State v. Yoder

profession.” Kryger, counsel, 479 P.2d at 480. “The in that accepted responsi- he never representation failure such constitutes a bility representation, for their the trial court departure process from due of law.” Id. by concluding erred defendants were not de- nied effective assistance of counsel. Defendants testified understood that them, represent Musselman would one of We hold that under the Sixth that Hatch would assist rep- Musselman and Amendment, a defendant is denied the effec other, taking resent the with Musselman when, tive assistance of counsel as in this lead at trial. Hatch testified his understand- lawyer requested, lawyer but no ing defendants’, pre- the same as so he accepts responsibility actual preparation for pared for a trial in which he would be assist- and defense say of the case. This is not to Musselman, ing doing with Musselman most lawyer may more than one not fulfill this of the work. The record reflects that even responsibility simultaneously, sequentially. or the trial court understood that Musselman However, single lawyer, when no group represent and Hatch would defendants at lawyers, represent undertakes to the inter Musselman, hand, trial. on the other denied ests of the accused at all appropriate stages agreeing represent defendants, and did of the proceedings, that failure constitutes appear at trial. When Musselman failed constitutionally denial of the protected appear, Alldrege the trial court called out right to the effective assistance of counsel. of the audience to sit at counsel table. How- ever, both defendants and Hatch testified Reversed and remanded for a new trial. Alldrege lawyer. was not defendants’ Moreover, defendants even testified that All- JACKSON, JJ., BILLINGS and concur. drege any told them not to ask him ques- tions. attorneys None the three claim to

have understood that he would act as defen-

dants’ pointed lead counsel at trial. Hatch finger

his at Musselman and Musselman

pointed finger Hatch, Alldrege while

simply looked on. troubling

This scenario thus contains three attorneys from the Utah, same firm who all Appellee, had STATE of Plaintiff and contact with during pretrial defendants proceedings, and trial but of whom none YODER, Michael W.

intellectually emotionally responsibili- took Appellant. ty Instead, for defendants’ ease. one attor- ney, waiting while appear another one to No. 950568-CA. over, merely and take went through the mo- tions representing Appeals defendants without Court of of Utah. knowing began before the trial that he would March occurred, do so. As it legal rep- defendants’ simply resentation thus was pre- “a sham or appearance.”

tense of an Kryger, 479 P.2d

at 480. legal Defendants did not have

counselor who took full responsibility for

their case.

The trial court did not make a find

ing following of fact the Rule hearing 23B

regarding counsel, who acted as defendants’

but it did conclude that pretrial Hatch’s

preparation not, itself, did in and of amount

to ineffective assistance of counsel. Howev

er, because Hatch did not act as defendants’ §

felony, in of Utah Code Ann. 76- violation (1995), aggravated abuse 5-301.1 sexual child, degree felony, in violation first (1995). § Ann. 76-5-404.1 We Utah Code affirm.

FACTS1 p.m. On around 6:30 October Valley City apartment complex, five- West apartment year-old her to take some S.F. left dumpster thirty feet from trash to a about failed to her door. When S.F. minutes, began her mother return after few police searching for her and then called the missing. report was About one- she later, half hour Officer Robert Idle the Valley Department City arrived West Police investigate apartment complex at the disappearance. S.F.’s Idle first met with S.F.’s mother Officer preliminary of the and conducted a search nearby places family’s apartment and other may have this where S.F. wandered. When nothing, preliminary uncovered Idle search I, building began a door-to-door search of the lived, building in which and a search of S.F. apartment complex, fol- perimeter the of the building general from by a search lowed fif- building. other officers and about Two Idle in complex assisted teen residents of this search. hours, several the search

