State v. McNeil

2013 UT App 134_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
ROLAND MCNEIL,
Defendant and Appellant.
Opinion
No. 20100695‐CA
Filed May 23, 2013
Third District, West Jordan Department
The Honorable Mark S. Kouris
No. 081400390
E. Rich Hawkes, Christine Seaman, and
Peter A. Daines, Attorneys for Appellant
John E. Swallow and Marian Decker, Attorneys for
Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES STEPHEN L. ROTH and MICHELE M. CHRISTIANSEN
concurred.
VOROS, Judge:
¶1 Roland McNeil appeals his conviction for aggravated
assault. McNeil contends that the trial court committed reversible
error by improperly admitting three pieces of evidence:
paraphrased portions of telephone records, a statement made by
the victim’s daughter, and testimony regarding an unavailable
witness’s prior inconsistent statements. We affirm.
State v. McNeil
BACKGROUND1
¶2 McNeil and a coworker named Allen worked the graveyard
shift. A friendship developed, and they began driving to work
together. McNeil’s adult son, Quentin, saw Allen pick McNeil up
for work and talked to Allen on occasion. A rift between workplace
teams ended the friendship after McNeil accused Allen of failing
to support him in the conflict. On the drive home that day, McNeil
was “very upset with [Allen]” and “scream[ed] at [Allen] all the
way home, pounding [the] dash.” Thereafter, McNeil and Allen
stopped driving to work together and never spoke again.
¶3 McNeil told Quentin about the falling out, and Quentin
began following Allen home from work. About a month later,
Allen was returning to his residence when he noticed but did not
recognize Quentin in the parking lot. As Allen opened his
apartment door, Quentin approached and asked to use Allen’s
phone. He then shoved Allen into the apartment and shut the door.
Quentin attacked Allen with a knife and with his hands. He broke
Allen’s nose and knocked out eight teeth. In the course of the
attack, Quentin claimed that Allen’s daughter and Allen’s
daughter’s husband owed him a $10,000 drug debt and demanded
the money. When Allen denied having any money in the
apartment, Quentin stated, “I know you don’t trust banks.”
Quentin then ransacked a jewelry box belonging to Allen’s
girlfriend.
¶4 Quentin knew more about Allen than his opinion of banks.
He knew where Allen worked, what vehicle he owned, where
Allen’s daughter worked, and Allen’s opinion of his daughter’s
husband. When Allen asked how Quentin knew so much, Quentin
replied, “We’ve been following you. We know where you go eat.
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v. Brown,
948 P.2d 337, 339 (Utah 1997).
20100695‐CA 2 2013 UT App 134State v. McNeil
We know where you do everything.” Before leaving, Quentin
dragged Allen to the shower, threw him in, and said, “Big daddy
is going to let you live.”
¶5 Allen was taken to a hospital and visited by detectives and
family members. He had not recognized Quentin as McNeil’s son
and had no idea who his assailant was. Allen asked his daughter,
whom he thought was “pure as snow,” about the drug allegations.
She replied, “Dad, if you don’t know me by now, you never will.”
¶6 Quentin was arrested and told investigators that McNeil had
“sent [him] over there to beat [Allen] up.” Quentin pleaded guilty
to first degree aggravated burglary, first degree aggravated
robbery, and second degree aggravated assault. After Quentin’s
pleas were accepted but before he was sentenced, he contacted the
prosecutor in his case, Kimberly Crandall. Quentin and Crandall
agreed, through intermediaries, that if Quentin told the truth in
court about what had happened, Crandall would “write a letter to
the Board of Pardons indicating that [Quentin] had told the whole
truth of what happened and taken responsibility for his role in it.”
¶7 But at McNeil’s preliminary hearing, Quentin repudiated his
statements about McNeil’s involvement. He testified that he had
lied to conform his statements to the prosecution’s theory of his
case. He believed this was necessary, he testified, to make the State
“think I was taking responsibility” and thereby “get a better
sentence for myself.” Quentin then testified that McNeil had not
told him to beat up Allen, that Quentin had confronted Allen to tell
Allen to stay away from McNeil, and that “it turned ugly” when
Allen pulled out a knife.
¶8 At McNeil’s trial, Quentin refused to testify; accordingly, his
preliminary hearing testimony was read into the record. Crandall
then testified that she had not written the promised letter for
Quentin because he had not told the whole truth at the preliminary
hearing.
20100695‐CA 3 2013 UT App 134State v. McNeil
¶9 A detective’s preliminary hearing testimony was also read
into the trial record. At McNeil’s preliminary hearing, this detective
had testified without objection that, according to telephone records
summarized in his police report, McNeil and Quentin had called
each other several times immediately before and immediately after
the crime. The telephone records and police report were not
introduced into evidence at the preliminary hearing. Because the
detective died before trial, the trial court allowed his preliminary
hearing testimony to be read into the record at McNeil’s trial.
Defense counsel initially objected on hearsay grounds; the parties
differ as to whether that objection was withdrawn.
¶10 McNeil was acquitted of aggravated burglary, aggravated
robbery, and aggravated kidnapping. He was convicted of
aggravated assault. See Utah Code Ann. § 76‐5‐103 (LexisNexis
2012). He timely appealed.
ISSUES AND STANDARDS OF REVIEW
¶11 On appeal, McNeil challenges the admission of three items
of evidence, each under multiple theories and standards of review.
¶12 First, he contends that admission of the detective’s
preliminary hearing testimony about the telephone records
violated the hearsay rule, the Confrontation Clause of the United
States Constitution, and the best evidence rule. “When a party fails
to preserve an issue for appeal, we will address the issue only if
(1) the appellant establishes that the district court committed plain
error, (2) exceptional circumstances exist, or (3) in some situations,
if the appellant raises a claim of ineffective assistance of counsel in
failing to preserve the issue.” State v. Low, 2008 UT 58, ¶ 19, 192
P.3d 867 (citations and internal quotation marks omitted).
