Lead Opinion
OPINION
1 1 Jeffrey Michael Gallup appeals his convictions for failing to respond to an officer's signal to stop, a third degree felony, see Utah Code Ann. § 41-6a-210(1) (2010); speeding,
BACKGROUND
T2 The facts are not disputed. On October 22, 2008, at approximately 11:22 p.m., Utah Highway Patrol Trooper Jared Clanton clocked a vehicle traveling eighty-eight miles per hour in a sixty-five mile-per-hour zone on the southbound side of Interstate 15 (I-15) in Lehi, Utah. The trooper pulled the vehicle over and communicated the vehicle's license plate number to dispatch. The trooper identified the vehicle as a blue, four-door BMW with rear- and side-window tinting.
T3 As the trooper approached the vehicle from the passenger side, it suddenly accelerated and sped away. The trooper did not have a chance to turn on his flashlight but did briefly observe the driver through the tinted rear passenger side window. The driver was silhouetted by the squad car's headlights, and the rear view mirror was tilted so that the trooper could not catch a glimpse of the driver's face in its reflection. The trooper observed that the driver was a white male with brown hair, between thirty and thirty-five years old, and between 190 and 200 pounds. A car chase ensued, but the trooper eventually terminated his pursuit after following the BMW off the highway into a residential area of Lehi.
T4 The trooper ascertained that Jeffrey Gallup was the registered owner of the BMW and obtained a driver license image of Gallup. The license picture was consistent with the trooper's brief observation of the BMW driver. The trooper then obtained Gallup's phone number and called the number at around 12:20 a.m.-about one hour after the initial speeding incident occurred. A male voice answered the phone, and the trooper asked, " 'Is Mr. Jeffrey Gallup there? " The person at the other end of the line responded, "'This is Jeffrey'" The trooper then identified himself and stated, "'I was wondering if you could tell me your location. I'd like to meet with you for just a few minutes and talk to you about an incident'" The telephone line was silent for a moment before Gallup hung up the phone with no further discussion or comment. Charges were filed in March 2009, several months after the October incident.
15 A jury trial was held on January 5, 2010, at which time Gallup raised several issues in a motion in limine.
T6 At trial, the State focused its direct examination of the trooper on the phone call and particularly on the fact that Gallup hung up on the trooper:
[Trooper]: . I explained who I was. "I'm Trooper Clanton with the Highway Patrol, and I was wondering if you could tell me your location. I'd like to meet with you for just a few minutes and talk to you about an incident," and there was-and then at that point there was a brief moment of silence, possibly a second or so, and then the conversation ended.
[Prosecutor]: Okay.
[Trooper]: The person on the other end of the phone hung up the phone.
[Prosecutor]: So he hung up on you?
[Trooper]: Correct.
[Prosecutor]: He didn't say, "Hey, I'm glad you called. I wanted to talk to you. Someone has my car," anything like that?
[Trooper]: No.
[Prosecutor]: Just hung up on you?
[Trooper]: Yes.
T7 After the State rested its case, Gallup decided to testify in his defense even though he "had not intended ... to testify." Gallup explained that "[ilf [he] had been successful on the objection to the ... phone call evidence coming in, he would have had no reason to testify, and he would not have been testifying" but that "because [he] was overruled on that, and that evidence came in, it appear[ed] necessary that he ... testify." The State objected on the grounds that Gallup's testimony as to the incident would "nee-essarily implicate whether or not he was present in the vehicle" and would thus constitute an alibi defense of which the State had not received notice. See generally Utah Code Ann. § 77-14-2(1) (2008) (requiring a defendant intending to introduce alibi evidence to notify the State of such within at least ten days before trial).
T8 Gallup argued that section 77-14-2(8) permits a defendant to testify on his own behalf regardless of whether he complied with the notice requirement. The trial court disagreed, determining that the section Gallup characterized as an exception "simply means if he wants to establish his own alibi and doesn't have other witnesses he may do so, but he still has to give notice." The trial court ruled that Gallup would be permitted to testify in vague terms-ie., that he does not recall where he was the night of the incident, or that he knows he was not on I-15 that night-but that the court "would strike any testimony that startled] to establish a [specific] place where [Gallup] was that night, as opposed to being on the freeway at the time the officer was chasing this particular vehicle that was registered to him."
T 9 Ultimately, Gallup testified simply that he was not driving the BMW at the time of
the incident
[Prosecutor]: At that point didn't it seem important to talk to the officer a little more about the incident and figure out what he was talking about?
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[Gallup]: At that time, no.
[Prosecutor]: Didn't seem important to ask the officer more about what he was calling you about?
