STATE of Utah, Appellee, v. Dawn Ann DRAPER-ROBERTS, Appellant.
No. 20141057-CA
Court of Appeals of Utah.
July 21, 2016
2016 UT App 151 | 382 P.3d 624
GREENWOOD, Senior Judge
Simarjit Gill and Craig N. Stanger, Attorneys for Appellee
Senior Judge Pamela T. Greenwood authored this Opinion, in which Judge J. Frederic Voros Jr. and Senior Judge Judith M. Billings concurred.1
GREENWOOD, Senior Judge:
¶1 Defendant Dawn Ann Draper-Roberts appeals after a jury found her guilty of theft, a class A misdemeanor. See
BACKGROUND2
¶2 Defendant worked at a craft store, where she found a customer‘s purse in a shopping cart. Rather than immediately locking the purse in the store‘s safe, she put it in the store‘s classroom where there were locking cabinets and where she was working that day.
¶3 When the customer realized her purse was missing, she returned to the store and asked three employees if they had seen the purse. None of the employees reported knowing where the purse was. One of the employees—the acting manager—used the store‘s radio headset system to ask if any employees had found the purse. No one responded. The acting manager recorded the customer‘s contact information, and the customer left. The acting manager testified that she spoke to Defendant within a few minutes of the customer‘s departure, asking if she had seen the purse. According to the acting manager‘s testimony, Defendant indicated that she had not.
¶4 Meanwhile, at home, the customer used the Find My iPhone application on her iPad to determine the location of her iPhone, which was inside her missing purse. The application showed that her phone was still inside the craft store. She used the application to set off an alarm on her phone, and her husband informed police that she was returning to the store to look for her purse.
¶5 Around the same time, back at the store, Defendant brought the acting manager the customer‘s purse, from which the sound of the iPhone‘s alarm was emitting. The acting manager put the purse in the store safe. Police arrived, took possession of the purse, and “continued the investigation to obtain facts to write a report.” When the customer again returned to the store, police returned her purse to her; “nothing was missing from or disturbed in it.”
¶6 The officer who investigated the case questioned Defendant about where she found
¶7 Also at trial and during the officer‘s testimony, it became apparent that the State possessed video retrieved from the officer‘s body camera (the body cam video) that Defendant had not been provided as part of the State‘s discovery. Defendant moved for a mistrial, arguing that “the video shows potentially exculpatory evidence” and that defense counsel “would have prepared for this trial in a completely different manner if [he] had the video available beforehand like [he] should have had.” Defense counsel further explained that even if the video was not exculpatory and was in fact incriminating, “it would change the way that [he] ask[ed] questions, how [he] approach[ed] the case, how [he] advise[d] [his] client as to her rights, [and] whether or not she should take a plea offer.”
¶8 The trial court denied Defendant‘s motion for a mistrial and instead gave “[d]efense counsel the evening and the rest of the afternoon to go over th[e] video as many times as he need[ed] to, to queue it up to where he need[ed] to ..., and to be ready for cross-examination [the next day].” The court then adjourned for the day at 2:45 p.m., with proceedings set to begin at 10:00 a.m. the following morning. When trial recommenced, Defendant renewed her motion for a mistrial, which the trial court again denied.
¶9 Aside from the revelation of the body cam video, two other events at trial are relevant to our review. During jury voir dire, the prosecutor named only three witnesses—the officer, the customer, and the store manager, who had been out of town during the events at issue—and those were the only witnesses about whom the court asked the jury, “Are any of you acquainted with or related to any of those people mentioned?” However, after defense counsel finished his opening statement, the State informed the court that the acting manager would also be testifying, explaining, “There is a witness that we did not think was available, that is.” When the prosecutor mentioned this fourth witness—the acting manager—defense counsel responded with what is only marked as “inaudible” in the transcript. The prosecutor responded, “She is in the police report,” to which defense counsel argued, “I asked him two days ago who the witnesses are going to be, and he named three witnesses.” The trial court allowed the acting manager to testify.
¶10 Finally, Defendant again moved for a mistrial after the State decided not to have the store manager testify. During Defendant‘s opening statement, defense counsel had previewed some of the exculpatory testimony he anticipated the store manager would provide. Namely, he expected the store manager to testify that she had known Defendant for ten years, that she knew Defendant to be a good employee, and that she had never had any problems with her. When the State announced that it would not have the store manager testify, Defendant objected, but the trial court released the witness because the State—and not Defendant—had subpoenaed her to testify. Defendant moved for a mistrial, arguing that the State opted not to have the store manager testify because it knew she would provide testimony beneficial to Defendant. The trial court denied the motion.
