Monday, January 23, 2006

Criminal Procedure

State v. Devey, 2006 UT App 219

According to the court of appeals, when a defendant claims that no crime was committed, as in a rape case where the rapist claims it was consensual or that there was no intercourse, the State cannot refer to the complaining witness as "the victim." It violates the defendant's right to a presumption of innocence.


The State is entitled to present a theory of the case that is consistent with the evidence. This includes calling a complaining witness "the victim," and calling the defendant "a rapist," "a murder," or "a child molester."

The court of appeal's rule is absurd. The State presented evidence that Devey touched his daughters genitals, showed her pornography, had vaginal and anal intercourse with her, and inserted a vibrator in her vagina. But when it called his daughter "a victim," it infringed on the presumption of innocence? Gimmee a break. The State's job is to overcome the presumption of innocence, not abide by it.

In fairness, I think the rule has merit as applied to the court. A judge is supposed to be a neutral party. Where the defendant claims no crime was committed, it would be best if the court refrained from calling anyone a victim, just as it should not call the defendant a murder, rapist, or child molester. But prohibiting the prosecution from telling the jury how they see it infringes on the State's right to present its case.

Brigham City V. Stuart, 547 U.S. ___ (2006)

The U.S. Supreme Court reversed the Utah Supreme Court in a 9-0 decision in the Brigham City case. The Court's opinion, Chief Justice Roberts writing, is short and very straightforward: The test for reasonableness under the Fourth Amendment is an objective one. "An action is 'reasonable' under the Fourth Amendment, regardless of the individual officer's state of mind, 'as long as the circumstances , view objectively, justify [the] action." (quoting Scott v. United States, 436 U.S. 138 (1978)). The only exception the Court noted was for "programmatic searches conducted without individualized suspicion," like drunk driving checkpoints. But in those cases, the subjective inquiry goes to the purpose of the program and not to the mind of the individual officer.

The Court then held that the officers' entry was objectively reasonable:

In these circumstances, the officers had an objectivelyreasonable basis for believing both that the injured adult might need help and that the violence in the kitchen was just beginning. Nothing in the Fourth Amendment required them to wait until another blow rendered someone unconscious" or "semi-conscious" or worse before entering. The role of a peace officer includes preventing violence and restoring order, not simply rendering first aid to casualties; an officer is not like a boxing (or hockey) referee, poised to stop a bout only if it becomes too one-sided.

The Court also held that their manner of entry was reasonable:

After witnessing the punch, one of the officers opened the screen door and "yelled in police." Id., at 40. When nobody heard him, he stepped into the kitchen and announced himself again. Only then did the tumult subside. The officer's announcement of his presence was at least equivalent to a knock on the screen door. Indeed, it was probably the only option that had even a chance of rising above the din. Under these circumstances, there was no violation of the Fourth Amendment's knock-and-announce rule. Furthermore, once the announcement was made, the officers were free to enter; it would serve no purpose to require them to stand dumbly at the door awaiting aresponse while those within brawled on, oblivious to their presence.
Justice Stevens wrote separatete concurrence, arguing that while the outcome was correct, the case was not cert-worthy. He notes that the Utah Supreme Court will likely redecide this question in another case in the future and that it will use the Utah State Constitution to reinstate its holding in Brigham City. In essence, he seems to reject the long-standing rule that courts must expressly state when their decisions are based on state constitution law, and implicitly proposes that the Court reject cert on any case that could have been based on a state constitution.

Stevens misses the fact, however, that courts were split on whether the emergency aid doctrine required a subjective inquiry into the officer's motivationon for conducting the search or seizure. The Court noted:

We granted certiorari, 546 U. S. ___ (2006), in light of differences among state courts and the Courts of Appeals concerning the appropriate Fourth Amendment standard governing warrantless entry by law enforcement in an emergency situation. Compare In re Sealed Case 96-3167, 153 F. 3d 759, 766 (CADC 1998) ("[T]he standard for exigent circumstances is an objective one") and People v. Hebert, 46 P. 3d 473, 480 (Colo. 2002) (en banc) (considering the circumstances as they "would have been objectively examined by a prudent and trained police officer"),with United States v. Cervantes, 219 F. 3d 882, 890 (CA9 2000) ("[U]nder the emergency doctrine, '[a] search must not be primarily motivated by intent to arrest and seize evidence'" (quoting People v. Mitchell, 39 N. Y. 2d 173, 177, 347 N. E. 2d 607, 609 (1976)) and State v. Mountford, 171 Vt. 487, 492, 769 A. 2d 639, 645 (2000) (Mitchell test "requir[es] courts to find that the primary subjective motivation behind such searches was to provide emergency aid").

