In State v. Garner, 2016 UT App 186, Defendant pleaded no contest to 3 counts of trafficking methamphetamine. Defendant entered conditional pleas, reserving the right to appeal whether the trial court should have made the prosecution reveal the names of confidential informants used in gathering evidence.
Defendant was charged with 3 counts of trafficking methamphetamine for sales made to confidential informants. After each sale, the confidential informants prepared written statements for the purpose of use at a preliminary hearing, while still with the police. The statements were offered at Defendant's preliminary hearing. Defendant objected to the anonymous statements and asked for disclosure of the names of the informants. The trial court denied Defendant's motion based on the government informer privilege found in Utah Rule of Evidence 505.
The Utah Constitution does not grant an absolute right to discovery prior to a preliminary hearing. Discovery is allowed as defined by state statutes and state rules of evidence. Utah Rule of Evidence 505 allows the State to keep the identity of a confidential informant anonymous unless and until said informant appears at a hearing. Defendant argued that the informants appeared in the present case through their written statements. However, the Utah Court of Appeals determined the plain meaning of the term "appears in court" is a personal appearance and not appearance through a written statement. Furthermore, under the Utah Constitution, the right to confrontation does not apply to preliminary hearings.
Since the confidential informants appeared through written statement, Defendant did not have a right to disclosure of their names. His convictions were affirmed.
Friday, September 23, 2016
Wednesday, September 21, 2016
The Jury Gets To Decide Who to Believe
In State v. Kirby, 2016 UT App 193, Defendant appealed his convictions for witness tampering, aggravated assault, and aggravated kidnapping. When reviewing a jury verdict, the Court views the evidence and and inferences which can reasonably be drawn from the evidence in the light most favorable to the defendant.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Defendant and the victim went to a hotel room to drink and do drugs. After victim procured more drugs, Defendant beat the victim over multiple days and to the point of bleeding multiple times. Defendant hit the victim with his hands and feet as well as a socked stuffed with a metal padlock and telephone headset. Defendant denied the victim's repeated requests to allow her to leave to get medical care. Defendant would not let her sleep on the bed by the outside door. Defendant threatened to rape and kill victim's daughter, her daughter's father, victim, and then himself. Defendant refused to allow victim to leave because he would go back to prison for beating victim. Victim was able to flee and made it to a bus stop. A bystander called the police as Defendant was trying to get victim back inside the hotel room. Victim was taken to the hospital by police and diagnosed with a fractured eye socket, a cut and swelling on the back of her head, open cuts above each eye, strangulation marks on her neck, and extensive bruising over her entire body. Victim reported being held against her will for 3 days. In the hotel room, police found bloody towels, blood on the sheets, a ripped sock with a hole knotted in the top, a metal padlock, a telephone headset, and a hole in the wall.
Both victim and Defendant testified at trial. Defendant testified that victim's injuries were due to her drug use and unsafe behavior. Defendant also testified that victim was retaliating against him for seeing other women. Defendant denied ever hurting victim. As rebuttal, the State introduced text messages from Defendant to victim's daughter where Defendant wrote that victim would make him so mad he would hit her.
On the last day of trial, Defendant moved for a continuance to produce a missing witness. The witness would purportedly testify that victim told him she made it all up. The trial court determined the witness' testimony was inadmissible hearsay as the victim was not cross examined about that statement (negating for a claim of admitting hearsay as a prior inconsistent statement.) Defense counsel made a motion for mistrial as the evidence might establish Defendant's innocence.
Defendant appeals his convictions based on ineffective assistance of counsel because the convictions were obtained despite the state introducing insufficient evidence. Defendant's claim was not preserved. To prevail on a claim of ineffective assistance of counsel, Defendant must show that 1) his attorney provided objectively deficient performance, and 2) the deficient performance resulted in prejudice. In other words, the results would have been different.
When reviewing a jury verdict, the Court looks to see if the State introduced some evidence as to each of the essential elements of each charge. A finding of guilt beyond a reasonable doubt is a finding by the jury that any alternative hypothesis of innocence was not reasonable.
