*1 (a) knowledge of the in- such until connected with injury was caused an likelihood that operator presence person of of a and the the owner or tentional act of Likewise, injured. seriously knowledge pres- he would be railroad with of provides that specifically this case the statute person; and ence of moving not act of the train is the intentional (b)(i) under which the circumstances operator or other em- actionable unless that a injury occurred were such person present oper- and ployees knew a person would believe that of reasonable knowing that such movement ated the train probably injury would result serious injure person. probably seriously would operator the act the owner or from railroad; or us, train crew did In the case before (ii) Lopez rail- operator presence or know the or the owner not person a wanton and reckless moved the train and road acted with other when reasonably disregard probable result of his believed therefore could have moving probably train seri- act. would injure may ously him. While the Railroad (emphasis §Ann. 56-1-18.5 add- Utah Code negligent, statute does not have been ed). perfectly clear that a The statute makes recovery negligence in the case allow for for authority person on or about a train without person. an unauthorized It allows recov- injured cannot recover unless he can who is only ery person where the railroad to such a prove presence of his that the railroad knew presence knows that mov- knows of his and, regardless knowledge, operated of that seriously injure probably ing the train would knowledge that ser- the train with reasonable him. injury probably result to that ious would person. majority’s reversing and The reason for However, remanding I this case is flawed. majority completely disre- remand, but for likewise would reverse and gards requirements of the statute the clear question that there is a of fact as the reason moving and states that the mere act of per- Lopez was an unauthorized to whether train is an intentional act under statute may may implied son. He not have had liability imposes act on the Railroad and such train, authority through the to cross regardless knowledge of tres- of lack of thus, I would remand this case determi- majority knowing passer. The states that Lopez implied nation of authori- whether prior experience possibility, due to ty to cut across the area of the and/or trespassers, persons that unauthorized and, place question if train at the time and liability. present impose is sufficient to so, duty Railroad breached its whether the majority’s position that the act of mov- mere him. ing contemplat- the train is an intentional act disingenuous. act of ed the statute is
driving a car an intentional act but does
not become actionable unless the driver
negligent, and not become actionable as does an intentional tort unless the driver knows of Utah, Appellee, Plaintiff STATE of intentionally presence person of a knowing po- into him
drives the vehicle Likewise, in- injury. tential serious Miguel Francisco ALONZO and Alonzo- shooting gun act of does not tentional Nolasco, Appellants. Defendants and impose liability upon for an in- the shooter No. 960048-CA. tentional tort unless the shooter knew the injure Appeals and intended to victim Court Utah. negli- him. The shooter be liable for Jan. gence shooting where he into area knew, known, people should
possibly present, but intentional act shooting actionable as does become *3 Ralph Shapiro Dellapia-
Steven G. and W. na, City, Appellants. Salt Lake for Castle, Cy City, Appellee. H. Salt Lake WILKINS, Before and BENCH JACKSON, JJ.
OPINION JACKSON, Judge: Miguel Defendants Francisco Alonzo and appeal Alonzo-Nolasco their convictions officer, assaulting police A class mis- demeanor, in violation of Utah Code Ann. (1995). § Miguel 76-5-102.4 Alonzo-Nolasco appeals interfering his conviction for arrest, misdemeanor, with an B a class § violation of Utah Code Ann. 76-8-305 affirm. We
FACTS
verdict,
appeal
On
from a
we recite
light
the facts from the record
most
Verde,
favorable to the verdict. State v.
116,117
23, 1995,
evening
July
On the
Francisco
visiting
Miguel
Alonzo was
his brother
Alon-
apartment Miguel
zo-Nolasco at the
shared
Miguel
with their cousin. Francisco and
left
apartment
buy
wine coolers. When
returned,
they
gone
their cousin was
and
they
apartment.
were locked out of the
They
times,
loudly
knocked
several
and then
hallway
apart-
sat down in the
outside the
ment to wait for their
to return
cousin
key.
