This article examines some of the more important, and hopefully interesting, criminal cases decided by the Utah appellate courts in 2003. This is by no means intended to be an exhaustive list or discussion, just a brief overview of a few of the cases that have impacted the criminal justice system. The author concentrated on substantive cases to the exclusion of the many important procedural cases decided last year. Although the author is a public defender he has attempted to keep this article as non-biased as he is able.
Author (Patrick W. Corum)
Right to Appear at All Stages of Prosecution
All too frequently, defendants fail to appear for a scheduled court date. In the vast majority of those cases, the trial court will simply issue a bench warrant, the defendant will be arrested sometime in the future, and the proceeding will be held with the defendant in custody. However, in some instances, the trial court will choose another path, finding that the defendant has waived the right to be present and proceed in absentia. In State v. Wanosik, 2003 UT 34, 79 P3d 937, the Utah Supreme Court addressed the requirements of such a finding.
After pleading guilty to misdemeanor drug charges, the trial court informed Wanosik of his sentencing date. When Wanosik did not appear for his sentencing, defense counsel asked the trial court for time to locate him. The trial court denied the request and sentenced Wanosik in absentia to the maximum amount of jail time on each charge. Most importantly, the trial court stated that it must assume that Wanosik's absence was voluntary because he had not informed counsel or the trial court that he would be unable to appear.
The Court of Appeals, in State v. Wanosik, 2001 UT App 241, 31 P.3d 615, held that there is no automatic presumption in favor of voluntary waiver of the right to be present arising from mere nonappearance. The court stated that, beyond providing notice, the trial court did not need to specifically warn a defendant that the hearing could proceed in absentia. However, the trial court did need to make some inquiry into voluntariness and determine, based upon the totality of the circumstances, that the defendant was voluntarily absent. To aid in the voluntariness inquiry, the court suggested that the State could determine whether the defendant is incarcerated, contact local hospitals, contact the defendant's employer, make a "reasonably diligent" attempt to contact the defendant at his residence, contact Pretrial Services, and the bail bond company. Once reasonable inquiry has been made, and a "compelling" reason for the absence remains unknown, voluntariness may be presumed. Even then, defense counsel must be given the opportunity to rebut the inference by gathering additional information.
Additionally, the court held that, under Due Process and Rule 22(a) of the Utah Rules of Criminal Procedure, trial courts have an affirmative duty to provide the defendant and counsel an opportunity to address relevant sentencing information prior to imposition of sentence, even if the defense does not request the opportunity to speak.
On certiorari, the Utah Supreme Court affirmed the Court of Appeals, but clarified some of the requirements of the voluntariness inquiry. Specifically, and in contrast to the lengthy list provided by the Court of Appeals, the court stated that the prosecution should ensure that the defendant is not incarcerated and that defense counsel should attempt to contact the defendant or those familiar with him to determine if an explanation for the absence exists. Once those inquiries have been made after a short continuance, and have produced no evidence of involuntary absence, the trial court may then properly infer that the absence was voluntary. In his concurring opinion, Justice Ronald E. Nehring briefly addressed the practicalities of in absentia proceedings, stating that judicial economy was ill served and that the principles announced in the case should be "stored in the closets of trial judges and retrieved only on unusual occasions," and cautioned trial court to avoid the practice absent "highly unusual circumstances."
Right to Allocution
As a practical matter, defendants who maintain their innocence after pleading guilty or being convicted at trial face much stiffer sentences. For example, for those convicted of certain sex offenses, refusal to take responsibility may lead to denial of offender treatment and, thus, serving the full term of the sentence. As a result, defendants and counsel were faced with a serious dilemma. Namely, is it better to admit responsibility in hopes of a more lenient sentence or to maintain innocence in the hopes of another trial? The Utah Supreme Court alleviated some of these concerns in State v. Maestas, 2002 UT 123, 63 P.3d 621.1 In Maestas, majority of the court, over the rigorous and lengthy dissent of two justices, barred the use in a subsequent trial of admissions made as part of a pre-sentence investigation and at a sentencing hearing.
