STATE of Utah, Plaintiff and Appellee, v. Steven A. BELL, Defendant and Appellant.
No. 19785.
Supreme Court of Utah.
Sept. 30, 1988.
Rehearing Denied Nov. 25, 1988.
Defendant filed his notice of appeal on April 24, 1987, before his motion to review the sentence was heard. Thereafter, on May 11, 1987, the court sua sponte “denied” said motion for the stated reason that the court had been deprived of jurisdiction by virtue of defendant‘s having filed a notice of appeal to this Court.
Neither party has briefed the issue as to what effect the filing of the motion to review the sentence had upon the finality of the judgment or whether the filing of the notice of appeal in fact deprived the trial court of further jurisdiction. For purposes of this case, we therefore assume, without deciding, that the trial court correctly concluded that it was deprived of jurisdiction by virtue of the notice of appeal that was filed on April 24, 1987. As such, it was without jurisdiction to rule on defendant‘s motion to review sentence, and the same is still pending.
In light of the particular procedural circumstances of this case, we remand for the purpose of permitting the trial court to duly consider defendant‘s motion to review sentence in light of the psychological evaluation attached thereto.
HOWE, Associate C.J., and DURHAM and ZIMMERMAN, JJ., concur.
STEWART, J., concurs in the result.
David L. Wilkinson, Paul M. Warner, David J. Schwendiman, Salt Lake City, for plaintiff and appellee.
ZIMMERMAN, Justice:
Steven Bell appeals from a conviction of racketeering by means of drug trafficking. Bell asserts that he was not given sufficiently detailed notice of the charges against him to enable him to prepare a defense. We agree and therefore reverse the conviction and remand for a new trial. We also address several issues which may arise in a subsequent trial.
During 1982 and 1983, Weber County authorities conducted a broad investigation of cocaine trafficking allegedly perpetrated by Molly Kingston and a number of individuals associated with her, including Steven Bell. There was evidence that Bell, who owned a convenience store, trafficked in cocaine on the store premises and deposited drug receipts in the store bank accounts.
A grand jury indicted Bell on racketeering charges pursuant to Utah‘s “RICE” or “Little RICO” statute,
Bell was tried before a jury, found guilty of racketeering, and sentеnced to one to fifteen years’ imprisonment. In a subsequent forfeiture proceeding, for which a jury was waived, the trial judge found that Bell had used his convenience store as a “vehicle of sale” of the cocaine and had invested proceeds of the cocaine dealing in the store. Pursuant to
Bell raises a plethora of claims. Because of the disposition we make of his appeal, we address only a few of them. Determinative of Bell‘s appeal is his claim that he was given insufficient notice of the particulars of the charges against him.
The indictment against Bell consisted of a verbatim reprinting of the RICE statute and a simple allegation that Bell had violated the statute sometime between Septеmber 1982 and June 1983. Bell complained that the indictment was too vague and requested a bill of particulars. The State initially refused to provide a bill. Bell obtained a court order requiring one, and after much delay, the State provided a bill which Bell then challenged as also being too vague to give him adequate notice of
On appeal, Bell argues that the indictment alone was too vague to give him adequate notice of the charges, that the State‘s response to his request for a bill of particulars was wholly inadequate, and that the trial court erred in not sustaining his objections on that ground and in refusing to grant a new trial. More specifically, Bell contends that the notice he received was inadequate to inform him of the State‘s factual allegations as to what constituted an “enterprise” within the meaning of the RICE statute. Because the existence of an “enterprise” is an essential element of RICE crimes,2 Bell argues that the inadequate notice given on this point prejudiced his ability to prepare a defense, thus denying him the right to notice guaranteed by the Utah Constitution3 and by
The State argues that Bell was put on notice of the factual basis for the enterprise allegations by various documents, other than the indictment and the bill of particulars, and by information presented during various pretrial hearings.
Fulton also explained that this constitutional right to notice is normally implemented through
Applying these standards to the present case, the first question is whether the indictment was itself detailed enough to give Bell sufficient notice of the charges. The indictment merely repeated verbatim the broad, vague language of the RICE statute without describing any facts or circumstances constituting the crime charged other than a statement that the crime had been committed during a ten-month period.9 This indictment met the minimal stan-
The next question is whether Bell exercised his right to seek more particular notice by requesting a bill of particulars under rule 4(e) and, thus, preserved his claim of error. Bell did submit a timely request that the State provide a bill of particulars describing the factual basis for the element of racketeering activity and specifically explaining “what enterprise is alleged as being involved.” Therefore, under rule 4(e), the State had the burden of providing an adequate bill of particulars.
