State of Utah v. Lavadour

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jerome M. Lavadour,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000989-CA

F I L E D
November 8, 2001 2001 UT App 328 -----

Third District, Salt Lake Department
The Honorable Judith S. Atherton

Attorneys:
Kent R. Hart, Salt Lake City, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee -----

Before Judges Billings, Orme, and Thorne.

ORME, Judge:

Even if we were to hold that appellant's confession was the product of police coercion, we would be unable to escape the conclusion that, due to the strength of other evidence identifying appellant as the robber, the trial court's admission of the confession into evidence was harmless beyond a reasonable doubt. See Arizona v. Fulminante, 499 U.S. 279, 306-312, 111 S. Ct. 1246, 1263-66 (1991).

It was particularly damaging that appellant's two accomplices identified him as one of the two individuals who entered the store and as the one who played the lead role in committing the robbery. Benally's trial testimony was cogent and credible. The fact that Benally and appellant are first cousins dispels any possibility that Benally did not really know appellant and, in the absence of any indication the relationship between the two was strained, substantially undercuts any suggestion that Benally framed an innocent third-party.

In addition, appellant's trial counsel conceded that appellant was in the store attempting to steal beer on the evening in question. In presenting his client's version of the events at trial, defense counsel explained: "All Mr. Lavadour wanted was beer. He grabbed it. They ran out. Some clerk stepped in the way. He pulled out a cigarette lighter." When these comments are viewed in combination with the testimony of the two store clerks and the testimony of Benally, it becomes clear there was ample evidence to sustain appellant's conviction, completely independent of his confession.(1)

Affirmed.
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 

______________________________
Judith M. Billings, Judge
 
 

______________________________
William A. Thorne, Jr., Judge

1. Insofar as appellant suggests that but for his confession, events would have taken a completely different course, we note that Benally's and Gonzales's identification of him predated the confession and thus were not in any way tainted by it. If appellant is suggesting that had the confession been suppressed, he would have taken a different tack at trial rather than admit he was at the store trying to steal beer, his argument is highly speculative, especially given Benally's testimony. Moreover, we are unwilling to countenance an argument that turns on a defendant having lost the opportunity to take a position at trial not consistent with the truth.