State v. Doutre

2014 UT App 192_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH ,
Plaintiff and Appellee,
v.
CHRISTOPHER B. DOUTRE ,
Defendant and Appellant.
Opinion
No. 20120944-CA
Filed August 14, 2014
Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 121900279
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes, Daniel W. Boyer, and Michelle I.
Young, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which SENIOR
JUDGES RUSSELL W. BENCH and PAMELA T. GREENWOOD
concurred.1
ORME, Judge:
¶1 Defendant Christopher B. Doutre was convicted of
attempted kidnapping, a first degree felony. He appeals that
conviction, primarily arguing that the trial court improperly
discouraged him from attending a jury view and that his trial
1. The Honorable Russell W. Bench and the Honorable Pamela T.
Greenwood, Senior Judges, sat by special assignment as authorized
by law. See generally Utah Code Jud. Admin. R. 11-201(6).
State v. Doutre
counsel was ineffective for failing to object to the testimony of the
State’s expert witness. We reverse and remand.
BACKGROUND2
¶2 Making use of a few inches of late January snow before it
melted, three girls went sledding on a small hill in an undeveloped
lot in their Ogden neighborhood. One girl separated from the other
two girls and began walking toward a nearby house where her
mother was visiting with a friend. The girl testified that at some
point she fell through the ice that had formed at the bottom of the
hill and got stuck in the mud. She recounted that a man she had
never met approached her from behind and grabbed her hand. She
testified that he told her that her mother was by his truck, but she
knew her mother was in the nearby house.
¶3 The other girls began yelling, and, according to their
testimonies, the man fled. Based on the girls’ descriptions of the
truck and the clothes the man was wearing, police were able to find
and arrest Defendant at his nearby apartment.
¶4 Defendant did not testify at trial, but Defendant’s girlfriend
testified that Defendant told her that he was leaving the apartment
to get cigarettes. She told police that Defendant said that he saw a
girl fall and walked over to see if she needed help. A police officer
also testified that Defendant stated that he went out of his
apartment for a smoke and talked to the girl, but that he only told
her that her friends were calling her and that she should go with
them.
2. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence only
as necessary to understand issues raised on appeal.” State v. Bluff,
2002 UT 66, ¶ 2, 52 P.3d 1210 (citations and internal quotation
marks omitted).
20120944-CA 2 2014 UT App 192State v. Doutre
¶5 During trial, the State requested that the jury be allowed to
visit the sledding area in person. Defendant did not object to the
proposed jury view, but jail policy required that law enforcement
officers would need to restrain and escort Defendant during the
visit. Both the trial court and Defendant’s trial counsel were
concerned about the prejudicial effect this might have in the minds
of the jurors, and they engaged in an extended discussion about
how to properly conduct the jury view. During this discussion, the
trial court asked Defendant’s counsel why she wanted him to
attend the jury view at all, considering the high risk of unfair
prejudice. She replied, “I don’t want, but he may. That’s his
choice.” Defendant then volunteered, “I won’t go, Your Honor.”
The trial court did not immediately accept Defendant’s offer,
emphasizing that it did not want to “force [Defendant] one way or
the other,” and encouraged Defendant to discuss the matter with
his attorney. Defendant ultimately did not attend the jury view.
Defendant’s counsel was present during the jury view and did not
raise any objections to the way in which it was conducted.
¶6 Back in the courtroom, the jury heard from several
witnesses, including Detective Glenn Buss, one of the investigating
police officers. The jury had already met Buss because he was
appointed by the court to guide the jury during the jury view
earlier that day. In addition to testifying about his investigation in
general, the State used Buss as an expert witness to testify about
what appeared to be evidence of footprints left in the snow. Buss
claimed to have found footprints in the melting snow five days
after the attempted kidnapping that he identified in court as
coming from an adult wearing shoes and running—or at least
striding—down the hill. He agreed with the State that the
footprints “were consistent” with the girls’ story.
¶7 After hearing all the evidence, the jury convicted Defendant
of attempted kidnapping. He appeals.
