State of Utah v. Wallberg

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State of Utah v. Wallberg, Case No. 981871-CA, Filed April 5, 2001 IN THE UTAH COURT OF APPEALS


State of Utah,
Plaintiff and Appellee,


James Scott Wallberg,
Defendant and Appellant.

(Not For Official Publication)

Case No. 981871-CA

April 5, 2001 2001 UT App 109 -----

Seventh District, Castle Dale Department
The Honorable Bruce K. Halliday

Gene S. Byrge, Salt Lake City, for Appellant
Mark L. Shurtleff and Jeffrey S. Gray, Salt Lake City, for Appellee


Before Judges Greenwood, Billings, and Davis.

GREENWOOD, Presiding Judge:

Defendant argues the trial court erred in refusing to appoint him counsel. We have reviewed the supplemental record of the indigency hearing in light of the applicable case law and find no error.

In State v. Vincent, 883 P.2d 278 (Utah 1994), the supreme court declared a correctness standard for reviewing an indigency determination, but also said that there is "a rather broad pasture for trial judges applying the law of indigency to the facts before them." Id. at 282. Defendant bore the initial burden of establishing his indigency. See id. at 283. His written application for court-appointed counsel was insufficient, as it did not list amounts for his expenses, only general categories of medical and pharmacy expenses with no dollar amounts. At the indigency hearing, it was disclosed that although defendant has seven children, he does not provide financial support for them,(1) and further, that he has medicaid benefits that cover most of his medical expenses, and that he had approximately $800 in cash. These facts are sufficient to support the trial court's conclusion that defendant did not qualify for court-appointed counsel.

Defendant's claim that the trial court should have granted him a continuance of trial because he did not receive discovery until the day of trial is also unavailing. First, defendant has not shown any support in the record that he requested discovery prior to trial. Further, defendant does not identify the evidence or how it was exculpatory. Cf. California v. Trombetta, 467 U.S. 479, 485, l04 S. Ct. 2528, 2532 (1984) (holding nondisclosure of exculpatory evidence violates due process). Finally, defendant failed to demonstrate how the failure to continue the trial harmed him or to show how any of the evidence would have helped him at trial. See State v. Knight, 734 P.2d 913, 919 (Utah 1987) (holding defendant must establish that absent error of prosecutorial non-disclosure there was "'reasonable likelihood of a more favorable result'") (citations omitted).


Pamela T. Greenwood,
Presiding Judge ----- WE CONCUR:

Judith M. Billings, Judge

James Z. Davis, Judge

1. A public defender present during this hearing indicated that defendant was appointed counsel in other proceedings, but the assumption in those instances was that he was financially supporting his dependent children.