ESAR MET, Appellant, v. STATE OF UTAH, Appellee.
No. 20140522
SUPREME COURT OF THE STATE OF UTAH
Filed November 21, 2016
2016 UT 51
This opinion is subject to revision before final
publication in the Pacific Reporter
2016 UT 51
IN THE
SUPREME COURT OF THE STATE OF UTAH
ESAR MET,
Appellant,
v.
STATE OF UTAH,
Appellee.
No. 20140522
Filed November 21, 2016
On
Third District, Salt Lake
The Honorable Judith S. H. Atherton
No. 081902720
Attorneys:
Herschel Bullen, Salt Lake City, for appellant
Sean D. Reyes, Att‘y Gen., John J. Nielsen, Asst. Solic. Gen.,
Salt Lake City, for appellee
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
and JUSTICE HIMONAS joined.
ASSOCIATE CHIEF JUSTICE LEE filed a concurring opinion.
JUSTICE PEARCE, opinion of the Court:
¶1 Defendant Esar Met appeals his convictions on one count of
aggravated murder, see
child kidnapping, see
felony. Met is currently serving two concurrent sentences of life in
prison without parole for these convictions.
MET v. STATE
Opinion of the Court
¶2 Met raises a panoply of issues on appeal. He challenges the
constitutionality and the district court‘s application of Utah‘s
noncapital aggravated murder sentencing statute,
76-3-207.7. He contends that the district court improperly ruled that
the State could use a transcript of his police interview for
impeachment purposes if he chose to testify. He also argues that the
police violated the Fourth Amendment to the United States
Constitution when they searched his apartment without a warrant
and that all evidence stemming from the allegedly illegal search
should have been suppressed. Met asks us to conclude that the
district court improperly admitted two photographs of the victim,
which he contends are prejudicially gruesome. He also argues that
the district court erred by declining to merge his child kidnapping
conviction with his aggravated murder conviction. Finally, he argues
that his trial counsel provided constitutionally ineffective assistance
by failing to pursue a mistrial motion related to the State‘s failure to
test and preserve certain evidence.
¶3 We conclude (1) that
constitutionally deficient, (2) that the district court did not abuse its
discretion with respect to the various evidentiary rulings Met
challenges, although in reaching that decision we abandon our prior
gloss on the Utah Rules of Evidence that had implemented a more
stringent threshold for the admission of potentially gruesome
photographs, (3) that the court did not err in declining to merge
Met‘s convictions, and (4) that, even assuming Met‘s trial counsel
provided ineffective assistance, counsel‘s performance did not
prejudice Met. We therefore affirm Met‘s child kidnapping and
aggravated murder convictions.
¶4 We conclude, however, that the district court erroneously
treated life without parole as the presumptive sentence for Met‘s
aggravated murder conviction. See
Accordingly, we remand the case for the limited purpose of
permitting the district court to clarify what impact its
misapprehension of the law had on its sentencing decision or for
resentencing on the aggravated murder charge. Finally, we affirm
the sentence of life in prison without parole for the child kidnapping
conviction.
BACKGROUND
¶5 On March 31, 2008, seven-year-old Hser Ner Moo (Victim)
was reported missing. The next day, she was found dead in the
Cite as: 2016 UT 51
Opinion of the Court
basement of a nearby apartment. Victim‘s body was badly injured,
and there were indications that she had been sexually assaulted.
¶6 Victim and her family were refugees from Burma, now
known as Myanmar. The
Victim‘s parents, who are ethnically Karen, to flee to a Thai refugee
camp.1 In 2007, Victim and her family were relocated from Thailand
to the Salt Lake City apartment where they were living when Victim
was killed.
¶7 In February 2008, Defendant Esar Met, also a Burmese
refugee, was relocated to Salt Lake City and moved into the
basement of an apartment in the same complex as Victim‘s family.
Met, who was Burmese but not Karen, shared the apartment with
four Karen roommates.
¶8 Met befriended Victim and her ten-year-old friend. The two
girls would, on occasion, visit Met‘s apartment to play games and
watch movies. Usually ―other Karen kids‖ were also playing at the
apartment when Victim was there, but on at least one occasion,
Victim and her friend were alone with Met.
¶9 On March 31, 2008, Victim‘s father was at work, and her
mother was at a dentist appointment. Victim‘s aunt testified that she
last saw Victim around 1:00 p.m. A neighbor remembered seeing
Victim walking in front of her apartment sometime between 11:30
a.m. and 1:00 p.m. traveling southbound in the direction of Met‘s
apartment. A friend of Victim also testified that sometime after her
―morning meal but [before her] afternoon meal,‖ Victim came to her
house to ask to play, but Victim‘s friend declined because she did
not feel well.
¶10 Victim‘s mother returned from her appointment that
afternoon and noticed that Victim was missing. Victim‘s family
REFUGEES IN THAILAND 82–86 (2002) (describing the large scale forced
migrations from Burma to Thailand). The Karen people are an ethnic
group who originate primarily from Burma and Thailand. The Karen
are distinct from other ethnic groups living in this area, including the
ethnic Burmese people. In addition to having a distinct culture and
history, the Karen speak a unique language. See Karen,
ENCYCLOPÆDIA BRITANNICA (May 27, 2016, 10:45 AM),
https://perma.cc/7RNU-TBDE.
MET v. STATE
Opinion of the Court
4
searched the apartment complex and the surrounding area for
several hours. Sometime that evening, Victim‘s father went to Met‘s
apartment and asked Met‘s roommates if they had seen Victim. The
roommates responded that they had not. The police were contacted,
and soon police officers and volunteers embarked on a large-scale
search of the area.
¶11 On the evening of April 1, four FBI agents knocked on the
door of Met‘s apartment. After the agents knocked for
approximately ten minutes, one of Met‘s roommates answered. The
agents identified themselves, indicated that they were searching for
Victim, and asked if they could enter and search the apartment. One
of the roommates indicated that the agents could search for Victim.
Met‘s four roommates were in the apartment at the time, but Met
was not.
¶12 Two agents began to search while two others stayed with
the roommates. One of the roommates explained that Met resided in
the apartment‘s basement. The roommate also volunteered that Met
was not at home and that the roommates had not seen Met that day
or the day before.
¶13 Agents first searched the three-level apartment‘s upstairs
and main floors. The agents then proceeded to the basement, which
could be accessed from the main floor by an open stairway that led
to the basement‘s living room.2 The basement consisted of a main
room and three smaller rooms accessible from the main room: a
bathroom, a furnace room, and a bedroom. The first agent to enter
the basement testified,
I was the first one down the stairs. And I got to the
bottom of the stairs . . . and the wall there, as I recall,
opens up from the floor as it goes down, so I could
start to see into the room. But once I saw in the room,
to the basement. Met‘s roommates testified that they generally did
not enter the basement of the apartment, but two roommates
testified that all of the roommates had permission to go anywhere
they wanted in the apartment. Those two roommates also indicated
that they stored some items, including a bike and DVDs, in the
basement and would occasionally enter the basement to retrieve
them.
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Opinion of the Court
the first thing I noticed were these two larger brown
spots.
. . . .
good. But I thought well, maybe it could be some
spilled substance or something, but it also, of course,
struck me, that looks like dried blood.
. . . [Did] you notice anything else?
Yes, I noticed a couple of things. I noticed the—the
bed. [The condition of the bed] didn‘t look normal to
me. I also noticed other less prevalent blood spatters on
the floor and blood drops. And then most significant to
me, because it looked like blood, . . . was over against
[the] wall.
. . . .
[The spots on the wall appeared to be] blood
traveling, hitting the wall and then running straight
down [the wall].
Two more agents confirmed what the first agent believed—that the
spots on the carpet and wall appeared to be dried blood.
¶14 One agent left the basement to contact the coordinating
police officer as two agents continued to search the basement. After a
search of the bedroom uncovered no significant evidence, the agents
made their way to the bathroom. An agent testified, ―The [bathroom]
door was a little bit ajar, not fully closed. So that‘s when I pushed it
open. And as soon as I opened the door, I saw some blood splatter
located immediately within the threshold walking to the bathroom.‖
In the bathroom, an agent also discovered a plastic bag appearing
―to be full of blood‖ and a pair of pink and black shoes that
―[l]ooked like they belonged to a young girl.‖ As the agent
approached the bathroom‘s shower stall, he saw ―the foot of a young
person‖ and then, as he got closer, ―the full body of a young female.‖
The body was identified as Victim. She was wearing a pink jacket
and pink skirt and was not wearing any underwear. ―Her left wrist
looked like it was broken in an awkward angle. And . . . her legs
were positioned at her sides to fit her in the shower basin.‖ The
agent testified that she was cold to the touch. An EMT later
determined that she had been ―deceased for some time.‖
MET v. STATE
Opinion of the Court
¶15 After discovering Victim, the agents talked to Met‘s
roommates. An agent testified that the roommates ―seemed very
calm‖ and acted ―[t]he same way they had been during the entire
time of the interview . . . . Nobody was visibly nervous or concerned
or overly interested in what [the agents] were doing.‖ When asked
about Met, one of Met‘s roommates told the agents that he believed
Met was at his cousin‘s house in Cottonwood Heights and provided
a phone number.
¶16 The record contains little evidence regarding Met‘s
whereabouts on March 31, 2008. Sometime that day, Met boarded a
bus to his aunt‘s house in Cottonwood Heights. Met‘s uncle testified
that he unexpectedly ran into Met around 3:00 p.m. on March 31
when the uncle boarded a bus to return to his house from work. The
uncle invited Met to his house.3 That evening, Met received a phone
call from one of Victim‘s neighbors asking whether he had taken
Victim with him. Met apparently responded, ―I didn‘t bring her with
me‖ and ―[S]he did not come with me.‖ Met stayed the night of
March 31 at his aunt‘s house. On April 1, the police arrested Met on
suspicion of Victim‘s murder.
¶17 Officers drove Met to a police station where police
interviewed him for more than two hours. The police engaged the
assistance of someone they believed to be an FBI translator.
However, the translator was neither from the FBI nor trained as a
translator. Rather, he was an acquaintance of Victim‘s parents and
Met‘s roommates. After seeing police officers in the apartment
complex, the translator had asked the police if he could assist
Victim‘s parents. An officer apparently responded that he could help
by going to the police station and offering his assistance there.