20120944-CA 3 2014 UT App 192State v. Doutre
ISSUES AND STANDARDS OF REVIEW
¶8 Defendant first argues that he was unlawfully deprived of
his right to attend the jury view during his trial. Defendant
contends that his trial counsel was ineffective for failing to object
to conducting the jury view in Defendant’s absence and that the
trial court plainly erred in its handling of the matter. A claim of
ineffective assistance of counsel raised for the first time on appeal
presents a question of law. State v. Alfatlawi, 2006 UT App 511, ¶ 11,
153 P.3d 804. Normally, a claim of plain error requires a showing
that “(i) [a]n 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).
¶9 Defendant also asserts that his trial counsel was ineffective
for failing to object to the State’s expert witness on the grounds that
the expert lacked proper qualifications and that his testimony
violated rule 702 of the Utah Rules of Evidence. Whether
Defendant’s counsel was ineffective in this regard presents a
question of law. See Alfatlawi, 2006 UT App 511, ¶ 11.
ANALYSIS
I. Jury View
¶10 While they may be rare, jury views of crime scenes are
explicitly authorized under the Utah Rules of Criminal Procedure.
See Utah R. Crim. P. 17(j) (“When in the opinion of the court it is
proper for the jury to view the place in which the offense is alleged
to have been committed . . . it may order them to be conducted . . .
to the place, which shall be shown to them by some person
appointed by the court for that purpose.”). Generally, a criminal
defendant has a constitutional right to be present during all phases
of his or her trial, see Utah Const. art. I, § 12; State v. Hubbard, 2002
UT 45, ¶ 33, 48 P.3d 953, although it is not clear whether a simple
jury view, where no evidence is admitted and no testimony is
20120944-CA 4 2014 UT App 192State v. Doutre
given, merits the same protections, see State v. Scott, 541 P.2d 810,
810 (Utah 1975) (noting that jury views are discretionary and that
nothing in Utah law “gives the defendant or counsel any right or
even privilege to be included in the” jury view). See also Snyder v.
Massachusetts, 291 U.S. 97, 108–22 (1934) (holding that the
“Fourteenth Amendment does not assure to a defendant the
privilege to be present” at a jury view where no words are spoken
because “[t]here is nothing he could do if he were there, and almost
nothing he could gain,” but in all other circumstances “the justice
or injustice of [excluding the defendant] must be determined in the
light of the whole record”), overruled in part on other grounds by
Malloy v. Hogan, 378 U.S. 1 (1964). But even assuming, arguendo,
that Defendant did have a constitutional right to attend the jury’s
visit to the crime scene, this right can be validly waived. “[F]ailure
by a criminal defendant to invoke his right to be present . . .
constitutes a valid waiver of that right.” United States v. Gagnon, 470
U.S. 522, 529 (1985) (dealing with a defendant’s right to be present
pursuant to rule 43 of the Federal Rules of Criminal Procedure).
The same principle applies here, and we conclude that whatever
right Defendant may have had to attend the jury view was waived
when he voluntarily stated that he wished to stay behind.3
¶11 Defendant knew the jury view was going to take place. The
trial court and trial counsel discussed several options to ensure that
3. The State argues that this was also invited error on the part of
Defendant’s trial counsel. See generally State v. Dunn, 850 P.2d 1201,
1220 (Utah 1993) (explaining that the invited error doctrine
prevents a party from taking “advantage of an error committed at
trial when that party led the trial court into committing the error”).
If there was any error involved with the jury view itself, then it is
quite possible that trial counsel invited it by agreeing to the
conditions of the jury view, attending the jury view, and then
opting not to object to anything that occurred during the jury view.
However, because we determine that Defendant waived whatever
rights he may have had in that regard, we do not address the issue
of invited error.
20120944-CA 5 2014 UT App 192State v. Doutre
Defendant would be able to attend the jury view in a way that
minimized, as much as possible, any prejudice. Defendant not only
failed to assert any right to attend the jury view, but he
affirmatively volunteered to stay behind. Under the circumstances,
we must conclude that his waiver was knowing and voluntary.
Thus, he cannot now claim plain error on the part of the trial court
for its acceptance of his valid waiver.