Within next of the West joined by all detectives was Department City and numerous Valley Police City agents Lake Lake and Salt Salt County Departments, and all the sur- Police rounding complex areas Jones, Remal, and Rich- M. Lisa J. Linda During period, this crowd also searched. Mauro, City, for Defendant ard P. Salt Lake gathered complex. at the Appellant. and Bronston, and A. first dis- Jan Graham Kenneth horns after S.F. had About three Appellee. City, appeared, Salt Lake for Plaintiff and were found S.F.’s clothes already searched that had been area GREENWOOD, and JACKSON Before located between a police. The clothes were ORME, JJ. pond, twenty feet about sidewalk a small K, building in defen- building which JACKSON, Judge: reports indicating were no dant lived. There placed had how the clothes been appeals Yoder his or whom Defendant Michael W. degree kidnaping, a first thrown there. convictions for child Delaney, ruling. suppression court’s See State facts adduced 1. We recite the (Utah.Ct.App.1994). hearing light most favorable to girl pond probably again The first searched the but clothing, officers who without They nothing. building then turned to asking found cooperation. Defen- K, building was closest to where the as again dant refused allow them to search Budding found. has clothes were K six they them if told would need warrant apartments facing balconies the area with they apartment. wanted to search his De- found, with where the clothes were two fendant also asked officers to leave his apartments blinding’s each on three apartment, they but refused. only Lights were on in two of these floors. five Within to fifteen minutes after apartments, one which was defendant’s arrived, officers had said he would apartment. second floor cooperate Valley police with the West people reported A number of unidentified incident, prior because of some but said he had seen defendant cooperate County would with the Salt Lake “acting suspicious,” going back forth nu- Accordingly, Sheriff. Officer Pearce left the apartment merous times between his and his apartment to communicate this to the officer balcony closet, balcony standing and the Meanwhile, in charge. the officers who balcony watching on the A crowd below. stayed apartment in the continued to “ex- few the officers also saw both plain urgency inquiry” of their and to standing balcony going on his back and “plead request [they] be allowed to forth between and his find Again, the child.” defendant refused to police The apart- decided to check all the apartment allow a search of his and insisted buflding ments K. Call Detective Alan and that the officers leave. Officer John Pearce were told to search the later, A few minutes Officer Pearce re- building, starting apart- with defendant’s apartment turned to defendant’s Salt with They ment. were instructed to defen- ask County Deputy Eyre. Lake Sheriff Kenneth anything dant if he concerning had seen Deputy Eyre introduced himself to defendant clothes and to seek his to consent search his explained and that the officers not were apartment. drugs weapons there to search for or Thus, officers, shortly the two followed nature, anything of they that but that were Garcia, thereafter Detective Vince went to just trying girl to find little to sure make apartment and asked defendant right. that Eyre she was all said to defen- they if apartment, explaining could enter his dant, possible “As a father or ... brother they looking five-year-old that were for a you wouldn’t help somebody want to find girl. opened Defendant the door and girl?” answered, “No,” their little Defendant back, stepped allowing the officers to enter Eyre a response “considering found odd six-to-eight apartment. feet inside the The circumstances.” officers asked if he anything defendant knew requests the course of the officers’ to missing five-year-old girl. about a In re- apartment, search the defendant vacillated sponse inquiry to the officers’ about S.F. and times, back and forth four or indicating five questions their as to whether he had seen at that cooperative times he would be and anything, defendant claimed to have been refusing cooperate. then point to At one sleeping just and to have awakened. The arrival, Deputy Eyre’s after defendant said appeared officers observed that defendant going attorney. he was to call his He instead unusually agitated. nervous and called telling dispatcher that there The explained officers then to defendant were trespassers Valley four West —three missing that child had been for several City police County officers and a Salt Lake hours, clothes her had been discovered deputy his apartment, asking and —in apartment building, they near his and that they dispatcher be removed. The recom- like balcony would to look at his see if cooperate mended he with the officers. might there other be items there. Defen- dant Eyre refused to allow Deputy the officers to search then drew aside defendant apartment just The officers fur- and suggested go he and defendant explained ther urgency balcony, small out and search the without West apartment police at his after his made to being involved. Defendant Valley officers Valley made to Officer Idle the West arrest and statements said he wanted agreed, but Valley being transported officers from the sta- The while officers to leave. West doorway jail. where The trial court denied defen- apartment’s to the tion to retreated safety. motions, Eyre concluding to ensure his that defendant they could see dant’s Eyre onto the balco- then led out search of his Defendant consented to the warrantless ny. balcony supported and that the search exigent by probable cause circumstances. and balcony, went di- Once on the found that defendant’s incrim- The court also balcony Defendant rectly closet. inating Idle were statements made Officer about three or briefly opened the closet door not admissible because the result it, saying some- and then shut four inches interrogation. of custodial “See, of, nothing there’s thing to the effect Eyre cursory Deputy made a out here.” plea “guilty entered a balcony, and then of the rest of the search ill,” mentally ability conditioned on his apart- go back into the asked that defendant appeal the trial court’s denial of his motions refused, at first him. Defendant ment before then referred to the He was suppress. As soon as defendant but then went ahead. Hospital for mental evaluations. Utah State door, Eyre sliding glass turned reached the sentencing hearing,, and after Following the door. opened the closet to the closet having evaluations of defen- reviewed the in a box and he saw huddled There S.F. status, court found dant’s mental move, did not covered a blanket. She “mentally ill” as de- that defendant was Eyre at first that she was dead. believed qualify thus did not fined law and Utah immediately Eyre arrested defen- Deputy mentally ill” The trial “guilty status. dant, pushing him back into the concur- serve sentenced handcuffing him. Defendant fifteen-years-to-life for the rent terms of comments, including: point made a number nine-years-to-life kidnaping offense and child look, you why I couldn’t let be- “You know aggravated abuse offense. for the sexual here”; “I hurt that little she was didn’t cause challenges trial appeal, defendant the On now, bad”; and, I’m very “Just shoot me girl suppress evi- of his motion to court’s denial time, en- At this same other officers sick.” warrantless search arising from the dence apartment to remove S.F. from the tered the incriminating suppress his and his motion naked and They found that she was closet. challenges trial He also the statements. position. tape in a fetal bound with ill, mentally court’s that he is Later, while the it was learned that court. imposed the trial the sentences S.F., had, over had searched hours, his period of about four removed ANALYSIS naked; bound her stripped S.F. clothes and upside tape; held her from head to foot with Legality of Search I. Warrantless head in the feet and flushed her down her the trial court first asserts Defendant toilet; her; penetrated her anus and slapped denying suppress all his motion erred object, forcefully enough vagina with a blunt arising the warrantless search evidence bruising; and her forced to cause extensive war- balcony. Defendant the of his her penis his own and buttocks with to touch balcony violated both of his rantless search addition, defendant threatened mouth. of the United States the Fourth Amendment mother, S.F., un- kill and her mother’s her I, 14 the section of and article Constitution quiet. if was not born child S.F. Utah Constitution. subsequently charged with was defendant’s motion trial court denied aggravated sexual abuse The kidnaping child by the gathered sup- suppress the evidence a motion to a child. Defendant filed of on the during warrantless search police in officers press gathered all evidence (1) exigent circumstances and balcony grounds that his and a search of warrantless justified warrantless incriminating probable cause suppress statements motion to 540 (2)

