State v. Moton
749 P.2d 639
Utah
1988
Check Treatment

*1 depositions transcripts their sure of the contents of ing constituted action, attorney product. persons parties to the work not instant may properly grant- consider trial Shops Donut The trial court relied on ing protection. Mace, Corp. 23 Fed.R. Management (Callaghan) (E.D.Va.1977), in Serv.2d denying The order of Arco denying by Creek to com- a motion Beaver compel and Beaver Creek’s motion to is production, ruling taking of pel that the reversed, and the case is remanded discovery depositions during for use pro- to order court with directions integral is of and/or settlement an deposition transcripts. duction of the product. preparation and is work Shops, relying court Donut Hickman HALL, C.J., STEWART, Associate 385, Taylor, 329 U.S. C.J., ZIMMERMAN, and DURHAM and (1947), deposition L.Ed. 451 held tran- JJ., concur. scripts separate from a related action but attorney product. work We were believe misapplication

this to “work recog- has

product doctrine.” This Court proposi- for the

nized that Hickman stands discovery per- liberally

tion that should be

mitted it will serve to “secure the inexpensive

just, speedy, and determination every action.” State Road Commission Utah, Plaintiff STATE Petty, 17 Utah 2d P.2d 914 Respondent, product The “work doctrine” is a exception scope

narrow the liberal discovery. MOTON, Irvin Defendant and Depositions presence taken and in the Appellant. nature, adversary, by very of an do their No. 20806. protection come within of the work product They doctrine. are taken in the Supreme of Utah. Court open pursuant either federal state Jan. 1988. instances, procedure. civil In some rules they are Utah admissible trial. R.Civ.P.

32. The concern of the Court Hickman protection privacy “the of an

attorney’s preparation.” course of Hick-

man, 67 S.Ct. at 394. This exception

narrow should not be extended

beyond necessary pur- what is to fulfill its

pose. presence adversary one’s deposition destroys any proceeding no- of privacy. Though

tion Trail Mountain adversaries, longer they are no NPC taken, depositions

were when the were result, product privi-

as there no work

lege transcripts. which can attach to the hold, depositions so though

We even protective order

were taken under a published in

federal court and were though the witnesses

that action and even

deposed now and could be available If

deposed contin- anew Beaver Creek. protection prevent disclo-

ued is needed to *2 Brass, City,

Edward K. Lake Salt appellant. defendant and Wilkinson, Thompson, David L. David B. respon- City, plaintiff Lake Salt dent. prospective jurors State removed one

