Inconsistencies between Pretrial Statements and In-Court Testimony Does Not Render Testimony False

The statements made by three witnesses pretrial that were inconsistent with their in-court testimony does not render that testimony inherently false

 State v. Prater, 2017 UT 13.

The Utah Supreme Court found that inconsistent statements made before trial that conflict with later in-court testimony does not make the testimony inherently false. The testimony at issue was provided by three different witnesses to a murder. Although each witness provided false information or denied knowledge of the incident to the police in the initial police reports regarding the murder, their accurate testimony was still submitted to the jury by the district court judge. The defendant argued on appeal claiming that there was insufficient evidence to support his conviction because the testimony was “inherently improbable.” The Supreme Court rejected this argument, finding that despite the inconsistencies in statement and testimony, the jury is able to weigh and assess the credibility of the evidence. 

The court reaffirmed the principles developed in State v. Workman, 852 P.2d 981 (Utah 1993), holding that the “jury serves as the exclusive judge of both the credibility of the witnesses and the weight to be given particular evidence.” The definition of inherently improbable testimony was also expanded under State v. Robbins to “include circumstances where a witness’s testimony is incredibly dubious and, as such, apparently false.” The Court in that decision held that “where (1) there are material inconsistencies in the testimony and (2) there is no other circumstantial or direct evidence of the defendant’s guilt” may the district court “reevaluate the jury’s credibility determinations.” In such instances, a district court can find the testimony false. The three witnesses and their testimony, while inconsistent, had other circumstantial and direct evidence to bolster their veracity and it was not an error of the court to submit their testimony to the jury.

https://www.utcourts.gov/opinions/supopin/State%20v.%20Prater20170307.pdf

Intent a Necessary Element for Violating Rules of Conduct in Making a False Statement

The Utah Supreme Court found that sanctions placed on an attorney for making false statements lacked the necessary intent requirement for imposing the specific sanctions

In re Tyler James Larsen, 2016 UT 26.

   After reviewing the sanctions placed on a Utah prosecutor, the Utah Supreme Court found that he lacked the requisite intent to have violated the rules of professional conduct in making false statements. Under Rule 3.3(a)(1), a lawyer shall not “make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer." During the trial, the prosecutor made false statements about evidence presented to the court, but without proof of intent, he could not be in violation of the Rule 3.3.  The court found that the rule “plain meaning requires that any misstatement to be made knowingly.”

   The Supreme Court upheld the second half of his sanctions, finding that he violated Rule 3.8, which “requires a prosecutor in a criminal case to ‘make timely disclosure to the defense of all evidence or information known to the prosecutor that tends to negate the guilt of the accused or mitigates the offense.’” The prosecutor admitted evidence at the time of the trial, which the court concluded there was “no way to characterize the admission he made at trial as a timely disclosure under rule 3.8(d).” In defending his action, the prosecutor attempted to support his lack of timeliness under Brady because he was required to disclose any evidence, even if it was late. The court rejected this argument, noting that the Rules of Professional Conduct not only provide for a fair trial, but also establish an ethical duty that will avoid the problem in the first place.

    The six-month suspension of the prosecutor was also upheld. The court found the mitigating and aggravating factors cancelled each other out, noting that although he was less-experienced, had no prior record of sanctions, and lacked a dishonest or selfish motive, he still refused to acknowledge wrongfulness of his conduct and harm to the victim. Additionally, deference was given to the district court in issuing the suspension because of the support of the record and precedent of similar suspensions for comparable actions.

   Finally, the Office of Professional Conduct wanted to adopt a single system of sanctions where “the ultimate sanction imposed should at least be consistent with the sanction for the most serious instances of misconduct among a number of violations.“ The Supreme Court refused to adopt this standard of just one sanction for multiple violations, recognizing the difficulty that exists when a single sanction encompasses multiple violations is reviewed by appellate courts, complicating the punishment after review.


https://www.utcourts.gov/opinions/supopin/In%20re_%20Tyler%20James%20Larsen20160616.pdf

Defendant Entitled to Respond to State’s Motion to Dismiss Post-Conviction DNA Test

The Supreme Court of Utah found that a recently convicted defendant should have been allowed to file a memorandum in opposition to the State’s motion to dismiss a post-conviction DNA test

Gordon v. State, 2016 UT 11, 369 P.3d 1255.

     The Supreme Court of Utah recently clarified that the procedural due process rights of a convicted murder were violated because he could not file a memorandum in opposition to the state’s motion to dismiss his motion for a post-conviction DNA test. After being convicted of murder, the inmate petitioned to DNA test items that were not originally included in the trial. In response, the state motioned to dismiss the petition, which the court did before the petitioner could reply.
 
   The court found, by examining both the relevant statute and the Utah Rules of Civil Procedure, that if all of the elements are met for the specific statute in play of the petition, then the inmate had the right to supply a response motion.

