State of Utah v. Nathan Redcap

¶1 This case arises from a fight at the Utah State Prison.

Uncontroverted evidence at trial established that Defendant

Nathan Redcap, an inmate, stabbed an inmate named Wilson.

Redcap had surreptitiously remained out of his cell after he should

have returned to it. He shielded his torso with body armor

improvised from magazines and attached a shank to each hand.1

Redcap was charged with attempted murder and other offenses.

State v. Redcap

2. See Utah Code Ann. § 76-5-103.5(a) (LexisNexis 2003); id. § 76-8-

311.3 (Supp. 2005).

20120077-CA 2 2014 UT App 10

He was convicted of one count of aggravated assault by a prisoner

and two counts of possessing items prohibited in a correctional

facility.2 We affirm.

BACKGROUND

¶2 November 29, 2005, was laundry day in the prison. On

laundry day, cells are opened one at a time to allow inmates to

collect their laundry bags from the common area. Redcap retrieved

his laundry bag, but instead of returning to his cell as required, he

hid. When Wilson was released to retrieve his laundry bag from the

common area, Redcap attacked him. Wilson eventually escaped to

the shower room adjacent to the common area.

¶3 Two correctional officers who responded to the incident

later testified that they did not see the fight begin. But they did see

a shank in each of Redcap's hands and did not see a weapon in

Wilson's hands. After quelling the fight, the officers ordered

Redcap to disarm. He removed a loop securing the first shank to

one hand and then untied the other shank from his other hand. He

dropped both shanks to the floor. When Redcap removed his

sweatshirt, several magazines wrapped around his torso for

protection fell to the ground.

¶4 A low-resolution security camera recorded part of the

incident. The footage shows Wilson emerging from his cell to

retrieve his laundry from the common area. Redcap descends the

stairs and confronts Wilson. Wilson initially retreats and Redcap

follows as they begin circling and feinting at one another.

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Approximately thirty-five seconds later, Redcap moves out of the

camera's view and Wilson follows.

¶5 At trial, Redcap claimed self-defense. He argued that Wilson

had previously threatened his life and that Wilson instigated the

fight. Redcap called two inmates to the stand who each claimed to

have observed the fight from his cell. The first inmate testified that

he had seen most of the fight, that Redcap had not been holding a

weapon, and that Wilson took something from his laundry bag that

the inmate believed was a weapon. The inmate also testified that

Wilson was the aggressor. The second inmate (Witness) was a

friend of Wilson's. According to Witness, Wilson had threatened to

kill Redcap a few days before the fight. At that time, Redcap

replied that he was not going to run from Wilson. Witness further

testified that both Wilson and Redcap had shanks during the fight

and that Wilson, after retreating to the shower area, had thrown his

to the floor near Redcap.

¶6 The prosecution impeached Witness with testimony from an

investigator. The investigator testified that he visited Witness's cell

a week before trial and "took some photographs from inside the

cell . . . [to] kind of get a [perspective] of that view that the inmate

would have.” He listed the limitations on the view from inside the

cell: "your view is obstructed looking out into the common area,”

"you can't see down into the shower area,” and "you can't see

directly [along] the wall because there's some pillars that are

sticking out a little ways from the cement wall.” When asked

whether he was "able to see . . . down towards the shower where

[Witness] said he could see things,” the investigator responded,

"No.” To support this testimony, the prosecution then introduced

several photographs taken by the investigator of the cell and from

within the cell.

¶7 The defense objected to the investigator's testimony and to

admission of the photographs on the ground that they had not

State v. Redcap

3. Redcap's motion for new trial also alleged that the prosecution

had failed to turn over an interview with Witness. The trial court

found that the prosecution had provided the interview. On appeal,

Redcap does not challenge this ruling.

20120077-CA 4 2014 UT App 10

been disclosed before trial as required by rule 16 of the Utah Rules

of Criminal Procedure. The trial court overruled the objection "for

the time being.” On redirect examination, the defense elicited from

the investigator admissions that a camera could not depict the

entire view possible from within the cell, that Witness could have

seen the area by the stairs where the fight began and the common

area where it continued, and that the investigator's testimony

challenged only Witness's claim to have seen the fight end by the

shower. The next day, the trial court announced it would postpone

a final decision on this discovery issue until after the verdict.

¶8 The jury acquitted Redcap of attempted murder but

convicted him of aggravated assault and two counts of possessing

prison contraband. Redcap moved for a new trial on the ground

that the prosecution committed discovery violations involving the

second investigation and the photographs taken by the

investigator. After an evidentiary hearing, the trial court denied

Redcap's motion.3

ISSUES AND STANDARDS OF REVIEW

¶9 Redcap first contends that the trial court erred by denying

his motion for new trial due to the prosecution's failure to turn

over relevant discovery as required by rule 16 of the Utah Rules of

Criminal Procedure. "A trial court's ruling on a rule 16 issue is

reviewed for an abuse of discretion.” State v. Dick, 2012 UT App

161, ¶ 2, 280 P.3d 445.

State v. Redcap

20120077-CA 5 2014 UT App 10

¶10 Redcap next contends that several statements in the

prosecutor's closing rebuttal argument constituted prosecutorial

misconduct. Redcap concedes that this claim was not preserved

and seeks review under the plain error exception to the

preservation requirement. He also alleges ineffective assistance of

counsel. To establish plain error, an appellant must show that

"(i) [a]n error exists; (ii) the error should have been obvious to the

trial court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d

1201, 1208 (Utah 1993). And "[a]n ineffective assistance of counsel

claim raised for the first time on appeal presents a question of law.”

State v. Ott, 2010 UT 1, ¶ 22, 247 P.3d 344 (citation and internal

quotation marks omitted).