HOWE, Justice: penalties who did think the would af- appeals his con- Moton Defendant Irvin determining guilt fect his decision child, sodomy a first victions innocence, and defense counsel removed child, degree of a felony, and sexual abuse prospective juror. the other felony. He degree a second contends trial, ten-year-old In the course of the he a fair trial because the trial was denied *3 alleged sexual misconduct ju- victim of the potential court did not excuse a biased inadequate for the cause, ror was called as witness State. On for that he received examination, trial, she testified that she and that the direct assistance of counsel at lie wrong it to and improperly restricted his to understood that was testimony promised her would be the cross-examine a witness confront and that she had lied on truth. She admitted him. other occasions unrelated the instant panel During jury dire of the the voir then testified that on December case. She case, had called to hear the the which been 24, 1983, bedroom, her defendant entered jurors judge prospective the asked the while requested that she face wall mandatory pen- they the whether believed ladder, standing began the bunkbed ten-, five-, prison alty fifteen-year of a or licking genital her He offered area. then the sodomy term for a child and five- genitals, his which her five dollars to lick year-to-life of a penalty for sexual abuse refused to do. further testified she She enough.” He then child were “not severe 4, 1984, January ap- defendant that on prospective jurors asked those who had proached her in while she was the bathtub question responded affirmatively to either began sucking touching her breast and they whether believed their attitudes to- genitals. her penalties the crimes in- ward for two ability would interfere with their volved cross-examination, defense counsel On guilt fairly determine defendant’s or inno- victim if she permitted was to ask the had potential jurors cence. Two answered in front of without “danced [defendant] “no”; (one argues two of whom defendant any replied she did clothes on.” She cause) should have dismissed for an- been remember. She did admit that she swered, so”; replied “I think don’t and two and, fact, in knew a lot about sex all knew feelings penalties might that their about anatomy and about sexual understood influence their decision. The latter two Defense counsel then at- act of fellatio. excused for cause. individuals were prior tempted to her about objections experiences. Repeated sexual judge The continued with voir by the trial from the State were sustained dire, asking questions, including several point, jury At court. was excused jurors’ prior experience sexual with argue in cases, to allow defense counsel prior order possible prejudice, abuse racial testimony of the excluded knowledge parties in admission involved proffer what testimo- trial, family and to make a employment their back- grounds, they ny show. Defense counsel indicated and whether considered would sought capable giving questioning she themselves defendant a that the line of pursue had a fair trial. would reveal that victim “propensity become involved sexual permitted Finally, the trial counsel things” kinds of and that victim had ask defendant the State to thing, lie this “propensity to about sort prospective jurors questions. Defense and, fact, lying [she question, counsel asked one whether case, experi- fabricating instant the] prior spe- panel had involvement with ence for attention.” programs. subject cial education The penalties determined that for the crimes involved was not prior activities were immate- raised either side. Both the State and child’s passed the counsel could expressly jury the defense rial. It ruled that defense then specific in- challenges, question the child about By peremptory for cause. timely raise of the defendant ac- Failure when she observed stances objections or to make re- defenses or tivities, estab- already it had been because prior to trial must be made quests which great deal of child had a lished that set the court shall the time How- knowledge sexual matters. thereof.... constitute waiver ever, allowed defense counsel the court prior untruthful question the victim about Miller, (Utah P.2d 130 State v. statements, relating including those to sex- 1983), object- neither stated: “Counsel we ual activities. oversight, ed, judge of the reminded the permission request, nor asked made a new the courtroom and jury returned to jury under personally to voir dire the ques- proceeded. Defense counsel the trial 77-35-18(b). U.C.A., 1953, Such failure § instances tioned the victim about U.C.A., effectively the error under waived lied, including an instance she had when (foot- Id. 1953, 77-35-12(d)....” § kissing lied about a man’s she had *4 omitted). note case, the victim admitted that her. In each further stated relies she had fact lied. She The cases that defendant saying she In inapposite she could not remember to the case at bar. both that Hewitt, (Utah sexual encounter with one of her 689 P.2d 25 State had a Brooks, friends, 1984), she had been P.2d State but admitted that and 631 bragging (Utah 1981), her friends and her relatives mo- to defense counsel made 883 case and that she did not potential jurors the instant for cause about tion to dismiss erroneously like defendant. and the trial courts denied request to motions. Defendant’s failure Defense counsel called the victim’s aunt prospective juror be dismissed for admitted that defendant as a witness. She explore topic her cause or to boyfriend. her She further testi- been bias, especially defendant ex- reputation for fied that the victim had a question pressly given opportunity an telling reported having and had lies any challenges for panel and to raise one of her friends at school. relations with cause, any error constitutes a waiver Defendant took the stand and denied com- court’s failure to do attributable to the trial mitting charged. the offenses so of its own accord. question, the merits of the it On I. prejudicial well established that it is er is system The brilliance of adversarial compel party peremp a ror to a to exercise jury tries to select a is that each side which tory challenge to a venireman who remove Thus, position. most to its is favorable excused for cause after should have been justice profile, side shows its best and each expressed bias and concern venireman truth full face. Defendant maintains sees impartial. he could be about whether opportu- the trial court denied him the Malmrose, 649 P.2d 56 (Utah State v. nity profile by to demonstrate his best fail- Parrish, 627 P.2d 533 1982); Jenkins v. ing question prospective juror further Moore, (Utah 1981); State v. P.2d 629 562 opinions concerning penalties 1977). (Utah Only “strong deep im and sodomy upon a child and sexual abuse for venireman, pressions” how on the of a failing of a child and to excuse her for ever, disqualification. serve as a for basis cause, despite defense counsel’s failure (Utah Bailey, State 767 disagree. request that she be excused. We States, 1980) Reynolds v. United (citing 98 Otto) 145, (1878) (8 (quot Procedurally, 25 L.Ed. 244 defendant’s claim that U.S. ing in the Justice Marshall it was error for the trial court to fail Chief (14) Burr)). 18(e)(13) cause, and prospective juror de Aaron Rule excuse a for pro Procedure spite request the Utah Rules Criminal defense counsel’s failure to juror excused, prospective when a she vides occasions be is direct contra 12(d) excused for cause due to bias. to Utah be diction law. Rule of the Utah 18(e)(13) challenge states that a Rules of Rule Criminal Procedure states:

