Thursday, October 21, 2010
State of Utah Droesbeke, 2010 UT 275, (Utah Court of Appeals, October 7, 2010).
Defendant was charged with sodomy of a child, aggravates sexual abuse of a child, and dealing harmful material to a minor. At the bindover hearing, the eight-year-old victim gave completely conflicting testimony as to the underlying events of the charges. The magistrate judge found probable cause to bindover the charges. Because the testimony was so conflicting, Defendant moved to quash the bindover. The district court affirmed the bindover and Defendant appealed.
The Court of Appeals affirmed finding that when credible testimony conflicts, the determination of which testimony is more credible is left with the jury; even when the credible testimony is from the same witness.
Full Decision available at http://www.utcourts.gov/opinions/appopin/Droesbeke100710.pdf
State of Utah Lamoreaux, 2010 UT 276, (Utah Court of Appeals, Memorandum Decision, October 7, 2010).
Defendant was convicted of distributing a controlled substance in a drug free zone. Defendant argues that the Court should have stricken the testimony of the Officer regarding his alleged admission because the officer lacked personal knowledge of any admission. At trial, the officer could not recall the exact words of the Defendant’s admission. The officer testified that during a conversation with Defendant, he told Defendant “you know I’ve got all this information. You know, just come clean, and tell me.” He further testified that at some point Defendant told him “you’re right.” The officer indicated that when Defendant said, “you’re right,” he was admitting to having assisted with the drug transaction.
The Court of Appeals found that this was sufficient knowledge and independent recollection to allow the testimony. Further, they found that the Officer did not testify to anything that of which he did not have personal knowledge.
Full Decision available at http://www.utcourts.gov/opinions/mds/lamoreaux100710.pdf
Friday, October 8, 2010
State of Utah v. Harker, 2010 UT 56, (Utah Supreme Court, September 28, 2010).
Police responded to an accident and requested Defendant’s proof of insurance. Defendant provided the officer his proof insurance. The officer, having had prior dealings with Defendant, contacted the insurance company and learned that defendant’s coverage had lapsed. As a result, the officer arrested Defendant and searched Defendant subsequent to arrest. The search turned up methamphetamine, Lortab, and a pipe. Defendant moved to suppress the evidence because the arrest was not lawful under U.C.A. 77-7-2(1).
The Court found that the statue requires an officer to have experienced, firsthand through one of the officer’s physical senses, all of the elements of the offense; even an admission by a party is not enough to meet the requirement of in the presence. Because the officer was not present to view Defendant driving, he could not have made the arrest under U.C.A. 77-7-2(1). However, the arrest was lawful under the 4th Amendment to the Constitution of the United States. Because the arrest was lawful, the search did not violate Defendant’s right against unreasonable search and seizure and the evidence therefore is admissible; affirmed.
Full Decision available at http://www.utcourts.gov/opinions/supopin/Harker092810.pdf
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