State v. Ewell

BENCH, JACKSON, Before GARFF and JJ.

OPINION GARFF, Judge: Ewell, Appellant, appeals Jason his convic- aggravated robbery, claiming tions of granted trial court should have a mistrial due juror’s possibly prejudicial statement during claiming voir dire and the court mis- applied the firearm enhancement statute. part part. affirm in and reverse On December Ewell was tried to aggravated robbery. on one count of may have been dishonest that therefore he day jury trial before On the second Sawaya’s question, Judge he answered Sawaya, counsel moved for Judge defense ability just juror’s to be fair was learned and thus the the basis that he had mistrial on motion, jurors, Jeffrey Bogaard, judge had The denied the questionable. that one of the Judge during pres- in the stating Rokich’s that the voir dire excused for cause been Bogaard’s case, jurors] days to and [the two earlier due ent he had “instructed courtroom during voir dire that a defendant’s the defendant has a part statement of that was testify might affect his decision. right testify choice not to and that his failure to not to stated, trial, Judge Rokich you In the earlier can testify is not a circumstance that “Now, the ef- jury instruction to presumptions there’s against him and no hold given finally cho- will be to those fect—that court con- against him can be raised.” The have to the does not sen—that defendant Bogaard Mr. that “I am satisfied that cluded testify if he doesn’t desire to do so. Would panel willing are all members of this the him, if he didn’t testi- you against hold that I law of the case as state it to follow the responded, “I’m not sure it fy?” Bogaard presumption would be raised that no adverse sway my way or another. opinion one would found against the defendant.” depends on the course of the I would charged. Ewell as want — trial, might sway me. I have no it case, pleaded guilty to separate In a Ewell Depending on what way another. January aggravated robbery on one count of out, Shortly might have an effect.” comes February the court 1992. On answer, Bogaard to giving this listened after as fol- Ewell for both convictions him on a defendant’s Judge Rokich lecture years life with a one one term of five lows: and on right to remain silent constitutional for the first con- year firearm enhancement presumption of innocence. the viction, years to life with another term of trial, Judge Sawaya ex- In the second year firearm enhancement on the sec- a one plained: conviction, year an additional five ond Ewell had enhancement because firearm law, gentlemen, a the ladies and Under involving fire- convicted of two crimes been charged with a criminal offense defendant cases, claiming appealed arms. Ewell both until he’s been presumed to be innocent failing grant a mistrial the court erred beyond proved guilty a reasonable doubt. bias, misapplying due that level If the doesn’t rise to evidence This enhancement statute. duty jurors be to re- your then would appeals. court consolidated guilty. The defen- turn a verdict of not mean- right to remain silent dant has the stand and

