STATE of Utah, Plaintiff and Appellee, v. Gino MAESTAS, Defendant and Appellant.
No. 20000094.
Supreme Court of Utah.
Dec. 20, 2002.
2002 UT 123
¶ 48 Justice HOWE, Justice RUSSON, and Justice WILKINS concur in Associate Chief Justice DURRANT‘s opinion.
¶ 49 Chief Justice DURHAM concurs in the result.
Scott C. Williams, Joan C. Watt, Salt Lake City, for defendant.
DURHAM, Chief Justice:
¶ 1 We granted Gino Maestas‘s petitions for interlocutory appeal from two pre-trial orders. The first order denied Maestas‘s motion to present expert testimony concerning eyewitness identification. The second concerned a previous trial on the same charges in which Maestas had been convicted of aggravated robbery, but his convictions were reversed on appeal. The district court granted the state‘s motion to introduce in the second trial Maestas‘s statements from his presentence report and his allocution from the first trial.
¶ 2 The following opinion is divided. As to the admission of expert testimony, a majority of the court—Associate Chief Justice Durrant with Justice Wilkins concurring and Justice Russon with Justice Howe concurring—holds that the trial court did not abuse its discretion in denying defendant‘s motion for the admission of expert testimony. Chief Justice Durham dissents.
¶ 3 As to the admission of defendant‘s inculpatory statements from his first trial, a majority of the court holds that such statements are inadmissible, and therefore reverses the trial court‘s ruling. There is unanimous agreement on the inadmissibility of the defendant‘s inculpatory statements contained in his presentence report. Regarding the inadmissibility of the defendant‘s allocution statement, Justice Russon and Justice Howe concur with Chief Justice Durham that it is inadmissible, but for different reasons. Associate Chief Justice Durrant and
BACKGROUND
¶ 4 On the evening of February 20, 1995, two robberies were reported near downtown Salt Lake City.1 The first occurred at a Top Stop convenience store shortly after 8:00 p.m. The robber, dressed in a two-tone blue jacket and wearing a dark mask covering the lower part of his face, confronted a store clerk with a gun and demanded money. The robber took between thirty and forty dollars from the cash register and six dollars from the clerk‘s wallet. The store clerk reported that the robber jogged to a car parked approximately one block away. The clerk was unsure about his description of the car due to the rainy weather conditions and poor lighting, but thought it was a gold-colored, mid-1980‘s model Camaro.
¶ 5 Sometime between eight-thirty and nine on the same evening, a similarly-dressed person entered a Pizza Hut and robbed several persons. The robber took between $160 and $170 from the cash register, including approximately $10 in change, $15 to $20 from one employee, $6 from another employee, a day-planner pouch containing $15 in bills and change from one of the customers, and several crumpled dollar bills from another customer. The robber demanded that two other employees surrender their wedding rings, but they refused to do so. None of the victims of the robbery saw how the robber left the area, but a witness outside the Pizza Hut informed police that someone had driven from the parking lot in a blue 1977 or 1978 Camaro.2
¶ 6 At approximately nine p.m., an officer investigating the Pizza Hut robbery noticed Gino Maestas‘s (Maestas) blue 1978 Camaro parked in the driveway of an apartment building approximately three-and-a-half blocks from the Pizza Hut. The officer discovered the car‘s hood was still warm and that it contained a blue and green jacket and a few crumpled dollar bills. Watching from across the street, the officer observed Maestas and a friend, Mary Sisneros (Sisneros), come out of the apartment building and drive away in the Camaro. Shortly thereafter, police converged on the Camaro and arrested Maestas.
¶ 7 At trial, Maestas testified in his own defense. He asserted he had not committed the robberies, maintaining he had been at a family party at Sisneros‘s residence from about 5:30 p.m. until the time he and Sisneros attempted to go to a store but were stopped by the police. Although the robber wore a hat and mask over his mouth and nose, several witnesses positively identified Maestas at trial. Defense counsel did not request that the trial court give a cautionary instruction concerning the reliability of eyewitness identification testimony.
¶ 8 The jury convicted Maestas of eight counts of aggravated burglary. Prior to sentencing, as part of the presentence investigation, Maestas handwrote a “Statement of the Offense” for an Adult Probation and Parole (AP & P) investigator. In his statement, Maestas admitted committing the robberies and provided several details not adduced at trial: he stated he committed the robberies to get money “to get high” and that he used a toy gun. Maestas‘s statements were included in the presentence investigation report (presentence report).
¶ 9 The sentencing matrix in the presentence report indicated a prison sentence of seven years for each of the eight counts. When asked by the sentencing judge if he had anything to say before sentence was pronounced, Maestas, unaware that he would successfully appeal his convictions and win a new trial based on ineffective assistance of counsel, took the court‘s invitation to explain something about who he is and how he came to be in his unhappy situation. Specifically,
¶ 10 The court then sentenced Maestas to five years to life for each of the eight counts of aggravated robbery, and added a firearm enhancement of one year to each count. In addition, the court ruled that count I, arising from the Top Stop robbery, and count II, arising from the robbery of one of the individuals at Pizza Hut, would run consecutively. The remaining six counts, all arising from the Pizza Hut robberies, would run concurrently with counts I and II.
¶ 11 On appeal, we reversed Maestas‘s convictions, holding that he had received ineffective assistance of counsel at his trial. Maestas I, 1999 UT 32 at ¶¶ 32-37, 984 P.2d 376. Specifically, we held that “trial counsel‘s failure to request a cautionary eyewitness instruction . . . [had] prejudiced Maestas.” Id. at ¶ 37.
¶ 12 On remand to the district court for retrial, Maestas moved to suppress the eyewitness identifications provided by seven witnesses to the robberies. The court heard testimony from six of the seven witnesses and reviewed the testimony of all the witnesses in the transcripts of the first trial. With respect to three of the witnesses, the court granted Maestas‘s motion, concluding that the positive identifications provided by those witnesses were not sufficiently reliable. The court denied the motion as to the four remaining witnesses.
¶ 13 Maestas and the state also submitted a number of pre-trial motions to admit evidence. Specifically, Maestas moved to allow expert testimony relative to eyewitness identification and moved to suppress the inculpatory statements he made prior to sentencing in the first trial. The state moved to admit the statements. The court denied Maestas‘s motion to present expert testimony regarding the reliability of the eyewitness identifications, ruling that a jury instruction could sufficiently inform the jury of “concerns about and factors affecting accuracy of eyewitness identification.” The court further concluded that “allowing an expert to testify on the unreliability of eyewitness testimony would have a significant tendency to cause the jury to abdicate its role as a fact finder.”
¶ 14 With respect to inculpatory statements from the sentencing phase of his first trial, Maestas argued that admission of those statements on retrial would compromise his rights to allocution and appeal, would violate his Fifth Amendment right against self-incrimination, and would violate
¶ 15 Maestas petitioned this court for permission to appeal both the order denying permission to present expert testimony and the order admitting his inculpatory statements from the presentence report and the sentencing hearing. The state concurred in this petition, and we granted Maestas permission to appeal both interlocutory orders.
ANALYSIS
¶ 16 We first note the scope of our review on interlocutory appeal. See
I. MAESTAS‘S MOTION TO PRESENT EXPERT TESTIMONY ON EYEWITNESS IDENTIFICATIONS
¶ 17 The first issue presented by Maestas is whether the trial court erred in refusing to allow expert testimony regarding eyewitness identifications. The court held that four of the eyewitnesses to the robberies will be permitted to testify that Maestas is the person who committed the robberies. As to the
¶ 18 Concerns about eyewitness testimony were central to our holding in Maestas I, where we noted that prior cases “have summarized the empirical studies questioning the reliability of eyewitness identification.” 1999 UT 32 at ¶ 25, 984 P.2d 376. Specifically, in State v. Long, we observed that “[t]he studies all lead inexorably to the conclusion that human perception is inexact and that human memory is both limited and fallible.” 721 P.2d 483, 488 (Utah 1986). In connection with the first trial, we held that Maestas‘s counsel rendered ineffective assistance by failing to take action to educate the jury about the limitations on the reliability of eyewitness identifications. Maestas I, 1999 UT 32 at ¶ 30, 984 P.2d 376. In Maestas I, we explained that expert testimony was a possible method by which Maestas‘s attorney might educate the jury regarding the limitations of eyewitness identifications. Id. We held that in the absence of a legitimate tactical basis for refusing to do so, effective assistance requires, at a minimum, that defense counsel request a cautionary instruction. See id. at ¶¶ 32, 37.
