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State v. King

Court of Appeals of Utah

March 9, 2017

State of Utah, Appellee,
v.
Levi Gene King, Appellant.

         Second District Court, Farmington Department The Honorable Thomas L. Kay No. 121701223

          Scott L. Wiggins, Attorney for Appellant

          Sean D. Reyes, Ryan D. Tenney, and William M. Hains, Attorneys for Appellee

          Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.

          OPINION

          CHRISTIANSEN, Judge.

         ¶1 Defendant Levi Gene King appeals from his convictions for theft as a second-degree felony, theft as a third-degree felony, and failure to stop at the command of a law enforcement officer as a class A misdemeanor. See Utah Code Ann. § 76-6-404 (LexisNexis 2012); id. § 76-6-412(1); id. § 76-8-305.5. Primarily, he contends that his trial counsel was constitutionally ineffective for failing to introduce expert testimony regarding the reliability of eyewitness identification. Because declining to introduce potentially harmful testimony was sound trial strategy under the facts of this case, we affirm.

         BACKGROUND

         ¶2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly." State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863. "We include conflicting evidence as relevant and necessary to understand the issues on appeal." Id.

         ¶3 Victim parked his truck outside his wife's salon one morning. He left the keys and his wife's iPod on the truck's center console while he unloaded supplies. Later that morning, Victim's wife (Wife) drove to her salon. As she pulled into a side street behind the salon, she saw her husband's truck being driven the other way. Wife slowed to a stop and rolled down her window. To her surprise, the other driver was not her husband. She noted that the driver had a shaved head and was wearing a white tee shirt. She hurried to the salon and told her husband that somebody was driving off in his truck. Victim borrowed Wife's SUV to go look for his truck while she called 911.

         ¶4 Descriptions of the stolen vehicle and the driver were relayed to police in the area. A police officer (Officer) spotted the truck at an intersection and "focused on the driver" to see if he matched the description. It was daytime and Officer could see that the driver was a "white male, short, dark hair" and was wearing a "white shirt." Officer turned to follow the truck, which accelerated above the speed limit and turned onto a curving side street. He lost sight of the truck for one to two minutes but then spotted it parked behind a building. The driver seen by Officer earlier was still inside but the driver's door was partially open. No one else was nearby.

         ¶5 The driver spotted Officer, fled the vehicle, and hopped a nearby fence. Officer gave chase, radioing nearby police to let them know he had found the truck. While pursuing the driver, Officer saw that the driver was wearing a white tee shirt with a "dark logo on the back of it" and jeans with a hole around the right knee.

         ¶6 Several minutes later, a witness (Witness) was in his front yard preparing to take his daughter to school when a man approached and asked if he could get inside Witness's car. Witness testified that the man was "wearing a white tee shirt with some sort of logo on the back" and "blue jeans." After Witness refused to let the man into his car, the man went onto Witness's porch and tried to enter the house. A police car then pulled up and the man tried to run away but was apprehended. The man apprehended was Defendant.

         ¶7 Shortly after Defendant's capture, Officer arrived and identified Defendant as the person he had seen driving the stolen truck and given chase to. Victim and Wife then arrived; Victim identified the truck as his and Wife identified Defendant as the man she had seen driving it. A search of Defendant's person revealed Wife's iPod. Neither Officer nor Wife was presented with a lineup of suspects; rather, at the scene of his arrest, each was only shown Defendant-a procedure often referred to as a showup.

         ¶8 At trial, the State argued that Defendant stole the truck and the iPod and failed to heed a police officer's orders to stop. Defendant presented alternative facts. Defendant testified that he had left his house that morning intending to apply for jobs at local businesses until the local library opened. He claimed that he had run into an acquaintance named Kyle, [1] who was sitting in a black truck. According to Defendant, Kyle offered to sell Defendant an iPod for $30. Although he initially hesitated, Defendant decided to buy the iPod. He testified that he then began to smoke marijuana, that Kyle grew increasingly nervous, and that Kyle eventually jumped out of the truck, ran behind it, and disappeared over a fence. Defendant further testified that he saw a police car drive by and that, when the car turned around, he took off running as well. Defendant admitted that he had not stopped when the police officer told him to.[2]

         ¶9 During jury selection and opening statements, a deputy sat behind Defendant. Before testimony began, trial counsel objected to the presence of "an armed deputy in uniform sitting behind my client." Trial counsel conceded that officers were generally present for security reasons but asserted that such officers were normally "dressed in plainclothes." Trial counsel stated that "if he wants to sit in the back of the court, that's fine, but I don't think sitting behind my client is appropriate" and that Defendant was unlikely to be a threat because he had "handcuffs on." The judge asked the officer to "sit a little farther back" in the audience and trial counsel raised no further objection.

         ¶10 Before Defendant testified, and outside the jury's presence, the court and counsel discussed the logistics of his testimony. Trial counsel suggested seating Defendant in the witness box and swearing him in before the jury returned to the room. The court agreed to "have him seated up here" and explained that "we'll have him sworn before the jury comes in." The court later decided "we'll just have him sworn in just after the jury comes in, so why don't we have the jury come in. So when I say, 'You can be seated, ' just stand or just stay standing and then [the court deputy] will swear you in."

         ¶11 The defense presented no other witnesses. In closing argument, trial counsel argued that Wife and Officer were mistaken in their identifications. She highlighted the height difference between Victim's truck and Wife's SUV and noted that both Wife and Officer had observed the driver of the truck while it was in motion. Trial counsel did not request an instruction regarding eyewitness-identification pitfalls.

         ¶12 The jury convicted Defendant on all three charges. As part of his appeal, Defendant sought a rule 23B remand for findings necessary to determine whether he received ineffective assistance from trial counsel. See Utah R. App. P. 23B. After this court granted that motion, the trial court conducted a hearing and entered ...


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