Francisco testified at trial that he
coolers,
eventually they
drank two wine
asleep.
both fell
Responding
people
to a call that two
had
“passed
hallway
apartment
out” in the
of an
building,
City
Salt Lake
Police Officer John
hands,
scene,
grab
but was
by
ed to
Francisco’s
unable
on the
followed
Lundgren arrived
Both
ac-
do so.
then struck Francis-
Bills.
officers were
Officer Webb
Officer Shauna
instructing
companied
cage,
civilians—Officer
co in the rib
while
him to
Adams,
a mem-
accompanied
stop resisting
put
Judith
his hands behind his
group, and
Bills
Officer
put
ber of a citizen watch
his hands
back. When Francisco
behind
back,
accompanied
volunteer with
him.
handcuffed
Other
officers
time,
department.
they
officers
arrived
police van
helped take
to a
wait-
trial,
hall-
At
the officers testified that the
ing outside.
alcohol,
way
smelled of
and defendants
empty
two or
first removed
more
placed Francisco
The officers
van
near defendants before
wine cooler bottles
They had
without further incident.
difficul-
them. The officers
attempting to awaken
however,
ty,
Miguel
in the
*4
placing
van.
Lake
then announced
Salt
Miguel
they took him
struggled,
When
from
City
yelled several times for de-
police and
ground.
placed
the van and
him on the
One
up.
to wake
When
defendants
fendants
at
officer
at trial that
was
testified
awake,
to
did
the officers turned
other
Miguel’s face
point
saw that
was
he
Bills
to wake defendants. Officer
methods
bleeding, and that he had assumed that Mi-
quickly by shaking
Miguel
was able to wake
injured by hitting something
guel had been
placed handcuffs on his
leg;
his
she then
took him
hard either when the officers
out of
difficulty
Lundgren had more
wrists. Officer
van,
they placed
him on
when
Lundgren first
waking Francisco. Officer
However,
ground.
Adams
Judith
testified
by applying
Francisco
attempted to wake
attempting
place
to
that as the officers were
fin-
pressure
Francisco’s ear with his
behind
van,
Miguel
Miguel
was kicked in
failed,
Lundgren
ger.
Officer
When this
by his
face
brother.
vigorously
a
Francisco’s chest
with
rubbed
presented a different version
awoke,
strug-
Francisco
he
flashlight. When
the officers
happened
of what
when
arrived
Lundgren,
gled
grabbing the
Officer
with
Francisco
at
and awakened them.
testified
shirt, kicking,
attempting
to bite
officer’s
thing
saw when
trial that
the first
he
attempted
Lundgren
him.
to hand-
Officer
was
his brother’s face.
awoke
blood on
Francisco,
grab
cuff
was unable
both
but
to
to
Francisco
that he tried
use his
testified
Lundgren
hands. Officer
then
Francisco’s
him from
body
Miguel
protect
to cover
to
began
to strike Francisco
the midsection
blows,
pulled
he was
back
fist,
officers’
but that
telling
to give
with
Francisco
him his
hair.
that he was
He testified
himself
struggle,
rolled
hands.
In this
Francisco
punched repeatedly,
kicked and
and that he
over
his stomach.
onto
protect
to
turned over on his stomach
himself
Bills heard Francisco and
When Officer
from the
He also testified
he did
blows.
Lundgren struggling,
Miguel
she left
Officer
any of
attempt
gun
from
to take
Lundgren.
and went to aid Officer
Officer
so,
officers,
trying to do
or did not remember
legs,
Bills
on Francisco’s
and Francisco
sat
and that he
not attack his brother. Mi-
kicking
Miguel
her in the back.
started
struck in the
guel also testified that he was
closer to the officers and started
moved
maced,
brother were
nose before he and his
them, hitting them in
face.
kicking at
hallway
apartment
while still in the
Adams,
standing nearby in
Judith
who was
building.
stairway,
told the
that Fran-
then
officers
grab
attempting
cisco
Officer Bills’s
county
being transported to the
Before
gun.
pepper
took out his
Officer
were,
jail,
treated
ambulance
defendants
spray
backup.
called for
He then
resulting
being
from
personnel
injuries
sprayed
pep-
face
Francisco
with the
Miguel
taken
maced in
the face.
per
go
gun,
spray. Francisco let
but
hospital
for a broken nose
be treated
struggle.
still continued to
Miguel
jail.
also had
before he was taken to
face,
arrived,
rug
both defendants
Jeffrey
burns on his
Webb then
re-
Officer
backup.
attempt-
had numerous bruises.
sponding
the call for
He
1, 1995,
(Utah),
Neeley,
November
On
found both
State v.
