State of Utah v. Mallaev

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State of Utah v. Mallaev

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Aleksandre Mallaev,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 981166-CA

F I L E D

(March 11, 1999)

1999 UT App 075

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Third District, Salt Lake Department

The Honorable Pat B. Brian

Attorneys: Gregory S. Skordas, Lloyd R. Jones, and Brett J. DelPorto, Salt Lake City, for Appellant

Jan Graham and J. Frederic Voros, Jr., Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Orme.

GREENWOOD, Associate Presiding Judge:

Defendant Aleksandre Mallaev appeals his murder conviction, claiming the jury instructions confused the jury and impermissibly mandated an order of deliberation, and that he was unfairly prejudiced by a tape recording admitted at trial. We affirm.

Defendant first argues the admission of the 911 recording was cumulative evidence and unfairly prejudiced him at trial. As such, defendant argues the trial court should have excluded the recording under Utah Rule of Evidence 403. "In general, we review the trial court's determination of the admissibility of evidence under a correctness standard. However, in reviewing a trial court's ruling on the admissibility of evidence under Rule 403, we will not reverse the trial court's determination absent an abuse of discretion." State v. Alonzo, 932 P.2d 606, 613 (Utah Ct. App. 1997) (internal quotations and citations omitted). In fact, this court need not even address whether the evidence is admissible if the defendant does not make a showing of prejudicial error. See Jones v. Cyprus Plateau Min. Corp., 944 P.2d 357, 360 (Utah 1997).

Rule 403's directive is to exclude evidence when its probative value is substantially outweighed by its potential to unfairly prejudice, confuse the issues, mislead the jury, or waste judicial resources. Evidence unfairly prejudices the proceedings if it "'appeals to the jury's sympathies, arouses its sense of horror, provokes its instinct to punish,'" or otherwise causes a jury to base its decision on something other than the facts of the case. State v. Teuscher, 883 P.2d 922, 928 (Utah Ct. App. 1994) (quoting State v. Bartley, 784 P.2d 1231, 1237 (Utah Ct. App. 1989)) (additional citation omitted). The purpose of Rule 403 is to exclude "'matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect . . . to permit the trial judge to preserve the fairness of the proceedings by exclusion despite its relevance.'" State v. Maurer, 770 P.2d 981, 984 (Utah 1989) (quoting United States v. McRae, 593 F.2d 700, 707 (5th Cir.)).

To support his claim that Rule 403 barred admission of the 911 recording, defendant points to two decisions, cited by the supreme court in Maurer, in which other courts also excluded evidence under Rule 403. See id. at 984-85 (citing United States v. Layton, 767 F.2d 549 (9th Cir. 1985); State v. Pendergrass, 586 P.2d 691 (Mont. 1978)). Those cases, however, involved facts and circumstances different from those in this case. For example, Layton involved a tape recording of the Jonestown suicide that included a discussion of mass suicide against the background of "[s]creams of dying children." Id. at 985. In contrast, the 911 tape recording in this case contains nothing as horrific as the Layton scenario. And although the disputed evidence in Pendergrass was also a 911 phone call, the call was made by the victim. See id. The phone call in this case was made by the victim's friend, who was not directly involved in the murder. Furthermore, the recording does not contain sounds of the attack. Consequently, we do not believe the recording aroused the jurors' passions so as to impair their ability to fairly assess the evidence presented.

Even assuming the recording comes within Rule 403's scope, we need not decide whether the trial court erred in admitting the recording because defendant has not established the recording was unfairly prejudicial. See Jones, 944 P.2d at 360. In order to convict defendant of manslaughter rather than murder, the jury must have found a "reasonable explanation or excuse" for defendant's actions, even if the State did not disprove he acted under an extreme emotional disturbance. Utah Code Ann. § 76-5-205(1)(b)(1995 & Supp. 1998). We conclude no reasonable juror, even without hearing the 911 recording, could have found that the traffic ticket incident was a reasonable explanation or excuse for defendant's behavior. Indeed, the prosecution provided "ample evidence to convict defendant even without [the 911 recording]." State v. Wetzel, 868 P.2d 64, 69 (Utah 1993). We therefore affirm the trial court's decision to admit the 911 recording.