Defendant argued that since the victim did not try to escape, he could not have been found guilty of detaining her. However, the element of detention was met when Defendant refused to let the victim leave after she begged him to let her go.
Defendant argued that he could not be convicted of aggravated assault because the victim was not credible. The jury determines what witnesses are credible and the Court will not overturn the jury's verdict unless the evidence is inherently improbable. Evidence of drug use, without further proof that drugs impaired the witness' memory, does not make a witness' testimony inherently improbable. In addition, the victim's injuries qualified as sufficiently severe to qualify as substantial despite her ability to limp to safety.
Defendant argued that he could not be convicted of witness tampering due to a lack of evidence that he tried to prevent the victim from testifying. However, there was sufficient evidence presented that Defendant would not let victim go because he believed he would go to prison if the victim talked to the police.
Since sufficient evidence was presented to convict Defendant of each offense, a motion to dismiss the charges would have been futile. Failure to file a futile motion is not an error. Therefore, defense counsel was not objectively deficient.
Finally, Defendant appealed based on the trial court not granting a continuance to procure the testimony of a witness. To prevail on this claim, Defendant must show that the testimony sought is both material and admissible. The witness statement would have been inadmissible hearsay unless it came in to show the victim uttered a prior inconsistent statement. However, the victim was never cross examined as to this statement so the witness would not be allowed to testify.
Defendant's convictions were affirmed.
Friday, September 9, 2016
Affirmation of the Single Larceny Doctrine
In State v. Bell, 2016 UT App 157, Bell appealed his convictions for 2 counts of aggravated robbery, one for stealing a car by knife point and one for stealing a purse by knife point. The Court of Appeals affirmed the first conviction and vacated the second conviction as the convictions merged under the Single Larceny Doctrine. The Court of Appeals also rejected his defenses of factual impossibility and voluntary intoxication.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Victim parked her car in a parking lot and left the car unlocked. A set of keys to a separate rental vehicle were left in a cup holder. Victim went into a phone store. Bell was inside the phone store acting strangely. When he left the store, Bell tried to door handles of three cars before victim's car. Bell let himself into victim's car and got into the driver's seat. In response, victim and her friends went out to stop him. Bell pulled out a knife, grabbed a purse sitting on the passenger floor board, and fled with the purse and rental car keys.
After being apprehended Bell was interviewed by the police. Bell told police he had been on methamphetamine for three days straight. Bell started vomiting and was taken to the hospital. Bell claimed to have no memory of being in the phone store or the events that occurred with the car, knife, and purse.
Bell was charged with two counts of aggravated robbery, one count of aggravated assault, and one count of interfering with a law enforcement officer. At trial, Bell presented a defense of voluntary intoxication - he was too high to form the requsite intent to commit the crime. Bell was convicted of 2 counts of aggravated robbery, 1 count of brandishing, and 1 count of interfering with an officer.
Bell's first appeals on the grounds that his aggravated robbery convictions merge under the single larceny doctrine. The appeal was based in plain error and ineffective assistance of counsel. The single larceny doctrine exists to prevent prosecutors from joining or separating theft counts based on dollar amount to maximize criminal liability. If the theft is a single act, there is only one offense, even if there are multiple owners. There is only one offense if there is only one intent, plan, or general impulse.
In the present case, the purse was inside the car. Any robbery of the car automatically included the taking of the purse. The State even conceded that if Bell took the car with the purse inside, he would have only been charged with one crime. The determining issue is not when the getaway was complete, but when the robbery was complete. The robbery here was complete when Bell attempted to take the car (and its contents) from the victim with the intent to deprive her of those items. Therefore, the counts merge.
To prove ineffective assistance of counsel, Bell must show that trial counsel's performance was deficient and the deficient performance prejudiced the defendant. Counsel's performance is viewed under an objective standard of reasonableness under the prevailing professional norms. Prejudice is shown if there is a reasonable probability that but for the deficient performance the results would be different. Deficient performance is different than making strategic decisions that turn out badly. In the present case, it could not be considered strategic or tactical to not move for merger since merger would not be incompatible or in conflict with any other pursued defense. It would also not be futile as a motion for merger should have been granted. Therefore, counsel's performance was constitutionally ineffective. A conclusion that ineffective assistance of counsel occurred moots the plain error argument.
