State of Utah v. Leleae
Annotate this Casepublication in the Pacific Reporter.
IN THE UTAH COURT OF APPEALS
----ooOoo----
State of Utah,
Plaintiff and Appellee,
v.
John Leleae,
Defendant and Appellant.
OPINION
(For Official Publication)
Case No. 981189-CA
F I L E D
December 9, 1999
1999 UT App 368
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Third District, Salt Lake
Department
The Honorable Tyrone Medley
Attorneys:
Lisa J. Remal and Robert
K. Heineman, Salt Lake City, for Appellant
Jan Graham and Kenneth A.
Bronston, Salt Lake City, for Appellee
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Before Judges Wilkins, Greenwood, and Davis.
GREENWOOD, Associate Presiding Judge:
¶ 1.
Defendant was convicted
of aggravated assault in violation of Utah Code Ann. § 76-5-103 (1995),
and the trial court imposed an enhanced sentence under Utah Code Ann. §
76-3-203.1(1) (1999). Defendant appeals, arguing (1) insufficient evidence
supported his conviction; (2) errors during voir dire precluded a fair
trial; (3) the trial court erred when it refused to allow defendant to
introduce the entire statement he made to the police; (4) the gang enhancement
statute is unconstitutional; and (5) the trial court failed to properly
sentence defendant under the
Shondel doctrine.(1)
We affirm defendant's conviction for aggravated assault, but vacate his
enhanced sentence and remand for resentencing on the aggravated assault
conviction.
RELEVANT FACTS
¶ 2.
"'In reviewing a jury verdict,
we view the evidence and all reasonable inferences drawn therefrom in a
light most favorable to the verdict. We recite the facts accordingly.'"
State
v. Kiriluk, 975 P.2d 469, 470 (Utah Ct. App. 1999) (quoting
State
v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992)).
¶ 3.
On May 10, 1997, Kenny Brems,
the victim, was driving his truck eastbound on 3500 South Street in West
Valley City, Utah, when he noticed a blue Monte Carlo to his right. The
road narrowed from four to two lanes, one in each direction, as both cars
approached 4400 West Street. At that point, Brems heard two "pops" in close
succession and turned down his radio to listen more closely. Brems then
heard a third pop, at which instant his rear window shattered. Brems realized
the popping sounds were gunfire and that someone in the Monte Carlo was
shooting at him.
¶ 4.
The road then widened back
into four lanes. To prevent the Monte Carlo from pulling along side his
truck, Brems backed into the Monte Carlo, pushing it into another car behind
it. At that point, Brems's truck stalled, but he was too scared to restart
it. He got out of his truck and ran down 3500 South Street to escape and
get help. At the same time, he saw three men get out of the Monte Carlo.
One of the men, whom Brems later identified as defendant, had a gun. The
other two men were Edwin Seumanu and his brother, Viliamu Seumanu.
¶ 5.
As he ran down the street,
Brems tried unsuccessfully to get several drivers to call the police. He
finally found Earl Bramhall, who was already calling the police from his
cellular phone in his stopped vehicle. Brems felt more secure and stood
by Bramhall's car, but he did not notice that the three men had climbed
back into the Monte Carlo. The Monte Carlo pulled around Brems's truck,
ran over some barricades, and bore down on Brems. Bramhall saw the Monte
Carlo approaching Brems and yelled, "Look out! Look out!" Brems turned
to see the Monte Carlo rushing toward him. He tried to jump out of the
way, but the Monte Carlo struck him in the thigh, knocking him to the ground.
¶ 6.
The Monte Carlo stopped,
and defendant and one of the Seumanu brothers got out of the car. Defendant
was still holding a gun. The men approached Brems, and the Seumanu brother
asked why Brems had backed into their car. Brems responded, "Because you
were shooting at me." Just then, the other Seumanu brother got out of the
Monte Carlo. After that, Brems remembers only being beaten and begging
for his life. He does not recall whether defendant was hitting him, only
that the person who initially accompanied defendant began the beating and
that he was assaulted by more than one person.
¶ 7.
Several people witnessed
the incident. Bramhall, the driver who called the police from his cellular
phone, testified he saw defendant participate in the beating. Kevin Lubbers,
the driver of the vehicle into which Brems pushed the Monte Carlo, was
not close enough to see which of the Monte Carlo's occupants assaulted
Brems, but he did testify "that they were all beating up on this guy."
Another driver who had stopped his car recalled he saw three or four men
exit the Monte Carlo, chase Brems as he limped away, and then beat him.
