State of Utah v. Peguese

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Sean Perry Peguese,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000290-CA

F I L E D
April 5, 2001 2001 UT App 108 -----

Third District, Salt Lake Department
The Honorable J. Dennis Frederick

Attorneys:
Karen Stam, Catherine E. Lilly, and Heather Johnson, Salt Lake City, for Appellant
Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Thorne.

DAVIS, Judge:

Peguese first argues that the trial court abused its discretion when it denied his motion for a mistrial.(1) See State v. Decorso, 1999 UT 57,¶38, 993 P.2d 837 ("We review a trial court's denial of a motion for a mistrial for abuse of discretion."), cert. denied, 528 U.S. 1164, 120 S. Ct. 1181 (2000). "'Unless a review of the record shows that the court's decision is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial, we will not find that the court's decision was an abuse of discretion.'" Id. (citation omitted).

Here, the trial court stated, "the reference to parole status . . . of the defendant[,] in my estimation[,] was not a harmful response given the fact that some of us, including myself, did not hear it the first time around." The court further declared that its ruling on Peguese's motion in limine "did not necessarily cover and include references to their having reconciled."(2) The court then denied Peguese's motion for a mistrial concluding that "there has been no serious harm done, if any."

After reviewing the record, we are not persuaded that "the court's decision [was] plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial." Id. First, the trial court was not plainly wrong because the witness merely made a brief reference to Peguese's prior parole status in the context of a two day trial. The reference was made near the end of cross-examination, and the trial court did not hear the comment. Furthermore, the trial court allowed defense counsel to continue cross-examination, which "allowed the proceedings to move along without undue interruption and directed the jury's attention to other matters." Id. at ¶39.

Second, the trial court was not plainly wrong because the brief reference to Peguese's prior parole status was made by the witness as an explanation of why the defendant returned to live with her.(3) It was not offered to show the defendant's propensity to commit crime. Therefore, the trial court was not plainly wrong because the comment was "offered for a proper, noncharacter purpose." Id. at ¶24 (stating Utah R. Evid. 404(b) "is an inclusionary rule with regard to other crimes evidence which is offered for a proper noncharacter purpose").

Peguese relies on State v. Saunders, 1999 UT 59, 992 P.2d 951, for the proposition that the trial court should have granted his motion for a mistrial. Peguese's reliance on Saunders is misplaced. Like the present case, Saunders involved a case of sexual abuse of a child in which the jury "had to decide the issue of guilt or innocence solely on the basis of the demeanor and testimony of the [defendant] and the [victim]." Id. at ¶14. However, unlike the present case, the trial court in Saunders erroneously denied defendant's motion in limine and allowed the State to introduce evidence of the defendant's prior misconduct. See id. at ¶¶18-20. Furthermore, unlike the present case, the State repeatedly relied on that evidence to show the defendant's criminal propensity. See id. at ¶¶21-24. Accordingly, the Utah Supreme Court reversed Saunders's conviction. See id. at ¶66. Here, the trial court granted Peguese's motion in limine prohibiting mention of Peguese's prior bad acts. The State did not introduce or elicit testimony regarding Peguese's prior parole status.(4) Moreover, the witness made only one brief statement regarding Peguese's prior parole status, and the statement was made for a proper, noncharacter purpose. Therefore, the analyses in Saunders are not applicable to the present case, and we conclude the trial court did not abuse its discretion when it denied Peguese's motion for a mistrial.

Peguese next argues that the trial court abused its discretion when it excluded testimony by Peguese's wife regarding a statement made by Peguese. Peguese asserts that his wife's testimony should have been admitted as an excited utterance. See Utah R. Evid. 803 (2).

Utah courts utilize a three-prong test to determine whether a statement qualifies as an excited utterance. "Hearsay statements fall within the excited utterance exception when '"(1) a startling event or condition occurred, (2) the statement was made while the declarant was under the stress of excitement caused by the event or condition, and (3) the statement relates to the startling event or condition."'" West Valley City v. Hutto, 2000 UT App 188,¶15, 5 P.3d 1 (citations omitted). Here, the trial court found that Peguese failed to establish foundation for the excited utterance exception.(5) The record supports the ruling of the trial court in that Peguese did not address the three factors required for a hearsay statement to be admitted as an excited utterance.

