District Court, Ogden Department The Honorable Ernest W.
Jones No. 161901973
Cherise Bacalski and Emily Adams, Attorneys for Appellant
D. Reyes and Thomas Brunker, Attorneys for Appellee
David N. Mortensen authored this Opinion, in which Judges
Gregory K. Orme and Jill M. Pohlman concurred.
During a search incident to arrest, police officers found
Carl Stanley Fleming in possession of drug paraphernalia and
cocaine. Later, Fleming tried to explain away his possession
of the cocaine by saying he was unaware that it was in a
jacket that he alleged he had borrowed from his girlfriend.
This explanation was a disconnect, however, because the
arresting officer had found the cocaine in the front pocket
of Fleming's pants. At trial, Fleming's counsel
(Counsel) told the jury it would hear Fleming's account,
but Fleming did not testify when Counsel became concerned
that Fleming's three prior drug convictions might come
in. The jury found Fleming guilty. Fleming appeals, claiming
Counsel was ineffective in a couple of ways. We affirm.
While checking a park for trespassers, officers came upon
Fleming, asked him to identify himself, and then arrested him
based on an active arrest warrant. In the search incident to
arrest, an officer found a black case containing two pipes
and some Brillo pads in Fleming's jacket pocket and a pill
bottle with a hard, white substance in Fleming's front
pants pocket. The officer asked Fleming what the substance
was, and Fleming responded that "it might be meth or it
might be a rock, " but he hadn't had a chance to try
it yet. The substance later proved to be cocaine. The State
charged Fleming with possession of a controlled substance
with prior convictions.
At a suppression hearing, Fleming testified that the cocaine
was in his girlfriend's jacket that he was wearing, not
in his pants pocket. He further explained that he was wearing
his girlfriend's jacket in addition to his own coat, and
that he was unaware the cocaine was in her jacket. After the
hearing, the State filed a notice that if Fleming so
testified at trial, the State would present Fleming's
three prior drug-related convictions for the purpose of
rebutting his lack-of-knowledge or mistake argument as to
possessing the cocaine. See Utah R. Evid. 404(b).
At trial, Counsel told the jury in his opening statement that
it would hear Fleming's account of the arrest,
specifically that the cocaine was found in his
girlfriend's jacket that he happened to be wearing, not
his pants pocket, and that he did not know the drugs were
there. During its case-in-chief, the State presented the
arresting officer's testimony that the cocaine was found
in Fleming's front pants pocket. Counsel then sought a
ruling on whether Fleming's prior convictions would be
admissible if Fleming testified, but the trial court declined
to rule in advance, reasoning that admissibility would turn
on the content of Fleming's testimony. Counsel ultimately
advised Fleming not to testify.
In closing argument, Counsel focused on four principal
points. First, Counsel argued that if Fleming had known about
the cocaine, he would have disposed of it because he had
ample opportunity to do so before being detained. Second,
Counsel asserted that Fleming did not know about the cocaine
because it would make no sense that Fleming would admit that
he had the drug paraphernalia and not admit that he had the
cocaine. Third, Counsel focused on Fleming's answer to
the arresting officer that the cocaine "might be meth or
it might be a rock," arguing that someone who knew he
had drugs would know what they are. Finally, Counsel focused
on discrediting the arresting officer's testimony.
Counsel specifically argued that the arresting officer's
testimony conflicted with another officer's testimony
regarding whether a pastor, who was standing by Fleming
during the arrest, drove off in a car and had to be brought
back to the scene. This conflict, Counsel argued,
sufficiently undermined the arresting officer's testimony
such that the jury should disbelieve him completely. However,
this final argument was based on a misunderstanding of the
testimony, and the State clarified in its rebuttal argument
that the arresting officer never testified that the pastor
left, only that the pastor got into his car.
The jury convicted Fleming as charged, and he appeals.
AND STANDARD OF REVIEW
The sole issue Fleming raises is whether he received
constitutionally ineffective assistance of counsel. "An
ineffective assistance of counsel claim raised for the first
time on appeal presents a question of law." State ...