He did not see any of the assailants try to stop the assault.
¶ 8.
The first police officer
to arrive at the scene was Officer William McCarthy. He saw a woman leading
Brems away and what appeared to be three Polynesian men, whom he later
identified as defendant and the Seumanu brothers, fighting with two other
Islanders wearing Delta airline uniforms. The men in the airline uniforms
were attempting to restrain defendant and his two cohorts.
¶ 9.
Officer Julia Jorgenson
arrived moments after Officer McCarthy. She saw a group of five Polynesians
and two Caucasians by a chain-link fence on the roadside. Two of the Polynesians
were wearing airline baggage-handler-type uniforms, while the other three--one
of whom was defendant--were wearing baggy clothing. Knowing that she had
been dispatched to a shooting incident, Officer Jorgenson looked for a
gun and immediately retrieved a .44 magnum revolver from the passenger
seat of the Monte Carlo. She also found five spent shell casings in the
car.
¶ 10.
Detective Kevin Nudd was
assigned to investigate the incident. After visiting the scene of the assault,
he interviewed defendant at the West Valley City police station. Defendant
initially claimed he was only a bystander and denied any involvement in
the assault. Defendant's story changed, however, after Detective Nudd told
him that the conversation between defendant and one of the other assailants
had been recorded as both suspects were detained in the police car. Defendant
then admitted being with the Seumanu brothers but claimed he had only met
them that evening. He stated they had all been drinking beer in a park,
and that Edwin Seumanu, the owner and driver of the Monte Carlo, agreed
to give defendant a ride. Defendant drove the Monte Carlo because Edwin
was intoxicated.
¶ 11.
Defendant was thus driving
Edwin's Monte Carlo when they encountered Brems. Defendant's testimony
was that he "accidentally" cut off Brems and that Brems retaliated by cutting
off the Monte Carlo. Edwin Seumanu then began firing a gun. After Brems
backed into the Monte Carlo, defendant stated he got out of the car to
allow Edwin's brother, Viliamu, who was in the back seat, to get out of
the two-door car. Defendant retrieved the gun from Edwin as Edwin got out
of the Monte Carlo, before Edwin and his brother began chasing Brems. After
failing to catch Brems, the Seumanu brothers returned to the Monte Carlo.
This time, however, Edwin was behind the wheel. Edwin maneuvered the Monte
Carlo around Brems's truck and drove into Brems. Defendant asserted the
Seumanu brothers then got out of the vehicle and began to assault Brems.
Defendant claimed he tried to pull Edwin and Viliamu off Brems but denied
he was involved in the beating.
¶ 12.
Edwin Seumanu's story differed
a bit from defendant's. Edwin asserted that he had, indeed, allowed defendant
to drive. He claimed it was Brems who had cut off the Monte Carlo and thus
had provoked Edwin to shoot a gun, which had been kept underneath the driver's
seat, "straight up in the air." After Brems backed his truck into the Monte
Carlo, Edwin stated that he and defendant got out of the car to pursue
Brems. That chase was abandoned, however, and Edwin returned to the driver's
seat of the Monte Carlo. Edwin also testified he could not remember what
defendant was doing during the attack on Brems, but that it was two other
Polynesians in uniforms, not defendant, who pulled the Seumanu brothers
off Brems.
¶ 13.
As a result of the assault,
Brems's jaw was broken, and he suffered several minor head injuries. To
treat his broken jaw, doctors surgically wired his jaw shut and removed
a front tooth so he could ingest liquified food through a straw. Recovery
for Brems was difficult. He found it hard to eat through the straw and
was unable to eat solid food. As a result, Brems lost twenty pounds and
was continuing to lose a pound a day when doctors removed the wires. It
was not until two to three weeks later that Brems was able to eat solid
food again.
¶ 14.
Brems's jaw healed in six
weeks, which is the normal healing time for such an injury. One week after
doctors removed the wires from Brems's jaw, they replaced his tooth. At
the time of trial, six months after the incident, Brems had gained back
all but five pounds of the weight he had lost. Although Brems's jaw fully
healed, the pain still makes it difficult for him to hold a small flashlight
between his teeth, as he had done previously for his work as a serviceman.
¶ 15.
Defendant was charged and
tried for attempted criminal homicide, or in the alternative, aggravated
assault. A jury returned a guilty verdict against defendant on the aggravated
assault charge. The trial court found that defendant acted "in concert"
with two others to commit the assault and sentenced defendant to a prison
term of six to fifteen years, pursuant to Utah's gang enhancement statute.