Maestas, after taking the stand and maintaining his innocence, was convicted at trial. Maestas then essentially confessed to the charges both in the pre-sentence report and at the sentencing hearing in an effort to seek mercy. The conviction was overturned on appeal based on ineffective assistance and, on retrial, the trial court ruled that the statements made in the report and at sentencing would be admissible.
As to the statements made in the pre-sentence report, the majority looked to the Utah law on access to protected records, and held that a defendant's interests in the right to seek mercy at sentencing outweigh the public's interest in using a defendant's statements in a pre-sentence report in a subsequent prosecution.
Regarding the statements made at the sentencing hearing, the majority found that they too were inadmissible, but for different reasons. Chief Justice Christine M. Durham, writing the lead opinion, first addressed Rule 24(d) of the Rules of Criminal Procedure which places a defendant in the "same position as if no trial had been held" when a trial judge grants a motion for new trial. Chief Justice Durham relied on the court's supervisory powers to craft an analogous rule applicable to the situation where the appellate court orders a new trial.
Next, Chief Justice Durham discussed the right to allocution contained within Article I, Section 12 of the Utah Constitution, stating that the right to allocute at sentencing would be meaningless if those statements could then be used in a subsequent trial. She noted that, in any case in which an appeal was contemplated, most competent attorneys would advise their clients to not allocute. Furthermore, given that continued denial of responsibility can greatly affect one's sentence and position with the Board of Pardons, the Chief Justice recognized that even a truly innocent person may "confess" at sentencing in a plea for mercy. Now retired, Justices Richard Howe and Leonard Russon, while concurring in the result, based their decision solely on the right to allocution.
The Corpus Delicti Rule
In State v. Mauchley, 2003 UT 10, 67 P.3d 477, the Utah Supreme Court abandoned the long-standing corpus delicti rule in favor of a trustworthiness standard regarding the admission of confessions. Under the corpus delicti rule, the prosecution was required to prove by clear and convincing independent evidence that a crime had been committed before introducing a defendant's confession. In contrast, the trustworthiness standard focuses on the circumstances surrounding the confession itself to determine admissibility. In recent years, the corpus delicti rule has played a significant role in cases in which the alleged victim was covered by privilege or had flatly refused to testify. In driving under the influence cases the rule came into play where the only connection between the impaired person and the operation of a motor vehicle was his or her own admission.
Mauchley filed an insurance claim, alleging that he had fallen into an open manhole. A subsequent investigation showed that the manhole was indeed uncovered, and because Mauchley had been treated for injuries, the veracity of the claim was not questioned. However, some six months after the case settled, Mauchley walked into the police department and voluntarily confessed that he had made up the story about falling in the manhole. Absent the confession, there was no evidence to even suggest that a crime of insurance fraud had been committed.
The court examined the ancient history and policy surrounding the corpus delicti rule and found that it was anachronistic, did not adequately protect the innocent, and may actually serve to obstruct justice. The court found the trustworthiness standard, previously adopted by the United States Supreme Court in 1954, was better suited to modern needs.
According to the trustworthiness standard, the State must introduce "substantial independent evidence" in support of the confession. This need not include evidence of the actual crime. As to the nature of the requisite "independent evidence," the court discussed separate situations.
The first and most classic, and that involved in the Mauchley case itself, is where there is no independent evidence whatsoever that a crime has occurred. In such case, the court held that evidence that is "typically used to bolster the credibility and reliability of an out-of-court statement" can be used to establish trustworthiness. In particular, the court can look to "the absence of deception, trick, threats, or promises to obtain the statement; the defendant's positive physical and mental condition, including age, education, and experience; and the presence of an attorney when the statement is given" to determine trustworthiness.
Secondly, the court addressed cases in which independent evidence of the crime existed, but there was no independent evidence of the identity of the perpetrator or cases in which there was independent evidence of the crime and the perpetrator, but not enough to establish guilt. In these situations, the court suggested that the independent evidence may be used to bolster the confession "by showing a person's confession demonstrates the individual has specific personal knowledge about the crime " including "highly unusual elements of the crime" or "mundane details" that have not been made public.
