State of Utah v. Squires

State of Utah,
Plaintiff and Appellee,

v.

Shawn P. Squires,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981131-CA

F I L E D
May 27, 1999
  1999 UT App 174 -----

Fifth District, Cedar City Department
The Honorable Robert T. Braithwaite

Attorneys:
Floyd W. Holm, Cedar City, for Appellant
Jan Graham and Brent A. Burnett, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Billings, and Orme.

GREENWOOD, Associate Presiding Judge:

Defendant Shawn Squires appeals his conviction for Assault by a Prisoner, a third degree felony. We affirm.

Defendant contends the State had an obligation to provide him with notice that Ayalla would be deported. Cf. United States v. Eufracio-Torres, 890 F.2d 266, 270 (10th Cir. 1989) (holding use of deposition testimony proper when defendant knew witness would be deported and had opportunity to cross-examine witness); see also State v. Menzies, 889 P.2d 393, 403 (Utah 1994) (concluding in order for prior testimony to bear a "sufficient indicia of reliability," defendant must have opportunity for effective cross-examination, but that cross-examination need not be "'effective in whatever way, and to whatever extent, the defense might wish.'" (citations omitted)). Defendant, however, failed to provide this court with a transcript of the hearing at which the trial court ruled Ayalla was an unavailable witness. Consequently, we cannot determine if the State provided notice to defendant or on what evidence the trial court based its decision. See Esquivel v. Labor Comm'n, 973 P.2d 440, 445 (Utah Ct. App. 1999). "In the absence of an adequate record on appeal, [we] can only assume the regularity of the proceedings below." State v. Wetzel, 868 P.2d 64, 67 (Utah 1993).

We next address defendant's claim that the trial court should have excluded Ron Lockwood as a witness for the State under Rule 16 of the Utah Rules of Criminal Procedure. Although defendant objected to the State's witness, he did not ask for a continuance at trial. "[B]y not requesting a continuance at that point, [defendant] essentially waived his right to later claim error." State v. Larson, 775 P.2d 415, 418 (Utah 1989) (citing Utah R. Evid. 103(a); State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986)).

In any event, we agree with the State that no discovery violation occurred. Lockwood was unknown to the prosecution when it made its initial disclosure of potential witnesses. Further, when the prosecution discovered the relevance of Lockwood's testimony, it immediately disclosed to defendant that it would call Lockwood as a witness. Defendant has not demonstrated the prosecution withheld any information from his discovery request, see Utah R. Crim. P. 16(a) (prosecutor must disclose to defendant upon request "information of which he has knowledge" (emphasis added)), or violated its ongoing duty to disclose information. See State v. Knight, 734 P.2d 913, 917 (Utah 1987); Utah R. Crim. P. 16(b) (1998). Thus, the trial court did not abuse its discretion in refusing to impose Rule 16 sanctions.

Finally, defendant claims the trial court erred by excluding the Inmate Request Form defendant completed the day after the assault. We need not reach the question of whether this exhibit was improperly excluded because "[a]n erroneous decision to exclude or admit evidence does not constitute reversible error unless the error is harmful." State v. Alonzo, 932 P.2d 606, 613 (Utah Ct. App. 1997). Defendant has not demonstrated the excluded evidence, if admitted, would have likely resulted in a different verdict. Even if defendant had been allowed to introduce the exhibit, this alone would not have necessarily established he acted in self-defense, but would only establish that he was, in fact, injured during the altercation. Indeed, the medical form was not really necessary because other evidence indicated defendant was injured in the fracas. Accordingly, we conclude the exclusion, if error, was harmless and affirm the trial court's ruling excluding the Inmate Request Form. See id.

Based on the foregoing, we affirm defendant's conviction.
 
 

______________________________
Pamela T. Greenwood,
Associate Presiding Judge

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WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
Gregory K. Orme, Judge