¶12 Furthermore, we conclude that Defendant’s trial counsel
was not deficient for failing to insist, against her client’s
clearly stated wishes, that he attend the jury view. To demonstrate
ineffective assistance of counsel, Defendant must show that his trial
counsel’s “representation fell below an objective standard of
reasonableness,” see Strickland v. Washington, 466 U.S. 668, 688
(1984), and that he was prejudiced thereby, see id. at 687. If the
“defendant has failed to prove that his counsel had no conceivable
tactical basis for his actions,” then we will not consider trial
counsel’s representation to be constitutionally deficient. See State v.
Clark, 2004 UT 25, ¶ 7, 89 P.3d 162 (internal quotation marks
omitted).
¶13 In this case, we can readily conceive of tactical and otherwise
reasonable bases for trial counsel’s decisions. To begin with, trial
counsel may have wisely concluded that the danger of the jury
catching even a glimpse of Defendant being shackled and escorted
like an already-convicted prisoner overwhelmed the scant benefit
of his being present but silent at the jury view. Even if there was
some imaginable way for Defendant to attend the jury view
without visible restraints, Defendant’s trial counsel may also have
been worried about how his body language at the scene could be
construed or misconstrued by attentive jurors. And she may well
have felt that she would be better able to keep an eye on the jurors
and their police escort if she was not also monitoring Defendant
and fielding his questions or comments. Finally, trial counsel, like
the trial court, may have accepted Defendant’s knowing and
voluntary waiver as sincere and sensible and therefore elected not
to raise an objection out of a desire to “advance the legitimate
20120944-CA 6 2014 UT App 192State v. Doutre
interests of” her client. See Utah Standards of Professionalism &
Civility 1. Because there is a conceivable tactical basis for trial
counsel’s actions, we conclude that she was not ineffective in this
regard.
II. Expert Testimony
¶14 Defendant next points to a number of problems with
Detective Buss testifying as an expert witness and asserts that his
trial counsel’s failure to properly object constituted ineffective
assistance of counsel. Again, to prevail on a claim of ineffective
assistance of counsel, a defendant must show, first, that trial
counsel’s “representation fell below an objective standard of
reasonableness,” Strickland v. Washington, 466 U.S. 668, 688 (1984),
and second, that the defendant was prejudiced thereby, id. at 687.
We conclude that Defendant’s trial counsel was ineffective in
failing to object to Buss’s testimony and that this failure prejudiced
Defendant.
A. Ineffectiveness
¶15 On appeal, Defendant directs our attention to a number of
problems with Detective Buss’s testimony: (1) Buss participated in
the jury view as the jury’s escort and narrator before being called
as a witness,4 (2) the State did not provide the required prior notice
that Buss was going to give expert testimony, (3) Buss was not
qualified to give expert testimony and his methods were unreliable,
and (4) Buss’s testimony improperly vouched for the credibility of
other witnesses.
¶16 First, it was significant that Buss was a witness and that on
the day he testified, he also served as the court-appointed guide for
4. While Defendant primarily challenges this aspect of the trial as
part of his comprehensive attack on the jury view, it more logically
fits as part of his challenge to trial counsel’s handling of Buss’s
testimony.
20120944-CA 7 2014 UT App 192State v. Doutre
the jury view. While we have already determined that Defendant
waived his right to attend the jury view and that the jury view
appears to have been conducted in an otherwise unobjectionable
manner, trial counsel should have been sensitive to the impression
this unusual situation might have made on the jury. Even when a
defendant has waived his right to attend a jury view, there should
not be “permitted any irregularity . . . [that] might tend to influence
the trier of fact.” Jones v. Commonwealth, 317 S.E.2d 482, 485 (Va.
1984).5 This certainly seems to be such an irregularity, particularly
because the trial court told the jury that “[n]one of the witnesses
are going to be” at the jury view. Buss was, however, permitted to
be at the jury view, and was the only witness so privileged.
