Case Law Update - September 2012 - March 2013

State v. Ramirez, 2012 UT 59 (Justice Lee)

Ramirez invited police officers to search his motel room for a clean glass pipe, suggesting the pipe would "clear his name."  After finding the pipe, officers asked for permission to continue searching the room.  Ramirez consented and asserted that officers would find nothing else.  Nevertheless, officers located methamphetamine and paraphernalia in a trash bag, as well as a prescription bottle with Ramirez's name on it.  Although officers did not find property belonging to anyone besides Ramirez, the investigating officer acknowledged that others may have had access to the room.  At preliminary hearing on possession and paraphernalia charges, the magistrate refused to bind Ramirez over for trial, ruling that the reasonable inference from the evidence was that Ramirez was not aware of the drugs and paraphernalia in his room.

The Supreme Court reversed.  The Court held that the evidence gave rise to an alternative reasonable inference: that Ramirez knew of the drugs and paraphernalia, but believed they would have been thrown away before police searched the room.  Where evidence at preliminary hearing gives rise to more than one reasonable inference, the Court held, a magistrate is required to favor the inference supporting probable cause.

State v. Verde, 2012 UT 60 (Justice Lee)

Verde was convicted of sexually abusing a twelve-year-old boy.  The trial court admitted evidence under Rule 404(b) that Verde had previously sexually abused two eighteen-year-old men.  The court ruled that this evidence was relevant as: 1) proof of Verde's specific intent; and 2) proof of Verde's general plan to sexually assault young men.  The Court of Appeals affirmed based on the "not guilty rule," under which intent is placed at issue any time a defendant pleads not guilty to a specific-intent crime.

The Supreme Court reversed and rejected the "not guilty rule."  Although acknowledging that all elements of a crime are technically placed at issue by a not-guilty plea, the Court reaffirmed that trial courts always have a duty to evaluate the true purpose of other bad acts evidence.  As Verde had not contested his intent at trial, and intent was readily inferable from the act Verde was accused of committing, other bad acts were not admissible to prove it.

The Court also declined to adopt a rule of admissibility for other bad acts evidence showing a "general plan" to commit crimes.  Particularly where the victim of the charged assault was a minor and the victims of the uncharged conduct were adults, the uncharged conduct was not admissible under Rule 404(b) to show a general plan to sexually assault young men.

The Court ultimately remanded the case for a new trial, but left the door open for the State to offer the 404(b) evidence under the "doctrine of chances."  The Court explained that this doctrine can provide for admission of evidence of other conduct similar to the charged conduct.  From such evidence a jury to may permissibly conclude that the victim of the charged conduct probably did not fabricate his testimony, based on the logical improbability of multiple victims fabricating similar stories.  The four foundational requirements that must be met before evidence offered under the doctrine of chances should be admitted to prove an actus reus are 1) materiality, 2) similarity, 3) independence and 4) frequency.

State v. Moore, 2012 UT 62 (Justice Nehring)

Moore was charged with aggravated sexual abuse of a child (under age 14), a first degree felony, and dealing in material harmful to a minor, a second degree felony.  The same incident gave rise to both charges.  The alleged victim gave inconsistent statements as to whether he was 13 or 14 at the time of the incident, and defense counsel did not consult with Moore about this discrepancy or emphasize it at trial.  Moore was convicted.

On appeal, the State conceded that defense counsel provided ineffective assistance as to the aggravated sexual abuse of a child.  However, although the State conceded that defense counsel's performance was deficient as to the dealing in material harmful to a minor charge, it argued that Moore was not prejudiced by such performance because the difference between ages 13 and 14 was irrelevant to that charge.

The Court held that the second prong of Strickland was met and Moore was prejudiced.  Although the alleged victim's age was irrelevant to the harmful material charge, the Court held that because the two charges occurred arose from the same incident, the harmful material charge was inseparable from the aggravated sexual abuse of a child charge.  As it was unclear to the Court what would have happened at trial if defense counsel had pressed the discrepancy in the victim's statements about his age at the time of the incident, the Court reversed and remanded for a new trial.