search, general, “[pjrobable defendant consented to the cause search We first consider probability of means a ‘fair that contraband or ” justified by probable search whether the evidence of crime will be State found.’ v. exigent 1183, cause and circumstances. Nguyen, (Utah.Ct.App. 878 P.2d 1187 1994) omitted). (citation specifically, More Search under A. Warrantless proba the Utah has Court defined the Federal Constitution ble cause as follows: “Probable cause exists A search where ‘the facts within warrantless of a residence is and circumstances constitutionally permissible probable knowledge [the officers’] where and of which exigent proven. cause reasonably trustworthy circumstances had information [are] Ashe, 1255, See v. 745 P.2d State [person] sufficient in themselves warrant a (Utah 1987); Henrie, City Orem v. 868 of reasonable caution in the that’ an belief 1384, (Utah.Ct.App.1994). P.2d 1388 ‘War- being offense has been is committed.” justified probable entries are (Utah rantless with 1085, Dorsey, State v. P.2d 731 1088 exigent 1986) cause and circumstances because in States, (quoting Brinegar v. United 338 circumstances, delay such to obtain a 160, 175-76, 1302, 1310-11, U.S. 69 S.Ct. search ‘physical warrant would risk harm to (1949)). L.Ed. 1879 persons, officers other the destruction evidence, escape of relevant [or] probable The cause determination ” Beavers, suspect.’ State v. P.2d totality is based on “the of the circum (citation omitted). (Utah.Ct.App.1993) How Nguyen, stances.” See 878 P.2d at 1187. ever, private involved, when a residence This court reviews trial court’s determi burden proving probable State’s cause correctness, probable nation of giv cause for and exigent “‘particularly circumstances is ing the trial court a measure discretion “to ” (citation Henrie, heavy.’ at 1388 apply particular the standard to the set of Beavers, omitted); see also 859 P.2d at 13. 1186; facts in case.” Id. at see also State This elevated is a burden result (Utah Poole, 1994). 871 P.2d We “heightened expectation privacy” that citi review underlying court’s factual Beavers, enjoy zens in their own homes. 859 findings Poole, for clear See error. 13; P.2d at see also United States United at 533. Court, States Dist. 407 U.S. 92 S.Ct. 2125, 2134, (1972) (stating L.Ed.2d suppression At the hearing, the of “physical entry is the home chief ficers involved search testified that against wording evil which the of the Fourth primarily initially three led factors them to directed”). Amendment is approach First, defendant. the victim’s previ clothes were found in an area that had challenge Defendant does not the ously been searched to which and defendant’s exigent court’s determination that cir apartment building Second, was closest. de Instead, this cumstances existed in case.2 apartment fendant’s was one of the challenges only defendant two the trial court’s apartments in building that that had probable determination that there the was on, justify lights lighted interior cause to and the the other warrantless search. apartment argues objective Defendant was on the the other side of the braid facts ob by ing, Third, served the farther from clothes. give officers did not rise the the to police reports engaged “quite inference that he was in received from a crimi few” nal conduct. He police standing asserts the offi citizens that defendant had been on acting merely cers balcony watching gathering on “hunches” his and the crowd “premonitions,” below; which are going insufficient to back forth and between his support finding probable a of apartment, balcony, closet; balcony cause. and and " Exigent consequence circumstances are those 'that improperly frustrating would some other person cause entry legitimate Beavers, a reasonable to believe that law enforcement efforts.'" State v. necessary (q ... prevent physical was (Utah.Ct.App.1993) to harm to 859 P.2d 18 uoti the persons, ng officers or McConney, other the destruction of United States v. 728 F.2d evidence, escape (9th 1984)). suspect, relevant the Cir. probable In looking to establish cause. State v. “acting very and ner- cient suspicious” Potter, reports citi- (Utah.Ct.App.1993), to the P.2d 952 this vous.3 In addition zens, also observed defendant several officers whether officers’ observa- court considered balcony going back and his and standing on occupants that the of the defendant’s tions balcony. his apartment his and forth between peered out repeatedly trailer of window only apartment also the was Defendant’s appeared to nervous were sufficient building in the in which human probable of support alone cause. activity These factors led had been seen. previously have held This court stated: “We begin their search of defendant’s officers to regarding an ‘officer’s mere conclusion by checking defendant’s apartment building nervousness, by unsupported rel- apartment. objective facts, weight in can have no evant defendant, suspicion determining his if When the officers contacted he had reasonable suspicions. activity.’” (quoting further validated their behavior criminal at 957 of (Utah.Ct. first testified that when Sery, Two officers State apartment and asked Therefore, entered defendant’s this App.1988)). court concluded any help if information that could “[bjeeause him he had nervous behavior alone is in child, missing them locate suspicion to establish a reasonable sufficient sleeping had that he had been claimed activity, clearly criminal it follows that it is of just statement awakened. Defendant’s probable cause.” Id. insufficient establish sleeping had conflicted with both he been viewing him and impressions upon officers’ Although defendant’s nervous or reported offi- observations citizens and by suspicious is insufficient itself to behavior balcony on his who had seen defendant cers cause, probable may, it as indicated establish addition, shortly In the officers tes- before. Potter, conjunction by considered with be that, explanations response their tified objective facts. addi other relevant presence purpose of their and their tion, suspect’s has “a this court stated that balcony, requests to search his police questions ‘false or evasive’ answers evasive, uncoopera- unresponsive, and was conjunction highly suspicious with behav ap- They also that defendant tive. testified probable may used to cause.” ior be establish nervous, peared very be and that he was Nguyen, (quoting P.2d at 1187 State agitated perspiring profusely. Menke, (Utah.Ct.App. 1990)). “Thus, by suspect ‘responses correctly points out that Defendant false, knows to be or which suspect’s alone is insuffi- which officer nervous behavior behavior; instead, reports police improperly defendant's relied 3. Defendant only supporting probable was one factor reports on from "unidentified unverified addition, reports cause determination. “acting suspicious.” that defendant sources” partially verified defendant’s behavior were suggests the State failed that because standing who saw defendant several officers also prove credibility of these sources or estab- walking balcony, as well as back forth on objective lish that the sources had observed facts Further, apartment and between his en- support an that defendant was inference reports if were not verified or relia- even the conduct, reports gaged could in criminal these confirmed, bility has sources this court be the or the trial considered informants, as distin- stated with citizen determining probable whether there was court in informants, police proof of in- guished from balcony. support cause to search defendant's In reliability veracity lypically and is not formant's Case, argument, defendant cites State v. of this Purser, 515, required. P.2d 517 See State v. 828 (Utah.Ct.App.1994), in which this 884 P.2d 1274 (stating “reliability (Utah.Ct.App.1992) ve- and suspicion for auto- court that reasonable an held racity generally the informant are assumed when may solely stop an mobile not be founded on police nothing a who receives citizen anonymous tip. De- Id. at 1278-79. unverified information”); exchange State in for the anonymous an asserts that if unverified fendant Brown, 284, (Utah.Ct.App.1990) 286 798 support suspi- tip is reasonable insufficient type (stating in- is not that citizen informer cion, necessarily support a it is insufficient independent proof requires of relia- former that probable cause. police bility veracity because "unlike inform- However, ers, determining proba- there was information out in citizen informers volunteer search, community per- police not for and ble of concern for cause benefit”). solely relying sonal in case were not on citizen 542 implausible, conflicting, appears argue evasive unre- this case. Defendant

