Case Information
*1
T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Appellee, v.
M ICHAEL L. N AY AND T RACY L. H ANSON ,
Appellants. Memorandum Decision No. 20141185-CA Filed January 6, 2017 Sixth District Court, Richfield Department The Honorable Wallace A. Lee No. 121600009 Kenneth L. Combs, Attorney for Appellants Sean D. Reyes and William M. Hains, Attorneys for Appellee
J UDGE M ICHELE M. C HRISTIANSEN authored this Memorandum Decision, in which J UDGES S TEPHEN L. R OTH and K ATE A. T OOMEY
concurred.
CHRISTIANSEN, Judge: Defendants Michael L. Nay and Tracy L. Hanson appeal
their convictions, arguing that the trial court abused its discretion when it granted the State’s motion for a joint trial of the charges against them. Nay and Hanson were tried jointly, and the jury convicted them each of possession of a controlled substance, a third degree felony; production of a controlled substance, a third degree felony; and possession of drug paraphernalia, a class B misdemeanor. The jury also convicted Hanson of possession of a firearm by a restricted person, a third degree felony. We affirm.
¶2 “On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly.” State v. Dozah , 2016 UT App 13, ¶ 2, 368 P.3d 863. “We include conflicting evidence as relevant and necessary to understand the issues on appeal.” Id. ¶3 While executing a search warrant on Hanson’s house, police officers entered and discovered Hanson in the living room smoking marijuana with her brother (Brother) and their cousin, Nay. They also discovered equipment for grinding and weighing marijuana and two large plastic bags—one containing loose marijuana and the other containing twelve smaller bags of marijuana. In addition, the officers found a backpack belonging to Nay that contained three glass jars of marijuana. The officers then searched Hanson’s bedroom, finding another bag of marijuana, two guns, and an instructional manual titled “Marijuana Horticulture: The Indoor/Outdoor Medical Grower’s Bible.” In the basement, they found one marijuana plant growing under a fluorescent light, with a heater and fan nearby, and three harvested plants drying. And in the kitchen, officers found more marijuana in a drawer and in a paper bag on a table. The officers arrested Nay, Hanson, and Brother. At the
jail, a detective (Detective) informed Hanson of her Miranda rights and interviewed her. According to Detective, Hanson was “calm and collected,” “seemed coherent,” and “was in control of her faculties and knew what was happening.” Hanson confessed that the trio had been “trying their hand at growing marijuana,” that she and Nay “did the bulk of the work” because Brother was not very good at it, and that Nay and Brother had acquired a couple of pounds of marijuana, which the trio had been weighing and preparing for resale when the officers searched the house. The interview was not recorded. The State charged the trio with several drug-related
offenses, to which Brother pled guilty. The State then moved to join Nay’s and Hanson’s cases for trial. Nay and Hanson opposed joinder, arguing that their defenses were irreconcilable and that, apparently as a result, Hanson’s confession was inadmissible hearsay as to Nay. The trial court granted the State’s motion, ruling that Nay and Hanson would not suffer prejudice from antagonistic defenses or from inadmissible hearsay. At trial, Brother, Hanson, and Nay testified for the joint defense.
¶6 The gist of Brother’s testimony was that, while all three had been smoking marijuana, only he had been growing and selling it. Brother testified that he alone was responsible for growing the marijuana, that he brought the marijuana to Hanson’s house to divide and weigh it for sale, and that he tended the marijuana plant in the basement without Hanson’s knowledge using a house key he had. He also testified that he had placed the jars of marijuana in Nay’s backpack as the police officers entered the house. Nay testified that the backpack was his but also that he
did not own or have knowledge of the marijuana jars found in it. He also corroborated Brother’s claim of sole responsibility for the marijuana. Nay further testified that Hanson had appeared uncomfortable and hesitant when Brother revealed the marijuana and began weighing and bagging it. Hanson testified that she did not remember being
interviewed by the police, perhaps due to the effects of the marijuana she had smoked that day or due to the stressful situation. She denied the truth of the confession, claiming that Brother was solely responsible for the marijuana and that all she had done was smoke some of it. She testified that she had not provided Brother with a house key and speculated that he must have found and used her hidden house key to enter the house and plant and tend the marijuana plant growing in the basement. Hanson also testified that she had been upset when Brother took out the marijuana and began weighing it and that she had not known about the marijuana plant in the basement until a day or two before the police searched the house. ¶9 The jury convicted both Nay and Hanson of possession of a controlled substance, production of a controlled substance, and possession of drug paraphernalia. The jury also convicted Hanson of possession of a firearm by a restricted person. Nay and Hanson were fined and sentenced to terms of incarceration that were suspended in favor of probation.
¶10 On appeal, Nay and Hanson contend that the trial court
erred “in granting the State’s motion to join the two separate
defendants’ criminal cases.” We review for an abuse of
discretion a trial court’s decision to join or sever charges against
multiple defendants.
See State v. Jok
, 2015 UT App 90, ¶ 13, 348
P.3d 385 (“The grant or denial of severance is a matter within the
discretion of the trial judge, so we reverse a conviction only if the
trial judge’s refusal to sever is a clear abuse of discretion in that
it sacrifices the defendant’s right to a fundamentally fair trial.”