[Gallup]: At that time, no, I did not know why he was calling me.
[Prosecutor]: Okay. Did you ask the officer, "Hey, why are you calling me?"
[Gallup]: I did not, and he did not relate that to me.
[Prosecutor]: Okay, did he-why didn't you respond to him when he said, "This is Trooper Clanton. I've been on the freeway. I want to talk to you about some events that happened tonight[?"]
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[Prosecutor]: Why did you hang up on him?
[Gallup]: I was under the impression he was calling on another matter.
[Prosecutor]: Okay, so did you then follow up with him about that matter and ask more questions, or did you just hang up on him?
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[Gallup]: I hung up on Officer Clanton at that point.
110 During closing arguments, the State emphasized the importance of the phone call, noting that "when [Gallup] had an opportunity ... within an hour of this incident, he failed to take that opportunity to talk to the officer about the incident, to explain it away somehow." The State continued,
What happened was he hung up the phone. Is that reasonable to believe that he was just confused. That he was just exercising his right to remain silent. Is that what he said to you today? Did he say, "I decided to exercise my right to remain silent, and I hung up." That's not what he said.
Gallup objected, arguing that "the defendant's not required to say that[,] and [that] making comments upon his exercising of that right in closing is inappropriate." The court overruled the objection but cautioned that "enough [had] been said" on the matter. The State ended its closing argument stating, "Hanging up that phone, ladies and gentlemen, showed his consciousness of guilt."
{11 After closing arguments and during deliberations, the jury submitted a question to the trial court asking, "'Would it have been allowed for the prosecuting attorney to ask the defendant where he was on the night of October 227" The court drafted an answer, with the attorneys for each party present, that stated, "Due to an earlier evidentia-ry ruling made by the court, neither party was allowed to ask that question." The jury subsequently found Gallup guilty on all charges. Gallup now appeals.
ISSUES AND STANDARDS OF REVIEW
112 Gallup argues that the trial court committed error when it admitted the telephone call evidence and excluded his alibi testimony. "[Wle grant a trial court broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion," which "may be demonstrated by showing that the [trial] court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling." Daniels v. Gamma W. Brachytherapy, LLC,
ANALYSIS
I. Admissibility of the Telephone Call Evidence
113 Gallup argues that admission of the telephone call evidence, particularly the evidence surrounding the hang-up, violated his pre-arrest right to remain silent. The trial court justified the admission of the telephone call evidence as part of the State's case-in-chief under the Utah Rules of Evidence, ruling that silence can constitute a party admission under the hearsay rules and that admission of Gallup's silence was not more prejudicial than probative. We agree with Gallup.
114 The Fifth Amendment to the United States Constitution provides, "No person shall be ... compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V.
The Fifth Amendment right to silence is a comprehensive privilege that "can be claimed in any proceeding, be it eriminal or civil, administrative or judicial, investigatory or adjudicatory.... [I]t protects any disclosures which the witness may reasonably apprehend could be used in a criminal prosecution or which could lead to other evidence that might be so used."
State v. Palmer,
115 A person is protected from "'compelled self-incrimination at all times, not just upon arrest or during a custodial
T 16 The facts of this case are quite similar to those in State v. Palmer,
{17 Here, Gallup hung up the phone on the police officer and explained during arguments on his motion in limine that the hangup was an exercise of his right against self-incrimination. The State argued that Gal-Tup's silence via the hang-up inexorably demonstrated his guilt. But, as the trooper indicated on cross-examination, Gallup was not obligated to answer his questions or have a conversation with him: Gallup was "free to say whatever [he] want[ed], or not to speak." Thus, the import of the trial court's ruling admitting Gallup's silence placed Gallup in "a veritable 'Catch-22'" because both of his options-to speak with the trooper or to remain silent-would be admissible against him. See id. at 349 (quoting Fencl,
118 Therefore, the trial court's admission of the silence evidence was error. The fact that the Rules of Evidence may have permitted admission of Gallup's silence under different circumstances is irrelevant here. The Rules of Evidence cannot trump Gallup's right against self-incrimination. See Utah R. Evid. 501 ("Except as provided in the Constitutions of the United States and the State of Utah [and in the Rules of Evidence], no person shall have a privilege to withhold evidence. ..."); State v. Travis,
II. Exclusion of Alibi Testimony
119 Next, Gallup argues that the trial court erred when it limited the seope of his alibi testimony.
(1) A defendant, whether or not written demand has been made, who intends to offer evidence of an alibi shall, not less than ten days before trial or at such other time as the court may allow, file and serve on the prosecuting attorney a notice, in writing, of his intention to claim alibi. The notice shall contain specific information as to the place where the defendant claims to have been at the time of the alleged offense and, as particularly as is known to the defendant or his attorney, the names and addresses of the witnesses by whom he proposes to establish alibi....