sponsive may probable constitute well cause reject “totality this court should of the together prior when considered with the sus- making probable circumstances” standard for ” Wayne LaFave, picions.’ (quoting R. cause determinations under the Utah Consti- (1987) 3.6(f), § Search and Seizure tution, case, Jones, citing an Alaska State (footnotes omitted)). Here, (Alaska defendant’s ner- 1985), support. P.2d 317 in suspicious responses vous and behavior and Jones, Court, Supreme the Alaska in inter- approached by when were not preting provision in the Alaska Constitu- solely probable relied on to establish cause. I, tion similar to article section 14 of the Thus, improper it was not for the trial court Constitution, adopt Utah refused to the cur- to consider defendant’s behavior as a factor “totality rent federal of the circumstances” determining probable in whether cause exist- determining test5 for whether an affidavit balcony. toed search defendant’s supporting a search warrant is sufficient to probable establish cause under the Alaska correctly We that the trial court conclude Instead, Constitution. See id. at 324. that, totality determined under the of the Alaska court retained the former federal circumstances, probable the officers had standard, doctrine, Aguilar-Spinelli cause to conduct a warrantless search of required which the affidavit to set forth suffi- defendant’s Defendant’s demeanor underlying cient false, circumstances to establish uncooperative, and his and evasive re- (1) both the basis of the sponses, informant’s knowl- conjunction considered with the (2) edge, veracity the informant’s prior facts observed the officers that con- reliability. 321; See id. at nected see also Illinois v. apartment defendant’s Gates, 213, 228-29, U.S. clothing, the victim’s S.Ct. sufficient-to (1983). 76 L.Ed.2d person warrant of reasonable caution to believe that defendant was in crimi- involved Relying on this Alaska defen activity nal or that evidence of crime would apparently. urges dant adopt this court be found defendant’s or on his something analogous Aguilar-Spinelli to the balcony.4 reviewing probable test for all cause determi nations under the Utah Constitution. Defen B. Search under Warrantless dant approach, asserts that under such an the Utah Constitution give the court would have to “individual con Defendant also that the warrantless every sideration” to factor relied on in mak balcony search of his violated the Utah Con- ing probable cause determination rather I, stitution. Defendant asserts that article considering than these factors toto. De provides section of the Utah Constitution that, fendant further asserts ap under this greater protection against unreasonable proach, probable to show cause the State searches and seizures than the Federal Con- prove objective “must sup facts arguing stitution. the Utah Constitution ported an suspect inference that provides greater protection than its federal conduct, involved in criminal and [must counterpart, primarily relies on a prove] credibility of the source.” background discussion of the historical Utah, provides State analysis little This previously reject court has refused to I, how interpret- totality article section should be of the circumstances test under ed applied I, this court and to the facts of article section 14 of the Utah Constitution. Gates, 4. correctly Because we conclude the trial court In Illinois v. 462 U.S. 103 S.Ct. probable exigent (1983), determined that cause and cir- 76 L.Ed.2d 527 the United States search, justified cumstances the warrantless we Aguilar-Spinelli Court abandoned the argument need not address two-pronged determining that the test for whether af- voluntarily trial court erred supporting in that he fidavit a search warrant is sufficient consented probable to the search. We need likewise to establish cause under the Federal argument Instead, address the State’s alternative that the adopted Constitution. the Court a "to- justified 238, warrantless tality-of-the-circumstances search was under the emer- test.” Id. at 103 gency doctrine. S.Ct. at 2332.