ANALYSIS

I. Discovery Violations

¶11 Redcap contends that the trial court erred in denying his

motion for new trial. That motion alleged that the prosecution had

failed to turn over relevant evidence in discovery. In 2006, Redcap

requested any photographs taken of the scene by any law

enforcement officer and any investigative reports made during the

course of investigation. The prosecution initially complied and

provided several photographs taken immediately after the fight

and a report from the investigator. However, a week before trial,

the investigator conducted another investigation of the views

possible from Witness's cell. In the course of the second

investigation, he took several additional photographs (the

Photographs). The prosecution did not turn over the Photographs

or other results of this investigation. At trial, the prosecution crossexamined

the investigator about the second investigation and

introduced the Photographs. Redcap objected to both the

investigator's testimony and the Photographs.

State v. Redcap

20120077-CA 6 2014 UT App 10

¶12 Rule 16 of the Utah Rules of Criminal Procedure governs the

discovery process and imposes on the prosecution a "continuing

duty to make disclosure.” Utah R. Crim. P. 16(b). When the

prosecution responds voluntarily to a discovery request, as it did

here, two duties arise. First, the prosecution must either produce all

of the material requested or specifically identify those portions that

will not be produced. State v. Knight, 734 P.2d 913, 916–17 (Utah

1987). "Second, when the prosecution agrees to produce any of the

material requested, it must continue to disclose such material on an

ongoing basis to the defense.” Id. at 917. "Therefore, if the

prosecution agrees to produce certain specified material and it later

comes into possession of additional material that falls within that

same specification, it has to produce the later-acquired material.”

Id. Failure to do so is a discovery violation. Id. "For the misleadingthe-

defense rationale to apply, the discovery request must be

sufficiently specific to permit the prosecution to understand what

is sought and to justify the parallel assumption on the part of the

defense that material not produced does not exist.” Id.

¶13 Rule 30(a) of the Utah Rules of Criminal Procedure provides

that "[a]ny error . . . which does not affect the substantial rights of

a party shall be disregarded.” Rule 30 ordinarily places the burden

to show prejudice on the defendant. See State v. Bell, 770 P.2d 100,

106 (Utah 1988). But a discovery violation claim may shift the

burden to the State to show that the violation was harmless. See id.

This is because a rule 30 inquiry "normally is based upon a review

of the record,” and when the error consists of the prosecution's

failure to produce inculpatory evidence, "the record does not

provide much assistance in discovering the nature or magnitude of

the resulting prejudice to the defense.” Knight, 734 P.2d at 920. "The

record cannot reveal how knowledge of this evidence would have

affected the actions of defense counsel, either in preparing for trial

or in presenting the case to the jury.” Id.

State v. Redcap

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¶14 Therefore, in such cases, "when the defendant can make a

credible argument that the prosecutor's errors have impaired the

defense, it is up to the State to persuade the court that there is no

reasonable likelihood that absent the error, the outcome of trial

would have been more favorable for the defendant.” Id. at 921. The

State can meet this burden "by showing that despite the errors, the

outcome of trial merits confidence and there is no reasonable

likelihood of a more favorable result for defendant.” Id. A

reasonable likelihood is one "'sufficient to undermine confidence

in the outcome.'” Id. at 920 (quoting Strickland v. Washington, 466

U.S. 668, 694 (1984)).

¶15 In Knight, because the withheld evidence was crucial to the

defense strategy, the discovery violation was sufficiently egregious

as to undermine the supreme court's confidence in the outcome. Id.

at 921. Knight was charged with aggravated robbery. Id. at 914.

Defense counsel made appropriate discovery requests for a list of

the prosecution's witnesses, the witnesses' contact information, and

any statements taken from those witnesses. Id. at 915. The

prosecution responded that it had been unable to contact two of the

identified witnesses and did not produce statements taken from

them. Id. However, an investigator had in fact taken statements

from those witnesses. Id. The gist of the statements was that Knight

had asked one of the witnesses to falsify an alibi and had asked the

other to pick Knight and his partner up after they had abandoned

a getaway vehicle. Id. at 915–16.

¶16 Shortly before trial, the prosecution obtained contact

information for both witnesses but did not turn over this

information before trial. Id. at 915. On the first day of trial, defense

counsel learned of the witnesses' statements and that the witnesses

would be testifying the following day. Id. at 916. After rejecting

defense counsel's objections to the witnesses' testimonies, motion

for mistrial, and request for a continuance, the trial court allowed

the witnesses to testify; the trial resulted in Knight's conviction. Id.

State v. Redcap

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Our supreme court reversed Knight's conviction, holding that a

discovery violation had taken place, that Knight had presented a

credible claim that his defense was impaired, and that the State had

not shown that the errors were harmless. Id. at 921. The Knight

court could not "determine with any certainty from the record

whether, absent the prosecutor's nondisclosures, the defense would

have been better prepared” to counter the witnesses' testimony.

Accordingly, the court held that the State bore the burden of

persuasion and had failed to meet it. Id.

¶17 Here, we must first determine whether a discovery violation

took place. We agree with the trial court, which ruled that the

prosecution violated the continuing discovery duty explained in

Knight:

In this case, the State did not object to Mr. Redcap's

discovery request but produced many of the

requested materials . . . . Consequently, the State was

required to either provide Mr. Redcap with the

omitted photographs or identify the photographs as

material that would not be produced. The State failed

to comply with that requirement when it did not

produce the photographs before trial.

The record before us shows that Redcap filed a formal request for

discovery in 2006, seeking "[a]ny photographs . . . taken

from . . . the alleged crime scene or taken by any law enforcement

officer during the course of investigation [or] by such police

department, District Attorney, its staff or investigative agencies.”