¶ 19 Maestas now asserts that he cannot receive a fair trial without presenting expert testimony on the credibility of eyewitness identification. I agree, and would reverse as to this issue. The general rule for admissibility of expert testimony is set out in
¶ 20 In Hollen, this court held that the trial court‘s ruling excluding the expert‘s opinion did not exceed the “limits of reasonability,” after placing the “trial court‘s decision in its proper context.” Id. at ¶ 67. We considered that the expert was permitted to give extensive testimony regarding the factors affecting the reliability of eyewitness identifications, and was only limited in expressing his overall opinion on eyewitness identification. Id. at ¶¶ 67-68. Since the expert in Hollen had already been given an opportunity to educate the jury on the impact of eyewitness identification, we found that the trial court did not abuse its discretion. Id. at ¶ 69.
¶ 21 In State v. Butterfield, this court also upheld the exclusion of expert testimony because the expert‘s testimony “did not deal with the specific facts” of the case, but “would constitute a lecture to the jury about how it should judge the evidence.” 2001 UT 59, ¶ 44, 27 P.3d 1133. In Butterfield, the expert was not familiar with the defendant or the facts of the case and he would only have outlined for the jury the general principles of psychological knowledge which illuminate the problems of eyewitness performance. Id. In addition, there was “no showing that the excluded evidence would probably have had a substantial influence in bringing about a different verdict.” Id. at ¶ 43 (quoting State v. Malmrose, 649 P.2d 56, 61 (Utah 1982)).
¶ 22 The circumstances of this case differ from those in Butterfield and Hollen. Unlike in Hollen, where the trial court allowed the expert on eyewitness testimony to testify about the factors that affect the reliability of identifications, the trial court here did not allow an expert on eyewitness testimony to testify at all. The expert was not allowed to give any testimony about the factors that affect the reliability of identifications, or relate his knowledge gained after examining specific facts from this case. In addition, unlike in Butterfield where the expert was not familiar with the facts of the case, Dr.
¶ 23 Finally, in State v. Long this court warned that “research has convincingly demonstrated the weaknesses inherent in eyewitness identification[; however,] jurors are, for the most part, unaware of these problems.” 721 P.2d 483, 490 (Utah 1986). The Long instruction itself, while better than no education at all, can only give the jury general information, which itself only comes after all the evidence is in. Expert testimony, targeted to the specific evidence in the case, will be far more helpful to the jury in considering whether witnesses are in fact correct in identifying a particular defendant as a perpetrator. Recent experience with the re-examination of evidence in capital and other felony cases, using new DNA identification techniques, has conclusively established that eyewitnesses can be mistaken, for many reasons that are beyond the general knowledge and experience of the average juror. See Gary L. Wells, http:www.psychology.iastate.edu/faculty/gwells/homepage.htm (summarizing seven recent Associated Press articles examining the wrongful convictions of 110 inmates who were exonerated by the use of DNA testing; their collective prison time exceeded 1,000 years). Jurors, as well as defendants, are entitled to the information experts on human memory can provide about its operation. Although the weaknesses of eyewitness identification will not warrant automatic allowance of eyewitness experts in all cases, given all the factors in this case, expert testimony will act to clarify eyewitness testimony and ensure that Maestas receives a fair trial.
¶ 24 In light of our holdings in Hollen, Butterfield and Long, I would therefore hold that defendant‘s expert must be allowed to testify at trial.
II. ADMISSION OF MAESTAS‘S INCULPATORY STATEMENTS FROM THE SENTENCING PHASE OF HIS FIRST TRIAL
¶ 25 Maestas next challenges the trial court‘s order allowing the prosecution to admit inculpatory statements he made following his first trial in his presentence report and at the sentencing hearing. We address first the admissibility of Maestas‘s statements in his presentence report, concluding that the provisions of the
A. Admissibility of the Presentence Report
¶ 26 After being convicted of the robberies at his first trial, Maestas hand-wrote his version of the robberies on a “Statement of the Offense” form, which was then included as part of the presentence report. In his statement, Maestas admitted to robbing the “restaurant” and “gas station.”
¶ 27 After Maestas was granted a new trial in Maestas I, the prosecution sought to admit his statements from his presentence report during the new trial. Because the trial court concluded that “nothing in the record suggest[ed] that defendant‘s written statement
¶ 28 Maestas appeals this ruling, raising several constitutional and statutory claims. In particular, Maestas contends that admission of the statements from his presentence report would violate (1) his Fifth Amendment privilege against self-incrimination; (2) his right to allocute and appeal; (3) subsection
¶ 29
(5) (a) Prior to the imposition of sentence, the court may, with the concurrence of the defendant, continue the date for the imposition of the sentence for a reasonable period of time for the purpose of obtaining a presentence investigation report from the [D]epartment [of Corrections] . . . .
(b) The presentence investigation report shall include a victim impact statement . . .
(c) The presentence investigation report shall include a specific statement of pecuniary damages . . . .
(d) The contents of the presentence investigation report . . . are not available except by court order for purposes of sentencing as provided by rule of the Judicial Council or for use by the department.
¶ 30 As discussed below, Maestas overlooks the fact that the disclosure limitations specified in
¶ 31 Strict access control during the report‘s preparation apparently arose out of the legislature‘s concerns over releasing possibly inaccurate information. During the preparation phase, the parties have not had an opportunity to challenge the report‘s accuracy. This opportunity comes once the Department of Corrections completes its preparation of the report, as shown in
(6) (a) The department shall provide the presentence investigation report to the defendant‘s attorney, or the defendant if not represented by counsel, the prosecutor, and the court for review, three working days prior to sentencing. Any alleged inaccuracies in the presentence investigation report, which have not been resolved by the parties and the department prior to sentencing, shall be brought to the attention of the sentencing judge, and the judge may grant an additional ten working days to resolve the alleged inaccuracies of the report with the department. If after ten
working days the inaccuracies cannot be resolved, the court shall make a determination of the relevance and accuracy on the record. (b) If a party fails to challenge the accuracy of the presentence investigation report at the time of sentencing, that matter shall be considered to be waived.
¶ 32 After completion of the review detailed in
¶ 33
(14) Presentence investigation reports, including presentence diagnostic evaluations, are classified protected in accordance with
Title 63, Chapter 2, Government Records Access and Management Act . NotwithstandingSections 63-2-403 and63-2-404 , the State Records Committee may not order the disclosure of a presentence investigation report. Except for disclosure at the time of sentencing pursuant to this section, the [D]epartment [of Corrections] may disclose the presentence investigation only when:(a) ordered by the court pursuant to
Subsection 63-2-202(7) ;(b) requested by a law enforcement agency or other agency approved by the department for purposes of supervision, confinement, and treatment of the offender;
(c) requested by the Board of Pardons and Parole;
(d) requested by the subject of the presentence investigation report or subject‘s authorized representative; or
(e) requested by the victim of the crime discussed in the presentence investigation report or the victim‘s authorized representative, provided that the disclosure to the victim shall include only information relating to statements or material provided by the victim, to the circumstances of the crime including statements by the defendant, or to the impact of the crime on the victim or the victim‘s household.
¶ 34 Of particular relevance to the trial court‘s order in this case is
¶ 35 We thus turn to
¶ 36 By its terms,
(7) A government entity shall disclose a record pursuant to the terms of a court order signed by a judge from a court of competent jurisdiction, provided that:
(a) the record deals with a matter in controversy over which the court has jurisdiction;
(b) the court has considered the merits of the request for access to the record; and
(c) the court has considered and, where appropriate, limited the requester‘s use and further disclosure of the record in order to protect . . . privacy interests or the public interest in the case of other protected records;
(d) to the extent that the record is properly classified . . . protected, the interests favoring access, considering limitations thereon, outweigh the interests favoring restriction of access; and (e) where access is restricted by . . . statute . . . referred to in
Subsection 63-2-201(3)(b) , the court has authority independent of this chapter to order disclosure.
¶ 37 Since the trial court apparently was not made aware of
¶ 38 Based on our analysis, we conclude that, as a matter of law, disclosure of the report does not satisfy the requirements of
(1) Maestas‘s admissions concerning the robberies in his presentence report “deal[ ] with a matter in controversy over which the [trial] court has jurisdiction.”
