Opinion
Case No. 20050671-CA.
Filed August 10, 2006. (Not For Official Publication.).
Appeal from the Third District, Salt Lake Department, 041901738 The Honorable Leslie A. Lewis.
Margaret P. Lindsay, Orem, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges Bench, Billings, and McHugh.
MEMORANDUM DECISION
Freedom Yocum appeals his conviction of aggravated assault. We affirm.
Yocum asserts that the trial court erred in making comments about handling the tools and in questioning him on the stand, giving the appearance of bias and depriving him of a fair trial. Because trial counsel did not object to either the comments or the questioning, Yocum must establish plain error. See State v. Nichols, 2003 UT App 287, ¶ 45, 76 P.3d 1173. To demonstrate plain error, a defendant must show that an error exists, the error should have been obvious to the trial court, and the error was harmful. See State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).
The trial court's comments and directions regarding the tools do not constitute plain error. As part of providing a fair and impartial trial, a criminal defendant is "`generally entitled to the physical indicia of innocence.'" State v. Mitchell, 824 P.2d 469, 473 (Utah Ct.App. 1991) (quoting Kennedy v. Gray, 487 F.2d 101, 104 (6th Cir. 1973)). However, "a defendant's right to the physical indicia of innocence must be weighed against `the essential state policy of providing security in the courtroom.'"State v. Lemons, 844 P.2d 378, 380 (Utah Ct.App. 1992) (quoting Mitchell, 824 P.2d at 473). "The extent to which security measures are necessary to ensure a safe and orderly proceeding is within the sound discretion of the trial court and [appellate courts] will not overrule that exercise of discretion unless it was clearly abused." Id. at 379.
If necessary to secure the courtroom, a trial court may even require a defendant to be shackled. See Mitchell, 824 P.2d at 473. Here, however, the restraint on Yocum was not as extreme or obvious. Rather, Yocum was only kept from handling the tools, one of which he used as a weapon in the assault. The court made no comment about Yocum handling the tools, but merely assured that the tools were out of his reach. This safety measure is well within the discretion of the trial court and is not in error.
Furthermore, Yocum has failed to show any harm from the alleged error. The victim testified clearly regarding the incident. His testimony was supported by a videotape of what occurred. Yocum has not shown that, given this evidence and absent the alleged error, "there is a reasonable likelihood of a more favorable outcome" for him. State v. Parker 2000 UT 51, ¶ 7, 4 P.3d 778.
Similarly, there was no error in the trial court's brief questioning of Yocum. Under Utah Rule of Evidence 614, a trial court "may interrogate witnesses, whether called by itself or by a party." Utah R. Evid. 614(b). It is within the trial court's prerogative to ask questions to clarify or explain the evidence.See State v. Beck, 2006 UT App 177, ¶ 10, 551 Utah Adv. Rep. 6 (citation omitted). "Nonetheless, `[i]t is generally held that in the exercise of his right to question a witness, the judge should not indulge in extensive examination or usurp the function of counsel.'" Id. (alteration in original) (quoting State v. Nichols, 2003 UT App 287, ¶ 49, 76 P.3d 1173).
Here, the trial court's questioning was brief and appropriately targeted. Yocum's testimony was vague regarding an object to which he was referring, which was clarified by the court's questioning. Yocum has not shown that the court questioned him extensively, usurped the function of counsel, or appeared adversarial. The court's questions were within its prerogative, thus, the court did not err.
Furthermore, Yocum has shown no prejudice from the trial court's questioning. As noted above, the evidence against Yocum was strong. He has not shown a reasonable likelihood of a more favorable outcome absent the court's questioning. See Parker 2000 UT 51 at ¶ 7.
Finally, Yocum asserts that he received ineffective assistance of counsel because trial counsel failed to object to the comments about the tools. In determining whether counsel's performance was deficient, appellate courts "`presume that counsel has rendered adequate assistance. . . . Thus, if the challenged act or omission might be considered sound trial strategy, we will not find that it demonstrates inadequacy of counsel.'" Id. at ¶ 10, (quoting State v. Dunn, 850 P.2d 1201, 1225 (Utah 1993)). Here, trial counsel's failure to object was a "deliberate and tactical choice" made to avoid focusing the jury's attention on the trial court's comments. Id. at ¶ 11. Because it was reasonable trial strategy, the failure to object does not constitute ineffective assistance of counsel. See id.
Affirmed.
Russell W. Bench, Presiding Judge, Judith M. Billings, Judge, Carolyn B. McHugh, Judge.