Date: 01-16-2014

Case Style: State of Utah v. Nathan Redcap

Case Number: 2014 UT App 10

Judge: Voros

Court: The Utah Court of Appeals on appeal from the Third District Court, Salt Lake Department

Plaintiff's Attorney: Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee

Defendant's Attorney: Lori J. Seppi, Attorney for Appellant

Description: ¶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.
State v. Redcap
20120077-CA 3 2014 UT App 10
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
20120077-CA 7 2014 UT App 10
¶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
20120077-CA 8 2014 UT App 10
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
20120077-CA 11 2014 UT App 10
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.
State v. Redcap
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.”
State v. Redcap
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.

Outcome: ¶58 Affirmed.

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