Although no problems were noted during the interview, a later
review of the transcript revealed that there had been significant
translation errors. In the words of one of the interviewing officers,
―The translation was not correct. The information I thought I was
getting from the defendant was not the same as was relayed to me.
And the stuff I was relaying to the defendant was not getting relayed
to him as I said it in any way.‖
Met was going to come to the house that day and that there were no
standing plans, but they did state that they had previously told Met
that he was welcome to visit their house anytime.
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Opinion of the Court
confessed to killing Victim accidentally, but denied that he had
sexually assaulted her.4
¶18 Met was eventually charged with aggravated murder and
child kidnapping. The State did not seek the death penalty. Met
moved to suppress all evidence gathered in, or stemming from, the
search of his apartment. He argued that the warrantless search of his
apartment violated the Fourth Amendment. The district court denied
Met‘s motion, concluding that the warrantless search of the
apartment was reasonable because Met‘s roommates consented to
the search of the common areas of the apartment, including the
basement‘s main room and bathroom. The court also concluded that
once officers discovered blood stains in the main room of the
basement, they were permitted to search the basement bathroom due
to the ―exigencies of the situation.‖
¶19 Met also moved to suppress his interview with the police
because he was not informed of his rights under Miranda v. Arizona,
384 U.S. 436 (1966), and because there were ―significant deficiencies
in the interpretation [provided] during the interview.‖ The State
conceded that it could not use Met‘s interview testimony in its case
in chief because the translator had not adequately advised Met of his
Miranda rights. The court concluded that the State could not use
Met‘s testimony in its case-in-chief but authorized the use of Met‘s
statements for impeachment purposes if Met chose to testify.
¶20 Met moved to exclude three photographs as gruesome and
unduly prejudicial. The district court denied the motion with respect
to two of the photographs. One photograph shows Victim ―lying
translated verbatim by the FBI. According to the FBI translation of
Met‘s interrogation, Met‘s translator implored Met as a Burmese
―brother‖ not to lie and to tell the truth about what happened. In
response, Met said, ―It could say accident. They can believe however
they want . . . . I killed her. I am telling the truth.‖ Later in response
to the question ―Did you kill her?‖ Met confessed, ―Yeah, I have to
say that I killed her. How am I supposed to say? She died because of
me.‖ When asked whether he had also sexually assaulted Victim,
Met replied that ―[i]t is true that this child is dead because of me but
I did not ruin the child. I am telling the truth. I swear.‖ He
maintained throughout the interview that the killing was accidental
and that he had not sexually assaulted Victim.
MET v. STATE
Opinion of the Court
8
face down in a shower stall.‖ The court determined that this
photograph was ―highly probative‖ of the injuries Victim sustained,
the location and position of her body, including that she was not
wearing underwear and that her body had been washed, and the
―struggle‖ that took place surrounding her murder. The second
photograph is a ―clean, close-up shot of [Victim‘s] genitalia.‖ The
court determined that the photograph was relevant to and probative
of the question of whether Met had sexually assaulted Victim.
¶21 At trial, the State presented the testimony of Dr. Todd Grey,
chief medical examiner for the State and a forensic pathologist, who
had performed Victim‘s autopsy. He testified that ―[t]he majority of
the injuries . . . were . . . blunt force injuries. So they would be things
like contusions or bruises, abrasions or scrapes, lacerations or tears
in the skin, as well as a fracture . . . of the left—distal left arm.‖
Victim suffered injuries to her cheek, her chin, and her neck; an
abrasion and bruising around her left temple; a complete fracture of
her ―two bones of the [left] forearm‖; petechiae in her eyes—
hemorrhages ―very commonly associated with asphyxia‖—likely in
this instance due to ―clothing being twisted tightly across the front of
her neck‖; numerous injuries to her chest, which caused ―the tissues
of th[e] central structure of her chest‖ to be pulled away ―or sheared
off‖ of her spinal column; and a fatal tear in the right atrium of her
heart caused by blunt force trauma to her body. Dr. Grey opined
that Victim‘s death was a homicide, ―as a result of blunt force
injuries‖ to her ―neck, her torso and her left wrist.‖
¶22 The State also called Dr. Lori Frazier to the stand. Dr. Frazier
testified that Victim also suffered ―some type of penetrating injury
that damaged the tissues in the upper part of the hymen and the
anterior vaginal wall.‖
¶23 The State presented DNA evidence collected from the denim
jacket Met was
scientist, Chad Grundy, found that the two blood stains he tested
―appeared to have originated from a single female source.‖ Grundy‘s
testing also established that the blood on Met‘s jacket matched
Victim‘s DNA.5 The State also collected and tested DNA evidence
found under Victim‘s fingernails. The tests excluded Met‘s
sample[s],‖ meaning that they identified only a single DNA
contributor and not a mixture of two DNA samples.
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Opinion of the Court
roommates as the DNA‘s source but could not exclude Met or the
men in Victim‘s family.
¶24 Grundy testified that he had also tested several stains found
in Met‘s apartment. He found human blood present in the two stains
on the carpet of the basement‘s main floor, in the stain on the wall in
the basement‘s main room, in the stains in the basement‘s bathroom,
and in two stains in the stairwell leading to the basement. Grundy
also found that a stain in the living room on the apartment‘s main
floor, around the corner from the staircase leading to the basement,
tested positive as human blood. DNA obtained from four of these
stains matched Victim‘s. Additionally, Victim could not be excluded
as the DNA contributor to the main-floor blood stain.
¶25 Met had various injuries on his body that were consistent
with scratching or the ―scraping or . . . clawing of a fingernail.‖ One
particular abrasion on the inside of Met‘s thigh consisted of three
streaks, twelve millimeters in length, with each streak parallel to the
other. Many of these injuries were sustained in areas such as Met‘s
thigh, hip, and right calf that would ordinarily have been covered by
Met‘s underwear or pants. A nurse testified that many of the injuries,
because of their location and severity, were likely made when Met
was not wearing either underwear or pants, although the nurse
conceded that it was possible to sustain similar abrasions when
clothed.
¶26 On the eighth day of trial, the State informed the district
court and Met‘s counsel that it had ―just become aware of‖
―potential[ly] exculpatory testimony.‖ The prosecutor indicated that
it had ―been his understanding . . . that there was . . . no blood of any
sort upstairs.‖ The prosecutor testified that, contrary to his belief, the
previous evening a crime scene investigator ―indicated that there
was a spot of blood that they found on the carpet‖ of the top floor of
the apartment. The prosecutor learned that the investigator had
performed a preliminary test on the spot, which indicated that the
spot was likely blood. The investigator and his team apparently did
no further testing and declined to preserve that evidence because
they believed the upstairs ―was not relevant to the crime scene.‖ The
prosecutor stated that this was the first time he had learned of the
MET v. STATE
Opinion of the Court
10
potential blood spot and that he believed, prior to the discussion,
that the spot was betel-nut residue.6
¶27 Met‘s trial counsel indicated that he was disappointed that
the spot had not been preserved and tested because it ―could have
changed the case dramatically,‖ but stated that he would ―explore
the [decision not to test the spot] the best we can on cross
[examination] with this late notice.‖ In the midst of counsel‘s crossexamination of the crime scene investigator, counsel asked the court
to grant a mistrial based on the State‘s failure to identify and
preserve the potential blood spot. Later in the day and before the
court had an opportunity to rule, Met‘s trial counsel withdrew the
mistrial motion, explaining to the court that he did not believe he
could establish prosecutorial misconduct under Brady v. Maryland,
373 U.S. 83 (1963). Met‘s trial counsel stated that he ―spent the lion‘s
share7 of
analyses under three separate lines of cases . . . .‖ Met‘s counsel
testified that his research indicated that he could not meet his
burden of demonstrating the need for a mistrial and so he did not
think the motion was ―well taken.‖
¶28 The jury found Met guilty of aggravated murder and child
kidnapping. The jury found three aggravating circumstances that
classified Victim‘s killing as aggravated murder. First, the ―homicide
was committed incident to one act, scheme, course of conduct, or
criminal episode during which the defendant committed or
effect equivalent to six cups of coffee. It is ―believed to be one of the
most popular mind-altering substances in the world.‖ Cindy Sui &
Anna Lacey, Asia’s Deadly Secret: The Scourge of the Betel Nut, BBC
NEWS (Mar. 22, 2015), http://www.bbc.com/news/health-31921207.
describes a hunting partnership between a lion, fox, jackal, and wolf.
When the four were ready to share their spoils, the lion split the stag
into four equal parts. The lion then stated, ―I am King Lion . . . . so of
course I get the first part. This next part falls to me because I am the
strongest; and this is mine because I am the bravest.‖ Stretching his
claws, the lion finished, ―If any of you have any claim to the part that
is left, . . . now is the time to speak up.‖ The Lion’s Share, LIBRARY OF
CONGRESS, http://www.read.gov/aesop/141.html (last visited May
3, 2016).
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Opinion of the Court
attempted to commit sexual abuse of a child.‖ Second, the ―homicide
was committed incident to one act, scheme, course of conduct, or
criminal episode during which the defendant committed or
attempted to commit child abuse.‖ And third, Victim was younger
than fourteen years of age. The jury also found that in the course of
the child kidnapping, Met caused ―serious bodily injury‖ to another,
an aggravating sentencing factor for child kidnapping.
¶29 Met moved to merge his child kidnapping conviction with
his aggravated murder conviction. Met argued that ―there was
simply no evidence adduced at trial of any detention or confinement
independent from the detention inherent in the commission of the
aggravated homicide.‖ The district court denied Met‘s motion to
merge the two convictions. It concluded ―that the jury had sufficient
evidence to support a separate conviction on the child kidnapping
count in addition to the aggravated murder count.‖
¶30 Met also asked the court to declare Utah‘s noncapital
aggravated murder sentencing statute unconstitutional. See
among other constitutional provisions, the Equal Protection Clause
and the Due Process Clause by granting the sentencing court
unfettered discretion in its sentencing decision, which could lead to
arbitrary sentencing. The district court denied Met‘s motion.
¶31 The court pronounced two sentences of life in prison
without parole for Met‘s aggravated murder and child kidnapping
convictions. The court ordered the sentences to run concurrently. At
the sentencing hearing, the court opined that there was a
presumptive life sentence for both Met‘s aggravated murder
conviction and the child kidnapping conviction aggravated by the
serious-bodily-injury finding.
¶32 Met appeals. We have jurisdiction under
78A-3-102(3)(i).