See
Utah Code Ann. § 76-3-203.1 (1995).(2)
Defendant then filed this appeal.
ANALYSIS
I. Sufficiency of the Evidence
¶ 16.
The first issue we address
is whether the evidence was sufficient to support defendant's conviction
for aggravated assault. We conclude it was.
¶17.
"'We review the evidence
and all inferences which may reasonably be drawn from it in the light most
favorable to the verdict of the jury.'" State v. Hawkins, 967 P.2d 966, 971 (Utah Ct. App. 1998) (quoting State v. Hamilton, 827 P.2d 232, 236 (Utah 1992) (additional citation omitted) (alteration in original)).
Reversal of a jury conviction based on insufficient evidence is warranted
"when the evidence, so viewed, is sufficiently inconclusive or inherently
improbable that reasonable minds must have entertained a reasonable doubt
that the defendant committed the crime of which he was convicted."
Id.
¶18.
In Utah, a person commits
aggravated assault by intentionally causing "serious bodily injury." Utah
Code Ann. § 76-5-103(1)(a) (1999). Serious bodily injury, the most
severe type of bodily injury in Utah's three-tiered scheme,(3)
is defined as "bodily injury that creates or causes serious permanent disfigurement,
protracted loss or impairment of the function of any bodily member or organ,
or creates a substantial risk of death." Id. § 76-1-601(10)
(1999). Defendant contends no reasonable person could conclude the victim's
injuries (in this case, a broken jaw that healed normally) constituted
serious bodily injury. At most, defendant argues, the evidence supports
a finding that the victim suffered "substantial bodily injury," the intermediate
level of injury under the three-tiered scheme. Id. § 76-1-601(11).
¶ 19.
Substantial bodily injury
is defined as an "injury, not amounting to serious bodily injury, that
creates or causes protracted physical pain, temporary disfigurement, or
temporary loss or impairment of the function of any bodily member or organ."
Id.
§ 76-1-601(11). Defendant asserts a broken jaw that heals normally
is only a temporary injury and not the type of serious, permanent injury
contemplated by the definition of "serious bodily injury." He thus argues
the trial court erred by submitting the aggravated assault charge to the
jury.
¶ 20.
We conclude, however, the
question was properly submitted to the jury under the facts of this case.
Although the victim's injuries conceivably could have amounted to substantial
bodily injury rather than serious bodily injury, reasonable minds could
conclude a broken jaw that is wired shut for six weeks with resulting eating
difficulties, weight loss, extraction and later replacement of a tooth,
and continuing pain is a "protracted loss or impairment of the function
of [a] bodily member." Id. § 76-1-601(10). That determination
was properly put before the jury to decide. We therefore affirm the trial
court's ruling on this matter.
II. Voir Dire
¶ 21.
Defendant next attacks the
trial court's rulings concerning voir dire. Specifically, he contends the
trial court improperly excluded three of defendant's proposed voir dire
questions and erred by not granting defendant's for-cause challenge of
a jury pool member. We address each of these challenges in turn.
A. Voir dire questions
¶22.
Voir dire serves a dual
purpose: (1) to uncover biases or prejudices of potential jurors to support
a for-cause challenge; and (2) to produce information helpful to counsel
in making intelligent peremptory challenges. See Rasmussen v.
Sharapata, 895 P.2d 391, 394 (Utah Ct. App. 1995) (citing Barrett
v. Peterson, 868 P.2d 96, 98 (Utah Ct. App. 1993)). Although "questions
covering possible bias of jurors must cover the subject involved, the questions
asked of jurors do not need to follow any specific formula to pass constitutional
muster." State v. James, 819 P.2d 781, 797 (Utah 1991) (citations
omitted). Defendant maintains the rejected questions were necessary because
the trial court's management of voir dire did not adequately uncover biases
or provide counsel with useful information upon which to base peremptory
challenges.
¶23.
"We review defendant's challenge
to the trial court's voir dire for an abuse of discretion." State v.
Vigil, 922 P.2d 15, 25 (Utah Ct. App. 1996) (citing Barrett,
868 P.2d at 98). The scope of the trial court's discretion in this matter
is broad; however, the "'discretion must be exercised in favor of allowing
discovery of biases or prejudice in prospective jurors.'" Id. (citation
omitted). If the proposed question "directly relate[s] to bias and prejudice,"
the scope of the trial court's discretion "is strictly limited." State
v. Piansiaksone, 954 P.2d 861, 868 (Utah 1998). That discretion increases,
however, as the direct relationship of the question to bias and prejudice
decreases. See id.