¶17 The State asked Buss during direct examination, “[I]s
visibility different today than it was on February 1st?” Buss was
allowed to answer this question by referencing how things
appeared at the scene earlier that day during the jury view. He
then explained the location of events that supported the State’s
theory of the case, even though he had served as the court-
appointed guide who was supposed to impartially point out
landmarks for the benefit of the jurors during the jury view. All of
this had the probable effect of bolstering his credibility.
Considering the potential for confusion that his dual roles
presented, trial counsel should have objected to Buss’s testimony
on those grounds.6
¶18 Second, the State failed to give Defendant notice that it was
going to call an expert witness, as required by Utah Code section
77-17-13. See Utah Code Ann. § 77-17-13(1)(a) (LexisNexis 2012)
5. We cite Jones v. Commonwealth, 317 S.E.2d 482 (Va. 1984), only
because it articulates a common-sense principle and not because we
have determined that trial counsel must be aware of, and adhere to,
the jurisprudence of other jurisdictions.
6. Alternatively, trial counsel should have objected to Buss’s
serving as the jury’s escort and narrator during the jury view.
20120944-CA 8 2014 UT App 192State v. Doutre
(requiring any party intending to use an expert witness in a felony
case to give “notice to the opposing party as soon as practicable but
not less than 30 days before trial or 10 days before the hearing”).
The State argues that because Buss is an employee of a political
subdivision of the state, it should not be held to the thirty-day
notice requirement in subsection (1)(a), but instead should be
required only to give “reasonable notice” and make its witness
“available to cooperatively consult” with Defendant. See id. § 77-17-
13(6). The notice exception for an expert witness who is a state
employee, contained in subsection (6), most likely refers to an
expert witness who is testifying in his or her official role as a
government employee and not merely a government employee
who also happens to be an expert on a subject outside the scope of
his or her official work, as is the case here.7 But even if subsection
(6) applies to Buss, such that the thirty-day notice requirement does
not apply, the State failed to give even reasonable notice and did
not make Buss available to Defendant to cooperatively consult, as
is required by the rule. In fact, the State did not give Defendant a
witness list until three business days before the trial. This was not
a reasonable amount of time for Defendant to cooperatively consult
with Buss or to call a rebuttal expert witness. Trial counsel should
have objected to Buss’s testimony for lack of notice and asked for
a continuance or another appropriate remedy. See id. § 77-17-13(4).
¶19 Third, Buss’s testimony did not meet the threshold
requirements for expert testimony under rule 702 of the Utah Rules
of Evidence. Trial judges are required by rule 702 to “screen out
unreliable expert testimony.” Utah R. Evid. 702 advisory committee
note. Specialized knowledge, such as tracking, can be the basis of
7. Buss’s work as an Ogden City police detective entailed
investigation primarily of cases involving domestic violence or
children. His expertise in tracking was not acquired in the
discharge of these responsibilities but as a volunteer member of the
Utah County Sheriff’s Office Search and Rescue team. Ogden, of
course, is in Weber County, not Utah County.
20120944-CA 9 2014 UT App 192State v. Doutre
expert testimony only if there is a threshold showing that the
principles or methods that are underlying the testimony (1) are
reliable, (2) are based on sufficient facts, and (3) have been reliably
applied to the facts. See Utah R. Evid. 702(b). In this case, Buss
testified that he was a four-year veteran of the Utah County
Sheriff’s Office Search and Rescue team and had training in
tracking people. While he did not say that he had actual experience
with tracking people, the trial court seems, at first blush, to have
concluded that Buss had made a “basic foundational showing” of
reliability for his testimony to be admissible. See id. R. 702 advisory
committee note. However, when Buss began to testify, it should
have been immediately apparent to trial counsel that the principles
and methods underlying his testimony were not (1) reliable,
(2) based on sufficient facts or data, or (3) reliably applied to the
facts of the case. See id. R. 702(b).
