Maybe It's Better If You Just Don't Say Anything At All

In State v. McCallie, 2016 UT App 4, McCallie appealed his conviction for aggravated assault.  McCallie had been involved in an argument and altercation ending with the victim receiving a non fatal gunshot wound.  McCallie was charged with aggravated assault and unlawful discharge of a firearm.  McCallie testified on his own behalf and claimed self-defense.  In his closing argument, the prosecutor questioned why McCallie did not claim self-defense to the police when interviewed.

McCallie claimed that the prosecutor committed constitutional error when he commented on McCallie's remaining silent to the police post Miranda warnings. The Utah Court of Appeals agreed.  When questioned by the police, McCallie was argumentative and belligerent.  He made statements such as "nothing happened," and "you just woke me up." These statements are statements that address the interrogation itself and not the crime.  As such, they are the equivalent of remaining silent.  The government cannot comment on a person choosing to remain silent after being given Miranda warnings.

The constitutional error is only grounds for reversal if it was not harmless beyond a reasonable doubt. There is a four part test to analyze this issue.

1) would a jury naturally think the statement referred to the defendant's right to remain silent;
2) was there overwhelming evidence of the defendant's guilt;
3) whether the reference was isolated; and
4) whether the court instructed the jury that the defendant had a right to remain silent.

The Court of Appeals did not think the jury in the present case would think the prosecutor's statement was a comment on the McCallie's right to remain silent because it was presented as McCallie changing his story over time. The Court of Appeals thought there was also overwhelming evidence of McCallie's guilt presented outside of the offending statement.  Since this issues was brought up one time, and briefly, the Court of Appeals found the reference isolated.  Finally, the Court noted that the trial court did not give the jury a curative instruction concerning McCallie's right to remain silent.  The majority of factors weighed in favor of harmless error.

McCallie finally challenged the sufficiency of the evidence and the trial court denying his motion for a directed verdict.  All jury verdicts are viewed in the light most favorable to the verdict. There was sufficient evidence presented to the jury (including an expert about the credibility of the drunk victim) for them to find McCallie guilty. The Court found that even if the jury wholly discarded the defendant's testimony, they still had enough evidence to find McCallie guilty from his own testimony.

There was an inportant discussion about what constitutes the record on appeal of a directed verdict.  Utah follows the waiver rule: all evidence presented to the jury, not the evidence presented in the State's case in chief, is reviewed on appeal when dealing with a sufficiency of the evidence claim.

Even If You Are Guilty, The Law Can Still Be Wrong

In State v. Ainsworth, 2016 UT App. 2, the defendant appealed his convictions for 3 counts of Driving with a Measurable Amount of a Controlled Substance (DMCS) and Negligently Causing Death or Serious Bodily Injury, all 2nd degree felonies. The Appeals Court vacated his convictions and remanded the case with instructions that all three counts be entered as 3rd degree felonies.

Tragically, Mr. Ainsworth was involved in a head on collision. He seriously injured two people and killed a child. Subsequent testing revealed Mr. Ainsworth had methamphetamine in his system. Mr. Ainsworth pleaded guilty, but brought a constitutional challenge to Utah's statutory scheme.

In Utah, Automobile Homicide and DUI Causing Serious Bodily Injury are substantially similar crimes:  both crimes entail being under the influence of drugs or alcohol to a degree that one is incapable of safely operating a vehicle.  Both crimes are classified as 3rd degree felonies. To be guilty of DMCS, however, one must only have a measurable amount of a controlled substance or its metabolite in the body. One does not have to be incapable of safely driving a vehicle. This crime, when death or serious bodily injury occurs as a result of negligent collision, is classified as a 2nd degree felony.

The Utah Court of Appeals agreed with Ainsworth that Utah's current laws violate the Uniform Operation of Laws Clause of the Utah Constitution and therefore, violates due process.  There is no rational basis for punishing people more severely for having any measureable amount of a controlled substance in the body more harshly than for having an incapacitating amount in the body.

On a side note, Mr. Ainsworth also challenged his sentence. The Court would not get involved because the trial court did not "abuse its discretion."

Who Cares If the Prosecutor Was Unethical?

In State v. Monzon, 2006 UT App 1, defendant appealed his sentencing.  Monzon was charged and pleaded guilty to Possession of a Controlled Substance with Intent to Distribute (F3).  Defendant was sentenced by the court to 1-15 years prison. Monzon appealed, arguing the court abused its discretion in sentencing him to the maximum available prison term.

Under the Utah sentencing matrix, Monzon qualified to serve 60 days of jail.  The trial court ordered a presentence report be completed.  The resulting recommendation was that Monzon serve 180 days in jail and serve a year of probation. Monzon argued for only serving 60 days, pursuant to the matrix.  The prosecutor argued for more jail, stating that there was no incentive to charge federal cases cases in state court if the court was not going to send a message to defendants.

The Utah Court of Appeals upheld Monzon's sentence holding that a court does not abuse its discretion when sentencing defendants within the sentencing guidelines, even if it is the maximum available.  Furthermore, the sentencing matrix is only advisory and does not create a right to a specific sentence.

The Appeals Court also concurred with Monzon that the prosecutor's argument was an inappropriate attempt to sway the trial court with irrelevant information.  However, since there is no proof that the Court relied on the prosecutor's arguments, no harm was done and nothing happens to the prosecutor.