Bell next appealed his conviction for aggravated robbery of the car for factual impossibility: since he did not have possession of the car keys he was factually unable to steal the car. This appeal was also based in plain error and ineffective assistance of counsel. Factual or legal impossibility is not a defense to a crime of attempt if the attendant facts and circumstances had been as the actor believed them to be.
Finally, Bell claimed his trial counsel provided ineffective assistance for failing to move for a directed verdict and not objecting to the State's sufficiency of the evidence refuting his voluntary intoxication argument. Essentially, the State's argument against his affirmative defense was so weak, the case should not have been submitted to the jury. Issues raised for the first time on appeal are reviewed as a matter of law standard.
The court is not free to weigh the evidence and invade the province of the jury. To submit a case to a jury, the prosecutor has to provide believable evidence for every element of the crime from which a reasonable jury could convict. If there us any evidence, no matter how slight or circumstantial, the judge must give the case to the jury. If a directed verdict would not have been granted, then it cannot be found that counsel's performance was deficient.
To prevail on a claim of voluntary intoxication, Bell must show more than incoherence: he must show he was so intoxicated he was incapable of forming the mens rea of the crime. Once he provides any evidence he was incapable of forming the mental state, only then must the prosecutor disprove his affirmative defense beyond a reasonable doubt. However, there was no testimony to suggest that Bell was anything more than confused and agitated due to intoxication. That is not the same as an inability to form the requite intent to commit the crime. As such, no directed verdict wold have been granted and counsel did not provide ineffective assistance as a matter of law.
Friday, September 2, 2016
The Board of Pardons and Parole Always Wins
In Padilla v. Board of Pardons and Parole, 2016 UT App 150, Padilla appealed the District Court's grant of summary judgment to the BOP, denying his petition for extraordinary relief pursuant to Utah Code of Civil Procedure Rule 65(B)(d).
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
Padilla was originally sentenced to two concurrent sentences of 1-15 years for crimes he pleaded guilty to. He was released on parole in September 2014. The BOP initiated a parole revocation hearing in March 2015. With the assistance of counsel, and after being advised of his rights, Padilla admitted to violating his parole conditions. The BOP then permanently revoked parole for Padilla to serve his full 15 year sentence.
Padilla claimed the BOP abused its authority for imposing the full sentence of incarceration. The BOP has stautory authority to grant release on parole. The trial court determined the sentence. As long as the period of incarceration falls in the applicable, indeterminate range, then the BOP's decision will not be deemed arbitrary and capricious. BOP decisions are also final and not subject to judicial review (see Utah Code §77-27-5(3)). Because Padilla admitted he violated the terms of his release, the BOP was legally entitled to revoke his parole and impose part or all of his sentence.
Padilla also claimed the BOP improperly considered information from dismissed and/or amended charges in making their decision. However, as previously indicated, judicial review is not available to consider the BOP's substantive decision. In addition, the BOP is entitled to rely on information known to it in making a parole decision.
Padilla's appeal was denied in a sua sponte motion for summary disposition.
Wednesday, August 31, 2016
Another Conviction Overturned
In State v. Rackham, 2016 UT App. 167, Defendant appealed his conviction for one count of MA Sexual Battery. Defendant claimed the trial court abused its discretion by admitting evidence of prior bad acts under Utah Rule of Evidence 404(b).
KM, 16, alleged that Defendant approached her from behind, said "wee" in her ear and touched her stomach. KM pushed Defendant away. Defendant then put his hand under her shirt and brushed it against her breast over KM's bra. KM pushed defendant away and told him to not touch her. In previous encounters, KM claimed defendant had tickled her and a friend and grabbed at their butts. At that time, KM also told defendant to stop touching her. When confronted by KM's father, Defendant denied intentionally touching KM's breast and said he was just trying to get her to warm up to him.
Shortly after this occurred, TM (8) claimed defendant approached her from behind, whispered her name, and rubbed her stomach over her shirt. TM told defendant to stop.