¶11 The jury found Defendant guilty of theft. She now appeals her conviction.
ISSUES AND STANDARDS OF REVIEW
¶12 Defendant raises four issues on appeal. First, she argues that the trial court erred by denying her motions for a mistrial to remedy the State‘s failure to give Defen
¶13 Second, Defendant argues that the trial court erred when it allowed the acting manager to testify despite the State‘s failure to disclose her as a witness prior to trial. We review the trial court‘s decision to allow the acting manager to testify for an abuse of discretion. See State v. Perea, 2013 UT 68, ¶ 31, 322 P.3d 624 (“[W]e give the district court broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb its ruling only for abuse of discretion.” (citation and internal quotation marks omitted)).
¶14 Third, Defendant argues that the trial court should have required the store manager—who had been subpoenaed by the State and was present at trial—to remain in court and testify, even though the State indicated it would not need her testimony. In her brief, Defendant suggests that we should re
¶15 Finally, Defendant argues that “even if the errors raised [above] are not individually prejudicial, taken together they are cumulatively prejudicial.” “Under the cumulative error doctrine, we apply the standard of review applicable to each underlying claim of error ....” State v. McNeil, 2013 UT App 134, ¶ 16, 302 P.3d 844 (omission in original) (citation and internal quotation marks omitted), aff‘d, 2016 UT 3, 365 P.3d 699.
ANALYSIS
¶16 For Defendant to succeed on any of her claims on appeal, she must show that the trial court abused its discretion. “Under the abuse of discretion standard, we determine whether the trial court‘s ruling was beyond the limits of reasonability. However, even if the trial court abused its discretion, we will reverse only if we find that the error is harmful,” State v. Archuleta, 850 P.2d 1232, 1240 (Utah 1993) (citations and internal quotation marks omitted).
An abuse of discretion occurs when, taking into account any remedial measures ordered by the trial court, the prejudice to the defendant still satisfies the standard for reversible error set forth in
¶17 We begin with the question of whether the trial court abused its discretion in the ways identified by Defendant. Then, because we conclude that the trial court erred in each instance, we turn to the question of cumulative prejudice, making it unnecessary for us to determine whether any error alone merits reversal. This approach is particularly beneficial in this case, where each error was compounded by the next and the prejudicial effect of any single error is difficult to isolate.
I. The Body Cam Video
¶18 Defendant first challenges the trial court‘s refusal to grant a mistrial when it came to light that the body cam video was not included with the discovery the State had provided Defendant. Under
¶19 More than five months before trial, Defendant filed a discovery request with the State. She asked for all “evidence that has been discovered by any member of the agencies involved in the investigation or prosecution that tends to inculpate the defendant,” all “recorded statements of the defendant,” and all “video and/or audio recordings and transcripts of those recordings prepared in conjunction with the prosecution of this case in the possession of any law enforcement or governmental agency.” The State responded by providing Defendant with the store security camera footage. It did not provide the body cam video, and it did not “specifically identify” the body cam video as evidence that would not be provided. See, id. There is no dispute that the State knew of the body cam video before trial and did not disclose the video until the middle of trial. We thus agree with Defendant that the State‘s failure to disclose or provide the body
¶20 The question, then, is whether the trial court abused its discretion when it denied Defendant‘s request for a mistrial and opted instead to provide her with a brief continuance to review the body cam video and prepare to cross-examine the officer. In other words, was this course of action “beyond the limits of reasonability“? See Archuleta, 850 P.2d at 1240.
¶21 We conclude that it was. Defense counsel was deprived of the ability to prepare for trial with the body cam video in mind. The video was revealed after opening statements—after counsel had presented the case to the jury and had made no mention of the video. Defense counsel had no reason or opportunity to seek out and interview the store employees and other police officers who appear in the video. The late disclosure of the body cam video impaired Defendant‘s ability to thoroughly review the contents of the video and research applicable law in order to effectively move to exclude portions of the video; instead, the video was admitted to the jury in its entirety. Aside from including potentially inadmissible hearsay statements, the video shows Defendant being arrested, being read her rights in accordance with Miranda v. Arizona, 384 U.S. 436 (1966), and invoking her rights to silence and counsel.