ISSUES court stated under the Utah Code of appeal, argue On Conduct, “a Judicial should recuse (1) by: committed reversible error fail- ‘impartiality’ might himself when his reason- ing making to recuse himself after biased ably questioned.” Id. at 1094. (2) regarding guilt; statements judge’s. a trial failure to observe this stan- commenting favorably prosecution’s on the necessarily dard “does not mean that (3) evidence; excluding character evidence of trial,” defendant is entitled to a new (4) officers; excluding testimony one of the parameters “[t]he of defendants’ constitution- good one of the defendants as to his rights al to a fair trial are defined [Rule (5) character; restricting defense counsel’s 29 of the Utah Rules of Criminal Procedure] (6) closing argument; refusing give law, and relevant case not the Code of Judi- requested by self-defense instruction as de- Thus, cial Conduct.” Id. while recommend- fense counsel. Defendants also ing that a recuse himself or herself *5 they were denied a fair trial under the cumu- “where is a there colorable claim of bias or lative error doctrine. prejudice,” Neeley court held that “ab- showing a sent of actual bias or an abuse of ANALYSIS discretion, failure to recuse does not consti- Judge I. long require- Recusal of Trial tute reversible error as as the [Rule ments of are met.” 29] Id. at 1094-95. judge, Defendants first the trial Judge Johnson, S. Mark committed revers- provides part: Rule 29 by failing ible error to recuse himself after (e) prosecution If the or a defendant making regarding biased statements defen- any proceeding criminal action or files that, guilt. dants’ during Defendants assert judge affidavit that the before whom the jury process, judge selection the trial proceeding action or is to be tried or heard presence made comments in chambers prejudice, against has a bias or either parties of counsel for both that showed actual party attorney or his or in favor of allege judge bias. Defendants stated opposing party suit, judge shall that defense counsel should have their clients proceed no challenge further until the right by jury, waive their to a trial and that disposed of.... guilty he would then find the defendants (d) If challenged judge questions they could end the matter. Defendants fur- sufficiency allegation disqualifica- of the allege judge suggested ther that the trial he tion, he shall directing enter an order everyone knew knew that defendants were copy a be forthwith certified to another guilty, and that he stated that he was a judge ..., named of the same court which prosecutor former and was thus aware of judge shall pass upon legal then suffi- things how these went. ciency allegations.... judge of the If the alleged made, After these comments were to whom the affidavit is certified does not defense counsel filed a motion for the trial sufficient, legally find the affidavit to be judge to recuse himself and submitted affida- finding shall enter a to that effect and the detailing vits their versions of the trial challenged judge proceed shall with the judge comments. The trial referred proceeding. case or Judge affidavits Third Circuit Court (d). 29(c), Utah R.Crim. P. Palmer, Phillip that, who found based on the affidavits, there was “not sufficient judge cause to In this the trial followed disqualify Judge pre- procedure S. Mark Johnson from by certifying of Rule 29 siding over a alleging trial of the judge defendant^].” affidavits bias to another for a
6H or herself on the judge an order to recuse himself based The entered ruling. second examining grounds be rever- appearance the memoran- of bias stating support the motion is shown. sal if actual See State dum and affidavits (Utah Gardner, 1989), judge, judge 273, disqualify the second the trial disqualify the not find cause to 110 S.Ct. sufficient 494 U.S. Gardner, judge re- judge. therefore trial The second defen- L.Ed.2d 965 judge. trial allege part ferred case back actual bias on the dant did case, as judge proceeded with the trial then judge, argued judge the trial but trial required 29. Because the Rule himself on the should have recused based defen- requirements Rule followed agreed The court appearance bias. first must bias or an abuse dants show actual a should recuse himself or herself supreme prevail under discretion to impartiality might his or her reason- where Neeley. Neeley, 748 P.2d holding in ably questioned. Id. the court at 1094-95. “[fjailure stated have, she] [or recuse even where he should judge’s com- argue the trial possible on the appearance based bias bias, that, conse- constitute actual ments prejudice, require does not reversal unless requires recuse himself quently, failure to rights party affect- the ‘substantial are dispute does not reversal. The State 30). (quoting Id. R.Crim. P. ed.’”1 some comment indicat- the trial made by stating that the test continued right ing that should waive their determining whether substantial trial, argue that said to a but it was affected, party rights of the or whether joking expression tone not an and was error, is ‘“there there is harmless whether against actual bias defendants. likelihood of more favor- reasonable language We no record actual (quoting result for the defendant.’ able judge, parties differ used Hutchison, *6 of the of the explanation in their context 1982)). that, The court concluded because interpretation in their judge’s comments and any prej- not show “actual the defendant did Further, a of the of the comments. review udice,” any failing judge error of the trial any instances record does not reveal other himself was harmless. to recuse supporting claim of actual bias. defendants’ circumstances, there Under these where Here, although we do find the comments, judge’s no record where finding of support a affidavits sufficient to differing parties offer accounts comments, bias, find that the actual we do comments, no judge’s there is where by the given interpretation urged even claim of support evidence the record a State, The appearance of bias. created an bias, alleg- actual we conclude affidavits suggested he had judge’s trial comments ing support insufficient defen- bias are opinion guilt an as to defendants’ formed Thus, claim actual bias. because dants’ began. even even before trial not demonstrated actual defendants have the trial if this court were to conclude that bias, complied judge the trial because himself, on based judge should have recused 29, no Rule conclude that there was we bias, appearance judge’s trial reversible error based any resulting from shown actual himself. failure recuse him judge to the failure of the trial recuse Instead, conclude Notwithstanding self. we himself, there neverthe Neeley, judge recused was holding in that absent Court’s of a more favor showing no reasonable likelihood of actual bias or abuse of discretion less guilt Defendants’ require- is no error if the able result defendants. there reversible met, by jury, see supreme court or innocence was determined ments of Rule 29 are Ontiveros, 201, 204 failure suggested judge’s also State has Gardner, prejudice. 789 P.2d bias and court did not discuss whether Gardner 1090, 273, (Utah 1989), met, 494 U.S. requirements were did state of Rule 29 but (1990). alleging 110 S.Ct. L.Ed.2d that the submitted an affidavit defendant App.1992), and the prosecution’s question statements were expert to the witness chambers, made before trial confusing were was prosecutor and that the jury’s presence. therefore not made in “leading through change [the witness] on Further, above, as stated our hypothetical.” review the from the judge ex- record does not reveal pressed instances of actual prosecution’s some concern over the factors, any bias. Given these changing hypothetical, error use of the but also failing to recuse you himself based stated that “when hypo- first asked [the appearance on an of bias does not question], thought you warrant thetical I did an excel- reversal in this job, case. you proper lent thing, did the let’s put way, it that hypo- and included [in the Judge’s
II. Trial
Comments
thetical] all of the
excep-
elements with the
on the Evidence
one,
tion
possibly.”
argue
Defendants also
com-
The third instance arose when defense
favorably
mented
prosecution’s
on the
evi-
objected
hypothetical
counsel
dence,
prejudiced
and that these comments
being
prosecutor
couched
presen-
as a
trial,
right
to a fair
thus warrant-
tation of
hypothetical,
the evidence and not a
ing reversal.
hypothetical
and that
awas mischarac-
terization
the facts in
evidence. The
A court
not comment on the
“Well,
responded:
I don’t think it’s a mis-
weight of the evidence or the
merits
eharacterization of the facts in evidence.”
way
case in such a
as to indicate that the
positions
favors the claims or
of either
Defendants
portions
of these
party.
Larson,
See State v.
775 P.2d
statements
made
constituted
(Utah 1989);
Sanders,
419-20
State v.
27 improper
quality
comments on the
354, 362,
(1972).
Utah 2d
presented
evidence
prosecution.
“may
A court
not indicate to a
that However,
reviewing
the record and
evidence is
convincing.”
either weak or
viewing
context,
these comments in
we con-
Rosenbaum,,
159,160,449
State v.
22 Utah 2d
clude that the
improper,
comments were not
may,
A court
howev
but
merely explanations by
er, explain its reason for excluding or allow
judge for overruling
objec-
defense counsel’s
ing
Larson,
certain evidence. See
Additionally,
tions.
in response to defense
at 420.
objection
prosecution’s
counsel’s
pre-
hypothetical,
sentation of
sugges-
and the
point
to three instances
*7
hypothetical
tion that the
awas
correct char-
during
they argue
which
judge improper
the
acterization of the facts of the
the court
ly commented on evidence. These three in
immediately gave a curative instruction. See
stances occurred
prosecution
while the
was
Larson,
instruction,
The second instance occurred properly when the excluded allegedly evidence of the trial objection overruled an the violent character of one of the officers and
613
danger of undue
good
being
test as
whether the
Francisco’s
character.
of
evidence
value,
“outweighs”
probative
prejudice
the
trial court’s determi-
general, we review the
“substantially outweighs”
admissibility
under
and not whether it
of evidence
nation of the
Diaz,
probative
v.
