*1 ” Holtman, (quoting CONCLUSION 806 P.2d at ed[,]’ P.2d Gentry, 747 a new trial. We reverse and remand for 1987)), testimo- in this instance Davidson’s important prosecu- ny critically to the RUSSON, JJ., concur. and GARFF only evidence contradict- tion and was testimony regarding intent. ing defendant’s error,
Therefore, a rea- this there is absent of a more favorable out-
sonable likelihood Thus, we must re-
come for defendant. Accordingly, case case.3
verse this trial, for a new with direction
is remanded felony trial court that Davidson’s impeachment are admissible for convictions Utah, Appellee, Plaintiff and STATE purposes under Rule 609. B. Utah Rule of Evidence WEAVER, Michael Samuel ' remand, David- Defendant claims that on Appellant. only admissi- prior son’s convictions are not No. 900284-CA. purpose impeaching ble for the limited credibility, that David- but also to show Appeals of Utаh. Court spa have masterminded the son could prior theft.4 The State Sept. only under Rule convictions are admissible prejudicial.5 the evidence is 609 because
Due to our remand for a new trial based 609, we decline to rule on this issue
on Rule nature of an adviso-
since it would be judicial policy
ry opinion and dictates Schwendiman,
against Phillips it. The issue again perhaps it up not come will
appear in a different context.6 argument scope inquiry said that the is limited in order 3. The State has conceded this the defendant is not convicted for peal agrees "to insure that defendant is entitled to a (citations present past crimes.” Id. rather than new trial. Second, omitted). prior convictions analysis, were considered under a Rule 609 argument Utah Rule 4. Defendant’s is based оn impeach defendant. The Tucker offered to 404(b) 404(b). provides: Rule of Evidence question of whether court did not reach crimes, wrongs of other or acts is Evidence applies offered such a limitation to evidence prove the character of a not admissible to under Rule 404. person in order to show that he acted howеver, may, conformity therewith. It argued 6.Defendant also the trial court purposes, proof for other such as admissible refusing erred in to allow a defense witness motive, intent, opportunity, preparation, (Montoya) testify as to what took be- plan, knowledge, identity, or absence of mis- and Davidson when defendant tween defendant aсcident. take or ruled that delivered the hot tub. The court Montoya’s comments version of Davidson's Tucker, State relies on State v. 5. The admissible when the hot tub arrived were not (Utah App.1990), where this court ex- exception "credibility because was not an scope plicitly permissible limited the of Rule hearsay rule.” Our review of the recоrd reveals crime, 609(a) inquiry to "the nature of the ruling final was made the trial court no concerning punishment." Id. date of the conviction and the objection. State’s Defense coun- however, Tucker, to, present question objected differs from the case rephrased that was sel First, prosecution respects. rephrased ques- two it was the and the witness answered the ruling to introduce evidence of defen- tion. there is no from who wanted appeal. prior the defendant can now convictions. In that context we dant's *2 Fujino Ronald
Karen Jane Stam and S. (argued), City, Lake for defendant Salt appellant. Gen., Dam, Atty.
R. Paul Van Atty. (argued), Barlow Asst. Charlene Gen., plaintiff and City, Lake Salt p'ellee. ORME, BILLINGS, GARFF and
Before JJ. May
OPINION 1989.” The affidavit stated that defendant’s address was 1328 East 3900 GARFF, Judge: South and that the house to be searched Defendant, Weaver, ap- Michael Samuel was that of defendant’s mother at 1316 *3 theft, a peals from a conviction of third East 3900 South. in degree felony, violation of Utah Code Powers concluded the affidavit stat- (1990). Ann. 76-6-404 § ing “through experienсe his and belief that 7,May Dusty’s was bur- On Vans Weaver, being Supervised on Intense Pa- May magistrate a glarized. On role, keep property would not stolen at his authorizing executed a search warrant a primary knowing residence that such a residence, search of defendant’s mother’s place routinely could and is searched duplex lоcated in the next to where defen- Parole Officers.” Powers be- grandmother. dant resided with his On lieved that the evidence would be located at judge March a district court de- nearby residence of defendant’s moth- suppress nied defendant’s motion to evi- er. during holding' dence seized the search that requested The authority affidavit no the wаrrant was valid. This motion was greater the warrant than “that the home again at renewed and denied trial. during regular be searched hours a man- The warrant search was based an ner least occupants.” intrusive to other signed by Detective Leslie Kent appeals the denial of his mo- County Powers of the Salt Lake Sheriff's suppress, claiming tiоn to that the affidavit Office. The affidavit enumerated Detec- support was insufficient to the issuance of experience, tive Powers’s which included a search warrant under both the fourth years one and one-half as a detective and amendment of the United States Constitu- years deputy five as a sheriff. It then I, tion and Article Section of the Utah police report describing summarized a a Constitution. burglary Dusty’s at Vans. To wit: Some- pried open building one a metal door on the I. FEDERAL CONSTITUTIONAL night, early morning in the late hours of CHALLENGE May 6 or 1989. The listed items re- Totality A. of Circumstances building
moved from the were valued at $1,000. well over The affidavit summa- Defendant contends that the review follow-up report containing rized a ing court erred in determining that Lawrence, Jay statements of and Linda had cause to issue the reported who were awakened at 7 magistrate may warrant. A issue a search 7, May a.m. on “by someone who was if there is cause to be jumping back and forth over a fence be- property lieve that the to be seized wаs apartment] tween Dusty’s unlawfully acquired either [their or unlawfully man, They Vans.” a saw six-foot possessed. his Utah Ann. Code 77-23-2 § thirties, hair, wearing with short blond (1990). Probable cause is to be determined top. shorts and a tank black The Lawrenc- by totality of the circumstances. Unit get es saw this man into a blue Leon, Mitsubishi ed States v. temporary
truck which
had a
sticker in the
3416-17,
(1984);
S.Ct.