The final question is whether the State met that burden. The answer is that it did not. At first, the State ignored Bell‘s request. Bell then secured a court order directing that the bill be provided. The State delayed further, but ultimately provided this brief response:
- Specific activities of racketeering include those listed in the wiretap and those provided in the transcripts of the Grand Jury.
- As to a statement of what consitutites [sic] a racketeering activity, this calls for a legal conclusion and is beyond factual information necessary to set forth an essential elements [sic] of the offense charged. Defendant should clearly realize this.
- Enterprise consists of the trafficing [sic] in controlled substances and investing the proceeds.
Before this Court, Bell focuses his argument on the enterprise element ad-
The record shows that at trial, the State presented three theories as to who or what factually constituted the enterprise: Bell as an individual, the group of persons associated with Molly Kingston, or Bell‘s convenience store. By no stretch of the imagination could the single enigmatic sentence in paragraph 3 of the State‘s reply to Bell‘s request be construed as containing sufficient factual information to describe the State‘s actual theories of this essential element of the crime, much less to permit Bell to prepare his defense on this element.11 Although Bell persistently objected to the inadequacy of the bill of particulars, the State refused to amend or supplement the bill as it would have been permitted to do under rule 4(e). The State failed to meet the burden of notice imposed on it by rule 4(e), and thе trial court‘s failure to enforce this requirement was clearly error under the plain language of rule 4(e), as well as the standards described in Fulton.
The next question is whether this error was harmless or prejudicial. Because the error was in violation of a rule of criminal procedure, its harmfulness is analyzed under the standard provided by
Ordinarily, the practical effect of the standard imposed by rule 30 is to place on the accused the burden of persuading this Court that, in light of all the circumstances revealed through the record as a whole, there is a reasonable likelihood that the trial result would have been more favorable absent the error. See Knight, 734 P.2d at 919-21; State v. Jones, 657 P.2d 1263, 1267 (Utah 1982); State v. Hamilton, 18 Utah 2d 234, 239, 419 P.2d 770, 773 (1966). However, as we stated in Knight, in some circumstances the nature of the error involved is such that this de facto burden should be shifted and the State required to persuade us that the error was harmless. 734 P.2d at 920-21. In Knight, the prosecution violated the rules of discovery by failing to provide the accused with certain evidence prior to trial. We first found that because of the nature of the error, it was difficult for this Court to determine from the record whether Knight might have been able to prepare a better defense and achieve a more favorable result at trial if the prosecution had not breached its discovery obligations. Id. at 920. We then held that under such circumstances, if the accused could make a credible argument that the prosecutor‘s errors impaired the defense, it would be appropriate “to place the burden on the State to persuade a court that the error did not unfairly prejudice the defense.” Id. at 920-21.
We are faced with analogous circumstances in this case. First, as in Knight, the record “cannot reveal how [adequate notice of the charges] would have affected the actions of defense counsel, either in preparing for trial or in presenting the case to the jury.” Id. at 920. Second, Bell has met the requirement of making “a credible argument that the prosecutor‘s errors have impaired the defense.” Id. at 921.
In Knight, we noted that in assessing whether the defendant‘s argument of prejudicial impairment rang sufficiently true to warrant shifting the burden of persuasion to the State, we would take into account the centrality of the matter affected by the prosecutor‘s errors. Id. In this case, the error involved an essential element of the crime charged. Clearly Bell‘s defense to the State‘s case on the element of an enterprise was central to the outcome, and therefore, the error “assumes heightened importance when evaluating whether the
Under Knight, then, we place on the State the burden of persuading us that the error was harmless under the standard of rule 30. The State makes only one argument in attempting to meet this burden. It argues that Bell was not prejudiced because he was effectively put on notice of the State‘s various theories of what constituted thе element of an enterprise through the course of certain pretrial proceedings. The State refers to a complaint filed in a separate proceeding seeking forfeiture of Bell‘s convenience store,13 to an in-court discussion at a hearing on that forfeiture complaint, and to materials provided to Bell through pretrial discovery, including transcripts of grand jury witnesses’ testimony and transcripts of telephone conversations recorded pursuant to a wiretap order. The State argues that through reading the indictment and bill of particulars in the context of these other sources of information, Bell must have gotten adequate notice of the charges.