¶13 McNeil also asserts the hearsay and best evidence claims
under the doctrines of plain error and ineffective assistance of
counsel. Plain error review is inappropriate when the error was
20100695‐CA 4 2013 UT App 134State v. McNeil
invited by the appellant or resulted from the appellant’s strategic
decision. State v. Bullock, 791 P.2d 155, 159 (Utah 1989); State v.
Patterson, 2013 UT App 11, ¶ 22, 294 P.3d 662. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Ott, 2010 UT 1, ¶ 22, 247 P.3d
344 (citation and internal quotation marks omitted).
¶14 Second, McNeil contends that Allen’s daughter’s statement,
“[I]f you don’t know me by now, you never will,” was admitted in
violation of the hearsay rule. In reviewing hearsay rulings, we
review legal questions for correctness, factual questions for clear
error, and the final ruling on admissibility for abuse of discretion.
State v. Workman, 2005 UT 66, ¶ 10, 122 P.3d 639; State v. Jackson,
2010 UT App 328, ¶ 9, 243 P.3d 902.
¶15 Third, McNeil contends that Crandall’s statement that
Quentin had not testified truthfully at McNeil’s preliminary
hearing was admitted in violation of the hearsay rule, the
Confrontation Clause, and rule 608(a) of the Utah Rules of
Evidence. He concedes that this claim of error was not preserved
and thus argues plain error and ineffective assistance of counsel. To
establish plain error on appeal, an appellant must show that “(i) an
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d 1201,
1208 (Utah 1993). As noted above, “[a]n ineffective assistance of
counsel claim raised for the first time on appeal presents a question
of law.” Ott, 2010 UT 1, ¶ 22 (citation and internal quotation marks
omitted).
¶16 Finally, McNeil contends that, even if no single error
requires reversal, the cumulative effect of these errors requires
reversal. Under the cumulative error doctrine, we apply the
“standard of review applicable to each underlying claim of
error . . . .” Radman v. Flanders Corp., 2007 UT App 351, ¶ 4, 172 P.3d
668. And “we will reverse only if the cumulative effect of the
several errors undermines our confidence . . . that a fair trial was
20100695‐CA 5 2013 UT App 134State v. McNeil
had.” Dunn, 850 P.2d at 1229 (omission original) (citations and
internal quotation marks omitted).
ANALYSIS
I. The Telephone Records
¶17 McNeil first contends that the trial court erred by allowing
portions of the detective’s preliminary hearing testimony about the
telephone records to be read into evidence at trial. McNeil asserts
that admission of this testimony violated the hearsay rule, the
Confrontation Clause, and the best evidence rule.
A. Hearsay
1. Preserved Error
¶18 McNeil first argues that this claim of error was preserved, so
that admission of the challenged testimony constituted ordinary
trial error. The State maintains that McNeil invited the error he
complains of on appeal. McNeil counters that his counsel
“repeatedly objected on hearsay . . . grounds.” We conclude that
McNeil invited any hearsay error.
¶19 The invited error doctrine ensures that “a party cannot take
advantage of an error committed at trial when that party led the
trial court into committing the error.” State v. Winfield, 2006 UT 4,
¶ 15, 128 P.3d 1171 (citations and internal quotation marks
omitted). Counsel’s stipulation that no error has been committed
“represents a classic example of invited error.” State v. Moa, 2012
UT 28, ¶ 31, 282 P.3d 985. This is so even when the party stipulates
in a later hearing and not in the hearing where the alleged error
occurs. Id. ¶ 32; see also Braun v. Nevada Chems., Inc., 2010 UT App
188, ¶ 15, 236 P.3d 176. The doctrine also extends to counsel’s
failure to object in response to a specific question from the court.
See State v. Geukgeuzian, 2004 UT 16, ¶ 10, 86 P.3d 742.
20100695‐CA 6 2013 UT App 134State v. McNeil
¶20 Here, the trial court discussed the detective’s preliminary
hearing testimony with counsel at length before admitting it. Much
of this discussion focused on whether McNeil had had an
opportunity to cross‐examine the detective at the preliminary
hearing. Defense counsel objected that “we’re denied the
opportunity of cross‐examination” and argued that it was “a
Crawford issue.”2 The trial court responded, “I don’t understand
what you’re talking about. First of all, this isn’t hearsay so Crawford
doesn’t play a part . . . . This was all done under oath, all done with
the ability to cross examine, that meets all the standards we need
to get it in, [doesn’t it]? Am I right about that or not?” Defense
counsel responded, “Even non‐hearsay statements that are neutral
in character may be excluded if under the circumstances they lead
to an inference associated with a non‐admissible element.” Counsel
continued, “This is hearsay at this point, this is hearsay. It’s a prior
recorded statement from a witness who is unavailable—” Then the
trial court interrupted: “Hold the phone here. Hearsay says an out‐
of‐court statement. This was in court. . . . Under oath, subject to
cross‐examination. This is not hearsay.” At that point, defense
counsel acquiesced: “Okay, it’s not hearsay; it’s a neutral statement.”
(Emphasis added.)
¶21 The court then summed up the foregoing discussion by
stating that the parties were stipulating that the detective’s
preliminary hearing testimony concerning the telephone calls was
not hearsay:
This is not hearsay. It’s a sworn statement under oath
recorded, subject to cross examination. If the
statement did contain hearsay, we would obviously
2. It is clear from the context that counsel was referring to Crawford
v. Washington, 541 U.S. 36 (2004). There, the United States Supreme
Court held that, under the Confrontation Clause, testimonial out‐
of‐court statements are inadmissible against a criminal defendant
unless the declarant is unavailable and the defendant had a prior
opportunity to cross‐examine the declarant. See id. at 68–69.
