Illegally Obtained Hunting Permit is Void

State of Utah v. Roger Howard Steele, 2010 UT App. 185, (Utah Court of Appeals July 9, 2010).

Steele obtained a special permit to hunt on a game reserve, which was reserved for Utah residents.  Steele participated in the Hunt even though he was not a Utah resident.  He shot a trophy male mule deer.  He was charged with wanton destruction of protected wildlife and found guilty.  Steele Appealed.  He argued the trial court’s jury instruction as to mistake of law was incorrect.  If the correct instruction had been given he would have been acquitted because he showed evidence that he believed himself to be a Utah resident because his wife made frequent visits to Utah and her family resides in Utah, he did not have the required intent for conviction.  He additionally argued that even if the permit was obtained in violation of the residency requirement, the permit was not void by voidable, thus valid until revoked.

The Court affirmed finding that Steele knew he was not a resident and knew it because he did not put his own address, but that of his in-laws.  The Court further found that even if the instruction was incorrect, the likelihood that the jury would have changed its verdict with an instruction proposed by Defendant is ultimately very low.  Further, the Court found that the permit was void, not merely voidable.  As an illegal contract is void ab initio so is an illegally obtained permit.

Defendant’s speedy trial claim was inadequately briefed to prevail on those grounds.

Full Decision available at http://www.utcourts.gov/opinions/appopin/steele070910.pdf

Not Plain Error if Appellant Invited the Error

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010).  This opinion was amended and renumbered to 2010 UT App 176.  I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State.  At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State.  Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement.  The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Failure to Provide Expert as to Mental Illness for Mitigation is Not Ineffective Assistance

State of Utah v. Walker, 2010 UT App. 157, (Utah Court of Appeals June 17, 2010).

Walker suffered from PSTD and shot his wife 13 or 14 times after an argument.  Police arrested Walker and questioned him without proper Miranda warnings.  Walker was convicted and appealed.  The Court of Appeals found that defense counsel’s failure to call an expert witness to testify as to Walker PSTD did not constitute ineffective assistance.  Defense counsel may have avoided the mental illness facts to avoid an adverse effect on other defenses (imperfect self-defense and voluntary intoxication).  Additionally, Defense counsel did not overly rely on the Walker’s mental illness in opening or during the trial, so it is likely that the jury did not have the unfulfilled expectation of hearing PTSD testimony.  Further, according to the Court, the absence of the defense expert was not prejudicial.

Failure to file a motion to suppress the unmirandized confession was a deficient omission by defense counsel.  However, because there was additional evidence to the content of the confession, it was not prejudicial. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/walker061710.pdf

A Reliability Hearing Serves No Purpose In a Bench Trial

State of Utah v. K.O., 2010 UT App. 155, (Utah Court of Appeals June 17, 2010).

K.O. appeals his conviction of burglary of a vehicle because of insufficient evidence; second, because the Juvenile Court failed to hold a reliability hearing before admitting eyewitness testimony; third, because the court failed to exclude hearsay evidence. 

The Court of Appeals concluded that the eyewitness testimony combined with the testimony of K.O.’s conduct of attempting to avoid police detection was sufficient to uphold his conviction.  Second, because reliability hearing is to protect the jury from hearing unreliable testimony it is only helpful in jury trials. A judge has an opportunity to evaluate the reliability of the eyewitness at the time of trial.  Finally, the Court concluded that the testimony of the arresting officer was not hearsay because the officer (declarant) was available for cross examination and under Utah Rules of Evidence 801(d), such evidence is not hearsay.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ko061710.pdf

Police Must Have Belief that Invidual is Dangerous and Could be Armed Before they Can Perform a Terry Frisk

State of Utah v. Clay C. Lowe, 2010 UT App. 156, (Utah Court of Appeals June 17, 2010).

Officer went to Lowe’s apartment to talk to his roommate.  His roommate refused to comply with Officer’s orders to remove his hands from his pockets.  Officer helped Roommate to the ground and held Lowe at gunpoint while he searched Roommate.  While he searched Roommate, a second officer arrived on the scene and saw Lowe at gunpoint holding his hands high above his head.  The second officer immediately frisked Lowe and found a prescription bottle containing Methamphetamines.  The trial court denied Lowe’s Motion to Suppress, Lowe appealed. 