This argument fails. Our review of the record leaves us unconvinced that Bell did in fact receive adequate notice through these convoluted means. None of the sources pointed to by the State explicitly laid out the three enterprise theories later presented at trial. Nor do we think that the three allegations are necessarily implicit in these sources of information, even when they are taken as a whole. Thus, the State has failed to meet its burden.
Also, we think it important to clarify that we reject the implication of the State‘s argument: that the State, having failed to provide even a minimally adequate bill of particulars despite persistent requests from Bell, can excuse that failure under the guise of harmless error by claiming that Bell had pretrial access to a mass of various items of information from which, one can conclude in hindsight, Bell could have gleaned the State‘s theories for the essential elements of the crimes charged. For this Court to accept such an argument would not only vitiate the specific requirements of rule 4(e), it would negate the accused‘s constitutional right, implemented by rule 4(e), to “have a copy” of a document setting out in clear terms “the nature and cause of the accusation.”
The State has not met its Knight burden of persuading this Court that the failure to provide an adequate bill of particulars did not unfairly prejudice Bell‘s ability to prepare and present a defense. Therefore, we reverse Bell‘s conviction and remand for a new trial with instructions that Bell be given an adequate bill of particulars.14
Bell has also appealed from the order forfeiting his interest in the convenience store. He claims numerous errors
Bell has raised a large number of other claims of error with regard to the pretrial and trial proceedings, some of which are plainly frivolous. Given our reversal of the conviction and remand for retrial, we need not sort what is arguably wheat from chaff in all of those thirty-five claims. However, some of the issues are likely to recur in a new trial and are of arguable merit, and in the interest of judicial economy, we will briefly address them to provide the trial court with some guidance. See State v. Cloud, 722 P.2d 750, 755 (Utah 1986).
Bell argues that the RICE statute violates the due process clause of the fourteenth amendment16 because it is so vague that it “fails to inform an ordinary citizen who is seeking to obey the laws as to the conduct sought to be proscribed,” State v. Bradshaw, 541 P.2d 800, 802 (Utah 1975). The Utah Court of Appeals recently considered a similar argument in State v. Thompson, 751 P.2d 805, 815 (Utah Ct.App.1988), and found that the RICE Act does not deny due process on this ground. Bell has presented no persuasive arguments for holding differently on the record now before us, and we decline to do so.17 We note that the federal RICO statutes after which RICE is patterned have been upheld against similar vagueness challenges. See, e.g., United States v. Tripp, 782 F.2d 38, 42 (6th Cir.), cert. denied, 475 U.S. 1128, 106 S.Ct. 1656, 90 L.Ed.2d 199 (1986), and cases cited therein.