ing he doesn’t have to take MOTION TO SUPPLEMENT Defen- testify unless he wishes to. The THE RECORD may with the evidence be satisfied dant sup- Initially, Ewell’s motion to we address presented by the and feel that there’s state transcript of the plement the record with the any you there nothing to add to it. Are Judge Rokich’s courtroom voir dire you afford to the defen- who feel cannot Ramirez, days Ewell’s before State presumption dant the benefit object to this court does not trial. right to remain silent? innocence and portion taking judicial notice of the jurors responded. No transcript pertaining to this case.1 Ramirez dispute the parties do not the Given challenged for cause Defense counsel transcript, grant the mo- we contents of Bogaard, arguing that seating of continued por- with the supplement the record tion to juror’s were inconsistent answers Evidence, ready determination 201(b)(2), pro- capable of accurate and Utah Rules of 1. Rule accuracy cannot reason- resort to sources whose "judicially fact must be one vides that a noticed ably questioned.” dispute subject in that it is to reasonable transcript tion of the regarding Bogaard’s Ramirez differing responses Bo- during voir Judge gaard’s voir dire. dire Rokich’s courtroom and later in Judge Sawaya’s courtroom. To determine juror, challenged whether a answering MISTRIAL dire, falsely excused, on voir should be we apply two-prong McDonough test. State next We consider the claim State’s that Thomas, (Utah 1992) v. 830 P.2d Ewell waived his claim that the trial court (referring to the in McDonough, test outlined in denying erred his motion for a mistrial 850). atU.S. 104 S.Ct. at Under the because defense counsel failed to ask the test, McDonough moving party is entitled interrogate Bogaard court to about his voir party to a new trial if the demonstrates that dire answer. In McDonough Equip., Power (1) juror honestly “a failed to answer a mate- Greenwood, Inc. v. 464 U.S. 104 S.Ct. question dire,” rial on voir “a correct (1984), 78 L.Ed.2d 663 the Court stated response provided would have a valid basis party in a footnote that thinks a voir dire challenge McDonough, cause.” factually is answer incorrect at the time of a at U.S. at S.Ct. 850. voir dire party examination and the chooses Here, Bogaard had earlier been ex interrogate juror not to regard- further Judge cused for cause from Rokich’s court ing answer, party the voir dire would be room judge’s based on his answer to the voir challenging barred from later composi- question Bogaard dire as to whether would jury. tion of the Id. at 550 n. at S.Ct. against hold it the defendant if he did not 847 n. 2. testify. Bogaard absolutely did not state that against he would hold it the defendant. The State claims that under McDon- Instead, he said he was not sure whether it ough, counsel must ask the court to interro sway opinion. would He then said he had gate the preserve order to the issue subject. Shortly no on the after this appeal. disagree. First, on We the Court in answer, Bogaard Judge listened to Rokieh McDonough did not holding base its lecture him on a defendant’s constitutional Therefore, waiver issue. statements right to remain presump silent and on the McDonough Second, footnote are dicta. tion of innocence. case, in this defense counsel was not aware Judge Sawaya’s question, while similar to Bogaard’s response possi voir dire was by Judge Rokieh, that asked was more exten bly previous response inconsistent with a un sive and contained more information about til Therefore, after voir dire had concluded. right testify pre defendant’s not to and the McDonough require does not this court to sumption Briefly, of innocence. Judge Sawa- bar Ewell from raising his claim that the trial ya informed the that a defendant has denying court erred his motion for a mis right silent, to remain does not have to trial. testify, presumed and is nevertheless inno cent. Given the difference between the two rule, general attorney As a timely must questions lectures, Bogaard’s and the two object in a clear and concise manner. State appear answer does not dishonest. See Mc Schreuder, (Utah 726 P.2d Donough, 464 at U.S. at S.Ct. 1986). case, In this defense counsel moved We therefore need not reach the second for a mistrial on the Bogaard’s basis that prong McDonough test. ability Thus, questionable. to be fair was We conclude that the trial court did not err defense counsel alerted the court to the is- in failing to investiga- either conduct further objection clear, sue. Because the timely, grant tion or Ewell’s motion for a mistrial. concise, we hold that Ewell barred raising appeal. the issue on ENHANCEMENT next address whether the trial remaining issue is whether the court in failing grant erred a mistrial due trial imposing court erred in the additional pursuant year firearm enhancement accord Gleave Denver & Rio Grande W.

five 76-3-203(4) (1990). Co., App.), § R.R. cert. Ann. Utah Code (Utah 1988). denied, 765 P.2d 1278 We inde claims the court misconstrued Ewell trial interpreta review a pendently trial court’s mandatory when it this statute assessed statutory law tion of for error. year enhancement for a second convic- 1991). James, argues that involving a firearm. Ewell tion assumption legislature Given our that the one, has applies only the statute where carefully advisedly chose the terms “sen felony, later been sentenced for “convicted,” reject tenced” and the State’s we felony. Ewell convicted of another firearm statute, pursuant to this “de contention preceded the claims that both convictions fendant was not convicted of either crime sentencing. Therefore, there was no second until he received his We hold sentence.” subsequent involving a firearm or conviction may legislature that the that a court meant trigger to this section. penalty only impose the agree. portion of section We relevant where a defendant has first been sentenced 76-3-203(4) follows, emphases: as is with our felony in a firearm and then is convicted case Ar felony. of another firearm See State v. person A of a who has been convicted 1974) (Utah chuletta, 911, 526 P.2d 912 felony may imprisonment to (“there nothing to is where there is construe for indeterminate term as follows: statute”). ambiguity the no (4) Any person has been sentenced year en- therefore the We reverse imprisonment felony in to a term of portion and hancement of Ewell’s sentence ... which a firearm used and is con- respects. court’s affirm the order all other a firearm victed of another shall, any was used in addition to other in- imposed, for an

