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.

Full Decision available at http://www.utcourts.gov/opinions/supopin/Jeffs072710.pdf

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.

Full Decision available at  http://www.utcourts.gov/opinions/supopin/Lovell4072710.pdf

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.

Full Decision available at http://www.utcourts.gov/opinions/appopin/garcia071510.pdf

Illegally Obtained Hunting Permit is Void

State of Utah v. Roger Howard Steele, 2010 UT App. 185, (Utah Court of Appeals July 9, 2010).

Steele obtained a special permit to hunt on a game reserve, which was reserved for Utah residents.  Steele participated in the Hunt even though he was not a Utah resident.  He shot a trophy male mule deer.  He was charged with wanton destruction of protected wildlife and found guilty.  Steele Appealed.  He argued the trial court’s jury instruction as to mistake of law was incorrect.  If the correct instruction had been given he would have been acquitted because he showed evidence that he believed himself to be a Utah resident because his wife made frequent visits to Utah and her family resides in Utah, he did not have the required intent for conviction.  He additionally argued that even if the permit was obtained in violation of the residency requirement, the permit was not void by voidable, thus valid until revoked.

The Court affirmed finding that Steele knew he was not a resident and knew it because he did not put his own address, but that of his in-laws.  The Court further found that even if the instruction was incorrect, the likelihood that the jury would have changed its verdict with an instruction proposed by Defendant is ultimately very low.  Further, the Court found that the permit was void, not merely voidable.  As an illegal contract is void ab initio so is an illegally obtained permit.

Defendant’s speedy trial claim was inadequately briefed to prevail on those grounds.

Full Decision available at http://www.utcourts.gov/opinions/appopin/steele070910.pdf

Not Plain Error if Appellant Invited the Error

State of Utah v. Shaffer, 2010 UT App. 176, (Utah Court of Appeals July 1, 2010).  This opinion was amended and renumbered to 2010 UT App 176.  I could not determine the amendment, but the link below now links to the amended opinion.

Shaffer entered into an agreement with the State.  At the change of plea hearing, the defense misstated the agreement and agreed to further misstatements by The State.  Further, the State failed to make a recommendation to AP&P as agreed in the plea agreement.  The Judge rejected the State’s recommendation and adopted AP&P’s recommendation.

The Court of Appeals affirmed, finding that the trial court’s actions did not constitute plain error because even if the court believed that the state had breached the plea agreement, the affirmative actions by defense counsel invited the error and an invited error is not plain error, furthermore such an is irrelevant because the court rejected the agreement.

The failure of defense counsel to remedy the matter we not prejudicial for the same reasons, that the court rejected the agreement even in its misstated form.

Further, Defendant did not raise a dispute that the State had not recommended the sentence to AP&P before the trial court and so the trial court had no knowledge of any possible error, thus defendant again invited the error by failing to bring it to the court’s attention and affirmatively agreeing with the State’s statements at the hearing.

Full Decision available at  http://www.utcourts.gov/opinions/appopin/shaffer082610.pdf

Failure to Provide Expert as to Mental Illness for Mitigation is Not Ineffective Assistance

State of Utah v. Walker, 2010 UT App. 157, (Utah Court of Appeals June 17, 2010).

Walker suffered from PSTD and shot his wife 13 or 14 times after an argument.  Police arrested Walker and questioned him without proper Miranda warnings.  Walker was convicted and appealed.  The Court of Appeals found that defense counsel’s failure to call an expert witness to testify as to Walker PSTD did not constitute ineffective assistance.  Defense counsel may have avoided the mental illness facts to avoid an adverse effect on other defenses (imperfect self-defense and voluntary intoxication).  Additionally, Defense counsel did not overly rely on the Walker’s mental illness in opening or during the trial, so it is likely that the jury did not have the unfulfilled expectation of hearing PTSD testimony.  Further, according to the Court, the absence of the defense expert was not prejudicial.

Failure to file a motion to suppress the unmirandized confession was a deficient omission by defense counsel.  However, because there was additional evidence to the content of the confession, it was not prejudicial. Affirmed.

Full Decision available at http://www.utcourts.gov/opinions/appopin/walker061710.pdf

A Reliability Hearing Serves No Purpose In a Bench Trial

State of Utah v. K.O., 2010 UT App. 155, (Utah Court of Appeals June 17, 2010).

K.O. appeals his conviction of burglary of a vehicle because of insufficient evidence; second, because the Juvenile Court failed to hold a reliability hearing before admitting eyewitness testimony; third, because the court failed to exclude hearsay evidence. 

The Court of Appeals concluded that the eyewitness testimony combined with the testimony of K.O.’s conduct of attempting to avoid police detection was sufficient to uphold his conviction.  Second, because reliability hearing is to protect the jury from hearing unreliable testimony it is only helpful in jury trials. A judge has an opportunity to evaluate the reliability of the eyewitness at the time of trial.  Finally, the Court concluded that the testimony of the arresting officer was not hearsay because the officer (declarant) was available for cross examination and under Utah Rules of Evidence 801(d), such evidence is not hearsay.

Full Decision available at http://www.utcourts.gov/opinions/appopin/JV_ko061710.pdf