State of Utah v. Wallace

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IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Preston Scott Wallace,

Defendant and Appellant.

MEMORANDUM DECISION

(Not For Official Publication)

Case No. 971552-CA

F I L E D

(March 11, 1999)

1999 UT App 074

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Third District, Salt Lake Department

The Honorable J. Dennis Frederick

Attorneys: Roger K. Scowcroft, Catherine L. Begic, and Robin K. Ljungberg, Salt Lake City, for Appellant

Jan Graham and Kris C. Leonard, Salt Lake City, for Appellee

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Before Judges Greenwood, Davis, and Jackson.

GREENWOOD, Associate Presiding Judge:

Defendant, Preston Scott Wallace, appeals his conviction for Manslaughter, a second degree felony, in violation of Utah Code Ann. ยง 76-5-205 (1995 & Supp. 1998). We affirm.

VICTIM'S GANG AFFILIATION

Defendant argues the trial court erred under Utah Rule of Evidence 403 in excluding evidence that the victim had a history of gang involvement. He also contends that exclusion of this evidence deprived him of his right to present a complete defense. We will not disturb the trial court's determination of the admissibility of evidence under Rule 403 absent an abuse of discretion. See State v. Real Property at 633 East 640 North, 942 P.2d 925, 930 (Utah 1997). More specifically, we will affirm the trial court's decision as long as the balancing of the probativeness against the prejudice of the evidence is within the "limits of reasonability." Id. (quoting Harline v. Barker, 912 P.2d 433, 441 (Utah 1996) (quoting State v. Ramirez, 817 P.2d 774, 781-82 n.3 (Utah 1991))).

Rule 403 provides that relevant "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Utah R. Evid. 403. Because the circumstances surrounding the murder of the victim in this case were not gang related, evidence of the victim's gang affiliation was not probative of any central issue in the case. Cf. State v. Romero, 870 P.2d 1141, 1147-48 (Ariz Ct. App. 1993) (stating admission of defendant's gang membership evidence proper because not unduly prejudicial and relevant to show motive related to gang activities); People v. Williams, 940 P.2d 710, 738 (Cal. 1997), cert. denied, 118 S. Ct. 1169 (1998) (same); State v. Toney, 862 P.2d 350, 353-54 (Kan. 1993) (same); Tinch v. State, 946 P.2d 1061, 1064-65 (Nev. 1997) (same); State v. Campbell, 901 P.2d 1050, 1055 (Wash. Ct. App. 1995) (same). In addition, evidence of gang membership alone would not necessarily establish that the victim had a propensity for violence, rendering this evidence irrelevant to defendant's claim of self-defense. Finally, admitting this evidence would have been potentially prejudicial in labeling the victim as a gang member. Consequently, we conclude the trial court did not abuse its discretion in excluding evidence of the victim's gang affiliation because the danger of prejudice in admitting this evidence substantially outweighed any marginal probativeness it may have had.

We also reject defendant's argument that exclusion of evidence of the victim's gang affiliation deprived him of his right to present a complete defense. At trial, defendant was allowed to present evidence that the victim had a reputation for carrying and using a knife. Defendant also testified that he believed the victim was carrying a knife at the time of the shooting and that he reached into his pocket just before defendant shot the victim. Further, defendant testified the victim was physically abusing his girlfriend shortly before the shooting occurred. We conclude that allowing defendant to present this evidence in support of his theory of self-defense afforded him an adequate opportunity to present a complete defense.

DEFENDANT'S PRIOR BAD ACTS

Defendant also claims that under Utah Rule of Evidence 404(b), the trial court erred in admitting evidence of his access to a .380 caliber handgun and his attempt to buy marijuana from the victim. We will not disturb a trial court's determination of the admissibility of evidence under Rule 404(b) absent an abuse of discretion. See Utah R. Evid. 404(b) Advisory Comm. Note (stating 1998 amendment "abandons the additional requirements for admitting evidence under Rule 404(b) imposed by State v. Doporto, 935 P.2d 484 (Utah 1997) [and] clarifies that evidence of other crimes, wrongs, or acts, offered under 404(b), is admissible if it is relevant for a non-character purpose and meets the requirement of Rules 402 and 403"); State v. Jamison, 767 P.2d 134, 137 (Utah Ct. App. 1989) (applying abuse of discretion standard to trial court's decision under Rule 404(b)).

Rule 404(b) provides that evidence of a defendant's prior bad acts may be admitted "if it is relevant for a non-character purpose and meets the requirements of Rule 402 and 403." Utah R. Evid. 404(b). At the time evidence that defendant had access to a handgun likely used in the shooting was admitted, it was highly probative of the non-character issue of establishing the identity of the shooter. Moreover, this evidence was not so prejudicial as to outweigh its probative value under Rule 403.

In addition, evidence that defendant had attempted to purchase marijuana from the victim on the night of the shooting was necessary to the State's case for the non-character purpose of presenting a complete picture of the events that occurred on the night of the shooting and placing the defendant at the scene of the crime. Therefore, we conclude the trial court did not abuse its discretion in admitting evidence of defendant's prior bad acts under Rule 404(b).

MIRANDA VIOLATION

Finally, defendant argues that the trial court should have granted a mistrial because the statements made by Detective Candland, indicating defendant was living with his cousin, were admitted in violation of Miranda and the trial court's pre-trial suppression order. See Miranda v. Arizona, 384 U.S. 436 (1966). "We will uphold the trial court's denial of defendant's motion for a new trial unless we determine the court has abused its discretion." State v. Burk, 839 P.2d 880, 883 (Utah Ct. App. 1992) (citation omitted). However, the question of whether defendant's Miranda rights were violated presents a question of law which we review for correctness. See State v. Dahlquist, 931 P.2d 862, 866 (Utah 1997).

First, the trial court's pre-trial suppression order included only those statements that defendant had made about his ownership of a green jacket. Therefore, Detective Candland's testimony about where defendant lived was not admitted in violation of the court's suppression order. Moreover, even assuming this testimony was admitted in violation of Miranda, it was irrelevant to the State's case because it did not include any incriminating statements that prejudiced defendant. Thus, we conclude any error in admitting defendant's statements concerning his residence was harmless. See Utah R. Crim. P. 30.

CONCLUSION

Because of the minimal probative value and the prejudice which would have resulted from the admission of evidence of the victim's gang affiliation, we conclude the trial court correctly excluded this evidence under Rule 403. Additionally, defendant was allowed to present evidence of the victim's violent propensities. Consequently, exclusion of evidence of the victim's gang involvement did not deprive defendant of his opportunity to present a complete defense. Evidence of defendant's prior bad acts was also properly admitted because it was relevant for non-character purposes to the State's case. Finally, defendant was not prejudiced by the statements he claimed were suppressed prior to trial. Therefore, any error in

admitting testimony in violation of Miranda was harmless.

Affirmed.

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Pamela T. Greenwood,

Associate Presiding Judge

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WE CONCUR:

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James Z. Davis, Judge

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Norman H. Jackson, Judge