State v. Johnson, 2012 UT 68 (Justice Durham)

Johnson pled guilty to unlawful sexual activity with a minor, a third degree felony, and enticing a minor, a class A misdemeanor.  As part of the plea agreement, the State pledged not to oppose a reduction in both convictions under Utah Code § 76-3-402 upon successful completion of probation.

During the probationary period, Section 402 was amended to was amended to disallow a reduction in conviction for any person required to register as a sex offender until the registration requirements expire.  Upon successful completion of Johnson's probation, the trial court denied his motion for a reduction under the new version of the statute.

The Utah Supreme Court reversed.  The Court held that eligibility for a reduction in a conviction was a substantive and not a procedural right, and that right vested at the time of sentencing.  The Court further held that the amendment to section 402 could not apply retroactively because the legislature made no express declaration of retroactivity, and the amendment was not passed to correct any interpretation of section 402 by the Court.

Carter v. State, 2012 UT 69 (Justice Durham)

In a successive petition for relief from a conviction and sentence for capital murder, Carter made numerous claims which had already been litigated or could have been, but were not, raised in prior proceedings.  Although the Post Conviction Remedies Act (PCRA) had been amended in 2008 to eliminate common law exceptions to the procedural bars on such claims, the Court considered the common law exceptions because the successive petition had been filed prior to the 2008 amendment.

The Court held, however, that none of Carter's claims fell under the common law exceptions.  Carter had not made the threshold showing, required under common law exceptions, that his new claims were not withheld in prior proceedings for tactical reasons, or that his previously litigated claims should be considered for good cause or unusual circumstances.  The Court further held that Carter could not revive any of his claims under ineffective assistance of post-conviction counsel, as he had failed to meet either prong of the Strickland standard.

State v. Harris, 2012 UT 77 (Justice Lee)

Harris was convicted of assault, a class B misdemeanor, and brought a Batson challenge based on the State's use of a peremptory strike to remove the only minority juror in the venire.  The Utah Supreme Court held that the challenge was waived when defense counsel failed to fulfill his "absolute obligation" to notify the court that a resolution was needed before the jury venire was dismissed.  Although defense counsel raised a timely objection to the State's peremptory challenge, counsel made no further objection when the judge delayed ruling and responded "it is, your honor," to the judge's inquiry about whether the jury announced was the one he had selected.

State v. Nguyen, 2012 UT 80 (Justice Parrish)

Nguyen was convicted of multiple sex offenses involving a child.  The trial court admitted, in part under Utah R. Crim. P. 15.5(1), a redacted video-recording of an interview with the child at the Children's Justice Center.  The trial court ruled that the interview met the requirements of the rule in that it was reliable and its admission was in the interest of justice.  However, the trial court did not make a separate finding of good cause to admit the interview.

Citing to the phrase "for good cause" in Rule 15.5, Nguyen appealed the trial court's conclusion that a separate finding of good cause was not required.  Nguyen argued that the phrase "for good cause" precluded the admission of a child's recorded statements unless the child was unavailable or incapable of testifying.  The Court of Appeals affirmed the trial court.

The Utah Supreme Court also affirmed.  The Court held that good cause is satisfied where the trial court determines that the factors specified in Rule 15.5 are met.  "Good cause" is not the equivalent of "need," and no need analysis is necessary under the Rule.  The Court further held that the language of the rule precluded Nguyen's argument as to unavailability or incapacity of the child, because the rule already requires the child to be available to testify; or, if the court determines the child is unavailable, that the defendant had a prior opportunity to cross-examine the child concerning the statement.

Finally, the Court held that Rule 15.5 strikes an appropriate balance between a criminal defendant's constitutional right to confrontation, and the policy interests in providing the most accurate testimony to the trier of fact and protecting child victims from the trauma of testifying in court.

