Wrongfully Admitted Testimony May Have Influenced the Jury

State of Utah Leber, 2010 UT 316, (Utah Court of Appeals, November 12, 2010). This Opinion was amended and the correct site is now State of Utah Leber, 2010 UT 387 (Utah Court of Appeals December 30, 2010)

Defendant was convicted of felony child abuse. At trial, the Court admitted testimony of Defendant’s prior bad acts, including: a 10 year old conviction for child abuse, a 5 year old misdemeanor assault conviction, an incident of domestic violence, and testimony of ex-wife that Defendant had engaged in domestic violence “too many times to count,” and ex-wife’s opinion that Defendant was violent with children. Defendant appealed, and argued that the evidence should have been excluded as improper character evidence. The Court of appeals affirmed the conviction on the grounds that Defendant “opened the door” to character evidence by alleging that the alleged victim had a violent character. The Supreme Court granted cert and reversed the Court of Appeals finding that Defendant did not “open the door.” The case was remanded to decide whether the wrongfully admitted evidence affected the jury verdict.

The Court of appeals found that it could not conclude that the wrongfully admitted evidence did not affect the jury. In other words, it is likely that the testimony may have influenced the jury. Reversed and Remanded for new trial.

Full Decision available at http://www.utcourts.gov/opinions/appopin/leber123010.pdf

Determining the Credibility of Credible but Conflicting Testimony is Properly Reserved for the Jury

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

Exact Wording of an Admission is Not Needed to Enable a Person to Testify About the Admission

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

Evidence from Illegal (but lawful) Arrest is Admissible

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 4^th 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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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.

Full Decision available at    http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf

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    http://www.utcourts.gov/opinions/appopin/hamblin082610.pdf