643 “strong deep” so as not potential juror if sions were granted may be cause which would close her mind unqualified an constitute bias expressed “formed has testimony defend- be to whether the offered. or belief as opinion guilty of the offense guilty or not ant 18(e)(14) provides that charged.” Rule II. shown, bias is where actual even Defendant next contends that he excused cause if potential juror may be assistance of counsel was denied effective part of the of mind exists on the “a state request did because his counsel cause, or

juror with reference juror prospective prevent will him from party, which either challenging In cause. a con removed for prejudice acting impartially and without ground of ineffective assist viction on the party challeng- rights substantial counsel, ance of it is defendant’s burden to Brooks, P.2d 878 ing.” State v. (1) his counsel rendered a defi show that 1981), (Utah we held: performance in some demonstrable cient feelings, expressed the juror’s [BJased manner, (2) that the outcome attitudes, opinions, probably been different trial would have process logic by a must determine error. Geary, but for counsel’s State v. reason, experience, upon common based (Utah 1985); P.2d see also Codian juror can stand in attitude whether (Utah 1983); Morris, 660 P.2d 1101 na v. and the of indifference between state Cronic, United States U.S. accused. 2039, 80 L.Ed.2d 657 Strick S.Ct. *5 traditionally The court has Id. at 884. 668, U.S. 104 Washington, v. 466 land given latitude as to the been considerable 2052, (1984). 674 “Failure 80 L.Ed.2d S.Ct. conducting the manner and the form of showing required of either to make the only dire examination and is restricted voir part performance on the of coun deficient committing preju- from in that discretion prejudice of as a result of sel or sufficient dicial error. Utah State Road Commis- error the ineffectiveness counsel’s defeats Marriott, 238, 444 21 Utah 2d P.2d sion 646; Geary, 707 P.2d at see also claim.” (1968). 57 Strickland, at 104 S.Ct. at U.S. transcript of the before review Our 2071. reveals that the trial court did abuse us failing pro discretion to excuse this its fails to meet either Defendant The spective juror prospective for cause. prong finding that of this test. Our the juror only expressed her belief that the prospective juror to failure remove the lenient; penalties were too she further directly error conflicts was not she did not think that that stated that his coun with defendant’s contention that bearing on her opinion any would have performance deficient sel rendered ability guilt determine defendant’s Therefore, way. demonstrable de some acknowledged that a innocence. We have the of cannot contend that outcome fendant potential juror should not be considered probably have been differ the trial would merely because he or she holds biased the error of counsel. ent but for sup “light impressions may fairly be which posed testimony may yield to the be III. offered; may open the mind which leave defendant’s claim that next turn to We testimony.” a fair of that consideration right him his of con- the trial court denied Bailey, The 767. State ask proposed when he frontation prospective juror’s responses questions concerning victim a number of strong voir dire did not indicate court’s prior prior conduct on her and feelings require type that would misconduct accusations fabricated sexual excusing Thus, her for the trial cause. pur- persons. Defendant’s against other correctly by process court concluded pose to show that she had reason, was two-fold: logic expe and common based a false rience, impres- knowledge ability and to create prospective juror’s that the Thus, dispute her fact. vant material him to diminish and accusation only made excluded evidence showing she had by credibility experiences that was not past. in the victim’s such accusations accuse relevant to either her motive to de- the Unit sixth amendment credibility. fendant or her a crimi guarantees ed Constitution States find that was not denied and We defendant nal to confront defendant complainant right to confront the and his adverse “Cross- cross-examine witnesses. Although challenge veracity. her means principal is the examination permit questions did not all of believability and the court of a witness which the ask, it did allow a testimony defendant wished to tested.” Davis truth of his questions relevant to the 308, 316, plenitude of vic- Alaska, (in- knowledge, past lies tim’s sexual Sixth 39 L.Ed.2d “[T]he matters), cluding regarding requires those right to confrontation Amendment lying in the possible motives for in- intro and permitted the accused be addition, case. defendant himself and evidence.” stant all relevant admissible duce (Utah credibility Johns, the stand attacked took P.2d State Therefore, after admissibility complainant. re- 1980). reaffirm We record, us it is evident to view of character evidence of sexual be by the trial determined confrontation allowed the trial havior should satisfy defendant’s sixth was sufficient judge upon consideration of various right. factors, including (a) constitutional relevancy proba amendment value; (b) prejudicial effect; (c) confu tive Affirmed. consumption sion the issues and undue (d) time; justice. substantial Id. HALL, C.J., concurs. 1263; per- also Utah R.Evid. 403. see test is evi tinency ZIMMERMAN, of this that character (concurring). Justice: times, dence, many slight probative is of expressed I share some of concerns value, prejudicial, very confuse by Justice Stewart that the trial court judge’s trial. issues at One of the trial *6 unduly have limited the cross-examination regulate of char duties is the admission indicates, opinion As of the victim. his the acter so as exclude evidence evidence especially right of is im cross-examination which tends to distract the trier of fact portant in cases where there is little evi actually from the main of what the of the victim and dence besides version particular This happened on a occasion. contradictory of the the version defendant. process prevents the of fact from trier probably that court I conclude the trial rewarding punishing one an individual excluding the erred all of additional their respective other charac because sought ask, questions defense counsel ters, focusing upon instead of the evidence especially when there is a reason believe in the case. lacking questions that these were case, Hackford, In the instant foundation. See State v. However, (Utah 1987). under ruled that evidence some of the victim’s P.2d circumstances, past I conclude that sexual activities was immaterial all of necessary had the error court to establish that she whatever the trial have limiting knowledge required by unduly cross-exami an accusa committed fabricate already against nation into sexual activities that tion defendant. She had having great sophistication of sexual have shown admitted to a deal would victim, its discre of the sufficient evidence on knowledge. The trial used make determining point de was so as to tion in the evidence that admitted appli past court’s error harmless under sought to from these fendant elicit unfair federal standard. would serve to cable constitutional See sexual activities Arsdall, victim, the minds v. Van ly prejudice the inflame Delaware any rele- L.Ed.2d 674 jurors, and fail to address cognitive functioning particular n. at 205-06 & Hackford, 737 P.2d State child. 3. inquiry I into such mat- recognize that J., DURHAM, concurs in concurring embarrassing for the vic- ters well be ZIMMERMAN, J. opinion tim, must temporary embarrassment but STEWART, Chief Justice: Associate yield surely integrity of the fact-find-