(2) by granting the state‘s request for disclosure, the court apparently “considered the merits of the request for access to” Maestas‘s statements in the report.
(3) although “access to [the report] is restricted by a . . . statute [i.e.,
¶ 39 We are not satisfied, however, that the two remaining conditions specified by
¶ 40 Second, we conclude that even limited disclosure of the presentencing report is unwarranted. In particular,
¶ 41 Under the circumstances, we hold that the interests favoring non-disclosure prevail. Accordingly, we reverse the trial court‘s order allowing the prosecution to admit in its case-in-chief Maestas‘s statements in his presentence report. Having determined that the
B. Admissibility of the Allocution
¶ 42 We next turn to the question of whether the trial court erred in ruling admissible Maestas‘s allocution statement. Maestas contends admission of the statement violates his right to be placed in “the same position” on retrial under
¶ 43 Maestas contends that his allocution statements are inadmissible on retrial under
¶ 44 Citing the language of
¶ 45 We decline to decide whether
1. Allocution Under the Common Law and Utah Law
¶ 46 At common law, allocution was the formal inquiry of one already convicted of a capital or treasonous offense before passing sentence; it was used to determine if a legal cause would prevent the sentence‘s execution. See Caren Myers, Note, Encouraging Allocution at Capital Sentencing: A Proposal for Use Immunity, 97 Colum. L.Rev. 787,
¶ 47 Even prior to the writing and adoption of our state constitution, Utah territorial law required the physical presence of a convicted felon at sentencing. Compiled Laws of Utah, Code of Criminal Procedures, Title VII, § 5102 s 326 (1888). If a defendant did not appear for sentencing after being released on bail, and was subsequently brought to court pursuant to a bench warrant, defendant had to “be asked whether he has any legal cause to show why judgment should not be pronounced against him.” Id. at § 5108 s 332. Subsequently, the Utah Constitution guaranteed a defendant “the right to appear and defend in person.”
¶ 48 Allocution is an “inseparable part” of the right to appear and defend in person guaranteed by the Utah Constitution. State v. Anderson, 929 P.2d 1107, 1109-10 (Utah 1996). This court has previously addressed allocution, literally “[a] speaking to [or] addressing[,]” 1 Oxford English Dictionary, 236 (1961), under
Utah Rule of Criminal Procedure 22 implements the constitutional right [of allocution], providing:(a). . . .
Before imposing sentence the court shall afford the defendant an opportunity to make a statement and to present any information in mitigation of punishment, or to show any legal cause why sentence should not be imposed.
State v. Anderson, 929 P.2d at 1109-10 (emphasis added) (quoting
¶ 49 The right to allocution would be meaningless if a convicted person‘s allocution statements could be used against him or her in a subsequent prosecution. Under such a rule, a competent attorney would almost always advise the client against allocuting, at least in any case in which an appeal is contemplated. See Myers at 789 n. 9. Trial judges would have to inform defendants at allocution that their statements could be used against them at any retrial. It is not likely that defendants would be willing to make any incriminating admissions after such a warning.
¶ 50 This case need not turn on constitutional questions, however, because the policy embodied in
2. Admissibility Under Rule 24(d)
¶ 51
If a new trial is granted, the party shall be in the same position as if no trial had been held and the former verdict shall not be used or mentioned either in evidence or in argument.8
¶ 52 Our court has held that “[w]hen interpreting statutes, our primary goal is to evince ‘the true intent and purpose of the Legislature.‘” Utah v. Tooele County, 2002 UT 8, ¶ 10, 44 P.3d 680 (citing Jensen v. Intermountain Health Care, Inc., 679 P.2d 903, 906 (Utah 1984)). The plain language of the statute provides us with the road map to the statute‘s meaning, helping to clarify the intent and purpose behind its enactment. Id. (citations omitted). When reading the statutory language, our purpose is “to render all parts [of the statute] relevant and meaningful,” id. (emphasis added) (citing Millett v. Clark Clinic Corp., 609 P.2d 934, 936 (Utah 1980)), and thus, we “presume the legislature use[d] each term advisedly and . . . according to its ordinary meaning.” Id. (citing Nelson v. Salt Lake County, 905 P.2d 872, 875 (Utah 1995)). As a result, we “avoid interpretations that will render portions of a statute superfluous or inoperative.” Id. (citing Hall v. Utah State Dep‘t of Corr., 2001 UT 34, ¶ 15, 24 P.3d 958) (other citation omitted).
¶ 53 As is the case in construing statutes, this court‘s rules of practice and procedure require close attention to their exact language. “It is an elementary rule of construction that effect must be given, if possible, to every word, clause and sentence of a statute . . . . No clause[,] sentence or word shall be construed as superfluous, void or insignificant if the construction can be found which will give force to and preserve all the words of the statute.” Norman J. Singer, 2A Sutherland Statutory Construction § 46:06 (4th ed.1984). Therefore, our analysis of
¶ 54 Another important rule regarding “whole statute” interpretation, also relevant to the construction of procedural rules, states: “A statute is passed as a whole and not in parts or sections and is animated by one general purpose and intent. Consequently, each part or section should be con-strued in connection with every other part or section so as to produce a harmonious whole.” Singer, supra, § 46:05.
¶ 55 Allocution has long played an important role in sentencing following conviction, perhaps as much for psychological as for legal reasons. There are significant differences between the fact-finding and sentencing aspects of a trial. As Justice Powell has stated, “The sentencer‘s function is not to discover a fact, but to mete out just deserts [sic] as he sees them.” Bullington v. Missouri, 451 U.S. 430, 450, 101 S.Ct. 1852, 68 L.Ed.2d 270 (1981) (Powell, J., dissenting) (capital case). The Hebrew High Holiday liturgy provides an apt example of the role allocution plays in judgment. After confession of individual and communal wrongs, the supplicants beseech God to deal with them compassionately, requesting mercy even though they have no worthy deeds to present to the judge. (“Avinu Malkeinu,” Mahzor for Rosh Hashana and Yom Kippur, the Rabbinical Assembly, United Synagogue of America, 750-52 (Rabbi Jules Harlow ed., 1997 printing)). That even the guilty may plead for mercy or compassion is fundamental to our legal system. As
¶ 56 We acknowledge the dilemma faced by the system here: Why should a defendant be able to seek the benefits of a confession at9 allocution, but avoid the costs at retrial? On the other hand, should the exercise of the right to plead for mercy deprive a defendant who has been unlawfully convicted of a clean slate at his or her retrial? On balance, we conclude that it is better to permit a defendant to freely exercise his right to petition for mercy, however much he might be tempted to shade the tenor or accuracy of his remarks, than to require his petition to be made in the shadow of a future prosecution. In fact, the competing values and motives operating at trial and at sentencing create some doubt that confessions obtained at the latter will be entirely reliable. Most defense counsel and many defendants are well aware that claims of innocence, after a trial has resulted in an adjudication of guilt, are not only likely to fall on deaf ears, but also may offend or disturb the sentencer, who must consider factors such as a defendant‘s acceptance of personal responsibility and willingness to be rehabilitated. Furthermore, a defendant‘s attitude toward the crime for which he has been convicted, as reflected in his statement to the court at allocution, may also affect the way he is viewed and treated by the Board of Pardons and Parole if he is imprisoned. Finally, in some cases, defendants convicted of certain crimes are not even eligible for probation and treatment programs at sentencing unless they confess guilt. See, e.g.,
CONCLUSION
¶ 57 Again, we note that the opinion is divided. Regarding the admission of expert testimony, the majority of this court affirms the trial court‘s denial of Maestas‘s motion.
¶ 58 As to the second issue, regarding the district court‘s order permitting the state‘s introduction of Maestas‘s inculpatory statements from his presentence report and his allocution during the sentencing phase of his first trial, the majority of this court reverses the district court‘s order. Neither the presentence report nor statements from the allocution are admissible for use by the state in its case-in-chief.
¶ 59 We remand for proceedings consistent with this opinion.
DURRANT, Associate Chief Justice, dissenting in part and concurring in part:
¶ 60 I respectfully dissent as to parts I and II.B of Chief Justice Durham‘s lead opinion. In part I, Chief Justice Durham would adopt a rule eliminating the trial court‘s discretion by requiring that expert witness testimony be admitted in cases where eyewitness identification is at issue. In my view, this rule is both unjustified and overly broad. In part II.B, she would create a new rule of criminal procedure that requires the suppression of all allocution statements made by defendants, including confessions. I believe that the lead opinion fails to offer adequate justification for such a new rule.