KM's reported the conduct to family members and learned the following:
MF reported that in 2001, when she was 8, Defendant rubbed her chest and genitals over her clothing.
KR reported that from 1997-2005, from the ages of 7-15, Defendant touched her multiple times on the breast and genitals, above and under her clothing. Defendant pleaded no contest to sexual battery for this conduct.
Defendant was charged with sexual battery for intentionally touching KM's breast under circumstances he knew or should have known would likely cause affront or alarm. The State filed a Motion in Limine to admit evidence of prior bad conduct to show Defendant: 1) had knowledge that his touching would cause affront or alarm; 2) to rebut testimony that KM fabricated the touching under the Doctrine of Chances. The trial court admitted the evidence solely for the basis of knowledge. Defendant was found guilty after a two day trial.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. Even if evidence should not have been admitted, the decision will not be reversed unless prejudice can be shown. When admitting prior bad acts as evidence, the Court applies a three part inquiry: 1) was the evidence offered for a proper, non-character purpose; 2) is the evidence prevalent to the non-character purpose; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice.
The evidence in the present case was offered for a proper non-character purpose. Defendant did not concede or stipulate to the knowledge element of the crime. Therefore, evidence that addressed intent is proper.
Some of the evidence in the present case was relevant to the issue to knowledge. Evidence that has even the slightest probative value is relevant. Past conduct showing young cousins and nieces were alarmed or affronted by Defendant's touching is admissible. However, TM's accusations occurred after the events in the present case and are therefore not relevant to the issue of knowledge.
The probative value of the evidence is substantially outweighed by the danger of unfair prejudice (See Utah Rule of Evidence 403.) Some factors the Court looks at to make this determination are: the strength of evidence of commission of the other crime; the lapse of time between incidents; the need for evidence; the efficacy of alternative proof; and the degree to which the evidence will inflame the jury.
In the present case, the evidence has probative value: there is evidence that Defendant's prior conduct caused his young relatives alarm or affront. However, the lack of similarity between the acts undermines the probative value. There is both a significant difference in age of the victims and gravity of the touching alleged from the this case and the prior acts. The more intimate touching of younger girls could improperly influence the jury.
There was also no strong need for the evidence. KM's own testimony was ample evidence of what transpired on the day in question and any prior times she told Defendant to stop touching her.
Finally, there was a likelihood of a more favorable outcome if the evidence had been excluded. The evidence improperly bolstered KM's testimony and made it more than the credibility of the two main witnesses. The testimony of the prior bad acts took a a great deal of the 2 day trial in relation to KM's testimony. Therefore, the likelihood of a different outcome if sufficiently high to undermine the confidence in the verdict,
Defendant's conviction was vacated and the case remanded for a new trial.
KM, 16, alleged that Defendant approached her from behind, said "wee" in her ear and touched her stomach. KM pushed Defendant away. Defendant then put his hand under her shirt and brushed it against her breast over KM's bra. KM pushed defendant away and told him to not touch her. In previous encounters, KM claimed defendant had tickled her and a friend and grabbed at their butts. At that time, KM also told defendant to stop touching her. When confronted by KM's father, Defendant denied intentionally touching KM's breast and said he was just trying to get her to warm up to him.
Shortly after this occurred, TM (8) claimed defendant approached her from behind, whispered her name, and rubbed her stomach over her shirt. TM told defendant to stop.
KM's reported the conduct to family members and learned the following:
MF reported that in 2001, when she was 8, Defendant rubbed her chest and genitals over her clothing.
KR reported that from 1997-2005, from the ages of 7-15, Defendant touched her multiple times on the breast and genitals, above and under her clothing. Defendant pleaded no contest to sexual battery for this conduct.
Defendant was charged with sexual battery for intentionally touching KM's breast under circumstances he knew or should have known would likely cause affront or alarm. The State filed a Motion in Limine to admit evidence of prior bad conduct to show Defendant: 1) had knowledge that his touching would cause affront or alarm; 2) to rebut testimony that KM fabricated the touching under the Doctrine of Chances. The trial court admitted the evidence solely for the basis of knowledge. Defendant was found guilty after a two day trial.
