State of Utah v. Zinnerman

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State of Utah,
Plaintiff and Appellant,

v.

Anthony Zinnerman,
Defendant and Appellee.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000012-CA

F I L E D
November 9, 2000 2000 UT App 309 -----

Third District, Salt Lake Department
The Honorable Leon A. Dever

Attorneys:
Deborah Kreeck Mendez and Linda M. Jones, Salt Lake City, for Appellant
Jan Graham and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Greenwood, Bench, and Orme.

ORME, Judge:

We have determined that "[t]he facts and legal arguments are adequately presented in the briefs and record and the decisional process would not be significantly aided by oral argument." Utah R. App. P. 29(a)(3).

A trial court's ruling on a claim of prosecutorial misconduct is reviewed for an abuse of discretion. See State v. Kohl, 2000 UT 35,¶22, 999 P.2d 7. To prevail on a claim of prosecutorial misconduct, a defendant must establish, inter alia, that "'under the circumstances of the particular case . . . [the misconduct] is substantial and prejudicial such that there is a reasonable likelihood that, in its absence, there would have been a more favorable result.'" Id. (quoting State v. Longshaw, 961 P.2d 925, 928 (Utah Ct. App. 1998)) (additional citations omitted).

Zinnerman has failed to show that the alleged prosecutorial misconduct was substantial and prejudicial. The trial court immediately sustained defense counsel's objection to the question before Zinnerman could answer. The court then instructed the jury to "disregard the question," and the prosecutor made no further reference to Zinnerman's criminal history. In its written jury instructions, the trial court also admonished the jury not to "conjecture" about objections sustained by the court. These steps by the trial court minimized any harm that might otherwise have resulted from the prosecutor's question. See, e.g., id. at ¶24 (holding prosecutor's improper remarks rendered harmless by court sustaining defendant's prompt objection, giving immediate curative instruction to jury, and including additional curative instruction in final jury instructions); State v. Colwell, 2000 UT 8,¶37, 994 P.2d 177 (holding prosecutor's improper question concerning defendant's prior convictions "harmless because the questioning was suspended before the defendant could provide details to prejudice the jury, and the jury was given adequate instruction on two separate occasions to disregard the evidence").

Moreover, the evidence against Zinnerman was overwhelming, making it highly unlikely the jury verdict would have been more favorable absent the prosecutor's unanswered question. At trial, four detectives each testified they clearly saw and interacted with Zinnerman both during the drug transaction on May 22, 1998--which occurred in broad daylight--and for several subsequent hours as Zinnerman led the detectives in search of drug suppliers. All four detectives testified that Zinnerman was the second individual who participated in the drug sale.

Zinnerman's testimony on his own behalf did little to undercut the detectives' testimony or otherwise help his cause. He testified that he could not have been at Pioneer Park on May 22, 1998, because he was then busy walking some nine to eleven miles to attend a family picnic. The only witness Zinnerman was able to produce to support his alibi, from the thirty or forty people who attended the picnic, was a convicted felon whose testimony was inconsistent with Zinnerman's, at least in part.

Affirmed.
 
 
 
 

______________________________
Gregory K. Orme, Judge -----

WE CONCUR:
 
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 
 
 

______________________________
Russell W. Bench, Judge