Peguese argues that the trial court did not allow him to proffer a foundation for the excited utterance exception; however, the record does not support this assertion. Specifically, Peguese offered to proffer foundation, and, once the jury had been excused, the court expressly invited Peguese to make his proffer. However, while making his proffer, Peguese failed to address the requisite foundational requirements for the statement to be admitted under the excited utterance exception.(6) Therefore, the trial court was never presented with the foundational evidence necessary to allow the testimony under the excited utterance exception. Thus, we conclude the trial court did not abuse its discretion when it excluded the hearsay testimony of Peguese's wife.

Accordingly, we affirm Peguese's convictions.
 
 
 

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

I CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge -----

THORNE, Judge (concurring in the result, dissenting in part):

I concur with the majority's conclusion, but am troubled by the majority's determination that the reference to defendant's parole status during trial was not potentially prejudicial. In the absence of any physical evidence, the State relied heavily on the victim's testimony, and therefore, the jury was presented with a credibility choice: believe either the victim or the defendant. Under these circumstances, knowledge of defendant's parole status should be regarded as possibly coloring the jury's view of his credibility. Accordingly, I believe that such a comment must, at a minimum, carry with it the suggestion of harm. Nevertheless, I also believe that subsequent actions by both the trial court and defendant resolved the problem.

After the reference was placed before the jury, defendant objected, and then, with the jury absent from the courtroom, moved for a mistrial based on the comment's potentially harmful effect. The trial court denied defendant's motion, offering instead to issue a curative instruction. For strategic reasons, however, defendant rejected this offer because he did not want to further draw the jury's attention to the comment. "We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 767 n.8, 107 S. Ct. 3102, 3109 n.8 (1987). Had defendant accepted the trial court's offer, we would have been in a position to review the offered instruction and determine its sufficiency to "dispel any prejudice." Arizona v. Washington, 434 U.S. 497, 522 n.5, 98 S. Ct. 824, 838 n.5 (1978) (Brennan, J., dissenting). However, "because no curative instruction was given, we have no basis for review, and we decline to speculate as to the effect an instruction may or may not have had on the jury." State v. Harmon, 956 P.2d 262, 269 (Utah 1998).

While I would conclude that the injection of defendant's parole status into this trial was potentially harmful, I would also conclude that defendant waived review of the gravity of the harm when he made the strategic decision to refuse the offered curative instruction. I concur with the balance of the majority position.
 
 

______________________________
William A. Thorne, Jr., Judge

1. Although the trial court offered to provide the jury with a curative instruction regarding the witness's comment, Peguese rejected this remedy and moved for a mistrial.

2. The trial court granted Peguese's motion in limine prohibiting all references to Peguese's prior bad acts. However, the court's ruling did not prohibit testimony regarding Peguese's prior conviction for lying to a police officer.

3. We also note that the State did not elicit this testimony; rather, the witness mentioned Peguese's prior parole status in response to a question asked by Peguese's counsel during cross-examination.

4. The State properly elicited testimony regarding Peguese's conviction for lying to a police officer. Although there was a five year difference between this conviction and Peguese's 1997 parole, we note that any jurors who heard the parole comment could have considered Peguese's parole status to be the result of this conviction.

5. The court also stated that further testimony regarding the acrimonious relationship between Peguese and the victim's mother was neither helpful nor relevant.

6. We also note that Peguese would have been hard pressed to claim that his statement was an excited utterance. For example, Peguese testified that a letter written by the victim's mother in June of 1998, in which she claimed to be pregnant with his child, did not worry him because he had not been with the woman sexually in over a year and a half. Furthermore, with respect to the conversation that took place in February 1999, Peguese testified "it was just a ridiculous conversation so I hung up the phone."