sentence be sentenced JACKSON, Judge (concurring): term not less than five determinate to be today. with the reached I concur result years than run consecu- nor more ten to However, separately point I write out that to tively concurrently. and not “convicted,” used in Utah Code the term as interpret “according its a statute to 76-3-203(4) (1990), § the estab- Ann. wording it would be unreason- literal unless guilt, imposition not of the lishment ably confusing inoperable. presumed It is finding of judgment upon a is the that a statute valid and that words recognize I “con- guilt. that the word While carefully ad- phrases used were chosen used context various victed” is either rules,1 apparent visedly.” Magnesium Corp. procedural Amax v. Tax it is statutes and Comm’n, 1266, 1990); legislature term “convict- 796 P.2d that the used the 1258 judg- conveying finding guilt, distinguished the capable of from 1. The word "conviction” is of a sentence, purposes First, of habitual ment and for meanings. a com- "conviction” has 71, State, statute); Md.App. 9 criminal Sands v. meaning finding guilt. indicating mon a of See 583, ("conviction” 588 262 A.2d Stewart, 383, (Utah 1946) (a 171 State v. P.2d 385 legally with "conviction” "sentence” are distinct "conviction”); plea guilty of State amounts guilt being and "sentence" the determination of Garcia, 99 N.M. P.2d 923 v. 659 entered). judgment being the (“conviction" finding (Ct.App.1983) of refers to a Second, the word has a more "conviction” imposition guilt and does not of a include meaning referring crimi- to the entire technical Smith, issue); v. sentence in the statute at State process, including judgment procedural nal (1984) (entry Or.App. 677 P.2d Duncan, P.2d See State v. and sentence. judgment equivalent of conviction is not ("it App.1991) is the final statute); purposes v. for of this State conviction consti- the court on verdict Wimmer, (Wis.Ct.App.1989) 449 N.W.2d purposes un- impeachment for tutes a conviction (the language and word common Akana, "conviction” in 609(a)(1)”); Haw. der Rule finding signifies (1985) (a sometimes statutes techni- more guilty); Kelly, Wash.App. judg- person is includes cal definition "conviction” (1978) (a pursuant to an ascer- or sentence rendered "conviction” ment penalty prior at issue for imposed ed” in enhancement statute offense should apply penalty not be construed before that guilt. mean the establishment of chance to effect has had the have the desired legislature require chose that a Abreu, on the offender.” United States imprison- be “sentenced” to a term of (10th Cir.1992). Ac 962 F.2d 1452-53 then ment and be “convicted" of another purposes cordingly, Ann. Utah Code felony using a firearm before the enhanced logical § it that we find penalty imposed. legislature would be If the upon defendant “convicted” the establish had intended the word to include “convicted” upon guilt, sentencing. ment of sentencing portion proce- of the criminal dure, term would have used the “sen- BENCH, Judge (dissenting in part): tenced” twice rather than “sentenced” then “convicted.” I concur in the result the main I respectfully reaches on issue. Further, courts, interpreting several however, dissent, the reversal of “conviction” in word statutes en application trial en- court’s of the firearm offenders, penalties repeat hanced use statute, § 76-3- hancement Utah Code Ann. conviction, common the more definition of 203(4) (1990). namely, by plea, guilt establishment of charged, was Defendant one informa- jury finding verdict See court. tion, robbery. aggravated count of with one 6, Lindsey, People Cal.App.2d 249 57 Cal. information, In a second unrelated he was 190, (1964); State, Rptr. 193 Marcum v. 239 charged aggravated with count of rob- 179, 376, (1958); Ind. 154 N.E.2d 377-78 theft, bery, of of one count and one count Kramer, 114, 235 115-16 State v. N.W.2d deception. by theft tried The first case was (Iowa 1975); Smith, 640, State v. 650 S.W.2d 12-13, jury a on December 1991. The Burk, (Mo.Ct.App.1983); 641 State v. 101 jury charged. De- found defendant 263, (Ct.App.1984); N.M. 680 P.2d 980 Padil pleaded guilty fendant later to one of count State, 664, 666, 190, la v. 90 N.M. P.2d 568 robbery aggravated in the other information. (1977); Dassinger, 192 State v. 294 N.W.2d deception The counts of theft and theft 926, (S.D.1980); Kelly, 928 28 Wash. were dismissed. (1978). App. 894 These February not of imposition courts do include the On the court sentenced First, sentence the definition of defendant. court sentenced “conviction.” convicted defendant verdict. comports pur- also This definition with Next, the court sentenced and convicted de- pose repeat of offender enhancement stat- guilty plea. Finally, fendant on the court discourage utes —to continued criminal con- required impose determined that was by imposing higher penalty duct a criminal penalty enhancement under 76-3- section similar Moore v. second offense. See 203(4), sentenced defendant to an addi- Missouri, 673, 677, 159 U.S. S.Ct. 16 years. tional five (1895). Twisting L.Ed. 301 76-3-203(4) states, Section in relevant meaning of the word “conviction” include part: sentencing purpose would thwart as the “A cases such one before us. statute A has been of a convicted punish designed to a second offender more felony may imprisonment be sentenced to severely when he has not from the learned an indeterminate term as follows: guilt); Department Transp. prosecution including judgment of tainment v. Ed ren or sentence of wards, verdict, (Pa.Commw.Ct. confession, pursuant 519 A.2d dered denied, 1983) (“conviction” guilty), occurs is a when there find cert. 102 N.M. Wimmer, (1985); (the ing guilt imposed); and the sentence is Garcia N.W.2d at 622 Educ., Bd.