20100695‐CA 7 2013 UT App 134State v. McNeil
redact that. Both sides at this time are stipulating that
in fact it doesn’t. [Defense counsel] is objecting on
different terms than hearsay terms; therefore we will
say [the parties] are stipulating to the fact that it’s not
hearsay.
Defense counsel did not dispute this characterization of the
discussion.
¶22 McNeil now contends that the court’s statement constitutes
a ruling on the merits of his hearsay objection, thus preserving the
claim for appeal. We do not read it that way. As we read the
exchange, the judge “gave [his] ‘take’ on the situation,” Braun, 2010
UT App 188, ¶ 13, which was “This is not hearsay.” Although
defense counsel had earlier objected, at this point in the discussion
he agreed that “it’s not hearsay.”
¶23 A claim is not preserved for appeal if a party initially objects
but later, while “the wheel’s still in spin,”3 abandons the objection
and stipulates to the court’s intended action. See Braun, 2010 UT
App 188, ¶ 13 (holding that, by retracting his stated concern upon
recognition that “the tide is rolling against me on this issue,”
counsel invited any error). We conclude that to present an issue “to
the trial court in such a way that the trial court has an opportunity
to rule on that issue,” 438 Main St. v. Easy Heat, Inc., 2004 UT 72,
¶ 51, 99 P.3d 801 (citation and internal quotation marks omitted),
a party must communicate to the court that he or she believes—not
merely believed—that the court is heading down the wrong track.
Here, McNeil opened the discussion by asserting that the
detective’s preliminary hearing testimony was hearsay but, by the
end of the discussion, led the court to believe that he was
3. Bob Dylan, The Times They Are A‐Changin’ (Columbia Records,
1964), available at http://www.bobdylan.com/us/songs/
times‐they‐are‐changin (last visited May 17, 2013).
20100695‐CA 8 2013 UT App 134State v. McNeil
“stipulating to the fact that it’s not hearsay.” Thus, any error was
invited.4
2. Plain Error
¶24 McNeil also contends that the trial court committed plain
error in admitting the detective’s prior testimony. To establish
plain error on appeal, an appellant must show that “(i) an error
exists; (ii) the error should have been obvious to the trial court; and
(iii) the error is harmful.” State v. Dunn, 850 P.2d 1201, 1208 (Utah
1993). However, invited error precludes appellate review of an
issue. Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. Thus, where
trial counsel affirmatively waives an objection, we will not conduct
a plain error review of the underlying issue. See State v. Bullock, 791
P.2d 155, 158–59 (Utah 1989) (limiting application of the plain error
rule and noting that “if a party through counsel has . . . led the trial
court into error, we will then decline to save that party from the
error”); see also State v. Brooks, 2012 UT App 34, ¶ 14, 271 P.3d 831(“[R]eview under the plain error doctrine is not available when
counsel invites the error by affirmatively representing to the
district court that there is no objection to the proceedings.”). Here,
McNeil’s stipulation that the detective’s preliminary hearing
testimony was not hearsay was an affirmative representation that
he had no hearsay objection to the proceedings. Consequently, that
stipulation precludes plain error review.
4. We note that McNeil raises a different hearsay objection to the
detective’s prior testimony on appeal than he did at trial. At trial,
he suggested that it was hearsay because the detective was not
available for cross‐examination. On appeal, McNeil concedes that
claim but argues that the testimony was inadmissible because the
State had not sufficiently laid a business records exception
foundation for admitting the testimony. However, because he
stipulated that the testimony was not hearsay, McNeil invited any
resulting hearsay error. See Braun v. Nevada Chems., Inc., 2010 UT
App 188, ¶ 15, 236 P.3d 176.
20100695‐CA 9 2013 UT App 134State v. McNeil
3. Ineffective Assistance of Counsel
¶25 McNeil further argues that if—as we have determined—his
trial counsel failed to preserve his hearsay claim, that failure
constitutes ineffective assistance of counsel. While invited error
precludes a plain error claim, it does not preclude a claim for
ineffective assistance of counsel. State v. Sellers, 2011 UT App 38,
¶ 13, 248 P.3d 70 (citing State v. Geukgeuzian, 2004 UT 16, ¶¶ 1, 13,
86 P.3d 742).
¶26 To show ineffective assistance of counsel, an appellant must
show that (1) “counsel’s performance was deficient in that it ‘fell
below an objective standard of reasonableness’” and (2) “counsel’s
performance was prejudicial in that ‘there is a reasonable
probability that but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Menzies v. Galetka,
2006 UT 81, ¶ 87, 150 P.3d 480 (quoting Strickland v. Washington, 466
U.S. 668, 694 (1984)). “If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that course
should be followed.” Strickland, 466 U.S. at 697. And because courts
“indulge in a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” id. at
689, any ambiguities or deficiencies in the appellate record “simply
will be construed in favor of a finding that counsel performed
effectively,” State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. Finally,
“‘[P]roof of ineffective assistance of counsel cannot be a speculative
matter but must be a demonstrable reality.’” Allen v. Friel, 2008 UT
56, ¶ 21, 194 P.3d 903 (quoting Fernandez v. Cook, 870 P.2d 870, 877
(Utah 1993) (alteration in original).
¶27 Here, as explained above, the detective testified at the
preliminary hearing that Quentin and McNeil exchanged a flurry
of phone calls immediately before and immediately after the crime.
