Lead Opinion
Grеgory R. Wight appeals his jury conviction of automobile homicide under Utah Code Ann. § 76-5-207(l)(a) (1985). Wight asserts the trial court erred in: 1) admitting expert testimony into evidence without adequate foundation; 2) failing to order a new trial based on ineffective assistance of counsel; 3) failing to declare a mistrial due to juror bias; 4) admitting Wight’s blood sample and blood test results into evidence; and 5) denying Wight’s motion to exclude his prior robbery conviction. No objections were raised at the trial court on the issues of juror bias or admissibility of the blood sample and test results.
At about 1:00 a.m. on November 17, 1985, Wight was driving southbound on Redwood Road when his vehicle collided with a vehicle traveling northbound. Reid Nielsen, driver of the other vehicle, died in the accident. Wight was taken to a hospital where Utah Highway Patrol Trooper Steven Bytheway observed that Wight was unconscious and detected the odor of alcohol on his breath. Bytheway arrested Wight and directed a certified technician, Kathy Burns, to draw Wight’s blood. Burns drew the blood at about 3:30 a.m., took the blood home and stored it in her refrigerator until November 21,1985, when she took it to the state laboratory for analysis.
Wight was charged with automobile homicide and tried by a jury on June 12 and 13, 1986. Prior to trial, Wight filed a motion in limine sеeking to exclude evidence of his 1977 aggravated robbery conviction. The court denied the motion.
At trial, after the jury was impaneled and the prosecution made its opening statement, the court asked the jurors if anyone knew Nielsen, the deceased. One juror stated that she knew his wife as a former neighbor and through the L.D.S. Church. When the court asked the juror if she could be fair and impartial, the juror stated that she could. Defense counsel discussed the juror’s possible bias with defendant and did not raise an objection to proceeding. Defense counsel informed the jury in his opening statement that Wight had been сonvicted of aggravated robbery in 1977.
At trial, Wight testified he had consumed at least ten beers the night of the accident, most of it between midnight and 1:00 a.m. He also stated that he was not intoxicated, but was very tired on the night of the accident. Wight recalled that just prior to the collision he was traveling at about 53 miles per hour and barely missed one car which was traveling in the opposite direction. Almost immediately after the near collision, Wight again fell asleep at the wheel and woke up just as he saw Nielsen’s headlights. Wight also testified he had been convicted of aggravated robbery, but did not elaborate furthеr. Wight was not questioned about the robbery conviction during cross-examination.
Two Utah Highway Patrol troopers testified that Wight’s vehicle was traveling about 71 miles per hour just prior to the accident. Further, Bruce Beck, the state toxicologist who analyzed Wight’s blood sample, testified that the blood sample contained a blood alcohol content of .20%.
The jury convicted Wight of automobile homicide, a third degree felony. On October 9, Wight, through a new attorney, filed a motion for a new trial, claiming that his trial attorney did not effectively represent him. After hearing, the motion was denied.
I.
EXPERT TESTIMONY
We first determine whether the trial court erred in admitting the testimony of the two highway patrol officers into evidence. Experts are permitted to testify as to their opinion if scientific, technical or other specialized knowledge will assist the trier of fact. Utah R.Evid. 702. The expert must be qualified by knowledge, skill, experience, training, or education. Id. Trial courts are granted considerable discretion in determining whether an expert is qualified to give an opinion. Wessel v. Erickson Landscaping Co.,
In the present case, Officer Erickson testified that he had approximately 120 hours of accident investigation training at the time of the accident and had investigated about 75 accidents. He also stated that he visited the accident scene, took measurements and estimated that Wight’s vehicle was traveling 71 miles per hour prior to impact. Officer Dahle, who had similar training and experience but who had not visited the scene of the accident or made his own measurements, testified that based on Officer Erickson’s measurements, Wight’s vehicle was traveling 71 miles per hour prior to the accident. Both officers were adequately qualified under Utah R.Evid. 702 and, in accordance with Utah R.Evid. 703, testified as to facts either known to them or made known to them. Based on the foregoing, we find no merit in Wight’s contention that the trial court abused its discretion in admitting the testimony of the two police officers.
II.