Winward v. State, 2012 UT 85 (Justice Parrish)

Winward filed a petition under the Post-Conviction Remedies Act (PCRA) more than ten years after expiration of the PCRA's one-year statute of limitations.  He argued, however, that application of the statute of limitations would violate the Utah Constitution based on language in Gardner v. State, 2010 UT 46, suggesting that the Court retained constitutional authority to remedy an "egregious injustice" despite the PCRA's procedural bars.

After dismissing unpreserved constitutional and common law claims, the Court outlined a framework for considering a claim of exception to the PCRA's procedural bars: 1) the defendant must demonstrate that he had a reasonable justification for missing the deadline and a meritorious defense; 2) the defendant must then fully brief the particulars of the exception he seeks; and 3) the defendant must demonstrate why the particular facts of his case qualify for such an exception.  The Court held that Winward had failed to present a reasonable justification for filing his petition more than ten years after the statute of limitations expired, or demonstrate the merit of his claims, and therefore declined to consider whether any "egregious injustice" exception to the PCRA's procedural bars exists.

However, the Court held that Winward may have had a claim for relief under the newly announced rule in the U.S. Supreme Court decisions Missouri v. Frye and Lafler v. Cooper regarding ineffective assistance of counsel during the plea bargaining process.  The Court vacated the trial court's dismissal of Winward's claim of ineffective assistance of counsel during the plea bargaining process, and remanded so Winward could file a motion to amend or vacate his sentence under Utah Code § 78B-9-104(1)(f), which allows for post-conviction relief after announcement of a new U.S. Supreme Court rule.

Ross v. State, 2012 UT 93 (Chief Justice Durrant)

During Ross's trial for aggravated murder, trial counsel stated in an in-chambers conference that he and Ross had elected to forego an extreme emotional distress defense for evidentiary reasons known to both of them.  The trial judge confirmed this with Ross.  As part of his petition for post-conviction relief, Ross alleged ineffective assistance of trial counsel for failure to present an extreme emotional distress defense, and ineffective assistance of appeal counsel for failure to raise a claim of ineffective assistance of trial counsel.  The PCRA court granted summary judgment to the State on both claims based on the in-chambers conference.

The Utah Supreme Court reversed.  The Court held that trial counsel's statements during the in-chambers conference were confusing and demonstrated that counsel may not have understood the nature of the defense or how it would have applied to Ross.  It was also unclear from counsel's and Ross's statements whether counsel had adequately explained the defense to Ross.  Furthermore, trial counsel presented no defense or jury instructions, and apparently did not investigate any potential emotional distress at the time of the killing.  This, coupled with genuine issues of material fact regarding whether appeal counsel investigated the ineffective assistance of trial counsel claim, led the Court to reverse the PCRA court's grant of summary judgment.

State v. Simons, 2013 UT 3 (Justice Parrish)

A sheriff's deputy pulled over a car for speeding, and after questioning the driver determined that the driver was impaired.  The deputy asked the driver to exit the vehicle, and as he did so the deputy observed, in the driver's side door compartment, baggies that had been chewed on and contained a white crystal residue.  The deputy then asked the passenger, Simons, whether he had anything illegal on his person.  Simons replied that he had a methamphetamine pipe in his underwear, and at the deputy's command he shook it out.  Simons subsequently admitted to having methamphetamine and was arrested.  Simons filed a motion to suppress alleging an illegal search and seizure.  The trial court denied the motion.

The Utah Supreme Court affirmed.  The Court held that Simons's initial detention was justified because of the need to investigate the speeding violation by the driver.  The Court further held that the deputy's questioning of Simons was supported by reasonable suspicion based on the deputy's suspicion that the driver was impaired and the presence of drug paraphernalia in plain view.  The Court further held that the deputy's single question to Simons during the stop concerning his potential possession of contraband was a de minimis extension of an otherwise lawful detention, and did not unconstitutionally extend the detention.  The Court reiterated, however, that once a stop is concluded, police must demonstrate reasonable suspicion for even a de minimis extension.