ANALYSIS
I. MAESTAS‘S MOTION TO PRESENT EXPERT TESTIMONY ON EYEWITNESS IDENTIFICATIONS
¶ 61 I disagree with Chief Justice Durham‘s conclusion that Maestas‘s expert on witness identification “must be allowed to testify at trial.” I consider this new rule an unjustified extension of our case law and inconsistent with
A. Our Prior Case Law Does Not Mandate a New Rule Requiring the Admission of Expert Testimony
¶ 62 Contrary to the view expressed in the lead opinion, other cases that have recently addressed the admission of eyewitness expert testimony do not support the conclusion that trial courts must allow expert testimony on eyewitness identification. Chief Justice Durham concludes that these cases, read in light of our holding in Maestas I, support a determination that the trial court abused its discretion when it refused to allow Maestas‘s expert to testify. However, a close examination of our case law provides no such support for this position.
¶ 63 Concerns about expert testimony on eyewitness identification were central to our holding in Maestas I, where we noted that our prior cases “have summarized the empirical studies questioning the reliability of eyewitness identification.” 1999 UT 32 at ¶ 25, 984 P.2d 376 (citing State v. Ramirez, 817 P.2d 774, 779-80 (Utah 1991); State v. Long, 721 P.2d 483, 488-92 (Utah 1986)). Although we held that Maestas‘s counsel had rendered ineffective assistance by failing to educate the jury about the limitations of eyewitness identifications, we did not state that expert testimony was necessary for Maestas to receive a fair trial on remand. Maestas I, 1999 UT 32 at ¶ 30, 984 P.2d 376. Rather, we held that, in the absence of a legitimate tactical basis for refusing to do so, effective assistance requires, at a minimum, that defense counsel request a cautionary instruction. Id. at ¶¶ 32, 37. Although expert testimony is one method of educating the jury about the
¶ 64 Similarly, none of the cases relied on by Chief Justice Durham support the rule that expert testimony must be admitted in this case. In fact, our recent case law contradicts her conclusion by consistently upholding the trial court‘s discretion.
¶ 65 The lead opinion would create a rule entitling defendants “to the information experts on human memory can provide about its operation,” relying on “our holdings in Hollen, Butterfield and Long.” However, Long only addressed whether giving a jury instruction on eyewitness identification was appropriate. 721 P.2d at 487-92. Long did not address the admissibility of expert testimony on eyewitness identification. While we concluded in Long “that, at a minimum,” problems with eyewitness identifications warranted a special jury instruction, id. at 492, Chief Justice Durham now concludes that even more is mandated. However, our holding in Long recognizing the necessity of educating juries about the fallibility of eyewitness testimony does not justify the further conclusion that courts must admit expert testimony to provide that education.
¶ 66 Nor does Butterfield, 2001 UT 59, 27 P.3d 1133, support the creation of this new rule. In Butterfield, the trial court excluded the defendant‘s eyewitness identification expert‘s testimony for several reasons. In affirming that exclusion, we noted that the expert‘s testimony “did not deal with the specific facts from this case.” Id. at ¶ 44. The lead opinion in the case at bar focuses on this language, reasoning that because the expert would deal with the specific facts a different conclusion is warranted. However, in Butterfield we also found that the trial court appropriately exercised discretion by excluding the expert because his testimony “would [amount to] a lecture to the jury as to how they should judge the evidence,” id. at ¶ 43 (quoting State v. Griffin, 626 P.2d 478, 481 (Utah 1981)), and because the evidence “could cause confusion of the issues and could cause undue delay or waste of time during the trial.” Id. at ¶ 44. Finally, we upheld the trial court‘s exercise of discretion because ”Butterfield . . . made no showing that the proffered testimony would have had a substantial influence in bringing about a different verdict.” Id.; see also State v. Malmrose, 649 P.2d 56, 61 (Utah 1982). Our holding “that the trial court did not abuse its discretion in excluding . . . proposed expert testimony regarding eyewitness identification,” Butterfield, 2001 UT 59 at ¶ 44, 27 P.3d 1133, does not support Chief Justice Durham‘s conclusion that defendants are entitled to expert testimony.
¶ 67 Chief Justice Durham also finds support for this rule requiring the admission of expert testimony by distinguishing our holding in Hollen, 2002 UT 35, 44 P.3d 794, from the circumstances in this case. In Hollen, the trial court allowed the defendant‘s eyewitness identification expert to give “extensive testimony on factors that affect the reliability of identifications” but prohibited the expert from testifying on the “overall reliability of the process of identification.” Id. at 167. On review, this court concluded that the trial court appropriately exercised its discretion because the excluded testimony would not have been “helpful to the finder of fact.” Id. at ¶ 69 (citations omitted). Chief Justice Durham finds that the case at bar differs from Hollen because the trial court “did not allow an expert on eyewitness testimony to testify at all.” Based on the fact that this court affirmed the trial court‘s allowance of expert testimony in Hollen, Chief Justice Durham finds support for this new rule that expert testimony must be admitted in cases where eyewitness identification is central to the prosecution‘s case. Such a conclusion is unjustified. Our affirmation of a trial court‘s exercise of discretion to permit, with a limitation, an eyewitness expert‘s testimony does not justify, as Chief Justice Durham argues, a conclusion mandating the admission of expert testimony.
¶ 68 Even more recently, we have reviewed the exclusion of expert testimony on eyewitness identification and upheld the trial court‘s exercise of discretion. See State v. Hubbard, 2002 UT 45, 48 P.3d 953. In Hubbard, “the trial court gave a cautionary Long instruction instead of permitting expert testi-
We have not adopted a per se rule of inadmissibility of expert testimony regarding eyewitness identification. Instead, we recognize that whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court‘s discretion because of the trial court‘s superior position to judge the advisability of allowing such testimony.
Id. at ¶ 14. This recent decision emphasizes our determination to avoid the creation of a per se rule and to permit trial courts to exercise discretion when asked to admit expert testimony.
¶ 69 In sum, Chief Justice Durham‘s reliance on our case law to justify a new rule mandating the admission of expert testimony on eyewitness identification is unjustified. The cases cited in the lead opinion do not support the conclusion that trial courts must admit expert testimony. Rather, our case law validates the opposite conclusion—that trial courts may appropriately exercise discretion to exclude expert testimony.
B. The Proper Application of Rule 702 Does Not Require the Admission of Expert Testimony
¶ 70 In concluding that expert testimony on eyewitness identification is required, Chief Justice Durham also misconstrues
¶ 71 Interpreting
¶ 72 With respect to a trial court‘s denial of a party‘s motion to present expert testimony under rule 702, we have held that “[t]he trial court has wide discretion in determining the admissibility of expert testimony, and such decisions are reviewed under an abuse of discretion standard.” State v. Larsen, 865 P.2d 1355, 1361 (Utah 1993). Explaining further, we recently held that “the exercise of discretion . . . necessarily reflects the personal judgment of the court and the appellate court can properly find abuse only if . . . no reasonable [person] would take the view adopted by the trial court.‘” Butterfield, 2001 UT 59 at ¶ 28, 27 P.3d 1133 (alteration in original) (quoting State v. Gerrard, 584 P.2d 885, 887 (Utah 1978)). In this case, the trial court‘s refusal to allow Maestas‘s expert to testify can be overturned only if no reasonable person would make the same decision. If, however, the trial court reasonably determined to exclude expert testimony after considering elements of the Rimmasch test, it did not abuse its discretion.
¶ 73 In the case at bar, the only question with respect to the Rimmasch standard is whether the trial court appropriately found that the proposed eyewitness expert testimony did not meet the third prong of the Rimmasch test.1 Explaining the third prong, this court elaborated that the court should consider “whether, on balance, the evidence will be helpful to the finder of fact.” Rimmasch, 775 P.2d at 398 n. 8. Here, Maestas claimed the trial court erred in refusing to
¶ 74 The trial court also determined that the expert testimony Maestas sought to present “would have significant tendency to cause the jury to abdicate its role as a fact finder.” The risk that the jury will fail to perform its duty as an independent arbiter of the facts is a legitimate countervailing concern that must be balanced against the probative value of the proffered expert testimony. See Hubbard, 2002 UT 45 at ¶ 15, 48 P.3d 953. In regard to this balance, the trial court held that Maestas could adequately present the scientific bases concerning the fallibility of eyewitness identifications by means of “thorough instructions on the concerns about and factors . . . set forth in the Long case.” Such instructions give Maestas the opportunity to “educate the jury with respect to the factors set forth in Long, . . . [and to] argue how each of those factors could have affected particular eyewitnesses.” Maestas I, 1999 UT 32 at ¶ 30, 984 P.2d 376. Thus, the trial court‘s ruling was reasonable and does not preclude Maestas from presenting the basic information that he desired to relate to the jury via his expert witness.