(dissenting). ing person’s lib- process when an innocent erty Certainly fundamental is at stake. and remand a new I would reverse disposed of right cannot constitutional limita- I believe that the trial court’s trial. ground on a so unsubstantial. cross-examination of the defendant’s tion alleged constituted violation victim questions to which the defendant Amendment the defendant’s Sixth denied an answer included the follow- was that violation was confrontation and ing: prejudicial error. Q: you you remember when were Do theory of defense was The defendant’s living your mom she would with allegations were confabu- that the victim’s house? boyfriends have come over to her prove him. To lations confabulated, defense counsel victim Q: or ever your his friends Did brother victim sought to cross-examine the on what things make to them? you do victim’s “fetish” counsel called the defense things. The defendant asserted for sexual Q: your boyfriends do You saw mom’s preoc- victim was that because you? things, didn’t matters, she more cupied with sexual was likely to have either fabricated confabu- Q: things all have seen those You charges. exclud- [male

lated before, genitals and haven’t questions the victim’s sexual fellatio] ed all you? past experiences, knowledge and ex- specific di-

cept as to instances bore rectly upon credibility testimony, of her Q: grabbed other you ever ... [H]ave showing she had lied or such as evidence parts? private children’s That limitation had contradicted herself. too far narrow. Q: up against tried you ever to rub Have support frequently relied on Evidence them children]? [other veracity in sexual abuse cases is a child’s use of words whose the child’s sex-related Q: school you ever had trouble at Have age atypical of children use *7 your bra? wanting with to show the kids adult-type descriptions of sexual child’s acts, they thought especially when Q: [your asked male cous- you Have ever foreign or and hence be deviant unusual your to take off all clothes? in] ordinary, experience of an normal view, If, however, error for my it was reversible child has youngster. to those objections the trial court to sustain sexual from someone learned words other suggests questions. defendant, experienced The evidence adduced or than accused, might evi- questions that the have elicited than the acts with someone other to the case. clearly It is dence favorable defendant’s information is relevant. The did allow some evidence probative there some especially credibility, that was relevant to victim’s be possibility the victim confabu- value probative it far short of the lating by fantasy but fell blending fact and because questions arising that the answers excluded feelings guilt of an obsession or had, clearly indicated might and it conduct, have some other or an from because might proved questioning have further has the child into a “memo- adult coached productive. The victim testified: “nonfacts,” ry” simply because of or 646 you 338,

Q: you 82, (1958); People v. Sim Do remember a time when 333 P.2d 85 bolo, [your 49, 52, 962, went over to house? 188 Colo. 532 P.2d 963 aunt’s] (1975); People Sheperd, v. Colo.App. 37 A: Yes.