¶22 And perhaps most importantly, the video directly contradicts the officer‘s testimony on two points. To help explain why he came to view Defendant as a suspect in the case, the officer testified that Defendant “really didn‘t want to talk to [him] about” “where she found the purse.” Instead, he explained, “She just started asking me questions.” But in the body cam video, the acting manager asks Defendant to show the officer where the purse was found, at which point Defendant immediately walks the officer to the aisle where she purportedly found the purse, without asking him a single question. At trial, the officer testified, “And then I asked her for just some basic information. Okay, what‘s your name, so I can put this down? She is—she didn‘t want to give me her name at first.” But the body cam video shows no discernible reluctance to provide the officer with the information requested.7
¶23 We acknowledge that the trial court provided Defendant with what the State repeatedly calls “a 19-hour continuance.” More realistically, the trial court gave the defense approximately two hours more than it otherwise would have had to prepare for the second day of trial, recessing at 2:45 p.m. instead of, presumably, the close of business at 5:00 p.m. But whether the trial court provided Defendant with two or nineteen hours—or even more than that—the damage of the untimely disclosed body cam video was done. Defense counsel had already potentially lost credibility with the jury by failing to preview and discuss an important piece of evidence for the State in his opening statement. And, as defense counsel explained, he “would have prepared for this trial in a completely different manner if [he] had the video available beforehand like [he] should have had.” Defense counsel further explained, “[I]t would change the way that I ask questions, how I approach the case, how I advise my client as to her rights, whether or not she should take a plea offer.”
¶24 A continuance would not have cured the prejudice Defendant suffered from the State‘s failure to disclose the body cam video. Under these circumstances, it was erroneous for the trial court to deny Defendant‘s motion for a mistrial. See id. at 918 (“[I]f the trial judge denies the relief requested under
II. The Acting Manager
¶25 Defendant‘s next contention is that the trial court should not have allowed the acting manager to testify. The
The names of witnesses on whose evidence an indictment or information was based shall be endorsed thereon before it is filed.... Upon request the prosecuting attorney shall, except upon a showing of good cause, furnish the names of other witnesses he proposes to call whose names are not so endorsed.
¶26 The State disclosed that it intended to call the customer, the officer, and the store manager as witnesses. It did not mention the acting manager until after opening statements. The State now claims that “the Information filed endorses ‘store manager’ as a witness.” But the fact that the State subpoenaed and had present at trial the actual store manager leads us to reject the State‘s contention that, “[w]hile not entirely descriptive], it is reasonable for [Defendant] to expect that [the acting manager]—who was the only other store manager on duty at the time of this offense—could be called as a witness.” We thus have no difficulty concluding that the State‘s failure to disclose the acting manager as a potential witness constitutes a second discovery violation. See Knight, 734 P.2d at 916-17 (explaining that where the defendant requested a “list of all the witnesses that the State intends to call for trial” and the State chose “to respond voluntarily to [the] request under [rule 16(a)(5)] without requiring the defense to obtain a court order, considerations of fairness require[d] that the prosecution respond to the request in a manner that [would] not be misleading“).
¶27 To decide whether it was error for the trial court to allow this testimony in spite of the State‘s failure to disclose the acting manager as a witness, we consider the substance of the acting manager‘s testimony along with
¶28 “A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof.”
¶29 While the surveillance video revealed that Defendant undoubtedly exercised control over the purse, the State was required to show that the control was unauthorized and that Defendant intended to deprive the customer of her purse. The video showed that Defendant found the purse by the door of the store, when instead she told the officer she had found it in an aisle. And the officer‘s testimony indicated that the control was unauthorized and with the intent to deprive the customer by explaining to the jury the ways in which Defendant behaved suspiciously. But the most telling piece of evidence regarding Defendant‘s intent came from the acting manager‘s testimony. The State summarizes what is perhaps the most important part of the acting manager‘s testimony this way: “[The acting manager] spoke to [Defendant]—in person—within a ‘few minutes’ of [the customer] leaving and asked [Defendant] if she had seen a purse and [Defendant] indicated she had not.” The acting manager is the only witness who testified that Defendant denied seeing the purse.8 Without her testimony, the jury might have believed that Defendant—an acting manager herself—had done nothing more than move the forgotten purse from the public area of the store into, as the officer described, “a bigger room.... That‘s kind of an employee area. That wouldn‘t be somewhere that customers would walk back into.” Without the acting manager‘s testimony, the most incriminating piece of evidence would be the contradiction between where Defendant actually found the purse and where she told the officer she had found it. The acting manager‘s testimony was crucial to the State‘s case, and allowing her to testify without adequate notice to Defendant was erroneous.