The affidavit stated that defendant was analysis, Under this must currently on supervised parole intense practical, “make a common-sense decision receiving stolen property; Sally whether, given Pow- all the circumstances set ell, parole officer, reportеd him, forth in the including affidavit before (5-6) that defendant “made trips numerous the ‘veracity’ and of knowledge basis between the persons houses and in fact supplying information, was at the hearsay house to be searched on evening there is a fair that contraband storage simply in his mother’s shed be- a crime will or evidence supervised parоle, he was on intense place.” particular jumping back and forth over States was observed also United 103 S.Ct. at (10th Cir.1982) Dusty’s night the fence to Vans on the F.2d burglary, had reason to believe that nothing more than a (“Probable cause is trail, subject police were his and was sought the evidence belief that reasonable sense, In a random seаrches of house. place indicated is located at storage affidavit.”). suggests that the shed policeman’s to stash the evi- too court duty reviewing Our as dence, he and therefore would not have *4 a substan the had ensure that it there. hidden concluding probable for that tial basis 238, determining probability In the 462 at 103 cause existed. U.S. is the (citatiоns omitted). that the evidence where affidavit at Because S.Ct. 2332 found, below, says likely the court, it is to be reviewing like the court this affidavit, likely need it is more of not decide whether is the contents the bound that the evidence be elsewhere or defer to the trial we therefore need not rather, prudent whether a more thief would have finding, wе make an court’s but would have chosen a better location or independent of the trial court’s de review Rather, promptly. the moved it there more sufficiency writ termination Freeman, need address the affidavit United States v. ten evidence. Cir.1982) 942, (5th specific of a 693 F.2d at (citing location.
685 F.2d
948
134,
error in the
Minis,
we find no
v.
666 F.2d
138
United States
946,
magistrate’s
of-
(5th Cir.)
dеnied,
determination
456
102
cert.
U.S.
(1982)).
2013,
cause.
also United
Cir.1980).
1151,
(5th
& 7
1156-57
n.
Sufficiency of the Affidavit
B.
Next,
was
defendant
the affidavit
magistrate’s
reviewing the
deter
In
trial
insufficient because
Lawrences'
affidavit,
sufficiency of the
mination of the
testimony
from what the affidavit
differed
great
to
obliged
pay
are
deference to
we
be,
purported
testimony
their
to
and be-
we
finding
cause and
do
possibility of
it did not mention the
cause
de
462
not make a
novo review.
being
person
involved
the bur-
another
236,
2331; Spinelli
at
103 S.Ct. at
v.
U.S.
disposed
possibly
glary who could
have
States,
410, 419, 89
393 U.S.
S.Ct.
United
in another location.
property
584,
(1969);
590-91,
Defendant asserts
is set aside.
misstatement
to assume the evidence was
probable Nielsen,
727 P.2d
trips
State v.
five to six
between his residence and
1986)
denied,
cert.