859 the
value. Defendants also assert
standard. State
a correctness
(Utah
19,
applied
improperly
App.1993),
878 that
the test
P.2d
23
(Utah 1994).
because,
response
question
re-
of who
“[i]n
P.2d 1154
prejudiced by the
of
evi-
viewing
ruling on
admissi- was
admission
a trial court’s
403,
dence,
“runs to
bility
we will
stated
[R]ule
of evidence under
people
of
of this
court’s
the State Utah.
commu-
not reverse the trial
determination
nity.
prejudice.
v.
If it
unfair
who it
State
is
That’s
absent an abuse
discretion.”
1182,
prosecution.”
to. Runs to the
Troyer,
P.2d
1191
runs
“Thus,
court will not overturn a
judge properly
The State asserts that the
inad-
finding that
evidence was
403,
Rule
excluded the evidence under
403 unless it was ‘be-
[R]ule
missible under
involving
part because the incident
Officer
”
reasonability.’
(quot-
yond
limits
has
Lundgren
not show that he
a char-
does
(Utah
Dunn,
1201,1221
ing State v.
850 P.2d
trait for
force. The State
acter
excessive
Featherson,
1993));
see also State v.
police department’s
sustain-
asserts
1989)
(Utah
(“
424,
cognizant
‘[W]e
inappropriate
ing
complaint
use of
probative
appraisal
the rule that the
necessarily
spray does not
mean that
pepper
under
prejudicial value of evidence
In-
Lundgren used
force.
Officer
excessive
generally
to the
entrusted
[R]ule 403
only
stead,
argues
that this
means
State
and will
sound discretion
department policy
Lundgren
Officer
violated
appeal
er-
upset
absent manifest
using
spray. The
procedure
pepper
”
Maurer,
(quoting State v.
ror.’
supported
this is
the fact
notes that
State
1989))).
(Utah
although
inappropriate
claim
use
sustained,
pepper
spray
Officer
or
An
exclude
erroneous decision
inap-
exonerated of claim of
reversible
admit evidence does not constitute
propriate
arising
of force
from the same
use
harmful.
State
error unless the error is
See
argues that
cir-
also
incident. The State
Archuleta,
850 P.2d
“
prior
incident were unre-
cumstances of
1993).
‘if
An error
harmful
absent
ease,
had the
lated to
instant
an
likelihood of
error there is
reasonable
evidence,
necessity
court admitted the
outcome more favorable
defendant.’
explaining
the different circumstances
White,
(Utah App.
880 P.2d
undue de-
prior
would have caused
incident
1994)
Dunn,
1221);
at
(quoting
see
from its role
lay and distracted
Featherson,
at
In other
guilt
inno-
determining
case of
words,
reversal,
require
“[f]or
error to
defendants,
guilt
not the
cence of
must be
likelihood of a different outcome
Lundgren.
innocence Officer
sufficiently high to
confidence
undermine
Knight, 734 P.2d
the verdict.” State v.
Although the trial
*8
920
regarding his
any specific findings
provide
under Rule
argue the
court
of the evidence
first
exclusion
asserting
that
out
excluding
beyond
the
evidence that Officer
erred
value, “we will ‘affirm
Lundgren
weighed
probative
de-
the
police
had been found
the
in the record
department policy if we can find some basis
partment to have violated
falls
prior
concluding
the trial court’s action
pepper
in a
incident.
that
spray
in his use of
permissible
of
discretion
prior within the limits
Defendants assert that evidence of this
Auble,
P.2d
754
[R]ule
under
Rules of under
403.’ State
incident was admissible
Utah
1988)
(citation omitted).
405(b),
Fur
and
and that the trial
Evidence 404
ther,
properly
court
we can find the trial
improperly
Rule 403 to exclude
court
used
addition,
making
its decision even
applied
assert
Rule 403
the evidence.
defendants
use the exact
though the trial court did not
wrong
that the
the
standard
used
Troyer,
language
Rule 403.
of
See
under Rule 403 because he referred
cases,
(finding
specifically
employed
at 1191
trial court
Rule
relevant in assault
rel-
making
though
403 in
its
it
decision even
evant in this case to the issues of whether
specifically
analysis
term its
“a Rule 408
the
used
force
whether
excessive
analysis”); see
Hall
v. Process Instru-
aggressors.
or not
defendants were
Control, Inc.,
&
ments
404(a) of
Rule
the Utah Rules of Evidence
(Utah 1995)
exact
(stating
language or termi-
specifically permits an accused
“[e]vi-
to offer
nology is not conclusive as to whether trial
pertinent
trait of
[or
dence of
his
her]
employed
analysis).