¶30 Beyond the substance of the acting manager‘s testimony, another important fact informs our conclusion that the trial court erred in allowing the acting manager‘s testimony. The acting manager has a criminal history—a felony conviction for retail theft in 2010.9
¶31 The State‘s failure to include the acting manager on its list of witnesses was a discovery violation. Given the importance of
III. The Store Manager
¶32 Finally, Defendant challenges the trial court‘s release of the store manager as a witness, when she had been subpoenaed by the State and was present in court. As discussed above, this was undoubtedly a discretionary ruling by the trial court. See supra note 5. But it is also undisputed that the trial court had the authority to require the store manager to testify, even though Defendant had not subpoenaed her. See
¶33 The trial court‘s initial justification for allowing the store manager to leave and not testify was that Defendant had not subpoenaed the store manager. Defense counsel explained that usually he relies on the State‘s subpoenas in preparing for trial, and the court replied, “Usual practice is not going to cut it, and I have already called both the director of LDA and the director of the DA‘s office about this issue in the past. There is no agreement that you can rely on who the State subpoenas.” While this might be a legitimate concern at the trial court level, and while the involved offices might need to adjust their standard practice, the trial court failed to explain why in this particular case Defendant should not have had the opportunity to examine the store manager. More concerning, the trial court went on to chastise, “If you wanted them, you should have subpoenaed them,” before indicating what appears to be a significant, though nonlegal, factor in the court‘s decision: “But, like I said, we need to be done by 4:00, so I‘m going to limit—”
¶34 After denying a motion for a mistrial based on the State‘s failure to disclose the body cam video and then allowing a witness who had not been disclosed by the State to testify, the trial court prohibited Defendant from questioning a witness—who was present in court and was expected to testify positively about Defendant—at least in part based on the court‘s self-imposed time schedule. This is precisely the sort of “discretionary ruling that compounds a previous harmful error of law [and thus] constitutes an abuse of discretion.” See State v. Norris, 2002 UT App 305, ¶ 12, 57 P.3d 238.
IV. Prejudice
¶35 Because we have concluded that the trial court erred in denying Defendant‘s motion for a mistrial based on the mid-trial production of the body cam video, allowing the acting manager to testify, and releasing the store manager from testifying, we now consider whether the cumulative effect of these errors undermines our confidence that Defendant received a fair trial. See State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993).
A. The State‘s Burden
¶36 We begin by noting that the State fails to meaningfully address whether Defendant was prejudiced by the errors she claims on appeal, relying instead on arguments regarding waiver, lack of preservation, and inadequate briefing. It does assert that the trial court‘s release of the store manager was “harmless beyond a reasonable doubt” because the store manager “was subpoenaed by the prosecution to testify about [the craft store‘s] lost and found policy.” This ignores the key fact that Defendant planned to rely on the store manager for testimony that Defendant was a good employee who had never had problems on the job. Defense counsel alluded to this evidence during his opening statement, and he was unable to deliver because of the trial court‘s release of the witness.
¶37 More troublingly, the State‘s failure to brief the question of prejudice disregards Defendant‘s contention that while “[t]he appellant usually bears the burden to prove prejudice[,] ... ‘a discovery violation claim
¶38 In State v. Redcap, we explained that
when the error consists of the prosecution‘s failure to produce inculpatory evidence, the record does not provide much assistance in discovering the nature or magnitude of the resulting prejudice to the defense. The record cannot reveal how knowledge of this evidence would have affected the actions of defense counsel, either in preparing for trial or in presenting the case to the jury.
2014 UT App 10, ¶ 13 (citations and internal quotation marks omitted). Thus, “when the defendant can make a credible argument that the prosecutor‘s errors have impaired the defense, it is up to the State to persuade the court that there is no reasonable likelihood that absent the error, the outcome of trial would have been more favorable for the defendant.” State v. Knight, 734 P.2d 913, 921 (Utah 1987). But in Redcap, we acknowledged that this burden shift does not occur automatically. See Redcap, 2014 UT App 10, ¶ 13 (indicating that “a discovery violation claim may shift the burden” to the State to show that the violation was harmless (emphasis added)); see also State v. Bell, 770 P.2d 100, 106 (Utah 1988) (recognizing that “in some circumstances the nature of the error involved is such that [the] de facto burden [placed on the accused to show prejudice] should be shifted and the State required to persuade us that the error was harmless“).
¶39 If, as Defendant urges, we determine that this is a case where burden shifting is appropriate, the State clearly has failed to meet such a burden by ignoring the question of prejudice. Cf. Knight, 734 P.2d at 921, 922 (reversing a conviction where “the State attempt[ed] to show that the errors were not prejudicial” but the court “[found] the State‘s arguments unpersuasive“). We conclude, however, that such a determination is unnecessary because the prejudice in this case is clear.