This testimony was based on telephone records obtained from both
Quentin’s and McNeil’s wireless carriers. The testimony was read
into evidence at trial. McNeil now claims his trial counsel was
ineffective for not objecting to this testimony on hearsay grounds.
20100695‐CA 10 2013 UT App 134State v. McNeil
¶28 The State asserts that McNeil cannot show prejudice. If
defense counsel had successfully objected at trial, the State argues,
the prosecutor would simply have introduced the underlying
telephone records. Indeed, in anticipation of this very eventuality,
the prosecutor mentioned during jury selection that he “may or
may not call . . . a representative from Cricket Communications,”
the phone service provider. And defense counsel later confirmed
that he “had been told that there was going to be a Cricket
[Communications] witness to lay foundation.”
¶29 McNeil responds that, “taken to its next logical step, the
State’s argument would completely dispose of the State’s burden
of proof. If the State’s argument were adopted, the State could
always rectify any evidentiary proof failures at trial by[] simply
asserting, on appeal, that they ‘could have’ provided the proof.” He
adds that the record on appeal is insufficient to show that he
“suffered no prejudice by the phone records testimony because the
State could have provided the same evidence in other ways.”
¶30 Arguing that the appellate record is insufficient to show that
a defendant suffered no prejudice misplaces the burden on appeal.
Defendant bears the burden of establishing prejudice as a
“demonstrable reality.” Allen, 2008 UT 56, ¶ 21. Nevertheless,
McNeil’s argument has force. And in another case, showing that an
objection to certain testimony was well‐founded might raise a
reasonable probability that the result of the proceeding would have
differed absent counsel’s unprofessional errors.
¶31 But here, the State is not, as McNeil claims, “simply
asserting, on appeal, that they ‘could have’ provided the proof.”
Likely as a result of trial counsel’s withdrawal of his hearsay
objection, the telephone records are not before us. But the most
reasonable inference from the record that is before us is that those
records were available at trial, that they supported the detective’s
preliminary hearing testimony, and that the records custodian that
the court and defense counsel already knew about was ready to
authenticate them in the event of an objection. Indeed, defense
20100695‐CA 11 2013 UT App 134State v. McNeil
counsel’s knowledge that the records custodian was at the ready
might explain his willingness to relinquish his hearsay objection.
¶32 In sum, McNeil has not established that counsel’s hearsay
objection would have prevented the jury from learning that
Quentin was in telephone contact with McNeil immediately before
and immediately after the crime. He has not, in a word, shown
prejudice. We deny his ineffective assistance of counsel claim on
this basis.
B. Confrontation Clause
¶33 McNeil also contends that his Confrontation Clause rights
were violated when the trial court admitted the detective’s prior
testimony into evidence. Specifically, he asserts that “the State
introduced hearsay against [him] without showing it was not
testimonial or affording him an opportunity to cross‐examine the
declarant, which violates the Confrontation Clause.”
¶34 The Confrontation Clause provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him . . . .” U.S. Const. amend. VI.
Accordingly, testimonial hearsay is admissible in a criminal case
only when the declarant is unavailable and the defendant had a
prior opportunity for cross‐examination. Crawford v. Washington,
541 U.S. 36, 68 (2004). “To rank as ‘testimonial,’ a statement must
have a ‘primary purpose’ of ‘establish[ing] or prov[ing] past events
potentially relevant to later criminal prosecution.’” Bullcoming v.
New Mexico, 131 S. Ct. 2705, 2714 n.6 (2011) (alterations in original)
(quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
¶35 Here, McNeil complains that he “was never given an
opportunity to cross‐examine the phone company’s records
custodian to determine if [the detective’s] summary of the records
was accurate, whether they were kept in the regular course of
business, or whether they were prepared for investigation or
prosecution of Mr. McNeil.” In sum, he argues, “[W]hen the trial
20100695‐CA 12 2013 UT App 134State v. McNeil
court overruled defense counsel’s objection that the admission of
the hearsay phone records violated Mr. McNeil’s rights under the
Confrontation Clause, the ruling was not based on adequate
evidence because there was no foundation to suggest that the
phone records were not testimonial.” The State responds that, as
with his hearsay claim, McNeil invited any Confrontation Clause
error.
¶36 We conclude that any error was invited. First, as explained
above, the trial court did not “overrule” defense counsel’s
objection; it discussed the objection, after which defense counsel
agreed that the court’s view of the matter was correct. Second, we
do not agree that defense counsel “was never given an opportunity
to cross‐examine the phone company’s records custodian” to
determine whether the records fit within the business records
exception. Defense counsel never sought this opportunity at trial.
Rather, he focused on his ability to cross‐examine the detective:
“We don’t have the opportunity of asking [the detective] if he
could verify the conversations actually took place or if they were
simply playing phone tag the entire time or if the phone was left
on . . . .” When asked by the court if he did not have this
opportunity at the preliminary hearing, defense counsel
acknowledged, “Yes sir, we did.”5
¶37 This exchange clearly left the court wondering what the
basis of McNeil’s Crawford objection was. As far as the trial court
understood, the defense objection went to the detective’s
testimony. That testimony was obviously testimonial. But it was
also subject to cross‐examination, and the detective, having died in
the interim, was unavailable. Thus, the testimony on its face
5. Because defense counsel never focused, as appellate counsel now
does, on the opportunity to cross‐examine the records custodian,
even assuming that defense counsel never withdrew his objection,
it was not “specific enough to give the trial court notice of the very
error of which counsel complains.” State v. Bryant, 965 P.2d 539, 546
(Utah Ct. App. 1998).