    In addition, the supreme court clarified who had the burden of proof in in showing whether evidence not sought after in trail was done so because of “tactical reasons.” While the court did not rule on the merits of the issue, they clarified the rule by stating “the State has the burden of pleading that the petitioner declined to request DNA testing for tactical reasons, but that the burden of proof shifts to the petitioner to establish that he did not have tactical reasons for such failure.”

   The case was remanded so petitioner could properly respond to the motion to dismiss.

https://www.utcourts.gov/opinions/supopin/Gordon%20v.%20State20160323.pdf

Preponderance of Evidence Standard Remains as Standard in Disciplinary Proceedings

The standard of proof in an ethics violation proceeding remains the preponderance of evidence, even when the a criminal act is the basis of the ethics violation 

In re Discipline of Steffensen, 2016 UT 18, 2016 WL 1584452.

   The Utah Supreme Court reaffirmed the standard of review used in ethics violation proceedings to be by the preponderance of evidence and not by proof beyond an unreasonable doubt. In the recent disciplinary proceeding, the attorney argued that a heightened standard of proof should be used because of the basis for his ethics violation was a criminal action. The Supreme Court, however, refused to elevate the standard because the rules “prescribe a preponderance standard for all ‘formal complaints of misconduct.’ And we see no room in the straightforward terms of the rule for the adoption of a higher standard of proof on a charge of ‘criminal act’ under [the] rule.”

   In arguing for the change, the attorney claimed that there would be a due process violation without the heightened standard. The court rejected this argument because of their desire to “retain discretionary license to assure fair procedure in the cases that proceed through our justice system. But our usual course for so doing is by promulgating rules of procedure.”

   The attorney also argued that a heightened standard has more positive aspects that outweigh the negative ones. The court recognized the possible benefits as respectable, but concluding that policy reasons do not override the clear terms of an existing rule.

https://www.utcourts.gov/opinions/supopin/State%20v.%20Jones20160111.pdf

Bindover Standard Does Not Allow Court to Second-Guess Prosecutor Evidence

Utah’s bindover standard for probable cause, does not allow courts to second-guess the prosecution’s evidence by weighing it against the totality of evidence to draw a reasonable inference.

State v. Jones, 2016 UT 4, 365 P.3d 1212.

    The Utah Supreme Court reaffirmed that probable cause for arrest is the standard used to determine whether bindover is appropriate based on evidence provided by the prosecutor for allegations of a crime. In analyzing these cases, the court suggests the question to ask is “whether any officer, viewing the evidence in the light most favorable to the prosecution, could reasonably conclude that a crime was committed and that the defendant committed it.”

   A magistrate and the appellate court both made inferences on their decision based on the totality of evidence, not taking into account the limited role that courts must take in applying the probable cause standard in viewing the evidence in the most favorable light of prosecutors.  The court further noites that “[t]he judicial role at this stage, however, is not to prejudge the likely outcome of trial. It is simply to ask whether there is a non-speculative basis in the evidence to sustain a reasonable basis for an arrest on the crime in question.”

https://www.utcourts.gov/opinions/supopin/State%20v.%20Jones20160111.pdf

Defendant Does Not Invite Error if Caused by Actions of the Court

A defendant does not invite error if his counsel withdraws a hearsay argument due to actions of the trial court and then later fails to affirmatively object to the court’s actions.

State v. McNeil, 2016 UT 3, 365 P.3d 699.

   The Utah Supreme Court narrowed its definition of invited error to exclude instances when the court takes actions in which counsel fails to object. Generally, invited error occurs when counsel encourages the trial court to make an erroneous ruling. To do this, counsel would need to independently make an affirmative representation of an erroneous principle. This principle, however, is moot if the trial court is responsible for leading the trial to the error in the first place. The defendant’s counsel withdrew an objection to an error due to actions of the trial court, therefore, the failure to object “to a trial court’s actions in not invited error in this context.”

https://www.utcourts.gov/opinions/supopin/State%20v.%20McNeil20160106.pdf

State v. Ririe, 2015 UT 37

The Court ruled on the requirements of claim preclusion for offenses arising out of a single criminal episode under the Utah Code.

State v. Ririe, 2015 UT 37

           

            Bobbie Jo Nadine Ririe was issues citations for an open container offense, and a drunk driving offense. The open container offense went to a justice court, and the defendant paid the fine online. This resulted in a “conviction” which barred any subsequent prosecution on the same offense.

           

           The defendant attempted to use Utah Code section 76-1-403 which adopts a principle of claim preclusion for certain offenses arising out of a “single criminal episode” and the subsequent prosecution is for an offense that was or should have been tried under Subsection 76-1-402(2).”