Juries

From part 9 of the Constitution of Athens:

"There are three points in the constitution of Solon which appear to be its most democratic features: first and most important, the prohibition of loans on the security of the debtor's person; secondly, the right of every person who so willed to claim redress on behalf of any one to whom wrong was being done; thirdly, the institution of the appeal to the jurycourts; and it is to this last, they say, that the masses have owed their strength most of all, since, when the democracy is master of the voting-power, it is master of the constitution."

Do we, citizens of the United States of America and the State of Utah, recognize that the right to trial by jury is the source of our strength?  Or have we perverted the right to jury trial, using it now as a weapon of retribution upon the poor, the homeless, and the addicted?  Have our values changed so that juries side with the State by default, rather than with the accused citizen?  These questions lead to troubling answers.

State v. Maughan upholds nonbindover at preliminary hearing based on lack of evidence of specific intent

At every preliminary hearing in the State of Utah, the State is required to present sufficient evidence that the crime charged has been committed, and that the Defendant committed it.  The magistrate overseeing the hearing must find that there is believable evidence of all the elements of the crime charged.  This evidentiary burden is known as “probable cause.”  If the magistrate does not find probable cause, the magistrate does not bind the case over for trial.  State v. Maughan , 2012 UT App 121, presents a rare set of facts in which a magistrate declined to bind a case over for trial because there was no believable evidence of intent presented at the preliminary hearing.

Maughan was a witness in a 20-year-old murder case, and made statements to police that implicated him as an accomplice to the murder.  Maughan was then charged with capital murder as a co-defendant.  After being charged, Maughan disobeyed several court orders to speak with police again and to testify at his co-defendant’s trial.  Although Maughan had been granted use immunity in connection with his testimony, he steadfastly maintained that the protections granted by such immunity would not be sufficient to protect his constitutional privilege against self-incrimination.

Maughan was called as a witness at his co-defendant’s trial, but refused to answer any questions.  He was subsequently acquitted at his own trial of capital murder.  The State then charged Maughan with obstruction of justice, alleging, among other things, that Maughan refused to speak to police or testify with the specific intent to hinder the investigation and prosecution of his co-defendant.

At preliminary hearing on the obstruction of justice charge, the magistrate declined to bind the case over for trial, holding that the State had failed to demonstrate probable cause on the specific intent element of obstruction of justice.  Rather, the magistrate ruled that the only reasonable inference to be drawn from the evidence was that Maughan refused to testify out of concern for protecting his privilege against self-incrimination, and not out of any desire to hinder the prosecution of his co-defendant.

The State appealed.  It argued to the Court of Appeals that, contrary to the ruling of the trial court, the only reasonable inference from the evidence was that Maughan had acted with specific intent.  The State argued that this inference was appropriate because the natural consequence of Maughan’s action was the hindrance of the co-defendant’s prosecution (although the co-defendant was convicted at trial even without Maughan’s testimony), and that Maughan had a motive because he had formerly been friends with the co-defendant.

The Court of Appeals rejected both the magistrate’s and the State’s absolute arguments about the inferences to be derived from the evidence at preliminary hearing, but ultimately agreed that “the only reasonable inference to be drawn from the totality of the evidence [was] that Maughan acted in his own self-interest to preserve his ability to defend against the capital murder charge.”  In its thorough and systematic review of the preliminary hearing bindover standard, the Court noted that if probable cause is to be supported by inferences from the evidence, those inferences must be reasonable inferences, and not merely speculation

Although the Court acknowledged that there was some evidence which, in isolation, could have arguably supported an inference that Maughan intended to hinder the prosecution of the co-defendant (mainly Maughan’s former friendship with the co-defendant), in light of the other evidence this inference was reduced to mere speculation.  The Court pointed out, as the trial court did, that Maughan was fully cooperative with police until the time that he was also charged with capital murder, and only after that time did he refuse to cooperate with police or testify.  The Court also noted Maughan’s numerous objections to testifying, all of which were based on Maughan’s concerns for protecting his own constitutional rights and preserving his ability to defend against capital murder at trial.