MET v. STATE
Opinion of the Court
ISSUES AND STANDARDS OF REVIEW
¶33 Met‘s various constitutional and statutory arguments
attacking his sentence under
Utah‘s sentencing structure for those convicted of aggravated
murder are questions of law that we review for correctness. See State
v. Reece, 2015 UT 45, ¶ 18, 349 P.3d 712; State v. Perea, 2013 UT 68,
¶ 34, 322 P.3d 624. We afford no deference to the district court‘s legal
conclusions. Perea, 2013 UT 68, ¶ 34.
¶34 The district court‘s denial of Met‘s motion to suppress the
transcript of the police interrogation is a mixed question of law and
fact, where our review is ―sometimes deferential and sometimes
not.‖ State v. Arriaga-Luna, 2013 UT 56, ¶ 7, 311 P.3d 1028 (citation
omitted). We recently explained that the deference we afford the
district court‘s resolution of a mixed question depends upon
(1) the degree of variety and complexity in the facts to
which the legal rule is to be applied; (2) the degree to
which a trial court‘s application of the legal rule relies
on ―facts‖ observed by the trial judge, such as a
witness‘s appearance and demeanor, relevant to the
application of the law that cannot be adequately
reflected in the record available to appellate courts; and
(3) other policy reasons that weigh for or against
granting [deference] to trial courts.
Murray v. Utah Labor Comm’n, 2013 UT 38, ¶ 36, 308 P.3d 461
(alteration in original) (citation omitted). A question is more law-like
appellate precedent.‖ Id. ¶ 37 (citation omitted). A question is more
fact-like if ―the trial court is in a superior position to decide it.‖ Id.
(citation omitted). Here, for example, where the district court‘s
decision is ―based entirely on its review of the interrogation
transcripts and the court‘s interpretation of the law,‖ the question is
more law-like than fact-like. Arriaga-Luna, 2013 UT 56, ¶ 8. ―[W]e
owe the district court no deference‖ when ―we are in as good a
position as the district court to examine the transcripts and
determine what the law is.‖ Id. We thus owe the district court no
deference in considering the denial of Met‘s motion to suppress the
transcript of the police interrogation. We review the court‘s decision
for correctness. See Murray, 2013 UT 38, ¶¶ 36–40.
¶35 Met‘s contention that the district court erred in denying his
motion to suppress evidence gathered in alleged violation of his
Fourth Amendment rights also presents ―a mixed question of law
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Opinion of the Court
13
and fact.‖ State v. Fuller, 2014 UT 29, ¶ 17, 332 P.3d 937. ―While the
court‘s factual findings are reviewed for clear error, its legal
conclusions are reviewed for correctness, including its application of
law to the facts of the case.‖ Id.
¶36 We review Met‘s challenge to the admission of allegedly
gruesome photographs for an abuse of the district court‘s discretion.
State v. Bluff, 2002 UT 66, ¶ 47, 52 P.3d 1210; see also State v. Cuttler, 2015 UT 95,
¶ 12, 367 P.3d 981; State v. Gulbransen, 2005 UT 7, ¶ 35,
106 P.3d 734 (―The trial court‘s ultimate ruling under rule 403 of the
Utah Rules of Evidence is reviewed for an abuse of discretion.‖).
¶37 The district court‘s refusal to merge Met‘s child kidnapping
conviction into his aggravated murder conviction is a mixed
question of law and fact that is more law-like than fact-like. In
reviewing whether the district court erred in merging or refusing to
merge the convictions, the facts this court relies upon are of the sort
that are ―adequately reflected in the record,‖ not the sort ―observed
by the trial judge.‖ Murray, 2013 UT 38, ¶ 36 (citation omitted). We
thus review the district court‘s merger ruling for correctness. See
State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.
¶38 Last, ―[a] claim of ineffective assistance of counsel raised for
the first time on appeal presents a question of law‖ that we review
for correctness. State v. Lucero, 2014 UT 15, ¶ 11, 328 P.3d 841
(citation omitted).
ANALYSIS
I. Utah Code Section 76-3-207.7 Is Not
Constitutionally Deficient
¶39 Met argues that
federal and Utah Due Process Clauses, the federal Equal Protection
Clause, Utah‘s uniform operation of laws clause, the federal and
state Cruel and Unusual Punishment Clauses, and his right to a trial
by jury under the federal and state constitutions.
¶40 The Utah Code provides a dual-track structure for those
charged with aggravated murder. Under
penalty, the aggravated murder is charged as a ―capital felony.‖
Alternatively, if the prosecutor does not file a notice of intent to seek
the death penalty, then the aggravated murder is charged as a
―noncapital first degree felony.‖
¶41 Defendants who are convicted of aggravated murder as a
capital felony—who are facing the possibility of death—are
MET v. STATE
Opinion of the Court
14
sentenced by a jury, or, if the defendant requests and the State
consents, by a court. See
sentence may be death only if a unanimous jury agrees.
sentence, the statute provides for a sentence ―of either an
indeterminate prison term of not less than 20 years and which may
be for
without parole, however, may be imposed under
only if ten or more jurors agree. See
contains a non-exhaustive list of aggravating and mitigating
circumstances for the jury or judge to consider to decide whether to
impose a death sentence. See
provides a non-exhaustive list of evidence that may be presented at
sentencing. See
¶42 Defendants who, like Met, are convicted of aggravated
murder as a noncapital first degree felony—and who are not facing
the possibility of death—are sentenced under
court may impose one of two sentences: life in prison without parole
or an indeterminate prison term of twenty years to life.
guide the court, i.e., it does not require ten jurors to agree to a
sentence of life in prison without the possibility of parole. We have
stated, however, that the statute should ―be read in the context of
other provisions mandating that the criminal code ‗shall be
construed . . . [to p]revent arbitrary and oppressive treatment‘ and to
impose ‗penalties which are proportionate to the seriousness of
offenses.‘‖ State v. Reece, 2015 UT 45, ¶ 78, 349 P.3d 712 (alterations in
original) (citation omitted).
¶43 In short, the statutory protections for those who face a
potential death sentence differ from those who do not. The bulk of
Met‘s constitutional challenges center on the different level of
protections afforded to those sentenced under the noncapital
killing of Victim in 2008. However, we note that the minimum
sentence for both capital and noncapital first degree felony
aggravated murder has since been increased to imprisonment of
twenty-five years to life. See
(2016).
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Opinion of the Court
15
aggravated murder sentencing statute—
arguments, although repackaged in various ways, have been
resolved by this court. And Met has not sustained the heavy burden
required to convince us to abandon our precedent. See State v.
Menzies, 889 P.2d 393, 398 (Utah 1994) (―Those asking us to overturn
prior precedent have a substantial burden of persuasion.‖). We
therefore reject, on stare decisis grounds, Met‘s argument that
uniform operation of laws provision. See Reece, 2015 UT 45, ¶¶ 77–80;
State v. Perea, 2013 UT 68, ¶¶ 121–23, 322 P.3d 624. We similarly
reject his challenge that
Amendment‘s prohibition on cruel and unusual punishment. See
Reece, 2015 UT 45, ¶ 80; Perea, 2013 UT 68, ¶¶ 125–27. We also reject
his argument that
constitutional and statutory protections necessary to impose the
death penalty to life in prison without parole sentencing
determinations because ―the death penalty is to [life without parole]
as [life without parole] is to all other sentences.‖ We, along with
many other courts, have long recognized that the death penalty is
qualitatively different from a prison sentence, even one as serious as
life in prison without parole. See Harmelin v. Michigan, 501 U.S. 957,
995 (1991) (setting out the ―qualitative difference between death and
all other penalties‖ and declining to impute constitutional
protections for death penalty sentencing to any other sentencing);
State v. Griffin, 2016 UT 33, ¶ 17 n.4, --- P.3d --- (explaining that our
―sua sponte prerogative‖ to correct certain unpreserved errors ―is
limited to capital cases where the death penalty was imposed‖
(citation omitted)); State v. Houston, 2015 UT 40, ¶ 36, 353 P.3d 55
(concluding that the death penalty, because of its ―finality,‖ differs
from a sentence of imprisonment, and creates a ―need for reliability
in the determination that death is the appropriate punishment in a
specific case‖ (citation omitted)). Met offers no argument that this
court has not already addressed, and he has not shouldered his
burden of convincing us that our precedent should be overturned.
MET v. STATE
Opinion of the Court
16
jury under the Fifth and Sixth Amendments. See State v. Houston,
2015 UT 40, ¶¶ 30–32, 353 P.3d 55.10
¶44 We have not previously addressed whether
found in article I, section 9 of the Utah Constitution or whether it
violates a defendant‘s state constitutional right to a jury trial under
article I, section 10 of the Utah Constitution. Although Met invokes
these state constitutional provisions, he does not develop an
argument based upon them, preferring to append them to
arguments based upon their federal counterparts. As we have
explained, ―cursory references to the state constitution within
arguments otherwise dedicated to a federal constitutional claim are
inadequate.‖ State v. Worwood, 2007 UT 47, ¶ 18, 164 P.3d 397. ―When
parties fail to direct their argument to the state constitutional issue,
our ability to formulate an independent body of state constitutional
law is compromised. Inadequate briefing denies our fledgling state
constitutional analysis the full benefit of the interested parties‘
thoughts on these important issues.‖ Id. While Met has stated that
offers us no ―distinct legal argument or analysis‖ to support his
assertion. Id. ¶ 19. We therefore leave those arguments for a matter
in which they are thoroughly briefed.
¶45 Met also argues that
the state and federal Due Process Clauses by delegating legislative
power without ―minimum guidelines‖ to govern sentencing. Article
V, section 1 of the Utah Constitution prohibits the Legislature from
reverse the sentence imposed by the sentencing court. ―The rule of
lenity requires that we interpret an ambiguous statute in favor of
lenity toward the person charged with criminal wrongdoing.‖ State
v. Rasabout, 2015 UT 72, ¶ 22, 356 P.3d 1258. The rule of lenity is not
implicated by a statute unless the statute is ambiguous. Id. A statute
is ambiguous only when ―its terms remain susceptible to two or
more reasonable interpretations after we have conducted a plain
language analysis.‖ Id. (citation omitted).
indeterminate term-of-years sentence of not less than twenty years or
to life in prison without parole. See
Although ambiguous options may exist in the code, an option in and
of itself is not an ambiguity.