A trial court's decision to admit evidence is reviewed for an abuse of discretion. Even if evidence should not have been admitted, the decision will not be reversed unless prejudice can be shown. When admitting prior bad acts as evidence, the Court applies a three part inquiry: 1) was the evidence offered for a proper, non-character purpose; 2) is the evidence prevalent to the non-character purpose; and 3) is the probative value of the evidence substantially outweighed by the danger of unfair prejudice.
The evidence in the present case was offered for a proper non-character purpose. Defendant did not concede or stipulate to the knowledge element of the crime. Therefore, evidence that addressed intent is proper.
Some of the evidence in the present case was relevant to the issue to knowledge. Evidence that has even the slightest probative value is relevant. Past conduct showing young cousins and nieces were alarmed or affronted by Defendant's touching is admissible. However, TM's accusations occurred after the events in the present case and are therefore not relevant to the issue of knowledge.
The probative value of the evidence is substantially outweighed by the danger of unfair prejudice (See Utah Rule of Evidence 403.) Some factors the Court looks at to make this determination are: the strength of evidence of commission of the other crime; the lapse of time between incidents; the need for evidence; the efficacy of alternative proof; and the degree to which the evidence will inflame the jury.
In the present case, the evidence has probative value: there is evidence that Defendant's prior conduct caused his young relatives alarm or affront. However, the lack of similarity between the acts undermines the probative value. There is both a significant difference in age of the victims and gravity of the touching alleged from the this case and the prior acts. The more intimate touching of younger girls could improperly influence the jury.
There was also no strong need for the evidence. KM's own testimony was ample evidence of what transpired on the day in question and any prior times she told Defendant to stop touching her.
Finally, there was a likelihood of a more favorable outcome if the evidence had been excluded. The evidence improperly bolstered KM's testimony and made it more than the credibility of the two main witnesses. The testimony of the prior bad acts took a a great deal of the 2 day trial in relation to KM's testimony. Therefore, the likelihood of a different outcome if sufficiently high to undermine the confidence in the verdict,
Defendant's conviction was vacated and the case remanded for a new trial.
Wednesday, August 17, 2016
How to Properly Calculate Restitution
In State v. Irwin, 2016 UT App. 144, the Court addressed how to properly calculate restitution of retail goods stolen from a retail dealer.
Defendant pleaded guilty a theft related crime for being in possession of 102 watches stolen from a Sandy, Utah watch shop. The watches were individually valued from $79-$2,500 apiece. At a restitution hearing, the State presented evidence that the MSRP value of the watches was $39,004, but the replacement cost was $13,651.40. Insurance calculated the loss at $35,155.48. The State argued that restitution should be based on the MSRP or insurance calculations. Defendant argued that restitution should be based on replacement cost.
A trial court's restitution order is reviewed for abuse of discretion. A court abuses its discretion when no reasonable person would take the view adopted by the trial court.
For restitution, a victim is limited in recovering pecuniary damages. Pecuniary damages are demonstrable economic injury which a person could recover in a civil action. Valuation generally includes the fair market value of of the property in question. Fair market value is often measured by what the owner is willing to receive and a buyer is willing to pay. Compensation is awarded for actual losses.
The Court ruled that purchase price/replacement cost is a better measure of a victim's loss than retail value when the victim has the ability to replace the stolen items for much less than retail value. In these situations, awards greater than retail value violate the common law principle that compensation is only available for the injury suffered.
Limiting restitution in this case prevents the victim from realizing a windfall. If the stolen merchandise was compensated for at resale value, the victim could replace the watches, pocket the excess, and still sell the watches for a profit, thereby realizing a double profit.
Because restitution was awarded in excess of replacement cost, the award was vacated and the case remanded to the trial court for a new award consistent with the Court's opinion.