(brackets, ellipsis, citation, and internal quotation marks
omitted)). The trial court’s decision as to joinder or severance
“will be reversed . . . only if a defendant’s right to a fair trial has
been impaired.”
State v. Collins
,
testimony about Hanson’s interview, in which she confessed that the trio had been growing marijuana plants and repackaging and selling other marijuana, would have been inadmissible hearsay at his individual trial. “Hearsay is not admissible except as 1. On appeal, Hanson does not argue that Nay’s testimony weakened her general credibility. Rather, she argues only that, “[w]ithout the irrelevant evidence regarding the fact that Nay was simply a user and not involved, it would not have appeared that [Hanson] was providing [marijuana] to outsiders as a distributer.” This argument was not presented to the trial court and is therefore unpreserved for appeal. State v. Martinez , 2015 UT App 193, ¶ 27, 357 P.3d 27. In any event, it relies on the unstated and questionable assumption that all evidence of Nay’s presence in the house would have somehow been excluded from her individual trial.
provided by law or by these rules.” Utah R. Evid. 802. A
statement is hearsay when “the declarant does not make [it]
while testifying at the current trial or hearing” and “a party
offers [it] in evidence to prove the truth of the matter asserted in
the statement.”
Id.
R. 801(c). But such a statement is not hearsay
if “[t]he declarant testifies and is subject to cross-examination
about a prior statement, and the statement: (A) is inconsistent
with the declarant’s testimony or the declarant denies having
made the statement or has forgotten[.]”
Id.
R. 801(d)(1).
On appeal, Nay argues that Hanson “may have been
deemed unavailable as a witness in Nay’s [individual] trial with
regard to the content” of her confession because “her lack of
memory made her unavailable.” We read this as a challenge to
the “subject to cross-examination about a prior statement”
element of the non-hearsay test set forth by Utah Rule of
Evidence 801(d)(1). However, this argument was not preserved
for appeal.
See Martinez
, 2015 UT App 193, ¶ 27. Nay did not
argue to the trial court that Hanson’s lack of memory about her
confession would have rendered her unavailable at his
individual trial. Rather, Nay simply asserted to the trial court
that “the defense would be successful in excluding Ms. Hanson’s
alleged confession” because her defense theory and Nay’s were
“irreconcilable and mutually exclusive.” Because Nay did not
raise Hanson’s lack of memory to a level that the trial court
should have been aware of the issue, Nay failed to preserve it for
appeal.
See Martinez
,
2. Nay and Hanson’s opposition to the State’s joinder motion did not explain what their defense theories were or how those theories conflicted with one another. Even if Nay had preserved Hanson’s lack of memory as
an issue, we would readily conclude that her claimed inability to remember making the confession or the circumstances of the interview did not render her unavailable for cross-examination about it at trial. As the United States Supreme Court has explained, “it does not follow that the right to cross-examine is denied by the State whenever the witness’ lapse of memory impedes one method of discrediting him.” Delaware v. Fensterer , 474 U.S. 15, 19 (1985). Similarly, Nay notes that Hanson had a “diminished perception of the events at the time based on her drug-usage infirmity.” But, like the completeness of Hanson’s memory, the quality of her perception regarding the events relates to the weight and credibility of her testimony, not her availability to testify. Because Nay did not raise to the trial court’s attention the
issue of Hanson’s lack of memory as a basis for deeming her
unavailable for cross-examination about her confession, the issue
was waived for appeal.
See Martinez
,
Hanson’s confession would have been excluded from evidence pursuant to the hearsay rule. In a related claim on appeal, Nay contends that the
Confrontation Clause should have prevented joinder. He argues
that, because Hanson’s lack of memory would have rendered her
unavailable at his individual trial to be cross-examined about her
confession, her confession could not have been introduced
without a Sixth Amendment Confrontation Clause violation.
See
generally Crawford v. Washington
, 541 U.S. 36, 68 (2004) (“Where
testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability [of the
witness] and a prior opportunity for cross-examination.”).
However, as with his other claim on appeal, this issue was not
preserved.
See State v. Martinez
,
4. We note that Nay did not argue to the trial court, and does not argue on appeal, that Hanson herself would have been unavailable to testify generally at Nay’s individual trial. Rather, Nay’s arguments below and on appeal assert only that, due to her lapse of memory, Hanson would have been unavailable to testify specifically about her confession.
¶18 Even if this contention had been properly preserved, we
must acknowledge that a witness is not unavailable for
Confrontation Clause purposes simply due to a lack of memory.
See Delaware v. Fensterer
,
arguments.
Confrontation Clause contentions as to Hanson’s availability to
testify about her confession, he has not demonstrated that her
confession could have been excluded from his individual trial.
We therefore conclude that Nay was not prejudiced by joinder,
because he has not shown that the quantum of evidence at his
individual trial would have been different from that presented at
the joint trial.
See State v. Velarde
,
5. It is troubling that, likely because both Nay and Hanson were represented by the same counsel at trial and on appeal, no exceptions to the preservation rule, such as ineffective assistance of trial counsel, were raised on appeal.