543 Lee, (Utah.Ct. 49, determine, analysis See State v. 863 P.2d 57 sufficient for this court to reject totality-of-the- (declining reject totality-of-the-circum- to App.1993) were we to Aguilar-Spi- test, exactly circumstances test and make what stances test should be by nelli doctrine required I, Utah adopted standard under article section support examining Constitution, in affidavits Constitution Utah and how such a test would Singleton, warrants); State v. ing search applied be to this case. We thus decline (re 1017, (Utah.Ct.App.1993) 1021-22 again reject totality-of-the-circum- to fusing reject totality-of-the-circumstances to reviewing probable stances test in cause de- test, stating Appeals that both Court of I, terminations under article 14 of the section Supreme expressed and Utah Court have Utah Constitution.6 preference totality-of-the-circumstances for reviewing probable

test when cause determi II. Admission of Defendant’s City Trujillo, nations); Salt Lake 854 P.2d Incriminating Statements 603, (Utah.Ct.App.1993) (declining to argues Defendant also the trial court Aguilar-Spinelli hold that doctrine is re refusing in suppress incriminating erred Constitution, quired noting under Utah by statements made defendant to Officer Idle consistently that Utah Court has being transported while from the sta- totality-of-the-circumstances employed stan jail.7 argues tion to these any expressed dard “without hesitation or statements, incriminating which were record- trepidation” evaluating challenges ed, police interrogation the result of search warrant affidavits under Federal Con Arizona, violation of Miranda v. 384 U.S. stitution). (1966).8 436, 1602, 86 S.Ct. 16 L.Ed.2d 694 provided any per

Defendant has not Defendant asserts that Officer Idle elicited argument reconsidering incriminating suasive for is him engag- this statements from Further, provided ing making sue. defendant has not in conversation and comments that, although why 6. We also note defendant did state cuffed. These are: “You know statements I look, here”; before the trial court that the Utah you Constitution couldn't let because she was "I provides greater protection against unreasonable bad”; and, girl very didn’t hurt that little "Just searches seizures than Federal Constitu- now, argues shoot me I'm sick.” Defendant tion, provide argu- defendant did not sufficient suppressed by these statements should have been analysis ment and for the trial court to make poisonous the trial court as “fruit of the tree” argument a determination. As in such before stemming alleged illegal from the search of de- court, primarily this relied on an ac- Wong fendant’s States, See Sun v. United unique history argu- count of this state’s in its 407, 417, 487-88, 371 U.S. 83 S.Ct. ments before the trial court. (1963). However, L.Ed.2d we because have presented Defendant also a different state con- justi- concluded that the warrantless search was argument stitutional before the trial court than by probable exigent fied cause and circum- presents he now before this cotut: Before stances, refusing the trial court did not err in court, argued trial that the Su- Utah suppress on basis. these statements preme exceptions Court has narrowed the to the requirement warrant under the Utah Constitu- tion, incriminating that the recognized exception 8.Defendant also and that there was no justify police entry. suppressed in this case to previously We have statements should have been because "[ejven though stated that following the Utah were made statements unheeded subject [analysis independent counsel, Constitution is requests violating defendant’s Fifth Constitution], argument from that of the Federal right against Amendment self-incrimination. interpretation generally begin for such should However, preserve defendant failed to this issue Buford, trial court.” State 820 P.2d below, and we therefore decline to consider it. Thus, (Utah.Ct.App.1991). this court has Anderson, (Utah See State v. 789 P.2d argu- declined to consider Utah constitutional assert, 1990) (holding defendant cannot as basis court, adequately presented ments not trial appeal, of error on issue not raised before trial " ‘[n]ominally alluding because to such different court, though even claim involves defendant's guarantees any analysis constitutional without Webb, right); constitutional State v. sufficiently before does not raise 1990) (“As (Utah.Ct.App. appellate the Utah permit the issue to appeal.’ consideration this court on times, many generally ” courts have reiterated we (citation omitted). issue, will not consider an even a constitutional additionally argues one, 7. Defendant the trial court appellant appeal which the raises on for the failing suppress erred in statements made time.”). first being defendant after his arrest while hand- too, have known were rea- Yoder: man I am oh man I am that officer should Oh too. incriminating may sonably likely somebody going to elicit state- I talk to but I am not response argues you (inaudible), that may ments. The State to talk because Iso (inaudible) correctly that somebody the trial court determined de- talk to about it. I’m, that’s, not just fendant’s statements to enough I was dumb interrogation,” product time, and thus of “custodial get caught usually peo- the first but trigger protections did not of Miranda. ple get caught don’t the first time because they shoplifters they are careful. It’s like portion of the The recorded conversation get caught don’t the first time because between defendant and Officer Idle is as careful, they say oh this is the follows: sure, time, you got caught first because years staying Yoder: I’ve 25 or 30 spent you got stupid I careless. Well was (inaudible) trying to I have never drunk time, stupid first I don’t know if I was or I life, anybody my hurt whole and I don’t couldn’t handle it. I think that I wanted (inaudible). telling you mind want, (inaudible) get caught, but I didn’t (inaudible) Idle: get caught, I but wanted hell I don’t better, It make me feel Yoder: would sure madness, thing know man. It’s this (inaudible) bad, feeling I when started just children, madness, it’s for the it’s probably kept things a lot of other from (inaudible). pornography it’s I don’t know feeling By way I bad. have little (inaudible), (inaudible) I want to what year girl. nine old little myself. years, trying kill I been I ya? Idle: Do I would sure hate to see (inaudible), kept myself just have be- something happen like that to her. I Why you cause hated it so much. would sir, would, Yoder: Yes I sure I sure would. something you do hate so much. you pull right Reckon could over here and (inaudible) Idle: shoot me. No, Idle: I can’t do that. drinking, drinking, Yoder: Just like I hate money, Yoder: It would save a lot of save why the hell do I do it so much. You trouble, a lot of it would make a lot of know? people happy. know, why I I Idle: don’t don’t know people Idle: Well that would make a lot of anybody something would do I like this happy, but— really don’t. you I if Yoder: don’t know know Iwhat (inaudible), Yoder: It’s there must be saying. really am I can’t I believe this. something wrong with me. I know what spent trying this, have a lifetime to avoid cause, pain kind it will and then I it. (inaudible). do really and I can’t get jail If I [girl] ever out of that little will certainly very Idle: Well it wasn’t a nice walking gun be around with a and will (inaudible). thing happened me, probably shoot because she [would] be happened many Yoder: Well it to me twenty years old. (inaudible), years ago, and I could never do child, that to a I could never do that. I entirely possible. Idle: It’s bad, person hurts so and now this other her, really Yoder: And I wouldn’t I blame going spend feeling, to have to a lifetime rape might wouldn’t. I didn’t I her but as (pause) you pull when I tell me over and (inaudible), My well have. hell when will it partially put my shoot me is me out of I person end. would like to shoot (inaudible) (inaudible) sick, misery, already raised me but he is I dead. al- reason, thing happened got for no I no dead, ready him him seeked out and found joy it, really out of I didn’t. Where in the years a few back. His name was Cliff (inaudible). hell, (inaudible) Tennessee, my he lived with guess up Idle: Well I it is to the mother. just glad individual. I’m got that we it stopped it right. before had worse outcome. Idle: Is that 968, (same); out, they (Utah.Ct.App.1993) all told P.2d I him Yoder: seeked dead, anybody Layton City Aragon, I didn’t have 813 P.2d me he so 1214- was (same). go (Utah.Ct.App.1991) I that could shoot. get hope you help I some Idle: that Well dispute is that There no here defen here. custody” “in dant was when he the made your I to on Yoder: don’t mean lean Well incriminating statements at issue. There shoulder, justify trying and I am not to fore, only question his is whether state justification is anything, because there no “interrogation.” product ments of were nothing can for it.... There is that make reviewing In the trial of court’s denial defen right.... it suppress incriminating dant’s motion to Miranda, Court held that statements, we examine the trial “un court’s statements, prosecution may not “the use error,” derlying findings factual for clear “ inculpatory, exculpatory or stem-

