State of Utah v. Mecham

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State v. Mecham. Filed April 8, 1999 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Jeffrey D. Mecham,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981235-CA

F I L E D
April 8, 1999
  1999 UT App 115 -----

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

Attorneys:
Edwin S. Wall and Gregory M. Constantino, Salt Lake City, for Appellant
Jan Graham and Laura B. Dupaix, Salt Lake City, for Appellee

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Before Judges Wilkins, Davis, and Jackson.

JACKSON, Judge:

We review the trial court's denials of motions for continuance and for mistrial under an abuse of discretion standard. See State v. Cabututan, 861 P.2d 408, 413 (Utah 1993) (continuance); State v. Boone, 820 P.2d 930, 932 (Utah Ct. App. 1991) (mistrial).

Regarding both his motions for continuance and for mistrial, Mecham presumes the prosecution violated Utah Rule of Criminal Procedure 16. However, Mecham ignores the trial court's finding that the prosecution did not ask the two witnesses at issue to attend jury selection to view Mecham in the way of a "post charge, pre-trial identification." Mecham thus has not challenged the trial court's determination that the prosecution did not violate Rule 16. Consequently, we must uphold the validity of that determination. See State v. Perry, 899 P.2d 1232, 1236 (Utah Ct. App. 1995) ("Defendant does not challenge the trial court's underlying factual findings and we therefore accept them.").

However, even assuming a discovery violation, Mecham has not shown that the outcome of his trial was prejudiced. First, the witnesses would have seen and did see Mecham during their trial testimony anyway. And, the prosecutor did not even ask if they had seen Mecham during jury selection as part of their in-court identification. Because this case hinged on witness identification, Mecham should have been prepared for the prosecutor to ask witnesses if they recognized Mecham as he sat before them during trial.(1) After all, Mecham had the necessary information from discovery--i.e., the two witnesses' inability to definitely identify Mecham during the previous lineup--with which to try to undermine an in-court identification.

Second, Mecham's questioning of the two witnesses extensively explored the fact that one witness had been unable to identify Mecham at all during the previous lineup, while the other witness had not been able to positively identify him during that lineup. Mecham's questions highlighted the potential conflict between the witnesses' past inability to clearly identify Mecham during the lineup and their ability during trial to conclusively identify him. The jury must have been well aware of that possible flaw in the prosecution's case, yet, based on the evidence as a whole, the jury still convicted Mecham.

We are unpersuaded that the prosecution's conduct--which in itself was not a discovery violation--prejudiced the trial's outcome. We therefore cannot say the trial court abused its discretion in denying Mecham's motions for a continuance or mistrial.

We have reviewed the other related issues raised by Mecham and conclude they either lack merit or were not properly preserved; consequently, we decline to address them further. SeeState v. Carter, 776 P.2d 886, 888-89 (Utah 1989) (stating we "need not analyze and address in writing each and every argument, issue, or claim raised and properly before us on appeal"); State
v. Vessey, 967 P.2d 960, 965 (Utah Ct. App. 1998) (unpreserved issues).

Affirmed.
 
 
 

______________________________
Norman H. Jackson, Judge

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WE CONCUR:
 
 
 

______________________________
Michael J. Wilkins,
Presiding Judge
 
 
 

______________________________
James Z. Davis, Judge

1. Mecham has not shown that the prosecutor knew before trial that the witnesses would testify that they could identify Mecham at trial. Further, although he asserts the prosecutor knew this and did not disclose it to him before trial, he did not raise this asserted discovery violation before the trial court--except in the context of his argument about the "post charge, pre-trial showup." We thus decline to address it as a separate violation. State v. Vessey, 967 P.2d 960, 965 (Utah Ct. App. 1998) ("'[S]ome form of specific preservation of claims of error must be made a part of the trial court records before an appellate court will review such claims on appeal.'" (quoting State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989))).