Maughan is an important opinion for many reasons, not the least of which being that it upholds a magistrate’s decision to refuse to bind a case over for trial, which is a rare event.  However, even rarer than that is the fact that the magistrate found probable cause for every element of the crime except the intent element.  Thus, Maughan is a critical case for defense attorneys to know.  In a world in which the scope of evidentiary rules is ever-expanding to allow the use of character and other bad acts evidence to prove intent, defense attorneys must be ever vigilant in putting the State to its constitutionally-mandated duty of proving every element of the crimes it is charging~

6 Month Case Law Update

An update on notable cases in Utah criminal law in the past six months:

Utah Supreme Court

State v. Parduhn, 2011 UT 55

In Parduhn and other companion cases, the Court held that local governments cannot condition funding for defense resources (such as experts and investigators) on the appointment of a public defender. Thus, Salt Lake County was required to provide funding for necessary defense resources for indigents who were represented by private counsel outside of the Salt Lake Legal Defender Association (LDA).

State v. Hernandez, 2011 UT 70

In Hernandez, the Court held that article I, section 13 of the Utah Constitution guarantees the right to a preliminary hearing to defendants charged with class A misdemeanor crimes. This holding was based on the language of Article I, section 13, the debates of the Utah Constitutional Convention, and Utah territorial law at the time of the Utah Constitutional Convention.

State v. Harrison, 2011 UT 74 and In re J.M.S., 2011 UT 75

In these parallel cases an expectant mother, J.M.S., paid a stranger, Harrison, to repeatedly punch her in the stomach in a failed attempt to abort her unborn baby. Harrison pled guilty to second degree felony attempted murder, but was sentenced pursuant to the Shondel doctrine on a lesser charge of third degree felony attempted killing of an unborn child by abortion.

The Court upheld the State’s right to appeal an adverse Shondel ruling. The Court further held that Shondel did not bar Harrison’s sentencing on a charge of attempted murder. This was because the Utah legislature had drawn an explicit distinction between defendants who caused the death of a child by nonmedical acts such as Harrison’s, which fell under the murder statute, and defendants who caused the death of a child by medical abortion, which fell under the attempted killing of an unborn child by abortion statute.

The Court further held that the term "procedure" used in the Utah Abortion statute to define abortion referred only to medical procedures, and did not contemplate a solicited assault of a woman such as Harrison had perpetrated on J.M.S. On this basis, the Court held that J.M.S. could be held criminally liable for soliciting Harrison's assault and was not protected by the Utah Abortion statute.

State v. Harding, 2011 UT 78

In Harding, A police officer obtained consent to search a vehicle from the driver. There were four passengers in the vehicle. As part of the search, the officer searched two backpacks that were inside the vehicle and found contraband inside. The backpacks belonged to one of the passengers, Harding, and were located in the cargo area behind Harding's seat.

The Court articulated, for the first time, a five factor test to be used in determining whether it is reasonable for an officer to believe that a driver's consent extends to containers belonging to a passenger: 1) the type of container searched; 2) the conduct of the passenger in connection with the search; 3) whether there is identification on the exterior of the container; 4) the number of occupants in the vehicle; and 5) the location of the container in the vehicle.

Based on this five factor test, the Court held that it was probably unreasonable under the circumstances for the officer to believe that the driver's consent to search the vehicle extended to the Harding’s backpacks. However, the Court remanded the case for specific factual findings as to Harding's conduct in connection with the search (whether she was aware of the search and/or failed to object to the search) and as to the nature and characteristics of the backpacks themselves.

State v. Maxwell, 2011 UT 81

In Maxwell, agents of the Utah Attorney General's Task Force on Internet Crimes Against Children (ICAC) interviewed a suspect, Maxwell, about possible child pornography on his computer. When Maxwell denied viewing child pornography, the agents stated "[w]e're going to need to take your computer" and asked for Maxwell’s consent to search the computer. Maxwell refused consent, and openly stated that he might destroy his computer. The ICAC agents then seized the computer without a warrant.