We do, however, recognize that the RICE statute is broad in scope and is phrased in vague terms. As Bell has argued, this breadth and vagueness creates a related problem, thе difficulty of framing jury instructions based on the elements of the crime as they are defined by the statute. On remand, we caution the trial court to examine the instructions to ensure that they give the jury a more explicit understanding of the elements of the particular crime charged than is possible with instruc-
Bell also claims error in allowing the jury to render a general verdict rather than a special verdict or general verdict with interrogatories. Given our disposition of this appeal, we do not reach the claim of error. However, we note for future reference that the RICE statute lends itself to confusion, particularly in cases such as this, in which the State presents multiple theories as to what constitutes the enterprise, the pattern of racketeering activity, and the relationship between these elements. Appellate review of such cases would be greatly enhanced by a form of verdict which would allow the appellate court to determine on which of the various theories the jury based its decision.19 See
Next, Bell claims that he was wrongfully denied access to transcripts of testimony given before the grand jury. Bell obtained a court order compelling the State to produce transcripts of testimony pertaining to Bell. Before the trial, he was provided with transcripts of testimony given prior to the time he was indicted. The grand jury continued taking testimony after Bell‘s indictment because it was investigating other targets. Bell claims he was given only incomplete, and therefore inadequate, access to transcripts of some pertinent testimony given after his indictment. This, he contends, was in violation of the court order and prejudiced his ability to prepare a defense.20 The briefs of both parties and the record provided here are inadequate to enable us to determine whether the State failed to comply with the discovery order and whether any such failure constituted prejudicial error. Under these circumstances, we decline to do more than express a concern that Bell be given access to transcripts of testimony that he is entitled to under the discovery provisions of the Utah
Bell asserts that prosecutors wrongfully interfered with his obtaining the testimony of a witness, Sherrie Prince. Prince was charged along with other members of the “Molly Kingston organization” and was allowed to enter into a plea bargain. Bell claims that Prince would have provided exculpatory testimony for Bell but for the fact that prosecutors threatened to revoke the plea bargain if she did so. He contends that this was prosecutorial misconduct and violated his right to present a defense. As the State argues, there is some doubt as to whether Bell adequately raised the issue with the trial court. Given our disposition of this appeal, we need not rule on Bell‘s claim. However, we observe that if on retrial Bell seeks to call Prince as a witness and the State interferes in the manner that Bеll alleges has already occurred,21 such intimidation of a witness would constitute an intolerable interference with Bell‘s right to present witnesses for his defense. See, e.g., United States v. MacCloskey, 682 F.2d 468, 479 (4th Cir.1982); United States v. Henricksen, 564 F.2d 197, 198 (5th Cir. 1977).
Bell also makes two claims of error with respect to evidence admitted at his trial. First, he argues that certain hearsay evidence was conditionally admitted subject to being “tied up” but never was tied up. The police searched the homes of several suspects and seized various pieces of paper which, according to the State, are informal records of drug transactions. Some of the papers had the name “Steve” written on them. Bell objected to the introduction of those papers on various grounds, including a hearsay objection. The State argued that they were admissible under the hearsay rule exception for business records.
Second, Bell claims that the State was improperly allowed to introduce evidence of other crimes he may have committed but which were not charged. A few days prior to the trial, the State sought to amend the indictment to include additional incidences of drug trafficking. That motion was properly denied because of the likelihood of unfair surprise to Bell. At trial, however, the State‘s witnesses were allowed to testify about numerous sales and purchases of drugs made by Bell and employees at Bell‘s store which occurred before the period of time set out in the indiсtment. The court did give a limiting instruction concerning this evidence.
Bell argues that the prior illegal activities were irrelevant to the crimes actually charged and that the evidence should have been excluded under
We agree with Bell that this evidence has a high potential for prejudice. It is distinctly possible that this evidence influenced the jury to convict Bell without regard to the strength of the evidence on the crimes actually charged. On remand, we caution the trial court to admit the evidence of other crimes only after it has conducted a careful weighing of the probative value and potential prejudicial effect of the evidence and has found it admissible. See
Bell also argues that the limiting instruction given was inadequate to overcome the prejudicial effects of the other crimes evidence. The instruction was merely a general instruction that made no reference to specific evidence.23 We agree with Bell that under the circumstances, such a general instruction, given at the end of the trial, was unlikely to overcome any undue prejudice caused by admission of the evidence. On remand, if the trial court finds the evidence admissible under rules 404(b) and 403, we caution it to consider whether the prejudicial effects of the evidence might best be overcome by expressly limiting its admission so as to make plain the narrow purposes for which it may legitimately be considered.
Bell‘s remaining arguments have been considered and found either lacking in merit or likely to be obviated by the reversal and remand for retrial.
We reverse the conviction for violation of the RICE statute, vacate the forfeiture order, and remand with instructions that Bell be granted a new trial.
HALL, C.J., and DURHAM, J., concur.
HOWE, Associate C.J., concurs, but does not join in footnote 14.
STEWART, Justice: (concurring in part and dissenting in part).
I concur in the result and in the majority opinion, except for one point.
