2013 UT App 72
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JERRY LEE GRAHAM,
Defendant and Appellant.
Opinion
No. 20100828‐CA
Filed March 21, 2013
Second District, Ogden Department
The Honorable Scott M. Hadley
No. 081901564
Randall W. Richards, Attorney for Appellant
John E. Swallow and Brett J. DelPorto, Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion,
in which JUDGES WILLIAM A. THORNE JR. and
MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Jerry Lee Graham appeals his conviction for
escape, a third degree felony, see Utah Code Ann. § 76‐8‐309
(LexisNexis 2012),1 claiming that his trial counsel provided
1. Because the provisions in effect at the relevant time do not differ
materially from the statutory provisions now in effect, we cite the
current version of the Utah Code as a convenience to the reader.
State v. Graham
ineffective assistance and that the trial court committed plain error.
We affirm.
BACKGROUND
¶2 From June to July 2008, Defendant served part of a 45‐day
jail sentence on a charge originating in the Ogden City Justice
Court. During his incarceration, Defendant was granted work
release privileges that allowed him to leave the jail during daytime
hours to perform work so long as he returned to the jail by a
specified time each night.
¶3 Despite having been sentenced to forty‐five days in jail,
Defendant became convinced that he was entitled to be released
after serving less than thirty days. Through his own formulation of
subtracting his “two‐for‐one good time” served from his original
sentence and then proportionally reducing the remaining days to
be served based on his partial payment of an outstanding fine,
Defendant arrived at the conclusion that he was supposed to be
released from custody on July 4, 2008. Defendant brought his
personal calculations to the attention of jail personnel on July 3 and
inquired about being released the following day. The jail did not
have any records corroborating Defendant’s claim, and Defendant
was consequently informed that nothing could or would be done
until a sufficient investigation into the matter could be undertaken
after the Fourth of July holiday.2
¶4 The next day, July 4, 2008, Defendant was allowed to leave
the jail for his scheduled work release under the usual condition
2. Defendant claims that a blonde woman at the jail with a
“distinguished English/British accent” told him that his jail
sentence was completed. The jury apparently did not credit this
claim, or at least did not believe that this never‐identified woman
had the authority to commute Defendant’s sentence.
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that he return to the jail by 7:30 p.m. No jail personnel told
Defendant that he was free to leave the facility and not return, nor
did jail personnel so much as hint at this scenario. Nevertheless,
Defendant did not return as required that evening and was not
heard from again until he was arrested on September 4, 2008. He
was subsequently charged with escape.
¶5 At trial, Defendant testified in his own defense. Before he
took the stand, the State made a motion in limine to exclude any
evidence regarding the reasons for or circumstances surrounding
Defendant’s incarceration at the time of his escape. The court
granted the motion, stating that the underlying reasons for
Defendant’s incarceration were irrelevant to whether he escaped
from custody.
¶6 During his testimony, Defendant referred to, but did not
produce, a number of documents supposedly evidencing that he
had paid a portion of his outstanding fines, which by his
calculations entitled him to be released from jail on or before July
4. Trial counsel was aware of these alleged documents, but he did
not offer them into evidence because, as he explained, “[A]s far as
I can tell, they don’t exist, other than the dockets at the Court and,
unfortunately, the dockets at the Court contradict what Mr.
Graham has told me and what’s in the report.”
¶7 On cross‐examination, the State asked Defendant numerous
questions about his prior criminal history. Some of these questions
specifically related to two prior parole violations. The first incident
occurred in 2002, when Defendant left the state in direct violation
of his parole agreement. After being arrested for leaving the state
and being returned to prison, Defendant was paroled again in 2004.
He failed to appear for a scheduled court date, however, and was
sent back to prison for absconding. While the State was questioning
Defendant about these two parole violations, Defense counsel did
not raise any objections.
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¶8 After discussing Defendant’s parole violations, the State
transitioned from Defendant’s prior criminal history to the
sentence that Defendant was serving at the time of his escape.
Mindful of the order in limine, the prosecutor did not ask
Defendant about the particular charge or the underlying reasons
for his incarceration but did ask for specifics about the length and
terms of Defendant’s sentence. Nonetheless, Defendant began to
discuss those prohibited details on his own, stating, “I didn’t agree
to hide from the jury that I got a . . . sentence for a suspended
license. Let’s be real here. Let’s keep it real. It ain’t like I killed
anyone, or I robbed anyone.” The State objected to Defendant’s
statements, and the trial court instructed the jury to disregard
anything Defendant said that related to why he was in jail.
¶9 During his cross‐examination, Defendant also complained
that the prosecutor was “more concerned about [his] job and [his]
status as far as wins and los[ses] compared to what’s right and
what’s justice[.]” During closing arguments, the prosecutor
remarked:
[Defendant] said that I’m worried about wins and
losses. Members of the jury, I am a prosecutor, and
we have special ethics, and it says that I am a
minister of justice, and what that means is, I am
concerned about truth and right. I’m not concerned
about wins, losses.
Trial counsel did not object to those comments, and the court did
not instruct the jury to disregard them or refrain from taking them
into consideration during deliberations. Defendant was ultimately
convicted, and this appeal followed.