The Court held that the warrantless seizure of the computer was reasonable because it was necessitated by exigent circumstances. Relying on the U.S. Supreme Court's 2011 decision in Kentucky v. King, the Court held that in order to prove exigent circumstances, the State has the burden of demonstrating that law enforcement had a reasonable suspicion that evidence would be destroyed if the officers delayed long enough to obtain a warrant.

Applying this standard, the Court held that Maxwell’s statement that he might destroy the computer created exigent circumstances because the ICAC agents could have reasonably believed, based on Maxwell’s statement, that he would destroy his computer before they could obtain a warrant. The Court also held that the ICAC agents did not create the exigency by stating "[w]e're going to need to take your computer" because this statement did not threaten to violate Maxwell's Fourth Amendment rights.

State v. Arave, 2011 UT 84

The Defendant, Arave, approached an eleven-year-old boy and offered to pay him $20 if he would agree to let Arave perform oral sex on him. Arave was convicted of attempted sodomy on a child. On appeal, he argued that facts only supported a charge of solicitation, and that solicitation could not be a “substantial step” toward the commission of a crime that is necessary for an attempt without violating the Shondel doctrine.

The Court held that the Utah solicitation statute was applicable to sodomy on a child because the statute encompassed both the solicitation of another person to commit an offense and the solicitation of a potential victim. The Court further held that the attempt and solicitation statutes did not violate the Shondel doctrine per se because each statute contained an element that the other did not. Where the attempt statute required proof of a “substantial step” toward the commission of the crime of sodomy on a child, and did not require the participation of another person, the solicitation statute required the participation of another person and did not require proof of a “substantial step.”

However, the Court agreed that the statutes would violate the Shondel doctrine if solicitation could legally constitute a “substantial step” toward the commission of a crime, because in that case the attempt and solicitation statutes would be “wholly duplicative” of each other. Thus, the Court held that, at most, Arave was guilty of solicitation of sodomy on a child, and reversed Arave’s conviction for attempted sodomy on a child.

State v. Price, 2012 UT 7

After a traffic accident which resulted in the death of a 16-year-old, an officer interviewed Price, who had allegedly failed to yield the right of way by running a yield sign. Price consented to a portable breath test, which was positive for alcohol. Price refused a blood draw, and his blood was obtained by warrant to test Price’s blood for alcohol. Subsequent tests on the blood were positive for THC. Price moved to suppress the result of the blood tests on the ground that testing for THC was outside the scope of the warrant.

The Court held that testing for THC in Price's blood did not violate the Fourth Amendment. Citing U.S. Supreme Court precedent for the proposition that any interest in possessing contraband is not reasonable, the Court held that once Price’s blood was legitimately seized, Price had no reasonable expectation of privacy in the contraband contents of his blood. Importantly, this holding was supported by the fact that the testing on Price’s blood was limited to revealing the blood’s THC content, and did not reveal other private medical facts in which Price retained a legitimate expectation of privacy (such as HIV status, DNA information, blood type, etc.).

Utah Court of Appeals

State v. Ferretti, 2011 UT App 321

The Defendant, Ferretti, pled guilty to murder. At sentencing, Ferretti made an oral motion to withdraw his plea before sentence was announced. Over defense counsel's objection, the trial court required Ferretti to articulate a good faith basis for withdrawing his plea. When Ferretti could not do so, the trial court denied the motion and proceeded with sentencing.

The Court of Appeals reversed. The Court held that Ferretti's oral motion was timely, and held that the trial court was required to give Ferretti a reasonable time to prepare and submit a written motion to withdraw. This was required, the Court held, in order to comply with the due process requirement of "an opportunity to be heard in a meaningful way."

State v. Lloyd, 2011 UT App 323

Police officers approached a parked vehicle based on an informant's tip that the vehicle occupants were "smoking drugs." While approaching the vehicle, the officers noted a "cat urine" odor which they identified as the odor of burning crack cocaine. One of the officers questioned Lloyd, who was sitting in the driver’s seat, and Lloyd advised that there was a gun in the vehicle. The officers then searched the vehicle, and found a firearm, drugs, and drug paraphernalia.

