trial
began, what actually occurred at trial was some form of leg
restraint that would only be visible to the jury if it saw him
walking.‛ We agree. Trial counsel’s concern with courtroom
logistics shows that she was not only alert to the prejudice
associated with restraints but also that she actively raised
objections and took steps to prevent that prejudice from
accruing. It does not seem plausible that trial counsel would
express concern with the visibility of Defendant’s restraints if he
walked across the courtroom while ignoring the visibility of
handcuffs throughout trial while Defendant was at the counsel
table or being sworn in. And the record is devoid of any
indication that any kind of restraint was visible to the jury after
the precautions taken by the court and counsel.
5. The record reflects that Defendant was in the witness box
when the jury entered the courtroom and sworn in after the jury
was seated.
20130223-CA 16 2017 UT App 43State v. King
¶37 We conclude that the record does not support
Defendant’s assertion that the jury saw a uniformed officer
sitting behind him during trial, and we also conclude that there
was no plain error in allowing a uniformed officer to sit behind
Defendant during jury selection and opening arguments. We
further conclude that there is no record support for Defendant’s
assertion that his restraints were visible to the jury. We therefore
do not further address his contention based on the possibility
that he suffered resulting prejudice.6
III. Cumulative Error
¶38 Defendant contends that the cumulative-error doctrine,
also known as the cumulative-prejudice doctrine, mandates
vacatur of his convictions. ‚Under the doctrine of cumulative
prejudice, we will reverse ‘if the cumulative effect of the several
errors undermines our confidence that a fair trial was had.’‛ See
State v. Campos, 2013 UT App 213, ¶ 61, 309 P.3d 1160 (ellipsis
omitted) (quoting State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)).
‚‘In assessing a claim of cumulative error, we consider all the
identified errors, as well as any errors we assume may have
occurred.’‛ State v. Cheek, 2015 UT App 243, ¶ 75, 361 P.3d 679(quoting Dunn, 850 P.2d at 1229). Because we have identified no
errors amongst Defendant’s claims, it follows that there can be
no prejudice resulting from multiple errors for us to consider
cumulatively.
CONCLUSION
¶39 Trial counsel did not perform deficiently by relying on
her extensive understanding of eyewitness-identification issues
6. Defendant does not argue that trial counsel was ineffective for
acquiescing to the trial court’s proposed solutions to her
objections or for failing to raise further objections in response to
those solutions.
20130223-CA 17 2017 UT App 43State v. King
to evaluate the potential harms and potential benefits of
introducing expert testimony on that subject. Nor did trial
counsel perform deficiently by declining to inject testimony into
Defendant’s trial that she reasonably believed would be more
harmful than helpful to his defense. Defendant did not preserve
his challenge to the presence of a uniformed officer sitting in the
audience gallery at trial, and no exception to the preservation
rule applies. Defendant’s factual claims regarding restraints and
the potentially prejudicial placement of the uniformed officer in
the gallery during the presentation of the evidence are
unsupported by the record. And, in the absence of error, the
cumulative-error doctrine has no application.
¶40 Affirmed.
20130223-CA 18 2017 UT App 43