Regardless of the specific situation, there must be a "degree of fit" between the confession and the known facts. Thus, statements that are demonstrably false or merely parrot widely known details may be untrustworthy.
As with the corpus delicti rule, the trustworthiness standard requires that the trial court to act as gatekeeper. Before a confession may be admitted, the trial court is required to consider the totality of the circumstances and find that the confession is trustworthy by a preponderance of the evidence.
Finally, because the adoption of the trustworthiness standard lowers the amount and nature of evidence needed to convict a person, the Ex Post Facto Clause found in Article 9 of the United States Constitution is implicated and will be applied prospectively only.
The Enhancement of Charges by Prior Offenses
As defendants acquire more and more enhanceable prior convictions and prosecutors file more enhanced charges, the enhanceability of offenses has taken on greater importance is recent years. A frequent question in enhancement cases is whether a particular prior offense is indeed enhanceable. In State v. Gutierrez, 2003 UT App 95, 68 P.3d 1035, the Utah Court of Appeals addressed the validity of prior convictions used for enhancement purposes. Specifically, the case involved the amount and quality of evidence necessary to raise a challenge an enhanceable prior conviction.
Gutierrez was charged with driving under the influence as a third degree felony due to four previous alcohol-related driving convictions. Gutierrez filed a motion to dismiss, challenging the validity of two of his previous convictions.
As to the first challenged conviction, Gutierrez asserted that the guilty plea had been taken without the full plea colloquy required by Rule 11 of the Utah Rules of Criminal Procedure. The court held that, while a defendant may withdraw a guilty plea that violates Rule 11, strict compliance with Rule 11 is unnecessary on collateral attack. The only question at that point is whether the plea was voluntary.
Once established, usually by a certified copy of the judgment, a prior conviction is due a "presumption of regularity." Moreover, if the defendant had counsel at the time of the plea, it is presumed to be voluntary. Thus, it becomes the defendant's burden to put forth "some evidence" of that the plea was involuntary. Should the defendant produce such evidence, the burden would then shift back to the State to prove voluntariness by a preponderance of the evidence. Since Gutierrez produced absolutely no evidence of involuntariness, the court found that the plea was voluntary.
Regarding the second challenged plea, Gutierrez submitted his own affidavit which asserted, inter alia, that he had not been adequately informed of his rights and had not read the plea forms prior to signing them. The court found that a self-serving affidavit is insufficient to rebut the presumption of regularity. Rather, a transcript, testimony, a docket, or other affirmative evidence is required to rebut the presumption. Even though the plea was not taken in a court of record, the defendant could have produced testimony from those present during the plea or a docket sheet.
In a somewhat related case, the Utah Court of Appeals reaffirmed the principle that recidivist statutes do not violate the Ex Post Facto Clause Article 9 of the United States Constitution. State v. Marshall, 2003 UT App 381, 81 P.3d 775. The Marshall court upheld the 2001 amendments to the DUI statute which extended the period that prior convictions could be enhanced from six to ten years.
Search and Seizure
No review of criminal appellate cases would be complete without at least some discussion, albeit cursory, of search and seizure issues. What follows are just a few of the many search and seizure cases decided last year.
In State v. Abell, 2003 UT 20, 70 P.3d 98, the Utah Supreme Court again addressed the validity of highway checkpoints under the Utah Constitution. See also State v. DeBooy, 2000 UT 32, 996 P.2d 546.
The checkpoint at issue authorized eleven different checks from seatbelts and driver's licenses to external safety devices and detection of impaired drivers, all to further seven stated purposes. Furthermore, the checkpoint instructed officers to detect and enforce driver license violations, registration violations, proof of insurance violations, equipment violations, safety inspection violations, alcohol and DUI violations.
Although the decision rests on Article I, Section 14 of the Utah Constitution, the court carefully examined federal cases for their persuasive value. In particular, the court emphasized the "primary purpose" test adopted by the United States Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). Under this test, if the primary purpose of the checkpoint is general law enforcement, as opposed to highway use and safety, the checkpoint will fail scrutiny in the absence of individualized suspicion. The court held that "multiple purpose checkpoints that permit numerous independent checks related to one another only through their loose connection to the operation of a vehicle on the highway are constitutionally infirm." Specifically, the checkpoint at issue afforded police officers too much discretion because it did not specify which safety violations to inspect, the length of the stop, or when to conduct a sobriety check.
