Thursday, April 28, 2011

Extreme Emotional Distress is NOT an Affirmative Defense. It is Special Mitigation

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).

Finding Drugs in Patrol Car Sufficient to Prove Possession

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.

Unidentified Tipster’s Tip Can be Sufficient for Probable Cause for Stop

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

Wednesday, April 27, 2011

Those Charged with Class A Misdemeanors Have a Right to a Preliminary Hearing

Utah v. Hernandez, 2011 UT 16 (Utah Supreme Court, March 29, 2011).
Hernandez was charged with four Class A Misdemeanors.  He requested a preliminary hearing.  The hearing was denied, Hernandez appealed.
The Court of Appeals found that the Utah Constitution is broader and provides more protection than the U.S. Constitution in regards to a Defendant’s right to a preliminary hearing.  The Utah Constitution allows that every crime in which must be prosecuted by indictment (in 1888, interpreted to mean that every public offense, except those triable in justice courts).  The Supreme Court interpreted the Constitution and this statement to mean that any offense that is punishable by more than six months of incarceration entitles the defendant to a preliminary hearing.

Roommates of Non-Custodial Parents are in A Special Position of Trust

Utah v. Watkins, 2011 UT App 96 (Utah Court of Appeals, March 24, 2011).
Watkins convicted of aggravated sexual abuse of a child appeals contending that no reasonable jury could have concluded that he was in a position of special trust with the child. 
The definition of special position of trust includes cohabitants.  Because Watkins was a roommate of the victim’s father and the victim occasionally had overnight visits with her father, Defendant was a cohabitant of the victim and thus, in a special position of trust.
Watkins also argued no reasonable jury could have concluded that his acts were not intended to arouse or gratify his sexual desire.  However, the record indicated he kissed the victim “wetly” on her head for three minutes.  This kiss was combined with his pinching and rubbing of the victim’s buttocks for two minutes.  These facts along with the fact that Watkins offered the victim $100 immediately after the incident, demonstrated that the act was intended to gratify his own desires.
Lastly, Watkins appealed the denial of a new trial based on newly discovered evidence of a text message transmitted by victim’s mother indicating Watkins entered the child’s room to discipline the child (i.e. had not gone in to kiss or otherwise molest the child).  However, the denial was not in error because this same evidence undermines Defendant’s argument at trial, which was that he entered the room because he was in need of human contact because of the loss of his own children.
Affirmed on all issues.

Prior Bad Act Evidence Requires Shickles Evaluation Prior Sexual Crimes Evidence Requires 404(c) analysis + Shickles Evaluation

Utah v. Ferguson, 2011 UT App 77 (Utah Court of Appeals, March 17, 2011).
Ferguson was convicted of child sex abuse.  Ferguson appealed arguing that his prior bad act evidence should not have been admitted.  The Court of Appeals found that when reviewing the admission of prior bad act evidence the trial court must consider the Shickles factors: (1) strength of the evidence, (2) similarities between crimes, (3) interval of time between crimes, (4) the need for the evidence, (5) the efficacy of alternate proof, and (5) the degree to which the evidence probably will rouse the jury to overmastering hostility.
After considering ALL five factors, the trial court must also consider whether the probative value outweighs the possibility of unfair prejudice.  Additionally, in cases like this, where the State intends to present evidence of similar child molestation crimes, the trial court must additionally find that (1) the crime would be a sexual offense if committed in Utah, (2) that the evidence tends to prove the accused’s propensity to commit the crime charged and (3) whether it passes the balancing test.  See Rule 404(c) of Utah Rules of Evidence
In this case, the trial court failed to conduct the 404(c) test along with the accompanying balancing test.  As such, the trial court erred in failing to conduct the test.  However, because of the overwhelming evidence against Defendant, it was harmless err.

A Magistrates Violation of the Rules of Criminal Procedure Does Not Warrant Suppression

Utah v. Dominguez, 2011 UT 11 (Utah Supreme Court, March 1, 2011).
Dominguez was arrested for DUI, and the officer obtained a warrant for a blood draw.  However, the magistrate that approved the warrant failed to retain a copy of the original warrant as required by Rule 40 of the Rules of Criminal Procedure.  The Court of Appeals overturned the trial court ordering suppression of the evidence.
The Supreme Court found that the judge that approved the warrant did indeed violate Rule 40. However, because the Defendant failed to demonstrate how the violation of Rule 40 infringed upon a substantial right, it did not warrant the harsh remedy of suppression.  Suppression is a remedy reserved for instances in which suppression would discourage officers from constitutional rights of citizens.  Because in this case, the officer obtained a warrant in compliance with the constitution, the remedy of suppression would serve no deterrent effect and as such is an inappropriate remedy for the magistrates violation of Rule 40.  Court of Appeals Reversed (Trial Court Affirmed).

