State v. Florez

particu- in some minor ny inconsistent said out-of-court. what had been

lars with grounds inconsistency certainly is not

Mere letting prior hearsay statements.

for on

Therefore, my there is no basis view suggesting for of this case

the facts properly testimony offered would be grounds any set forth

admissible (B), (C) 801(d)(1). (A), subparts See Speer, of out-of-

1986) the admission (upholding 801(d)(1)(B) rule

court statements attempt been a direct there ‍​‌‌​‌​‌​‌‌​‌​​​​​​​​‌‌‌‌​​‌​​​‌‌‌​​‌‌‌​​​​​‌‌​​‌‍had recently being fabri- testimony

impeach

cated). Utah, Appellee, Plaintiff and

STATE FLOREZ, Defendant Louis

William Appellant. 870003.

No.

Supreme Court of Utah. 29, 1989.

June Caine, Richards, Og- T. John

Randall W. den, appellant. for defendant Wilkinson, Dorius, Earl F. Salt L. David appellee. City, plaintiff Lake HOWE, Chief Justice: Associate appeals Louis Florez Defendаnt William jury conviction of murder from his Ann. of Utah Code first violation (1978, Supp.1989). 76-5-202 approximately eighteen period of For a years, defendant and a wom- months to two Montes had an intimate an named Dana together. relationship and at times lived months, couple shared an For a few Ogden, in a home upstairs bedroom Dana, beating hit Utah, Bruck- but defendant them both resided there with Bonnie and uncle, ner, children, Dana’s Gene her and down street with his fist. went Robert testimony at trial established Montes. Thе police, eventually Gene to call and ar- frequently and Dana defendant that paramedics. called the separat- during period and often gued this moments, appar- After a few defendant ed, usually days a few only for but ently calmed down and went downstairs reconciling their differences time before towel, He Meyers. see asked Dana for a July On continuing relationship. and their it, began wipe and moistened blood argument had an with defendant Steve, on, Meyers, saying, quit play- “Come Dana, belongings, and packed of his some off, ing you’re it not hurt bad. Get night, That same out of the home. moved however, up.” Meyers, respond. did not relationship with Steve started new Dana arrived, police gave When defendant Meyers, the victim. peacefully gave knife to and him- Dana 27, 1986, Meyers in with July moved On up, stating Mey- had self that he stabbed Dana, shared a room in the and the two He of first ers. was convicted Ogden Bonnie of the home. basement murder, capital offense. Whеn son, fourteen-year-old Robert Bruckner’s unanimously could not invoke Derosa, upstairs into the bed- then moved penalty, sentenced to a term death he was previously occupied by defendant and room prison. appeals. of life He approximately At 5:30 the next Dana. morning, July defendant returned to his Defendant contends that evidence of through to enter the home tried prior impermissi- criminal convictions door, then but it was locked. He front contrary bly admitted rules of the tapped upstairs on the window bed- and 609 of the Utah Rules of room, calling De- for Dana. When Robert addition, he asserts that Evidence. responded Dana did rosa awoke and during admission sleep anymore, there defendant asked guilt phase his trial violated his requested she was and that Robert impartial jury fair an rights to a trial times, in. refused let him Robert Several the sixth amendment the United under awakening him to for fear of to allow enter I, and article section States Constitution howеver, family. Eventually, he came The un- of the Utah Constitution. statute Robert, through the and said to window pro- defendant was convicted der which anybody.” replied tell “Don’t Robert vides, pertinent part: if defendant was anybody he would tell (1) murder Criminal homicide constitutes Bonnie, Gene, or quiet and did not awaken degree if the actor intention- in the first inquiry the children. After further about ally knowingly or causes the death whereabouts, finally told Dana’s Robert following any cir- another sleeping down- him that she alone cumstances: proceeded down- stairs. Defendant then stairs, back to bed. and Robert went basement, saw both (d) committed while homicide was sleeping to- Meyers Dana naked and engaged in the commission the actor was enraged and gether on a bed. He became of, commit, flight attempt an or or hair, her a grabbed Dana called committing attempting to com- or after “slut,” “yanked” off the and a her “whore” mit, aggravated burgla- burglary, ...

