Opinion
Case No. 20070068-CA.
Filed June 11, 2009. Not For Official Publication
Appeal from the Third District, Salt Lake Department, 061904658 The Honorable J. Dennis Frederick.
Jennifer K. Gowans and Randall K. Spencer, Provo, for Appellant.
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee.
Before Judges Bench, Orme, and Davis.
MEMORANDUM DECISION
Defendant Rory Dembert appeals his conviction on one count of aggravated assault. Dembert argues that his trial counsel rendered constitutionally ineffective assistance by failing to file a timely motion to suppress evidence obtained in violation of hisMiranda rights. We affirm.
"With respect to any ineffectiveness claim, a defendant must first demonstrate that counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment. Second, the defendant must show that counsel's deficient performance was prejudicial — i.e., that it affected the outcome of the case." See State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88 (1984); State v. Taylor, 947 P.2d 681, 685 (Utah 1997)). The State agrees that Dembert's trial counsel's failure to file a timely motion to suppress was deficient and that a timely motion would have resulted in exclusion of Dembert's statement to police, which statement Dembert characterizes as a confession. But the State argues that Dembert cannot show prejudice because the evidence against him was overwhelming and there is no reasonable probability that even with the exclusion of Dembert's statement to police the jury verdict would have been different. See generally Strickland, 466 U.S. at 694 ("The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome."). We agree.
First, we recognize the highly-prejudicial nature of confessions.See Arizona v. Fulminante, 499 U.S. 279, 296 (1991) ("A confession is like no other evidence. Indeed, the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him. . . . In the case of a coerced confession . . ., the risk that the confession is unreliable, coupled with the profound impact that the confession has upon the jury, requires a reviewing court to exercise extreme caution before determining that the admission of the confession at trial was harmless." (citations and internal quotation marks omitted)). Dembert's statement to police, however, did not acknowledge guilt for the crime charged, and the statement was therefore not a true confession. See Black's Law Dictionary 293 (7th ed. 1999) (defining a confession as "[a] criminal suspect's acknowledgment of guilt"). Instead, his statement merely acknowledged, at most, that he had been the instigator of the fight with the victim, and the statement was not necessarily inconsistent with his defense of self-defense. As the jury was correctly instructed, Dembert's self-defense argument could have still been a valid defense even if he had initiated the fight.See Utah Code Ann. § 76-2-402(2) (2008) (providing that a person who "was the aggressor or was engaged in a combat by agreement" can still be justified in using force if "he withdraws from the encounter and effectively communicates to the other person his intent to do so and, notwithstanding, the other person continues or threatens to continue the use of unlawful force"). Thus, even assuming that the jury believed that Dembert started the fight, this would not answer the question of whether Dembert was entitled to act as he did under the justification of self-defense.
Dembert's appellate counsel cites to the prosecutor's closing argument for a summary of what Dembert said in the interview recording that was shown to the jury. From our review of the recording, the prosecutor's summary is a substantially accurate representation of Dembert's statement to police: "`I made a mistake. It was something stupid. . . . It wasn't him; it was me. It was a drug thing. I got caught up in a drug thing. I use drugs. My mind goes whoosh.'"
Second, the testimony of a disinterested witness, who had seen the later stages of the fight on the security camera monitor on her desk, strongly supports the conclusion that Dembert was not acting in self-defense. The witness did not see the beginning of the fight and did not know who initiated the altercation, but she testified that she saw the victim fall to the ground; that the victim was "on his back, with his hands and his feet in the air, as though he were trying to defend himself"; that the victim's hands were empty; that Dembert stood over the victim with an angry look on his face; that Dembert leaned over and appeared to be punching the victim, but when Dembert stood up, she realized there was a knife in his hands; and that at no time during this encounter did she see the victim make stabbing or hitting gestures toward Dembert, but instead, "his feet were up in the air trying to ward off the attack." This evidence leads to the conclusion that regardless of who initiated the fight, Dembert was not acting in self-defense when he stabbed the victim after the victim fell to the ground. See generally id. § 76-2-402(1) ("A person is justified in threatening or using force against another when and to the extent that he or she reasonably believes that force is necessary to defend himself or a third person against such other's imminent use of unlawful force. However, that person is justified in using force intended or likely to cause death or serious bodily injury only if he or she reasonably believes that force is necessary to prevent death or serious bodily injury to himself or a third person as a result of the other's imminent use of unlawful force, or to prevent the commission of a forcible felony." (emphasis added)).
Indeed, Dembert effectively admitted that the victim was no threat after he fell down and threw his hands up, because Dembert, while denying that he stabbed the victim thereafter, testified that it was at that point that he walked away from the fight. Moreover, although both the victim and Dembert had credibility issues, the victim's testimony aligned with the witness's relation of events, while Dembert's testimony did not.
And third, there was much evidence before the jury of injuries. The lacerations the victim sustained were of such gravity that they required multiple surgeries, including one removing twelve inches of his large intestine, and a hospital stay of at least five weeks. The stark contrast of the severity of these injuries with Dembert's complete lack of injury further supports that Dembert was not, as he had claimed, acting in self-defense.
Considering the above evidence supporting the jury's verdict, we are not convinced that there is a reasonable probability that the jury's decision would have been different had Dembert's statement to police not been admitted. Accordingly, we affirm.
In his reply brief, Dembert withdrew his additional argument that the trial court erred by dismissing his motion to suppress on timeliness grounds, correctly noting that our determination as to prejudice would likely be dispositive of this additional claim. Because we have determined that the admission of Dembert's statement was not prejudicial, any error by the trial court in denying Dembert's motion to suppress on timeliness grounds would be harmless error. See Huish v. Munro, 2008 UT App 283, ¶ 8, 191 P.3d 1242 ("Unless an appellant demonstrates that an error is prejudicial, it will be deemed harmless and no appellate relief is available." (citations omitted)).
WE CONCUR: Russell W. Bench, Judge, Gregory K. Orme, Judge