20100695‐CA 13 2013 UT App 134State v. McNeil
satisfied Crawford’s criteria for admissibility. See Crawford, 541 U.S.
at 68. The record demonstrates that, in the court’s mind, this
concluded the matter, especially when defense counsel agreed that
“it’s not hearsay.” But just to make sure, the court then restated its
conclusion that there was no hearsay or Crawford issue, and defense
counsel acquiesced in that conclusion.
¶38 In sum, McNeil bundled his Crawford objection with his
hearsay objection, agreed that the detective’s preliminary hearing
testimony was “not hearsay,” and acquiesced in the trial court’s
characterization of his position as a stipulation that the detective’s
preliminary hearing testimony was not hearsay. As a result, any
Confrontation Clause error was invited. See State v. Bullock, 791
P.2d 155, 158 (Utah 1989).6
C. Best Evidence
¶39 McNeil further argues that by allowing the prosecution to
read the detective’s preliminary hearing testimony into evidence at
trial, the trial court violated the best evidence rule. McNeil asserts
6. We note that phone records are frequently held to be non‐
testimonial. See, e.g., United States v. Yeley‐Davis, 632 F.3d 673, 679
(10th Cir. 2011); United States v. Green, 396 F. App’x 573, 574–75
(11th Cir. 2010); People v. Turner, B235057, 2013 WL 414222, *7 (Cal.
Ct. App. Feb. 4, 2013); People v. Ferguson, No. 307666, 2013 WL
1149540, at *13 (Mich. Ct. App. Mar. 19, 2013) (per curiam); State v.
Brooks, 56 A.3d 1245, 1254 (N.H. 2012). But see State v. Hood, 2012‐
Ohio‐6208, ¶¶ 33–39, 984 N.E.2d 1057 (noting that, while cell phone
records “are generally business records that are not prepared for
litigation and are thus not testimonial,” under the circumstances
there was “no assurance that the records at issue are business
records”). McNeil points to nothing in the record before us, nor are
we aware of any evidence, suggesting that the phone records that
the Cricket Communications representative was apparently
prepared to authenticate were created for the purpose of
investigation or prosecution of a crime.
20100695‐CA 14 2013 UT App 134State v. McNeil
that “if the State wants to use the contents of phone records as
evidence against a defendant, the State needs to use the records
themselves.” Rule 1002 of the Utah Rules of Evidence provides that
“[a]n original writing, recording, or photograph is required in
order to prove its content, except as otherwise provided in these
rules or by other rules adopted by the [Utah Supreme Court] or by
statute.” Utah R. Evid. 1002; see also id. R.1003 to R.1007
(exceptions). McNeil asserts that we may review for preserved
error, plain error, and ineffective assistance of counsel.
¶40 “Rule 103(a) of the Utah Rules of Evidence requires a clear
and definite objection at trial to preserve an evidentiary error for
appeal.” State v. Brown, 853 P.2d 851, 859 (Utah 1992); see also
Winward v. Goodliffe, 2011 UT App 292, ¶¶ 10–11, 263 P.3d 493(holding that a relevance objection did not preserve authentication,
foundation, and hearsay claims). McNeil did not raise a best
evidence objection at trial.
¶41 Even if he had, he cannot show prejudice. Trial error
requires reversal “only if a review of the record persuades the
[appellate] court that without the error there was ‘a reasonable
likelihood of a more favorable result for the defendant.’” State v.
Knight, 734 P.2d 913, 919 (Utah 1987) (quoting State v. Fontana, 680
P.2d 1042, 1048 (Utah 1984)); Utah R. Evid. 103(a); Utah R. Crim. P.
30(a). “A reasonable likelihood of a more favorable outcome exists
when the appellate court’s confidence in the verdict is
undermined.” State v. Whittle, 1999 UT 96, ¶ 17, 989 P.2d 52. As
explained above, McNeil has not established prejudice under this
standard.
¶42 McNeil’s inability to demonstrate prejudice also dooms his
plain error and ineffective assistance of counsel claims. These
theories share a “common standard” of prejudice. State v.
Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92; State v. Verde, 770 P.2d
116, 124 n.15 (Utah 1989). Under either theory, a defendant must
demonstrate that, absent the error or deficient performance, “there
is a reasonable probability of a more favorable result.” State v. King,
20100695‐CA 15 2013 UT App 134State v. McNeil
2010 UT App 396, ¶ 20, 248 P.3d 984 (citation and internal
quotation marks omitted); see also Strickland v. Washington, 466 U.S.
668, 694. This common standard serves as an “analytical shortcut”
to allow reviewing courts to forego analyzing the other prongs of
the ineffective assistance and plain error standards where a
defendant cannot demonstrate prejudice in any event. Litherland,
2000 UT 76, ¶ 31 n.14. We take that course here. As explained
above, McNeil has not demonstrated a reasonable probability of a
more favorable result had his counsel objected at trial. His plain
error and ineffective assistance of counsel claims thus cannot
succeed.
II. Daughter’s Hearsay Statement
¶43 McNeil contends that the trial court erred by allowing Allen
to repeat a statement his daughter made to him while visiting him
in the hospital. The prosecutor asked Allen if, while he was in the
hospital recovering from the assault, he had any idea who his
assailant was. Allen responded with a story about his daughter:
Q: At this point when you’re in the hospital, do
you have any idea who this person was that had
done this to you?
A: No, I didn’t have no idea and I didn’t start
thinking on that direction. I thought about what he
said about my daughter and my son being into him
for $10,000 in drugs and all that and I’m thinking, my
daughter is pure as snow and she walked in and I
asked her what are you into and she said, Dad, if you
don’t know me by now, you never will.
[Defense counsel 1]: Objection, Your Honor, this is
nonresponsive.
[Defense counsel 2]: And hearsay.
