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.
Tuesday, July 3, 2012
Tuesday, June 5, 2012
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~
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~
Friday, March 16, 2012
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. 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.).
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.
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