He also requested "[a]ny police or investigative reports excluding

the Salt Lake District Attorney's work product, made during the

course of investigation or prosecution of this case.” On appeal, the

State v. Redcap

4. The State does claim in a footnote that at least one of the

Photographs was provided to Redcap. However, the State does not

claim to have provided all of the Photographs introduced at trial.

20120077-CA 9 2014 UT App 10

State does not claim to have produced the Photographs.4 Instead,

it asserts that the prosecution had no duty to produce the

Photographs and that failure to do so was not a violation of rule

16's continuing discovery requirement. Cf. Utah R. Crim. P. 16(b);

Knight, 734 P.2d at 917. Based on the record before us, we agree

with Redcap and the trial court that the prosecution's failure to

provide the Photographs to Redcap before trial constituted a

discovery violation.

¶18 Redcap also argues that the prosecution improperly

withheld the investigator's report of his second investigation.

Consequently, Redcap asserts, the investigator should not have

been allowed to testify as to his conclusions drawn from that

investigation. This claim was preserved in his motion for new trial.

The State responds that Redcap "has not demonstrated that there

was such a report, much less that the prosecutor suppressed it.”

¶19 We recognize that Redcap's discovery request sought

"reports made” by investigators—a phrase that might be read

narrowly as limited to written documents. But "[r]ules that govern

criminal proceedings are meant to ensure that a trial is a search for

truth and that the verdict merits confidence.” State v. Knight, 734

P.2d 913, 920 (Utah 1987). Thus, the relevant question is not

whether the investigator's report was committed to writing, but

whether the prosecution was aware of, yet did not disclose, the

results of an investigation relied upon at trial. Moreover, on appeal

the State does not explicitly deny the existence of a report. Rather,

it argues that "defense counsel knew of no such report” and that

"[Redcap] has not demonstrated that there was such a report.”

State v. Redcap

20120077-CA 10 2014 UT App 10

¶20 "A criminal trial is more than a contest between the

prosecution and the defense; it is a search for the truth.” State v.

Hay, 859 P.2d 1, 7 (Utah 1993) (citations and internal quotation

marks omitted). Here, the investigator conducted a second

investigation on behalf of the prosecution, gathered relevant facts,

took photographs, and provided the results of the investigation to

the prosecutor. We hold that the results of such an investigation fall

within defense counsel's request for "police or investigative reports

excluding the Salt Lake District Attorney's work product, made

during the course of investigation or prosecution of this case.”

First, the facts gathered by the investigator were obviously

"reported” to the prosecutor. And they were the kind of material

that might well be memorialized in a written report and that

reasonable defense counsel might therefore expect to be produced

in response to a discovery request. And second, a contrary rule

would create a perverse incentive to gather evidence but not

reduce it to writing lest it fall within a discovery request. Because

the prosecution did not disclose this information to Redcap before

trial, we hold that the prosecution committed a second discovery

violation.

¶21 Having determined that the prosecution committed

discovery violations, we next consider whether Redcap has raised

a "credible argument that the prosecutor's errors . . . impaired” his

defense, thereby shifting to the State the burden of persuasion on

the issue of prejudice. See Knight, 734 P.2d at 921. "[I]n assessing

whether the defendant's argument of prejudicial impairment

[rings] sufficiently true to warrant shifting the burden of

persuasion to the State, we . . . take into account the centrality of

the matter affected by the prosecutor's errors.” State v. Bell, 770

P.2d 100, 106 (Utah 1988).

¶22 Redcap argues that the discovery violations impaired his

defense because, had the material been produced, he would have

conducted his defense differently. Specifically, he notes that if he

State v. Redcap

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had known of the limitations on the view from the cell he could

have more closely questioned Witness on direct examination to

establish which portions of the fight Witness was able to observe

and how he did so. He claims that this would have helped him

retain Witness's overall credibility. Redcap also suggests that his

counsel could have visited the cell and taken photographs from

different angles to show Witness's actual view, rehabilitating

Witness's credibility after impeachment. Finally, Redcap asserts

that his counsel could have interviewed other witnesses, of which

there were "up to 30,” in hopes of finding one with a clearer view

of the end of the fight.

¶23 In sum, Redcap points to several actions he could have taken

had he known of the Photographs. It is difficult to determine "from

the record, whether, absent the prosecutor's nondisclosures, the

defense would have been better prepared to meet” the testimony

impeaching Witness. See Knight, 734 P.2d at 921. Although for

reasons explained below we do not believe that the surprise

evidence was "pivotal,” see id., we conclude that Redcap has

presented a credible claim of impairment. Accordingly, the burden

rests upon the State to show that "there is no reasonable likelihood

that absent the error, the outcome of trial would have been more

favorable for the defendant.” See id.

¶24 After reviewing the record, we see no reasonable likelihood

that, absent the discovery violations, the outcome of trial would

have been more favorable for Redcap. First, Witness's credibility in

the eyes of the jury was in doubt even before the State impeached

him with the withheld evidence. Witness is a convicted felon

serving a life sentence for murder, kidnapping, and robbery. His

trial testimony that the fight started in front of his cell differed from

his earlier responses to investigators that the fight started by the

shower. And video evidence refuted Witness's responses to

investigators that Redcap was not wearing a shirt. Accordingly,

Witness was already subject to impeachment.

State v. Redcap

5. The investigator clarified that his testimony about Witness's

limited view "just challeng[ed] part of what [Witness] said, not the

whole statement” and admitted that "[o]bviously [Witness] saw

what happened originally down by the stairs in that area when

they were moving around in the common area.”