Cite as: 2016 UT 51
Opinion of the Court
17
―delegating ‗core‘ or ‗essential‘ legislative power or functions,‖
including the ―definition of a crime and the precise punishment
therefor.‖ State v. Briggs, 2008 UT 83, ¶ 14, 199 P.3d 935 (citations
omitted). Furthermore, a law may violate federal due process by
failing to ―establish minimal guidelines‖ to guide the enforcement of
the statute. See Kolender v. Lawson, 461 U.S. 352, 358 (1983).
¶46
legislative power or violate the federal Due Process Clause by failing
to establish minimum guidelines. As we have explained,
provisions mandating that the criminal code ‗shall be construed . . .
[to p]revent arbitrary and oppressive treatment‘ and to impose
‗penalties which are proportionate to the seriousness of the
offenses.‘‖ Reece, 2015 UT 45, ¶ 78 (alterations in original) (citation
omitted). Before a sentencing court imposes a sentence under
the circumstances—[and impose] a sentence that is proportionate to
the crime and the culpability of the defendant.‖ Id. (alteration in
original) (citation omitted).
¶47
available and requires the sentencing court to consider all applicable
circumstances and evidence prior to its imposition of a sentence.
Met‘s contention that
to the sentencing court runs contrary to our established precedent
requiring the sentencing court to consider all relevant evidence. See
Reece, 2015 UT 45, ¶¶ 78–79; Perea, 2013 UT 68, ¶¶ 110–19; cf. Williams v. New York, 337 U.S. 241, 247, 251 (1949) (concluding that a
sentencing judge‘s ―broad discretionary power‖ in reviewing
information in making a sentencing decision, including reviewing
out-of-court information, does not violate the federal Due Process
Clause and reasoning that ―modern concepts individualizing
punishment have made it all the more necessary that a sentencing
judge not be denied an opportunity to obtain [all] pertinent
information‖).11
spring from the ―unfettered‖ discretion the statute affords
prosecutors to decide whether to charge aggravated murder as a
capital
analysis or citation to case law, does not brief the issue adequately.
(continued . . .)
MET v. STATE
Opinion of the Court
18
¶48 Met‘s final constitutional argument questions whether the
dual-track sentencing structure violates equal protection principles.
―The Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution provides that no state shall ‗deny to any
person within its jurisdiction the equal protection of the laws.‘‖ State
v. Lafferty, 2001 UT 19, ¶ 70, 20 P.3d 342 (quoting
unless a reasonable basis exists for treating them differently.‘‖ Id.
(citation omitted). Put another way, ―[b]oth the federal and state
constitutions require that similarly situated individuals be treated
alike under the law unless there is a reasonable basis for treating
them differently.‖ State v. Herrera, 895 P.2d 359, 368 (Utah 1995). Met
does not argue that the statute violates any ―fundamental right or
makes determinations based on any suspect classification.‖ See
Lafferty, 2001 UT 19, ¶ 71. Thus, to survive constitutional scrutiny,
the sentencing statute ―need be only rationally related to a valid
public purpose.‖ See id.; see also Chapman v. United States, 500 U.S.
453, 465 (1991) (reviewing an equal protection challenge to a
sentencing statute for ―a rational basis‖); United States v. Titley, 770
F.3d 1357, 1359 n.3 (10th Cir. 2014) (―Our cases also support rational
basis review of equal protection challenges in the sentencing
context.‖); McQueary v. Blodgett, 924 F.2d 829, 834 (9th Cir. 1991)
(concluding that in the face of an equal protection challenge, a
review of a sentencing system where two sets of prisoners were
sentenced under two separate statutes was reviewed for ―a rational
relation to [a] governmental purpose‖); Jones-El v. Grady, 54 F.App‘x
¶49 Met contends that
similarly situated individuals—those convicted of aggravated
murder—differently by allowing some to be sentenced to life in
prison without parole while allowing others to be sentenced to ―the
lighter sentence of twenty years to life.‖ We have recognized that
criminal defendants convicted of the same crime are not necessarily
similarly situated. Perea, 2013 UT 68, ¶ 123 (―Not all those found
guilty of aggravated murder are similarly situated.‖). Our sentencing
scheme requires the district court to consider and weigh all relevant
evidence when sentencing a defendant. See Reece, 2015 UT 45, ¶¶ 79,
See State v. Nelson, 2015 UT 62, ¶ 39, 355 P.3d 1031 (stating that we
require ―not just bald citation to authority but development of that
authority and reasoned analysis based on that authority‖ (citation
omitted)).
Cite as: 2016 UT 51
Opinion of the Court
19
84. This individualized inquiry means that a court, prior to
sentencing, will have recognized that ―each case and each defendant
presents a different set of facts and a different combination of
aggravating and mitigating factors‖ and that therefore not all
persons convicted of murder are similarly situated to one another.
Perea, 2013 UT 68, ¶ 123. Offering a sentencing judge a range of
options serves a valid public purpose by acknowledging that, while
defendants may be charged with similar or even identical crimes, not
every defendant arrives at the steps of the courthouse via the same
path. The Legislature promotes a valid public interest in creating a
structure that permits a judge to consider the ―different set of facts
and a different combination of aggravating and mitigating factors,‖
id., in sentencing each defendant, so that each defendant is treated on
an individual basis. As we noted in another context,
[w]hile all [defendants found guilty of aggravated
murder] are found guilty of the same crime, each case
and each defendant presents a different set of facts and
a different combination of aggravating and mitigating
factors. The discretion afforded to district courts
furthers the legitimate legislative purpose of
sentencing offenders based on the totality of the unique
circumstances present in each case. District courts are
authorized and empowered by the Legislature to
review the totality of the circumstances before
imposing a sentence.
Id. ―Therefore, because the discretion given to district courts furthers
the legitimate legislative purpose of sentencing offenders based on
the severity of their particular circumstances, we hold that
¶50 Met also contends that
situated defendants differently
sentenced under
defendants are similarly situated in that they are all charged with the
crime of aggravated murder. But, he argues, they are treated
differently in the end because capital defendants are sentenced by a
jury under a statute with additional sentencing guidelines and
requirements due to the potential imposition of the death penalty
and non-capital defendants are sentenced by a judge under a statute
that provides no additional guidelines or requirements. Compare
MET v. STATE
Opinion of the Court
20
¶51 There is a clear difference, however, between defendants
sentenced under these two statutes. While both groups may be
charged with committing similar crimes, they are not similarly
situated: defendants sentenced under
potential death sentence whereas defendants sentenced under
treating each group of defendants differently. To overcome the
Eighth Amendment‘s prohibition on cruel and unusual
punishments, the Legislature is constitutionally required to impose a
detailed process that safeguards against ―a substantial risk that [the
death penalty] would be inflicted in an arbitrary and capricious
manner‖ before a defendant can be sentenced to death. Gregg v.
Georgia, 428 U.S. 153, 188 (1976) (discussing Furman v. Georgia, 408
U.S. 238 (1972)).
this requirement. The Eighth Amendment does not require the same
level of protection for defendants facing the possibility of life
imprisonment without parole. See Harmelin v. Michigan, 501 U.S. 957,
995 (1991) (providing that individualized sentencing is required for
capital cases, but declining to extend it to any other sentence because
―even where the difference is the greatest, [those sentences] cannot
be compared with death‖). Because the death penalty is different, in
both a factual and legal sense, from life without parole, the
Legislature has a reasonable basis for treating those facing the death
penalty differently than those who are not. Met has failed to
demonstrate that
Protection Clause.12
¶52 We conclude that
dual-track sentencing structure for those convicted of aggravated
defendants: those who were charged with aggravated murder as a
capital offense but were not sentenced to death. Met posits that there
is a period of time—after the jury rejects the death penalty but is still
deliberating whether to impose life without parole—when a
defendant is similarly situated to a defendant charged with noncapital aggravated murder. Even assuming that the class could be
parsed this finely, the Legislature would have a rational basis for
treating the defendants differently. At the moment of time Met
describes, the additional protections the defendant receives are those
that flow from the decision to seek the death penalty in the first
instance.
murder do not violate the various federal and state constitutional provisions Met raises.
II. To Successfully Challenge the District Court‘s Decision to Allow the Interview Transcript to Be Used for Impeachment Purposes, Met Needed to Either Testify or Create a Record of What His Testimony Would Have Been
¶53 Met next argues that the district court erred by ruling that the transcript of his police interview, though inadmissible for the State‘s case-in-chief, was admissible for impeachment purposes. While the transcript was not actually used at trial because Met declined to testify, Met contends that the court‘s allegedly erroneous decision tainted the proceedings by discouraging him from testifying.
¶54 It is undisputed that Met‘s interview was inadmissible as part of the State‘s case-in-chief because the translator assisting the interviewing agents grossly misinterpreted the Miranda warning given to Met prior to his interrogation.13 Despite this, the State
¶55 After reviewing a video recording of the interview and a transcript, the district court ruled that the transcript could be admitted for impeachment purposes because ―[Met‘s] statements to the officers were voluntary.‖ The court reasoned that the interrogation did not employ the types of coercive interrogation techniques that could lead to the conclusion that testimony was not freely given. For example, the district court noted that the interview lasted less than two-and-a-half hours; that the interrogation ―techniques used by the officers in this case did not create a coercive
environment that overcame [Met‘s] will‖; that the officers were not unreasonably persistent; that the ―interpretation problems, although pervasive throughout the interview,‖ were not coercive and did not cause Met to make incriminating statements; and that Met demonstrated a calm demeanor throughout the interview.
¶56 Met argues that his statements were not voluntary. He also argues that the circumstances surrounding his interview were too untrustworthy to allow the transcript to be used as impeachment evidence. The State disputes Met‘s substantive argument and also contends that we should decline to review the district court‘s decision to admit Met‘s interview for impeachment purposes because Met did not preserve the argument. The State argues that we should consider Met‘s argument unpreserved ―because he never took the stand and the statements were never used against him.‖
¶57 The State correctly notes that we have endorsed the United States Supreme Court‘s holding in Luce v. United States and have therefore, in the past, required defendants to testify to preserve a challenge to an evidentiary ruling.14 See State v. Gentry, 747 P.2d 1032, 1036 (Utah 1987); Luce v. United States, 469 U.S. 38, 41–43 (1984). Luce concluded that to preserve a claim that the district court had erred by ruling that the defendant could be impeached with evidence of a prior conviction, the defendant needed to take the stand. Luce, 469 U.S. at 43; see also id. at 41 (―A reviewing court is handicapped in any effort to rule on subtle evidentiary questions
outside a factual context.‖). The United States Supreme Court reasoned that if the defendant had testified, the ―Court of Appeals would then have had a complete record detailing the nature of petitioner‘s testimony, the scope of the cross-examination, and the possible impact of the impeachment on the jury‘s verdict.‖ Id. at 41. The court also noted that when ―the defendant does not testify, the reviewing court also has no way of knowing whether the Government would have sought to impeach with the prior conviction.‖ Id. at 42. It thus declined to offer Luce a new trial when it had no way of knowing if and how the lower court‘s ruling impacted Luce‘s trial.