In State v. Warren, 2003 UT 36, 78 P.3d 590, the Utah Supreme Court determined the role that an offcier's subjective belief as to whether a suspect is armed plays in determining the reasonableness of a Terry frisk.2 The officer suspected drug or prostitution activity when he observed an unknown person leaning into the open passenger door of Warren's car late at night in a deserted downtown location. After Warren pulled away, the officer made a traffic stop based upon a signal violation and found that Warren did not have a current driver's license or registration. The officer decided to impound the car and ordered Warren out of the car. The officer asked Warren if he had any weapons. Warren answered that he did not. The officer testified that Warren did not do anything to make him suspect Warren was armed or caused him concern, and that he had no intention of arresting Warren. Nevertheless, the officer performed a Terry frisk. In addition, the officer testified that he performs Terry frisks as a matter of routine for anyone he orders out of a car. During the frisk, a small twist of cocaine fell out of Warren's shirt, further search of his person revealed additional paraphernalia and controlled substances.
The Court of Appeals overturned the trial court's denial of Warren's motion to suppress, finding that the officer "did not believe, and had no basis on which to reasonably conclude, that Warren might be armed." State v. Warren, 2001 UT App 346, 37 P.3d 270. Moreover, the Court of Appeals stated, the officer's subjective belief that Warren was not armed took the frisk "outside of Terry's limited justification for warrantless searches."
The Utah Supreme Court affirmed the Court of Appeals result, but clarified the decision as to the level of importance of an officer's subjective belief in determining the reasonableness of an officer's actions. Although the officer had testified as to his subjective belief that Warren was not armed, this fact alone was not dispositive. Rather, that belief is just one factor in the objective analysis of the totality of the circumstances. Additionally, the Utah Supreme Court held that the inherent dangerousness of traffic stops is another factor to be considered. However, "any reduction in that danger resulting from ordering the occupants out of the vehicle should be factored into the totality of the circumstances analysis."
In State v. Bissenger, 2003 UT App 256, 76 P.3d 178, the Court of Appeals was confronted with the question of whether a passenger in a vehicle has a reasonable expectation of privacy in the passenger's closed containers found inside the vehicle.
Bissenger was a passenger in a car stopped for a registration violation. Based upon an odor of alcohol, the driver was asked to perform field sobriety tests, which he passed. The officer then asked whether there were any open alcohol containers in the car. The driver said there were none, and the officer could observe none. Undeterred, the officer asked for, and received, permission to search the car for open containers. Prior to the search, the officer ordered Bissenger out of the car. While Bissenger exited, she left behind some personal items, including an opaque lip-balm container. The officer knew the lip-balm container was Bissenger's when he unscrewed the cap to reveal methamphetamine.
The Court of Appeals found that a passenger does have standing to challenge the search of closed containers left behind in the car. For Fourth Amendment purposes, the court refused to draw a distinction between the closed lip-balm container and a purse, bag, or jacket, stating that "each of these items is a closed container that keeps the owner's personal things hidden from public view." Furthermore, the court held that Bissenger did not abandon possession of the container when she exited the car as she did not voluntarily relinquish her expectation of privacy. Finally, the officer exceeded the scope of the stop, when he asked for consent to search the car after resolving the suspicions for the traffic stop.
1. While not technically a 2003 case, Maestas merits attention in any recent case law discussion. Furthermore, even though Maestas was officially filed on December 20, 2002, it was not released for publication until January 22, 2003.
2. A Terry Frisk takes it's name from the seminal United States Supreme Court opinion in Terry v. Ohio, 392 US1 (1968). In Terry the Court held a frisk during a routine traffic stop could only be conducted and evidence obtained used from the frisk if the officer has a reasonable suspicion that a crime was committed and the suspect is armed.