Monday, April 18, 2011

Failing to Make Futile Objections ≠ Ineffective Assistance of Counsel

State v. C.D.L. 2011 UT App 55 (Utah Court of Appeals, February 25, 2011).
Defendant was convicted of four counts of aggravated assault with a deadly weapon.  Defendant now asserts ineffective assistance of counsel because his attorney (1) failed to request a directed verdict, (2) failed to renew objections to admissibility of the 911 transcript and (3) failed to move for a new trial.
(1) Defendant claims that a car is not a deadly weapon, and that his attorney should have moved for a directed verdict on the enhancement.  The Court of Appeals found that because the car was used in an attempt to cause serious bodily injury to another, it is a dangerous weapon.  Further, because a motion for a directed verdict would have been futile, failing to make such a motion is not ineffective assistance.
(2) Defendant argued that the 911 call was not properly authenticated hearsay.  However, the caller identified herself and witnesses who observed the events corroborated the circumstances she described, thus it was authenticated.  Further, the statements may have been hearsay evidence, but were excited utterances and thus excepted from the hearsay exclusion.  The 911 calls are greatly probative and carry little unfair prejudice, the Court did not err in admitting, neither was it ineffective assistance when counsel chose not to object.
Lastly, Defendant asserts ineffective assistance of counsel, when his attorney failed to request a new trial based on Wife’s victim impact statement in which she describes the incident as her fault and not as serious as witnesses claim.  The Court notes that wife was not present at trial and was not a witness for either party.  Because there are so many unknown s about wife, it is impossible to overcome the strong presumption in favor of effectiveness.  Affirmed on all claims.

Gruesome Photos are Admissible to Show Intent

State v. Stapley 2011 UT App 54 (Utah Court of Appeals, February 25, 2011).
Stapley was convicted of attempted murder.  At trial, Stapley moved to suppress certain photos of the victim’s injuries, claiming that photos were irrelevant and that admission of the photos might cause unfair prejudice.  The trial court admitted the photos.  Stapley appealed.
The Court of Appeals found that the photos were relevant.  Because the charge was attempted murder, the State had the burden of demonstrating that Defendant’s intent was to kill the victim.  The photos demonstrated both the ferocity with which the victim was attacked and the many wounds inflicted by Defendant.  The Court further found that although the pictures were indeed gruesome, and presumed prejudicial, the photos had unusual probative value.  In other words, because Defendant put forth the claim that he did not intend to kill the victim, the pictures provided proof of his intent to kill.  The pictures demonstrated that the injuries were not accidental, and such evidence of intent outweighed the possibility of unfair prejudice. Affrimed

Defendant Must Show Good Cause Before He is Allowed Discovery Beyond Rule 16

State v. Tanner 2011 UT App 39 (Utah Court of Appeals, February 3, 2011).

Tanner was convicted of 5 counts of possession with intent to distribute.   Defendant filed several discovery requests seeking the disclosure of the search warrant and probable cause affidavits in support of the search warrant.  The Court denied Defendant’s motion to compel.  Defendant appealed.

The trial court based its ruling on admissibility and relevance of the evidence.  The Court of Appeals found that admissibility and relevance are not the standard and therefore the ruling was in error, however, because of the overwhelming evidence against Defendant, it is harmless error.  A defendant must show that the requested evidence is necessary to the proper preparation of the defense in order to obtain discovery beyond what rule 16 demands.  In this case, because the evidence calls into question the credibility of the confidential informant, Defendant met the good cause requirement and the motion to compel should have been granted.

Thursday, April 14, 2011

Affirmative Defenses Must be Disproved Beyond a Reasonable Doubt

State v. Sellers 2011 UT App 38 (Utah Court of Appeals, February 3, 2011).
Sellers was convicted of aggravated sexual assault of a child.  Sellers claimed that his voluntary intoxication inhibited his complete ability to form the necessary intent to commit the crime.  The voluntary intoxication instruction that was given to the jury failed to instruct the jury that the State had burden of disproving the affirmative defense.
The Court of Appeals found that Sellers’s attorney’s failure to object and failure to propose a proper instruction was ineffective assistance of counsel, because there was no strategic reason for omitting the burden of proof.  Because the deficient performance, and the deficiency of the instruction the Court of Appeals Reversed the conviction and Remanded the case for a new trial. 
Note—The Court also commented on a two lines of questioning put forth by the State: 1) Questions to a detective on the case regarding the drunkenness of Defendant. The Court of Appeals stated that because the detective’s testimony was not based on personal observation of the drunkenness, his testimony was inappropriate lay testimony.  2) Questions to the same detective as to the truthfulness of the testimony of the child victim.  The Court of Appeals found this testimony to improperly bolster the testimony and that both lines of questioning should be avoided in the new trial.

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