¶59 We have not yet had the opportunity to consider whether to extend this requirement to cases where the underlying objection to the impeachment evidence focuses on a claim that a confession was elicited in violation of the defendant‘s constitutional rights. Many courts have found this distinction significant. Picking up on language in Luce that suggests the United States Supreme Court ruled on an issue that ―dealt with a preliminary ruling ‗not reaching constitutional dimensions,‘‖ the Ninth Circuit Court of Appeals concluded that Luce‘s reasoning did not apply to a claim that use of an involuntary confession for impeachment violated the defendant‘s constitutional rights. See United States v. Chischilly, 30 F.3d 1144, 1150–51 (9th Cir. 1994) (citation omitted) overruled on other grounds by United States v. Preston, 751 F.3d 1008, 1019–20 (9th Cir. 2014). Several other courts have reached similar conclusions. See, e.g., State v. Brings Plenty, 459 N.W.2d 390, 394 (S.D. 1990) (―Luce does not stand for the proposition that Fifth Amendment confession issues are waived if a defendant does not take the stand.‖); State v. Brunelle, 534 A.2d. 198, 204 (Vt. 1987) (―Luce is not controlling because, in contrast to the case at bar, it did not involve constitutionally suppressed evidence.‖); People v. Henderson, 745 P.2d 265, 266 (Colo. App. 1987) (―Where, as here, the admissibility of a prior felony conviction is challenged on constitutional grounds, a defendant is not required to testify at trial to preserve the issue for review.‖).
¶60 Other courts have found the distinction to be far less compelling. A divided Michigan Supreme Court reasoned that ―every case in which a defendant alleges that a trial court‘s ruling effectively prevented him from testifying‖ presents ―constitutional implications.‖ People v. Boyd, 682 N.W.2d 459, 464 (Mich. 2004). Relying, in part, on a number of the considerations that motivated the Luce court—difficulty in evaluating the impact of a trial court‘s ruling in a vacuum, and the potential for a defendant to abuse the structure—the Michigan Supreme Court extended Luce‘s reach to alleged errors ―implicating a defendant‘s Fifth Amendment privilege against self-incrimination.‖ Id. at 466. Arizona and other states similarly extended Luce. See, e.g., State v. Conde, 846 P.2d 843, 848 (Ariz. Ct. App. 1992) (―All of the policy reasons for declining to consider his claim in the absence of his testimony apply whether his statement was coerced or . . . obtained in violation of Miranda.‖); see also Wagner v. State, 347 P.3d 109, 111, 116 (Alaska 2015) (concluding that ―by declining to testify,‖ a defendant ―failed to preserve his Miranda claim for appellate review‖); Jordan v. State, 591 A.2d 875, 878 (Md. 1991) (―Although Luce involved the issue of impeachment by prior conviction rather than a ruling grounded on a constitutional right not to be impeached with an involuntary confession, we are persuaded that its reasoning is applicable in the instant case.‖).
¶61 We can understand the split in decisions. It is incongruous to require a defendant to testify to preserve an argument that she has a right to remain silent. But the concerns that caused us to adopt Luce in Gentry apply equally in cases involving Fifth Amendment claims. It is difficult to review and assess the impact of an allegedly erroneous evidentiary ruling where there is no record of how the alleged error impacted the case. Here, for example, even assuming that the district court erred in ruling that the interview transcript could be used for impeachment, we cannot know whether, but for that error, Met would have testified or that Met would have testified inconsistently with his interview. See Luce, 469 U.S. at 42 (―[A]n accused‘s decision to testify ‗seldom turns on the resolution of one factor‘‖ and ―a reviewing court cannot assume that the adverse ruling motivated a defendant‘s decision not to testify.‖ (citation omitted)). Nor can we assess how that testimony, whatever it might have been, would have
¶62 These competing concerns cause us to take a different approach. We do not impose Luce‘s bright-line rule requiring a
defendant to testify in order to preserve a claim that a district court improperly ruled that testimony was procured in violation of a defendant‘s Fifth Amendment rights. But neither will we assume that the alleged error must have been harmful in the absence of a record to review. Instead, if a defendant chooses not to testify after the district court finds her statements admissible for impeachment, in order to present a persuasive argument on appeal, that defendant must, by some means, create and present a record in the district court sufficient to permit meaningful appellate review. A defendant who does not wish to testify could, for example, have counsel proffer—or provide affidavits—to create a reviewable record.15
¶63 Met cannot point us to anything in the record that suggests he would have testified and that his testimony would have provoked impeachment by his prior interview. Nor has he shown us how that testimony and imagined impeachment would have changed the evidentiary landscape. Because we cannot assess the impact of the district court‘s alleged error in declaring his interrogation transcript admissible for impeachment purposes, we decline to review the substance of that decision.16
III. The District Court Did Not Err in Determining that the FBI Agents‘ Warrantless Search of Met‘s Apartment Was Reasonable Under the Fourth Amendment
¶64 Met next argues that the district court erred by denying his motion to suppress. He contends that the warrantless search of his apartment was unreasonable within the meaning of the Fourth Amendment because FBI agents did not obtain valid consent and because ―no exigent circumstances existed requiring a warrantless search.‖ He contends therefore that the district court should have suppressed all evidence flowing from the police‘s alleged illegal search of his apartment. The State concedes that it did not obtain a warrant to search Met‘s apartment but argues that the search meets two exceptions to the Fourth Amendment‘s warrant requirement. We agree.
¶65 The Fourth Amendment provides that ―[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.‖
¶66 One exception allows officers to conduct a warrantless search when they
¶67 Another exception allows a warrantless search where exigent circumstances indicate a ―need to assist persons who are seriously injured or threatened with such injury.‖ Stuart, 547 U.S. at 403. ―An action is ‗reasonable‘ under the Fourth Amendment, regardless of the individual officer‘s state of mind, ‗as long as the
citations pertain.‖ Met does neither. And retroactive application was neither briefed nor mentioned at oral argument.
circumstances, viewed objectively, justify [the] action.‘‖ Id. at 404 (alteration in original) (citation omitted).
¶68 The district court denied Met‘s motion to suppress because it determined that the agents obtained consent from Met‘s roommates to search the apartment‘s common areas, including the basement‘s main room and bathroom; that Met‘s roommates had ―common authority‖ to consent to a search of the common areas; and that ―even if [Met‘s] roommates did not have common access to the basement bathroom, based upon the ‗exigencies of the situation,‘ the agents had legal cause to search the basement bathroom without consent.‖
¶69 Met‘s challenge to the district court‘s order is twofold. First, Met contends that his roommate did not have common authority over the basement of the apartment and so could not consent to the police‘s search of the basement. Second, Met contends that exigent circumstances did not justify the search of the basement because police had no probable cause to believe Victim was in the apartment until their search of the main room of the basement.
A. Met’s Roommate Had Common Authority to Consent to a Search of the Main Room of the Basement
¶70 To resolve whether a third party has actual common authority to grant consent to a search of property, we must determine ―whether the third party has mutual use and control of the property such that the other party has ‗assumed the risk that [the third party] might permit the [property] to be searched.‘‖ Harding, 2011 UT 78, ¶ 11 (alterations in original) (quoting United States v. Matlock, 415 U.S. 164, 171 n.7 (1974)); see also Georgia v. Randolph, 547 U.S. 103, 106 (2006) (―The Fourth Amendment recognizes a valid warrantless entry and search of premises when police obtain the voluntary consent of an occupant who shares, or is reasonably believed to share, authority over the area in common with a co-occupant who later objects to the use of evidence so obtained.‖). Common authority exists where there is ―mutual use of the property by persons generally having joint access or control for most purposes.‖17 Matlock, 415 U.S. at 171 n.7.
¶71 The United States Supreme Court has, however, cautioned against drawing a bright-line rule to determine whether a third party has the authority to consent to a police search. See Randolph, 547 U.S. at 111. ―The constant element in assessing Fourth Amendment reasonableness in the consent cases . . . is the great significance given to widely shared social expectations, which are naturally enough influenced by the law of property, but not controlled by its rules.‖ Id. The Court reasoned,
Matlock . . . not only holds that a solitary co-inhabitant may sometimes consent to a search of shared premises, but stands for the proposition that the reasonableness of such a search is in significant part a function of commonly held understanding about the authority that co-inhabitants may exercise in ways that affect each other‘s interests.
¶72 It is undisputed that one of Met‘s roommates actually consented to the agents‘ search of the apartment. The only issue, then, is whether Met‘s roommate had the authority to consent to a search of the basement‘s main room and bathroom.
¶73 The district court concluded that all of Met‘s roommates had common authority over and access to the main room and bathroom of the basement ―and gave appropriate consent to the agents to search that area.‖18 The district court found that each of Met‘s
time the consent was given. We disagree. A court is permitted to look at facts not known to the officers at the time they obtain consent to determine whether the consenting party had actual authority to consent. See State v. Buhler, 52 P.3d 329, 333–34 (Idaho Ct. App. 2002) (holding ―that the State is not limited to relying upon information known to the police at the time of their warrantless entry in order to prove actual authority possessed by the person who consented to the search‖); see also United States v. Groves, 530 F.3d 506, 510 n.1 (7th Cir. 2008) (―Of course, many of these facts were not known by the officers until after they entered the premises and thus those facts are relevant only to actual and not apparent authority to consent.‖).
roommates ―had equal access and control‖ over the main room of the basement and thus could authorize a police search of the main room. The district court‘s determination rested largely on testimony that Met‘s roommates stored personal belongings, including mountain bikes and DVDs, in the main room of the basement, and on the roommates‘ testimony that they could ―come and go‖ from the basement main room ―without asking permission from [Met].‖
¶74 Met contends that his roommates could not consent to a search of the basement because they did not have authority to access the basement. Met also contends there was no common authority because ―[t]he State presented no evidence that the consentor, [Met‘s roommate], had ‗shared use of the premises and joint access or control‘ of the basement.‖ We disagree. The State presented sufficient evidence to establish that Met‘s roommates had common authority over the basement main room. See State v. Perea, 2013 UT 68, ¶ 32, 322 P.3d 624 (stating that we review a district court‘s factual findings in support of a suppression ruling for clear error, which we will only find ―if the court‘s factual findings ‗are not adequately supported by the record, resolving all disputes in the evidence in a light most favorable to the trial court‘s determination‘‖ (citation omitted)). First, the roommates‘ testimony that they stored personal belongings in the main room of the basement is strong evidence that they had joint access to and control over the basement main room. On appeal, Met concedes this point, admitting that the roommates were authorized to enter the basement. But Met attempts to argue that this ―limited purpose‖ entry does not confer common authority. Beyond his failure to cite authority to support this proposition, Met fails to credit our holding in State v. Brown, 853 P.2d 851 (Utah 1992).
