State of Utah v. Palelei

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State of Utah v. Palelei, Case No. 20000727-CA, Filed May 17, 2001 IN THE UTAH COURT OF APPEALS

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State of Utah,
Plaintiff and Appellee,

v.

Gordon Masagalul Palelei,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 20000727-CA

F I L E D
May 17, 2001 2001 UT App 162 -----

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

Attorneys:
Catherine E. Lilly and Lisa J. Remal, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee

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Before Judges Jackson, Davis, and Orme.

JACKSON, Associate Presiding Judge:

Gordon Masagalul Palelei (Palelei) appeals his conviction for robbery, a second degree felony, in violation of Utah Code Ann. § 76-6-301 (1999). He argues that the trial court erred by admitting constitutionally unreliable eyewitness identification evidence and by giving inadequate cautionary jury instructions. We affirm.

At trial, the State presented the testimony of the following three eyewitnesses who identified Palelei as the robber: Cody Pudil, Dale Davis, and Catherine Swenson. Before admitting eyewitness identification, the "trial court must initially determine whether eyewitness testimony is constitutionally reliable." State v. Nelson, 950 P.2d 940, 943 (Utah Ct. App. 1997). For our analysis, we assume that the trial court erred in admitting the eyewitness identifications by Pudil and Davis that Palelei challenged. At oral argument, Palelei conceded that Swenson's identification was not challenged at any stage of the proceedings below.

The State argues that even if the district court did err by admitting the testimony of Pudil and Davis, the error was harmless because there was sufficient evidence to convict Palelei without Pudil's and Davis's identification. Error is harmless when, absent the error "there is not a sufficient likelihood of a more favorable outcome so as to undermine our confidence in the verdict." State v. Adams, 2000 UT 42,¶23, 5 P.3d 642. The State's evidence included (1) the uncontested eyewitness identification testimony of Swenson, (2) the videotape from a surveillance camera that showed Palelei's face several times, and (3) the photographs made from four frames of the surveillance video.

Swenson was present when the robbery took place. At trial, she testified that she first saw the four men who robbed the store outside and thought "it was kind of suspicious." When she returned to her car, the four entered the store, and Swenson observed the robbery unfold from her car. She re-entered the store, stood face-to-face with one of the robbers, and told him that "they shouldn't be doing this." She also asked him, "[w]hy are you taking this money?" The robber twice ordered her to sit on the floor. Both times she rebuffed him, retorting that he should sit on the floor. In court, Swenson identified Palelei as the robber with whom she had the encounter.

The videotape from the security camera corroborates Swenson's testimony. The video and the photographs developed from the video show clear pictures of the robber's face, thus providing ample evidence for the jury to make its own positive determination that Palelei was the robber. This additional evidence provides sufficient basis for the jury's verdict, independent of the eyewitness identification testimony of Pudil and Davis. We conclude that, even without Pudil's and Davis's testimonies, "there is not a sufficient likelihood of a more favorable outcome so as to undermine our confidence in the verdict." Id. Accordingly, we hold that any error committed by the trial court in admitting Pudil's and Davis's eyewitness identification was harmless.

Next, Palelei argues that his requested jury instruction did not correctly instruct the jury as to the law concerning the inherent weaknesses of eyewitness identification evidence. We disagree. First, we note that courts are not bound to a specific cautionary jury instruction on eyewitness testimony. The supreme court in State v. Long, 721 P.2d 483 (Utah 1986), declined to adopt a specific instruction. Instead, it granted courts "some latitude in formulating instructions" so long as they "apprise the jury of the inherent limitations of eyewitness identification." Id. at 492. Here, the cautionary instruction covered the five core factors set forth in Long and its progeny. See id., at 492-93. The cautionary instruction also contained four additional considerations noted in State v. Ramirez, 817 P.2d 774, 782-84 (Utah 1991). Thus, we conclude that the cautionary instruction adequately "apprise[d] the jury of the inherent limitations of eyewitness identification." Long, 721 P.2d at 942.

We conclude that any error committed by the trial court regarding eyewitness identification was harmless because other evidence presented by the State was sufficient to sustain the verdict. We also conclude that the cautionary instruction on eyewitness testimony adequately informed the jury of the limitations of eyewitness identification. Accordingly, we affirm.
 
 
 

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Norman H. Jackson,
Associate Presiding Judge -----

WE CONCUR:
 
 
 

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James Z. Davis, Judge
 
 
 

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Gregory K. Orme, Judge