20100695‐CA 16 2013 UT App 134State v. McNeil
(Emphasis added.) The prosecutor offered to ask a different
question, but the trial court overruled the objection, stating that
Allen was already “done answering it.” McNeil now argues that
the trial court committed reversible error.
¶44 Hearsay is an out‐of‐court statement offered to prove the
truth of the matter asserted in the statement. Utah R. Evid. 801(c).
“The term hearsay is applied to testimony offered to prove facts of
which the witness has no personal knowledge, but which have
been told to [the witness] by others.” State v. Sibert, 310 P.2d 388,
390 (Utah 1957). Hearsay is generally inadmissible because the
witness “is acting as a conduit to relay” the personal knowledge or
observations of others. Id. at 390.
¶45 The State makes three responses to McNeil’s hearsay claim.
First, it asserts that because defense counsel’s objections were made
after Allen had made the statement, the objections were not timely
and the claim is thus unpreserved. We disagree.
¶46 An objection is timely if it gives the court “an opportunity
to address a claimed error and, if appropriate, correct it.” See State
v. Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. An objection made
immediately after improper testimony is uttered will ordinarily
satisfy this standard. For example, in State v. Harmon, 956 P.2d 262(Utah 1998), counsel objected immediately after the witness had
given the challenged testimony. Our supreme court stated that “the
improper testimony was never admitted as evidence. Rather, the
[trial] court ruled that the [witness’s] comment violated Utah law,
ordered the remark stricken, and gave a curative instruction to the
jury.” Id. at 271. Similarly here, once defense counsel objected, the
trial court could have ruled that the testimony violated Utah law,
ordered the remark stricken, and given a curative instruction if
appropriate. Thus, McNeil’s objection was timely and the claim of
error is preserved.
¶47 Second, the State asserts that the daughter’s statement “was
not hearsay, because it was not offered for the truth of the matter
20100695‐CA 17 2013 UT App 134State v. McNeil
asserted.” See Utah R. Evid. 801(c). Instead, the State claims, her
statement “was offered merely to show [Allen’s] state of mind as
to why he suspected [McNeil].” Again, we disagree.
¶48 Where “‘an out‐of‐court statement is offered simply to prove
it was made, without regard to whether it is true, such testimony
is not proscribed by the hearsay rule.’” State v. Olsen, 860 P.2d 332,
335 (Utah 1993) (quoting State v. Sorensen, 617 P.2d 333, 337 (Utah
1980)). “Testimony of this nature does not violate the hearsay rule
[because] the witness is asserting under oath a fact he personally
knows, that is, that the statement was made, and he is subject to
cross‐examination concerning such fact.” Sibert, 310 P.2d at 391.
Often statements of this type merely reveal people’s motives for
later actions. See, e.g., Barton v. Barton, 2001 UT App 199, ¶ 16, 29
P.3d 13 (out‐of‐court statement offered “as proof of a good faith
reason for not attending [a] hearing”); In re G.Y., 962 P.2d 78, 85
(Utah Ct. App. 1998) (out‐of‐court statement offered because it
illuminated a caseworker’s “treatment plan evaluations,
recommendations, and subsequent actions”); State v. Perez, 924 P.2d
1, 3 (Utah Ct. App. 1996) (in offering an out‐of‐court statement,
defendant “was merely offering an explanation for his actions”).
Here, the State identifies no subsequent actions that Allen took in
response to hearing his daughter’s statement.
¶49 Perhaps more importantly, the prosecutor used the
statement at trial for the truth of the matter asserted. In closing, he
relied on the daughter’s out‐of‐court statement to debunk the
defense theory that the assault was drug‐related:
It’s this idea of a drug connection . . . . [Allen] said
that when Quentin, the defendant’s son, went into
his house he said, Well, your daughter and her
boyfriend are . . . into me for some pretty debt on the
drugs and all I want is cash. . . . In fact, you heard
[Allen] say that he was in the hospital, his daughter
came in and (inaudible) something to the effect that
he asked her what are you into and she said, Dad, if
20100695‐CA 18 2013 UT App 134State v. McNeil
you don’t know me by now, or something to that
effect. [Allen] testified that he has never done drugs,
testified that his daughter . . . to the best of his
knowledge had never done drugs and his now son‐
in‐law . . . had never done drugs.
Because the relevance of the daughter’s statement depended on its
truth, and the prosecutor in fact used the statement for its truth, we
agree with McNeil that the statement was hearsay. As the State
does not contend that any hearsay exception applies, admission of
the statement was error.
¶50 The State’s third counter‐argument is that McNeil has not
shown harm. It maintains that the daughter’s statement “was
ambiguous in that she did not directly deny being involved in
drugs” and that, because the “ambiguous response was just as
consistent with Defendant’s trial theory as it was the State’s,
Defendant fails to show any unfair prejudice.” McNeil asserts that
the statement was prejudicial because it “was inconsistent with a
defense theory of the case.” On this point, we agree with the State.
¶51 “We only reverse a verdict where the lower court committed
harmful error.” State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991).
“An error is harmful if there is a reasonable likelihood that the
error affected the outcome in the trial court.” Id. (citation and
internal quotation marks omitted).
¶52 Whether an error is harmful in a particular case “depends
upon a host of factors, all readily accessible to reviewing courts.”
Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986). These include “‘the
importance of the witness’s testimony in the prosecution’s case,
whether the testimony was cumulative, the presence or absence of
evidence corroborating or contradicting the testimony of the
witness on material points, the extent of cross‐examination
otherwise permitted, and, of course, the overall strength of the
prosecution’s case.’” State v. Hackford, 737 P.2d 200, 205 (Utah 1987)
(quoting Van Arsdall, 475 U.S. at 684). The reviewing court may also
20100695‐CA 19 2013 UT App 134State v. McNeil
consider the degree of emphasis the prosecution placed on the
evidence in presenting its case. See State v. Valdez, 748 P.2d 1050,
1055 (Utah 1987) (concluding that “any arguable error was
harmless” in part due to “the lack of emphasis” placed on the
evidence by the State).