¶20 Buss testified that he visited the scene five days after the
alleged crime and identified marks in the snow as footprints. He
said the footprints were several days old, that they were made by
an adult going downhill, and that it was something more than a
“casual walk.” During cross-examination, Buss insisted that the
footprints could not have been made by a large child wearing
boots—as opposed to an adult wearing tennis shoes as he
claimed—because he “compared it relative to [his] size shoe and
the pattern was not a sliding pattern.” This testimony seems to
push the limits of Buss’s questionable qualification as a tracking
expert. Additionally, the fact that Buss did not examine the
unsecured scene until several days later, after others could have
walked through the snow, and after the sun had melted the snow
completely from some areas of the hill, draws into question the
sufficiency of the facts on which Buss based his opinion and the
reliability of his methods as applied to those facts.
¶21 The State argues that it was a reasonable trial strategy to
address these rule 702 defects during cross-examination and notes
that the United States Supreme Court has held that in “many
instances cross-examination will be sufficient to expose defects in
20120944-CA 10 2014 UT App 192State v. Doutre
an expert’s presentation.” Harrington v. Richter, 131 S. Ct. 770, 791
(2011). While it is true that exposing the defects in an expert’s
testimony during cross-examination can be a sound strategy in
some cases, we cannot conceive of a sound basis for failing to object
on rule 702 grounds in this case when it should have been obvious,
before the bulk of Buss’s testimony was given, that it lacked the
threshold reliability required by rule 702. Accordingly, even if the
trial court would not have sustained the objection on notice
grounds that diligent trial counsel should have interposed, trial
counsel was remiss for not objecting to Buss’s testimony on the
grounds of unreliability.
¶22 Fourth, and finally, Defendant claims that Buss improperly
vouched for the veracity of the girls’ testimony and that his trial
counsel was ineffective for failing to object to that aspect of his
testimony. In general, rule 608 of the Utah Rules of Evidence does
not allow a witness to bolster the testimony of another witness
based on specific incidents or to offer general opinions about
credibility when the other witness’s reputation for truthfulness has
not been attacked. See Utah R. Evid. 608. Indeed, “insofar as the
expert testimony may be characterized as ‘bolstering’ or ‘vouching’
for the testimony of the child witness’s credibility regarding a
particular event, it [is] clearly impermissible.” State v. Hoyt, 806
P.2d 204, 211 (Utah Ct. App. 1991). In the instant case, the State
asked Buss, “[W]as the terrain that you observed and the prints
that you observed consistent with what was being told to you by
the girls?” He responded, “They were.” While Buss could testify
about his analysis of the footprint evidence and his investigation,
the final inferential step of determining the consistency of the
evidence presented with the testimony of particular witnesses is
rightly the province of the jury. This is an important distinction
“designed to prevent the fact-finder from exchanging common
sense for reliance on the imprimatur of a titled and learned expert
witness.” Id.
¶23 We can conceive, however, of a reasonable tactical basis for
trial counsel’s decision to forgo an objection to the State’s question.
20120944-CA 11 2014 UT App 192State v. Doutre
See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162. For instance, trial
counsel may have considered Buss’s intrusion into the jury’s
domain as minimal and ultimately harmless considering the
entirety of his testimony. Therefore, she may have wisely surmised
that objecting to the question might only underline the assertion
instead of dispelling it in the minds of the jurors. See State v. Ott,
2010 UT 1, ¶ 39, 247 P.3d 354 (“[A]voidance of drawing the jury’s
attention to certain facts or over-emphasizing aspects of the facts is
a well recognized trial strategy.”). Thus, we cannot conclude that
Defendant’s trial counsel was ineffective for failing to object to this
part of Buss’s testimony.
¶24 Given the foregoing problems with Buss’s testimony, trial
counsel should have raised any available non-futile objections or
pursued some other reasonable alternative to keep the evidence
out. Instead, trial counsel failed to object to the irregularity of Buss
acting as both a guide during the jury view and the State’s witness
on the same day of trial. Trial counsel failed to object to the State’s
lack of notice of its intent to call Buss as an expert witness and
thereby lost the opportunity to prepare for his testimony. And,
perhaps because of the lack of adequate preparation to meet Buss’s
expert testimony, trial counsel failed to grasp the problems with
the testimony and to object to it as unreliable under rule 702. If
clearly inadmissable evidence has no conceivable benefit to a
defendant, the failure to object to it on nonfrivolous grounds
cannot ordinarily be considered a reasonable trial strategy. See id.
