State v. Pham, 359 P.3d 1284

Background

Pham, Semisi Maama, and Mesia Maama were involved in an incident in a restaurant parking lot in which a man and his son were robbed and assaulted; Pham and Semisi were charged with aggravated robbery, aggravated assault, and riot.
Pham moved pretrial to sever his trial from Semisi’s, arguing that Semisi’s out-of-court statements (and the Confrontation Clause implications per Bruton) would prejudice Pham if Semisi did not testify.
The State agreed to redact certain statements and represented it would not introduce statements directly implicating Pham; the court took the severance request under advisement and later denied severance before trial.
At trial both Pham and Semisi testified; Semisi’s testimony described seeing Pham with a gun but denied knowledge of a robbery at the time and claimed prior police interview ‘‘put words in his mouth.’’ Pham’s counsel waived cross-examination of Semisi.
Pham did not renew a severance motion or move for a mistrial on grounds of antagonistic defenses at trial; the jury convicted Pham on all counts.
On appeal Pham argued the trial court abused its discretion by denying severance; the court held Pham had preserved only his Confrontation-Clause-based severance claim (which was abandoned when Semisi testified) and failed to preserve a claim based on antagonistic or mutually exclusive defenses.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred in denying severance based on Confrontation Clause concerns (Bruton)	State: redactions and limiting evidence avoid Bruton problems; no need to sever	Pham: admission of co-defendant statements would violate his confrontation rights if Semisi did not testify	Denied as moot/abandoned: Semisi testified, so Pham had opportunity to cross-examine and Confrontation claim was abandoned
Whether severance was required because co-defendant’s testimony created antagonistic or mutually exclusive defenses	State: joint trial was proper; blame-shifting alone insufficient for severance	Pham: joint trial prejudiced him because Semisi’s testimony conflicted with Pham’s defense and impeded Pham’s defense	Not reached on merits: Pham failed to preserve this argument at trial or in pretrial motions, so appeal is foreclosed
Whether the trial court committed plain error by denying severance for antagonistic defenses	State: plain-error argument was not raised below or in opening brief	Pham: (argued at oral argument) court plainly erred in not severing based on antagonistic defenses	Not considered: plain-error was not raised in opening brief, so appellate review declined
Whether counsel’s waiver of cross-examination or failure to renew severance/move for mistrial affected preservation	State: counsel’s choices waived Confrontation issue and failed to preserve antagonism claim	Pham: contends prejudice from antagonistic testimony and counsel conduct	Court treated counsel’s waiver as abandonment of preserved Confrontation claim and recognized failure to preserve new antagonism claim

Key Cases Cited

Bruton v. United States, 391 U.S. 123 (1968) (non-testifying co-defendant’s confession that implicates defendant can violate Confrontation Clause)
State v. Lee, 128 P.3d 1179 (Utah 2006) (appellate factual recitation standard on criminal verdicts)
State v. Velarde, 734 P.2d 440 (Utah 1987) (defendants must show defenses are irreconcilable to require severance)
State v. Holgate, 10 P.3d 346 (Utah 2000) (generally declines to address unpreserved issues on appeal)
Oseguera v. State, 332 P.3d 963 (Utah 2014) (plain-error and exceptional-circumstance review standards)
Patterson v. Patterson, 266 P.3d 828 (Utah 2011) (preservation requires presenting issue to district court for ruling)
State v. Weaver, 122 P.3d 566 (Utah 2005) (opening brief must raise justification for appellate review of issues not raised below)
State v. O’Brien, 721 P.2d 896 (Utah 1986) (casting blame on co-defendant alone insufficient for severance)
State v. Telford, 940 P.2d 522 (Utah Ct. App. 1997) (defenses are mutually exclusive when jury must reject one to accept the other)