¶24.
In addition, "[w]e will
not disturb 'a trial court's discretionary rejection of voir dire questions'
unless the trial court abused its discretion and the abuse '"rose to the
level of reversible error."'" Vigil, 922 P.2d at 25 (citations omitted).
We may reverse a trial court's ruling concerning voir dire if, "after reviewing
the totality of the questioning, we conclude that trial counsel was not
given 'an adequate opportunity to gain the information necessary to evaluate
jurors.'" Id. (citations and additional quotation marks omitted).
1. Question 26
¶25.
Defendant insists Question
26, which asks, "If Mr. Leleae were to testify, would you give his testimony
the same weight and credit that you would give to any other witness?" was
critical to discovering a potential jury member's bias against defendant.
Defendant was not like other "various witnesses," he argues, because
he alone was charged with the crime the prosecution was trying. Thus, defendant
contends he was entitled to inquire into any bias regarding his status
as a charged criminal.
¶26.
We agree with defendant
that the objective of Question 26 was proper; a judge should allow questions
purporting to discover possible biases against a defendant as a witness.
The form of the question, however, improperly suggests a different basis
for evaluating a defendant's testimony than that of other witnesses. The
trial court thus did not abuse its discretion in excluding the question,
and, instead, properly instructed the jurors that they were "to fairly
and impartially listen to . . . determine the credibility [and] weight"
of each witness's testimony.
2. Question 41
¶27.
We next address whether
the trial court properly excluded Question 41. That question would have
asked potential jurors,
If, after hearing
the evidence, you came to the conclusion that the prosecution had not proven
the guilt of the accused beyond a reasonable doubt, and you found that
a majority of the jurors believed the defendant was guilty, would you change
your verdict only because you were in the minority?
¶28.
The subject of Question
41, however, does not directly inquire about possible prejudice or bias.
Thus, the trial court's discretion in admitting or excluding the question
was quite broad. See Piansiaksone, 954 P.2d at 868. In fact,
the trial court adequately covered the subject of Question 41 when it instructed
potential jurors they must keep an open mind and evaluate the evidence
fairly and impartially. No potential juror indicated he or she could not
follow that admonition. We conclude the trial court did not abuse its discretion
in excluding Question 41 from voir dire.
3. Question 49
¶29.
Last, defendant asserts
Question 49 was necessary to discover if the potential jurors would follow
the court's instructions. Question 49 would have asked the following:
You will later be instructed
by the judge that the identification of a person as the perpetrator of
a crime is an expression of belief or impression by the witness, and that
many factors affect the accuracy of the identification. Do any of you believe
that an eyewitness can never make a mistake? Would any of you be unable
to follow the judge's instruction about looking at various factors which
could affect the accuracy of eyewitness identification?
¶30.
As we see it, Question 49
does not directly address a possible prejudice or bias and was a thinly
veiled attempt to ferret out which jurors were more likely to believe defendant's
theory of the case. Our supreme court has upheld a trial court's refusal
to ask a similar question, even when it was properly within the scope of
voir dire. See id. The trial court in this case, therefore, had
"the greatest degree of freedom to exclude" the question, id., and
properly did so.
B. For-cause Challenge
¶31.
Defendant also argues the
trial court improperly denied defendant's for-cause challenge of jury pool
member Steven Wright. Again, we review the trial court's action for an
abuse of discretion. State v. Cox, 826 P.2d 656, 659 (Utah Ct. App.
1992) ("'A motion to dismiss a prospective juror for cause is within the
sound discretion of the trial court. When reviewing such a ruling, we reverse
only if the trial court has abused its discretion.'" (quoting State
v. Wooley, 810 P.2d 440, 442 (Utah Ct. App. 1991))). We note defendant's
argument that he was compelled to use a peremptory strike because the trial
court refused to excuse a jury panel member for cause is no longer sufficient
to establish reversible error. "To prevail on a claim of error based on
the failure to remove juror for cause, a defendant must demonstrate prejudice,
viz., show that a member of the jury was partial or incompetent." SeeState
v. Menzies, 889 P.2d 393, 398 (Utah 1994) (reversing rule of Crawford
v. Manning, 542 P.2d 1091 (Utah 1975), mandating reversal when a party
is forced to use peremptory challenge for jury panel member who should
have been removed for cause).
¶32.
In this case, Mr. Wright
revealed during voir dire that he had known Detective Nudd fourteen or
fifteen years earlier when Mr. Wright was involved in a law enforcement
training program. Detective Nudd was Mr. Wright's physical education advisor.