court
correct
purpose
“proving
for the
of
that
character”
case,
In this
defendants have not
conformity
she]
acted in
[or
therewith
shown that the trial
of
exclusion
particular
occasion.” The Utah
beyond
was
evidence
limits of reasonabil Court has likewise
that
of
“[e]vidence
held
ity.
example,
light
For
State’s
good
may
[the defendant’s]
character
be con-
arguments
pri-
the circumstances
jury
sidered
for whatever value or
present
or incident were different from the
persuasiveness they think it should have as
case,
given
that Officer
was
bearing generally upon
propensity
inappropriate
exonerated from a claim of
use
to commit
defendant
crime and the likelihood
incident,
arising
of force
from
same
having
particu-
of his [or her]
committed the
reasonably
trial court could
have determined
Ervin, 22
charged.”
lar
crime
probative
evidence,
value
216, 219,
2d
purposes
indicating
propensi
the officer’s
Ervin,
the court further stated that such
force,
ty
substantially
to use excessive
character evidence “ n
admissible, regard-
outweighed
tendency
of the evidence
less of
decisive or
indecisive character of
mislead
confuse the issues.2
testimony;
the other
and it is within the
We therefore determine that the trial court’s province
give
weight,
such
exclusion
the evidence on Rule 403
evidence,
view of all the other
as it
grounds was not an abuse of discretion.
(citation
entitled
receive.’”
Id. at
determine,
omitted).
if
Even
this court were to
how-
suggested
The court also
ever,
excluding
erred in
violence,
charged
where the crime
involves
character,
evidence
the officer’s
defen-
defendant should be allowed to
must
dants
still establish that this error was
being peaceable
evidence as to
law
abid-
require
harmful to
reversal. Defendants as-
ing. Id. In this
because Francisco was
rights
sert that their “substantial
were ad-
charged
assault,
with a crime of
we conclude
versely
affected”
the exclusion of the evi-
proffered testimony
was relevant.
dence because the excluded evidence would
Nevertheless,
though
even
the evi
supported
defendants’ claim reason-
relevant,
dence
Francisco
has
shown
able self
reviewing
defense.
striking
the trial
error in
contention,
we conclude that
testimony as to his character was harmful.
have not
established
there is
reason-
Defendants’ assertion that “the error in ex
able likelihood of a more
result for
favorable
cluding relevant character evidence affected
the defendants had the evidence been admit-
rights”
their substantial
is not sufficient to
ted.
establish that there is a reasonable likelihood
Defendant Francisco
also ar
Alonzo
of a more favorable result for
gues
judge improperly
refused to
testimony
Francisco’s
been allowed.
good
admit evidence of his
character when
response
struck Francisco’s
to de
Closing Argument
IV. Limitation of
question,
you
fense counsel’s
type
“Are
*9
person who
fight
closing argument,
would
In
start
defense counsel
police?”
argues
argued,
response
prosecution’s sug
Francisco
in
that evidence of
to the
peacefulness
gestion
he,
the accused’s character for
is
that defendants had reason to
that, given
2. We further note
our discussion be-
issue as to whether evidence of the officer's al-
supreme
holding
leged
prior
low of the
court's
in State v.
of excessive
on a
use
force
occasion
Gardiner,
(Utah 1991),
615
guilty, the
in this
to were found
officers
case
also had motivation
that the
officers
guilty
using
stated,
also
excessive force.
were
then
“You don't
counsel
he. Defense
Further, any suggestion by
trial court
Rodney King cops
you ask those
believe
jury could not
the officers’
that the
consider
pen
doing
in the Federal
what
time
that
court.
motivation to lie was corrected
somebody.
it’s like
it’s like
beat on
What
to
jury
clarified
consid-
The court
that the
could
somebody
jail
go
and then
to
on
to beat
—.”
arguments involving
er
defense counsel’s
objection,
to
defense counsel
response
an
Rodney
purpose of
King officers for the
using the
that the defense was
further stated
credibility
witnesses,
weighing
if
“the
propo-
to
Rodney King incident
illustrate
way.”
they
to
it in that
want
examine
“police
violate the
that
officers who
sition
jail
go to
for it”
rights of
can
civil
defendants
Jury
to
Instruction
V. Refusal Give
job[s]
The trial
“can lose their
for it.”
jury
argue
that
instructed the
“whether
Defendants also
that the trial
court then
jobs
give
pro-
improperly
or not
...
to
lose their
refused
officers
place
posed
jury
“A trial
has no
in
self-defense
instructions.
completely immaterial and
give
pres-
jury
argue the
court’s refusal to
instruction
your
Defendants
deliberations.”
law,
question
ents a
which we review for
in
coun-
preventing
court erred
defense
correctness,
particular
giving no
deference to
Rodney King offi-
referring to the
sel from
Quada,
P.2d
the trial court.” State v.