Defendant pleaded guilty a theft related crime for being in possession of 102 watches stolen from a Sandy, Utah watch shop. The watches were individually valued from $79-$2,500 apiece. At a restitution hearing, the State presented evidence that the MSRP value of the watches was $39,004, but the replacement cost was $13,651.40. Insurance calculated the loss at $35,155.48. The State argued that restitution should be based on the MSRP or insurance calculations. Defendant argued that restitution should be based on replacement cost.
A trial court's restitution order is reviewed for abuse of discretion. A court abuses its discretion when no reasonable person would take the view adopted by the trial court.
For restitution, a victim is limited in recovering pecuniary damages. Pecuniary damages are demonstrable economic injury which a person could recover in a civil action. Valuation generally includes the fair market value of of the property in question. Fair market value is often measured by what the owner is willing to receive and a buyer is willing to pay. Compensation is awarded for actual losses.
The Court ruled that purchase price/replacement cost is a better measure of a victim's loss than retail value when the victim has the ability to replace the stolen items for much less than retail value. In these situations, awards greater than retail value violate the common law principle that compensation is only available for the injury suffered.
Limiting restitution in this case prevents the victim from realizing a windfall. If the stolen merchandise was compensated for at resale value, the victim could replace the watches, pocket the excess, and still sell the watches for a profit, thereby realizing a double profit.
Because restitution was awarded in excess of replacement cost, the award was vacated and the case remanded to the trial court for a new award consistent with the Court's opinion.
Monday, August 15, 2016
A Violation of the Confrontation Clause?
In State v. Wynia, 754 P.2d 667 (Utah App. 1988) Defendant appealed his conviction for 4 counts of distribution of a controlled substance. One ground on which Defendant appealed was that there was defect in the chain of custody of the chemical test on the substance.
Defendant met two undercover officers at a bowling alley while playing pool. One officer asked the defendant about purchasing cocaine. Defendant helped the officer locate a purchase a small amount of cocaine. On the the second meeting, and again at the request of undercover officers, the defendant helped them locate and purchase a small amount of cocaine and marijuana. After purchasing the drugs, the officers sealed the items in marked envelopes and put them in the night evidence depository. The evidence was then retrieved by the evidence custodian and transported to the state toxicology lab where it was delivered to a criminologist (who was not called to testify). Two lab analysts received the exhibits in the sealed, marked envelopes. After analyzing the contents, the exhibits were placed back into sealed, marked envelopes and in a secure evidence locker. The envelope was then picked up and transported back to evidence.
For an item to be accepted into evidence, there must be a preliminary showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime. The circumstances surrounding the custody of the article and the likelihood of tampering are factors to be considered in determining admissibility. However, in Wynia, the Court ruled that once the evidence is in the hands of the state it is generally presumed that it is handled with regularity absent a showing of bad faith or actual tampering. A weak link in the chain of custody and any doubt created by the weak link goes to weight and not admissibility.
However, Wynia, was decided before Crawford v. Washington, 541 U.S. 36 (2004) and the resulting cases building on that ruling. Crawford held that the confrontation clause precludes admission of hearsay evidence that is testimonial unless there has been a showing of unavailability and a prior opportunity for defendant to cross-examine the unavailable declarant who uttered the evidence. Where the hearsay evidence uttered by the declarant is non-testimonial, states are free to develop their own hearsay law. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts”). The threshold question is whether the proposed out-of-court hearsay evidence is testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).547 U.S. 822 addressed this issue. Scientific analysis in a lab is not an interrogation, but it is police action which produces evidence about something found in defendant’s possession, and the police actions to produce that evidence are “solely directed at establishing the facts of [the] past crime.” The action of doing laboratory analysis may be thought of as an interrogation of something the defendant possessed. When police action “produces testimony solely directed at establishing the facts of a past crime, in order to…provide evidence to convict the perpetrator,” the evidence produced, whether a tape-recorded statement, hand-written statement, or statement in the form of a crime lab report, is testimonial.
