State of Utah v. Meinhard

State of Utah v. Meinhard, Case No. 20000783-CA, Filed October 18, 2001, 2001 UT App 304 IN THE UTAH COURT OF APPEALS

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Jimmy Dean Meinhard,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000783-CA

F I L E D
October 18, 2001 2001 UT App 304 -----

Third District, Tooele Department
The Honorable Leon A. Dever

Attorneys:
David J. Angerhofer and Wayne A. Freestone, Sandy, for Appellant
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee -----

Before Judges Jackson, Bench, and Orme.

BENCH, Judge:

Defendant challenges the trial court's denial of his motion for a new trial based on newly discovered evidence of Steven Valencia's perjury at trial. Even if Valencia did commit perjury, the trial court did not abuse its discretion in denying the motion because three other witnesses, including a prison security guard with no established motive to lie, also testified that Defendant admitted to murdering the victim. In light of these admissions, the new evidence would not make a different outcome probable at a new trial. See State v. James, 819 P.2d 781, 793 (Utah 1991).

Defendant also asserts that he was denied a fair trial because the State lost potentially exculpatory hairs collected from the victim's hands. The trial court found that no evidence was lost. We will overturn this finding only if it is clearly erroneous. See State v. Pena, 869 P.2d 932, 935-36 (Utah 1994). Clear error requires a conclusion that the finding is "not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court's determination." Id. at 936.

Here, the evidence supports the trial court's finding when viewed in a light most favorable to that determination. First, Dr. Grey testified that while he thought the collected linear structures were hairs and fibers, he would not be surprised if the crime lab determined that they were actually vegetation. Indeed, the crime lab did determine that the linear structures it received included one fiber and some vegetation. Defendant points to a discrepancy in the number of hairs and fibers allegedly collected by Dr. Grey and the sole fiber received by the crime lab. Defendant fails, however, to consider the probability that the linear structures collected were neither hairs nor fibers but vegetation, which would account for the discrepancy. Second, Dr. Grey mentioned at least twice during his cross examination that he would have collected the linear structures identified in the defense autopsy photographs only if he had seen them during the autopsy. Thus, the total number of linear structures actually collected could have differed from the number of linear structures identified in the defense autopsy photographs, which could also account for the discrepancy. Because the evidence supports the trial court's finding that no evidence was lost, we conclude that the finding was not clearly erroneous.

Even if there were a factual basis supporting Defendant's assertion, lost or destroyed evidence must be constitutionally material to warrant a reversal of Defendant's conviction. See State v. Basta, 966 P.2d 260, 269 (Utah Ct. App. 1998). The test for constitutional materiality is whether suppression of the lost or destroyed evidence "undermines confidence in the outcome of the trial." State v. Bakalov, 1999 UT 45,¶31, 979 P.2d 799 (citations and internal quotations omitted). Given Defendant's multiple admissions that he committed the murder and other evidence linking him to the crime, confidence in the outcome of the trial would not be undermined by lost circumstantial hair evidence.

We next consider the trial court's decision to exclude evidence of the prior criminal convictions of two State witnesses. Citing to Terry Meinhard's deposition, Defendant asserts that she admitted to a prior mail fraud conviction. SeeState v. Diaz, 859 P.2d 19, 24 (Utah Ct. App. 1993) (allowing evidence of prior convictions that have been shown by the oral testimony of the witness). However, our review of the deposition reveals no admission of any prior conviction. Having no proof of the alleged conviction before it, the trial court did not abuse its discretion in excluding the evidence.

Larry Taylor did admit to his 1990 conviction for drug possession while testifying under oath at Defendant's preliminary hearing. Assuming that Defendant properly preserved and briefed the issue, and that Rules 609 and 403 of the Utah Rules of Evidence permit admission of Taylor's prior conviction, any error in failing to admit the conviction was not prejudicial. SeeState v. Burns, 2000 UT 56,¶35, 4 P.3d 795 (requiring reversal only if reasonable likelihood of a different result for defendant). The jury was well aware that Taylor was not an innocent party in this matter. At trial, Taylor admitted to his participation in the crimes, his being charged with murder and evidence tampering, and his agreement to cooperate with the State in exchange for the murder charge against him being dismissed. Placed in context of these damaging admissions, evidence of Taylor's ten-year-old conviction for drug possession would not have created a reasonable likelihood of a more favorable outcome for Defendant.

We next turn to Defendant's challenge to Angelina Birch's testimony. As an undisclosed State witness, she could only rebut evidence that the State could not have reasonably anticipated prior to trial. See Turner v. Nelson, 872 P.2d 1021, 1024 (Utah 1994). Although the State may have reasonably anticipated an attack on its time-line evidence in general, it could not have reasonably anticipated defense witness Jeffrey Nelson's attempt to recreate the time line under arguably different conditions. Thus, Birch was properly allowed to rebut Nelson's unanticipated time-line testimony. Birch rebutted Nelson's testimony by placing Defendant with the victim early enough for Defendant to both be gone as long as Nelson said he must have been and to have returned home at the time testified to by Taylor and Terry Meinhard. This testimony was within the limits of proper rebuttal testimony. See Astill v. Clark, 956 P.2d 1081, 1086 (Utah Ct. App. 1998).

We have considered Defendant's other arguments on appeal and conclude that they are without merit. See State v. Allen, 839 P.2d 291, 303 (Utah 1992). Accordingly, we affirm Defendant's conviction and the trial court's denial of his motion for a new trial.
 
 

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Russell W. Bench, Judge -----

WE CONCUR:
 
 

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Norman H. Jackson,
Associate Presiding Judge
 
 

______________________________
Gregory K. Orme, Judge