bed, He then and hit hand. her with ry.... fist, Meyers Mеyers struck with exclaimed, God, “Oh, got he’s a knife. my (h) previously The actor was convicted help, crying for upstairs Run.” Dana ran involving felony the use of ... Meyers with fatally stabbed and defendant person. threat of violence to a upstairs ran after the knife. Defendant (h) (1978, 76-5-202(l)(d), awakened, Ann. Utah Code then, had By Dana. Gene Supp.1989). stop tried to defendant from further and he accept stipulation

I not order the evidence, by and that it would allow into prove In order to an element the сrime way prison orders, commitment defen- 76-5-202(l)(h), the contained in subsection aggravated dant’s convictions of as- defendant’s three State moved to admit during sault the State’s case in chief. The assault, aggravated convictions for court held that the evidence was admissible felony involving the use or threat of vio- during guilt phase of trial to hearing person. pretrial lence to a A element of the crime and on our relied defendant, motion, in order held on this and language in Shaffer, 725 P.2d to prejudice unfair offered avoid (Utah 1986): “While evidence of stipulate as follows: other bad acts is inadmissible to show the previously been 3. The defendant has defendant, general disposition of the such occasions of convicted on three different evidence, competent, is when relevant and assault, aggravated a third admissible to a material fact.” We degree of Utah and a felony in the State admissibility address the of the evidence designated by stat- has bеen which during guilt phase part in III of of trial in as a crime of violence ute and case law opinion. this against another individual. argues Defendant that he offered a via- previously 4. The defendant has stipulation ble and reasonable which would Court, in this a Motion heard on moved accomplished proof required have un- 26, 1986, to limit the State’s November capital der our murder statute without cre- in use of the trial these ating propensity for unfair Specifically, prose- this that the case. however, general rule, party trial. As a “a jury to tell the or cution not be allowed may preclude adversary’s offer of that, jury Judge that the not instruct the proof by stipulation.” admission ‍​‌‌​‌​‌​‌‌​‌​​​​​​​​‌‌‌‌​​‌​​​‌‌‌​​‌‌‌​​​​​‌‌​​‌‍or State fact, previously defendant has (Utah 1988). violence, convicted of a crime of case, In error that the defendant claimed being aggravated that crime assault. when the trial court refused to order acknowledges 5. The defendant that stipulate of the State to to the identities legislature status an has made his kill- victims. The defendant had admitted element of the offense of criminal homi- ing young boys, the manner of the five cide, degree pursuant murder in the first killings, disposing and the methods of pre- 76-5-202 in an effort to § preclude their bodies. He moved to rights serve his own and to accommodate introducing State from certain identifica- State, is, by Stipu- this defendant evidence, including photographs of the tion lation, willing acknowledge victims, clothing, testimony from the 1, 1986[,] if begin trial to on December guardians parents and and claimed victims’ proves beyond a reasonable appeal prosecution that “the could have intentionally doubt that or this defendant probative full of the achieved the value of another knowingly caused the death testimony and without admitted exhibits person and the finds the same to be unfairly prejudicing simply by case, agrees that the the defendant stipulating to the identities of the victims.” pursuant to Court will enter a conviction Bishop, 753 P.2d at 475. We found no homicide, 76-5-202, murder criminal quoted error and United States capital offense. the first as a (5th Cir.1979), Grassi, 602 F.2d (5th Cir.1979), denied, 606 F.2d 321 reh’g light stipulate, the trial of this offer to grounds, 448 U.S. vacated on other initially court that the State would ruled (1980): 100 S.Ct. 65 L.Ed.2d 1131 not be allowed to use chief, felony probative but piece convictions in its ease A of evidence can have could, purposes, impeachment it in the event of an offer to for value even inquire stipulate if he were to take to the issue on which the evi- into his record stipulation