20120077-CA 12 2014 UT App 10

¶25 Moreover, the Photographs did not impeach the key

portions of Witness's trial testimony. He testified that Wilson had

previously threatened Redcap, that nothing obstructed his view

while the combatants were on the floor, and that he had seen

Wilson holding a shank at some point during the fight. He also

conceded that his view did not extend to the corners of the wall his

cell was set into.

¶26 While several of the Photographs show the view from inside

Witness's cell, none were taken from against the window, where

Witness would have had the widest possible view. Instead, they

were taken from several feet away from the window. Thus, none

of the Photographs depict the view Witness actually had. The

investigator admitted that the camera could not get as wide a view

as an "eyeball pressed to that window” and that Witness could

have seen most of the common area where the fight took place, the

tables where the laundry was placed, and the portion of the room

"where it started.” Because the Photographs did not show the

entirety of his view, they could not, by themselves, impeach his

testimony about what was within that view.

¶27 The prosecutor argued in his closing rebuttal that "[Witness]

says . . . he sees things that he doesn't see” and that Witness's

testimony that he could see the shower "is physically impossible.”

This comment may be understood as referring to the investigator's

testimony, when asked if Witness was "physically [able to] see

what he said he saw,” that the investigator did not "know how

[Witness] would [have been] able to.”5 But it may have been

referring to various other discrepancies in Witness's testimony. For

State v. Redcap

20120077-CA 13 2014 UT App 10

example, Witness testified that he saw Wilson run "to the shower

and close[] it” despite his own admission that his view did not

extend to the corners of the room (where the shower door was

located).

¶28 But even if the challenged photographs and testimony

marginally eroded Witness's credibility, unchallenged testimony

strongly supports Redcap's conviction. Both officers who

responded to the fight testified that, at least by the end of the fight,

Redcap was in possession of both shanks, one attached to each

hand. And Redcap's defense counsel conceded that Redcap had

brought at least one shank to the fight. The responding officers also

testified that Redcap had secured one shank by tying it to his hand

and had placed magazines under his sweatshirt, apparently as a

form of makeshift body armor. One officer testified that Redcap

was released from his cell to retrieve his laundry but did not return

to his cell and instead hid in the shower until Wilson was out of his

own cell. Furthermore, much of the encounter, including Redcap's

descending the stairs to confront Wilson, as well as part of the fight

itself, was captured on video.

¶29 In short, the evidence before the jury was that Redcap was

armed, armored, and lying in wait to ambush Wilson. Witness's

testimony did not contradict any of this evidence. Thus, even if

Witness had never been impeached by the investigator's testimony

or the Photographs, ample evidence before the jury refuted

Redcap's trial argument that he acted in self-defense.

¶30 "For an error to require reversal, the likelihood of a different

outcome must be sufficiently high to undermine confidence in the

verdict.” State v. Knight, 734 P.2d 913, 920 (Utah 1987). Considering

the totality of the evidence in this case and the limited scope of

Witness's testimony, our confidence in the verdict has not been

undermined. We conclude that the prosecution's discovery

violations did not affect Redcap's substantial rights. See Utah R.

State v. Redcap

20120077-CA 14 2014 UT App 10

Crim. P. 30(a). Therefore, the trial court did not abuse its discretion

in denying Redcap's motion for new trial.

II. Prosecutorial Misconduct

¶31 Redcap next contends that the prosecutor committed

misconduct during his rebuttal closing argument by describing the

prosecution's witnesses as credible, by suggesting that the

defense's witnesses did not take seriously the oath to tell the truth,

and by drawing a parallel between the prison and a zoo.

¶32 Because "closing arguments are not evidentiary in nature,”

trial counsel has wide latitude in closing arguments and is

"permitted to comment on the evidence already introduced and to

argue reasonable inferences therefrom.” State v. Tillman, 750 P.2d

546, 561 n.45 (Utah 1987). To determine whether remarks made by

a prosecutor require reversal, we consider whether the remarks

called the jurors' attention to matters which they would not be

justified in considering in reaching a verdict and, if so, whether the

remarks were harmless beyond a reasonable doubt. State v. Davis,

2013 UT App 228, ¶¶ 12, 18, 311 P.3d 538 (noting the unsettled

standard of prejudice and applying the harmless-beyond-areasonable-

doubt standard as a matter of caution "even though the

challenge to the error was unpreserved and does not involve a

violation of a fundamental constitutional right”).

¶33 "Claims of prosecutorial misconduct are subject to the

preservation rule.” State v. Pedersen, 2010 UT App 38, ¶ 11, 227 P.3d

1264. Redcap's trial counsel did not preserve the present claim.

"The failure of defense counsel to object to statements made by a

prosecutor during the closing is a matter to which we attach

significance.” Commonwealth v. Leach, 901 N.E.2d 708, 717 (Mass.

App. Ct. 2009). "It is not only a sign that what was said sounded

less exciting at trial than appellate counsel now would have it

seem, but it is also some indication that the tone and manner of the

State v. Redcap

20120077-CA 15 2014 UT App 10

now challenged aspect of the prosecutor's argument were not

unfairly prejudicial.” Id. (brackets, ellipsis, citations, and internal

quotation marks omitted).

¶34 Generally, where a defendant has not preserved a

prosecutorial misconduct claim, appellate review is limited to a

determination of whether it was plain error for the trial court not

to have intervened. See State v. Ross, 2007 UT 89, ¶¶ 17, 58, 174 P.3d

628; Davis, 2013 UT App 228, ¶ 24 & n.3; Pedersen, 2010 UT App 38,

¶ 11. To establish plain error, an appellant must show that "(i) [a]n

error exists; (ii) the error should have been obvious to the trial

court; and (iii) the error is harmful.” State v. Dunn, 850 P.2d 1201,

1208 (Utah 1993).