whether court’s law ‘review conclusions of interrogation ming from custodial of the de- findings] based those for correctness.’” [on unless it the use of (citation fendant demonstrates omitted). Hayes, at 971 860 P.2d procedural safeguards effective to secure the police In this did not initi against privilege self-incrimination.” questioning of ate direct defendant. The at at 1612. The U.S. 86 S.Ct. Miranda therefore, question, is Officer Idle’s whether interrogation” as Court defined “custodial responses to statements defendant’s were by law “questioning initiated enforcement of- equivalent” question express “functional of person has been taken into ficers after i.e., ing, whether the comments were words custody deprived [or or otherwise of his her] or actions the officer should have known any significant way.” freedom of action in reasonably likely to an were elicit incrimina ting response from defendant. Innis, 291, 100 Island v. Rhode U.S. very The and defendant offer differ- State (1980), 1682, 64 L.Ed.2d 297 S.Ct. Su ent characterizations of Officer Idle’s com- meaning preme further of Court clarified com- ments. The State characterizes Idle’s “interrogation.” stated: The Court agreement.” “expressions mere of ments as safeguards conclude that the Miranda We points testimony by The also to State Officer person play in custo- come into whenever jail way Idle on the to defendant “talked that dy subjected express question- to either constantly.” The that almost State ing equivalent. or That is its functional to impelled suggests defendant felt to tell say, “interrogation” the term under Mi- any story, regardless his made comments express only question- not randa refers testimony Idle. This is consistent with the ing, any or actions on the but also words concerning defendant’s be- other officers (other police than part those normal- following example, his arrest. For havior custody) ly to arrest and attendant Sergeant Lynn that after Hanson testified reasonably police like- should know arrested, and while still defendant had been incriminating ly response to elicit apartment, defendant continued his suspect. “rambling concerning make statements” 300-01, at Id. at 100 S.Ct. 1689-90. The I predicament, “talking even while was talk- further stated that “since the Court ing a lot of He testified defen- times.” surely cannot be held accountable talking anyone to be appear dant did not their or unforeseeable results of words ac- particular, “just [the but rather us tions, interrogation can ex- definition of apartment] in gener- officers only part words actions on the tend or al.” police officers should have known Defendant, hand, argues that reasonably likely on the other to elicit an incrimina- 1690; “clearly response.” engaging Idle ting [defen- Id. at Officer S.Ct. Although did Hilfiker, dant] in Idle see also 830- conversation.” State actively encourage question (Utah.Ct.App.1994) (discussing Innis defi- statements, incriminating interrogation); Hayes, to make nition of State v. 860 defendant statements, particular types remarks were other or that asserts Idle’s “unusually sympathy Idle knew defendant was disori- play on [defendant’s] “meant to 302-03, upset.” judg- ented or Id. at 100 S.Ct. at and were statements of conscience” 972; 1690; Hayes, P.2d at ment, interrogation. see also State and as such were (Utah.Ct. Singer, However, accept if we were to defen- even App.1991). playing that on a argument comments dant’s in- sympathy are “tantamount to suspect’s case, Under the circumstances of this Offi- exchange between terrogation,” the recorded any cer Idle did not make comments that he support does not defen- defendant and Idle likely reasonably should have known were to that Idle intended to elicit dant’s assertion incriminating response, elicit an and thus did incriminating statements from defendant engage equivalent in not the functional of sympathy or con- playing on defendant’s Therefore, express questioning. we science. affirm the trial court’s determinations that interrogation was no that there custodial and also asserts that an officer’s incriminating statements need not be relating specifical- “banter” a defendant with suppressed. ly in to the defendant’s involvement equivalent charged crime is the functional III. Mental Illness Determination express police questioning. support To this challenges Defendant also the trial court’s proposition, defendant cites United States v. mentally finding that he was not ill and thus Cir.1983). Brown, (9th How- 720 F.2d qualify “guilty did not for the status of and ever, Brown, merely in the officer did not mentally §§ ill” Ann. under Utah Code 77- concerning “banter” with the defendant (1995 Supp.1996). 