Salt Lake City v. Favazzo

Salt Lake City v. Favazzo

IN THE UTAH COURT OF APPEALS

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Salt Lake City,
Plaintiff and Appellee,

v.

David Favazzo,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010831-CA
 

F I L E D
(May 15, 2003)
 

2003 UT App 144

 

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Third District, Salt Lake Department

The Honorable William Barrett

Attorneys: Brenda Viera, Salt Lake City, for Appellant

Augustus G. Chin, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Orme.

BENCH, Judge:

On appeal, Defendant David Favazzo argues: (1) that the trial court erred in denying his motion to suppress; (2) that the evidence was insufficient to support his conviction of driving under the influence of alcohol and/or drugs; and (3) that, in limiting his cross-examination of witnesses, the trial court denied him his constitutional right to confront his accusers.

I. Motion to Suppress

A traffic stop is justified when an officer has a "'reasonable articulable suspicion that the driver is committing a traffic offense, such as driving under the influence of alcohol or driving without a license.'" State v. Lopez, 873 P.2d 1127, 1132 (Utah 1994) (quoting State v. Lopez, 831 P.2d 1040, 1043 (Utah Ct. App. 1992)). In Salt Lake City, "[n]o driver shall operate a vehicle while his or her ability or alertness is so impaired through fatigue, illness or any other cause as to make it unsafe for him or her to drive such vehicle." Salt Lake City Code § 12.24.050. Defendant was stopped at a red light with his "head . . . slumped over"; he was not moving and appeared "asleep, passed out or was unconscious at that point in time"; he did not move after the light turned green "until some ten (10) seconds or more later"; and during that time "[an]other vehicle had to go around him on the right hand side." See Sandy City v. Thorsness, 778 P.2d 1011, 1012 (Utah Ct. App. 1989) (per curiam) (mem. decision) ("We view [the] evidence in a light most favorable to the trial court's ruling on the suppression motion."). These facts clearly give rise to a reasonable suspicion that Defendant was committing the above-cited traffic offense. We therefore see no error in the trial court's denial of Defendant's motion to suppress. See Low v. City of Monticello, 2002 UT 90,¶34, 54 P.3d 1153 ("[W]e can affirm a trial court's order if the order is sustainable on any legal ground or theory apparent on the record." (quotations and citations omitted)).

II. Sufficiency of the Evidence

In his brief on appeal, Defendant adequately marshals the evidence supporting the jury's verdict. See West Valley City v. Majestic Inv. Co., 818 P.2d 1311, 1315 (Utah Ct. App. 1991) (explaining the marshaling requirement). However, he fails to "ferret out a fatal flaw in [that] evidence." Id. Rather, Defendant "merely reargues his position at trial, a position already considered and rejected by the [jury]." West Valley City v. Hoskins, 2002 UT App 2003,¶15, 51 P.3d 52. "On appeal we will not reweigh the evidence or disturb the jury's verdict unless the evidence is so inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt as to an element of the crime." State v. Hoffhine, 2001 UT 4,¶23, 20 P.3d 265. "Defendant has not shown that the evidence in this case is so lacking as to meet this standard." Id.

III. Confrontation Clause Rights

Defendant argues that "[t]he trial court's interference in the cross examination of the city witnesses denied [him] his constitutional right to confront and cross examine his accusers."(1) Specifically, Defendant asserts that his cross-examination of Officer Nielson regarding administration of the horizontal gaze nystagmus (HGN) test was impermissibly restricted.

Defense counsel was, however, able to elicit from the officer on cross-examination that if the HGN test is not performed correctly its reliability decreases. Defense counsel was then allowed to question the officer regarding how the reliability of the test was affected by whether Defendant stood with his feet together or apart; how far the pen should be held in front of the subject, and whether the officer deviated from that standard in performing the test on Defendant; the number of times the officer should pass the pen in front of the subject's eyes, and whether the officer made the appropriate number of passes in performing the test on Defendant; and whether factors unrelated to alcohol or drug impairment could cause responses indicative of alcohol or drug impairment.

Defendant did not state below, nor has he explained on appeal, what evidence he believes was erroneously excluded by the trial court's limitation of his cross-examination. "We have stated that we will not set aside a verdict because of the erroneous exclusion of evidence unless a proffer of evidence appears of record. . . . We therefore decline to speculate upon whether other evidence might have come forward in an unlimited cross." State v. Calliham, 2002 UT 87,¶32 n.10, 57 P.3d 220 (quotations and citations omitted). We conclude, therefore, that Defendant's Confrontation Clause rights were not violated.(2)

Affirmed.

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Russell W. Bench, Judge

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WE CONCUR:

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James Z. Davis, Judge

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Gregory K. Orme, Judge

1. Defendant "claims that his rights under the confrontation clause[s] of [both the United States Constitution and] the Utah Constitution were violated. We do not address [Defendant]'s state claim, however, since he has failed to separately brief it." State v. Calliham, 2002 UT 87,¶28 n.7, 57 P.3d 220.

2. Defendant also suggests that what the court described as its attempts to help counsel "move on and not be repetitive" amounted to a denial of Defendant's right to "the due process of law." Defendant has insufficiently distinguished this argument from his Confrontation Clause argument for us to address it. See Utah R. App. P. 24(a)(9). Nevertheless, we note that the better practice would be for the trial court to critique an attorney's cross-examination techniques outside the presence of the jury. See, e.g., State v. Gleason, 86 Utah 26, 40 P.2d 222, 227 (1935) (stating that judges should avoid appearance of bias shown through "tone of voice, facial expression, []or manner of propounding a question").