918
argument
possible
to
to make
as
cers
“
(Utah
give
App.1996).
‘Failure to
to
prosecution
witnesses
lie
motivation
jury
requested
instructions constitutes re-
argu-
instructing
jury
in
that such
only if their omission tends to
versible error
place
no
in their deliberations.3
ments had
jury
to
com-
mislead the
for both
have considerable
“Counsel
sides
insufficiently
erroneously
plaining party or
closing arguments. They
latitude in their
”
jury
advises the
on the law.’ Summerill
fully
their
right
to
discuss from
have the
(Utah
1042,1045
Shipley,
App.1995)
perspectives the evidence and all inferences
(citation omitted).
supports.”
v. Dibel
deductions it
State
(Utah 1989).
lo,
1221,1225
P.2d
Howev
Although
have the
defendants
er,
of this
pre
“counsel exceeds the bounds
dis
“theory of the
right to have their
case
if
she
cretion and commits error
he or
calls
jury
sented to
in clear and understand
jury’s
jury
Potter,
attention material that
way,”
able
State v.
justified
considering
1981),
would not
not err
does
“
reaching its verdict.” Id.
point
if
refusing
proposed
‘a
instruction
instruc
properly covered
the other
the trial court’s restrictions
tions,’
Hamilton,
“Rodney
to
defense
references
counsel’s
(Utah 1992) (citations omitted). Defendants
improper. Although
King” officers were not
to
that
are also not entitled
an instruction
closing
has
counsel
considerable latitude
accurately
applicable
state the
“does
could have reason-
arguments, the trial court
James,
law.” State v.
ably
that
counsel was ex-
concluded
defense
ceeding the bounds of this discretion when
argue
Rodney King
the trial court erred
officers.
Defendants
counsel referred
refusing
give
proposed
their
instruc-
that
The trial court could have determined
tions,
specifically to “self-de-
Rodney King
which referred
counsel’s references
defense
directly”
“prepared
attempt
sug-
fense” and which were
were an
inflame
§§
-402
Rodney King
Code Ann.
76-2-401 and
gest
officers
from Utah
that because
"Rodney
allegedly
the witness who had
shouted
trial court im-
suggested
King"
properly
no evidence existed
had not been
had not testified at trial and
Moreover,
"Rodney King"
person
at
in the crowd shouted
subjected to
even
cross-examination.
were arrested.
the time defendants
suggested
improperly
the trial court had
if
record,
reviewing
appears
shouted
there was no evidence
someone
dispute that there
been
trial court did not
"Rodney King,”
have not shown that
testimony that someone in the crowd had said
prejudiced
the court’s comment.
“Rodney King,"
but instead
concerned
*10
(1995).
Gardiner,
case,
Utah
In
in the
These sections
Code
as
justified
provide
charged
in
had
person
“[a]
that
is
threat-
defendant
been
under Utah
using
Code Section
section
ening
against
or
force
another when
76-5-102.4. This
states
“[a]ny person
peace
a
reasonably
to
that he or
that
who assaults
offi-
the extent
she
cer,
necessary
knowledge
[or she]
that force is
to defend
he
is a
believes
officer,
peace
against
peace
when the
person
or a third
officer is
[or herself]
himself
acting
scope
within
of his
author-
[or her]
such other’s imminent use of unlawful force.”
76-2-402(1).
officer,
ity
peace
guilty
§
as a
of a class A
Id.
§
misdemeanor.” Utah Code Ann.