¶ 75 Moreover, the trial court is in the best position to balance the probative value of proffered testimony against the risk of intrusion upon the fact-finding functions of the jury. Hence, we should accord it broad discretion in admitting or excluding expert testimony such as that in issue here. I would affirm the trial court‘s exercise of its broad discretion because I cannot conclude that “no reasonable person would take the view adopted by the trial court.”
¶ 76 In my view, it is clear, in light of both our case law and
II. RULE 24(d) OF THE UTAH RULES OF CRIMINAL PROCEDURE DOES NOT PRECLUDE THE ADMISSION OF MAESTAS‘S ALLOCUTION STATEMENT
¶ 77 I also disagree with Chief Justice Durham‘s proposal in part II.B to craft a new rule governing retrials resulting from appeals. Recognizing that
¶ 78 For two reasons, I dissent on this point. First, I disagree with Chief Justice Durham‘s proposed use of this court‘s supervisory authority to promulgate a new rule of criminal procedure mirroring
¶ 79 Because I conclude that
A. The Court‘s Inherent Supervisory Power Should Not Be Used to Create a New Rule of Criminal Procedure
¶ 80 Concluding that
¶ 81 Our inherent supervisory power stems from our authority “to adopt rules of procedure and evidence to be used in the courts of the state.”
¶ 82 While we have relied on our inherent supervisory power to formulate new rules in the past, we only did so to explain or interpret existing case law, rules, or statutory requirements. See State v. Bennett, 2000 UT 34, ¶ 13, 999 P.2d 1 (Durham, J., concurring) (listing several Utah cases). This new rule does not explain or interpret existing case law, rules, or statutory requirements, however. It is a completely new rule regulating trials following appeal that has the effect of amending
¶ 83 By resorting to our inherent supervisory power, the lead opinion undermines our established rulemaking process, and implies that we can ignore our own process and procedures to achieve what is considered to be the appropriate decision. Any attempt to circumvent the procedures outlined in
B. The Intended Meaning of Rule 24
¶ 84 Chief Justice Durham‘s interpretation of
1. The Plain Language of Rule 24 and Rule 28 Demonstrates the Inappropriateness of Forging a New Rule Regarding New Trials Awarded By Appellate Courts
¶ 85 The plain language of
¶ 86 The inclusion of the “same position” language in
¶ 87 In contrast, a new trial following appellate review is subject to the “law of the case” doctrine. See Gildea v. Guardian Title Co., 2001 UT 75, ¶ 9, 31 P.3d 543; Thurston v. Box Elder County, 892 P.2d 1034, 1037-38 (Utah 1995); Plumb v. State, 809 P.2d 734, 739 (Utah 1990). “Under the law of the case doctrine, issues resolved by [an appellate court] bind the trial court on remand.” Gildea, 2001 UT 75 at ¶ 9, 31 P.3d 543. Because an appellate court generally resolves certain issues when it awards a new trial, the accused does not begin the new trial in the same position as he or she was in at the start of the original trial, when all issues were unresolved.
¶ 88 Accordingly, it is unlikely that the drafters of the rules of criminal procedure intended
2. The History and Purpose of the “Same Position” Language
¶ 89 While Chief Justice Durham “decline[s] to decide whether
¶ 90 Chief Justice Durham argues that the plain meaning of the “same position” language requires the restoration of both the defendant and the State to the same circumstances that existed prior to the faulty trial. After thus interpreting
¶ 91 Additionally, although case law on the “same position” language extends back to the nineteenth century in numerous jurisdictions, the lead opinion cites no cases, nor are we aware of any, applying the “same position” language to return the parties to the same position in terms of evidence. Indeed, Chief Justice Durham‘s interpretation is untenable in light of the purpose behind the “same position” language and the historical development of the rule containing it.
¶ 92 Contrary to Chief Justice Durham‘s conclusion, it appears certain that the drafters of the “same position” language intended it to protect the interests of the State, not the accused. Under nineteenth century common law, it was widely held that an appeal of a conviction did not constitute a waiver of the accused‘s double jeopardy rights. See, e.g., Trono v. United States, 199 U.S. 521, 530-31, 533-34, 26 S.Ct. 121, 50 L.Ed. 292 (1905). Under this common law rule, an accused who was granted a new trial could be retried only for the crime for which he or she was convicted. Id. at 531, 26 S.Ct. 121. The accused could not be retried for any other crimes for which he or she was placed in jeopardy, but not convicted, at the first trial. Id. In short, the common law placed the accused in a different position than he or she was in at the first trial in terms of double jeopardy.
¶ 93 To override this common law rule and permit the accused to be prosecuted for the same offenses as at the first trial, several states in the nineteenth century passed legislation that conditioned the awarding of a new trial on the accused being returned to the “same position” he or she was in prior to the first trial. Id. (noting that the “same position” language in state statutes was intended to act as a waiver of a defendant‘s right to claim that a second prosecution following a reversal violates double jeopardy); see also United States ex rel. Hetenyi v. Wilkins, 348 F.2d 844, 858 (2d Cir.1965) (noting that legislation containing the “same position” language had been passed in response to the common law rule and “authoriz[ed] reprosecution on the greater degree charged if the conviction on the lesser degree is reversed“); Commonwealth v. Arnold, 83 Ky. 1, 3, 6 (1884) (holding that pursuant to the legislature‘s prerogative to “prescribe . . . the terms upon which” one who has been convicted of a lesser included offense may have a new trial, the legislature could authorize retrial on the greater offense by prescribing that the “‘granting of a new trial places the parties in the same position as if no trial had been had,‘” quoting
¶ 94 Because Utah codified the “same position” language contemporaneously with other states that codified the exact same language, its drafters very likely had the same purpose: to ensure the State had the same flexibility as it had at the first trial in terms of charging and prosecuting the accused. This purpose had nothing to do with the exclusion of
b. Legislative History
¶ 95 In addition to not analyzing the historical purpose of the “same position” language, Chief Justice Durham overlooks another critical indicator of legislative intent. Because a legislature presumably intends to “change existing legal rights” when it amends a statute, courts attempting to discern a legislature‘s current intentions are careful to take into account the effect of statutory amendments. Olsen v. Samuel McIntyre Inv. Co., 956 P.2d 257, 261 (Utah 1998) (citations and internal quotations omitted). Significantly, Chief Justice Durham‘s interpretation does not account for a pertinent amendment following the codification of the “same position” language in the original territorial regulation. Specifically, a comparison of the territorial regulation interpreted in Hopt to the current
¶ 96 Case law from other jurisdictions directly supports this position. In Montana ex rel. Mazurek v. District Court, 2000 MT 266, 302 Mont. 39, 22 P.3d 166, for example, a trial court precluded the prosecution from using the defendant‘s testimony from his first trial during its case in chief at the new trial. Id. at ¶ 2. In reaching this conclusion, the trial court reasoned that the prosecution‘s use of defendant‘s prior testimony would violate a Montana statute that provided “the granting of a new trial places the parties in the same position as if there had been no trial.‘” Id. at ¶ 10 (quoting
¶ 97 On appeal, the State argued that a review of the historical changes in the statute “reveal[ed] that the Montana Legislature did not intend for the current version of [the statute] to preclude the use of prior testimony in a new trial.” Id. at ¶ 14. Agreeing with the State‘s argument, the Montana Supreme Court noted that, in addition to the “same position” language, an 1895 version of the statute had also included language that provided that “[a]ll the testimony must be produced anew.” Id. at ¶ 15 (quoting Mont. Rev. Code § 2191 (1895)). This language, noted the court, had precluded the use of prior testimony on retrial. Id. However, the Montana Legislature “delet[ed] the language requiring that testimony be produced anew” from the later versions of the statute. Id. at ¶ 17. The Mazurek court interpreted this modification as being “intended to change the existing law and allow the use of testimony from a prior trial in a new trial.” Id. at ¶ 18. Accordingly, the court concluded that the current statute did not preclude the prosecu-
¶ 98 The historical changes associated with
3. Modern Interpretations Involving Evidence
¶ 99 In addition to conflicting with the original intent and legislative history associated with the “same position” language, Chief Justice Durham‘s interpretation conflicts with modern cases dealing with the “same position” language in the context of evidentiary issues. These cases make clear that the “same position” language is not intended to place the parties in the “same position” in terms of what evidence they may use. Rather, cases applying the language clearly anticipate that parties on retrial will supplement the evidence from the first trial with additional evidence. For example, in Gospel Army v. Los Angeles, the United States Supreme Court held as follows:
[U]nder California law, the Gospel Army on the second trial to which it is entitled may amend its complaint and present new facts. Such a reversal remands the case for a new trial and places the parties in the same position as if the case had never been tried . . . . [On retrial, the] law must be applied by the trial court to the evidence presented [at] the second trial.