¶35 In addition, Redcap contends that, by not objecting, his trial

counsel "was not functioning as the 'counsel' guaranteed the

defendant by the Sixth Amendment.” Strickland v. Washington, 466

U.S. 668, 687 (1984). To establish ineffective assistance of counsel,

an appellant must show that (i) counsel's performance "fell below

an objective standard of reasonableness” and (ii) "there is a

reasonable probability that but for counsel's unprofessional errors,

the result of the proceeding would have been different.” Id. at 688,

694. "A fair assessment of attorney performance requires that every

effort be made to eliminate the distorting effects of hindsight, to

reconstruct the circumstances of counsel's challenged conduct, and

to evaluate the conduct from counsel's perspective at the time.” Id.

at 689.

A. Officers' Credibility

¶36 Redcap contends that it was improper for the prosecutor to

suggest that the jury find the testifying officers credible. In closing

argument, Redcap's counsel asserted that the officers were not

credible because "[t]hey've said they've seen things in the video

that just aren't there” and they "went so far as to refuse to

State v. Redcap

20120077-CA 16 2014 UT App 10

acknowledge that their views were obstructed.” He also argued

that one of the officers had "a job to do and that's to try to get a

conviction.” In response, the prosecutor argued that the officers

who testified for the prosecution were "credible, they have no

bias,” because "their job is to protect everybody out there” and

"[t]hey're on duty to protect all the inmates.”

¶37 When a prosecutor discusses the credibility of witnesses

during closing arguments, "'the evil to be guarded against' . . . is

that 'a juror would consider such statements to be factual

testimony from the prosecutor.'” State v. Davis, 2013 UT App 228,

¶ 35, 311 P.3d 538 (brackets omitted) (quoting State v. Lafferty, 749

P.2d 1239, 1256 (Utah 1988)). Consequently, "a prosecutor engages

in misconduct when he or she expresses personal opinion or asserts

personal knowledge of the facts.” State v. Bakalov, 1999 UT 45, ¶ 57,

979 P.2d 799. "However, a prosecutor may draw permissible

deductions from the evidence and make assertions about what the

jury may reasonably conclude from those deductions.” Id.

¶38 In determining whether a prosecutor's comments amount to

plain error, "we will consider the comments both in context of the

arguments advanced by both sides as well as in context of all the

evidence.” Id. ¶ 56. "It is well settled that prejudicial error does not

result from . . . improper remarks made during closing argument

when such remarks were provoked by the opposing counsel.”

United States v. Schwartz, 655 F.2d 140, 142 (8th Cir. 1981). The

"doctrine of fair reply” allows a prosecutor to make a

"counteracting statement” after "defense counsel [opens] the door

on the issue.” Id. We recently applied the fair reply doctrine in State

v. Wright, 2013 UT App 142, 304 P.3d 887. There, we held that a

prosecutor was "entitled to argue from the evidence at trial that [a

witness] had a different motivation” for testifying after the defense

"encouraged the jury to view the facts . . . in a manner that

supported [its] theory.” Id. ¶¶ 38–40.

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20120077-CA 17 2014 UT App 10

¶39 Here, the prosecutor's comments about the credibility of the

testifying officers were a fair reply to defense counsel's argument

that the officers were not credible and that they were tasked to

secure a conviction. In addition, the prosecutor's comments were

"permissible deductions from the evidence.” Bakalov, 1999 UT 45,

¶ 57. The officers had testified about the safety precautions taken

by the prison to keep certain inmates apart, to limit the number of

inmates out of their cells at any given moment, and to confiscate

shanks and other improvised weapons. This testimony supported

the prosecutor's assertion that the officers' "job is to protect . . . all

the inmates.”

¶40 Because these comments were unobjectionable, the trial

court was not obligated to intervene. See State v. Dunn, 850 P.2d

1201, 1208 (Utah 1993). And because "[t]he Sixth Amendment does

not require counsel to make futile objections,” State v. Ricks, 2013

UT App 238, ¶ 22 (citing State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d

52), Redcap's trial counsel did not render deficient performance by

failing to object to the comments.

B. Inmates' Credibility

¶41 Redcap also contends that the prosecutor committed

misconduct by suggesting that the jury discount the credibility of

Redcap's witnesses. In closing, Redcap portrayed his witnesses in

almost heroic terms: as inmates, they risked their lives to testify,

and "the only reason” they did so was because the charges against

Redcap were "such an injustice . . . that they had to do something

about it.” The prosecutor responded that inmates "don't treat the

oath to tell the truth with the same fervor that most people do” and

suggested that the prospect of a perjury conviction had little

deterrence value for them: when a witness is "in for life, what's a

lie?” He also suggested that the inmates' actual incentive to testify

was that coming to court was "a vacation” and "a day out.”

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20120077-CA 18 2014 UT App 10

¶42 As explained above, see supra ¶ 37, prosecutorial misconduct

occurs when the prosecutor "expresses personal opinion or asserts

personal knowledge of the facts.” State v. Bakalov, 1999 UT 45, ¶ 57,

979 P.2d 799. But a prosecutor does not commit misconduct if the

challenged comments do no more than "draw permissible

deductions from the evidence and make assertions about what the

jury may reasonably conclude from those deductions.” See id.

¶43 Here, the challenged comments replied to the defense's

closing argument and were reasonable deductions from the

evidence adduced at trial. Witness had testified that he had been

convicted of murder, kidnapping, and robbery. Another inmate

testified that he had been convicted of forgery, fraud, and giving

false information to the police. And the third testified that he had

been convicted of aggravated robbery. Moreover, portions of the

inmates' testimonies differed from that given by the officers, from

the video, and from statements the inmates had earlier given to

investigators. And a reasonable person might conclude that an

inmate serving a life sentence might be less deterred by the risk of

a perjury conviction than a non-inmate. In short, jurors could infer

from the trial evidence that these inmates did not take their oaths

"with the same fervor” as some other witnesses.