76-5-
that, although
We first note
supreme
102.4
court determined
proposed jury
court did not allow defendants’
only
in
language
this section that
directly
instructions that were taken
from
provide
right
could
the defendant with a
to
Code,
these sections of the Utah
scope
resist arrest was the “within the
theory
presented
self-defense
the ease was
authority” language. The court then held
jury
jury
through
another
instruction.
language,
based on this
“[w]here the
Jury
you
Instruction No. 17
“If
stated:
find
acting wholly
officer is
scope
not
outside
in this case that the officers used excessive
authority,
police
of his or
may
her
action
arrests,
making
they
in
acting
force
then
are
Gardiner,
not be resisted.”
the Utah Code” was the law. Id. at 1010. This court noted judge’s The trial failure to recuse himself Gardiner, Supreme Court in the Utah reversal, require given does not that defen- ex- legislature that “the intended to found by the dants failed to show actual bias acting in course of peace clude officers prejudice not actual and have shown scope of these [statuto- their duties from judge’s resulting from the failure to recuse justification.” Id. at ry] upon defenses based appearance on an of bias. based This court therefore held that “the 1010. not in exclud- did abuse discretion justification statutory defenses found sec- officers, of one of ing character evidence to 406 of the do tions 76-2-401 Utah Code any nor have defendants shown apply resisting arrest.” Id. not claims from the trial exclusion resulting proposed defendants’ not Defendants have also this evidence. on sections 76-2-401 instructions were based resulting ex- any prejudice from the shown of the Utah Code. The instructions and -402 clusion character evidence one an inaccurate statement of were therefore not make The trial did defendants. Thus, Gardiner and the law under Smoot. evidence, did improper comments on the refusing trial court not err in restrict defense counsel’s improperly n the instructions.4 submit closing argument. also did refusing to submit defendants’ not err VI. Cumulative Error instructions, as proposed self-defense finally invoke cumu were an inaccurate state- the instructions doctrine, if arguing that lative error even Finally, cu- there was no ment the law. during the errors committed course requiring Ac- a new trial. mulative error individually, they were trial were harmless cordingly, jury convictions cumulatively harmful. the cumulative Under ,, affirmed. doctrine, only if this court “will reverse error ‘the cumulative effect of the several errors WILKINS, P.J., concurs. Associate ... a fair undermines our confidence BENCH, (dissenting): Judge Dunn, had.’” trial was (citation (Utah 1993) omitted). 1201,1229 There numer- respectfully I dissent. were As above, irregularities in this case. claimed a ous errors discussed defendants have Smoot, police finding City that the force used In Salt Lake excessive,” stated, the conclusion based on App.1996), "not this court further "We are not is [remaining] request- language of excessive force neces- persuaded that the use defendant's authority sarily scope of officer's an language ed correct statements of the law outside instructions are opin- in the opinion.” with other Id. at 1010. This consistent under Gardiner supreme general analysis. expressed concerning whether the ion with court doubt Gardiner, Thus, analysis of on this proposition for the based Gardiner decision “stands is, were entitled to not clear that defendants that the use of excessive force law, as matter authority.” indicating that entitled scope of an officer's instruction outside resisting although supreme use an arrest where force Id. We noted force. err officer used excessive that the trial court did not stated Gardiner *12 selection, During jury judge made ap- statements manifested at least the Wayne MILLER, Matthew Petitioner (and bias)
pearance perhaps of bias actual Appellant, suggested he when waive v. trial, guilty. find and would them At Utah, al.; STATE of et Utah Board of commented the evidence. The Pardons; Sibbett, al.; Michael R. et relating excluded evidence to the vio- Department Corrections; Utah Scott lent character Officer and the Carver; Smith, al., and James N. et Re- peaceful character of one the defendants. spondents Appellees. closing argument, limited de- Rodney King case,1 fense references No. 940718-CA. involving police the notorious California case Appeals Court of of Utah. brutality, prosecution brought up. did not allow defendant’s Jan. 1997. proposed jury defense, instruction on self proposed when instruction taken di-
rectly from the Utah Code as it was inter-
preted
Court in State
Gardiner,
rors were but concludes separate- harmless. When considered
ly, irregularities errors and not re-
quire together, reversal. When considered
however, they persuasively demonstrate that
these defendants were denied a fair trial.
See Whitehead American Motors Sales (Utah 1990) (“While
Corp., 801 P.2d
no one error perhaps itself mandates re-
versal, the cumulative effect of the several
errors undermines our confidence that defen-
dants were able to their
theory of the case and that a fair trial was
had.”).
I believe there is a substantial likelihood of
a different outcome had the errors
case been made. Jacques, See State v. App.1996). I would
therefore reverse the convictions and remand
case
a new trial.
Koon,
-
-,
F.Supp.
See United
part,
States v.
reversed
U.S.
116 S.Ct.
(C.D.Cal.1993),
part
d
part,
vacated
off