The Court of Appeals upheld the search and seizure. Although the informant was identified, the informant's tip was not sufficient to give rise to reasonable suspicion because a common person would not be able to distinguish between smoking tobacco and smoking illegal substances. However, the officers’ familiarity with the odor of burning impure "crack" cocaine was sufficient to provide both reasonable suspicion for Lloyd's brief detention and probable cause to search Lloyd's vehicle and the containers within it.

State v. Graham, 2011 UT App 332

A trooper saw Graham driving a vehicle. Because of another case involving the Graham, the trooper had recently verified that Graham’s license was revoked for alcohol. The trooper informed a nearby deputy that Graham was revoked for alcohol, and the deputy initiated a traffic stop. Based on the stop, Graham was charged with multiple violations including DUI and open container violations. Graham won a motion to suppress, and the case was dismissed without prejudice. The State appealed.

The Court of Appeals reversed. The Court upheld the State’s right to appeal the trial court's order granting the motion to suppress. The Court further held that the trooper, who had recently checked the status of Graham's license, had reasonable suspicion to support a traffic stop that was imputed to the deputy who effected the stop.

State v. Gallup, 2011 UT App 422

A trooper initiated a traffic stop for speeding. While approaching the vehicle from the passenger side, the vehicle sped away. The trooper got only a glimpse of the driver. After learning that the vehicle was registered to Gallup, the trooper called Gallup on the phone and asked to meet with him. Gallup was silent for a few moments, and then hung up the phone. At trial, Gallup moved to exclude the hang-up evidence as an infringement of his right against self-incrimination. The trial court denied the motion to exclude the evidence. Gallup then testified in his own defense and attempted to establish an alibi. However, the trial court ruled that Gallup could not establish an alibi because he had failed to give timely notice of an alibi defense. Gallup was convicted.

The Court of Appeals reversed. The Court held that the admission of evidence surrounding Gallup’s hang-up violated his pre-arrest right to remain silent. Although the State could legally have used the evidence for impeachment, it did not do so, but elected to present the evidence of the hang-up in its case-in-chief to prove culpability.

The Court further held that Gallup was entitled to testify in his own defense and give an alibi, regardless of his failure to give timely notice. However, the Court noted that Gallup would not be allowed to introduce extrinsic evidence of his alibi without complying with the notice requirement, and the State could argue the implications of Gallup’s failure to give notice.

State v. Millett, 2012 UT App 27

Millett was on trial for sodomy on a child. During deliberations, one of the jurors disclosed that he believed he had previously seen Millett’s name on a sex offender registry. The juror advised that he had not remembered this fact during voir dire, but that he had recollected it after the jury was empaneled. The trial court denied Millett’s motion for a mistrial.

The Court of Appeals reversed. Utilizing the McDonough test, the Court held that the juror had failed to answer honestly a material question on voir dire when he failed to disclose the fact that he had seen the Millett's name on a sex offender registry. This was so, the Court held, even though the juror's failure to disclose this fact was purely inadvertent. Furthermore, the Court held that disclosure of this fact during voir dire would have supported a challenge for cause. Thus, both prongs of the McDonough test were satisfied, and the Court remanded the case for a new trial.

State v. Hernandez Confirms the Right to Preliminary Hearing for Class A Misdemeanors

One of the important rights that criminal defendants enjoy in Utah is the right to a preliminary hearing.  At this critical hearing, the State is required to prove that there is enough evidence to justify the defendant’s detention (if the defendant is in custody), and to justify a trial on the charges levied against the defendant.  The evidentiary standard at this hearing is known as probable cause.

If the State cannot meet its burden of proof, the charges are dismissed.  Thus, the preliminary hearing serves as a screening process, allowing magistrates and judges to weed out and dismiss unfounded criminal charges before spending the State’s resources on an needless criminal trials.  Furthermore, the right to a preliminary hearing and the attendant burden of proof on the State are valuable chips at the plea bargaining table, chips that can often be traded for concessions that benefit both the defendant and the State.

