State of Utah v. Powell

IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Trevor Powell,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010995-CA
  F I L E D
(April 24, 2003)
 

2003 UT App 127

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Fourth District, Provo Department

The Honorable Guy R. Burningham

Attorneys: Margaret P. Lindsay, Provo, for Appellant

Mark L. Shurtleff and Brett J. DelPorto, Salt Lake City, for Appellee

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Before Judges Jackson, Greenwood, and Thorne.

THORNE, Judge:

Defendant Trevor Powell appeals his conviction for aggravated robbery, a first degree felony. We affirm.

"Whether a pretrial photo array violates a citizen's constitutional right to due process is a question of law, which we review for correctness."(1) State v. Hubbard, 2002 UT 45,¶22, 48 P.3d 953. We will conclude that an identification made during the presentation of a photo array violates due process only if the process used by the police "was 'so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.'" Id. at n.6 (citation omitted). This determination hinges on our examination of the photo array and "the actions of the police officers during the presentation of the photo array." State v. Diaz, 2002 UT App 288,¶41, 55 P.3d 1131.

Here, the investigating officers put the photo array on a single page using six digital photos, presented in three rows, downloaded from the police department's database. Powell's photo was the only photo that showed anything more than a head shot, and included both his shoulders and part of his shirt.(2) However, the officers placed Powell's photo on the right-hand side of the array sheet, in the second row; thus, the photo was neither the first nor the last presented, a positioning that might otherwise suggest Powell's photo had been emphasized by the officers. Powell's photo was also the same size, shape, and quality as the other photos included in the array. Moreover, the background of Powell's photo was identical to the background in each of the other photos. Furthermore, each photo included the image of a male with short hair(3) and similar facial features, who all appear to fall within an acceptable age range. Finally, prior to presenting Shelton with the photo array, the investigating officer informed her that her assailant may or may not have been included in the array and that her failure to identify one of the photos as the image of her assailant would have no impact on the investigation. Based on this information, we conclude that the pretrial photo array procedure was not impermissibly suggestive. See Hubbard, 2002 UT 45 at ¶24.

Powell also argues that the trial court failed to make sufficient findings and conclusions on the record to support its decision to deny his motion to suppress. "As a rule, this court generally '"upholds the trial court even if it failed to make findings on the record whenever it would be reasonable to assume that the court actually made such findings."'" State v. Pecht, 2002 UT 41,¶22, 48 P.3d 931 (citations omitted); see also State v. Ramirez, 817 P.2d 774, 787 n.6 (Utah 1991). This rule is inapplicable if (1) the facts are sufficiently ambiguous so as to render such a conclusion unreasonable; or (2) explicit findings are required by either case law or statute. See id.

Here, there is no ambiguity concerning the facts of the robbery and the contact between the victim and the assailant. Nor is there any statutory or case law under which the trial court would be required to make express findings on the record concerning Powell's motion. Thus, Powell's second argument is without merit.

Powell also argues that the trial court erred in denying his motion for a mistrial.(4) For this argument to succeed, Powell must demonstrate that the State's alleged discovery violations "'resulted in prejudice sufficient to warrant reversal under [r]ule 30' of the Utah Rules of Criminal Procedure." State v. Basta, 966 P.2d 260, 265 (Utah Ct. App. 1998) (quoting State v. Knight, 734 P.2d 913, 919 (Utah 1987)). We will determine that sufficient prejudice exists "only if 'the likelihood of a different outcome [is] sufficiently high to undermine confidence in the verdict.'" Id. (alteration in original) (quoting Knight, 734 P.2d at 920).

During her testimony, Shelton testified that she remembered Powell because of his eyes and the unusual way they were set in his face. She further testified that she knew he was her assailant immediately upon seeing his photo in the array and that she had not seen his photo during her earlier review of the photo books provided by the investigating officer. Finally, upon learning of Shelton's review of the photo books, the trial court ordered the books(5) sealed and delivered to a place where Powell's attorneys could examine them. This was done, and following the examination, Powell's attorneys were able to affirmatively state that his photo was not in the books. While it is true that several photo's were missing from the books when they were delivered to Powell's attorneys, in the face of Shelton's testimony, this information is insufficient to conclude that Powell was prejudiced by the State's failure to disclose Shelton's examination of the books. See, e.g., Basta, 966 P.2d at 265; State v. Nebeker, 657 P.2d 1359, 1363-64 (Utah 1983). Having examined the record, we conclude that Powell's argument is based on a mere possibility that the trial's outcome may have been affected had the State provided the information earlier. This is insufficient to warrant reversal.

Finally, Powell argues that at a minimum the cumulative effect of all of the errors should result in the reversal of his conviction. "'Under the cumulative error doctrine, we will reverse a conviction only if "the cumulative effect of the several errors undermines our confidence . . . that a fair trial was had."'" Diaz, 2002 UT App 288 at ¶55 (citations omitted). Here, Powell has failed to establish the existence of any substantive errors; therefore, he cannot rely on the cumulative error doctrine.

Accordingly, Powell's conviction is affirmed.

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William A. Thorne Jr., Judge

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WE CONCUR:

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Norman H. Jackson,

Presiding Judge

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Pamela T. Greenwood, Judge

1. Although Powell's brief seems to address this issue more broadly, at oral argument his attorney conceded that the issue turned on the outcome of our analysis of the photo array process. Thus, we limit our analysis to the photo array process. However, were we to address the propriety of the trial court's decision under the Ramirez factors, as suggested in Powell's brief, the outcome would not change. See State v. Ramirez, 817 P.2d 774, 782-84 (Utah 1991). Stated succinctly, after reviewing the facts proffered during the preliminary hearing, we conclude that Shelton's testimony meets the minimum standard of reliability required for admission into evidence.

2. Powell also argues that the investigating officers improperly influenced the array process by failing to insure that each image included a young man with a mustache. While in some circumstances we might find this argument compelling, here, after reviewing the array, we conclude that the inclusion of Powell's diaphanous mustache in the array photo did not improperly focus attention to Powell's image.

3. There is one exception. The third photo is of a young male with hair noticeably longer in the back than in the front. This image, however, while possibly standing out on its own, has little impact on our analysis.

4. In his brief, Powell mentions two possible discovery violations on the part of the State: (1) the State's failure to disclose a composite sketch made by the investigating officer following the robbery; and (2) the State's failure to disclose that Shelton had viewed three books of photos following the robbery. However, after learning of the composite sketch during trial, Powell's attorney affirmatively waived any objection. Thus, Powell has waived his rule 16 challenge to the sketch on appeal. See State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct. App. 1998) (stating "a defendant essentially waive[s] his right to later claim error if the defendant fails to request a continuance or seek other appropriate relief under [r]ule 16(g)" (quotations and citation omitted) (first alteration in original)).

5. While Shelton reviewed only three of ten available photo books, the trial court sealed all ten because no one could recall which specific books she had been provided. Moreover, demonstrating an abundance of caution, the trial court stated that Powell would be provided with a new trial if Powell's photo was found in any of the ten books. Following a thorough examination of each photo book, Powell's attorney agreed that Powell's photo was not presently in the books, but argued that it may have been in one of the books at the time Shelton examined them.