¶ 38. We conclude that, with the one exception noted, these
objections would have been well taken, and we can conceive of no
reasonable alternative to raising them. We therefore conclude that
trial counsel’s performance was deficient in this regard.
B. Prejudice
¶25 Next, we consider whether trial counsel’s ineffective
assistance harmed Defendant in a way that undermines our
confidence in the verdict. See Strickland v. Washington, 466 U.S. 668,
687 (1984). Defendant argues that the jury’s verdict hinged on
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whether the jury believed the girls’ accounts—that Defendant ran
down the hill, attempted to kidnap the girl, and then ran away in
a different direction—or Defendant’s explanation—that he saw a
girl fall in the mud, walked a few feet over to help her, and then
left. Indeed, the photographs of the footprints and Buss’s
interpretation of those footprints were the only nonwitness
evidence presented at trial that supported the State’s version of the
story over Defendant’s version. And this was a significant aspect
of the State’s case.
¶26 During closing arguments, the State emphasized the
importance of the footprint evidence. Referring to one of the
photographs Buss took, the prosecutor said, “[A]s we see in [the
photograph] that’s been shown to you previously, he ran as they
approached. He ran away . . . and escaped that way.” The State also
acknowledged some of the problems with the girls’ accounts.
“When we’re dealing with young girls, it’s important—or young
kids of any age, it’s important . . . that you look at everything if
what they’re telling you makes sense. And you look for consistency
in the statements.” Defendant’s trial counsel, during her closing
argument, pointed out a number of inconsistencies in the girls’
stories. On rebuttal, the State emphasized the importance of Buss’s
testimony as it related to the credibility of the girls. “[A]gain, when
you deal with little kids that’s not going to be the most reliable. So
what did [Buss] do? He took them to the scene . . . . That’s how we
get corroboration . . . .” The State continued:
You heard about [Buss] testifying about those
footprints. I think that is critical because the
footprints go one way. They don’t return, and that
again corroborates what the girls said; that he didn’t
go back the same way that he came from. There’s one
set of adult-sized footprints, just coincidently
through the same area that the girls said he came.
What the officer is looking for is corroboration. . . .
And you heard him say that yes, everything that he
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observed at the scene was consistent with what the
girls told him.
And he also said that visibility was much
different . . . than it is today. You saw the pictures
where you could see people at the top of the hill
because there are no leaves. Today I agree the
visibility is not good at all because of the leaves, but
you heard Officer Buss say it was much different,
and you see evidence of that in those
photographs. . . .
When we put it into context, these girls were
consistent. . . . [Y]ou heard from all of them, and you
heard corroboration from Officer Buss that he ran
away from this.
We have no better indicator of guilt than
someone’s actions after they’re confronted . . . .
¶27 Based on the foregoing, we readily conclude that the State
relied heavily on Buss’s testimony. If Defendant’s trial counsel had
objected to its admissibility, or at least moved for a continuance to
better prepare to refute the testimony, then there would have been
a reasonable likelihood of a more favorable outcome for Defendant.
CONCLUSION
¶28 Defendant waived whatever right he may have had to
attend the jury view when he volunteered in open court to stay
behind. His trial counsel was not ineffective for respecting her
client’s legitimate wishes in this regard, nor was the trial court in
error for accepting Defendant’s waiver.
¶29 Buss’s expert testimony and trial counsel’s response to that
testimony were problematic for a number of reasons. Trial counsel
was deficient for failing to object to the irregularity of Buss acting
both as the court-appointed guide during the jury view and as a
witness for the State once back at the courthouse. Trial counsel was
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also deficient for failing to object to the State’s failure to give
reasonable prior notice of Buss’s expert testimony. And trial
counsel should have objected to Buss’s testimony as unreliable
under rule 702 of the Utah Rules of Evidence. Because the State
relied so heavily on Buss’s testimony, we conclude that trial
counsel’s deficient performance harmed Defendant, and our
confidence in the verdict is undermined. Accordingly, we reverse
Defendant’s conviction and remand for a new trial or such other
proceedings as may now be appropriate.
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