INEFFECTIVE ASSISTANCE OF COUNSEL
Wight asserts he was denied effective assistance of counsel, primarily because his attorney failed to move for a mistrial on the basis of juror bias and failed to object to admission of the blood sample or blood analysis test results. Generally, this Court will not consider matters raised for the first time on appeal without a timely objection in the trial court. State v. Mitchell,
In order to prevail on a claim of ineffective assistance of counsel, defendant must overcome the strong presumption that counsel rendered adequate assistance and exercised reasonable professional judgment. State v. Frame,
a. Juror Bias
We examine first the failure to move for a new trial on the basis of juror bias. The record discloses that Wight’s trial attorney discussed the juror’s possible bias and the option of moving for a mistrial with Wight. Although Wight claims he did not understand his attorney’s explanation of the available options, Wight stated that he left the decision of whether to move for a mistrial to his attorney. Under the circumstances, we believe that the attorney’s decision to proceed with the trial was a legitimate tactical judgment. Further, Wight has not shown that his trial counsel’s representation fell below an objective standard of reasonableness. Accordingly, because we will not substitute our judgment for that of Wight’s trial attorney, we hold that Wight was not denied effective assistance of cоunsel by his attorney’s failure to move for a mistrial..
•b. Blood Sample and Test Results
We next consider the failure of Wight’s counsel to object to admission of the blood sample and blood test results. Wight argues that the trial court erred in admitting his blood sample and blood test
(1) Any person operating a motor vehicle in this state shall be deemed to have given his consent to a chemical test ... of his breath, blood, or urine for the purpose of determining whether he was driving ... while having a blood alcohol content statutorily prohibited ... so long as the test is ... administered at the direction of a peace officer having grounds to believe that person to have been driving ... while having a blood alcohol content statutorily prohibited .......
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(3) Any person who is ... unconscious ... shall be deеmed not to have withdrawn the consent provided for in subsection (1) of this section, and the test or tests may be administered whether such person has been arrested or not.
Wight claims that, according to In re R.L.I.,
Wight further argues the State laid an inadequate foundation for the blood sample and blood test results because the test was taken two hours or more after the accident, and because a sufficient chain of custody was not established. Utah Code Ann. § 41-6-44.5(2) (1985) provides that if the test is taken more than two hours after the alleged driving under the influence took place, the test results are admissible, “but the trier of fact shall determine what weight shall be given to the result of the test.” Moreover, testimony of the technician and the state toxicologist sufficiently establish a chain of custody of the blood sample and test results. Therefore, the State properly laid a foundation for admissibility.
We conclude, as a result, that objecting to the admissibility of the blood sample and blood test results would have been futile. Therefore, Wight has failed to sustain his burden of establishing ineffective assistance of counsel for failure to object to the admissibility of the blood sample and blood test results. See Malmrose,
III.
PRIOR CONVICTION
Wight’s final contention is that the trial court erred in denying his motion in limine to exclude all evidence of his 1977 aggravated robbеry conviction. In reviewing evi-dentiary rulings, we “will not reverse the trial court’s ruling on evidentiary issues unless it is manifest that the court so abused its discretion that there is a likelihood that injustice resulted.” State v. Gentry,
Wight’s attorney mentioned the robbery conviction in his opening statement and elicited testimony from Wight regarding the conviction during direct examination. The testimony was limited to the fact of the conviction, with no explanation of the actual circumstances involved.
The trial court allowed the evidence under Utah R.Evid. 609(a), which states:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, or (2) involved dishonesty or false statement, regardless of the punishment.
(Emphasis added). It is not clear from the record in this case, whether the prior conviction was found admissible under 609(a)(1) or (2), though Wight argues only that it should have been excluded under 609(a)(2).
No Utah cases have specifically construed 609(a)(2) since its adoption in 1983. However, in State v. Banner,
Under Federal Rule 609 as finally adopted there is still “much disagreement among the cases and commentatоrs about which crimes are usable for [credibility] purposes” under 609(a)(2). Id. at 609-44. This disagreement encompasses the question of whether robbery and other crimes against property are crimes involving dishonesty or false statement. In United States v. Glenn,
The difficulty of distinguishing between crimes involving “dishonesty and false
[r]obbery is generally less probative [of credibility] than crimes that involve deception or stealth. But it does involve theft and is a serious crime that shows conscious disregard for the rights of others. Such conduct reflects more strongly on credibility than, say, crimes of impulse, or simple narcotics or weapons possession.