The Court of Appeals found that an officer cannot frisk simply because one is being detained, or because the officer believes the individual to possess contraband, but instead an officer must reasonably believe the individual is dangerous and the individual may immediately obtain a weapon.  In this case, Lowe complied with Officer’s requests; he kept his hands above his head, and did nothing to interfere with Roommate’s arrest.  In short, Lowe did nothing to induce a reasonable belief that he was dangerous and might obtain control of a weapon; therefore, the evidence should be suppressed.  Reversed.

Dissent Judge Thorne: Under the totality of the circumstances, it is likely that the second officer could have reasonably believed that Lowe was dangerous because Officer found Roommate to possess a knife, it was reasonable for the second officer to conclude that Lowe may also be armed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/lowe061710.pdf

Must Show Injustice to Bring Claims Barred by PCRA

Gardner v. State of Utah, 2010 UT 46, (Utah Supreme Court June 14, 2010).

Gardner was found guilty of the 1985 slaying of an attorney in an attempt to escape from custody.  He was sentenced to death.  After his execution warrant was issued he appealed.  Gardner argues several grounds for stay or recession his sentence.  However, the Supreme Court found that his claims are barred, because they were not brought within the limits set by the Post-Conviction Remedies Act.  Further, the Court finds that at all levels in his original trial and subsequent appeals that the courts have strived to protect Garnder’s due process rights.  The Court found that it was not in the interest of justice to overturn the district court’s summary judgment denying Gardner’s request for post-conviction relief.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/GardnerIV061410.pdf

Must Show Prejudice for Conviction to Be Remanded

State of Utah v. Jackson, 2010 UT App. 136, (Utah Court of Appeals May 27, 2010).

Jackson was convicted of attempted murder during the trial the trial court admitted officer testimony of statements by witnesses at the scene and photos of the injuries caused by the Defendant.  Defendant also asserted that the State disposed the car used in the act without allowing Defendant to examine it.  The Defendant also challenged the jury verdict because alleging that one of the state peremptory challenges was motivated by race.  The Court of appeals affirmed the trial court finding that even if the evidence was improperly admitted, there was sufficient other evidence on which the jury could have come to the same conclusion and as such, he was not prejudiced and the error was harmless.  The Court found that in the disposal of the care the State was not acting in bad faith because they had no control over the Sheriff’s release of the car to its owner; and the likelihood of Defendant finding favorable evidence in the vehicle is too remote to have had a real effect on the outcome of the case.  Finally, the Court found that the State provided a sufficiently racially neutral grounds for eliminating the juror.

Full Decision available at http://www.utcourts.gov/opinions/appopin/AMD_jackson111810.pdf 

Modifications to Statute that Change the Effect of a Plea Bargain During Probation Are Not Ex Post Facto Laws

State of Utah v. Holt, 2010 UT App. 138, (Utah Court of Appeals May 27, 2010).

Holt pleaded guilty to two counts of sexual exploitation of a minor.  As part of the plea, the State agreed to recommend that a reduction in his offense at the satisfactory completion of his probation.  Such an amendment would allow Holt to avoid having to register as a sex offender. While Holt was on probation, the legislature changed statute limiting the court’s ability to amend Holt’s charges as he agreed in the plea agreement.  The Court refused to reduce the offense.  Holt appealed arguing that the change to the statute violated the ex post facto clause and the contract clause of the Constitution.  The Court of Appeals disagreed finding that the amendment to the law did not increase the magnitude of the punishment for the crime and that the underlying penalty was unchanged.  Additionally, while a plea is contract-like, it is not a contract for constitutional purposes.  Further, the plea states that it is not binding on the court.  As such, the Court of appeals affirmed the trial court’s denial of the reduction in charges. The Court did however rule that this change might open the door to a petition to withdraw plea based on the lack of a knowing waiver at the time of the plea.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/holt052710.pdf

Nine Years Probation is Not Illegal

Utah v. Francisco Candedo 2010 UT 32, (Utah Supreme Court, May 14, 2010).

Candedo plead guilty to three felony counts of participation in a fraudulent investment scheme.  He was sentenced to prison and jail.  Both incarceration sentences were suspended and he was sentenced to nine years of probation.  Candedo appealed the nine year probation sentence as illegal and requested relief under the exceptional circumstances doctrine.  The Court of Appeals did not reach the merits of his claim because they found that the punishment was not manifestly illegal.  Candedo appealed to the Supreme Court. 