480 U.S.
107 S.Ct.
that of his mother. Defendant claims that
(1987) (citing
nothing
II. UTAH CONSTITUTIONAL C. Nexus CHALLENGE challenge Defendant’s final I, to the search that article Section warrant under the Fourth Amendment is requires of the Utah Constitution us to that the affidavit failed reject to establish a nex totality the of the сircumstances us between the searched and analysis the evi 462 U.S. sought. e.g. 213, 238-39, dence 2317, 2332, United States v. 103 S.Ct. Vastola, F.Supp. (1983), 1271 L.Ed.2d 527 adopt and to the earlier (D.N.J.1987). Specifically, two-pronged analysis of the credibility of reported claims that the Sally statement of the reliability informant and of the infor- Powers, officer, parole provide failed tо Texas, mation found in Aguilar v. such a 108, 114, nexus. Powers stated that four 84 S.Ct. 12 L.Ed.2d days burglary, after the States, defendant made in Spinelli and v. United example, appellate For courts sometimes where someone else has accord deference present (1969). the Unlike L.Ed.2d See, superior expertise. e.g., Taylor v. those case, affidavit identifies whеre the School, Training Utah State information, Aguilar and providing Perhaps magis- the warrants based each deal with Spinelli, determination is entitled to some trate’s informa- upon a confidential informant’s deference because the will see Here, were of the informants tion. two accompanying war- innumerable affidavits next burglary lived witnеsses time, year’s appel- requests in a while rant site, burglary the and the third door to grant late courts will review decisions these parole officer. Given Maybe only infrequently. warrants facts, indicia had sufficient kind magistrate becomes a reliability rely. which to Absent appellate expert compared as anything on face of the affidavit rais- expertise judges, maybe should be doubt, a confi- ing as reference to such deferred to. recognized and informant, magistrate had no dential might some Alternatively, deference be credibility to doubt reason in the affi order because statements reliability of their informants or the named expanded might upon, any davit with- Because the affidavit information. clarified, ambiguities in the course test and Aguilar-Spinelli stands both applicant’s colloquy magistrate. with test, not determine we need Gates Elec., Cf Wilburn Interstate . requires us whether the Utah Constitution App.1988) 584-85 them. to choose between (while appellate court construe unam will *6 conviction is affirmed. Defendant’s law, biguous а of defer contract as matter proceed findings to ence is accorded BILLINGS, J., concurs. clarify from extrinsic evidence offered to contract), dismissed, ambiguous cert. ORME, (concurring): Judge (Utah 1989). Perhaps appel opinion I the court’s but write concur court, being privy explana late not to these trepidation to seрarately express some (On tions, to is. should defer someone who Supreme willing- Court’s States hand, United explanations such should the other grant ness to so much deference appropri if be of record even made magistrate’s probable affidavit.) determination of ate interlineation solely cause when it is based on a written is duе to Finally, perhaps some deference reason, affidavit. The stated as alluded to disadvantage under reflect the institutional encourage is opinion, in main to the use magis- magistrate operates. The which the of warrants. See considering trate acts alone plications, hurried circum- often under (“If the affidavits sub- L.Ed.2d for with minimal time rеflection stances police subjected are officers to mitted contrast, appellate judges By research. scrutiny type of some courts have group decision-making, luxury police might well re- appropriate, deemed time, and research assistance. See more searches_”). This sort to warrantless 1296, 1298 Vigil, 815 P.2d State v. quitе unsatisfying. me as It should strikes very it App.1991). Perhaps in a close case require enough rigidly to the use be reason this institu- appropriate, recognition is requires that the Constitution warrants disadvantage, probable a to affirm tional they requires them and further be to be determination that cause Const, supported by probable scrutiny, cause.1 U.S. if a technically close flawed good due the none- acting amend. IV. If some deference is faith could determination, reasonably there magistrate’s it should have concluded be theless cause. premised on some firmer basis. might time to have seemed at the Significantly, does not cause or what the Fourth Amendment speak arguably probable cause. in terms of what is rejecting
While the articulated basis for defer, willingness
the federal courts’ I open
am to consideration of these other
grounds according deference to the surface,
magistrate. But one won- detailed, why
ders written affidavit appellate
should not be reviewed an
court in way writings the same as other not (and
requiring testimony a chance thus
judge credibility) to understand what law, posing question
mean—as with no
particular See, e.g., deference accorded.
Zions First Bank v. Nat’l National Am. Ins., (Utah 1988)
Title
(issues interpretation of contract not re-
quiring consideration of extrinsic evidence law); Wilburn,
are matters of 748 P.2d at (“When unambiguous, contract is its
interpretation question law.”). is a Ei-
ther an affidavit establishes exist;
or it credibility does not. No issues weighed.
no evidence has to be Why appellate
should not the court read the
affidavit and decide for itself the conclu- drawn,
sion to be like it would with a
written contract? my part,
For even if no deference was magistrate’s determination,
due the I still
would vote to affirm. The written
affidavit in clearly unambig- this ease
uously establishes cause to be- goods
lieve stolen would be found at the
nearby place frequented. With deference,
or without
determination in this readily case
sustained.
Douglas CROUSE, R. Plaintiff Appellant,
Audrey CROUSE, Defendant Appellee.
No. 900499-CA. Appeals
Court of of Utah.
Sept.