Id. at 1070-71. The court found that it is within the trial court’s power to make inquiries necessary to determine if a particular prior crime’s circumstances are such that the evidence is probative under 609(a)(1) or included under 609(a)(2). The trial court “has discretion to determine when to inquire into the facts and circumstances underlying a prior conviction and how extensive an inquiry to conduct.” Id. at 1068. The Lipscomb court also noted that the decision to make a factual inquiry is subject to deferential appellate review, utilizing an abuse of discretion standard. Others have argued, however, that under 609(a)(2) the court should not examine underlying acts, but should look only at the elements of the crime, as “convenience requires a rather mechanical rule.” Wein-stein at 609-85.
In United States v. Carroll,
when the statutory offense of which the witness was convicted does not require proof of fraud or deceit as an essential element of the crime, a prior conviction may yet be admitted under Rule 609(a)(2) if the proponent of the evidence bears the burden of showing that the conviction “rested on facts warranting the dishonesty or false statement description.”
Carroll,
While all crimes involve, in some broad sense, an element of dishonesty, we agree with Lipscomb that the crime of robbery is not necessarily one of dishonesty or false statement for purposes of 609(a)(2) admissibility. Rather, we believe that under 609(a)(2) inquiry may be made, at the court’s discretion, regarding the particular facts involved to determine if honesty was a factor. If honesty was involved, evidence of the priоr conviction is automatically admissible under 609(a)(2). If such inquiry is not made or does not reveal acts of dishonesty or false statement, the trial court must apply 609(a)(1) and weigh pro-bativeness against prejudice to the defendant in determining admissibility. Contrary to the concurring opinion, we do not believe this will be a burden on the trial courts, but will give them greater flexibility to either find circumstances indicating dishonesty, or engage in a balancing process to determine probative value, an exercise with which trial courts are familiar.
In this case, it appears that no inquiry about underlying facts was made. As a result, because we cannot determine if the actual crime involved dishonesty or false statement, we find that it was not admissible under 609(a)(2).
We next consider whether the prior conviction was admissible under 609(a)(1) to impeach Wight’s testimony. Under 609(a)(1), evidence of a criminal conviction may be admitted if the crime was punishable by death or imprisonment in excess of one year and if the probative value out
[1] the nature of the crime, as bearing on the character for veracity of the witness.
[2] the recentness or remoteness of the prior conviction....
[3] the similarity of the prior crime to the charged crime, insofar as a close resemblance may lead the jury to punish the accused as a bad person.
[4] the importance of credibility issues in determining the truth in a prosecution tried without decisive nontestimonial evidence. ...
[5] the importance of the accused’s testimony, as perhaps warranting the exclusion of convictions probative of the accused’s character for veracity....
Id. at 1334. In Banner, the Court found that the prior conviction should have been excluded after application of the above principles in the weighing process, because the prior convictions were remote in time (between eight and nine years old), the nature of the prior crime (assault with intent to commit rape) would be highly inflammatory and prejudicial, and the defendant’s testimony and credibility were critical.
In applying 609(a)(1) and the Banner criteria to this case, we find that the record of the in-chambers hearing on the motion to exclude Wight’s prior aggravated robbery conviction is bereft of thе Banner criteria or the balancing process. The State has the burden of establishing that the prior conviction is more probative than prejudicial. Banner,
We must also determine, however, if the error was harmless. Error is reversible “only if a review of the record persuades the court that without the error there was ‘a reasonable likelihood of a more favorable result for the defendant.’ ” State v. Fontana,
Affirmed.
BILLINGS, J., concurs.