¶44 Accordingly, we conclude that the prosecutor did not

commit misconduct by inviting the jury to draw those inferences.

Consequently, the trial court committed no error by not

intervening. See State v. Ross, 2007 UT 89, ¶¶ 54–58, 174 P.3d 628.

Moreover, because we have determined that the prosecutor's

comments did not constitute misconduct, any objection to them at

trial would have been futile. "The Sixth Amendment does not

require counsel to make futile objections.” State v. Ricks, 2013 UT

App 238, ¶ 22 (citing State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52).

Accordingly, Redcap has not shown that his counsel's performance

"fell below an objective standard of reasonableness.” See Strickland

v. Washington, 466 U.S. 668, 688 (1984).

State v. Redcap

20120077-CA 19 2014 UT App 10

C. Denigration

¶45 Finally, Redcap contends that the prosecutor committed

misconduct when he "characterized the defense witnesses as zoo

animals who lived in cages and were governed by zoo rules” and

"called them convicts and criminals who should be sent to an

island to have at each other because they get what they deserve.”

He also argues that "the prosecutor compared Redcap to a

predator such as a wolf or fox.”

¶46 The challenged comments are best understood in context. In

closing argument, defense counsel stated, "You've heard about the

prisoners and how they live . . . I believe they live in a situation that

is inhuman. . . . [P]eople might think, well, they deserve what they

get[;] but it's still not a very pleasant situation, it's horrible.”

Responding to the idea that "people might think” that prisoners

"deserve what they get,” the prosecutor argued that they were

entitled to the protection of the law:

Defense counsel made a point [that] it's easy enough

to say that, you know what? These are convicts,

they're criminals, you've heard it, put them all on an

island, let them have at each other, you know

what, they get what they deserve. But the fact of the

matter is, the law says, the law that you need to

uphold is they all have rights, okay? Regardless of

what you think of the correctional system, they all

have rights.

The prosecutor then analogized the prison environment to a zoo:

They have rules out there, just like a zoo. The zoo has

rules, they keep certain predators and prey away

from each other for that reason. It's just like the zoo

in a lot of ways. You don't put the wolves by the

State v. Redcap

6. In closing, defense counsel described the prison in similar

language: "The prison system is so inhuman it drives men to

madness and it fuels violence among some, and they end up

fighting.”

20120077-CA 20 2014 UT App 10

lambs, you don't put the foxes and the chickens

together. You keep them apart because they don't get

along. It will not work. Just like . . . rival gangs, you

keep them apart.

¶47 Read in context, the prosecutor's comments did not

advocate, as Redcap claims, sending him or his witnesses to an

island to "get what they deserve.” The prosecutor was in fact

making the opposite point: that Redcap and the other inmates

should not be left to fend for themselves in a lawless environment,

but rather that life in prison, like life outside it, must be governed

by rules—in particular, he implied, rules requiring the prisoners to

be in their cells at certain times. This comment set up his statements

about separating predators from prey.

¶48 We agree with Redcap that the prosecutor analogized the

prison to a zoo where predators such as wolves and foxes were

caged separately from prey such as lambs and chickens. This

analogy to animals had a tendency to demean the inmates involved

in the case, including both Redcap and Wilson. The demeaning

tone of the analogy was underscored by the colloquial meaning of

the word zoo as "a place, situation, or group that is crowded, loud,

and uncontrolled.” Merriam-Webster.com, http://www.merriamwebster.

com/dictionary/zoo (last visited Jan. 13, 2014).6

¶49 Notwithstanding the negative implications of the word zoo,

the direct application of the prosecutor's analogy in context was

that Redcap and Wilson were not allowed to be out of their cells at

the same time. By clear implication, the comment cast

Redcap—armed, armored, and out of his cell—in the role of

State v. Redcap

20120077-CA 21 2014 UT App 10

predator and Wilson in the role of prey. Its thrust was to frame the

central question of the case—whether this was an unprovoked

attack or self-defense—in terms favorable to the prosecutor's

theory of the case. We thus conclude that these comments fall

within the "wide latitude” permitted trial counsel in closing

arguments. See State v. Tillman, 750 P.2d 546, 561 n.45 (Utah 1987).

Consequently, Redcap has not demonstrated that the prosecutor's

comment was so objectionable that it was "plain error for the trial

court not to have intervened,” see State v. Ross, 2007 UT 89, ¶ 58,

174 P.3d 628, or that his trial counsel rendered deficient

performance by not objecting, see State v. Ricks, 2013 UT App 238,

¶ 22.

¶50 But even if obvious error or deficient performance were

present here, Redcap suffered no reversible prejudice. Plain error

claims and ineffective assistance of counsel claims share a

"common standard” of prejudice. State v. Litherland, 2000 UT 76,

¶ 31 n.14, 12 P.3d 92; State v. Verde, 770 P.2d 116, 124 n.15 (Utah

1989). As explained above, see supra ¶ 32, out of an abundance of

caution, we have assumed the applicable standard in prosecutorial

misconduct cases to be harmless beyond a reasonable doubt.

