State v. Gallup
2011 UT App 422
| Utah Ct. App. | 2011Background
- Gallup appeals convictions for failing to stop (felony), speeding (misdemeanor), and driving on a suspended license (misdemeanor).
- On Oct 22, 2008, trooper clocked Gallup’s BMW at 88 mph in a 65 mph zone on I-15 in Lehi, pulled it over, then the vehicle sped away before a stop could be made.
- Trooper obtained Gallup’s license image and later called Gallup around 12:20 a.m.; Gallup answered with a name and then hung up, ending the contact.
- A telephone hang-up by Gallup was admitted at trial over objections that it violated Gallup’s Fifth Amendment rights and could be used as substantive guilt evidence.
- Gallup testified he was not driving the BMW; alibi evidence was challenged under Utah Code section 77-14-2, with the court limiting alibi testimony to non-extrinsic evidence.
- The court and jury ultimately convicted Gallup; on appeal, the Utah Court of Appeals reverses and remands for a new trial due to evidentiary errors regarding silence evidence and alibi procedures.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Gallup’s silence as evidence | Gallup argues silence was pre-arrest, protected by Fifth Amendment, and not admissible in the State’s case-in-chief | State asserts silence is admissible under hearsay/impeachment principles | Admission was error; Fifth Amendment violated; remand for new trial |
| Alibi testimony notice and scope | Gallup argues statute 77-14-2 allows alibi testimony even without strict notice | State argues notice requirements limit alibi evidence | Statute’s language allows defendant to testify about alibi despite notice; court erred in restricting alibi evidence; reversal warranted |
Key Cases Cited
- State v. Palmer, 860 P.2d 339 (Utah Ct.App.1993) (pre-arrest silence used against defendant; Fifth Amendment concerns in noncustodial context)
- State v. Travis, 541 P.2d 797 (Utah 1975) (limitations on admissibility of affidavits where Fifth Amendment rights at stake)
- Jenkins v. Anderson, 447 U.S. 231 (1980) (pre-arrest silence as impeachment; caution against using silence as substantive guilt evidence)
- State v. Leach, 2004-Ohio-2147 (Ohio 2004) (pre-arrest silence as potentially undermining fair trial when used as guilt evidence)
- Berghuis v. Thompkins, -- U.S. -- (2010) (requires unequivocal invocation to end custodial interrogation; applicability to pre-arrest context discussed)