Notes
. Wight and his counsel presumably decided to present evidence of the prior conviction as part of their case-in-chief, as a tactical decision, rather than allow the State to raise it by cross-examination. The State has not argued that presentation of the evidence by Wight constitutes a waiv
. Committee notes to the new Utah rules state they are intended to provide a fresh starting place in analysis. State v. Banner,
Concurrence Opinion
(concurring)
I have some problem with the majority opinion in its interpretation of Utah R. Evid. 609(a)(2). The majority concluded that because the trial court failed to take any evidence regarding the factual circumstances around defendant’s prior conviction for aggravated robbery, there was no determination whether the actual crime involved dishonesty or false statement. Therefore, the conviction was inadmissible under the Rule.
The record indicates that the trial court had significant information on the nature and timing of defendant’s prior conviction. Defendant committed the crime of aggravated robbery on Fеbruary 18, 1977. He was convicted and sentenced to prison for this offense on February 28, 1978 and was paroled in 1980. He was tried on the present charge of automobile homicide on June 13, 1986, approximately six years after his release from prison and eight years after his conviction. At the pre-trial hearing on defendant’s motion to exclude any testimony pertaining to this prior conviction, the State furnished the court with a copy of defendant’s rap sheet. Counsel for defendant argued that defendant’s conviction should be excluded, stating that he “would be the first to admit such a crime would go to a person’s honesty and trustworthiness” but thought that its admission would be more prejudicial than probative. The trial court ruled that defendant’s prior conviction was admissible under Rule 609(a).
Rule 609(a) provides as follows:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record during cross-examination but only if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant, оr (2) involved dishonesty or false statement, regardless of the punishment.
Where statutory language is clear and unambiguous, the statute must be held to mean what its language plainly expresses. 2A C. Sands, Sutherland Statutory Construction § 46.01 (4th ed. 1984). In construing such a statute, we must, therefore, give effect to the Congress’s underlying intent by assuming that each term in the statute was used advisedly, Gleave v. Denver & Rio Grande W. R.R. Co.,
In Rule 609(a)(2), the terms “dishonesty” and “false statement” are separated by the term “or.” “Or” is “[a] disjunctive particle used ... as a function word to indicate an alternative betweеn different or unlike things.... ” Black’s Law Dictionary 987 (5th ed. 1979). The plain meaning of Rule 609(a)(2) is that all felonies and misdemeanors involving either dishonesty or false statements are automatically admitted without balancing probative value against prejudicial effect, “or” indicating that “dishonesty” and “false statement” have different or unlike meanings.
The issue in the present case, then, is whether aggravated robbery involves either dishonesty or false statements. If it involves either, evidence of a conviction for aggravated robbery should be automatically admissible without balancing its probative value against its prejudicial effect.
The majority opinion implies that aggravated robbery does nоt necessarily involve dishonesty or false statement and, therefore, the trial court is obligated to make inquiry into the underlying facts of the crime to determine if either of those elements were present. In support of this position, it relies on United States v. Lips
However, other circuits have approved admission of prior robbery convictions under Rule 609(a)(2), reasoning that theft offenses are fundamentally dishonest: United States v. Grandmont,
The majority opinion quotes United States v. Papia,
Precisely because of the variance between the common meaning of “dishonesty” and the more restrictive meaning in which Congress apparently used the word, courts have split on the question of whether prior convictions for crimes involving stealing, without more, are admissible for impeachment purposes under Rule 609(a)(2).
As the developing conflict between the Circuits reveals, reasonable men may disagrеe about whether a witness’s propensity to steal reflects upon his honesty in a manner that bears adversely on his propensity to tell the truth. Frankly, we are not anxious to enter the fray and, fortunately, are able to decide this case without having to rule on the general question of whether all crimes involvingstealing necessarily involve “dishonesty” within the meaning of Rule 609(a)(2).
Id. at 846-47. See also United States v. Carroll,
In my view, the preferable line of authority is that which holds robbery to be a crime involving dishonesty because it contains the element of theft. This is consistent with the per curiam opinion of State v. Cintron,
Robbery, which includes theft, must certainly be a crime with veracity-related elements. Therefore, I would permit the prior aggravated robbery conviction to come in automatically under Rule 609(a)(2).
. "Robbery is generally less probative [of credibility] than crimes that involve deception or stealth. But it does involve theft and is a serious crime that shows conscious disregard for the rights of others. Such conduct reflects more strongly on credibility than, say, crimes of impulse, or simple narcotics or weapons possession." Lipscomb,