¶51 The United States Court of Appeals for the Ninth Circuit has

stated, "Name calling is not an admirable style of argument and we

do not condone it, but this court has been reluctant to find it cause

for reversal.” United States v. Berry, 627 F.2d 193, 200 (9th Cir. 1980)

(citing United States v. Taxe, 540 F.2d 961 (9th Cir. 1976) (holding

that referring to defendant as a "scavenger” and "parasite” was not

a violation of due process, because evidence adduced at trial led to

a reasonable inference that defendant was profiting at the expense

of copyright owners)). Indeed, referring to the accused and the

victim as predator and prey, though widely criticized, rarely results

in reversal. See, e.g., Darden v. Wainwright, 477 U.S. 168, 180–83 &

n.12 (1986) (holding that a defendant was not denied a fair trial by

an "undoubtedly . . . improper” summation in which the

State v. Redcap

20120077-CA 22 2014 UT App 10

prosecutor compared the defendant to an animal who should only

be let out of his prison cell on a leash and stated that he wished the

victim had blown the defendant's face off and that the defendant

had used his final bullet on himself); Banks v. Workman, 692 F.3d

1133, 1149 (10th Cir. 2012) (holding that the prosecutor's calling the

defendant a "wild animal that stalks its prey,” "a predator who

lurks in the shadows,” a "monster who selects the most helpless

victims,” and a "Mafia style killer,” though "highly questionable at

best,” did not violate the defendant's constitutional rights); United

States v. Ebron, 683 F.3d 105, 142–43 (5th Cir. 2012) (the prosecutor's

statement that "[l]ions and tigers . . . do not stalk animals they're

not going to kill, and what we saw on that videotape was nothing

less than predators stalking someone who was about to be killed”

and suggestion to the jury that a photograph in evidence depicted

"two predators set up, prestaged, ready to go kill their quarry”

were "colorful pejoratives” but not "so inflammatory that they

substantially affect a defendant's right to a fair trial” and thus not

improper); Hein v. Sullivan, 601 F.3d 897, 913, 916 (9th Cir. 2010)

(holding that, though improper, a prosecutor's comparison of the

defendants to "a pack of wolves” did not affect the fairness of their

trial); Jackson v. McKune, 121 F. App'x 830, 833 (10th Cir. 2005)

(order denying a certificate of appealability after agreeing with the

Kansas Supreme Court that a prosecutor's comments likening a

defendant to a "'wild animal' preying on victims . . . did not have

a substantial effect on the outcome of the trial”); Williams v. State,

627 So. 2d 994, 996 (Ala. Crim. App. 1992) (the prosecutor's

reference to the defendant as "a predator” was a "legitimate

comment[] on the evidence presented at trial”); People v. Hines, 938

P.2d 388, 433 (Cal. 1997) (noting that, although an appellate

challenge was barred by the defendant's failure to object at the

penalty phase, the prosecutor's reference to the defendant as a

"predator” was "[i]n any event [a] fair comment on the evidence

presented at trial”); People v. Alvarez, 926 P.2d 365, 419 (Cal. 1996)

(calling the defendant a "creep” and "worse than a predator[]” was

not prosecutorial misconduct, because, although "unnecessarily

State v. Redcap

20120077-CA 23 2014 UT App 10

colorful,” the comments "were consistent with the evidence”);

People v. Gomez, No. B219012, 2011 WL 1664734, at *8 (Cal. Ct. App.

May 4, 2011) (the prosecutor's statements, "I just want to talk about

prey and predators,” "[t]here are foxes and there's hawks,” the

named victim "is prey,” and the defendant "is a predator,” were

not improper because they were "fair comment[s] on the

evidence”); People v. Ivory, 776 N.E.2d 763, 772–73 (Ill. App. Ct.

2002) (prosecutor's reference to the defendant as "a wolf in sheep's

clothing” and argument that he "was part of a pack of predators,”

though improper, was not reversible error); Jones v. State, 389

S.W.3d 253, 257–58 (Mo. Ct. App. 2012) (the prosecutor's closing

argument that the defendant "is a predator” and that the victims

"were the perfect prey” was not an improper personalization

because it "did not imply that [the defendant] posed a personal

danger to the jurors or their families”); People v. Chapin, 697

N.Y.S.2d 713, 715 (App. Div. 1999) (although prosecutorial

comments characterizing the defendant as a "predator” were

inappropriate, they were "not so egregious to warrant reversal in

light of the totality of the evidence” and the trial court's curative

instructions); People v. Brown, 675 N.Y.S.2d 461, 462 (App. Div.

1998) (the prosecutor's use of the word "predator” did not warrant

reversal because defense counsel did not specifically object to all of

the challenged comments and, where objections were raised, any

prejudice was ameliorated by the trial court's limiting instructions

and the overwhelming proof of guilt); State v. Trull, 509 S.E.2d 178,

195 (N.C. 1998) (referring to the defendant as a "predator” was

"not so grossly improper as to require the trial court to intervene”);

Commonwealth v. Miles, 681 A.2d 1295, 1302–03 (Pa. 1996)

(concluding that a prosecutor's comparison of the defendant's

actions to the hunting style of "animals of prey” "did not . . . reveal

his personal opinion of the defendant's guilt” and was, in any

event, harmless beyond a reasonable doubt); State v. Webb, 697

S.E.2d 662, 664–65 (S.C. Ct. App. 2010) (the prosecutor's

comparison of the defendant to "hyenas”; description of hyenas as

"wild, feral, a scavenger, a predator,” and "vicious animals,

State v. Redcap

20120077-CA 24 2014 UT App 10

predatory scavengers always looking for the easy prey”; and

request to the jury to "cage this wild animal” "did not so infect the

trial” as to deny the defendant due process); Payne v.

Commonwealth, 509 S.E.2d 293, 299 (Va. 1999) (calling the defendant

a "predator” and a "monster” was a "fair comment on properly

admitted evidence” in a sentencing hearing before a jury to

determine whether the defendant would receive the death penalty);

Tennant v. State, 786 P.2d 339, 346 (Wyo. 1990) (calling the

defendant a "leech, a blood sucker, and a predator” was not

prosecutorial misconduct under the plain error doctrine and in

light of the record as a whole).