16a-103 and -104 & Instead, defendant’s involvement in a crime. engaged that in the court found the officer 77-16a-103(l) . Section of the Utah Code “inflammatory colloquy” expressly and both that, provides “[u]pon plea guilty a and questioned “verbally attack[ed]” and defen- mentally ill tendered a ... defendant^] dant, “bait[ing],” “taunt[ing],” “goading” and hearing the court hold a a shall within rea- incriminating response. him to obtain an Id. sonable time to determine whether the de- addition, In noted 77-16a-103(l). mentally § fendant is ill.” Id. that the that he had in fact officer testified 76-2-305(4), §in “Mental is defined illness” “ incriminating responses intended to elicit provides part: which in ‘Mental illness’ from the defendant. Id. at 1068. Under means a mental disease or defect that sub- circumstances, the court that these concluded mental, stantially impairs person’s a emotion- incriminating responses the defendant’s al, functioning.” § or behavioral Id. 76-2- volunteer,” not “uninvited and should have 305(4) (1995). guilty To find a defendant and been excluded under Miranda and Innis. ill, mentally the trial court must conclude Id. at 1069. currently mentally that “defendant is ill.” 77-16a-103(4); § § see also id. 77-16a- case, In this there no that is evidence 104(1) (stating upon guilty that verdict of intended, actually Officer Idle as did the mentally hearing ill trial court must conduct Brown, provoke incriminating officer to “present to determine defendant’s mental Likewise, responses from defendant. unlike state”). 77-16a-104(a), § ill- Under mental Brown, the officer Officer Idle did not proven by must be ness “clear and convinc- defendant, verbally attempt attack ing evidence.” making “taunt” “bait” or defendant into addition, incriminating statement. as after the trial court denied Innis, in which suppress, Court found defendant motions interrogation, pleas “guilty mentally there was no Idle did not en- ill” entered Innis, gage in “lengthy harangue.” 446 both offenses. Defendant was then referred Hospital U.S. at at 1691. Also like S.Ct. the Utah State for a mental Innis, evaluation, there is no he evidence Idle where was examined two doctors, “peculiarly suscep- Nancy aware that Eric B. defendant was Dr. Nielsen and Dr. appeal reviewing reports tible to an his conscience” or Cohn. After of these opinion he not hearing arguments of coun- is the examiner’s does doctors and sentencing hearing, spelled the trial court under law at the meet criteria out Utah sel qualify for the did not guilty mentally found defendant to be considered ill.” mentally guilty added.) ill. Defendant status (Emphasis these doctors’ evaluations specifically Dr. Cohn state did whether showed, in the trial court’s find- as reflected “mentally ill,” but did find that depression, ings, that suffers depressed” “presently defendant was and has disorder, history of mood has long has significant history dysthymia, “a more post-traumatic symptoms features of and chronic less severe mood disorder.” She disorder, long history a of and has stress of symptoms also stated that defendant has asserts that substance abuse. Defendant anxiety post-traumatic and of features stress convincing and findings provide clear these disorder, long history depen- has a of alcohol mentally ill evidence that he is under Utah dence, diagnostic and meets the for criteria law, in argues and trial thus court erred “Paraphilia Specified.” In Not Otherwise mentally ill. refusing to find him discussing “present defendant’s mental sta- finding that de “The trial court’s tus,” however, Dr. Cohn stated that neither mentally ill is a factual de fendant was not “thought process, the defendant’s nor er appeal reviewed on for clear termination thinking impaired; not content of his is he is Murphy, P.2d ror.” State v. psychotic.” found that She further defen- (Utah.Ct.App.1994). the clear error Under depression was dant’s well controlled with standard, upset not this court will presently medication and that was not he findings court’s factual ‘“unless suicidal. evidence, weight “against the clear of appellate if the court otherwise reaches spe- of the did Given that one doctors not firm that a mistake definite and conviction cifically concerning express opinion ’” omitted). (citations has been made.” statutory meets the defi- whether defendant ill,” “mentally nition of and other doctor specifi In doctor this neither specifically concluded that defendant does “mentally ill” cally found that defendant was statutory not meet the criteria be found 76-2-305(4). § under Dr. Nielsen stated ill, mentally not guilty it was clear error that defendant does “suffer from a mental find the trial court to refuse to defendant for specifically illness.” He found that defen mentally Murphy, 872 at 483- ill. See P.2d depres “periodically dant has suffered with (holding of whether defen- lifetime,” where evidence al through the of his sion course mentally was ill controverted —one depression is dant was though current of “[h]is level likely, part, in four defendant not men- impending due to his sentence examiners found tally did and loss of freedom.” Dr. Nielsen further ill—trial court not abuse its discre- history long mentally refusing concluded that defendant has in tion find defendant abuse, he drug ill); alcohol that DePlonty, noted P.2d 626- State v. cf “specifically (Utah 1987) in need of treatment for (holding trial court in erred depression, recurrent his substance abuse mentally ill where evi- defendant and his sexual abuse the child.” mentally that ill was dence defendant was undisputed). stated, however, Dr. also that de- Nielsen demonstrating any significant fendant “is not