ISSUES AND STANDARDS OF REVIEW
¶10 Defendant asks us to reverse his conviction because he
claims that he received ineffective assistance of counsel at trial.
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Specifically, Defendant argues that his trial counsel was ineffective
because he (1) failed to discover and introduce potentially
exculpatory documents, (2) failed to object when the State
questioned Defendant about and introduced evidence of his prior
criminal history, and (3) failed to object to the State’s “prejudicial
and misleading statements” during closing argument.
¶11 “An ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law.” State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162. To establish ineffective assistance of counsel,
a defendant must show (1) that “counsel’s performance was
deficient” and (2) that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). When
considering whether counsel’s performance was deficient, we take
into account “‘the variety of circumstances faced by defense
counsel [and] the range of legitimate decisions regarding how best
to represent a criminal defendant.’” State v. Templin, 805 P.2d 182,
186 (Utah 1990) (alteration in original) (quoting Strickland, 466 U.S.
at 689). Because of the numerous legitimate decisions and trial
strategies that exist in each case, a defendant “must ‘overcome the
strong presumption that trial counsel rendered adequate assistance
and exercised reasonable professional judgment.’” Archuleta v.
Galetka, 2011 UT 73, ¶ 39, 267 P.3d 232 (quoting State v. Bullock, 791
P.2d 155, 159–60 (Utah 1989)). Given the strong presumption of
competence, “an ineffective assistance claim succeeds only when
no conceivable legitimate tactic or strategy can be surmised from
counsel’s actions.” State v. Tennyson, 850 P.2d 461, 468 (Utah Ct.
App. 1993).
¶12 In order to demonstrate that counsel’s performance
prejudiced his defense, a defendant must “present sufficient
evidence to support ‘a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’” Archuleta, 2011 UT 73, ¶ 40 (quoting Strickland, 466
U.S. at 694). “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694.
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State v. Graham
¶13 Defendant also claims that the trial court made two errors,
namely (1) allowing the jury to consider evidence of Defendant’s
prior criminal history and (2) permitting the State’s prosecutorial
misconduct during closing argument and allowing the prosecutor’s
prejudicial statements to be considered by the jury. Because
Defendant raises these claims for the first time on appeal, he relies
on the doctrine of plain error. Thus, he must show that “(i) [a]n
error exists; (ii) the error should have been obvious to the trial
court; and (iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant, or phrased differently, our confidence in the verdict is
undermined.” State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993).
I. Deficient Discovery
¶14 Defendant argues that trial counsel was ineffective in failing
to properly investigate the case and discover court documents that
allegedly prove Defendant did not escape from custody. In essence,
Defendant argues that if trial counsel had correctly discovered and
offered into evidence a justice court minute entry and a
corresponding court docket, then his personal calculations about
his proper release date would have been validated, thereby
proving that he did not escape from custody. We disagree.
¶15 While counsel has a duty to adequately investigate the
underlying facts of a case in order to formulate the basis for an
acceptable trial strategy, see State v. Lenkart, 2011 UT 27, ¶ 27, 262
P.3d 1, counsel is not obligated to view or interpret those
underlying facts exactly as his client does when devising a trial
strategy, see State v. Wood, 648 P.2d 71, 91 (Utah 1982). Indeed, once
an adequate inquiry into the underlying facts has been made,
counsel’s tactical decisions will not be considered deficient unless
there is no reasonable basis for those decisions. See, e.g., State v.
Walker, 2010 UT App 157, ¶ 14, 235 P.3d 766 (noting that the
decision of whether to call an expert witness is a matter of trial
strategy that will not be questioned unless there is no reasonable
basis for it).
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¶16 Defendant’s trial counsel’s tactical decision not to introduce
the court docket and minute entry was not deficient and did not
prejudice Defendant’s case. Contrary to Defendant’s assertions,
trial counsel performed adequate discovery and was aware of the
documents at issue. He even shared his opinion about the
documents with the trial court, stating that he did not believe that
the documents corroborated Defendant’s story and that there were
no documents in existence that did.
¶17 Given the information contained in the docket and minute
entry, it is easy to surmise why trial counsel chose not to introduce
them. The documents do not contain an order that directed jail
personnel to release Defendant on July 4, 2008, nor do they
establish that July 4 was his proper release date. Even if the
documents somehow prove that Defendant’s calculated
combination of good‐time deductions and payment prorations was
accurate and that he was theoretically entitled to be released on
July 4, they certainly did not authorize Defendant to unilaterally
convert his temporary work release into a permanent furlough.
And absent some proof that jail personnel actually discharged
Defendant, information that purportedly establishes Defendant’s
proper release date has no bearing on whether he escaped from
custody. In sum, these documents are irrelevant to Defendant’s
guilt or innocence, and their admission would have done nothing
to help Defendant’s case at trial. Consequently, trial counsel’s
sound decision not to present them at trial was neither deficient nor
prejudicial to Defendant.
