State v. Carreno

BENCH, Associate Presiding Judge

(dissenting):

¶ 16 I respectfully dissent.

¶ 17 The record does not reflect that Car-reno objected below to the $500 limitation on investigator expenses.2 Therefore, the only way we can address the issue is to determine that the trial court committed plain error or that exceptional circumstances are present. See State v. Dean, 2004 UT 63, ¶ 13, 95 P.3d 276. On appeal, Carreno does not make such an argument. Nonetheless, “[t]o demon*1007strate plain error, a defendant must establish that ‘(i) an 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.’ ” Id. at ¶ 15 (quoting State v. Holgate, 2000 UT 74, ¶ 13, 10 P.3d 346).

¶ 18 We cannot determine if the trial court committed an obvious error without an adequate record. ‘“When a defendant predicates error to this [cjourt, he has the duty and responsibility of supporting such allegation by an adequate record.’” State v. Linden, 761 P.2d 1386, 1388 (Utah 1988) (quoting State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982)). The record, in this case, does not include a transcript of the hearing held on Carreno’s motion for an investigator. “Although such hearing was apparently held ..., defendant failed to provide us with a transcript of that hearing.” State v. Blackwell, 809 P.2d 135, 138 n. 4 (Utah Ct.App.1991). Without a copy of the transcript, we cannot ascertain the trial court’s reasoning for setting the $500 limitation. Therefore, without speculating, we cannot say that the trial court “focus[ed] on the expenses of the investigator, rather than exclusively addressing the need for an investigator,” as the majority opinion asserts. “Because defendant failed to provide such a record to support his assertion ..., [we] ‘assume the regularity of the proceedings below and affirm the judgment.’” Id. (quoting State v. Robbins, 709 P.2d 771, 773 (Utah 1985)); see also State v. Garza, 820 P.2d 937, 938 (Utah Ct.App.1991) (stating that where the defendant failed to provide us with a transcript from a motion to suppress hearing we must assume that the trial court’s decision was not erroneous); Linden, 761 P.2d at 1388 (“Inasmuch as defendant has failed to provide an adequate record on appeal on this point, this [cjourt presumes regularity in the proceedings below.”).

¶ 19 Even if it could be said that the trial court committed an obvious error in limiting the expenses for an investigator, we can only reverse if the defendant demonstrates that the error was harmful. See Dean, 2004 UT 63 at ¶ 22, 95 P.3d 276. Carreno must therefore show specifically how he was prejudiced by the trial court’s ruling on his request for an investigator. See, e.g., United States v. Croft, 124 F.3d 1109, 1125 (9th Cir.1997) (“Croft did not show the lack of extra funds unduly hampered her defense or denied her effective assistance of counsel under the Sixth Amendment.”); State v. Cote, 27 Utah 2d 24, 492 P.2d 986, 987 (1972) (“The action of the trial court denying the defendant’s application for appointment of an investigator at public expense was not prejudicial to the rights of the defendant.”). Carreno, in his appellate brief, never indicates how he would have utilized an unlimited budget for investigation. We do not even know whether Car-reno used the $500 he was allotted. He has done absolutely nothing to demonstrate how the lack of funds prejudiced his defense. “If the error was harmless, ... then a reversal is not in order.” State v. Nichols, 2003 UT App 287, ¶ 48, 76 P.3d 1173 (quotations and citations omitted), cert. denied, 84 P.3d 239 (Utah 2003).

¶20 Rather than applying the traditional rules of appellate practice, the main opinion adopts the following per se rule: ’ If the trial court allows appointment of an investigator and does anything to limit the amount of expenses allowed, the trial court has automatically committed reversible error. I dissent because I can find no basis in the law for such a harsh and wasteful rule.

. Carreno also does not directly challenge the $500 limitation in his appellate brief. Though the majority opinion focuses on the money limitation, Carreno focuses on the assertion that the trial court erred by denying his first motion for an investigator. Even if the trial court committed error by denying the first motion, it was not prejudicial because the trial court granted Carre-no's subsequent motion seven weeks prior to trial.