offered. A cold can the witness The court later re- dence is stand. party legitimate “of the moral deprive ruled that it versed its decision and would wise, evidence,” can as to whether never the decision to decline force of physical evi- tangible, stipulation fully accept wholly or such a lies substitute testimony Thus, or witnesses. prosecutor’s dence within the discretion. cases, has the “to party most properly compel the trial court refused to picture of the present to the acceptance proffered stipulation upon.” relied Hills, events this case.” 532 N.Y.S.2d at 273. (citations omitted). P.2d at 475 Bishop, 753 explained The court Hills defi- rule, Notwithstanding general nition, this evi- stipulation agree- a voluntary “a is 403 of the Utah subject to rule dence parties, ment not a between the unilateral Evidence, provides for the which Rules another,” party upon of one forced decision evidence, proba- if its of relevant exclusion accepting that the risks involved in substantially outweighed by tive value refusing stipulations offered “do not call Thus, danger prejudice. of unfair “the involuntary imposition particu- for the of a facts, stipulate use is bound strategy by lar opposing either the counsel proof, forego mode of to an alternative ‍​‌‌​‌​‌​‌‌​‌​​​​​​​​‌‌‌‌​​‌​​​‌‌‌​​‌‌‌​​​​​‌‌​​‌‍Hills, or the court.” 532 N.Y.S.2d at 273. if the of the material evidence introduction At the of conclusion a well-reasoned discus- satisfy rule cannot 403....” it offers issue, of sion the the York court New case, In that Bishop, 753 P.2d 475. the ruled, in sum: disputed for most of the prosecutorial need prosecutor may compelled not be to [A] significant since it evidence was estab- accept stipulation as to an element of a elements” of the crimes lished “essential crime since “a colorless admission the charged, the defendant was for which opponent may sometimes have effect the probative ruled that the valuе we party legitimate of depriving the the outweighed by simply evidence was not ” (Wigmore, moral evidence force of Bishop, at 476. prejudice. unfair Evidence, 1981]). 2591 More- ed. [4th Hills, People case of v. 140 recent over, long as the defendant main- “[s]o 71, (N.Y.App.Div. 269 A.D.2d 532 N.Y.S.2d plea, guilty the had the tained 855, 1988), denied, 537 appeal 73 N.Y.2d right prove up to its case to the hilt 502, (N.Y.1988), 340 N.Y.S.2d 534 N.E.2d chose, subject only whatever manner it legal effect of an offer addresses the the rules of evidence and standards оf to stipulate in a trial to to defendant criminal play.” fair charged. a material element of Hills, (emphasis 532 N.Y.S.2d 277 There, convicted first the was omitted). case, original; In that citation robbery degree and first assault. in full of the evidence was the admission stipulate the Before he offered to evidence, rule compliance with rules of incident, victim, of the criminal as a result particular, and also with standards 403 injury, a physical suffered serious statu “not for it was admitted play fair chаrged. The tory of the crimes arousing purpose’ of the emotions the ‘sole prosecutor the offer. The defense declined rather, but, legitimate jury, for the pre to the trial court counsel then moved purpose proving elements of adducing medi prosecution clude the Hills, 277. 532 N.Y.S.2d at crimes.” concerning inju testimony the victim’s cal case, Often, present status as in the testimony ground such ries felony regarding prior of the defendant prejudice to the undue defen would creatе an element convictions is request. denied this dant. The trial court Williams, charged. v. United States statutes, the state Applying the York New 735, (3d Cir.1979), 740 cert. de 612 F.2d division, upheld court, appellate supreme nied, 934, 100 63 S.Ct. 445 U.S. court, that “it incum stating was the trial (1980),the defendant was con L.Ed.2d 770 beyond prove, upon prosecution bent violating prohibiting a statute victed of that the victim suf a reasonable doubt” receiving firearms felon from Hills, convicted injury, 532 physical fered serious There, the commerce. shipped in interstate “[Ejxcept in and ruled: N.Y.S.2d at required join provides government other was a statute situations where 456 stipulation accept stipulation to his proffered to order the State to