When questioned about that experience, Mr. Wright responded that although
Detective Nudd had been hard on him during the training, he considered
the whole experience a positive one. Mr. Wright also stated his acquaintance
with Detective Nudd would not impair his ability to be fair and impartial.
The trial court did not further inquire into Mr. Wright's acquaintance
with Detective Nudd. Defendant moved to dismiss Mr. Wright for cause, but
the trial court denied the motion. Defendant then used one of his peremptory
challenges to remove Mr. Wright from the jury panel.
¶33.
Defendant contends the trial
court's questioning of Mr. Wright was "pro forma" and thus "failed to dispel
the inference of bias raised by the juror[']s opinion" about Detective
Nudd. In addressing this argument, we rely on the Utah Supreme Court's
recent statement regarding voir dire questioning. See State v.
Saunders, 371 Utah Adv. Rep. 6 (1999). Saunders re-emphasized
that "[v]oir dire questioning is essential to choosing an impartial jury,
and an impartial jury is as essential to a fair trial as is an impartial
judge." Id. at 11. Indeed, the supreme court made clear that voir
dire procedures should not "qualify jurors as quickly as possible on the
basis of superficial questions and a declaration by each juror that he
or she can follow the judge's instructions and decide the case fairly."
Id.
Instead, trial courts must "liberally exercise" their discretion in favor
of questions designed to discover bias so that counsel may intelligently
make for-cause and peremptory challenges. Id. (citing State v.
Worthen, 765 P.2d 839, 845 (Utah 1988)).
¶34.
With Saunders's guidance
in mind, we conclude the trial court's examination of Mr. Wright's relationship
with Detective Nudd was not superficial. The trial court not only asked
Mr. Wright about the nature of the training program but also inquired about
Detective Nudd's role in the program, the extent of their relationship,
how Mr. Wright felt about Detective Nudd, and twice asked Mr. Wright whether
his experience with Detective Nudd would affect his duties as a juror.
We believe this gave counsel adequate information to intelligently exercise
a for-cause challenge or a peremptory challenge.
¶35.
Nevertheless, defendant
argues Mr. Wright's answers produced an inference of bias that should have
compelled the trial court to grant defendant's for-cause challenge. Defendant
cites our decision in State v. Cox for support. In Cox, the
jury panel member told the trial judge her brother-in-law was the chief
of police.
See Cox, 826 P.2d at 658. She also informed the
court that the prosecutor trying the case had been her attorney for private
business matters, and had, in fact, done so as recently as a month before.
See id. at 659. Although the trial court asked the juror whether
or not she could decide the case impartially, he did not ask her how long
the prosecutor had been her attorney or her opinion about the prosecutor.
See id. at 660.
¶36.
In concluding that the trial
court abused its discretion, we noted that the jury panel member's responses
indicated a "long term relationship . . . of respect and trust." Id.
Although "[t]he depth of investigation required varies in each situation
and 'is necessarily dependent on the juror's responses to the questions
asked,'" id. (quoting State v. Woolley, 810 P.2d 443, 445
(Utah Ct. App. 1991)), the trial court's exploration in Cox was
only "pro forma," and "did not adequately refute the inference of bias
presented by [her] relationship [with the prosecutor]." Id.
¶37.
The facts in Cox,
however, differ substantially from those in this case. Mr. Wright's relationship
with Detective Nudd did not raise serious concerns of bias or impartiality.
The relationship was not substantial, was very brief, and had ceased fourteen
or fifteen years earlier. In addition, Mr. Wright's responses indicated
a possible bias against Detective Nudd, which would favor defendant.
Consequently, Cox is inapposite to our analysis in this case, and
the trial court did not abuse its discretion by not excusing Mr. Wright
for cause.
III. Defendant's Statement
¶38.
We next address whether
the trial court committed prejudicial error by admitting portions of defendant's
statement made to police but excluding others. The statement was recorded
and subsequently transcribed.
¶39.
On the night of the incident,
Detective Nudd conducted an interview with defendant at the police station,
during which defendant made the following statement:
You know what, you tell
the truth, you doin something you don't feel like doing, like this situation
when I was driving and you know something is wrong but you can't do nothing
about it because you in it already, you know. That's the only feeling that
was hitting me when they were beating up the man, you know, when I see
the two of them going at it beating up a man not even a man just another
person too, another white man[] with long hair, it wasn't really hard for
me to try to hold them back because they are my friends and when they beat
the man down, you know, what my feelings was, you know, should I help them
beat up the man or should I just stand here, I didn't want to be a punk
and just stand there and not doing nothing and that was the only thing
on my mind. If I wasn't the one that was shooting, I wasn't the one driving,
I would probably of beat the man. I know since I tell the truth, that everybody
over there that seeing the thing, the witnesses that were over there that
would recognize me from they were beating up the man, they know that I
wasn't laying a hand on nobody that I was trying to hold my boy back, the
big one, the one owned the car. This was enough you know other people around.