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(8) If a defendant or prosecuting attorney fails to comply with the requirements of this section, the court may exclude evidence offered to establish or rebut alibi. However, the defendant may always testify on his own behalf concerning alibi.
Utah Code Ann. § 77-14-2(1), (3) (2008). The statute also grants the trial court discretion to waive the requirements of the statute when "good cause" is shown. See id. § 77-14-2(4). "The overriding consideration in evaluating any notice-of-alibi claim must be the avoidance of unfair surprise or prejudice to either party, not an exaltation of technical formalities." State v. Ortiz,
1 20 When we interpret a statute, "we first examine the statute's plain language and resort to other methods of statutory interpretation only if the language is ambiguous." State v. Masciantonio,
121 Here, after the penalty for failing to comply with the notice requirement is established, the statute states, "However, the defendant may always testify on his own behalf concerning alibi." Utah Code Ann. § 77-14-28). The trial court interpreted this statement as subject to the notice requirement established in 77-14-2(1). We disagree with the trial court's interpretation.
22 The plain language of section 77-14-2 protects a defendant's ability to "testify on
123 This interpretation is in accordance with the primary purposes of section 77-14-2 to "avoid[ ] ... unfair surprise or prejudice," see Ortiz,
IIL Prejudicial Error
¶ 24 Having determined that various errors were committed at trial, we must analyze whether those errors, either individually or cumulatively, warrant reversal by "undermin[ing] our confidence in the verdict," see State v. Palmer,
v25 We believe the trial court's errors each individually warrant reversal. This was a case based on credibility in which the jury had to determine whether the trooper's testimony was credible enough to warrant conviction. The silence evidence impermissi-bly bolstered the State's case by directly putting Gallup's credibility into question before he had even opened the door to such an attack. Without the inference of guilt the State drew from Gallup's hanging up the phone and its repeated references to his having done so throughout the trial, the State's case consisted entirely of the trooper's testimony that the BMW was registered to Gallup and that the brief glimpse he caught of the profile of the silhouetted driver through the rear tinted window was consistent with the driver license picture of Gallup that the Trooper later acquired. The trooper only had a few seconds to see the driver from his obstructed vantage point before the vehicle sped away, and he testified that his description of the driver as a brown-haired, thirty-something, 190-to-200 pound male "would fit quite a few people in the population." Likewise, Gallup's testimony indicated that some of the trooper's observations were incorrect-that his BMW was grey, not blue, and that Gallup weighed approximately 220 pounds at the time of the incident. In other words, without the telephone call evidence, this was a close case and it is not clear for which side the fact-finder would have resolved the conflicts in the evidence. However, the telephone call evidence and the State's arguments that an innocent person would not have behaved as Gallup did on the telephone tipped the weight of the evidence in favor of the State. Thus, we believe admission of the evidence of silence was not "harmless beyond a reasonable doubt," Calliham,
¶ 26 Likewise, the trial court's error in prohibiting Gallup from testifying as to alibi was sufficiently prejudicial to warrant reversal. The only real issue in the case was the identity of the BMW driver that night. Initially, Gallup's trial strategy appeared to rely on the State's lack of solid evidence placing him in the BMW that night, but once the silence evidence was admitted, Gallup had to change courses and his alibi became of utmost importance.
CONCLUSION
127 We reverse and remand for a new trial based on the trial court's error in admitting evidence of Gallup's silence, the State's improper use of that evidence throughout its case-in-chief, and the trial court's incorrect interpretation of Utah Code section 77-14-2.
Notes
. The trial court treated Gallup's evidentiary challenges as a motion in limine, although it is unclear if that is actually how the issues were raised. Additionally, several of the challenges presented in that motion are not at issue on appeal and are therefore not recounted here.
. Gallup also testified that his car was gray, not blue as the trooper indicated, and that at the time of the incident, he weighed approximately 220 pounds, not between 190 and 200 pounds. Gallup also explained that the tint on his car windows provided a "35 percent light diffusion," which is a "high ... level of tint."
. Utah and the Tenth Circuit both recognize a pre-arrest right against self-incrimination, see United States v. Burson,
. The State contends that any right Gallup had to refuse to answer the trooper's questions had to be exercised explicitly, i.e., by telling the trooper he was exercising his right to remain silent. The
. ur Gallup also contends that exclusion of his alibi testimony violated his due process rights. However, because of the manner in which we resolve the alibi issue, we do not address this argument.