Defendant next argues the trial court's jury instructions prevented the jury from convicting him of extreme emotional disturbance manslaughter. Defendant acknowledges that he may not have timely objected to the jury instructions at trial. After reviewing the record, we conclude defendant did not timely object; "[h]owever, '[n]otwithstanding a party's failure to object, error may be assigned to instructions in order to avoid a manifest injustice.'" State v. Arguelles, 921 P.2d 439, 445 (Utah 1996) (quoting Utah R. Crim. P. 19(c)). We consider whether defendant suffered a manifest injustice using "'the same standard we use when determining the presence of plain error under Utah Rule of Evidence 103(d).'" Id. (quoting State v. Verde, 770 P.2d 116, 122 (Utah 1989)).

To prevail under the plain error standard, "a defendant must show 1) an error occurred, 2) the error was obvious, and 3) the error was harmful." State v. Adams, 955 P.2d 781, 785 (Utah Ct. App. 1998). "For an error to be plain, we 'must find that it should have been obvious to the trial court that it was committing error.'" Arguelles, 921 P.2d at 445 (quoting State v. Elm, 808 P.2d 1097, 1100 (Utah 1991)). Furthermore, "[a]n error is harmful if 'absent the error, there is a reasonable likelihood of a more favorable outcome' for defendant, or if the appellate court's 'confidence in the verdict is undermined.'" Adams, 955 P.2d at 785 (quoting State v. Dunn, 850 P.2d 1201, 1208-09 (Utah 1993)).

Although we agree with both parties that State v. Piansiaksone, 954 P.2d 861 (Utah 1998), directly addresses the issue of whether the trial court erroneously instructed the jury, Piansiaksone was decided three months after defendant was convicted. Neither the Utah Supreme Court nor this court had previously issued a definitive decision on the matter. Thus, the trial court's error, if there was an error, would not have been obvious. See State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997) ("[A] trial court's error is not plain where there is no settled appellate law to guide the trial court.") (citing State v. Eldredge, 773 P.2d 29, 35-36 (Utah 1989); State v. Braun, 787 P.2d 1336, 1341-42 (Utah Ct. App. 1990)).

Furthermore, even under the reasoning of Piansiaksone, we conclude the trial court did not err in its instructions to the jury regarding the manslaughter and murder charges. Piansiaksone clarified that "extreme emotional disturbance manslaughter is not a lesser included offense of the crime of murder because all the elements of extreme emotional disturbance manslaughter are not necessarily included within the elements of murder." Piansiaksone, 954 P.2d at 869 (citing State v. Baker, 671 P.2d 152, 155 (Utah 1983)); compare Utah Code Ann. § 76-5-203 (1995) with § 76-5-205(1)(b). Rather, extreme emotional disturbance manslaughter is a greater included offense of murder, for if the evidence establishes all the elements of murder and also establishes the defendant acted under an extreme emotional disturbance, a jury could convict a defendant of manslaughter instead of murder.

We conclude the jury instructions in this case, when read as a whole and in context of the trial, were not so confusing as to be prejudicial and did not compel the jury to convict defendant of murder. See State v. Perez, 924 P.2d 1, 5 (Utah Ct. App. 1996), cert. denied, 934 P.2d 652 (Utah 1997); State v. Lactod, 761 P.2d 23, 32 (Utah Ct. App. 1988). The jury had the option of finding all the elements of murder and yet still convict defendant of manslaughter.

Finally, defendant insists Jury Instruction No. 19 impermissibly mandated an order of deliberation because it directed the jury to "find the defendant guilty of murder as charged" if the jury determined the State established each element of murder beyond a reasonable doubt. This, defendant argues, echoes the faulty instruction in Piansiaksone that prompted the jury to "first consider the greater . . . offense," and then, if it found defendant guilty of the greater offense, "return that verdict and not consider any lesser offense." Piansiaksone, 954 P.2d at 870 (emphasis omitted).

Defendant, however, fails to explain how Instruction No. 20 (or Instruction No. 19) mandated an order of deliberation when read together with Instruction No. 26. That instruction permitted the jury to convict defendant of manslaughter even if it found that the stabbing was knowingly and intentionally done. Nowhere in the instructions did the trial court direct the jury to cease deliberation if it found all the elements of murder had been satisfied. We agree with the State that these instructions "allowed--indeed, required--the jury to return a manslaughter verdict if they found that defendant had acted under the influence of an extreme emotional disturbance that was reasonably

caused." Accordingly, we conclude the jury instructions were proper and affirm defendant's murder conviction.

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Pamela T. Greenwood,

Associate Presiding Judge

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WE CONCUR:

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Russell W. Bench, Judge

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Gregory K. Orme, Judge