Opinion
Case No. 20060045-CA.
Filed June 14, 2007. Not For Official Publication.
Fifth District, St. George Department, 051500253 The Honorable Eric Ludlow.
Margaret P. Lindsay, Orem, for Appellant.
Mark L. Shurtleff and Erin Riley, Salt Lake City, for Appellee.
Before Judges Greenwood, Orme, and Thorne.
MEMORANDUM DECISION
Harris's testimony that several defense witnesses were closely associated with Defendant and each other would likely not have been proper during the State's case-in-chief. It was, however, proper as rebuttal testimony to impeach the credibility of those witnesses.See Utah R. Evid. 608; State v. Decorso, 1999 UT 57, ¶ 21, 993 P.2d 837. If the jury chose to believe Harris on rebuttal, his testimony provided an explanation for why the testimony of those witnesses, consistent among themselves and supportive of Defendant, would be at odds with Harris's testimony.
The difficulty is in the alleged nature of the defense witnesses' association and its propensity for prejudicing the jury. However, no objection was raised pursuant to rule 403 claiming the probative value of the evidence was "outweighed by the danger of unfair prejudice." Utah R. Evid. 403. Thus, we are able to reach the issue only as plain error on the part of the trial court or as ineffective assistance on the part of trial counsel. We decline to do so, however, where trial counsel, having had his other objections overruled, made the strategic decision to meet Harris's testimony head-on, challenging the inferences drawn by Harris about Bogart's tattoo and eliciting a concession about Harris's own tattoo. This strategy may not have played out exactly as hoped for, but it does preclude us from embracing plain error or ineffective assistance and proceeding to reach the merits of the rule 403 claim raised for the first time on appeal. See State v. Pecht, 2002 UT 41, ¶ 41, 48 P.3d 931 (ineffective assistance);State v. Bullock, 791 P.2d 155, 158-59 (Utah 1989) (plain error).
We see no error in the disposition of these objections, for essentially the reasons set forth in the State's brief.
It is worth noting that even if the balancing called for by rule 403 were to be done in this case, the result would not likely be different. The rebuttal testimony was far from gratuitous. On the contrary, Harris's race and the defense witnesses' racist tendencies or affiliations would significantly undercut the witnesses' claims that Harris initiated a lot of "touchy-feely" contact with Defendant or the witnesses. Thus, the admittedly prejudicial nature of the rebuttal testimony would not likely be regarded as unfairly prejudicial. See Woods v. Zeluff, 2007 UT App 84, ¶ 7, 574 Utah Adv. Rep. 26.
Affirmed.
WE CONCUR: Pamela T. Greenwood, Associate Presiding Judge.
William A. Thorne Jr., Judge.