II. Prior Criminal History
¶18 Defendant asserts that trial counsel was ineffective for
failing to object when the State questioned Defendant about his
prior criminal history and that the trial court committed plain error
by admitting the prior bad act evidence. Defendant insists that the
evidence of his prior misdeeds had no probative value and should
have been considered highly prejudicial in light of the trial court’s
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exclusion of any evidence relating to the underlying charge or
reasons why Defendant was incarcerated when he escaped.3
¶19 While evidence of prior criminal history is not admissible to
prove that a criminal defendant acted in conformity with a
particular character trait, the evidence is admissible if offered to
prove “motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” See Utah R. Evid.
404(b)(2) (emphasis added). Evidence of prior crimes will be
allowed for the above purposes “if it (1) ‘is relevant to,’ (2) ‘a
proper, non‐character purpose,’ and (3) does not pose a ‘danger for
unfair prejudice’ that ‘substantially outweighs its probative
value.’” State v. Killpack, 2008 UT 49, ¶ 45, 191 P.3d 17 (quoting State
v. Widdison, 2001 UT 60, ¶ 41, 28 P.3d 1278).
¶20 All of the prior criminal history evidence offered by the State
was admissible under rule 404(b)(2). Defendant consistently
claimed that he had no idea that there was additional time
remaining on his sentence and that he mistakenly believed that he
was free to release himself from jail. To refute that claim, the State
offered evidence that Defendant had previously been on parole and
had violated the terms of that parole by fleeing the state. The State
made clear that its purpose in introducing this evidence was
limited to demonstrating an absence of mistake because Defendant
clearly understood and was familiar with incarceration, release
procedures, parole, and the difficulties that can accompany a
premature departure from custody. Moreover, the State did not
attempt to use Defendant’s prior criminal history to prove that he
acted in conformity with a particular criminal characteristic. See
Utah R. Evid. 404(b)(1). Rather, the State merely offered the
3. Although Defendant contends that the trial court excluded
evidence relating to the reasons behind Defendant’s incarceration
because it was more prejudicial than probative, the court actually
excluded the evidence because it was irrelevant to “whether he left
with or without authority.”
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evidence to show that, given his history and knowledge, Defendant
could not possibly have been under the mistaken impression that
he was free to leave the jail and never return merely because he
calculated that his time was up.4
¶21 Because the prior criminal history evidence offered by the
State was admissible, trial counsel was not ineffective for failing to
object to its admission. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546 (“Failure to raise futile objections does not constitute ineffective
assistance of counsel.”). Similarly, the trial court did not commit
plain error by allowing the admissible evidence to be considered by
the jury.
III. Prosecutorial Misconduct
¶22 Defendant claims that the State committed prosecutorial
misconduct during closing argument by implying to the jury that
the prosecutor was held to special ethical standards requiring him
to be, first and foremost, a champion of justice. Defendant argues
that trial counsel was ineffective for failing to object to the remarks
in question and that the trial court erred by allowing the jury to
consider them.
¶23 “We will reverse a jury verdict because of prosecutorial
misconduct if we find the prosecutor’s remarks were improper and
harmful to defendant.” State v. Calliham, 2002 UT 86, ¶ 61, 55 P.3d
573. Remarks are considered improper if they “called to the jurors’
attention matters which they would not be justified in considering
in reaching a verdict.” State v. Creviston, 646 P.2d 750, 754 (Utah
1982). Improper remarks are harmful to the defendant if, “under
the circumstances, the jurors were probably influenced by the
4. Defendant’s claim that it was improper for the State to elicit
information about the specifics of his underlying convictions is
unavailing, given that Defendant opened that door when, contrary
to the court’s order in limine, Defendant brought up the nature of
the charge on which he had most recently been incarcerated.
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remarks.” Id. Remarks concerning matters that are peripheral to a
defendant’s guilt and cannot possibly prejudice a defendant
unfairly will not be considered improper or harmful. See State v.
Tillman, 750 P.2d 546, 556 (Utah 1987).
¶24 Although the State briefly discussed the ethical standards
associated with being a prosecutor, those remarks were not
improper and did not prejudice Defendant. The State did not in
any way imply that Defendant or trial counsel operated on a lower
ethical plane. In fact, the State did not mention Defendant or his
counsel at all during these remarks other than to point out that
Defendant had accused the State of prioritizing wins and losses
over truth and justice. By making such an accusation, Defendant
opened the door to an appropriate response by the State. And,
within the context of Defendant’s accusation, the jury no doubt
viewed the State’s remarks as a defense of its own ethical standards
rather than an attack on Defendant’s or trial counsel’s character or
ethical standards. Under all the circumstances, the verdict was
likely not influenced by the remarks, trial counsel was not
ineffective for failing to object to them, and the trial court did not
plainly err in allowing them.
CONCLUSION
¶25 Defendant has not demonstrated deficient performance and
prejudice as required by Strickland v. Washington, 466 U.S. 668
(1984), and we conclude that trial counsel was not ineffective. We
similarly conclude that the trial court did not commit plain error by
admitting evidence of Defendant’s prior criminal history and
allowing the State’s remarks during closing argument.
Accordingly, we affirm.
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