¶53 Here, the hearsay statement was not central to the State’s
case. The daughter’s out‐of‐court statement was, at most, weak
evidence of guilt because it was ambiguous. When a daughter is
asked point blank by her father if she is involved with drugs, the
response, “[I]f you don’t know me by now, you never will,” could
be read as an implied denial coupled with a gentle daughterly
reproof for the father’s having asked the question. But it could also
be read as an evasion in a circumstance calling for a categorical
denial and thus by implication almost an admission. As noted
above, the prosecutor adopted the former reading in closing. But
defense counsel adopted the latter. He stated flatly that there was
“no evidence” that the daughter and her husband did not do drugs;
noted that neither testified, “No, we don’t do drugs”; and observed
that Allen’s daughter and her husband were conspicuously absent
from trial. Thus, while the testimony did weigh against McNeil at
trial, its weight was slight.
¶54 Also, the hearsay statement was cumulative of other,
properly admitted—though similarly inconclusive—testimony. For
example, Allen testified that he had no knowledge that his
daughter, a nurse, was “doing any drugs.”
¶55 Given the statement’s ambiguity, the prosecutor did not
emphasize it. Although his closing arguments consumed over
twenty‐five transcript pages, he referred to the hearsay statement
only once: “In fact, you heard [Allen] say that he was in the
hospital, his daughter came in and [said] something to the effect
that he asked her what are you into and she said, Dad, if you don’t
know me by now, or something to that effect.”
20100695‐CA 20 2013 UT App 134State v. McNeil
¶56 Finally, the remaining evidence against McNeil, though
circumstantial, strongly tied him to the assault. The jury heard
evidence that McNeil was angry at Allen over issues at work; that
Quentin told investigators that McNeil told him to attack Allen;
that during the attack Quentin stated that “we” know where you
do everything and backed up this taunt with a wealth of
information about Allen’s personal life; that this included tidbits
that Allen had shared with McNeil, such as that he did not trust
banks; that Quentin and McNeil spoke on the phone multiple times
immediately before and after the assault; that McNeil lied to police
about these conversations until the detective mentioned the phone
records; that Allen had no idea who Quentin was before the attack;
and that McNeil showed a coworker a knife similar to that used in
the assault.7
¶57 Accordingly, in reviewing the factors relevant to a
determination of prejudice, we conclude that, while admitting the
hearsay statement was error, McNeil has not shown a “reasonable
likelihood that the error affected the outcome in the trial court.” See
State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991) (citation and
internal quotation marks omitted).
III. Prosecutor’s Statement
¶58 McNeil contends that certain testimony of the prosecutor in
Quentin’s case was admitted in violation of the hearsay rule, the
Confrontation Clause, and rule 608(a) of the Utah Rules of
Evidence.
¶59 Quentin originally told police that he had attacked Allen at
McNeil’s behest. But when called as a witness at McNeil’s
preliminary hearing, Quentin told a different story. He testified
that he had lied to investigators to get a better sentence and that he
had actually acted alone. He testified that he had heard threats
7. This summary does not include the testimony challenged in the
next point.
20100695‐CA 21 2013 UT App 134State v. McNeil
against his father, McNeil, on a tape and that he went to Allen’s
home to talk to him “but it turned ugly” and “I ended up hurting
him.” Pursuant to rule 804 of the Utah Rules of Evidence, the trial
court allowed these portions of Quentin’s preliminary hearing
testimony to be read to the jury at trial.
¶60 Crandall, the prosecutor in Quentin’s case, also testified. She
testified to an agreement that if Quentin would testify truthfully,
she would write a letter to the Board of Pardons to that effect. But,
she added, because he did not, she did not write the letter:
A: Quentin came forward and said he wanted to
say what had happened, he wanted to tell the truth.
I said that if he did do that in court and he said what
really happened of how the whole incident occurred,
if he told the complete truth then I would write a
letter to the Board of Pardons indicating that he had
told the whole truth of what happened and taken
responsibility for his role in it.
Q: And did you ever write that letter?
A: I did not because he did not do that.
McNeil did not object to this testimony at trial.
¶61 On appeal, McNeil asserts that this testimony was barred on
three grounds. First, he contends that it violated the hearsay rule,
because “Quentin was not available for cross‐examination
regarding this statement and thus it was not admissible under rule
801(d)(1)(A).” See Utah R. Evid. 801(d)(1)(A). Second, he contends
that the testimony was barred by the Confrontation Clause,
because “when the State seeks to introduce a testimonial statement
against a defendant and the witness is unavailable, there must be
a prior opportunity for cross‐examination about that statement.”
(Citing Crawford v. Washington, 541 U.S. 36, 68 (2004)). Finally,
McNeil contends that this testimony was admitted in violation of
20100695‐CA 22 2013 UT App 134State v. McNeil
rule 608 of the Utah Rules of Evidence, which “permits testimony
concerning a witness’s general character or reputation for
truthfulness or untruthfulness but prohibits any testimony as to a
witness’s truthfulness on a particular occasion.” State v. Rimmasch,
775 P.2d 388, 391 (Utah 1989).
¶62 McNeil properly acknowledges that these claims of error are
not preserved. He therefore maintains that the trial court
committed plain error in admitting the testimony and that his trial
counsel rendered ineffective assistance of counsel in not objecting
to it.
¶63 As noted above, plain error claims and ineffective assistance
of counsel claims share a “common standard” of prejudice. State v.
