State of Utah v. Bryan

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Danny David Bryan,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990903-CA

F I L E D
November 16, 2000 2000 UT App 324 -----

Fourth District, Provo Department
The Honorable Ray M. Harding, Sr.

Attorneys:
Randall T. Gaither, Salt Lake City, for Appellant
Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

-----

Before Judges Greenwood, Davis, and Orme.

DAVIS, Judge:

Defendant alleges two prosecutorial errors, one during direct examination and one during closing remarks. As for the alleged error made during direct examination, [a]n appellate court will reverse if 'the actions or remarks of counsel call to the attention of the jury a matter it would not be justified in considering in determining its verdict and, if so, under the circumstances of the particular case, whether the error is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result absent the misconduct.' State v. Peters, 796 P.2d 708, 712 (Utah Ct. App. 1990) (citation omitted). The standard for determining whether an improper statement in closing remarks constitutes reversible error is similar; it "depends on (1) whether the remarks call to the attention of jurors matters which they could not properly consider in determining their verdict; and (2) the prejudicial effect of the statement on the defendant's case." State v. Colwell, 2000 UT 8,¶39, 994 P.2d 177. Thus, in both situations, "[t]o obtain a reversal, the defendant must show that the prosecutor's remarks were obviously improper and harmful." Id.

"[T]he statement must be viewed in light of the totality of the evidence presented at trial." State v. Cummins, 839 P.2d 848, 852 (Utah Ct. App. 1992). "'Further, because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings . . . will not be overturned absent an abuse of discretion.'" State v. Longshaw, 961 P.2d 925, 927 (Utah Ct. App. 1998) (citation omitted).

During direct examination of police officer Adams, the prosecutor asked what information provided probable cause to obtain the search warrant,(1) and the officer responded, "Drug activity in the home, a previous sale."(2) This testimony was immediately stricken, a curative instruction was given, no further reference was made to the evidence, and an additional general instruction on what constitutes evidence was included in the final written instructions given to the jury. Although, this testimony "call[s] to the attention of jurors matters which they could not properly consider in determining their verdict[,] . . . the prejudicial effect of the statement on the defendant's case" is minimal. Colwell, 2000 UT 8 at ¶39; see also id. at ¶37 ("the error was harmless because the questioning was suspended before the [witness] could provide details to prejudice the jury, and the jury was given adequate instruction on two separate occasions to disregard the evidence"); Peters, 796 P.2d at 712 ("the court's limiting instruction minimized the danger of speculation [that defendant committed the other crime] to the point of being harmless."). In addition, the statement was isolated. See Colwell, 2000 UT 8 at ¶37. Finally, if the evidence of the defendant's guilt is strong, as it is in this case, the comment will not be presumed prejudicial, whereas, in a case where the evidence is less compelling, the appellate court will scrutinize the comment more closely. See Longshaw, 961 P.2d at 931.

During the rebuttal portion of the prosecutor's closing remarks, he stated that the defendant lived in a "drug house," and that the jury should convict defendant of "possession of a drug with intent to distribute because [defendant is] a drug dealer, and this case will prove it." While the prosecutor probably should have refrained from calling the defendant a drug dealer because it suggests a course of prior unlawful conduct, there was evidence before the jury that defendant lived in a house where drugs were possessed and used, and there was evidence that defendant had constructive possession of significant amounts of methamphetamine and drug paraphernalia which were found in defendant's locked bedroom in an opening in the ceiling which was within arm's reach. Therefore, reviewing the circumstances of the case as a whole and the strong evidence of defendant's guilt, the statement did not have prejudicial effect. See Longshaw, 961 P.2d at 931.

In light of this ruling, we need not address defendant's double jeopardy argument. Judgment affirmed.
 
 
 
 

______________________________
James Z. Davis, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Gregory K. Orme, Judge

1. This question immediately followed a sustained objection to the prosecutor's question, "This information it provided, you indicated, probable cause. Could you explain what that is just briefly?"

2. It should also be noted that this statement does not explicitly implicate defendant as being involved in the earlier sale, especially since there was also uncontroverted evidence presented that other people were residing in the same house as defendant.