B. Prejudice Apparent on the Record10
¶40 The prejudice resulting from the trial court‘s rulings is perhaps best seen with reference to defense counsel‘s opening statement. He previewed for the jurors the evidence he anticipated they would hear based upon information the State supplied to him. This inaccurate preview would eventually undermine his credibility with the jurors. He told them they would hear from three witnesses—the store manager, the customer, and the officer. He explained what he expected the store manager to testify to:
She will tell you that she has known [Defendant] for 10 years, worked with her before at at a different store, actually hired her at [the craft store] as an assistant manager, and she never had any problems with [Defendant]. She has always been a good employee, and they—they made a team together at [the craft store], she being the assistant manager, and ... the store manager, running the [craft] store.
He also told the jury the acting manager “[is] not here today, you won‘t hear from her.” He then previewed the customer‘s testimony and the story that the jury would see on the surveillance video. In doing so, he specifically stated that “there is no ... situation where she denied having seen the purse ... or anything like that.” He then briefly previewed the officer‘s testimony before summarizing the case and sitting down.
¶42 “The purpose of an opening statement is to apprise the jury of what counsel intends to prove in his own case in chief by way of providing the jury an overview of, and general familiarity with, the facts the party intends to prove.” State v. Williams, 656 P.2d 450, 452 (Utah 1982). “The opening statement is a crucial part of most trials because it is made at a time when the minds of the judge and jurors are probably most open to conditioning by the speaker.” 5 Am. Jur. Trials § 285 (1966) (footnote omitted). The trial court‘s rulings prejudiced Defendant by undermining this important tool in presenting her case to the jury.
¶43 Furthermore, the State‘s discovery violations had a dramatic impact on the substance of the trial. The mid-trial disclosure of the body cam video inhibited defense counsel‘s ability to effectively cross-examine the officer and to move to exclude inadmissible portions of the video. For example, defense counsel was not as prepared as he otherwise might have been to impeach the officer with contradictory evidence from the video. Additionally, the entire video was provided to the jury, including footage of Defendant invoking her rights; ultimate opinions offered by the officer, such as when he told another officer that Defendant “stole the purse” and told the customer, “We found the person who stole your purse“; and footage of Defendant being taken to jail. Cf.
¶44 Finally, as we have previously mentioned and as the State acknowledged, convicting Defendant under the facts of this case was largely dependent on the State proving that Defendant had denied seeing the purse. See supra ¶¶ 28-29. This fact was provided by a witness who should not have been allowed to testify, given the State‘s failure to disclose her as a potential witness. Perhaps even more importantly, the testimony was given by a witness with a conviction for retail theft. But because the witness was undisclosed, defense counsel had no reason to investigate her criminal history and therefore missed the opportunity to impeach her with it.
¶45 All of this, taken together, undermines our confidence that Defendant had a fair trial. See State v. Perea, 2013 UT 68, ¶ 97, 322 P.3d 624 (stating that the cumulative error doctrine “is a doctrine used when a single error may not constitute grounds for reversal, but many errors, when taken collectively, nonetheless undermine confidence in the fairness of a trial“). The only way to properly remedy this cumulative prejudice was to grant one of Defendant‘s many motions for a mistrial; but the trial court denied them all.
CONCLUSION
¶46 The trial court should have granted a mistrial when the body cam video was disclosed in the middle of the trial. The continuance it granted was not sufficient to remedy the prejudice to Defendant. Furthermore, the trial court should not have allowed the acting manager to testify and, especially in light of its decision to allow her testimony, should have required the store manager to remain and testify. These adverse rulings prejudiced Defendant to the point that our confidence in the jury‘s verdict is under
Notes
The officer: “Let me get some information from you.”
Defendant: “All right.”
The officer: “What was your name?”
Defendant: “My name is Dawn.”
The officer: “Is it D-A-W-N?”
Defendant: “Uh huh (affirmative).”
The officer: “And your last name?”
Defendant: “Draper-Roberts.”
The officer: “D-A-R-A-P-E-R ...”
Defendant: (interrupting, laughing) “Like the city, and then Roberts, yeah.”
The officer: “What‘s your birthday?”
Defendant: [Provides her birthday.]
The officer: “And a phone number for you?”
Defendant: “Um, besides work here?”
The officer: “Yeah.”
Defendant: [Provides her phone number.]
The officer: “[Repeating four digits]?”
Defendant: “Uh huh (affirmative).”