¶52 Predator references and animal analogies generally result in

reversal only when combined with other, more egregious

comments. See, e.g., Bates v. Bell, 402 F.3d 635, 643–49 (6th Cir. 2005)

(granting writ of habeas corpus due to the prosecutor's repeated

reference to the defendant as a "rabid dog,” the prosecutor's

closing argument to the effect that failing to sentence the defendant

to death would constitute sentencing future victims to death, the

prosecutor's direct "appeal to the fears of individual jurors and to

emotion,” and explicit expressions of the prosecutor's personal

opinions, which together called into question "the fairness of the

entire sentencing hearing”); United States ex rel. Griffith v. Hulick,

587 F. Supp. 2d 899, 912 (N.D. Ill. 2008) (granting writ of habeas

corpus on the ground that the prosecutor's "dehumanizing litany”

comparing the defendant to a "deranged Energizer bunny, a

walking barbeque tongs, and . . . a grenade in a baby carriage,” and

the prosecutor's "deliberate deception to win admission of highly

prejudicial evidence, and her subsequent misuse of that evidence”

resulted in a denial of due process). Cf. Commonwealth v. Scarfo, 611

A.2d 242, 283 (Pa. Super. Ct. 1992) (a prosecutor's reference to a

defendant as "a vicious vermin” and closing argument that "we

have all the wolves and the leader of the pack in this room here on

trial for the cowardly killing of the old, beaten, infirm[] prey of [the

victim]” was improper and denied the defendants a fair trial),

State v. Redcap

20120077-CA 25 2014 UT App 10

superseded by statute on other grounds as stated in Commonwealth v.

Buck, 709 A.2d 892, 895 (Pa. 1998).

¶53 "In reviewing whether the jury was influenced by the

[prosecutor's] statement, we consider the circumstances of the case

as a whole.” State v. Kozlov, 2012 UT App 114, ¶ 43, 276 P.3d 1207

(citation and internal quotation marks omitted). The prosecutor's

comments here were confined but somewhat lengthy. And because

they were made in rebuttal, the comments enjoyed a place of

relative prominence in the trial as a whole, and Redcap had no

opportunity to respond to them. On the other hand, the comments

were themselves in part responsive to the defense's closing

argument. The prosecutor did not misstate the evidence but rather

framed the evidence in terms of the prosecution's theory of the

case—albeit using a demeaning analogy. The analogy compared all

the inmates to zoo animals and branded Redcap a predator. But the

analogy was not inflammatory in the sense of implying that, if

acquitted, Redcap might pose a threat to the jurors or their families.

Moreover, the trial court repeatedly instructed the jury that the

lawyers in the case were advocates and thus "[w]hat they may

have said at any time during the proceedings and what they say

during their closing arguments is not evidence.” The court's

instructions also included an admonition that the jurors not allow

themselves to be influenced by "any bias, sympathy, or prejudice

that you may feel toward one side or the other.”

¶54 Most importantly, the evidence against Redcap was

weighty. As noted above, see supra ¶ 28, Redcap tied at least one

shank to his hand, wrapped magazines around his torso in a form

of makeshift body armor, and lay in wait for Wilson rather than

returning to his cell as required. Moreover, his ambush of Wilson

and much of the ensuing fight were recorded on video. In the face

of this uncontroverted evidence, Redcap's defense was that he

acted in self-defense.

State v. Redcap

7. Redcap also suggests that the prosecutor denigrated his defense

as untrue by arguing to the jury, "You look at the video and [ask]

why are we here?” and "Based on the evidence and

testimony . . . this seems fairly clear.” However, when read in

context, the prosecutor was in fact explaining that "regardless of

how good the evidence, everybody has a right to trial” even "if

there's video” of the event in question. Accordingly, we do not

agree with Redcap's assertion that these statements "stated a

personal opinion,” "denigrated the defense as obviously false,” or

"urged the jurors to feel personal hostility towards Redcap.”

20120077-CA 26 2014 UT App 10

¶55 We agree with the Ninth Circuit that "[n]ame calling is not

an admirable style of argument and we do not condone it.” United

States v. Berry, 627 F.2d 193, 200 (9th Cir. 1980). Nevertheless, the

prosecutor's comments challenged on appeal do not undermine

our confidence in the jury's verdict. We conclude that they were

harmless beyond a reasonable doubt.7 See supra ¶ 32.

III. Cumulative Error

¶56 Redcap next contends that even if the errors committed at

trial are insufficient to warrant reversal individually, this court

"should reverse because the cumulative effect of the several errors

undermines confidence” that Redcap had a fair trial. "Under the

cumulative error doctrine, we will reverse only if the cumulative

effect of the several errors undermines our confidence . . . that a fair

trial was had.” State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993). Here,

we determined that the prosecution committed two discovery

violations, but concluded that they did not warrant reversal due to

the strong evidence supporting Redcap's conviction. We also

rejected Redcap's other claims of error. Our confidence that Redcap

received a fair trial has not been undermined. Accordingly, we

reject Redcap's cumulative error claim.

State v. Redcap

20120077-CA 27 2014 UT App 10

CONCLUSION

¶57 The prosecution committed discovery violations by keeping

the Photographs from Redcap and by failing to provide Redcap

with the results of the investigator's second investigation.

However, these discovery violations did not affect Redcap's

substantial rights. The prosecutor's closing rebuttal arguments

relating to the credibility of witnesses were supported by record

evidence. His other comments that compared inmates to animals

did not constitute prosecutorial misconduct, were not so obviously

erroneous as to alert the trial court that intervention may have been

required, and did not prejudice Redcap under any standard.

Finally, we reject Redcap's cumulative error claim because our

confidence in the fairness of his trial has not been undermined.

¶58 Affirmed.