The Court states that in future cases trial courts should use special verdicts or general verdicts with interrogatories in RICE cases. I submit that that procedure, without a defendant‘s permission, would result in a fundamental change in the criminal law and would prejudice a defendant‘s right to trial by jury as it has historically existed. The Court‘s rationale for the new procedure is that “[a]ppellate review of such cases would be greatly enhanced by a form of verdict which would allow the appellate court to determine on which of the various theories the jury based its decision.” See
What is at stake is the principle that a defendant is entitled to a general verdict of guilty or not guilty in a criminal case. From time immemorial, general verdicts have been rendered in criminal cases and courts operating in the common law tradi-
Various considerations underlie the opposition to jury interrogatories in criminal cases. There is apprehension that eliciting “yes” or “no” answers to questions concerning the elements of an offense may propel a jury toward a logical conclusion of guilt, whereas a more generаlized assessment might have yielded an acquittal. The possibility also exists that fragmenting a single count into the various ways an offense may be committed affords a divided jury an opportunity to resolve its differences to the defendant‘s disadvantage by saying “yes” to some means and “no” to others, although unified consideration of the count might have produced an acquittal or at least a hung jury.... In general, those opposing interrogatories fear that any particularization of the jury‘s decisionmaking will risk interferences with the jury‘s romantic power of nullification, or as Learned Hand felicitously phrased it, “tempering [the law‘s] rigor by the mollifying influence of current ethical conventions.” United States ex rel. McCann v. Adams, 126 F.2d 774, 776 (2d Cir.), rev‘d on other grounds, 317 U.S. 269, 63 S.Ct. 236, 87 L.Ed. 268 (1942).
Id. at 927 (footnote omitted). Another authority has written:
“It is one of the most essential features of the right of trial by jury that no jury should be compelled to find any but a general verdict in criminal cases, and the removal of this safeguard would violate its design and destroy its spirit.”
United States v. Spock, 416 F.2d 165, 181 (1st Cir.1969) (quoting G. Clementson, Special Verdicts and Special Findings By Juries 49 (1905)). Other historical materials and analyses are referred to and discussed in United States v. Spock, 416 F.2d at 180-83.
Speaking of jury interrogatories and sрecial verdicts generally, Justices Black and Douglas wrote:
Such devices [i.e. special verdicts and jury interrogatories] are used to impair or wholly take away the power of a jury to render a general verdict. One of the ancient, fundamental reasons for having general jury verdicts was to preserve the right of trial by jury as an indispensable part of a free government. Many of the most famous constitutional controversies in England revolved around litigants’ insistence, particularly in seditious libel cases, that a jury had the right to render a general verdict without being compelled to return a number of subsidiary findings to support its general verdict. Some English jurors had to go to jail because they insisted upon their right to render general verdicts over the repeated commands of tyrannical judges not to do so. Rule 49 [of the Federal Rules of Civil Procedure] is but another means utilized by courts to weaken the constitutional power of juries and to vest judges with more power to decide cases according to their own judgments.
Statement of Mr. Justice Blaсk and Mr. Justice Douglas on the Rules of Civil Procedure and the Proposed Amendments, 31 F.R.D. 617, 618-19 (1963).
Although the Federal Rules of Civil Procedure adopted special verdicts and jury interrogatories in civil cases, and so have the Utah Rules of Civil Procedure, neither jurisdiction has adopted those devices in criminal cases, and I would not do so now in the manner proposed. I readily concede the difficulty in having to review a RICE conviction for sufficiency of the evidence
I would, however, agree that the reform proposed would be appropriate if the use of special verdicts and jury interrogatories was contingent upon the defendant‘s consent. That is, jury interrogatories and special verdicts may be used at the dеfendant‘s behest to enhance the accuracy of the fact finding process. The prosecution, of course, is not entitled to the same option since it does not have a constitutional right to a jury trial.
In United States v. Coonan, 839 F.2d 886 (2d Cir. 1988), the court approved the use of a special verdict in a criminal case, but only with the defendant‘s consent. The majority cites Coonan as authority for its position, but fails to note that the defendant‘s consent in Coonan was obtained before departure from the standard procedure of using a general verdict. Furthermore, the use of the special verdict in Coonan was to ensure the defendant of fair and accurate fact finding, not to assist an appellate court‘s review function.
Utah law does not support the majority‘s unsolicited innovation. State v. Lafferty, 749 P.2d 1239, 1260 & n. 16 (Utah 1988), simply indicated that specific findings should be made under certain circumstances in the penalty phase of capital homicide cases. Furthermore, the majority‘s reliance on