State of Utah v. Hale

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State of Utah v. Hale, Case No. 990939-CA, Filed November 2, 2000 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Jacob Ross Hale,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990939-CA

F I L E D
November 2, 2000 2000 UT App 297 -----

Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Attorneys:
Catherine E. Lilly and Lisa J. Remal, Salt Lake City, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Greenwood, Jackson, and Billings.

BILLINGS, Judge:

Defendant appeals his convictions for aggravated robbery and aggravated kidnaping.

First, Defendant argues the trial court erred in denying his motion for a mistrial because of juror contact with court personnel. "[A] rebuttable presumption of prejudice arises from any unauthorized contact during a trial between witnesses, attorneys or court personnel and jurors which goes beyond mere incidental, unintended, and brief contact." State v. Pike, 712 P.2d 277, 280 (Utah 1985).

In this case, one member of the jury overheard a bailiff in the courthouse yell "they are guilty." The bailiff who made the comment was operating the metal detectors at the court's entrance and was not assigned to the jury. When questioned by the trial court about the statement, the juror said that she was not sure who had made the remark, believed it was a joking comment, and did not understand it to pertain to any particular case. Further, the juror stated that it did not in any way interfere with her ability to be fair and impartial and she did not discuss it with any of the other jurors.

Given the "incidental, unintended, and brief" nature of the "contact," we do not think this is the type of contact which raises a presumption of prejudice. Certainly we cannot say that it had the "effect of breeding a sense of familiarity that could clearly affect the juror's judgment as to credibility." Pike, 712 P.2d at 281. Furthermore, given the "incidental, unintended, and brief" nature of the contact, there is no appearance of impropriety and thus no deleterious effect upon the judicial process that would violate Pike. We therefore conclude that the trial court did not abuse its discretion when it denied Defendant's motion for a mistrial.

Defendant next argues that the trial court erred in denying his motion to suppress an eyewitness identification. "The ultimate question to be determined is whether, under the totality of circumstances, the identification was reliable." State v. Ramirez, 817 P.2d 774, 781 (Utah 1991). In making this determination, the court must consider the following factors: (1) the opportunity of the witness to view the actor during the event; (2) the witness's degree of attention to the actor at the time of the event; (3) the witness's capacity to observe the event, including his or her physical and mental acuity; (4) whether the witness's identification was made spontaneously and remained consistent thereafter, or whether it was the product of suggestion; and (5) the nature of the event being observed and the likelihood that the witness would perceive, remember and relate it correctly. Id. (quoting State v. Long, 721 P.2d 483, 493 (Utah 1986)).

Defendant challenges the reliability of the identification under the first three factors, arguing that fear rendered the witness's perception unreliable and that his ability to see Defendant was obstructed. A comparison of the facts found by the trial court in this case with those upheld in Ramirez leads us to a different conclusion.

In Ramirez, the entire event occurred at night. See id. at 783. The length of time the witness viewed the defendant varied from seconds to a minute or longer from a distance of between ten to thirty feet. See id. at 782. The defendant wore a mask. See id. The witness perceived the defendant while the defendant threatened the witness with a gun and while the defendant's accomplice hit and threatened the witness with a pipe. See id.

In this case, the eyewitness, victim Mitchell Lewis, had over two hours within which to view Defendant's unmasked face at the park, riding in the backseat of the car, and in the ravine in Big Cottonwood Canyon. The eyewitness sat next to Defendant in the ravine for an hour. Although Defendant wore dark sunglasses, Lewis could see his face behind them and noted Defendant's unusual blinking pattern. The trial court found that although Lewis was frightened, he was both "deliberate" and "thoughtful" in his approach to the situation, as he concentrated on observing and remembering Defendant's face and intentionally engaged Defendant in conversation. Additionally, as we have previously held, "we do not think the victim's ordinary fear is sufficient to defeat this factor. Otherwise, no victim of a violent crime could ever meet this factor." State v. Rivera, 954 P.2d 225, 227 (Utah Ct. App. 1998).

Defendant next argues that under the fourth factor the identification was neither spontaneous nor consistent. However, Lewis provided the police with an accurate description of Defendant on the day of the kidnaping and robbery. Thereafter, Lewis consistently identified Defendant: at a photo array ten days after the incident; at a lineup approximately one month later; and finally at trial. While Defendant argues that Lewis originally omitted details of Defendant's description, the same bears on his credibility and does not render the identification inadmissible. See State v. Mincy, 838 P.2d 648, 658 (Utah Ct. App. 1992).

Defendant further argues that under the fourth factor Lewis' identification was the product of impermissible suggestion. Defendant argues that because an officer told Lewis he had picked the right person out of the photo array, the subsequent lineup, where Lewis once again identified Defendant, was the product of impermissible suggestion. Again, a comparison with the facts upheld in Ramirez leads to a different conclusion.

In Ramirez, police informed the eyewitness they had a suspect fitting the description he had provided them. SeeRamirez, 817 P.2d at 784. The identification took place on the street in the middle of the night. See id. The eyewitness viewed the defendant from the back seat of a police car while the defendant, a dark-complexioned Apache Indian, was the only suspect, had his hands cuffed to a chain link fence behind his back, and had the headlights of several police cars on him. See id.

Here, there was only a single comment made after the photo identification which was negated by a subsequent comment--that there was a possibility that the subject would not be in the lineup--before the lineup identification.

We conclude that under the totality of circumstances the eyewitness identification was sufficiently reliable. We therefore affirm.
 
 
 
 

______________________________
Judith M. Billings, Judge

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WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Norman H. Jackson,
Associate Presiding Judge

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