         

           The statute requires that there be an information made about the crime and that a prosecutor be involved. In State v. Prion the Court determined that the offenses are “known to the prosecuting attorney at the time the defendant is arraigned on the first information or indictment.” See State v. Prion, 2012 UT 15, ¶ 30, 274, P.3d 919.

The Court here ruled that the statute does not apply to this case because there was no “information or indictment” on the first offense, and accordingly there was not a “prosecuting attorney” involved. For the first offense the defendant pleaded guilty by using the online system to pay the fine, essentially admitting guilt. Because it was dealt with before an information was filed and before a prosecutor was involved, there is no claim preclusion under this statute.

State v. Roberts, 2015 UT 24 - Child Pornography and the Wyoming Toolkit

The use of the Wyoming Toolkit to identify computers with child pornography is permitted and discovery of the Toolkit cannot be compelled. The statute covering the possession of child pornography is Constitutional.

State v. Roberts, 2015 UT 24

      The defendant pleaded guilty to five charges of sexual exploitation of a minor arising from child pornography on his computer. He then appealed four of the court’s pretrial rulings.

On the first, the court ruled that the Wyoming Toolkit (database/algorithmic program to search for child pornography) did not have “the same intrusiveness as thermal imaging” and that “peer-to-peer file sharing is not entitled to a reasonable expectation of privacy.” The Court used 8th Circuit case law (as well as law from the 6^th, 9^th, 10^th, and 11^th Circuits) that says “[A] defendant has no reasonable expectation of privacy in files… retrieved from his personal computer where [the defendant] admittedly installed and used LimeWire to make his files accessible to others for file sharing.”

Two of his appeals were regarding the admissibility of the evidence from the Toolkit. The Court ruled that he could not compel discovery of the Wyoming Toolkit database and “the search algorithm process and methodology utilized...” because it was unnecessary for the purpose alleged because the files on the computer were personally verified by law enforcement and “disclosure of investigative techniques and procedures would interfere with law enforcement efforts.”

The Court also determined that the inclusion of the evidence obtained and related to the Wyoming Toolkit was proper because the technology is readily available, it is very accurate, and is not used alone but is part of the overall decision process. The Court also determined that the expert testimony met the URE 702 threshold for admissibility.

He also appealed regarding the Constitutionality of Utah Code 76-5b-201.  The Court ruled that it is Constitutional because it is not overbroad as the classifications that it creates do not “impose any disparate treatment on persons similarly situated.” The classifications are justified by a legitimate government interest in eliminating the market for child pornography, and because the restriction is not overly burdensome. The court looked to Robinson, 2011 UT ¶ 17, 254 P.3d 183, and this case passed the Robinson requirements.

Court Denies Writ of Coram Nobis

In 2002, Ramiro Oseguera-Garcia (Oseguera) was charged and convicted of third-degree felony theft after he stole a purse from a convenience store customer. Oseguera was working as a clerk at the convenience store when the crime occurred. Oseguera had immigrated to the United States from Mexico in 1972. Before this particular crime, Oseguera had been convicted of retail theft and was on probation. He pleaded guilty to theft on advice of counsel and was sentenced to sixty days in jail and another term of probation. Eight years later, federal immigration officers initiated deportation proceedings against Oseguera based on his third-degree felony theft charge. Oseguera then filed a petition to vacate his conviction under the PostConviction Relief Act (PRCA). His petition was based on the claim that his counsel was ineffective because he was never advised of the possibility of deportation as a result of pleading guilty. Oseguera also sought a writ of coram nobis in the alternative. The district court denied his petition, holding it was untimely. Oseguera appealed, alleging his attorney made affirmative misstatements regarding the possibility of deportation, which was different than what he argued before the district court.
At the district court, Oseguera argued he was never even told about the possibility of the deportation as a consequence to a guilty plea. The Utah Supreme Court affirmed the district court’s dismissal of his PRCA petition. The court held Oseguera failed to preserve his claim that his attorney made misrepresentations related to the possibility of deportation. In order to preserve this claim on appeal,
Oseguera was required to raise this argument and present relevant legal authority in support of that claim. He failed to do so. Although exceptions exist to this general rule, the appellant must raise an appropriate justification for the court to hear an unpreserved objection. Oseguera failed to do this as well. Accordingly, the court affirmed the district court’s denial of Oseguera’s PRCA petition. In regards to the writ of coram nobis, the court also affirmed the district court’s denial of that writ. The
court explained writs of coram nobis are extraordinary writs and should not be used in an ordinary
case. Citing State v. Rees, the court held a writ of coram nobis is inappropriate for ineffective assistance of counsel claims because the PRCA “establishes the sole remedy for any person who challenges a conviction or sentence for a criminal offense… and replaces all prior remedies for
review, including extraordinary or common law writs.” Consequently, Oseguera’s writ for coram nobis was properly denied.
Oseguera v. State, 2014 UT 31.