Friday, September 17, 2010

ABA Blawg 100

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Monday, September 13, 2010

Promissory Notes On Short Term Loans Are Securities for the Purpose of Securities Fraud

State of Utah v. Burkinshaw, 2010 UT App. 245, (Utah Court of Appeals September 10, 2010).

Burkinshaw, convicted of securities fraud, appeals her conviction and argues that there was insufficient evidence to show that the transactions were securities under the statute.  Promissory notes are presumed to be securities.  This presumption can be rebutted by showing that the transaction has a family resemblance to non-securities transactions.  In determining if the transaction is a secure transaction the court considers (1) the motivation of the parties, (2) the plan for the distribution of the promissory note, (3) the reasonable expectation of investing public, and (4) whether some factor reduces the instrument’s risk.

In this case, the Court of Appeals affirmed the trial court’s findings that: (1) the investor was motivated by a return on his investment and as such, this factor weighs in favor of the presumption.  (2) There was no evidence that promissory notes are a commonly traded commodity, so that this factor weighs against the presumption.  (3)  The investment appeared to be a secure investment to a reasonable person, and as such, this factor weighs in favor of the presumption.  And, (4) there is no factor that would reduce the risk to the lender beyond the regular remedies at law.  Based on these findings, the instrument falls under the securities act and as such, the finding of the trial court is affirmed.

Withholding Non-prejudicial Evidence Does not Violate The Brady Requirement

State of Utah v. Hamblin, 2010 UT App. 239, (Utah Court of Appeals August 26, 2010).

Hamblin, convicted of rape, sodomy, and sexual abuse of a child, moved for a new trial because of the prosecutor’s failure to inform him that the victim had recanted a portion of her story.  This recantation cleared Hamblin of several of the charges including a particularly gruesome object rape.  However, prosecution amended the charges and removed certain charges from the trial.  While the Court of Appeals encouraged prosecutors to error on the side of disclosure.  The non-disclosure in this did not violate the Brady requirement.  Brady requires that the prosecution disclose any evidence in their possession that is exculpatory and material. 

While this evidence may have had somewhat exculpatory value, the evidence withheld would not have sufficiently changed the outcome of the case.  The evidence withheld merely put the victim’s credibility at issue and during the trial, she was subject to cross examination, and a great portion of the cross spent on her credibility eliciting several statements that favored Hamblin.  Because the further evidence would not sufficiently have changed the cross examination or the outcome of the case, Hamblin was not prejudiced by the non-disclosure, therefore the Court of Appeals affirmed the denial of the request for a new trial.

Full Decision available at

Friday, September 10, 2010

Deficient Appellate Counsel Can be Discharged

State of Utah v. Smith, 2010 UT App. 231, (Utah Court of Appeals August 19, 2010).

This matter came before the Court of Appeals on the Motion to Strike Appellants Brief and Appoint New Counsel.  This motion is Granted because of current counsel’s failure to adequately comply with the rules of appellate procedure.  The brief failed to supply a summary of the proceeding, had only a very brief statement of facts, failed to cite the standard of review, and failed to make citations throughout.  It contained a summary of the argument, but no full argument section.  Because it was so lacking, the brief was stricken and counsel discharged.  The case is remanded to the district court to appoint new counsel.

Additional note:  This same attorney had a previous brief stricken on similar grounds in 2008.  Generally, the Court gives an attorney time to cure the defects in the brief, however, because of this attorney’s failure to take advantage of the opportunity to cure in a prior case, no opportunity to cure was allowed in this case.

Flight Does Not Constitute a Reasonable Inference of Aiding or Encouraging

State of Utah v. Luis Cristobal, 2010 UT App. 228, (Utah Court of Appeals August 19, 2010).

Cristobal, convicted of criminal mischief (graffiti), appeals the denial of a directed verdict motion on the group enhancement portion of the conviction.

The group enhancement provision requires that a perpetrator commit a criminal act in concert with two or more individuals.  In this case, Police found Cristobal at the scene with his codefendant; both with paint on their hands and spray can lids in their vehicle.  A third individual fled the scene as police arrived.  The state argued that the jury could have reasonably inferred that this third individual was aiding or encouraging Cristobal in the criminal mischief.  The Court disagreed and found that flight from the scene without more does not support a reasonable inference that he was involved in the criminal act.  Because no such reasonable inference can be drawn, the group enhancement is Reversed.

Thursday, September 9, 2010

Unconnected Criminal Charges Must Be Severed

State of Utah v. Hildreth, 2010 UT App. 209, (Utah Court of Appeals July 29, 2010).

Hildreth convicted of two counts of forcible sexual abuse appeals based on the denial of his motion for severance of the charges. 