Posting Cash Bail For a Friend? Be Prepared to Lose It.

The Utah Supreme Court addressed notice requirements for forfeiting cash bail in Saudi Arabia v. Pullen, 2016 UT 5. Defendant Al Shammari was arrested and charged with rape.  The Royal Consulate of Saudi Arabia posted cash bail for his release as Al Shammari is a Saudi citizen. Defendant then missed his next court hearing and was found trying to cross the border to Mexico. The court initiated proceedings to forfeit Al Shammari's cash bail. Saudi Arabia filed for extraordinary relief as they were not notified of the proceedings.

The Consulate argued that since it posted the cash bail, it should have been notified of the proceedings.  The Utah Supreme Court held that the Consulate was not entitled to notice as it did not qualify as a surety under the statutory scheme and was not a party to the case.

Be careful when posting cash bail for someone else. If Saudi Arabia is not getting their money back, I doubt you are either!

The Government Hates to Lose

In State v. Jones, 2016 UT 4, defendant was charged with "official misconduct" and witness tampering.  The magistrate did not bind over the charges at preliminary hearing.  The State appealed and the magistrate's ruling was upheld by the Utah Court of Appeals. The State appealed again, and the Utah Supreme Court reversed the ruling and bound the defendant over for arraignment and trial.

Jones was an on-duty police chief when he was called by his brother Travis' girlfriend for assistance.  The girlfriend told Jones that Travis was drunk and being violent.  Jones twice offered to call an outside police agency for an investigation and the girlfriend declined both times. Jones put Travis to bed and left. The girlfriend called again later, once Jones was off duty, but Jones ignored the call.  Travis was later arrested for domestic violence. Jones told both Travis and a sheriff's deputy that Travis was passed out when Jones arrived at the house the night before.

The Utah Supreme Court determined that the trial court erred in weighing the evidence. To be successful at a preliminary hearing, the State must show sufficient evidence for a reasonable determination that probable cause existed that a crime was committed by the defendant.  The evidence is viewed in the light most favorable to the State. How to weigh conflicting evidence is a job for the factfinder at trial.  The magistrate's job is not to prejudge the likelihood of the outcome of a trial.

The Error Does Not Matter If There Is No Prejudice To The Defendant.......

In State v. McNeil, 2016 UT 3, the Utah Supreme Court affirmed both the defendant's conviction from both the trial court and appeals court. McNeil was charged with being an accomplice to his son committing aggravated assault on a co-worker McNeil was angry with. McNeil's telephone records indicated he was in consistent contact with his son before and during the alleged assault. The records came in as evidence at the preliminary hearing through a detective.  At the time of trial the detective was deceased and the his testimony from the preliminary hearing was read to the jury over defense counsel's objections. In addition to other issues, counsel argued that the evidence was hearsay.  The trial court declared the transcript was not hearsay because the detective provided a sworn, in-court, statement under oath that was subject to cross examination.  Defendant was convicted and his conviction was affirmed on appeal.

McNeil argued that his conviction should be overturned because the trial court erred in admitting his testimony, The Court of Appeals held that McNeil invited the error because his counsel's objections were not made on proper grounds. The Utah Supreme Court disagreed that trial counsel invited the error.  Counsel attempted to exclude the evidence for a number of reasons, none accepted by the trial court.  Counsel did not back down on his hearsay argument until the trial court insisted the transcript was not hearsay.

Regardless, there was no prejudice to defendant.  To show prejudice, the facts must undermine the court's confidence in the outcome.  Even if the telephone records should not have come in through the preliminary hearing testimony, they could have come in a number of ways.  One way would be to lay foundation through the cellular phone provider.  The State had subpoenaed the provider and was prepared to present this alternative evidence.  In addition, defense counsel was aware of the records and what they contained. Presenting the evidence through the transcripts did not lead to additional evidentiary arguments that would not have otherwise existed.

Defendant's conviction was affirmed.

Appeals Court Affirms a Defendant Has No Right to Probation

The Utah Court of Appeals reiterated that a defendant has no right to probation in State v. Nichols, 2016 UT App. 82.  Nichols appealed her sentence for convictions in two cases: one charge of F2 Possession of Controlled Substance with Intent to Distribute; and one charge of F3 Possession of a Controlled Substance. The court ordered an addendum to a recent PSR ordered third case.  Although Nichols fell on the line between probation and prison on the sentencing matrix, both AP&P and the prosecution recommended Nichols serve time.  The court agreed and sentenced Nichols to the statutory prison terms.

Nichols requested probation and that her time run concurrent with a sentence she was currently serving.  Nichols pointed to her need to care for an ailing husband as a significant mitigating factor.  Nichols also claimed to be selling drugs solely to support her ill husband. However, other evidence showed Nichols was a known drugs dealer in the area, had admitted to travelling out of state frequently to secure drugs, and had been arrested for alleged criminal activity three times after her arrests for the current two cases.

The Court of Appeals reiterated some long standing case law.  First, the standard of review is "abuse of discretion."  Second, the court is given broad discretion in sentencing.  Third, a defendant has no right to probation.

Since the sentencing court sentenced Nichols within the guidelines, it did not abuse its discretion and Nichols appeal was denied.

See also State v. Geoff, 2016 UT App 7; State v. Jenkins, 2016 UT App. 41; State v. Valdez, 2016 UT App. 74.