v. State 102 N.M. term as used in "conviction” statutes can include (1984) ("conviction" judgment upon P.2d in its tech and sentence of the court legal guilt). nical sense final consummation of verdict or confession “con- involving a firearm and then a crime sentenced Any person who has been fire- crime felony in victed” for a second imprisonment for to a term of Thus, in its trial court was correct arm. ... and is con- was used which a firearm sentence should that defendant’s a firearm assessment another victed of 76-3-203(4). pursuant section shall, enhanced any other be in addition to used for an in- imposed, be however, err, impos- trial court did to be not less then term determinate for a fixed ing the enhancement years to run consecu- more then ten nor State, 76- by the section term. As conceded concurrently. tively not 3-203(4) actually provides that the enhance- subsequent conviction shall be ment for a added.) reversing the en- In (Emphasis less term to be not “for an indeterminate statute, my this imposed under hancement years[.]” There- nor more than ten than five erroneously a conviction hold that colleagues fore, properly the trial court deter- while precedes a sentence. defendant’s sentence should mined that enhanced, sentencing defen- to in our rules as it erred A “conviction”is referred term. and includes “the dant to an indeterminate “judgment of conviction” verdict, any, the sentence.” plea or uphold the trial court’s I would therefore 22(c) (1993).1 also State See Utah R.Crim.P. cor- application of section Duncan, App.) P.2d sen- of defendant’s rect the enhancement (“ final to the ‘conviction’ refers term. provide for an indeterminate tence to guilty”), plea or verdict of entered on the 1991).2 denied 826 P.2d cert. rules,

Thus, possible to be it is not under our being sentenced. without first

convicted part of the conviction. sentence is WEBB, F. Trustee of WFPP William re- all that is section Under Appellant, Trust, Plaintiff and that a quired for enhancement felony involv- sentenced for must have been Ninow; NINOW; L. Frederick Paul Staci firearm, of an- and then be convicted ing a R-West, Inc., corporation; One West felony involving a firearm.3 also other Bank, Utah, corporation; Homer Cu correctly that “defendant was asserts Parson; Hart; trubus; Ned F. Jim he re- crime until not convicted of either City, Lake Factors of Salt Commercial sentence.” ceived his Ltd., partnership, Defendants a limited and convicted Defendant was sentenced Appellees. the same unrelated crimes on separate No. 930522-CA. was sentenced day. At the time defendant Appeals of Utah. Court plea, he had guilty on the and convicted already and convicted been sentenced 24, 1994. Oct. any analytical It not make jury verdict. does that he was sentenced logical difference or only moments before. previous crime

for the that he was “sentenced” fact remains thing and states, purposes 22(c) conviction pertinent part: some Rule something else. purposes it means for other plea plea of no Upon a verdict contest, impose the court shall which of conviction shall enter support the nothing in our statute 3.There verdict, any, or the shall include notion, concurring opinion, proposed the sentence. give a is to purpose this statute who has been defendant must not turn on how decision in this case 2. Our about opportunity to think a firearm term "conviction” have defined the other states before possibility severe sentence of a more It is the term. Utah has defined but on how committing offense. a second similar suggest short-sighted that for this court to

Case Details

Case Name: State v. Ewell

Court Name: Court of Appeals of Utah

Date Published: Aug 17, 1993

Citation: 883 P.2d 1360

Docket Number: 920379-CA

Court Abbreviation: Utah Ct. App.