Defendant met two undercover officers at a bowling alley while playing pool. One officer asked the defendant about purchasing cocaine. Defendant helped the officer locate a purchase a small amount of cocaine. On the the second meeting, and again at the request of undercover officers, the defendant helped them locate and purchase a small amount of cocaine and marijuana. After purchasing the drugs, the officers sealed the items in marked envelopes and put them in the night evidence depository. The evidence was then retrieved by the evidence custodian and transported to the state toxicology lab where it was delivered to a criminologist (who was not called to testify). Two lab analysts received the exhibits in the sealed, marked envelopes. After analyzing the contents, the exhibits were placed back into sealed, marked envelopes and in a secure evidence locker. The envelope was then picked up and transported back to evidence.
For an item to be accepted into evidence, there must be a preliminary showing that the proposed exhibit is what it purports to be and is in substantially the same condition as it was at the time of the crime. The circumstances surrounding the custody of the article and the likelihood of tampering are factors to be considered in determining admissibility. However, in Wynia, the Court ruled that once the evidence is in the hands of the state it is generally presumed that it is handled with regularity absent a showing of bad faith or actual tampering. A weak link in the chain of custody and any doubt created by the weak link goes to weight and not admissibility.
However, Wynia, was decided before Crawford v. Washington, 541 U.S. 36 (2004) and the resulting cases building on that ruling. Crawford held that the confrontation clause precludes admission of hearsay evidence that is testimonial unless there has been a showing of unavailability and a prior opportunity for defendant to cross-examine the unavailable declarant who uttered the evidence. Where the hearsay evidence uttered by the declarant is non-testimonial, states are free to develop their own hearsay law. (“Where non-testimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law—as does Roberts”). The threshold question is whether the proposed out-of-court hearsay evidence is testimonial. Melendez-Diaz v. Massachusetts, 129 S. Ct. 2527 (2009).547 U.S. 822 addressed this issue. Scientific analysis in a lab is not an interrogation, but it is police action which produces evidence about something found in defendant’s possession, and the police actions to produce that evidence are “solely directed at establishing the facts of [the] past crime.” The action of doing laboratory analysis may be thought of as an interrogation of something the defendant possessed. When police action “produces testimony solely directed at establishing the facts of a past crime, in order to…provide evidence to convict the perpetrator,” the evidence produced, whether a tape-recorded statement, hand-written statement, or statement in the form of a crime lab report, is testimonial.
That leaves the question of what witnesses are necessary for the prosecution to call to prove what was in the defendant's blood for a DUI based on a blood draw. If a court applies strict adherence to the holding in Wynia without looking at the facts of the case or the complexities of blood evidence, then only the analyst needs to be called. This is a mistake and a violation of the 6th Amendment right to confront adverse witnesses. Here is why.
First, the person who drew the blood must be cross examined as to the methods used to draw the blood, the age and quality of the tubes used to store the blood, and amount of time the tubes were went without refrigeration. Next the evidence custodian who moves the evidence prior to transportation must be crossed examined as to the temperature and consistency of the refrigeration while the tubes are technically under her or his custody. They also need to provide information as to the condition the evidence was found in as well as any defects in the paperwork that could cast doubt on the authenticity of the evidence.
Next the blood is transported to the lab. How long did this process take? Where was the evidence kept? How was it secured? What temperature was it kept at? How was the temperature controlled. Once the blood has reached the lab, what condition was it in? Were there any irregularities in the evidence packaging or paperwork that had been missed by the police custodian? Was there any delay in securing or refrigerating the blood? How long and why were there delays?
In Utah, more than one analyst handles the blood. Initial screening to done by one analyst. Followup up testing will be completed by one or more analysts. These analysts must be thoroughly questioned: What condition were the tubes found in? Was there enough blood to perform the required tests? If not, did anyone add water or another substance to the blood to bring it to the proper volume. Was the blood clotted? Likewise, there is a wealth of information that needs to be addressed about the maintenance and calibration of the machines, the training of the operators, the standard operating procedures, the laboratory credentials.
It is plain to see that there are too many issues with blood draw DUIs to presume evidence is handling with regularity. Couple that with recent scandals of lab analysts faking results in the north east and new reports that many state labs get paid per conviction. The bottom line is that the government should not get the benefit of the doubt concerning the handling and testing of blood evidence for DUI cases. Doing so violates a defendant's right to confront adverse witnesses.
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