State of Utah v. Mecham

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jeffrey Devon Mecham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981165-CA

F I L E D
April 22, 1999
  1999 UT App 124 -----

Third District, Salt Lake Department
The Honorable Sandra N. Peuler

Attorneys:
Edwin S. Wall and Gregory M. Constantino, Salt Lake City, for Appellant
Jan Graham and Catherine M. Johnson, Salt Lake City, for Appellee

-----

Before Judges Bench, Jackson, and Orme.

ORME, Judge:

Regarding defendant's sufficiency of the evidence challenge, the issues raised are in common with, and governed by, our opinion issued today in State v. Hollen, Case No. 981128-CA, 1999 UT App. 123. See State v. Ellis, 969 P.2d 1053, 1054 (Utah Ct. App. 1998).

We reject defendant's search warrant challenge because we conclude any error was harmless beyond a reasonable doubt. See State v. Genovesi, 909 P.2d 916, 923-24 (Utah Ct. App. 1995). Although the evidence obtained from the search of the vehicle was admitted at trial, there was little testimony or argument suggesting such evidence was important to the State's case against defendant. For example, although the State briefly mentioned the evidence during its closing argument, it focused on the trail of evidence leading from the Million Dollar Saloon to the dumpster in which defendant was found. The following evidence, none of which came from the vehicle, sealed defendant's fate: the gunclip and bag filled with zip ties located between the dumpster and saloon; the clown mask found within throwing distance of the dumpster; that defendant was in the dumpster; that a gun which was tied to shell cases found at the Million Dollar Saloon was recovered from the dumpster where defendant hid; and that when he first emerged from the dumpster, defendant asked if he had shot somebody and, at the hospital, stated, "Tell the cop I'm sorry if I'm the one that shot him." After comparing the mass of evidence pointing to defendant's guilt, we conclude the evidence from the vehicle "was not a significant factor in defendant's conviction" and thus its admission was harmless beyond a reasonable doubt. Genovesi, 909 P.2d at 924.

Finally, we reject defendant's contention that the two brief identifying statements of Sergeant Julian deprived him of a fair trial, notwithstanding the trial court's curative instructions during Julian's testimony and in its final charge to the jury. "[C]urative instructions are a settled and necessary feature of our judicial process and one of the most important tools by which a court may remedy errors at trial." State v. Harmon, 956 P.2d 262, 271 (Utah 1998). It was apparent that Sergeant Julian's identification was ancillary to the substance of his testimony, which merely described the events, facilitated a distinction between each suspect's conduct, and did little to prove that defendant was the second suspect. Further, because there was ample other evidence on which the jury could conclude defendant was the second suspect, "we cannot conclude that the comment[s] w[ere] so prejudicial and devastating to [defendant] as to vitiate the mitigating effect of the court's curative instruction[s]" and thus, the trial court did not abuse its discretion in denying defendant's motion for a mistrial. Id. at 273.

Affirmed.
 
 
 

______________________________
Gregory K. Orme, Judge

-----

WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
Norman H. Jackson, Judge