State v. Atkin, 2006 UT App 155

For five hours early Sunday morning, Atkin beat and terrorized his girlfriend in her apartment. He ripped the phone out of the wall when she tried to call for help and later forced her to drive him home from Brigham City to Logan. Atkin's girlfriend managed to escape when she stopped at a 7-Eleven for a drink and the store clerk called the police. He was convicted of forcible sexual abuse (for painfully tweaking her breast), assault, aggravated kidnapping, and interruption of communications device.

On appeal there were three issues:

(1) Do assault and forcible sexual abuse (FSA) punish the same conduct under State v. Shondel, 453 P.2d 146 (1969)? Obviously not. The elements are entirely different, particularly the mens rea requirements. Forcible sexual abuse, which requires the intent to gratify a sexual desire or cause substantially bodily pain, requires proof of the reason the actor touched the person. Assault, on the other hand, merely requires intent to commit an act that causes or creates a substantial risk of bodily injury. In other words, with assault you just have to intend to touch victim, it doesn't matter why. But with FSA, you have to touch them for a specific reason.

(2) Should the agg kidnapping charge and the FSA charge merge under State v. Finlayson, 2000 UT 10, 984 P.2d 1243? Again, obviously not. The forcible sexual abuse lasted for a few seconds. The agg kidnapping lasted pretty much the whole morning. So the agg kidnapping was not merely incidental to the FSA.

(3) Did the trial court err in admitting evidence of Atkin's prior bad acts, including his domestic violence and drug use? Defendant took the stand and accused the victim of using meth and attacking him. He related several instances of her prior acts of domestic violence. So the prosecutor got up and put on evidence that defendant was a drug user and had abused his past girlfriends and his aunt. The court of appeals held that the evidence of defendant's bad character was all properly admitted for a non-character reason: to impeach his credibility. Defendant had denied using meth at the time of the crimes and had disputed his criminal record, so evidence of his history of abuse and drug use was properly admitted to contradict his testimony.

State v. Halls, 2006 UT App 142

In State v. Reyes, 2005 UT 33, the supreme court threw out the requirement from State v. Robertson, 932 P.2d 1219 (Utah 1997), that a reasonable doubt jury instruction require the prosecution to "obviate all reasonable doubt."

Halls had a jury instruction that required the prosecution to "eliminate all reasonable doubt." He complained that the instruction was manifest error under Reyes. The court of appeals disagreed. It held that the phrase "eliminate all reasonable doubt" is ok, so long as the jury instruction as a whole adequately communicates the principle of reasonable doubt, which is the new test under Reyes.

Bluemel v. State, 2006 UT App 141

Blumel pled guilty to having sex with her fourteen year-old foster son. She pled guilty and got sentenced to three concurrent prison terms of five years to life. She allegedly asked her attorney to file an appeal, but no appeal was filed. More than two years after sentencing, Bluemel got a new attorney and filed a post-conviction petition.

The State moved to dismiss the peition because it was untimely (filed more than a year after the last day to file a direct appeal) and the interests-of-justice exception did not apply. The trial court agreed and tossed the case.

The court of appeals disagreed and reversed. It held that the plea-taking court had failed to properly incorporate Bluemel's plea affidavit and failed to inform her of several rule 11(e) (criminal rules) rights. The court then determined that "non-compliance with rule 11 readily falls within the interests-of-justice exception under the [Post-Conviction Remedies Act (PCRA)]."