I know that I was drunk you know. But then again I know what I was doing.
¶40.
During defendant's trial,
the trial court granted the prosecution's motion to introduce a portion
of defendant's statement. The trial court simultaneously denied defendant's
request to admit the entire statement to put the prosecution's requested
portions in context.(4)
¶41.
In accordance with the trial
court's ruling, Detective Nudd gave the following testimony at trial:
Q: Toward the end of the
interview, Detective Nudd, what did [defendant] say his feelings were about
what was going on?
A: He told me that after the shooting started, [he] felt there just wasn't anything he could do, so he continued in the car with them and then once the accident happened, he said that he was with them, and once they started assaulting [the victim], he said he felt like he didn't want to be a punk and support his friends, but didn't know whether or not to do anything to the guy.
Q: Did he say he didn't want to be a punk and just stand there and not do anything?
A: Yes.
¶42.
Defendant argues this testimony
invited the jury to draw an inference that, because defendant did not want
to "be a punk and just stand there," he must have participated in the assault.
He therefore contends that fairness mandated the introduction of his entire
statement to put Detective Nudd's testimony in context. Specifically, defendant
invokes the common law "rule of completeness" to support his argument.
¶43.
The common law rule of completeness
entitles a defendant, once portions of a document or recorded statement
are introduced, to request the remaining portions of that statement be
admitted to put the prior selections in context. This rule is now partially
found in Utah Rule of Evidence 106, which states that "[w]hen a writing
or recorded statement or part thereof is introduced by a party, an adverse
party may require the introduction at that time of any other part or any
other writing or recorded statement which ought in fairness to be considered
contemporaneously with it." Utah R. Evid. 106; see also Beech
Aircraft Corp. v. Rainey, 488 U.S. 153, 171-72, 109 S. Ct. 439, 451
(1988) (examining history and rationale for Federal Rule 106).(5)
A trial court need admit only those portions of a statement "'relevant
and "necessary to qualify, explain, or place into context the portion already
introduced."'" United States v. Branch, 91 F.3d 699, 728 (5th Cir.
1996) (citations omitted); see also United States v. Li,
55 F.3d 325, 329-30 (7th Cir. 1995) ("A trial judge need not admit every
portion of a statement but only those needed to explain portions previously
received." (citing United States v. Haddad, 10 F.3d 1252, 1258 (7th
Cir. 1993)).
¶44.
Generally, "Rule 106 is
limited to writings or recorded documents and does not cover out-of-court
oral statements." Edward L. Kimball & Ronald N. Boyce, Utah Evidence
Law 1-32 (1996) (footnote omitted).(6)
Thus, the State argues the statement was not admissible under Rule 106
because it was an oral statement. This argument overlooks the fact that
the oral statement in this case was tape recorded and then transcribed
from that recording. Both the tape recording and the transcript were "writing[s]
or recorded statement[s]" within the purview of Rule 106. SeeHenderson
v. United States, 632 A.2d 419, 429-31 (D.C. 1993) (holding exclusion
of defendant's entire audiotaped post-arrest statement is error under Rule
106).(7) Consequently, the trial court erred
in denying defendant's motion to admit the entire statement on the basis
that Rule 106 was inapplicable.
¶45.
We must further consider
whether the trial court abused its discretion in excluding the statement
on the basis of fairness, stating that the statement was merely self-serving.
The trial court has considerable discretion in determining issues of fairness,
and we find no abuse of that discretion in this case. Furthermore, at trial,
the jury heard testimony that supported defendant's version of the incident
and put the admitted portion of defendant's statement in context. For instance,
before the prosecutor asked Detective Nudd to clarify defendant's statement,
Detective Nudd testified that defendant repeatedly asserted that he had
attempted to break up the fight. Detective Nudd also testified that defendant
told him he "didn't want to be a punk and support his friends." During
cross-examination, Detective Nudd read from other portions of defendant's
statement, in which defendant asserted: "[E]verybody over there that seen
the [incident], . . . [t]hey know that I wasn't laying a hand on nobody.