¶ 100 Cases like Gospel Army indicate that if the “same position” language applies at all in the evidentiary context, it requires that the parties have the same flexibility to discover and present evidence as they did at the beginning of the first trial. See also United States v. Akers, 702 F.2d 1145, 1148 (D.C.Cir.1983) (collecting cases demonstrating that “same position” and other similarly-worded requirements are intended to provide parties the same flexibility regarding evidence). Properly interpreted,
¶ 101 Chief Justice Durham‘s interpretation places the parties in a different position in terms of their ability to discover and use evidence. More specifically, by preventing further discovery of evidence, Chief Justice Durham‘s interpretation places the parties in a decidedly different position as compared to the start of the first trial, when the parties remained free to discover and rely upon new evidence.
4. Utah Case Law Concerning Newly Discovered Evidence
¶ 102 Chief Justice Durham‘s interpretation is also fundamentally incompatible with Utah precedent providing for a new trial based on newly discovered evidence. State v. James, 819 P.2d 781, 793 (Utah 1991) (holding that “to constitute grounds for a new trial,” newly discovered evidence must, among other things, “render a different result probable on the retrial of the case” (footnote and citation omitted)). Newly discovered evidence is, by definition, evidence that was not available at the start of the first trial. Id. By requiring that the parties be returned to the “circumstances that existed prior to” the first trial, Chief Justice Durham‘s interpretation would, by its terms, preclude the admission of newly discovered evidence on retrial.
¶ 103 In contrast, no such conflict exists with an interpretation of the “same position” language that affords the parties the same flexibility they had at the first trial in terms of presenting evidence. As in the first trial, on retrial both parties would be able to pres-
5. Summary
¶ 104 In summary,
¶ 105 Moreover, even assuming arguendo that the “same position” applies to reversals by an appellate court, neither the original intent, legislative history, nor modern interpretations of the language suggest that it was intended to constrain the parties to use only the evidence that was available at the beginning of the first trial. Indeed, Chief Justice Durham‘s interpretation cannot be reconciled with Utah case law under which a new trial may be awarded upon discovery of new evidence.
¶ 106 In contrast, an interpretation under which the parties are placed in the “same position” in terms of their ability to use all evidence available to them better comports with modern interpretations of the language and Utah precedent pertaining to newly discovered evidence. Under the correct interpretation of
C. Admission of Maestas‘s Statement in the Prosecution‘s Case in Chief Does Not Violate the Federal or State Constitutions
¶ 107 Having concluded that
¶ 108 Chief Justice Durham‘s comments regarding allocution seem intended to establish that an accused has a right to present a statement in mitigation at sentencing. This is a red herring given that Maestas had an opportunity to allocute and did so. The real issue is whether an accused who has obtained the benefits presumptively associated with allocuting also has the right to the additional benefit of suppressing the allocution statement on retrial, notwithstanding the State‘s and victims’ compelling interest in providing this highly probative evidence to the jury. As this section demonstrates, Maestas‘s right of allocution does not include the right to suppress the statement at a new trial.
¶ 109 Chief Justice Durham notes that the Anderson court stated that ”
¶ 110 It is also worth noting that the Utah Constitution does not expressly mention the right of allocution. Anderson, 929 P.2d at 1111. Rather, the Anderson court concluded that the right was implied by the constitution because the right to allocution “is an inseparable part of the right to be present.” Id. The right to suppress an allocution statement would be even further removed from the text of the Utah Constitution. Specifically, to conclude that the constitution provides this right would require an inference upon an inference: namely, that the right to suppress an allocution is implied by the right of allocution, which in turn is implied by the constitutional right to be present. Significantly, the right to suppress an accused‘s trial testimony has not been inferred from the constitutional right to testify in one‘s defense, even though the right to testify in one‘s defense is at least as important as the right of allocution and more universally recognized. See Harrison v. United States, 392 U.S. 219, 222, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968) (acknowledging and “not question[ing] the general evidentiary rule that a defendant‘s testimony at a former trial is admissible in evidence against him in later proceedings“); United States v. Girdner, 773 F.2d 257, 259 (10th Cir.1985) (holding that the defendant‘s Fifth Amendment argument was “without merit” because he had not invoked the right at the previous trial); State v. Tellay, 100 Utah 25, 28, 110 P.2d 342, 343 (1941) (holding that because the “defendant voluntarily, of his own violation, and under the guidance of his counsel, went upon the witness stand and told his story” in a previous trial, he could not argue against the admission of his testimony in a subsequent trial); People v. Evans, 58 N.Y.2d 14, 457 N.Y.S.2d 757, 444 N.E.2d 7, 12 (1982) (holding that neither the constitution nor statute required the exclusion of the defendant‘s pre-plea statements at retrial following appeal); 3 Charles E. Torcia, Wharton‘s Criminal Procedure, § 357 (13th ed. 1991 & Supp.2001) (stating a defendant who takes the stand “without asserting the privilege against self-incrimination . . . waive[s] the privilege as to the testimony, and hence such testimony may be used against him at a subsequent criminal trial“) [hereinafter Torcia].
¶ 111 Accordingly, I do not believe that we can legitimately conclude that the drafters of the Utah Constitution intended to entitle an accused to suppress his allocution statement. We should require a much clearer expression of this intent in the constitutional text, especially when the State and victims have a compelling interest in admitting evidence of guilt. As it stands, we would be creating the exclusionary rule virtually out of thin air.
2. No Federal Constitutional Theories Bar Admission of Maestas‘s Statement
¶ 112 None of Maestas‘s other constitutional arguments for suppressing his allocution statement are persuasive. Maestas argues that admitting the statement would violate his Fifth Amendment right against self-incrimination, that the use of his statement in a subsequent retrial places an unconstitutional restriction on his right to allocute, and that the statement should be excluded as fruit of
a. Fifth Amendment Violation
¶ 113 Relying on cases such as Mitchell v. United States, 526 U.S. 314, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999), Maestas contends that admission of his allocution statement violates his Fifth Amendment rights because (1) he did not knowingly and intelligently waive his privilege against self-incrimination, and (2) he was compelled to allocute to obtain leniency in sentencing. I conclude that the Fifth Amendment does not bar admission of Maestas‘s allocution statement.
i. Knowing and Intelligent Waiver
¶ 114 Maestas contends that the Fifth Amendment imposes a duty on the sentencing court to engage in a colloquy or otherwise ensure a convicted person is knowingly waiving his Fifth Amendment rights by making a statement. Yet, it is widely recognized that the Fifth Amendment does not require a judge to warn a represented defendant of his privilege against self-incrimination prior to testifying. Torcia, § 350 (citing, inter alia, United States v. Block, 88 F.2d 618 (2d Cir. 1937)). Although the United States Supreme Court has yet to directly apply this rule to statements at sentencing, the Court‘s related jurisprudence strongly supports such an application. In Roberts v. United States, 445 U.S. 552, 100 S.Ct. 1358, 63 L.Ed.2d 622 (1980), the Supreme Court placed the burden on the defendant or his counsel to recognize and claim the privilege against self-incrimination at sentencing. Id. at 559-61, 100 S.Ct. 1358. Since Roberts places no burden on the sentencing court to sua sponte advise the defendant of his privilege against self-incrimination, a fortiori, the sentencing court need not ensure knowledge of the privilege when it merely affords a defendant, in the presence of his counsel, the opportunity to make an open-ended statement pursuant to his right to allocute. Thus, a court has no duty to ensure, prior to an accused allocuting, that the accused knows of the privilege against self-incrimination.