State v. Workman, 2006 UT App 116

Venue was proper in Utah county for Workman's theft by recieving conviction, even though Workman lived in Salt Lake County and the stolen item, a 1998 Mitsubishi Mirage, was stolen in Salt Lake County. The car was found by police in Utah county in the possesion of Workman's girlfriend.

The court of appeals looked to the venue statute, Utah Code Ann. 76-1-202(1)(g)(iii), which says that venue for a theft charge is proper in any county where the defendant exercises control over the stolen property. Whether Workman exercised control over the car is a fact sensitive question, so the court of appeals gave the trial court some deference in the application of the facts to the venue statute. The court of appeals ultimately concluded that venue was proper because Workman had only loaned the car to his girlfriend, and she had contacted him while in Utah county to get his permission to keep the car there another day.

Schultz v. State, 2006 UT App 105

Once a client says he does not want to appeal an adverse ruling, his attorney has no duty to file a notice of appeal or even to check back with the client to make sure he hasn’t changed his mind.

The client in this case was mentally impaired, but found competent to stand trial. He later claimed that his attorney never explained his right to appeal. The attorney claimed that he did and that the client choose not to appeal. After post-conviction hearing on ineffectiveness, the trial court believed the attorney over the client.

State v. Guzman, 2006 UT 12

Guzman was the primary participant in a brutal home invasion. The victim identified him in a photo array and a line-up and said she was 100 % certain he was the guy. She was allowed to testify about her certainty at trial, and Guzman was convicted. He claimed on appeal that admitting evidence of an eyewitness’s subjective certainty of identification violates the Due Process clause of the Utah Constitution and rule 403, Utah Rules of Evidence. The supreme court disagreed:
[B]oth our case law and modern sociological research support the admission of testimony concerning an eyewitness’s certainty of identification. A jury ought to be able to consider certainty evidence in determining a witness’s credibility and portrayal of the facts. The jury may then decide, based on the remaining facts, whether the certainty testimony is accurate and truthful. However, we do not require the court or the jury to consider a witness’s level of certainty in determining admissibility or reliability, as indicated by its exclusion from the Long factors. Nevertheless, due process is not violated by permitting the court or the jury to weigh certainty testimony with all other evidence it considers in making necessary determinations.
Justice Durham wrote a concurring opinion in which she agreed with the majority, but added that courts should also be required to issue a cautionary instruction about eyewitness certainty evidence.

State v. Billsie, 2006 UT 13.

In a child sex abuse trial, the judge permitted the child-victim to testify with her mother sitting behind her. The mother was also a witness in the trial. Billsie was convicted and claimed on appeal that the court abused its discretion in allowing the mother to remain and to sit behind the child.

In a bizarre 1-1-1 split, the court of appeals affirmed. One judge dissented without opinion. One judge concurred in the result without explanation. And one judge wrote the “majority opinion”—a majority of one.

The supremes granted cert and affirmed. The purpose of the witness exclusion rule is to prevent witnesses from changing their testimony based on the evidence at trial. But under rule 615(1)(c), Utah Rules of Evidence, the trial court may allow a witness to remain in the courtroom if his or her presence is essential to a party’s case.

Billsie made no showing that the mother changed her testimony or that he was otherwise prejudiced by her remaining in the courtroom. So the supreme court held that the trial court properly allowed her to stay.

The court also found no error in allowing the mother to sit behind the daughter. “Children called to testify may have an adult accompany them while on the witness stand.” The victim here was eight when she testified, so the court was well within its discretion to allow the mother to accompany the child. Also, because the mother was behind the child, there was little chance that the mother could influence the daughter’s testimony.

State v. Martinez, 2006 UT App 76

Martinez argued that Utah Code Ann. §§ 41-6-166 (1998) limits police discretion to arrest for a misdemeanor traffic offense to only certain situations specifed in that section. The court of appeals disagreed. Section 166 merely dictates post-arrest procedures.

But the legislature repealed section 166 last year when it renumbered the traffic code. So this published decision is of no value, unless you are Michael Martinez, in which case it means your conviction for meth possession will stand.