That I was trying to hold my boy back, the big one. The one [that] owned
the car." The jury thus had an adequate opportunity to hear evidence supporting
defendant's version of the events and was free to make a finding based
on that evidence. See State v. Vigil, 840 P.2d 788, 793-94
(Utah Ct. App. 1992). The trial court's decision to exclude defendant's
statement was not an abuse of discretion simply because the jury chose
to disbelieve defendant.
¶46.
In sum, Rule 106 applied
to allow introduction of defendant's entire statement, which was embodied
in a written transcript, to put the prosecution's selected portions in
context. The trial court, however, did not abuse its discretion in deciding
the statement should be excluded on the basis of fairness. We recognize
"the danger inherent in the selective admission of post-arrest statements,"
Branch,
91 F.3d at 728 (citation omitted), but defendant had an adequate opportunity
during cross-examination to put the selected portions of his statement
in context, and other testimony supported his version of the events.
IV. Sentencing
¶47.
Finally, we consider defendant's
challenge to his enhanced sentence imposed under Utah's gang enhancement
statute. See Utah Code Ann. § 76-3-203.1 (1999).(8)
This statute provides an enhanced sentence for a defendant who committed
an underlying offense "in concert with two or more other persons" who would
be criminally liable for the offense as accomplices under section 76-2-202.
Id.
§ 76-3-203.1(1)(a) & (b). The trial court imposed the enhanced
sentence after finding that defendant acted "in concert" with the two Seumanu
brothers in committing the assault.
¶48.
Nevertheless, a successful
challenge to the gang enhancement statute earlier this year in the Utah
Supreme Court has rendered it, in part, unconstitutional. See State
v. Lopes, 980 P.2d 191 (Utah 1999), reh'g denied, June 23, 1999.
In Lopes, the supreme court declared that, for a crime to be committed
"in concert," as the statute requires, "all three actors must (i) have
possessed a mental state sufficient to commit the same underlying offense
and (ii) have directly committed the underlying offense or solicited, requested,
commanded, encouraged, or intentionally aided one of the other two actors
to engage in conduct constituting the underlying offense." Id. at
194; see alsoState v. Labrum, 925 P.2d 937 (Utah 1996) (explaining
statute's "in concert" language). Consequently, the Lopes court
concluded that section 76-3-203.1(1) embodies a new crime requiring proof
to a jury beyond a reasonable doubt. See id. at 194-95 (citing Utah
Const. art. I, § 7; U.S. Const. amends. V, XIV). Furthermore, the
court stated that the statute's mandate under subsection (5)(c) that "[t]he
sentencing judge rather than the jury shall decide whether to impose the
enhanced penalty under this section" was an improper delegation to the
judge and, therefore, was unconstitutional. Id. at 195 (quoting
Utah Code Ann. § 76-3-203.1(5)(c)) (citing Utah Code Ann. § 77-17-10
(1995));
State v. Green, 78 Utah 580, 589-90, 6 P.2d 177, 181 (1931)
("It is the sole and exclusive province of the jury to determine the facts
in all criminal cases, whether the evidence offered by the state is weak
or strong, is in conflict or is not controverted.")).
¶49.
The ruling in Lopes
now compels us to vacate defendant's sentence.(9)
The State did not prove beyond a reasonable doubt the criminal intent of
the Seumanu brothers and the extent of their involvement in the assault.
Defendant's due process rights were therefore violated. See id.
at 195. Moreover, the trial court, not the jury, determined that defendant
acted in concert with two others in assaulting the victim. That was an
impermissible reversal of roles that violated defendant's right to a jury
trial.(10) See id. at 195-96. Should
the State choose to charge defendant with the new crime under section 76-3-203.1,
it may do so, but it must prove each element of that crime beyond a reasonable
doubt, allowing the factfinder to determine guilt.
CONCLUSION
¶50.
Sufficient evidence supported
defendant's conviction for aggravated assault. Reasonable minds could conclude,
under the facts of this case, that a broken jaw which healed normally constitutes
serious bodily injury, as defined in Utah's criminal code. The trial court,
therefore, did not abuse its discretion in submitting the charge to the
jury.
¶51.
The trial court also adequately
investigated any potential biases during voir dire and did not abuse its
discretion in denying defendant's for-cause challenge to a potential juror.
Likewise, the trial court did not abuse its discretion in excluding voir
dire Questions 26, 41, and 49, which were improperly phrased and did not
directly address possible bias or prejudice.
¶52.