¶ 115 Moreover, a defendant who testifies in an earlier prosecution “without asserting the privilege against self-incrimination[] is deemed to have waived the privilege as to the testimony, and hence such testimony may be used against him at a subsequent criminal trial.” Torcia, § 357; see also Tellay, 110 P.2d at 343. In short, admission of an accused‘s testimony from a proceeding in which the accused was represented by counsel does not violate the Fifth Amendment based on the fact that the judge presiding at the former proceeding did not inform the accused of his privilege against self-incrimination.9
¶ 116 Accordingly, Maestas‘s statement at his sentencing hearing is not rendered inadmissible at retrial because the sentencing court did not inform him of the privilege against self-incrimination.
ii. Voluntariness of the Allocution Statement
¶ 117 I next address whether Maestas‘s statement was compelled or involuntary. In contending that his statement at sentencing was involuntary, Maestas does not claim that the sentencing judge compelled him to attend, or participate in, the sentencing hearing. Nor does Maestas claim that the sentencing judge threatened him with a harsher penalty if he refused to admit to the robberies, or promised him leniency if he did. Instead, Maestas concedes in his brief that, after his conviction for the robberies, he allocuted to obtain leniency.10 The pressure to
¶ 118 Although a sentencing judge has the discretion to consider numerous factors in imposing sentence, including a defendant‘s acceptance of responsibility, any inducement this creates does not compel an accused to make self-incriminating statements within the meaning of the Fifth Amendment. See Harvey v. Shillinger, 76 F.3d 1528, 1531, 1535 (10th Cir.1996) (ruling that the defendant‘s allocution following conviction of various offenses was admissible at a later trial for conspiracy to commit the same offenses, even though the defendant had allocuted to obtain leniency). Applying the United States Supreme Court‘s Fifth Amendment jurisprudence to the specific context of statements made at sentencing, the Harvey court concluded as follows:
[T]he privilege against compelled self-incrimination is not offended when a defendant yields to the pressure to testify on the issue of punishment in the hope of leniency. A defendant‘s choice to exercise the right to allocution, like the choice to exercise his right to testify, is entirely his own; he may speak to the court, but he is not required to do so.
¶ 119 Chief Justice Durham argues that “[t]he right to allocution would be meaningless if a convicted person‘s allocution statements could be used against him or her in a subsequent prosecution.” Chief Justice Durham fears that defendants will not allocute after being informed that their statements could be used against them at any retrial. All defendants have the right to testify in their own behalf and the right to refuse to testify against themselves. These two rights weigh against each other. Once a defendant has determined to testify, that defendant effectively waives the right to remain silent and the right to avoid the consequences of remaining silent. Torcia, § 357. By rendering Maestas‘s allocution statement inadmissible in this case, however, the lead opinion would elevate the right to allocution above the right to testify in one‘s own behalf, allowing a defendant to allocute without waiving the right to remain silent. Allocution statements would receive substantially more protection than statements made at trial. Such disparate treatment is not justified.
¶ 120 I agree with the reasoning of Harvey and reject Maestas‘s claim that his allocution statement was compelled and thus inadmissible. In choosing to speak at sentencing, Maestas made a choice similar to those frequently made by criminal defendants: instead of remaining silent and avoiding self-incrimination, he tried to mitigate his sentence by admitting to the robberies. The fact that Maestas allocuted to obtain leniency does not make the statement compelled or involuntary under the Fifth and Fourteenth Amendments. To the extent that Maestas felt pressure to speak due to his attorney‘s earlier ineffective assistance at trial, it goes to the weight of the statement, not its constitutional admissibility. See Colorado v. Connelly, 479 U.S. 157, 164-67, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (noting that a confession is not involuntary or inadmissible under the Due Process Clause even when it results from “outrageous behavior” of a non-state actor). Accordingly, I would hold that the trial court correctly ruled that Maestas‘s allocution statement was voluntary.
b. Unconstitutional Condition on Right to Allocute
¶ 121 Maestas further argues that admitting his allocution statement at his new trial creates an “intolerable” conflict between the Fifth Amendment and his right to allocute
¶ 122 For this proposition, Maestas relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968), a case dealing with a conflict between the Fourth and Fifth Amendments. In holding that the inculpatory statements from a suppression hearing were inadmissible, the Simmons Court reasoned that it would be “intolerable” to condition the right to assert a Fourth Amendment claim on the waiver of a Fifth Amendment privilege against self-incrimination. Id. at 394, 88 S.Ct. 967.
¶ 123 The State correctly notes that United States Supreme Court decisions following Simmons have cast serious doubt on the continuing viability of its reasoning concerning conflicting constitutional rights. The United States Supreme Court decision in Ohio Adult Parole Authority v. Woodard, 523 U.S. 272, 285-86, 118 S.Ct. 1244, 140 L.Ed.2d 387 (1998), epitomizes the Supreme Court‘s decreased reliance on the “unconstitutional conditions” analysis in the Fifth Amendment context. Indeed, although the Woodard defendant alleged an unconstitutional conflict between his right to seek clemency and his right against self-incrimination, the Supreme Court summarily rejected this argument in concluding the clemency interview did not violate the Fifth Amendment. See id. at 286, 118 S.Ct. 1244.11 Having concluded that Maestas waived his privilege against self-incrimination and gave his statement voluntarily, I similarly reject Maestas‘s “unconstitutional condition” argument. Accordingly, Maestas‘s voluntary allocution statement is not rendered inadmissible because of any supposed conflict between his right to allocute and his privilege against self-incrimination.
c. Fruit of the Poisonous Tree
¶ 124 Moreover, Maestas argues that his statement should be excluded as fruit of the poisonous tree. Maestas does not, however, claim that his statement should be excluded because of police or prosecutorial misconduct. Rather he claims that his lawyer‘s ineffective assistance indirectly prejudiced him by causing him to allocute to obtain leniency. In Maestas I, we reversed Maestas‘s original conviction due to the direct prejudicial effect of his lawyer‘s failure to request a cautionary eyewitness instruction. Maestas I, 1999 UT 32 at ¶¶ 32-37, 984 P.2d 376. Maestas contends his allocution was therefore the “fruit” of a “poisonous tree,” i.e., his lawyer‘s ineffective assistance and the tainted verdict.
¶ 125 Although originally set forth in a Fourth Amendment context, Wong Sun v. United States, 371 U.S. 471, 484-88, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), the poisonous tree doctrine has since been extended to exclude the fruits of a violation of an accused‘s Sixth Amendment right to counsel. See United States v. Wade, 388 U.S. 218, 239-42, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); United States v. Terzado-Madruga, 897 F.2d 1099, 1112-13 (11th Cir.1990); United States v. Marshank, 777 F.Supp. 1507, 1519 (N.D.Cal. 1991). In these cases, however, exclusion of the “fruits” of the Sixth Amendment violation was consistent with the justification behind the “poisonous tree‘s” exclusionary rule—deterrence of official misconduct. See Wong Sun, 371 U.S. at 485-86, 83 S.Ct. 407; cf. State v. Allen, 839 P.2d 291, 300-01 (Utah 1992) (evaluating whether statements were “‘tainted’ by prior police misconduct” (emphasis added)). In contrast, Maestas does not contend that police or prosecutorial misconduct played any part in his counsel‘s failure to request a cautionary eyewitness instruction. As a result, exclusion of his allocution statement would not promote the deter-
3. Even If the Right of Allocution Requires Suppression of an Allocution Statement in Some Circumstances, It Does Not Require Suppression Under the Specific Facts of this Case
¶ 126 Even if a method of constitutional interpretation existed under which we could recognize a constitutional right to suppress an allocution statement, at best it would be a limited right. See Anderson, 929 P.2d at 1110-11 (rejecting an accused‘s argument that the right of allocution is an absolute right). In my mind, this would mean that the determination of whether or not to suppress an allocution statement would turn on the circumstances of each case and would involve consideration of countervailing interests. The circumstances in this case indicate that the interests in favor of allocution and suppression are weak, while the State‘s and victims’ interests in admitting Maestas‘s highly probative statement are compelling. Accordingly, I would rule that the State may admit Maestas‘s allocution statement, with the deletions I have noted in footnote 8, in its case in chief.
a. The Interests in Favor of Allocution and Suppression Are Weak in This Case
¶ 127 The right to allocute was originally recognized in part because the accused was considered incompetent to testify at trial. State v. Young, 853 P.2d 327, 370 (Utah 1993) (Durham, J., dissenting) (detailing historical justifications for allocution). While an accused today may testify on his or her behalf, an accused may instead exercise his or her Fifth Amendment right to remain silent during trial. When this occurs, the interests in favor of allocution are at their highest, because the accused has not yet addressed the court or given a statement in mitigation. Id. at 370-71 (arguing that although the original reasons for allowing an accused to allocute no longer exist, modern courts now justify it on the ground that it permits an accused to present mitigating information).