Preliminary hearing is a right based in article I, section 13 of the Utah Constitution.  The Utah Supreme Court recently addressed the question whether the right to preliminary hearing applies to class A misdemeanor offenses in its unanimous opinion in State v. Hernandez, 2011 UT 70.

The Hernandez opinion, authored by Justice Parrish, makes clear that article I, section 13 of the Utah Constitution guarantees the right to a preliminary hearing to defendants charged with class A misdemeanor crimes.  The opinion  focuses on the language of article I, section 13 which provides that “[o]ffenses heretofore required to be prosecuted by indictment, shall be prosecuted by information after examination and commitment by a magistrate.”

The opinion is a model of systematic analysis.  First, the Court classifies criminal charges qualifying as “offenses heretofore required by be prosecuted by indictment,” and then determines what type of proceeding is required by the expression “examination and commitment by a magistrate.”

The Court relies on the plain meaning of the words “offenses heretofore required to be prosecuted by indictment,” to hold that the clause refers to crimes, whether felonies or misdemeanors, that were required to be prosecuted by indictment before the adoption of the Utah Constitution.  On this point, the Court acknowledges that the Fifth Amendment to the federal constitution, which was was applicable to the Utah territory at the time the Utah Constitution was drafted, only required that felony offenses be prosecuted by indictment.

However, analysis of the Utah Constitution and the debates of the Utah Constitutional Convention indicate that article I, section 13 was intended to refer to the requirements of Utah territorial law in addition to federal constitutional requirements.  And Utah territorial law, the Court notes, extended the guarantee of prosecution by indictment to misdemeanors punishable by more than six months in the city or county jail.

In addition, since Utah territorial law classified crimes according to their associated punishments, and not their elements, the territorial law would have extended the right to prosecution by indictment to all present day class A misdemeanors (which are punishable by imprisonment in excess of six months) even though many present day misdemeanor crimes not exist under territorial law.  In essence, “the drafters intended to provide article I, section 13 protection to all individuals who were facing imprisonment terms of more than six months.”  Thus, the Court holds that class A misdemeanor crimes are “offenses heretofore required to be prosecuted by indictment.”

The Court then analyzes the meaning of “examination and commitment,” and concludes that the plain meaning of this phrase refers to a preliminary hearing.  The Court turns to the ever persuasive Black’s Law Dictionary for the definition of “examination,” which is given as “[t]he questioning of a witness under oath.”  Reasoning that the questioning of witnesses connotes an evidentiary hearing, the Court holds that “examination and commitment” refers to an evidentiary hearing.

For further support on this point, the Court again turns to Utah territorial law.  Under the territorial law, the prosecution of an indictable offense required an “examination of the case,” which required the magistrate to find probable cause by weighing evidence and “examining the witnesses.”

Additionally, the Court finds evidence in the debates of the Utah Constitution that the concept of examination, as used in the Utah Constitution, connoted the questioning of witnesses.  Based on all the above, the Court concludes that there is ample support for its holding that “examination and commitment” means a preliminary hearing.  Thus, the Court ultimately concludes that article I, section 13 guarantees a right to preliminary hearing for class A misdemeanor offenses.

Perhaps the most interesting aspects of Hernandez are the State’s arguments in support of its position that class A misdemeanor defendants are not entitled to preliminary hearings under Article I, Section 13.  For example, the Court notes that “[t]he State argues that even if article I, section 13 applies to Class A misdemeanors, it does not require a preliminary hearing.  The State reasons that this section merely requires magistrate review of an affidavit sworn to by a person having reason to believe that the offense has been committed.”  (Internal quotation marks omitted).

In other words, article I section 13 is satisfied by a judge’s review of the affidavit of probable cause attached to an information.  The implication of this argument is that the Utah Constitution does not guarantee the right to a preliminary hearing for any crime, whether felony or misdemeanor.  While it is unlikely that the State intended to aver that the Court ought to read the right to preliminary hearing out of the Utah Constitution entirely, this argument is nonetheless troubling.