defendant’s convictions, proffered by because it “had a defendant. prior felony proof point on the admit proffer omitted.) (Citation The Arizona ted.” II Appeals has held that the State is Court Because we have determined that accept stipulation required as to a evidence of defendant’s prior felony convictions when relevant to establish an essential ele- legitimate has a need to charged, ment of the crime it is admissible stip the defendant offers to facts to which (see appropriate part at the time of trial Leonard, 1, 8, v. 151 Ariz. ulate. State III, probative infra) unless “its value is (defendant (Ct.App.1986) of P.2d substantially outweighed by danger of stipulate to his DWI convic fered to prejudice.” unfair Utah R.Evid. 403. As tions, the crime statutory elements of Bishоp, stated in State is bound “[T]he undue before charged, to avoid facts, stipulate to use an alternative jury); see also United States v. Fle proof, forego mode of or to introduction of (8th Cir.1983); noid, Peo 718 F.2d if the material the evidence it offers cannot Martinez, 1071-72 ple 403_” satisfy rule 753 P.2d at Huston, (Colo.Ct.App.1985);People v. here, 475. We conclude as we did Bish- 70, 72-73, 446 N.E.2d Ill.App.3d op, prosecutorial that it is clear that the Hall, (1983). People But see 28 Cal.3d significant need for the evidence since 844, 849, 143, 152, Cal.Rptr. 616 P.2d it an essential element of established 826, (1980), for the rationale a 831 behind probative and the value sim- requiring prosecutor to minority rule a ac ply substantially outweighed by not cept proffered stipulation and refrain danger prejudice. Bishop, the of unfair introducing crimes evidence of other 753 P.2d at 476. prove jury. that essential element to the to Because the evidence was relevant and recently abrogated by the This rule was prove admissible to an element of the crime 28(f) I, adoption of article section charged, need not address the issues Constitution, explained as California concerning raised admissibili Valentine, 170, 182-83, 42 People v. Cal.3d 404(b) 405(b). ty under rules These 25, 32-33, 913, 720 P.2d 920- Cal.Rptr. 228 crimes, prohibit rules the use of “other (1986). 21 prove wrongs, or acts ... to the character case, person the had of a in order to show that he acted In the instant State beyond conformity therewith.” Such evidence is prove the to a reasonable burden previously purposes, other such as that defendant had admissible for doubt motive, intent, opportunity, prep felony involving “proof the use or convicted of “a aration, person” plan, knowledge, identity, or ab threat of violence to a sub addition, 5—202(l)(h). The State has the sence of mistake or accident.” section 76— right every element of a the character or trait of character of prove to essential convincing person an element of a crime in mаnner within “is essential the most may charge proof of evidence and fair ... also be made of the bounds of the rules 707, 716, Lerch, Or.App. specific instances of his conduct.” We do play. 63 State v. note, however, (1983); that evidence is not 840, v. 666 P.2d 847 State Cren “[t]he 807, 488, shaw, 789, solely if it is relevant to show a 659 P.2d admissible 98 Wash.2d to commit a crime.” (1983); propensity 498 also United States v. Elli see 192, (Utah (8th Cir.1986), Pacheco, son, 942, 712 P.2d 195 948-49 793 F.2d denied, 813, 415, 1985) denied, 937, 107 479 U.S. 107 S.Ct. S.Ct. 93 cert. cert. 479 U.S. 64, (1986); (1986); 93 L.Ed.2d 22 see also State v. v. L.Ed.2d 366 United States Cir.1986), (Utah 1986); (5th 1301, Davis, 1299, 1307 Shaffer, 1305-06 725 792 F.2d 738, Saunders, 964, 741 denied, 107 S.Ct. v. rt. 479 U.S. cе Graham, 1985). (1986). M. Hand generally 93 We conclude See L.Ed.2d 409 (2d refusing 404.5 ed. err in book Federal Evidence that the trial court did not 457 Here, say two-stage jury To con that trial 1986). the evidence specific English-Connecticut style probably to is was admitted victions charged, solely fairest, some commentators and suggested, commit the courts have propensity to and with which show defendant’s might agree we well the matter ‍​‌‌​‌​‌​‌‌​‌​​​​​​​​‌‌‌‌​​‌​​​‌‌‌​​‌‌‌​​​​​‌‌​​‌‍crime. were legislative in a rule-making before us the issues raised need not address Wе context, cry a far is from a constitutional concerning admissibility of under rule 609 method of han- determination this impeachment pur- dling problem compelled by poses. Two-part jury Fourteenth Amendment. jurisprudence; they trials rare in our are Ill compelled by have never been this Court directly does chal- While defendant law, as a of constitutional or even matter constitutionality lenge of subsection procedure. as a matter federal 76-5-202(l)(h), he contends that his consti- 567-68, Texas, Spencer U.S. impartial a fair trial an tutional 655-56, 17 L.Ed.2d at 616-17. The S.Ct. sixth amendment jury under the Lonberger, also cites Marshall v. I, Constitution and article United States 843, 853, n. n. U.S. S.Ct. 12 of the Utah Constitution was section 646, 661, (1983), n. cert. 74 L.Ed.2d de convic- violated when evidence nied, 481 U.S. 107 S.Ct. guilt phase of tions was admitted (1987), as reaffirmation of L.Ed.2d 850 presump- He further asserts trial. Spencer v. Texas. favor under Utah tion innocence 76-1-501(1) (1978) jeopar- Code Ann. § case of In our recent State Bish argues that for the same reason. He dized child sexual abuse statute faced op, Utah’s particularly avoidance case, challenge. “[t]he the de similar the Court had alter- compelling where that the trial court erred fendant contended reasonably present nate method in which to interpreting 76-5-404.1(3)(g) subsection preserving while still case permit ag find (Supp.1988) rights” suggests that the defendant’s gravating circumstances enumerated there used a bifurcated the court should have guilt phase of the criminal during in our approach similаr to that used habit- Bishop, 484. He as 753 P.2d at action. Code Ann. ual statute. Utah criminal from suffered that the subsection serted There, (1978). to 76-8-1002 76-8-1001 infirmities, §§ the es constitutional various prior convictions of evidence a defendant’s argument being that it inter sence a presented to the until after is not fair trial. with his a fered guilt has been made determination of response, stated: we charge. primary U.S. Pennsylvania, McMillan [477 79, 2411, (1986),] 91 L.Ed.2d 67 no 106 S.Ct. responds that there was The State Supreme Court said: presenting evi the United Stаtes constitutional violation to conclude that dur should hesitate prior convictions of defendant’s “[W]e dence pursuing process the State trial, due bars ing guilt because phase of defining course the area a its chosen legislature such convictions had made penalties.” The prescribing charged. crimes and the crime statutory has chosen have the Texas, legislature 385 state Spencer v. support, For it cites found in 606, the circumstances reh’g jury consider 554, 648, 17L.Ed.2d 87 U.S. S.Ct. Allowing suсh (3)(g) at trial. 18 subsection denied, 87 S.Ct. 386 U.S. crim- guilt phase of a during the Texas evidence (1967), habit 125 L.Ed.2d patently is offensive inal action not upheld even was ual criminal statute used procedure sometimes pro is the a bifurcated though require it not did The fact penal other statutes.... informed ceeding jury to be but allowed the might have of this Court some members guilt on convictions before differently in issue the statute drafted charges were determined: primary 458 render

