State of Utah, v. Thomas

State of Utah,
Plaintiff and Appellee,

v.

Richard Dee Thomas,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 961170-CA

F I L E D
(February 25, 1999)
  1999 UT App 051 -----

Third District, Salt Lake Department
The Honorable William B. Bohling

Attorneys:
Richard Dee Thomas, Draper, Appellant Pro Se
Jan Graham and Joanne C. Slotnik, Salt Lake City, for Appellee

-----

Before Judges Bench, Billings, and Davis.

DAVIS, Judge:

This case is before us on remand from the Utah Supreme Court. See State v. Thomas, 961 P.2d 299 (Utah 1998). The sole issue is "whether the trial court's failure to suppress evidence obtained from the [illegal] search constituted reversible error." Id. at 305. We hold that it does not.

Because the invalid search amounts to a violation of a federally protected constitutional right, "we will affirm defendant's conviction only if we can say, beyond a reasonable doubt, that defendant would still have been convicted . . . even if the trial court had not admitted the improperly seized evidence." State v. Genovesi, 909 P.2d 916, 922 (Utah Ct. App. 1995). The evidence seized pursuant to the search was the baseball cap, sunglasses, gun, and bank bags with some coin wrappers and gift certificates. Had this evidence been suppressed, the jury had before it a positive and unequivocal eyewitness identification from the store manager who had spent several minutes studying defendant's face while in the store, and had come face-to-face with defendant several times while defendant forced the manager across the store parking lot. A neighbor immediately next-door to the apartment at which defendant had been staying directed the police to the apartment. Upon arrival, the police were able to see defendant inside and confirmed the neighbor's report that a man matching the description given by the Kentucky Fried Chicken employees was there. The police guarded the apartment until defendant emerged. Most importantly, defendant's voluntary and uncoerced confession that he had committed the robbery was also before the jury.

Comparing the evidence seized pursuant to the warrant with the overall strength of the prosecution's case, we hold that the admission of the seized evidence was harmless beyond a reasonable doubt because "the evidence that was erroneously(1) admitted did not significantly contribute to defendant's conviction and other properly admitted evidence overwhelmingly established his guilt." See Genovesi, 909 P.2d at 923.(2)

Affirmed.
 

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

WE CONCUR:
 

______________________________
Russell W. Bench, Judge
 

______________________________
Judith M. Billings, Judge

1. We note the exemplary conduct of the police in this matter and that the "error" could not have been reasonably anticipated by either the police or the trial court.

2. Because of our disposition, we do not reach the State's argument that exclusion of the seized evidence is an inappropriate remedy. See State v. Carter, 776 P.2d 886 (Utah 1989). We find defendant's jurisdictional arguments, including those styled as a "Motion/Memorandum for Appointment of Counsel," without merit and decline to address them, see id., and issuance of this decision renders defendant's "Motion for an Expedited Decision of Appeal" moot. Lastly, even if we assume defendant's "Affidavit for Change of Venue[] and Prejudice" is a proper pleading, it is without merit and we do not reach the issues raised therein. See id.