¶75 In Brown, we reviewed the denial of a defendant‘s motion to suppress evidence obtained in a trailer shared by the defendant and two other individuals. See id. at 855. In addition to allowing the three individuals to reside in the trailer, the owner of the trailer also stored food and other materials for his employees in the ―common area‖ of the trailer. Id. The record also indicated that access to the common area of the trailer was extended to individuals beyond the three residents. Id. We concluded that the trailer owner had a right to consent to the search of the common areas of the trailer because of its common use by many individuals, including the owner. Id. at 856.
to the agents‘ search of the basement bathroom by virtue of their common authority over the bathroom.
¶76 Similar to Brown, the record here indicates that Met‘s roommates had common authority over the basement main room. The State presented evidence demonstrating that Met‘s roommates actually used the basement main room to store certain personal items, that one of the roommates ―used to go down [in the basement] to get‖ his DVDs, and testimony that Met‘s roommates could access the main room without first obtaining Met‘s permission. In addition, the basement was not enclosed or set off from the rest of the apartment by a door or in any other way; the basement main room was accessible from the
¶77 We thus conclude that the district court did not err in concluding that Met‘s roommates had common authority to consent to the agent‘s warrantless search of the basement main room.
B. The ‘Exigencies of the Situation’ Authorized the Agents’ Warrantless Search of the Basement Bathroom Once They Found Blood in the Main Room of the Basement
¶78 Met also contends that the district court erred in concluding ―that exigent circumstances justified the warrantless search of the basement.‖ The court determined that the agents‘ warrantless search of the basement bathroom was authorized as an exigent circumstance indicating a ―need to protect or preserve life or avoid serious injury.‖ The district court determined that once the agents entered the basement‘s main room and observed blood on the carpet and blood splatter on a wall, they were justified in searching the entire basement because ―they were looking for a missing child that could have been seriously injured.‖
¶79 Courts have long recognized that ―law enforcement officers may enter a home without a warrant to render emergency assistance to an injured occupant or to protect an occupant from imminent injury.‖ Stuart, 547 U.S. at 403. Our analysis under this standard is restricted to determining whether the officers‘ beliefs were ―plainly reasonable under the circumstances.‖ Id. at 406.
¶80 We agree with the district court that once the officers saw the blood on the carpet and walls, it was ―plainly reasonable‖ for them to conclude that exigent circumstances justified entering the other basement rooms without first obtaining a warrant. As the district court aptly described, at the time the officers became aware of the blood stains on the basement‘s walls and floor, ―the agents were not looking for a dead body; they were looking for a missing child that could have been seriously injured.‖ The blood would have suggested to a reasonable officer that someone, possibly Victim—who at that point had been missing for fewer than thirty-six hours and had disappeared from the apartment complex the officers were searching—had been seriously injured and, if still alive, was likely in need of emergency assistance. Because of the potential need to render emergency assistance, it was objectively reasonable for the agents to enter the basement bathroom, which excuses their failure to obtain a warrant prior to entering.
¶81 In light of the combination of actual consent for the search of the main basement room and exigent circumstances allowing warrantless entry into the bathroom, the district court did not err in
denying Met‘s motion to suppress evidence obtained from the warrantless search of Met‘s apartment.20
¶82 Met also argues that the district court erred by admitting two photographs into evidence that he argues are ―gruesome and inflammatory.‖ We disagree; the court properly ruled that the photographs are admissible under
¶83
A. The Historical Development of Utah’s Gruesome-Photograph Test
¶84 It appears that the first published cases discussing the admissibility of arguably gruesome photographs utilized the then-applicable version of
¶85 In the 1980s, however, this court began to focus on factors the plain language of
additional burdens on the evidence‘s proponent. In State v. Garcia, this court concluded that gruesome color photographs of homicide victims should be reviewed to determine ―whether the viewing of the photographs by the jury would create a substantial danger of undue prejudice against the defendant, and if so, whether that danger substantially outweighs the photographs‘ essential evidentiary value.‖ 663 P.2d 60, 64 (Utah 1983). The court also explained that ―[t]he point of the reference to ‗essential evidentiary value‘ in the context of potentially prejudicial photographs of the victim‘s body is that such photographs would generally be inappropriate where the only relevant evidence they convey can be put before the jury readily and accurately by other means not accompanied by the potential prejudice.‖ Id. Then, based on Garcia, this court pronounced in State v. Cloud that ―potentially prejudicial photographs are ‗generally inappropriate‘ and should not be admitted in evidence unless they have some essential evidentiary value that outweighs their unfairly prejudicial impact. Only after a determination has been made that the photographs have such value need the weighing be made.‖ 722 P.2d 750, 753 (Utah 1986) (citation omitted).
¶86 Later, in State v. Lafferty, this court created a test that we said would apply to ―certain categories of relevant evidence‖ with ―an unusually strong propensity to unfairly prejudice, inflame, or mislead a jury.‖ 749 P.2d at 1256. When the State attempts to admit certain evidence, including ―gruesome photographs of a homicide victim‘s corpse,‖ we held that the State must show that the evidence possessed ―unusual probative value.‖ Id. (emphasis added). The court cautioned that this evidence ―is uniquely subject to being used to distort the deliberative process and improperly skew the outcome‖ and held that ―the probative value of such evidence is presumed to be ‗substantially outweighed by the danger of unfair prejudice.‘‖ Id. (citation omitted).
¶87 We later described a three-part test ―for reviewing the admissibility of allegedly gruesome photographs‖:
First, we determine whether the photograph is relevant. Second, we consider whether the photograph is gruesome. Finally, we apply the appropriate balancing test. If the photograph is gruesome, it should not be admitted unless the State can show that the probative value of the photograph substantially outweighs the risk of unfair prejudice. If the photograph is not gruesome, it should be admitted
unless the defendant can show that the risk of unfair prejudice substantially outweighs the probative value of the photograph.
State v. Gulbransen, 2005 UT 7, ¶ 34, 106 P.3d 734 (citation omitted).
¶88 To guide courts in the determination of whether a photograph is gruesome, we eventually articulated a number of nonexclusive factors for consideration:
First, we consider whether the photograph is in color or black and white, because color photographs are generally more disturbing because of their ability to provide the viewer with vivid images of blood, wounds, bruising, and the like. . . . Color alone is not determinative, however. . . . Second, we consider whether the photograph is an enlargement or close-up shot, again, because enlarged photographs and close-ups show greater detail and therefore are often more disturbing than a life-like view. . . . Also, an enlargement or close-up may give a distorted impression of the thing photographed. Third, we consider when the photograph was taken in relation to the crime and whether it depicts the victim as found at the crime scene. . . . Fourth, we consider whether other details in a photograph, aside from the victim, may render a photograph gruesome [because] the composition in the photograph may exacerbate the photograph‘s impact on the viewer.
State v. Bluff, 2002 UT 66, ¶ 43, 52 P.3d 1210 (alterations in original) (citation omitted). ―The purpose of considering these factors‖ we held, ―is to identify photographs that have a tendency to ‗unfairly prejudice, inflame, or mislead the jury.‘‖ Id.
B. The Proper Standard for Assessing the Admissibility of Allegedly Gruesome Photographs
¶89 This case presents the opportunity to explicitly abandon the test that Lafferty, Bluff, and Gulbransen describe. All relevant photographs, regardless of their alleged ―gruesomeness,‖ are subject to the balancing test set out in
The burden rests on the shoulders of the party seeking to exclude the photograph to prove that its potential for unfair prejudice substantially outweighs its probative value.
¶90 Because we disavow the need for a threshold determination of gruesomeness, we also abandon the factors Bluff discussed as any sort of formal test. That is not to say that the factors identified in our prior cases should be forever consigned to the dust-bin. Indeed, a district court may consider the unfair prejudice that might flow from a photograph that depicts a close-up or enlarged view of a wound. But parties are not required to view the factors Bluff discussed as a mandatory checklist for admission, and courts should not treat them as factors to be weighed against one another.22 Rather, these considerations, if used, must be utilized to inform the ultimate
C. The District Court Did Not Err in Admitting the Two Photographs into Evidence
¶91 The first photograph Met challenges
depicts [Victim] lying face down in a shower stall. Her face is not visible. The top of [Victim‘s] head is not depicted in the photo, nor are her arms; however, one wrist and one hand are showing. She is wearing a pink coat and a pink skirt. Her skirt is raised to show that she is not wearing any underwear. Her legs are pushed up in a bent position so that her knees are above her waist. The photo does not show any blood or obvious bruising or wounds on the body.