The Supreme Court found that when a constitutional challenge to a sentence is raised, a court must first assess the constitutional claims before analyzing the punishment.  In this case, the challenge to the sentence fails because statute places no limits on probation and the purposes of probation are more than just for rehabilitation.  Finally, the probation was for nine years.  If sentenced to the full extent, Candedo’s prison sentence would have exceeded 15 years, for that reason the punishment is not wholly disproportionate to the crime. Affirmed after review.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Candedo051410.pdf

Bind Over Under SYOA is as Simple as an Inference, and Premeditation Requires Only Some Reflection

Utah v. I.R.C. 2010 UT 41, (Utah Supreme Court, May 14, 2010).

I.R.C. was bound over for trial as an adult for aggravated robbery.  In order to bind a case over to the criminal court, the charges must be of those enumerated in statute, and prosecution must present sufficient evidence to support a reasonable belief that Defendant committed the crime.  The trial court found that there was sufficient evidence to believe that I.R.C. was aware that the robbery would be committed with a weapon.  A juvenile court may retain the case if the minor shows that he has not been previously adjudicated as delinquent, that he has a lesser degree of culpability than any co-defendants, and the minor’s role in the crime was not violent, aggressive, or premeditated.  In this case, the juvenile did not prove that he had not premeditated the crime.  I.R.C. knew about the crime and drove his friend to the scene of the crime.  Because there was a reasonable inference that I.R.C. knew about the weapon and because he failed to prove the retention factors, the Supreme Court Affirmed the juvenile court.

Dissent: Durham concludes that the friend’s statements did not give I.R.C. notice that gun was going to be used and the testimony does not support the reasonable inference that he knew, as such, the crime would not be aggravated robbery and thus, could not be bound over.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/IRC051410.pdf

Statement by Personally Involved Informant Presumed Truthful

Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Roybal was stopped for suspicion of DUI when his live-in girlfriend called police and reported a domestic violence incident in which they had both been drinking.  During the call, Roybal drove away from the scene and the dispatcher sent out the bulletin on the possible DUI.  Roybal was pulled over; he failed the field sobriety tests, and was arrested for DUI.  He moved to suppress the evidence from the stop for lack of reasonable suspicion.  The trial court denied the motion.  Roybal appealed.  The Court of Appeals found that a personally involved informant is less reliable, and therefore overturned the conviction.  The State appealed.

The Supreme Court found that reasonable suspicion may be based on a dispatchers bulletin.  The Court further found that a citizen informant is presumed reliable and that there is no reason to rebut that presumption because the informant is personally involved.  As a result, the Cour reversed the Court of Appeals and reinstated Roybal’s conviction.

Dissent:  Judge Nehring agrees with the legal findings of the case, but disagrees with the outcome.  Nehring particularly disagrees with the finding that a statement by an informant that another has been drinking and is now driving is sufficient for reasonable suspicion that the party is driving under the influence.

Full Decision available at   http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf

Tags:  Utah v. Roybal, 2010 UT 34, (Utah Supreme Court, May 14, 2010).

Roybal was stopped for suspicion of DUI when his live-in girlfriend called police and reported a domestic violence incident in which they had both been drinking.  During the call, Roybal drove away from the scene and the dispatcher sent out the bulletin on the possible DUI.  Roybal was pulled over; he failed the field sobriety tests, and was arrested for DUI.  He moved to suppress the evidence from the stop for lack of reasonable suspicion.  The trial court denied the motion.  Roybal appealed.  The Court of Appeals found that a personally involved informant is less reliable, and therefore overturned the conviction.  The State appealed.

The Supreme Court found that reasonable suspicion may be based on a dispatchers bulletin.  The Court further found that a citizen informant is presumed reliable and that there is no reason to rebut that presumption because the informant is personally involved.  As a result, the Cour reversed the Court of Appeals and reinstated Roybal’s conviction.

Dissent:  Judge Nehring agrees with the legal findings of the case, but disagrees with the outcome.  Nehring particularly disagrees with the finding that a statement by an informant that another has been drinking and is now driving is sufficient for reasonable suspicion that the party is driving under the influence.

Full Decision available at   http://www.utcourts.gov/opinions/supopin/Roybal051410.pdf