. Several other jurisdictions have rules containing language similar to that in section 77-14-2. See, eg., Fed.R.Crim.P. 12.1(e) ("If a party fails to comply with this rule, the court may exclude the testimony of any undisclosed witness regarding the defendant's alibi. This rule does not limit the defendant's right to testify."); Mass. R.Crim. P. 14(b)(1)(D) ("Upon the failure of either party to comply with the requirements of this rule, the judge may exclude the testimony of any undisclosed witness offered by such party as to the defendant's absence from or presence at the scene of the alleged offense. This rule shall not limit the right of the defendant to testify."); N.H. Super. Ct. R. 100 (providing that the notice requirements established by the rule "shall not limit the right of the defendant to testify in his own behalf concerning the alibi notwithstanding he has not filed notice"). New York has gone a step further and interpreted its alibi notice statute as limiting the "preclusive provisions contained [in the alibi notice statute] ... to witnesses who a defendant seeks to call to establish an alibi" despite the statute's lack of any reference, "explicitly or by implication, to a defendant" and his right to testify. People v. Peace,
. When addressing the alibi issue, Gallup's trial counsel was unsure of the scope of Gallup's proffered testimony. Although there may be competing inferences to be drawn from this lack of knowledge, see infra ¶ 36, it is consistent with Gallup's trial counsel's representation that he did not intend for Gallup to testify and therefore was simply not prepared to describe the details of the testimony.
Concurrence Opinion
(concurring in result):
I 29 I concur in the result. While I agree that reversal is required, I differ with the majority on several key points.
1. Telephone Call
T 30 The majority correctly applies State v. Palmer,
{31 The State makes a different argument. It contends that Gallup's silence could properly be used in the State's case-in-chief because Gallup never invoked his right to remain silent. Relying primarily on Miranda cases, in particular Berghuis v. Thompkins, -- U.S. --,
182 Berghuis addresses what a custodial suspect must do to end an interrogation. The United States Supreme Court held that a custodial suspect "who wants to invoke his or her right to remain silent [must] do so unambiguously." Id. at 2260. The Court applied the phrase "invoke his or her right to remain silent" in the context of the rule that a suspect, by invoking his or her right to remain silent, may end the interrogation. It thus refused to treat "an ambiguous or equivocal act, omission, or statement" either as "an invocation of Miranda rights" or as requiring "police to end the interrogation." Id. In keeping with this holding, the Court stated that, had the suspect in that case said he wanted to remain silent or not talk with police, "he would have invoked his ' "right to cut off questioning.""'" Id. (quoting Michigan v. Mosley,
T33 Consequently, I do not agree that Berghuis or any other judicial opinion addressing a suspect's Miranda rights applies here.
2. Alibi Testimony
134 I agree with the majority that the trial court misinterpreted the alibi statute. See Utah Code Ann. § 77-14-2 (2008). However, the State also argues that the trial court's interpretation of the statute was harmless. I agree that it was.
135 "[Wle will not set aside a verdict because of the erroneous exclusion of evidence unless a proffer of evidence appears of record, and we believe that the excluded evidence would probably have had a substantial influence in bringing about a different verdict." State v. Rammel,
36 The trial court ruled that Gallup could testify that "he doesn't have a memory or he doesn't know where he was that night," but that he could not testify that "I was at a specific place that night." In something akin to a pre-trial proffer, Gallup's counsel told the court, "I believe that his testimony is going to be that he is going to not recall exactly where he was on that night." And at trial, Gallup testified only that he did not recall being in Utah County that night. Nothing in the record indicates that, but for the court's ruling, Gallup could or would have testified that he was at a specific place. Accordingly, while the trial court committed error, I see no basis in the record to determine whether the error affected the outcome of the trial.
3. Prejudice
T 37 The Supreme Court held in Chapman v. California,
138 The State argues that, even without evidence of Gallup's silence, the remaining evidence leaves no reasonable doubt of his guilt and thus admission of the evidence of silence was harmless beyond a reasonable doubt. Like the majority, and for reasons well stated in the majority opinion, I am not persuaded by this argument.
39 But the State also makes an alternative argument. Citing Jenkins v. Anderson,
40 In sum, I would reverse and remand based solely on the admission of Gallup's pre-arrest silence in the prosecution's case-in-chief in violation of the Fifth Amendment as interpreted by Palmer. This error has not, in my view, been demonstrated to be harmless beyond a reasonable doubt.
. Berghuis v. Thompkins, -- U.S. --,
. Even if Berghuis did apply, I see nothing equivocal in Gallup's exercise of his right to remain silent and to end the conversation. Hanging up on Trooper Clanton asserted these rights more definitively than any form of words.
. The State also cites Owens v. State,