The second photograph ―depicts a clean, close-up shot of [Victim‘s] genitalia.‖ The photo does not include ―blood or other open or
graphic injuries.‖ The district court ruled that both photographs were admissible under the
¶92 The court found the first photograph was relevant under
¶93 The court also found that the first photograph satisfied
¶94 The court found the second photograph to be relevant because the photograph showing ―the three-dimensional nature of the wound is necessary to show penetration, an element of some of the aggravating factors associated with the charge of aggravated murder.‖ The court also determined that the photograph satisfied
¶95 Met does not challenge the relevance of the photographs, but argues that the district court should have excluded them because they were ―gratuitous, unnecessary, [and] inflammatory and prejudicial.‖
¶96 Our standard of review prevents us from overturning a district court‘s
981. A district court abuses its discretion under
¶97 We also reject Met‘s argument that the district court erred in its application of
¶98 Nor has Met shown that the district court abused its discretion by concluding that the photographs did not present risk of unfair prejudice. Met contends the evidence should have been excluded because one showed the Victim ―laying crumpled up, lifeless in a shower stall‖ and the other is a ―particularly horrific photo of [Victim‘s] vaginal opening, in gruesome and horrific detail.‖ Met complains that both photographs were projected onto a screen for the jury‘s view. The district court concluded the first photograph is not unduly prejudicial because it does not show the Victim‘s face, open wounds, physical injuries, or blood. The second photograph, according to the district court, is a sterile depiction of Victim‘s genitalia, devoid of blood or open injuries. The district court ultimately concluded that the photographs are not so graphic that they ―will lead the jurors to become so angry or upset that they will be unable to fairly judge the facts of the case.‖ Met has not met his burden of establishing that these conclusions fell outside the bounds of the district court‘s discretion.
V. The District Court Correctly Determined that Met‘s Child Kidnapping Conviction Does Not Merge with His Aggravated Murder Conviction
¶99 Met next contends that the district court erred by failing to merge his child kidnapping conviction with his aggravated murder conviction. The district court denied Met‘s motion to merge the convictions because ―sufficient evidence‖ supported ―a separate conviction on the child kidnapping count in addition to the aggravated murder count.‖24
¶100 The doctrine of common law merger exists to prevent a criminal defendant from being ―punished twice for conduct that amounts to only one offense, a result contrary to protections against double jeopardy.‖ State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179. We have noted that some ―crimes may be so related that they must merge even though neither is a lesser included offense of the other.‖ Id. In State v. Finlayson, this court adopted a test to determine when a conviction based on a detention ―incidental to‖ another crime should be merged with the related crime:
[I]f a taking or confinement is alleged to have been done to facilitate the commission of another crime, to be kidnaping the resulting movement or confinement:
(a) Must not be slight, inconsequential and merely incidental to the other crime;
(b) Must not be of the kind inherent in the nature of the other crime; and
(c) Must have some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.
2000 UT 10, ¶ 23, 994 P.2d 1243 (alteration in original).
¶101 In Finlayson, we reversed the defendant‘s conviction for aggravated kidnapping while affirming his convictions for forcible sodomy and rape. See id. ¶ 1. Finlayson sexually assaulted a college classmate. Id. ¶¶ 2–4. Finlayson detained the victim for a period of time after the sexual assault and prevented victim‘s several attempts to escape from the apartment. Id. ¶ 4. Later, Finlayson drove victim around in the car for approximately an hour until he dropped the victim off at her apartment. Id. ¶ 5.
¶102 We concluded that ―Finlayson‘s detention of the victim up to the time of the rape and sodomy was incidental to the assault, rather than having an independent significance.‖ Id. ¶ 23. Finlayson‘s ―carrying the
¶103 In State v. Lee, we examined whether a defendant‘s kidnapping conviction should merge with his aggravated assault conviction. See 2006 UT 5, ¶ 1, 128 P.3d 1179. Lee approached two eighteen-year-old women who were walking on the side of a highway. Id. ¶ 3. After the two declined Lee‘s offer to ―party,‖ Lee grabbed and sexually assaulted one of the women. Id. ¶ 4. The women escaped, but Lee caught up with them. Id. The defendant approached the pair from behind and grabbed one of the women by the hair, ―slammed her to the pavement,‖ and then ―proceeded to drag her by the hair across‖ the highway to an alley between two buildings. Id. Lee kicked the woman multiple times in the head, ―rolled her over, pulled down her pants, and got on top of her.‖ Id. After the second woman intervened, the two were able to escape from the defendant. Id. Lee was eventually arrested, charged, and convicted of two counts of aggravated assault and one count of aggravated kidnapping. Id. ¶ 10.
¶104 Lee argued that the district court plainly erred by failing to merge his aggravated kidnapping conviction into his aggravated assault conviction. He claimed that ―any kidnap[p]ing . . . was merely a component of the corresponding assault; it was incidental to, and indeed indistinguishable from, the assault.‖ Id. ¶ 25. We rejected that argument and concluded that ―dragging [the victim] across a highway by her hair was not ‗slight, inconsequential and merely incidental to‘ the assault Lee had already commenced against her.‖ Id. ¶ 34 (citation omitted). Nor was the kidnapping ―inherent in the nature of‖ the assault; we noted that ―most assaults do not involve the relocation of the victim from one site to another.‖ Id. We also concluded that the kidnapping was independently significant from the assault because it allowed Lee to relocate the victim away from her friend, ―thereby rendering further assault, or even rape, ‗substantially easier of commission‘‖ and because it significantly reduced the potential that defendant‘s crime would be detected. Id. (citation omitted).25
¶105 On appeal, Met contends there was “no proof that any detention exceeded that necessary to commit the assault and
¶106 First, Met‘s kidnapping of Victim was more than “slight, inconsequential and merely incidental to” the murder. See Finlayson, 2000 UT 10, ¶ 23. The district court noted that “the crime scene evidence shows that [Victim] and [Met] had an extended confrontation,” that “the blood scene evidence shows that [Victim] was moved throughout the downstairs of the apartment,” and that a “trail of blood led from the bottom of the stairs into the downstairs bathroom where [Victim‘s] body was later found.” Moreover, medical experts opined that Victim was alive when she was sexually assaulted and that Victim had suffered many injuries that were non-life threatening and independent from those that caused her death. The sexual assault and relocation constituted, in the district court‘s words, “a detention apart from the time that it took to cause the homicide.”
¶107 Second, the district court did not err in concluding that a detention of the kind at issue here is not “inherent in the nature” of murder. See id. As noted above, Met engaged in a number of actions that were extraneous to the murder: he sexually assaulted Victim and inflicted numerous non-life-threatening injuries upon her. Met‘s kidnapping and relocation of Victim are not so intertwined with the murder that we can say that the former are inherent in the nature of the latter.
¶108 Last, the district court correctly concluded that the detention had “some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” See id. The court noted that evidence “showed that the assault began somewhere on the stairs of the apartment and ended in the bathroom. Had the assault begun and ended at the bottom of the stairs, [Met‘s] room-mates may have seen [Victim] as soon as they returned home.” This
rather than having an independent significance.” Id. ¶¶ 4, 23. Or perhaps we need to, in the appropriate case, examine the concerns that motivated us to adopt the doctrine of common-law merger, assess the continued potency of those concerns, and evaluate whether Finlayson continues to be the correct test to address them.
allowed the district court to properly decide that Met‘s detention of Victim substantially lessened the risk of detection and infused the detention with significance independent of the murder.
¶109 The district court did not err in declining to merge Met‘s child kidnapping and aggravated murder convictions. Victim‘s detention was sufficiently independent of her murder such that Met is not being punished twice for the same conduct.
VI. Met Was Not Prejudiced by His Trial Counsel‘s Decision to Withdraw the Mistrial Motion
¶110 Met also contends that his trial counsel provided constitutionally ineffective assistance by withdrawing a mistrial motion based on a crime scene investigator‘s failure to test or preserve a spot, which may have contained blood, found on the upstairs floor of Met‘s apartment.
¶111 On the eighth day of trial, a prosecutor notified the district court and opposing counsel of potentially exculpatory evidence. The prosecutor stated that he learned the previous night that a crime scene investigator had tested a reddish-brown spot on the upstairs floor of the apartment and preliminary tests had indicated that it was blood. The investigator and his team did not conduct further testing of, or otherwise preserve, the spot because they believed that the upstairs was not a relevant part of the crime scene. Prior to the revelation, the prosecutor had apparently been under the impression that the spot was betel-nut residue. Met‘s trial counsel initially pursued a mistrial motion based on the State‘s failure to test and preserve the evidence, but later withdrew that motion, representing to the court that further research had suggested that the motion would not succeed.
¶112 A defendant‘s Sixth Amendment right to counsel embraces the right to the effective assistance of counsel. See McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970). Under Strickland v. Washington, a defendant must meet a two-part test to effectuate an ineffective assistance of counsel claim. See 466 U.S. 668, 687 (1984). First, “the defendant must show that counsel‘s performance was deficient.” Id.
a breakdown in the adversary process that renders the result unreliable.” Id.
¶113 Moreover, we “indulge in a strong presumption that counsel‘s conduct [fell] within the wide range of reasonable professional assistance, and that, under the circumstances, the challenged action might be considered sound trial strategy.” State v. Houston, 2015 UT 40, ¶ 70, 353 P.3d 55 (alteration in original) (citation omitted). This presumption accounts for the widely varying “circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant.” Id. (alteration in original) (citation omitted).
¶114 Even assuming, however, that Met‘s trial counsel‘s failure to pursue the mistrial motion was deficient, we conclude that Met cannot establish that he was prejudiced by his trial counsel‘s failure to pursue the mistrial motion. To establish prejudice under Strickland, Met must demonstrate “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” 466 U.S. at 694. This probability must be sufficient to “undermine [our] confidence in the outcome” of the proceeding. Id. And even viewing the destroyed evidence most favorably to Met, we cannot with confidence say that the result in this case would have been different.
¶115 Substantial evidence ties Met to the Victim‘s murder. Met had a relationship with Victim. Victim was discovered in Met‘s bathroom. Multiple spots of Victim‘s blood were found on the denim jacket Met wore the night he was arrested. Met was identified as a possible source of DNA found under Victim‘s fingernails, while Met‘s roommates were ruled out as contributors. Met also had various injuries on his inner thigh, hip, and calf that were consistent with scrapes caused by fingernails.
¶116 Moreover, the unpreserved spot was located far away from the other evidence of Victim‘s murder. Met does not articulate how this spot, even assuming it was blood, would have affected the proceedings. Met does not provide us with the argument that he would have made had he known about the blood spot nor does he attempt to explain how this evidence would have changed his approach at trial or the trial‘s outcome. And we are not convinced—given the entirety of the evidentiary picture presented at trial—that the proceedings in this case would have been impacted. Thus, even assuming that Met‘s trial counsel provided ineffective assistance, our confidence in the jury‘s verdict is not undermined.