State v. The Honorable Stephen L. Henriod, 2006 UT 11

Greg Jonas was charged with molesting his six-year old daughter. The State moved to allow the daughter to testify at trial via closed circuit camera in another room, as permitted by rule 15.5(2), Utah Rules of Criminal Procedure. The State claimed that requiring the child to testify in the physical presence of her father would cause serious mental and emotional strain. Judge Henriod denied the motion under Crawford v. Washington, and the State appealed.

In the supreme court, the State claimed that testimony by camera satisfied the Confrontation Clause, relying on a Maryland v. Craig, 497 U.S. 836 (1990). Jonas argued that Crawford v. Washington, 541 U.S. 36 (2004), overruled Craig.

Under Craig:
[W]here necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child’s ability to communicate, the Confrontation Clause does not prohibit the use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation.
Henriod, 2006 UT 11, ¶ 11 (quoting Craig, 497 U.S. at 857). Craig went on to uphold a Maryland statute that permitted children to testify by camera when the judge determined that testimony in the courtroom would result in the child suffering serious emotional distress such that the child could not reasonably communicate.

The supreme court decided that Crawford did not overrule Craig. It explained,

The Crawford majority opinion not only failed to explicitly overrule Craig, but also failed to even mention it. Moreover, we do not believe Crawford implicitly overruled Craig because neither the majority nor the concurrence even discussed out-of-court testimony by child witnesses. By its own terms, the Crawford holding is limited to testimonial hearsay.
Henriod, 2006 UT 11, ¶ 16. The court also noted that other jurisdictions to consider the issue had decided that Crawford did not overrule Craig.

The court’s opinion concluded by noting that the court was not ruling that Jonas’ daughter could testify by camera, or even that rule 15.5 satisfied the requirements of Craig. It was only holding that Craig was not overruled by Crawford. Thus the question of whether rule 15.5 complies with Craig and with the Confrontation Clause remains open for debate.

State v. Perez-Avila, 2006 UT App 71

The court of appeals held that DUI is lesser-included offense of automobile homicide and that a defendant cannot be convicted of both offenses in the same course of conduct.

Perez-Avila rolled his pickup truck on I-15 just south of Leeds, Utah. The accident killed his pregnant wife and seriously injured his two children. A sample of Perez-Avila’s blood taken shortly after the accident contained three times the legal limit of alcohol. He was subsequently convicted of a variety of charges, including two counts of automobile homicide and one count of DUI.

On appeal, Perez-Avila claimed his claimed his trial counsel was ineffective for (1) failing to move to suppress the blood-alcohol evidence and (2) failing to move to merge the DUI conviction into the automobile homicide convictions.

The court of appeals found no ineffectiveness in the first claim because a motion to suppress would have been futile. Perez-Avila was unconscious when his blood was drawn, and under Utah’s implied consent law, a DUI suspect’s implied consent remains in force if he is dead, unconscious, or otherwise incapable of refusing consent.

As to the second claim, the court found that trial counsel was ineffective because a motion to merge the offenses would have been granted. The court first noted that DUI is a lesser included offense of automobile homicide because all of the elements of DUI must be established to prove automobile homicide. Compare Utah Code Ann. § 44-6a-502 and Utah Code Ann. § 76-5-207. Under the merger doctrine found in Utah Code Ann. § 76-1-402, the offenses should merge.

The State argued, however, that auto homicide is an enhancement offense, similar to felony murder. That is, it takes an act that is a lesser crime or no crime at all and enhances it to a greater crime based on a predicate offense. The Utah Supreme Court carved out an exception to the merger doctrine for enhancement offenses in State v. McCovey, 803 P.2d 1234 (Utah 1990). The State asserted that DUI is a predicate offense to auto homicide because it raises a class A misdemeanor negligent homicide to a second degree felony when the actor also commits DUI.

The court disagreed. It concluded that the supreme court’s recent opinion in State v. Smith, 2005 UT 57, limits the exception in the merger doctrine for enhancement offenses. The exception only applies when there is a clear legislative intent to create an enhancement statute. The court gave two examples when this might occur.