Defendant's entire transcribed
statement made to police could have been admitted under Utah Rule of Evidence
106 to put in context portions introduced by the prosecution. Nevertheless,
the trial court did not abuse its discretion in excluding certain portions
of defendant's statement on the basis of fairness.
¶53.
Based on these conclusions,
we affirm defendant's aggravated assault conviction. We vacate his sentence,
however, because the trial court improperly imposed an enhanced sentence
under an unconstitutional statutory provision. We therefore vacate defendant's
enhanced sentence and remand for resentencing on the aggravated assault
conviction.
______________________________
Pamela T. Greenwood,
Associate Presiding Judge
-----
¶54.
WE CONCUR:
______________________________
Michael J. Wilkins,
Presiding Judge
______________________________
James Z. Davis, Judge
1. In State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 147-48 (Utah 1969), the Utah Supreme Court held that when two statutes proscribe the same criminal conduct, the lesser of the two punishments should be imposed. The inquiry under Shondel focuses on "'whether the . . . statutes at issue proscribe exactly the same conduct, i.e., do they contain the same elements?'" State v. Kent, 945 P.2d 145, 147 (Utah Ct. App. 1997) (alteration in original) (citation omitted). "'[W]hen two statutes under consideration do not proscribe the same conduct, . . . [the] defendant may be charged with the crime carrying the more severe sentence,' even if the defendant could have been charged with the crime carrying the less severe sentence, so long as there is a rational basis for the legislative classification." Id. (quoting State v. Clark, 632 P.2d 841, 844 (Utah 1981)).
2. We refer to section 76-3-203.1 as the "gang" enhancement statute, although the Legislature did not create a "gang" enhancement. See State v. Lopes, 980 P.2d 191, 192 n.1 (Utah 1999). A more accurate description of the statute would be a "group criminal activity" enhancement. See id. As the Lopes court noted, however, the statute is popularly known as the gang enhancement statute, and we will refer to it by that name. See id.
3. Utah's criminal code defines bodily injury in three ways. "Bodily injury," the least severe of the three, "means physical pain, illness, or any impairment of physical condition." Utah Code Ann. § 76-1-601(3) (1999). An intermediate level, added in 1995, and discussed in the text above, is "substantial bodily injury." Id. § 76-1-601(11). "Serious bodily injury," the most severe type of bodily injury, is the basis for an aggravated assault charge. Id. §§ 76-1-601(10); 76-5-103.
4. The trial court made the following ruling: I am going to deny the request for admission under [Rule] 106. First of all, based upon its express language I am not satisfied that it applies. Even if it were to apply, I am of the opinion that the competing interest of--well, let me restate that. That the nature of self-serving statements do not persuade this court that I ought to exercise discretion under Rule 106 and allow any remaining portions of the statement to come in because of fairness. In this court's view at this point, the fairness argues in favor of keeping out the self-serving statements. 5. Because no Utah cases address the present issue under Rule 106, we look to federal cases interpreting Rule 106 as persuasive but not necessarily binding authority. See Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1062 n.4 (Utah 1998) ("[F]ederal cases interpreting analogous Federal Rules are compelling to our interpretation of the Utah Rules only insofar as their reasoning is logical and persuasive.").
6. The Advisory Committee Note to Federal Rule 106 explains that The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. . . . For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations. 7. We reject the State's argument that Rule 106 should not apply because the statement was not "introduced by a party," as Rule 106 specifies. Whether the statement was officially introduced as evidence or read from a transcript, as was done in this case, is irrelevant. The effect on the jury was the same.
8. Section 76-3-203.1 was amended in 1999, effective May 3; however, the Legislature made no substantive changes in that amendment. We thus cite to the most recent version of this statute, even though defendant was initially charged with the offense on May 10, 1997.
9. Our decision to vacate defendant's sentence renders any analysis under the Shondel rule unnecessary. See State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (Utah 1969) (holding when two statutes proscribe same criminal conduct, lesser of two punishments should be imposed). We therefore do not address defendant's final argument.
10. The State contends any error in sentencing defendant under the gang enhancement statute was harmless. We disagree. The trial court did not instruct the jury that it must first find criminal culpability for the three actors before defendant could receive an enhanced penalty. "'Failure to give an elements instruction for a crime satisfies the manifest injustice standard under [Utah Rule of Criminal Procedure] 19(c) and constitutes reversible error as a matter of law.'" State v. Stringham, 957 P.2d 602, 608 (Utah Ct. App. 1998) (quoting State v. Gibson, 908 P.2d 352, 354 (Utah Ct. App. 1995)) (alteration in original).
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