Child Witness Exception to Hearsay Rule Does Not Require Good Cause

State v. Nguyen, 2011 UT App 2 (Utah Court of Appeals January 6, 2011).

Nguyen was convicted of child sex abuse.  Nguyen appealed arguing that the trial court erred in admitting of videotaped testimony of the child victim and in not declaring a mistrial for the Prosecutor’s closing argument. 

The Court of Appeals did extensive review of the statute (now repealed), rules of criminal procedure, and case law regarding the child witness exception.  The Court found that the testimony met all of the factors in URCP 15.5, U.C.A. §76-5-411 (Now repealed), and case law. Defendant requested that the court also require a showing of good cause before admitting the hearsay testimony.  The Court of Appeals found that there is no such requirement, and that the requirements in the rules were sufficient to meet a good cause standard..

Defendant also argued that prosecutor’s statements in regards to the lack of evidence presented by the defense entitled him to a mistrial because the prosecutor commented on the defendant’s right to not be a witness against himself.  The Court found that the statements made were as to weaknesses in Defendant’s case and not a direct relation to his failure to testify and that under current case law they did not cross the line.  Affirmed

Full Decision available at http://www.utcourts.gov/opinions/appopin/nguyen010611.pdf

2 Mischaracterizations by Prosecution + Failure to Object + Defense Counsel Embracing the Mischaracterizations as True = Cumulative Error and Reversal for Ineffective Assistance.

State v. King, 2010 UT App 396 (Utah Court of Appeals December 30, 2010).

This case has travelled between the State Supreme Court and the Court of Appeals various times on the issue of juror-bias and ineffective assistance of counsel.  The issue of juror-bias being finally resolved, the case is returned to the Court of Appeals to decide all remaining appellate claims.  The claim of prosecutorial misconduct and subsequent ineffective assistance of counsel are the pivotal issues and the only claims addressed in this summary. 

In closing argument, the Prosecutor stated that the abuse happened in seconds (contrary to the victim’s testimony, which was that the abuse continued for two – three minutes).  Admitted evidence also included a statement of the witness to a friend “What if I lied?”  The prosecutor alleged that this statement the victim’s concern about what people would think if they thought she was a liar.  Defendant’s counsel failed to object to, or contradict these statements in his closing argument; in fact, he embraced the idea that the abuse occurred in only seconds.  Because the testimony of the victim was the basis for the conviction, these cumulative errors warrant reversal.

Full Decision available at http://www.utcourts.gov/opinions/appopin/king123010.pdf

Prosecutorial Misconduct Alone is Insufficient for Dismissal and Past Conviction Show Current Intent

State v. Doyle, 2010 UT App 351 (Utah Court of Appeals December 9, 2010).

Doyle was convicted of possession of controlled substance.  During trial a witness denied receiving a plea deal in exchange for testimony.  On cross-examination, it was shown that the witness had in fact received a plea agreement in exchange for her testimony.  Doyle's subsequent motion to dismiss was denied.  She appealed.

The Court of Appeals, while stating that the prosecutor’s failure to correct the testimony and its failure to provide the plea deal during discovery clearly constituted prosecutorial misconduct.  However,  the misconduct did not prejudice Defendant’s case.  Indeed, the cross-examination was so effective that the witnesses failure to disclose may have proved more detrimental to the State’s case than a simple admission. The trial court was affirmed.

An additional issue on appeal was the admission of prior crimes evidence.  The Court of Appeals found that a previous conviction for possession of a controlled substance is admissible to show current “intent” to possess a controlled substance.  The trial court was affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/doyle120910.pdf