Wednesday, July 13, 2011
State of Utah v. Lenkart, 2011 UT 27 (Utah Supreme Court, May 17, 2011).
Lenkart engaged in sexual intercourse with K.H. (alleged victim) after an evening of heavy drinking. K.H. claimed that she somehow ended up in Lenkart’s bed and awoke to Lenkart performing oral sex on her, told him to stop and passed out. She then awoke to him penetrating her—she told him to stop and she left his home. A code R examination was conducted. Lenkart disputed the testimony stating that she climbed into his bed, the acts were consensual, and that there was no oral sex.
At trial, the nurse who conducted the Code R examination testified that she had to use tweezers to remove a tampon that had been lodged in K.H. The nurse testified that the lodging of the tampon was consistent with nonconsensual intercourse. Lenkart’s counsel never had his own expert review the Code R kit and presented no expert evidence to dispute the nurse’s testimony.
Lenkart was convicted of forcible sodomy and two counts of forcible sexual abuse. He appealed arguing that his counsel was ineffective for failing to have the Code R kit examined by another expert. Post-trial Lenkart had the kit examined by and expert who opined that the lodging of the tampon was consistent with consensual sex, and that the swabs in the Code R kit were negative for saliva which indicates that there was no oral sex.
The Trial court denied Lenkart’s motion for a new trial. Lenkart appealed.
On appeal, the Supreme Court found that failure to have an expert examine the Code R kit was a failure to investigate by his counsel and that based on the proffered testimony of Defense expert that contradicts the victim’s testimony and that of the State’s expert such a deficiency was prejudicial to Lenkart.
Note: Court also address access and admission of medical records.
Full Decision available at http://www.utcourts.gov/opinions/supopin/Lenkart051711.pdf
Thursday, April 28, 2011
State of Utah v. White, 2011 UT 21 (Utah Supreme Court, April 19, 2011).
White charged with attempted murder, moved for a jury instruction regarding Extreme Emotional Distress. The trial court denied the motion. White Appealed. The Court of Appeals affirmed. The Supreme Court found that the Court of Appeals used the incorrect standard when deciding if the instruction should be given; requiring a highly provocative triggering event.
The Supreme Court found the Court of Appeals erred because instructions as to affirmative defenses require only a reasonable basis for the instruction. The reasonable basis must be based on whether a jury could conclude Defendant was exposed to extremely unusual and overwhelming stress from a reasonable person’s viewpoint. Remanded to trial court to evaluate Defendant’s evidence of a reasonable basis for the instruction.
IMPORTANT NOTE: Extreme Emotional Distress is no longer an Affirmative Defense, but is special mitigation. See State v. Drej, 2010 UT 35 ¶19 and U.C.A. § 76-5-205.5(1)(b).
Full Decision available at http://www.utcourts.gov/
State of Utah v. Martin, 2011 UT App 112 (Utah Court of Appeals, April 14, 2011).
Martin appeals a jury conviction of Possession of a Controlled Substance, which was found in the back seat of the patrol car where he had been placed following his arrest.
The Court of Appeals found that there was sufficient evidence for a jury to conclude the methamphetamine belonged to Martin. This based on the officer’s testimony that he had searched the vehicle prior to his shift, the drugs were found in the same area where Martin’s hands were, and Martin was observed moving around suspiciously in the back seat—leaning forward and fidgeting around, yet he never complained about being uncomfortable. When the officer opened the door, he found Martin’s hand in his pocket and coins were spilling out. Affirmed.
Full Decision available at http://www.utcourts.gov/
Salt Lake City v. Street, 2011 UT App 111 (Utah Court of Appeals, April 14, 2011).
Street convicted of driving under the influence. He appealed based on the denial of his motion to suppress the evidence arising from the stop because the stop was based on a tip from an unidentified tipster.
The tipster, while accompanied by her children in the park, reported to police that she saw a man passed out in his car near the park with a child in the vehicle. She provided a description of the car and location of the vehicle. The officer stopped the car based on that tip alone; he witnessed no erratic driving.
The Court of Appeals found that when assessing whether a tip is sufficient to warrant a stop the trial court must evaluate three factors: (1) Reliability of the informant, (2) the detail of the information, and (3) corroboration of the tip by the officer’s own observations.
In this case, the informant was reliable because she approached the officer with her children, sought nothing in return for her information, and did not attempt to hide her identity. Further, she provided adequate detail to allow the officer to identify the vehicle. Lastly, all the information that she provided was corroborated when the officer found the car and Street with his child.Full Decision available at http://www.utcourts.gov/
Wednesday, April 27, 2011
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