Litherland, 2000 UT 76, ¶ 31 n.14, 12 P.3d 92; State v. Verde, 770 P.2d
116, 124 n.15 (Utah 1989). Under either theory, a defendant must
demonstrate that, absent the error or deficient performance, “there
is a reasonable probability of a more favorable result.” State v. King,
2010 UT App 396, ¶ 20, 248 P.3d 984 (citation and internal
quotation marks omitted); see also Strickland v. Washington, 466 U.S.
668, 694 (1984).
¶64 Again, factors relevant to a determination of prejudice
include the relative importance of the testimony, whether the
testimony was cumulative, the presence or absence of
corroborating or contradicting evidence, the extent of
cross‐examination, the degree of emphasis placed on the evidence
by the prosecution, and the overall strength of the prosecution’s
case. Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); State v. Valdez,
748 P.2d 1050, 1055 (Utah 1987); State v. Hackford, 737 P.2d 200, 205
(Utah 1987).
¶65 McNeil asserts that Crandall’s testimony was prejudicial
“because it bolstered the credibility of Quentin’s statement
implicating Mr. McNeil and attacked the statement that exonerated
him,” and thus, in a case that hinged on credibility, the prosecutor’s
testimony—“with all the weight and respectability of a State
20100695‐CA 23 2013 UT App 134State v. McNeil
prosecutor—destroyed the credibility of Quentin’s preliminary
hearing exoneration of Mr. McNeil.” McNeil maintains, in effect,
that the testimony was central to the prosecution’s case because it
addressed the linchpin of their case—whether Quentin acted at the
behest of McNeil.
¶66 However, the testimony was also cumulative. The jury knew
that Quentin had originally implicated McNeil in his statement to
investigators, then recanted that statement in the preliminary
hearing. These are the crucial facts. That a prosecutor did not write
a letter to the Board of Pardons commending Quentin for having
told the truth when he recanted his earlier statement to police adds
little. This is not a case where the prosecutor’s statements might
“convey the impression that evidence not presented to the jury, but
known to the prosecutor, supports the charges against the
defendant.” United States v. Young, 470 U.S. 1, 18 (1985) (referring
to the prosecutor’s vouching for a witness in closing argument).
Here, the jury was well aware of the evidence—including
Quentin’s own statement to investigators and the telephone
records showing his communications with McNeil before and after
the attack—supporting the prosecutor’s decision.
¶67 Neither trial counsel emphasized Crandall’s testimony in
closing. Defense counsel never mentioned the letter at all. The
prosecutor touched on the fact that Crandall had agreed to write a
letter but never mentioned the point at issue here—that she refused
to write it:
You heard . . . his testimony at the . . . preliminary
hearing for his father and he admitted that he told
[two investigators] and he said, I told them pretty
much the same thing, that I did it, there was some
big issue with . . . my dad and my dad told me to do
it and all this.
You also heard evidence from Kim
Crandall . . . about whether or not any deals or
20100695‐CA 24 2013 UT App 134State v. McNeil
promises had been made to him and the response
was essentially, No there wasn’t. I think Kim
Crandall had agreed that she would write a letter to
the Board of Pardons.
The prosecutor’s coyness concerning the unsent letter is
understandable; it is not obvious which direction it cuts. As the
State argues on appeal, the prosecutor’s refusal to commend
Quentin for his recantation could be seen as having “added
credibility to Quentin’s recantation . . . where it caused
detriment—not a benefit—to Quentin.”
¶68 Finally, as summarized above, the remaining evidence
against McNeil, though circumstantial, strongly tied him to the
assault.
¶69 In sum, assuming without deciding that the trial court
obviously erred in not stepping in to exclude the testimony and
that any objectively reasonable counsel would have successfully
objected to the testimony, McNeil has nevertheless failed to show
a “reasonable likelihood that the error affected the outcome in the
trial court.” See State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991)
(citation and internal quotation marks omitted).
IV. Cumulative Error
¶70 McNeil asks us to reverse his conviction under the
cumulative error doctrine. “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.
Dunn, 850 P.2d 1201, 1229 (Utah 1993) (omission in original)
(quoting Whitehead v. American Motors Sales Corp., 801 P.2d 920, 928
(Utah 1990)). “[W]e consider all the identified errors, as well as any
errors we assume may have occurred.” Id.
¶71 Here, we have discussed numerous claims of error
presented by McNeil. We have determined that the admission of
20100695‐CA 25 2013 UT App 134State v. McNeil
one hearsay statement was error, and we have assumed without
deciding that admission of another was error. For the same reasons
that neither statement individually was likely to have affected the
outcome of the trial, we conclude that the admission of the
statements in combination was similarly not likely to have affected
the outcome of the trial. See id. (rejecting a cumulative error claim
despite having assumed arguendo that several errors occurred at
trial).
CONCLUSION
¶72 With respect to the admission at trial of the preliminary
hearing testimony concerning telephone calls, we conclude that
McNeil stipulated that the testimony was not hearsay and thus
invited any hearsay error. And because McNeil has not shown that
the admission of this testimony prejudiced the outcome of the trial,
his remaining claims predicated on the admission of this testimony
also fail. With respect to Allen’s hearsay recitation of his daughter’s
statement, we conclude that its admission, though erroneous, was
harmless. With respect to the testimony from Crandall explaining
why she did not write Quentin a letter of commendation, we
conclude that, even assuming admission of this testimony was
erroneous, the error was harmless. Finally, even cumulating the
actual and assumed errors, our confidence in the jury’s verdict is
not undermined. Accordingly, the judgment of the trial court is
affirmed.
20100695‐CA 26 2013 UT App 134