Opinion
Case No. 20070368-CA.
Filed December 11, 2008. Not For Official Publication
Appeal from the Fourth District, Provo Department, 051402096 The Honorable Lynn W. Davis.
Margaret P. Lindsay, Spanish Fork, for Appellant.
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee.
Before Judges Bench, Billings, and Orme.
MEMORANDUM DECISION
Defendant Jesse Valdez was convicted of theft, a third degree felony,see Utah Code Ann. § 76-6-404 (2003), after Officer Otte arrested him for shoplifting items at Deseret Industries. Officer Otte testified that during the arrest, he read Defendant his Miranda rights. During direct examination, the prosecutor asked Officer Otte about his encounter with Defendant. While describing the situation, Officer Otte stated, "I asked him . . . about the items in his pockets, at which time he stated he pled the Fifth and did [not] want to answer the question." The prosecutor did not ask a follow-up question but instead asked what happened next. On cross-examination, defense counsel asked Officer Otte if Defendant "told [Officer Otte that Defendant] didn't want to talk anymore," and Officer Otte replied affirmatively.
Defendant now argues that the trial court committed plain error when it did not strike Officer Otte's testimony that Defendant had invoked his right to remain silent. To obtain relief under the plain error doctrine, Defendant must show "(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."State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
Defendant has not shown that an error was made, and even if he had, he has not shown that absent the error there is a reasonable likelihood of a more favorable outcome. Doyle v. Ohio, 426 U.S. 610 (1976) explains that the State cannot use a defendant's post-Miranda silence to impeach a defendant at trial, see id. at 618, nor as substantive evidence of guilt, see State v. Byrd, 937 P.2d 532, 534 (Utah Ct.App. 1997). However, these prohibitions do not mean that all references to Defendant's post-Miranda silence are unconstitutional. "[T]he mere mention that a defendant invoked his constitutional rights does not prima facie establish a due process violation." State v. Harmon, 956 P.2d 262, 268 (Utah 1998).
To show a violation of Doyle, the officer must do "more than simply refer[] to a defendant's post-Miranda silence." See State v. Maas, 1999 UT App 325, ¶ 20, 991 P.2d 1108. For a violation to occur, the "prosecutor must specifically inquire about or argue using a defendant's exercise of his rights in a context that would impeach a defendant's exculpatory explanation of his conduct," for example, by "framing a question" or making a "comment that demands an explanation from the defendant and raises the inference that silence equals guilt."Id.
Here, we conclude that Officer Otte's statement did not rise to the level of a Doyle violation. Further, even if it did, Defendant has not shown that there was a reasonable likelihood of a more favorable outcome. The parties do not dispute that Defendant placed various items in his pocket and left the thrift store without paying for them. Although Defendant now indicates he intended to pay for the items at the adjacent Deseret Industries facility, he did not mention this to Officer Otte during their conversation, nor did he establish that it was possible to pay for items at that facility. Thus, there was sufficient basis, independent of the prosecutor's references to Defendant's post-Miranda silence, on which Defendant could be convicted.
Next, Defendant claims that his trial counsel was ineffective in handling Officer Otte's comment about Defendant's post-Miranda silence. To prevail on a claim of ineffective assistance of counsel, a defendant must prove "(1) that counsel's performance was deficient and (2) that the deficient performance prejudiced the defense." State v. McClellan, 2008 UT App 48, ¶ 14, 79 P.3d 825 (internal quotation marks omitted). Defendant contends that (1) his counsel should have objected to Officer Otte's response to the prosecutor, and that (2) his counsel should not have compounded the problem by again referencing it during cross-examination.
Because we conclude that Officer Otte's comment did not violateDoyle, we cannot conclude that defense counsel erred in not objecting to it. "[F]ailure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (internal quotation marks omitted). More importantly, even if defense counsel's actions were deficient, Defendant has not shown he was prejudiced by them. Accordingly, we affirm.
WE CONCUR: Russell W. Bench, Judge, Gregory K. Orme, Judge.