VII. The District Court‘s Misstatement of Law
¶117 Met argues that the district court erred in sentencing him on the aggravated murder charge because it mistakenly believed that life without parole was the presumptive sentence for aggravated murder. During sentencing, the court correctly determined the presumptive sentence for Met‘s child kidnapping conviction with aggravating circumstances to be life in prison without parole. See
¶118 Contrary to the court‘s statement,
¶119 We have previously considered how to proceed in a similar circumstance. In State v. Reece, the defendant argued that the sentencing court abused its discretion by sentencing him to life in prison without parole based on the incorrect belief that that sentence was the presumptive sentence under
¶120 Although we determined that the sentencing court had misconstrued the statute, we could not discern whether the sentencing court‘s incorrect understanding of the law had affected its sentencing decision. See id. ¶¶ 82–84. To resolve this ambiguity, we
remanded the sentencing decision to the district court. Id. ¶ 84. We directed the sentencing court to first “determine whether its incorrect reading of the sentencing statute affected its decision to impose [life in prison without parole].” Id. If the court determined that its incorrect statement of law had no effect on its sentencing decision, no further action by the court was required. See id. If, however, the sentencing judge determined that the incorrect understanding of the statute did impact its sentencing decision, then we directed the court to vacate the original sentence and “hold a new sentencing hearing.” Id.
¶121 Similarly here, we remand the issue to the district court to allow the original sentencing judge to determine whether the incorrect statement affected the decision to impose life in prison without parole on the aggravated murder conviction. If the original sentencing judge concludes that it did, then the court must vacate the aggravated murder sentence and resentence Met on that conviction. If the original sentencing judge is unavailable or otherwise unable to consider the remanded issue, then the newly sitting judge must vacate the sentence and resentence solely on the aggravated murder conviction.26
CONCLUSION
¶122 We affirm Met‘s child kidnapping and aggravated murder convictions. We again conclude that
indeterminate term of year sentence not less than twenty years or a life sentence without parole. See
ASSOCIATE CHIEF JUSTICE LEE, concurring in part and concurring in the judgment:
¶124 I concur in the judgment of the court and also in the majority opinion in large part. I write separately only to articulate a different basis for rejecting the argument that Mr. Met‘s conviction on child kidnapping does not merge with his aggravated murder conviction. See supra ¶¶ 99–109.
¶125 The majority rejects this claim under the “common-law merger” standard set forth in State v. Lee, 2006 UT 5, ¶ 31, 128 P.3d 1179, and State v. Finlayson, 2000 UT 10, ¶ 23, 994 P.2d 1243. Yet the court acknowledges that our opinions in these cases may not be reconcilable, and adverts to the possible “need,” in an “appropriate case,” to “examine the concerns that motivated us to adopt the doctrine of common-law merger” and to “evaluate whether Finlayson continues to be the correct test” to “address” those concerns. Supra ¶ 104 n.25.
¶126 In my view this is the “appropriate case.” The court‘s analysis, in my view, highlights fundamental problems with our doctrine of common-law merger. Our application of the Lee-Finlayson test underscores its unworkability. And it highlights a threshold
deficiency in the whole enterprise of “common-law merger,” which is that we have no common-law power in a field governed by statute.
¶127 The parties have accepted the viability of the Lee-Finlayson test and have confined their arguments to the proper outcome of the case under that test. But the basis and validity of the test is fair game in a case in which we are asked to apply it. We cannot apply the test without describing its content, and we cannot describe its content without identifying its basis in law. If we have reason to question the basis for a common-law test we are asked to apply, we can—and should—do so.27
¶128 I would do so here. I would consider (1) whether we have the power to articulate a common-law merger test in the face of a governing statute, and (2) if so, whether the Lee-Finlayson test is an appropriate means of exercising that power. I will outline my tentative views on these questions here. I will first articulate the grounds for questioning our authority to exercise common-law power in this field, and then identify some concerns with the unworkability of the Lee-Finlayson formulation of the operative test.
I
¶129 We have held “that, in some factual scenarios, crimes may be so related that they must merge” even where merger is not required by the constitution or by statute. See Lee, 2006 UT 5, ¶ 31. “Where two crimes are defined narrowly enough that proof of one does not constitute proof of the other, but broadly enough that both may arise from the same facts,” we have said that “merger may be appropriate.” Id. The most common application of this premise has been in cases involving sexual assault and kidnapping. We have said that “virtually every rape . . . involves a necessary detention.” Finlayson, 2000 UT 10, ¶ 19. “[A]bsent a clear distinction” between
sexual assault
¶130 With these concerns in mind, we have articulated a test aimed at identifying kidnapping charges that are “incidental to” a sexual assault, or in other words that lack “an independent significance.” Finlayson, 2000 UT 10, ¶ 23. The test states that a “confinement . . . alleged to have been done to facilitate the commission of another crime” can constitute kidnapping only if the confinement (a) is not “slight, inconsequential and merely incidental to the other crime,” (b) is not “of the kind inherent in the nature of the other crime,” and (c) has “some significance independent of the other crime in that it makes the other crime substantially easier of commission or substantially lessens the risk of detection.” Id.
¶131 We have referred to the above as “common-law merger.” Supra ¶ 100. But that seems a misnomer. Our criminal law is completely codified.
¶132 That leaves the constitutional—double jeopardy—question. But the concern identified in our cases is illusory. The double jeopardy provisions of both the United States and Utah Constitutions protect only against double jeopardy for the “same offense.”
to operate at the offense level—as a protection against multiple punishments or serial prosecution of the same criminal offense. See Blockburger v. United States, 284 U.S. 299 (1932); State v. Sosa, 598 P.2d 342 (Utah 1979).
¶133 The operative test allows prosecution for distinctly separate offenses, and defines separateness based on whether each of two crimes contains distinct elements. Where each crime has distinct elements, there is no double jeopardy problem even where both crimes arise out of the exact same set of facts. See Blockburger, 284 U.S. at 304 (stating that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[] is whether each provision requires proof of a fact which the other does not“); Sosa, 598 P.2d at 346 (holding that the “test emphasizes the elements of the two crimes,” and that “[i]f each requires proof that the other does not,” the Double Jeopardy Clause is “satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes” (citations omitted)).
¶134 The facts of Blockburger and Sosa are instructive. In Blockburger the defendant was charged and convicted on two separate charges arising out of a single sale of illegal drugs—one for the sale of “forbidden drugs except in or from the original stamped package” and another for the same sale of the same “drugs not in pursuance of a written order of the person to whom the drug is sold.” 284 U.S. at 303–04. Thus, in Blockburger “there was but one sale, and the question [was] whether, both sections [of the federal criminal code] being violated by the same act, the accused committed two offenses or only one.” Id. at 304. The
¶135 Sosa is along similar lines. In that case, the defendant was convicted on charges of carrying a loaded firearm in a vehicle under
Id. at 346. And “[b]ecause the elements of [the defendant‘s] separate prosecutions differ[ed], and either offense could have been established without establishing the other,” the court held that “the double jeopardy doctrine [did] not apply.” Id.
¶136 The double jeopardy premise of the Lee-Finlayson test cannot stand in light of the above. Blockburger and Sosa squarely repudiate the notion that double jeopardy is offended when a criminal defendant is “punished twice” for the same conduct. Lee, 2006 UT 5, ¶ 31. And they preserve for the legislature the power to identify multiple crimes arising out of a single set of facts. So the question whether to impose multiple punishments for a single deplorable act is a legislative prerogative; the Double Jeopardy Clause has no say in the matter.
¶137 In Utah, moreover, we have a statute that regulates the matter of merger. Our legislature has provided that merger is appropriate “when the same act of a defendant under a single criminal episode” establishes “offenses which may be punished in different ways under different provisions of [the] code.”
¶138 The merger statute also calls for merger as to “included” offenses.
¶139 I cannot see how this court could retain common-law power in light of this statute. The legislature has said that a criminal charge is barred only if it is an “included” offense or if it arises out of the very “same act of a defendant” that is punished in a different way under the code. See
to me to leave no room for this court to prescribe merger for crimes that are almost but not quite covered by the statute—for crimes that arise out of “virtually” the same conduct, or that impose “double punishment for essentially the same act.” Finlayson, 2000 UT 10, ¶ 19 (emphasis added).
II
¶140 The factors set forth in Finlayson and Lee are also problematic on their own terms. None of them provide meaningful guidance or means of predictably distinguishing properly merged offenses from those that should not merge; collectively, they render our inquiry into common-law merger unworkable. And that is another consideration weighing in favor of reconsidering these decisions. See Eldridge v. Johndrow, 2015 UT 21, ¶ 40, 345 P.3d 553 (“[T]o determine whether a precedent has become firmly established,”
¶141 The first-listed element asks whether the defendant‘s confinement of the victim is “slight, inconsequential and merely incidental to” another crime. Finlayson, 2000 UT 10, ¶ 23. That inquiry is hardly an objective one. Slightness is in the eye of the beholder. As to consequentiality, I would think that any detention that allows a defendant to commit a crime would be a matter of consequence. So how this element may play out in individual cases is anyone‘s guess.
¶142 The second element—whether the degree of confinement is “inherent in the nature of the other crime,” id.—is also problematic. Confinement is never inherent in the nature of murder (the crime at issue here). Murder can certainly be committed without confining someone, as by poisoning them or shooting them with a gun. That holds even for sexual assault, as rape can be committed against an unconscious person or someone who is not physically detained but nonetheless does not consent. See
¶143 The last element is whether the confinement has “some significance independent of the other crime” in making it “substantially easier of commission” or in “substantially lessen[ing]
the risk of detection.” Finlayson, 2000 UT 10, ¶ 23. This inquiry is puzzling. It will always be substantially easier to commit a murder (or sexual assault) if the perpetrator has confined the victim to the extent required for kidnapping. So the last element again provides no basis for distinguishing properly merged offenses from those that should not merge.
¶144 Thus, the elements prescribed in Finlayson and Lee yield no workable test. And the problems inherent in implementing this test lend further weight to the argument for overruling these decisions.
III
¶145 Our common-law merger precedents are premised on vague concerns about constitutional protections against double jeopardy. But those concerns seem unfounded for reasons explained above. And unless a conviction actually violates a defendant‘s rights under the constitution, we have no business overriding it as a common-law matter. That is doubly true where the legislature has enacted a statute that occupies the field of merger.
¶146 I see no basis for the common-law merger principle set forth in Finlayson and Lee. And I would overrule the standard set forth in those decisions rather than apply what I see as an unworkable test that we have no power to impose.
¶147 The only operative merger standard that I see in our law is that set forth by statute,