First, the statute might create a graduated punishment scale within itself based on the commission of other offenses. For example the crime of carrying a concealed weapon is enhanced if the offense is committed in conjunction with a crime of violence like aggravated assault. In such a case, aggravated assault is a predicate offense that enhances the penalty for carrying a concealed weapon.

Second, the statute might explicitly state that it should not merge with lesser offenses. The burglary statute, for example, lists the offenses that turn criminal trespass into burglary and then states that burglary is a separate offense from any of those offenses.

The auto homicide statute does not fit either of those circumstances. It does not explicitly state that it is a separate offense from DUI. Nor does the level of the offense change within the statute based on the commission of DUI. Auto homicide changes its level of offense based on the mens rea—criminal negligence as opposed to simple negligence—not the commission of DUI. Thus it is not a true enhancement offense, and a drunk driver involved in a fatal accident may not be convicted of both auto homicide and DUI.

State v. Torres-Garcia, 2006 UT App 45

After a dispute over heroin, Torres-Garcia executed Todd Irwin in a hotel room in front of Irwin’s wife. The court of appeals reversed Torres-Garcia’s murder conviction because he did not receive adequate notice of the State’s expert witness or a continuance.

Although the State served a notice of the witness, Craig Watson, on Torres-Garcia more than thirty-days before trial, it sent the notice to the wrong defense attorney and to the wrong address. Torres-Garcia thus did not discover Watson until five days before trial. The trial court determined that Torres-Garcia was entitled to a continuance to prepare for the witness. The State opted instead not to use Watson’s testimony.

The day of trial, the State pointed the court to an exception in the expert witness notification statute, section 77-17-13(6), for government employees. Because Watson was an investigator in the district attorney’s office he fell under the exception. The court let him testify without granting Torres-Garcia a continuance.

In reversing, the court of appeals focused not on whether the State had complied with the expert witness statute, but rather, on the State flip-flopping before trial:

The essence of the trial court’s error is that it initially ruled one way on the use of Watson as an expert witness, prompting an important concession by the State, and then reversed itself on the morning trial began. The trial court should have recognized that this “false start” lulled Defendant into a state of understandable complacency as concerns giving any pretrial attention to Watson’s expert testimony.

. . .

Thus, given the court’s initial ruling that notice was insufficient and the State’s agreement not to use Watson as an expert, the real problem here was that defendant had no reason in the key preparation days immediately before trial, to think Watson’s expert testimony would be used at trial nor any motive to prepare to meet the testimony.

The court of appeals further held that Torres-Garcia was prejudiced by the failure to grant a continuance because Watson’s testimony substantially rehabilitated the seemingly inconsistent testimony of the State’s only witness to the murder, Irwin’s coke-head wife.

Editor’s note: I disagree with the court’s analysis on prejudice. The court correctly determined that Watson’s testimony destroyed Torres-Garcia’s defense and hurt defense counsel’s credibility. It also correctly noted that the trial court’s failure to grant a continuance prohibited defense counsel from coming up with a new defense.

But that’s not the test for prejudice. An error is prejudicial only if, absent the error, there is a reasonable likelihood of a different outcome. Merely showing that denial of a continuance hurt defendant’s case is insufficient. The court must also determine that defendant could have used the continuance to come up with a response to the expert that would have altered the outcome of the trial.

The court of appeals opined that defense counsel might have used a continuance to prepare to meet Watson’s testimony in other ways—like attacking Watson’s qualifications or reorganizing the defense strategy. But that’s mere speculation, not a showing of a reasonable likelihood of a different outcome. It’s only prejudice if Watson’s qualifications are actually impeachable, or if there is some other viable defense strategy that would result in an acquittal. Absent such a showing, the court is reversing a murder conviction on mere speculation that a retrial might end in acquittal.

State v. Todd, 2006 UT 7

If you practice criminal law, pay attention.

Under rule 24, Utah Rules of Appellate Procedure, the ten-day window to file a motion for a new trial runs from "imposition of sentence." The court of appeals construed that phrase to mean when the district court enters a signed written sentencing order. In other words, entry of judgment The supreme court disagreed and said that "imposition of sentence" means announcement of sentence. In other words, when the judge tells you to go to jail, not to pass go, and not to collect $200.