¶ 128 Here, however, Maestas not only testified at trial, but in so doing gave the ultimate in mitigating statements—he denied his guilt. His allocution rights were thus vindicated when he testified at trial. His admission of the crime at sentencing was not the exercise of any legitimate right; taken together with his contradictory trial testimony, it was a transparent attempt to manipulate the system. To now suppress Maestas‘s allocution statement would, in my mind, sanction and encourage such duplicity.
b. Society‘s and the Crime Victims’ Interests in Admitting Evidence of a Crime Outweigh Maestas‘s Interests in Excluding the Allocution Statement
¶ 129 Our system of criminal justice involves not only the rights of the accused, but also the interests of society and of crime victims. Maestas‘s rights have been given due respect. He was permitted to deny his guilt at trial when this was beneficial to him; he was permitted to admit his guilt at sentencing when that suited him; and he was granted a new trial in the absence of any official misconduct. To now conclude that he also has the right to exclude his voluntary and public admission does not, in my mind, give due respect to the compelling interests of society and the victims of this violent crime to have this highly probative evidence available to the jury on retrial. I would rule that his statement is admissible in the prosecution‘s case in chief.
CONCLUSION
¶ 130 Admission of expert testimony on eyewitness identification is a matter of discretion for the trial court. Because the trial court properly analyzed the issues under
¶ 131 In addition, I see no reason to ask society and the victims of this crime to turn a deaf ear to Maestas‘s voluntary allocution statement. Evidence is excluded when officials violate a person‘s constitutional rights to obtain it. The exclusion of the evidence, it is
¶ 132 Under Chief Justice Durham‘s analysis, defendants who voluntarily and publicly admit to their crimes in a self-serving attempt to obtain leniency at sentencing may, on retrial, exclude their admissions and thereby potentially escape conviction. Excluding the admission from the courtroom would not, of course, erase the admission from the minds of the victims or their family members who may have been present during the sentencing hearing.12 In a society built on respect for the rule of law, I have great concerns about creating a new rule under which persons who have admitted their guilt in open court can escape all consequences of that admission. Neither
¶ 133 Justice WILKINS concurs in Associate Chief Justice DURRANT‘s dissenting and concurring opinion.
RUSSON, Justice, dissenting in part and concurring in part:
¶ 134 I dissent as to part I of Chief Justice Durham‘s opinion, concur as to part II.A, and concur as to part II.B but for a different reason.
¶ 135 In part I of her opinion, Chief Justice Durham addresses the issue of whether the trial court abused its discretion in prohibiting Maestas from offering the testimony of an expert witness on the general infirmity and unreliability of eyewitness identification. I dissent from the Chief Justice‘s opinion on this issue for two reasons: (1) the trial court did not abuse its discretion in prohibiting the expert testimony, and (2) Chief Justice Durham‘s holding goes too far in suggesting that defendants are “entitled” to offer expert testimony of this nature and that defendants cannot receive a fair trial without it.
¶ 136 In this court‘s most recent pronouncement on the issue of the admissibility of expert testimony on the reliability of eyewitness identification, State v. Hubbard, 2002 UT 45, 48 P.3d 953, we held: “‘Whether expert testimony on the inherent deficiencies of eyewitness identification should be allowed is within the sound discretion of the trial court.‘” Id. at ¶ 14 (quoting State v. Butterfield, 2001 UT 59, ¶ 43, 27 P.3d 1133). In Hubbard, we reiterated that “whether to allow proffered expert testimony regarding eyewitness identification testimony is a matter best left to the trial court‘s discretion because of the trial court‘s superior position to judge the advisability of allowing such testimony.” Id. Under this standard of review, the trial court‘s ruling on the admissibility of expert testimony will stand unless the ruling “exceeds the limits of reasonability.” State v. Hollen, 2002 UT 35, ¶ 66, 44 P.3d 794 (citation omitted).
¶ 137 In the case at hand, nothing in the record indicates that the trial court abused its discretion in excluding the testimony of Maestas‘s expert. Chief Justice Durham‘s opinion fails to explain or demonstrate how the trial court abused its discretion or how the trial court‘s decision to exclude the expert‘s testimony exceeded the limits of reasonability. The lead opinion simply restates our past observations on the inherent deficiencies of eyewitness identification and merely asserts, without explanation, that “given all the factors in this case, expert testimony will only act to clarify eyewitness testimony.” Such conclusory statements and review of our previous case law are insufficient to reverse the trial court‘s ruling under our settled standard of review.
¶ 138 While this court‘s prior rulings and the lead opinion‘s questioning of the reliability of eyewitness identification is valid, the admission of expert testimony is not necessary in every case to inform the jury of the deficiencies of such identifications. Defense
¶ 139 The lead opinion essentially creates a per se rule of admissibility of expert testimony as to the deficiency of eyewitness identification when it holds that “defendants[] are entitled to the information experts on human memory can provide about its operation,” and when it “agree[s]” with Maestas that “he cannot receive a fair trial without presenting expert testimony on the credibility of eyewitness identification.” (Emphasis added.) We have refrained from adopting, either explicitly or implicitly, a per se rule of admissibility or inadmissibility of expert testimony regarding eyewitness identification testimony. Hubbard, 2002 UT 45 at ¶ 14, 48 P.3d 953. To hold that a defendant is entitled to such expert testimony would result in such experts being called by both the defendant and the prosecutor in every case. The decision on the admissibility of expert testimony in such cases should be left to the sound discretion of the trial court.
¶ 140 In regard to the lead opinion‘s treatment in part II.A of the admissibility of Maestas‘s statements in his presentence report, I concur. As to part II.B of the lead opinion, addressing the admissibility of Maestas‘s statements in his allocution, I concur but for a different reason. I agree with Chief Justice Durham‘s discussion and analysis of the history and role of allocution in the common law and in Utah law as set forth in part II.B.1 of the lead opinion. In that portion of the opinion, the Chief Justice notes that this court has “clearly and thoughtfully recognized a constitutionally guaranteed right to allocution [under the Utah Constitution].” The Chief Justice then correctly concludes that “[t]he right to allocution would be meaningless if a convicted person‘s allocution statements could be used against him or her in a subsequent prosecution.”
¶ 141 Instead of simply grounding its holding in this constitutional foundation, the lead opinion abandons this reasoning in favor of its
¶ 142 Justice HOWE concurs in Justice RUSSON‘s concurring and dissenting opinion.
Notes
The counsel for the defendant now contends that this allusion was in contravention of that section of the act of the territory regulating proceedings in criminal cases, which declares that “the granting of a new trial places the parties in the same position as if no trial had been had,” and that “all the testimony must be produced anew, and the former verdict cannot be used or referred to either in evidence or in argument.” [1878 Utah Laws § 317.] The object of this law was to prevent the accused from being prejudiced by reference to any former conviction on the same indictment. There was, in fact, no reference to any verdict on a previous trial, but merely a mention of the times the case had been before the courts, so as to magnify its importance.Id. (emphasis added).
I know that I had admitted to the robberies that I done. I do have remorse for the victims, you know, and I regret doing what I did. I can be changed person. I was I committed robbery before. I done time in prison. I got out, and I completed the programs and everything. I got caught up in drugs, which I have never had any offense for, and I got caught up in them, and I committed these robberies and my intents wasn‘t to hurt anybody. I wasn‘t going to hurt anybody.... I can be changed. I have showed that before.For the same reason, the prosecution is precluded from mentioning either that the statement was an allocution or that it originated at a sentencing hearing. This would not prevent Maestas from introducing this information, however, if he desires, for his own strategic purposes to do so. Cf. Hopt, 120 U.S. at 442, 7 S.Ct. 614 (noting that the object of similarly-worded Utah territorial statute “was to prevent the accused from being prejudiced by reference to any former conviction on the same indictment” (emphasis added) (construing 1878 Utah Laws § 317)). Nor would Maestas be prevented from arguing at trial that the Utah Rules of Evidence require exclusion of portions of the remainder, such as Maestas‘s reference to his earlier crimes.