Charges may be charged together if the charges are based on the same conduct or are otherwise connected together in their commission, are part of a common scheme or plan, or if the court found that neither the state nor the defendant are prejudiced by joinder of the charges.  Hildreth argues that the charges were sufficiently unrelated and warranted severance.  The Court agreed and further stated that Hildreth’s charges were unrelated to one another and that the alleged actions did not take place under sufficiently similar circumstances.  As such, the convictions were overturned and the case was Reversed and Remanded for separate trials on the charges.

Additionally, the Court found that testimony as to the other charges should be excluded as improper character evidence because the likelihood of prejudice outweighs the probative value.

Special Mitigation is Not an Affirmative Defense

Utah v. Eryk Drej 2010 UT 35, (Utah Supreme Court, May 14, 2010).

Special Mitigation is an additional method of mitigating criminal culpability based on a defendant’s mental illness.  Special mitigation allows a reduction of criminal liability by one degree if the defendant can show the factors of special mitigation.  Drej took an interlocutory appeal to challenge the constitutionality of the trial court’s finding that the statute places the burden of proving special mitigation on the defendant.  Further, Drej alleges that the passing of the statute violated the separation of powers doctrine.
The Supreme Court affirmed the trial court and found that special mitigation is not an affirmative defense because special mitigation does not negate an element of the crime.  Thus, the prosecution is not required to disprove it.  Further, the statute does not violate separation of powers doctrine because special mitigation is a substantive right, not an adjustment to procedural rules.  The Court finally finds that the statute does not violate equal protection because the classification created is narrow and that there is a distinction between special mitigation and imperfect self-defense defendants, so that the respective defendants are not similarly situated.

Tuesday, September 7, 2010

The Accomplice Must Encourage the Principal

State of Utah v. Warren Steed Jeffs, 2010 UT 49, (Utah Supreme Court July 27, 2010).

Jeffs was convicted of two counts of rape as an accomplice for compelling a fourteen-year-old to marry her nineteen-year-old cousin.  Jeffs appealed based on the instruction regarding consent.  The trial court refused to give an instruction which required the jury to return a verdict of not guilty unless they found that Jeffs had intended that the victim’s husband to engage in sexual intercourse with her.  The Court noted that to convict Jeffs of accomplice to rape, the state must establish that Jeffs solicited, requested, commanded, encouraged, or intentionally aided husband to have nonconsensual intercourse with victim.  The State never presented any evidence as to Husband’s interactions with Jeffs or any statements from Jeffs to Husband.  The State argued that certain communications with the victim were sufficient for accomplice to rape, however, the Supreme Court interpreted the statute to mean that the actions of the soliciting, requesting, etc… must be done in relation to the principal actor of the crime and not to the victim.  Finding that the instruction requested by Jeffs was reasonable and that the underlying communication from Jeffs was insufficient to support the accomplice charge, the Court Reversed the conviction and Remanded the case for a new trial.

Trial Court Must Strictly Comply With Utah Rule of Criminal Procedure 11(e)

State of Utah v. Douglass Anderson Lovell, 2010 UT 48, (Utah Supreme Court July 27, 2010).

Lovell pleaded guilty to the aggravated murder of Joyce Yost.  Lovell moved to withdraw his plea.  The trial court denied the withdrawal.  Lovell appealed.  At the time of entry of plea, the trial court failed to inform Lovell of his constitutional rights as required by Utah Rules of Criminal Procedure 11(e).  Because the trial court failed to strictly comply with Rule 11(e), the Supreme Court reversed the conviction and remanded the case with instructions to allow a withdrawal of Lovell’s guilty plea.  The Court further noted that it was not enough that Lovell knew of his rights from experience in previous criminal cases.  The record in each case must reflect the defendant’s knowledge of his rights and his subsequent knowing waiver of those rights.  It is not enough to assume that defense counsel sufficiently explained the rights.  Yes, it may take a little more time, but constitutional rights may not be sacrificed in the name of judicial economy.

Finally, harmless error review does not apply to Rule 11(e).  Failure to comply with Rule 11(e) results in a presumption of harm to the defendant.

Intent to Commit a Felony Can be Formed While Unlawfully Remaining

State of Utah v. Marcus Alexander Garcia, 2010 UT App. 196, (Utah Court of Appeals July 15, 2010).

Garcia entered the room of a former neighbor; he held her down, covered her mouth, and forced his fingers down her throat cutting her lip.  He then put the victim’s head into a pillow and pulled up her shirt.  The victim’s mother ran into the room and the Defendant escaped through the window.  Garcia was charged with burglary and attempted rape.  He was convicted of burglary, but acquitted of the attempted rape charge.  He appealed.  He argued that since he was acquitted of the rape which was the underlying felony to the burglary, he did not have the requisite intent for the burglary (i.e. breaking and entering or remaining with intent to felony theft or assault).  The Court of Appeals disagreed and affirmed the trial court, and said that the assault, whether or not it was an attempted rape, could serve as the underlying crime.  Even though he may not have entered with intent to commit a felony or assault, the formation of that intent while unlawfully remaining is sufficient to meet the statute.


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