336, 338, 210, (1976); People 551 P.2d 212 Wilson, v. 669, 170 Mich. 137 N.W. 92 Q: you male friend of Were with [a (1912); People Evans, v. 367, 72 Mich. 40 yours] at the time? State, v. Woods N.W. 473 657 P.2d A: Yes. (Okla.Crim.App.1983); 180 2 Wharton’s Q: [your selling male some Was friend] Criminal (C. Evidence 425 Torcia 13th § doughnuts [your aunt]? ed., 1972). No, selling A: he them with me. questions Many by disallowed Q: telling you [your And do remember establishing court were directed to you [your had had sex with aunt] possible foundation for either male underneath the confabulation trailer at the friend] you charges. or fabrication of the telling school? Do remember The wit responses that? ness’s ques to the defendant’s might tions have shown that complain A: No. ing witness had unusual knowledge Q: You didn’t tell her that? age for her and had expe A: I don’t remember. riences which would render possibility Q: you say anything Did ever you of confabulation or fabrication much more [your doing nasty male friend] probable knowledge than if such experi or things? People Clark, v. ence did not exist. 63 A: I don’t remember. 503, 504-506, 382, 383, Cal.2d Cal.Rptr. 47 testimony concerning experience 294, (1965). People See also 407 P.2d 295 with the friend male was later contradicted Francis, 414, 416, Cal.App.3d 5 85 Cal. by the victim’s aunt. 61, (1970); People Rptr. Blagg, 62 267 The Sixth Amendment to the United 598, 605, 93, Cal.App.2d Cal.Rptr. 73 100 guarantees States Constitution to an ac- (1968). general For a discussion of the right cused the “to be confronted with wit- subject, see 3A Wigmore on Evidence primary nesses him.” A right se- 924a, (Chadboum 1970); 934a rev. An §§ cured the confrontation clause is the notation, Cross-examination Witness as right of Douglas cross-examination. Condition, to his Mental State or to Im Alabama, 415, 418, 1074, peach Competency Credibility, 44 A.L.R.3d 1076, (1965). 13 L.Ed.2d 1203, (1973). Broad cross-exami especially important cross-examination is typically nation has been allowed on the involving cases sex crimes when the credibility, especially issue of when it deals testimony condemning direct the accused person’s with a state of mind. Sturdevant comes from the easy victim. It is State, 49 Wis.2d 181 N.W.2d 523 person crime, to accuse a of a sex and it Hurlburt, See also Cal.App.2d extremely difficult unjustly for an 83; at Sheperd, 333 P.2d at 37 Colo. person disprove allegations. accused 212-13; Evans, App. 551 P.2d at Unfortunately, courts have no better 473; Woods, Mich. 40 N.W. testing means of credibility of a child’s 182; Wigmore 3A Evidence § allegations than cross-examination. (Chadbourn rev.1970); Annotation, Im *8 This Court and a host of other courts in the peachment or Cross-examination Pros recognized United States have the basic ecuting Witness in Sexual Trial Offense principle that wide latitude must be allowed by Showing Charges that Similar Were on cross-examination if it is to serve its Persons, Against Made Other 75 A.L.R.2d truth-finding E.g., State v. function. (1961). Smith, 482, 488-89, 90 Utah 62 P.2d Warner, State v. Concern for Utah embarrassment caused the 514-15, case, See also though legitimate victim in a sex Hurlburt, People appropriate, 166 Cal.App.2d should not be allowed to cur- rights of a defendant. constitutional tail the protect

A can do much infringing on a child witness without

assist cross-examine. defendant’s case, denied his defendant was

this effectively

right to cross-examine against him. I of the accusations

source should ordered.

believe that a new trial DAVIS, Plaintiff, Respondent,

James Z. Cross-Appellant, DAVIS, Defendant, Appellant,

Penny A. Cross-Respondent.

No. 860134.

Supreme Court of Utah. 21, 1988.

Jan. Roberts, Casey, L. T. Patrick

Gordon defendant, appellant City, Salt Lake respondent. and cross Parken, Dart, L. John D. Salt Lake Bert City, plaintiff, respondent and cross appellant.
ZIMMERMAN,Justice: from Penny appeals A. Davis Defendant awarding custody of a decree divorce plaintiff James parties’ minor child to cross-appeals, chal- Z. Davis. James Davis perma- lenging the district court’s award *9 alimony Penny Davis. We affirm. nent