does not invalid statute admission of a defendant’s convic- unconstitutional. This is conclusion pursuant 76-5-202(l)(h) tions to subsection changed legislature because has seen guilt phase of the trial is error. We fit to the trier allow of fact to consider next consider whether error in the in- uncharged guilt bad acts in stant case resulted in requiring phase proceeding. criminal If a reversal. constitutional, proper statute is it 30(a) Rule of the Utah Rules of Criminal legislature’s for this court to edit the error, defect, Procedure states: “Any ir- work to conform the so that statute it regularity or variance which does not af- reads in accordance with this Court’s fect rights the substantial of a party shall view on how the statute should have disregarded.” be Utah See also R.Evid. been drafted. 103(a). We interpreted have this standard (citations Bishop, omitted). 753 P.2d at 487 to mean that an error warrants reversal statute, said, “promotes legit- “only persuades if review the record legislative objective imate without under- the Court that without the error there was mining principle guilt must be ‘a reasonable likelihood more favor- by probative established evidence and be- ” able result the defendant.’ State v. yond Bishop, a reasonable doubt.” (Utah Knight, 1987)(em- 734 P.2d P.2d at 488. phasis original); Fontana, (Utah 1984) (quoting State reasoning applies This equally to Hutchison, 76-5-202(l)(h) subsection of our first de 1982)). We have further stated: “It gree statute, uphold murder and we its entirely require consistent with this aim to constitutionality. note, however, We that when error has a reviewing eroded Justice Zimmerman advocated a bifurcated court’s confidence in par- the outcome of a approach to determine ‍​‌‌​‌​‌​‌‌​‌​​​​​​​​‌‌‌‌​​‌​​​‌‌‌​​‌‌‌​​​​​‌‌​​‌‍the questions of ticular guilt we should start over and con- eligibility for enhancement under section duct a new trial.” Knight, 76-5-404.1. P.2d at 920. 753 P.2d at (Zimmerman, J., concurring in the re thorough Our review of the record con- sult); Gardner, see also State v. 101 Utah vinces us that the preju- error was below (Zimmer 13-14, 31, 1989) (Jan. Adv.Rep. requires dicial By trial. new defen- man, J., concurring). opinion, In that Justice admission, own dant’s he caused the death was that bifurcation Zimmermandetermined only the victim. The issue trial was noncon- constitutional and required on both degree whether homicide first agreed. Durham grounds. Justice stitutional murder, murder, second manslaugh- agree Justice did not Stewart that bifurca negligent ter or The homicide. constitutionally tion was required, but con offenses, instructed these lesser and curred with Justice that a Zimmerman bi provided verdict forms were each. De- approach furcatеd is necessary even on specifically fendant the jury asked for a grounds nonconstitutional error avoid manslaughter clearly conviction and based by trial. This is further clarified Justice his defense on the elements of that crime. Wareham, Stewart in v. State P.2d theory of the defense was that (Utah 1989). approach Such an “spur crime of killing the moment” may very well avoid defen committed under of “ex- circumstances deciding dant of jury guilt while a his treme emotional disturbance” and “causеd charged. In the recent case State by person happens the circumstances that a James, 1989), (Utah v. 767 P.2d an upon” (finding to come the victim and Dana interlocutory appeal we unani before together bed). naked Montes on a Defen- mously supervisory exercised our inherent theory in dant’s that he acted “heat of power over trial courts and ordered a bifur passion” clearly sought to establish that proceeding cated in the trial defendant’s Thus, culpable 76-5-202(l)(h). mental subsection state was less than majority knowing. of this Court has determined that or intentional crimes evidence before the defen- do that “evidence of We not doubt guilt has underlying charge other acts tremen- on the convictions and bad dant’s potential to the finder of fact sway separately only I dous determined. write unfairly” and increases the likelihood my to the note continued adherence views — Gardner, P.2d at-n. separate conviction. in State expressed my opinion J., concurring). light of (Zimmerman, (Utah v. 494-99 theory manslaughter suffi- and 1988), by joined in which were whole Jus- it, support in the record to cient evidence part tice Durham and Justice Stew- — allowing jury say that cannot now we Gardner, see State v. art, P.2d-, to consider evidence -(Jan. 31, 1989) (separate opinions of determining culpable mental before Stewart, J., J.). Zimmerman, confidence was harmless error. Our state is eroded to the extent in the verdict DURHAM, J., concurs in the error, like- is a reasonablе there absent concurring ZIMMERMAN, opinion of J. lihood the outcome would have to defendant. more favorable presented evi-