This distinction is important because it can affect the time to file your notice of appeal. Under rule 4(b), Utah Rules of Appellate Procedure, certain post-judgment motions, if timely filed, toll the time to file a notice of appeal until the court enters an order granting or denying the motion.

The time to file the civil 4(b) motions runs from "entry of judgment," which is construed as entry of a signed final order. But the time to file a criminal new trial motion (which is the only criminal 4(b) motion) runs from "imposition of sentence." Thus, under Todd, if the court announces sentence, but doesn't enter its sentencing order for a couple of days, the time to file your new trial motion and toll the time appeal under rule 4(b) runs from announcement of sentence, not entry of the order.

The criminal rules advisory committee would be wise to propose an amendment bringing the timing of a criminal new trial motion in line with the civil motions.

State v. Lee, 2006 UT 5

Lee claimed the trial court plainly erred by failed to sua sponte merge his aggravated kidnapping conviction into his aggravated assault conviction. The supreme court decided to take this occasion to clarify the relationship between the merger doctrine as explained in State v. Finlayson, 2000 UT 10, 994 P.2d 1243, and the merger provision in Utah Code Ann. § 76-1-402(3).

Essentially, section 76-1-402(3) applies to the merger of lesser included offenses, such as robbery and theft. Finlayson, on the other hand, applies to the merger of crimes that, in some factual scenarios, are so related that they must merge, like kidnapping and rape (every rape involves detention of victim to some degree). The court directs future litigants to consider both section 76-1-402 and Finlayson:

[A] proper merger analysis requires consideration of both section 76-1-402 and the Finlayson factors. If one conviction is a lesser included offense of another conviction under section 76-1-402, the convictions merge. If not, Finlayson factors must be assessed to determine whether merger is appropriate.

State v. Johnson, 2006 UT App 3

The court of appeals affirmed Johnson’s sentence over his claims that the trial court failed to resolve a factual dispute in his presentence report (“PSI”).Johnson pleaded guilty to two attempted child sex offenses. One of them carried a mandatory prison term. At sentencing, he contested the accuracy of a 1978 lewdness charge in his PSI. Johnson claimed the charge was for public urination and that it was dropped. But his rap sheet stated that he had served 30 days in jail and was on probation for six months. The lewdness conviction and the subsequent probation, if accurate, raised Johnson from a category I to a category two on the sex offender sentencing matrix, resulting in a recommended sentence of sixty-two months rather than forty-two months. Neither Johnson nor the Adult Probation & Parole officer who compiled the PSI had any other evidence of the 1978 charge. So, the trial court declined to amend the PSI. It also decided that the seriousness of Johnson’s convictions and the mandatory prison term made the alleged inaccuracy in the PSI and the resulting increase on the matrix irrelevant.

In the court of appeals, Johnson claimed that the trial court failed to comply with Utah Code Ann. § 76-18-1(6)(a). That section states that if the parties cannot resolve disputes over the accuracy of the PSI, the court “shall make a determination of relevance and accuracy on the record.” The court of appeals held that “by further addressing Johnson’s argument and requesting additional testimony from the probation officer regarding the past supervision, the trial court recognized on the record the relevance of the contested information at sentencing.”

The important part of the court’s opinion, however, is in footnote two. There the court of appeals noted, “[T]he role of the judge at sentencing is to determine whether to impose prison terms or probation using the guidelines.” It concluded, “Thus, although the court below recognized the importance of determining whether the information contained in the PSI was relevant and accurate, it was correct in stating that the one point was irrelevant to its own sentencing determination.”

In other words, for sentencing purposes, a bump in the matrix is irrelevant if one of the convictions carries a mandatory prison term. The bump only affects defendant’s recommended parole date, which the sentencing court has no control over.

State v. Orr, 2005 UT 92

Q: What due process is required to extend probation?

A: Minimal due process.

The court clarifies the due process requirements for criminal probation extension. All you need is (1) notice of the violation before the end of the probationary period, (2) a hearing, and (3) written findings on the evidence and the reasons for revoking probation. In a pinch, a transcript of oral findings at the hearing will do.


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