State v. Crespo

State v. Crespo

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Santiago Diaz Crespo,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20030332-CA
 

F I L E D
(June 4, 2004)
 

2004 UT App 181

 

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Third District, Salt Lake Department

The Honorable William Barrett

Attorneys: Heather Johnson and Nisa J. Sisneros, Salt Lake City, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Billings, Bench, and Thorne.

BENCH, Associate Presiding Judge:

At the outset, the State urges us to reject this appeal because Crespo's claims were not properly preserved. We agree. It is well settled that "a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal." State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989) (quotations and citation omitted). Furthermore, "the preservation rule applies to every claim . . . unless a defendant can demonstrate that 'exceptional circumstances' exist or 'plain error' occurred." State v. Holgate, 2000 UT 74,¶11, 10 P.3d 346 (citation omitted). The record indicates that Crespo moved for a mistrial or dismissal solely on the basis that "apparently there's another police report out there . . . and it sounds like there's some potential witnesses that could be out there, some names of people that I don't know who they are." At no point did Crespo raise or even mention Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194 (1963), or rule 16 of the Utah Rules of Criminal Procedure. Moreover, on appeal, Crespo does not argue either "exceptional circumstances" or "plain error." Holgate, 2000 UT 74 at ¶11. Hence, the issues he attempts to raise on appeal are not properly before us.

Even if Crespo's claims were sufficiently preserved, we fail to see where the alleged Brady and rule 16 violations occurred. With regard to the Brady violation claim, "a prosecutor has a constitutional duty to volunteer obviously exculpatory evidence and evidence that is 'so clearly supportive of a claim of innocence that it gives the prosecution notice of a duty to produce.'" State v. Jarrel, 608 P.2d 218, 224 (Utah 1980) (citation omitted). Furthermore, the State must present exculpatory evidence regardless of whether the defendant actually requests such evidence. See State v. Bisner, 2001 UT 99,¶32, 37 P.3d 1073. A Brady violation occurs only where a defendant can establish that

the State suppressed information that (1) remained unknown to the defense both before and throughout trial and (2) was material and exculpatory, meaning its disclosure would have created a 'reasonable probability' that 'the result of the proceeding would have been different.'

Id. at ¶33 (citation omitted).

Crespo contends that a Brady violation occurred when the State failed to disclose to him Schneider's report from paraphernalia cases filed against other individuals. The report, Crespo argues, contained the names of potential witnesses who might have been helpful to his defense. However, Crespo fails to meet both prongs of a Brady violation, as set out in Bisner. First, although Crespo did not know about Schneider's report before trial, he knew the names of three out of the five individuals described in Schneider's report: his friend Maria, Pollock, and the renter of the apartment, Lucero.(1) Crespo could have easily inquired about the names of the other two occupants of the apartment through Maria, Lucero, or Pollock. Additionally, Crespo knew about the paraphernalia cases before trial and could have sought any police report related to these cases, including Schneider's, in order to identify the other two individuals.

Second, evidence contained in Schneider's report was not "material" or "exculpatory" to Crespo's defense. Bisner, 2001 UT 99 at ¶32. "Evidence is constitutionally material if there is a reasonable probability that the result of the proceeding would have been different had the evidence been disclosed to the defense." State v. Bakalov, 1999 UT 45,¶31, 979 P.2d 799 (quotations and citation omitted). We fail to see how Schneider's report would have changed the outcome of Crespo's trial. As previously noted, Crespo knew the names of three individuals contained in Schneider's report. Crespo did not call any of them as witnesses at his trial. Moreover, there is no indication that either one of the other two individuals knew anything about Crespo's possession charges. In fact, they may have had information inculpating Crespo. Hence, whether those individuals would have provided material exculpatory evidence "is so speculative that it is impossible to see how it could have affected the outcome of the trial." State v. Shabata, 678 P.2d 785, 788 (Utah 1984).

Finally, rule 16 of the Utah Rules of Criminal Procedure provides that "the prosecutor shall disclose to the defense upon request . . . information of which he has knowledge [including

evidence known to the prosecutor that tends to negate the guilt of the accused, mitigate the guilt of the defendant, or mitigate the degree of the offense." Utah R. Crim. P. 16(a)(4). Crespo's rule 16 claim fails for at least three reasons. First, as explained above, Crespo had sufficient information before trial to identify the other individuals. See State v. Whittle, 1999 UT 96,¶25, 989 P.2d 52 (confirming that a "'prosecutor cannot be cited for a discovery violation where the defendant had knowledge of the existence of the item that the State failed to disclose'" (citation omitted)). Second, Crespo's discovery request did not include Schneider's report. To establish a rule 16 violation, Crespo "must demonstrate that the scope of his request encompassed the omitted items and that the State undertook an unqualified obligation to provide them." State v. Hopkins, 1999 UT 98,¶20, 989 P.2d 1065. The record shows that, before trial, Crespo requested only a copy of Ross's report. No request for a copy of Schneider's report was ever made before or during trial. Third, we are unpersuaded that the alleged rule 16 violation "has impaired the defense." State v. Knight, 734 P.2d 913, 921 (Utah 1987). Crespo had the information necessary to identify and investigate all individuals present in the apartment. Crespo has not established that the nondisclosure of Schneider's report impeded his investigation or impaired his defense.

For all the foregoing reasons, we affirm.

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Russell W. Bench,

Associate Presiding Judge

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WE CONCUR:

______________________________

Judith M. Billings,

Presiding Judge

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William A. Thorne Jr., Judge

1. Lucero and Pollock were both in Ross's report, which was given to Crespo following the preliminary hearing.