The fact that State aggravating alternate circum-

dence de- could convict

stance which capital homicide does not

fendant of 76-5-202(l)(d)

change conclusion. our “intentionally knowing-

(where the actor the death of another” ly causes Utah, Appellee, Plaintiff and STATE burglary “aggravated bur- course [or] v. prejudicial error occurred be- glary”). The MATRE, Homer Lewis VAN whether de- fore the could determine Appellant. Defendant fendant committed the knowingly causpng] the “intentionally or No. 20640. addition, find death another.” Supreme Utah. Court of “overwhelming- that the evidence does support[ under this theo- ly a conviction” ] June 1989. Tillman, ry. 1987). reversed, and conviction is

Defendant’s for a new trial which

the case is remanded our compliance be with

shall bifurcated James

decisions

Wareham. STEWART,

HALL, C.J., J.,

concur.

ZIMMERMAN, (concurring Justice result). reached Justice

I concur result rec- specifically in its opinion,

Howe’s

ognition when evidence out of to the conduct which

unrelated arose

charges in the case before court

is made legislature, a of this Court majority

requires the trial be bifurcated of such unrelated

avoid the introduction

Case Details

Case Name: State v. Florez

Court Name: Utah Supreme Court

Date Published: Jun 29, 1989

Citation: 777 P.2d 452

Docket Number: 870003

Court Abbreviation: Utah