Sexually abused child cannot be called "the victim"

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.

Baloney.

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 rev'd 9-0 by Supreme Court

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").

Polygamous or plural marriages are forever prohibited

State v. Holm, 2006 UT 31

The Utah Supreme Court affirmed Rodney Holm's convictions for bigamy and unlawful sexual activity with a minor. The opinion is eighty-five pages with a dissent from Durham and a concurrence, responding to Durham's dissent, from Nehring. Durrant wrote with Wilkins and Parrish joining.

In brief, the majority held the following:

(1) The term marry in the phrase "purports to marry another" in the bigamy statute is not limited to State sanctioned marriages:

The crux of marriage in our society, perhaps especially a religious marriage, is not so much the license as the solemnization, viewed in its broadest terms as the steps, whether ritualistic or not, by which two individuals commit themselves to undertake a marital relationship . . . The fact that the State of Utah was not invited to register or record [Holm's marriage] does not change the reality that Holm and Stubbs formed a marital bond and commenced a marital relationship.

(2) Bigamy in any form is not protected by the Utah Constitution. The irrevocable ordinance, Art. 3 section 1, specifically prohibits the practice of plural marriage. The only plausible interpretation of that article that is consistent with the history of the Utah Constitution is that the framers intended to prohibit not just state sanctioned plural marriage, but plural marriage in practice.

(3) Utah's bigamy law does not violate the free exercise clause of the United States Constitution. Reynolds v. United States, 98 U.S. 145 (1879), which upheld a criminal polygamy prosecution in Utah against a free exercise claim, is still good law. The U.S. Supreme Court has never overturned it and has, in fact, cited it with approval in several modern free exercise cases.

(4) There is no fundamental liberty interest under Lawrence v. Texas, 539 U.S. 558 (2003), to engage in the type of polygamy involved in this case. Lawrence is limited to "private and intimate acts engaged in by consenting adult gay s and lesbians." Polygamy, on the other hand, "implicates the public institution of marriage."

(5) The bigamy statute does discriminate against religion in violation of the Equal Protection Clause. The court reaffirmed its holding in State v. Green that the bigamy statute is both facially neutral as to religion and has no discriminatory intent towards religion. The court pointed out, interestingly, that in 1988 an equal protection challenge was unsuccessfully brought against the bigamy statute on the ground that it was only used to prosecute non-religious polygamists.

(6) The bigamy statute does not infringe on Holm's right to association because (a) there is no fundamental right to engage in polygamous behavior, and (b) living a polygamous lifestyle is not necessary to associate with those who espouse polygamy.

(7) The bigamy statute is not unconstitutionally vague. "[W]e are at a loss to comprehend how Holm can plausibly argue that he did not purport to marry Stubbs when he participated in a marriage ceremony with her an subsequently engaged in a relationship that mirrored that of a traditional marriage."

(8) Testimony regarding the "social history and health of polygamous communities" was not relevant to the question of whether Holm committed bigamy.

(9)The trial court had jurisdiction over the charge of unlawful sexual conduct with a minor. The court clarified that this issue is properly raised only after the bindover and is a question of law for the trial court to decide, not a question of fact for the jury.

(10) The unlawful sexual conduct with a minor statute does not, by incorporating an exception for married couples, violate the Equal Protection Clause. The court determined that the State has a sufficient interest in regulating sex with minors to distinguish sex with a minor and sex with a minor spouse. "While the State's power to interfere with the private relationships of consenting adults is limited, it is well established that the same is not true where one of the individuals involved in the relationship is a minor."

CoA affirms domestic violence conviction

This was a train wreck of a domestic violence trial that ended up being a fairly straight forward appeal.

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? This was what made the trial a train wreck. 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. In the end, the testimony was more like an episode of Jerry Springer than a trial. 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.

I'm not sure why this opinion was published, as it does not seem to resolve any important legal issues.

Loose v. State, 2006 UT App 149

Loose was convicted of sexually abusing his step-daughter. On direct appeal, the Utah Supreme Court affirmed his convictions over evidentiary challenges and a claim of newly discovered evidence. Loose then filed a post-conviction petition that ultimately resulted in the instant opinion from the court of appeals.

The court of appeals held that Loose could have raised most of the post-conviction claims on direct appeal, but did not. Those claims were thus procedurally barred and reviewed only for ineffective assistance of appellate counsel. The court then held that appellate counsel was not ineffective for raising the claims on direct appeal because they had no merit.

The only claim not reviewed for ineffective assistance of appellate counsel was Loose's newly discovered evidence claim. Loose wanted a new trial based on evidence that the victim had recanted her testimony. The court of appeals held that Loose was not entitled to a new trial because the evidence did not meet any portion of the newly discovered evidence test. That is, the evidence could have been discovered with reasonable diligence, it was merely cumulative, it was merely impeachment evidence, and a reasonable trier of fact could have considered the evidence and still found Loose guilty.

Supreme court will issue polygamy decision tomorrow

The Utah Supreme Court is going to issue its opinion in State v. Holm tomorrow. Holm is a practicing polygamist and was cop. He was convicted of unlawful sexual activity with a 16 or 17 year old for marrying and cohabitating with a 16 year-old girl. The case was argued in February 2005.

Holm has challenged the constitutionality of Utah's bigamy laws, and, unlike the Green case, his challenges are adequately briefed and include due process arguments under Lawrence v. Texas. Judging by the length of time it has taken the court to get its opinion, I'm predicting some dissent, or at least a concurrence or two.

By the way, sorry I haven't posted in so long. I have been overwhelmed at work. The supreme court's new rule about brief extension on cert has got me scrambling. Updates coming soon.

Two amendments to the Utah Rules of Appellate Procedure have been proposed:

URAP 04. Appeal as of right: when taken. Amend. Creates a procedure to implement the directive in State v. Manning, 2005 UT 61, 122 P.3d 628, allowing a criminal defendant to have appeal rights reinstated, when the defendant has been deprived of the an appeal.
URAP 24. Briefs. Amend. Clarifies the briefs that are to be filed and the number of pages permitted in cases involving cross-appeals. A singled brief may not exceed 50 pages, and the combined total of a party's two briefs may not exceed 75 pages

See here for the full text of the amendments and to read or submit comments.

It's ok to eliminate all reasonable doubt

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)]."

City attorneys, read the traffic code

Orem City v. Martineau, 2006 UT App 136

Martineau was caught crossing the “gore,” i.e. the painted area separating the freeway and the freeway off-ramp. Orem City charged first Martineau with improper lane use. Then, just before trial, the City amended the charge to failure to obey a traffic device. The trial judge convicted him in a bench trial of the second offense.

Unfortunately for Orem City, neither of those offenses really fit the facts. While arguably the gore is a traffic control device, there is a more specific statute that governs crossing the gore: 41-6-63.3 (now 41-6a-713). But since Orem never charged Martineau with that statute, the court of appeals reversed his conviction. The court relied on a well known principle of statutory construction that a more specific statute governs over a more general statute.

Perspective

Jeff Gray is the AAG who will argue the Brigham City case in the U.S. Supreme Court in two weeks, on April 24th. His reply brief is due this Wednesday.

I caught him leaving work early today at 2:30 to go to his son's little league game. I believe he attends all of his son's games.

In twenty years, his son may or may not remember that his dad argued in the U.S. Supreme Court, but I'm sure he will remember that his dad attended his baseball games.