psychotic symptoms actively is not sui- Sentencing IV. cidal.” further stated defendant He Finally, challenges defendant his sen- , “very at the State much wants remain sentencing, At the trial court found tences. in Hospital present and is inclined to himself aggravating of- two circumstances —“the pathological more fashion than is a somewhat pleas entered fenses which defendant in probably as his treat- accurate evidenced cruelty guilty were characterized extreme Despite his ment.” statement illness,” unusually depravity” was Niel- and “the victim does suffer from “a mental Dr. considered, mitigating things it one circum- vulnerable” —and “[a]ll sen concluded “single episode.” good this offense was not a De- was a candidate stance —defendant by fail- fendant the trial court erred treatment. ing mitigating to consider as a circumstance determining that the offenses were history prior fact that he had no cruelty and de- characterized extreme abuse, kidnaping, sexual or other similar sex- specifically found that “de- pravity, the court However, ar- related offenses. victim, sexually kidnapped the fendant gument effectively rejected by the Utah her, mouth, her, taped her abused sodomized Russell, Supreme Court State v. toilet, body, flushed her head face and (Utah 1990). hair, her, threatened to slapped pulled her family[,] and locked her kill her and her Russell, argued that the the defendant notwithstanding late- in a outside closet trial court erred because it did not consider day,” year time of and the late ness prior history of- his lack of of sex-related exposing her to the cold. thus mitigating fenses as a factor. See id. at 192. claim, supreme rejected hold- The trial court also found The that, ing light of the defendant’s extensive history, “contributory prior criminal had a history, criminal the trial court did not abuse Conduct, Disorderly Resist- which included by finding its not “that defendant discretion Vehicle, Arrest, a Malicious ing Assault with prior charges or convictions of sexual had no Mischief, Setting Property, Fire to Personal Id.; Wright, see also 893 offenses.” State Arson, and Lewdness.” Based on Threats 1113, (holding (Utah.Ct.App.1995) history, including contributing criminal the where trial court noted defendant had exten- “fairly charge,” trial recent lewdness crimes, history sive of violent and antisocial single find that this was “a court refused to by trial court did not abuse its discretion episode.” The trial court then found failing mitigating factor to list as defendant’s outweigh the aggravating circumstances “the crimes). Thus, history lack of of sex-related result, mitigating As a circumstances.” case, considering in this defendant’s exten- minimum imposed trial court the most severe history, given sive criminal the trial mandatory the sexual sentences for both that criminal court’s statement that based on offense, kidnaping abuse offense and the history present it did consider the of- concurrently.9 terms be served incident, fense as an isolated the trial court sentencing review the deci “We failing recognize in did not err defendant’s sions of a trial court for abuse of discretion.” history lack of similar offenses of sex-related (Utah.Ct. Houk, 906 P.2d State mitigating as a factor. Nuttall, App.1995); see also State v. 861 P.2d also that the trial court Defendant (Utah.Ct.App.1993). “Abuse of dis by considering aggravating erred circum- if ‘may cretion be manifest the actions of the in stances inherent the definition of the of- “inherently judge sentencing in unfair” were aggravated of abuse. He ar- fense sexual imposed “clearly judge or if the excessive ’ ” gues by trial that the factors identified (cita Houk, P.2d at sentence.” in the offense was “character- omitted). “may only This court find tions cruelty depravity” ized extreme abuse ‘if it can be said that no reasonable charging identified in the information defen- [person] adopted by the would take the view ” dant as essential elements of the offense (citation omitted). trial court.’ aggravated sexual abuse. challenges that, light arguing in court’s in of defen Defendant is correct determination “contributing prior history,” aggravating that an dant’s criminal circumstance should not Thus, impose concurrently.” Although the trial court stated that it did not sentence sentencing single episode purposes find a for appear trial court did to consider the fact that to most severe minimum mandato- previously defendant had not committed the ry aggravated sentence sexual abuse of a ordering purposes same offenses for that the child, the "[s]ince trial court did state that concurrently, sentences run and not consecutive- appears State recommends and it to the Court ly- involved, single episode that a the Court will was rejected court if it requests be considered is inherent defendants’ to review the charged the definition of the offense. For proportionality compar- their sentences example, the Utah Court has stated ing their convictions and sentences with that “ ‘although aggravating a listed circum- defendants, of other empha- has instead stance is an essential element of the crime of sized individuality of each defendant and assault, aggravated sexual one convicted of See, Carter, e.g., each case. State v. 888 P.2d that crime nevertheless cannot be sentenced (Utah 1995); Gardner, 656-57 State v. mandatory greater to a term than that of a (Utah 1989). In this severity in middle the absence of additional argued defendant has not that his sen- ” Russell, aggravating circumstances.’ proportionate tences are not to the serious- (citation omitted). However, P.2d at 192 as offenses, ness of the or that the sentences out, points although the State the trial court inherently clearly unfair or excessive. listed some factors inherent the offense of Therefore, reject argument we aggravated (i.e., sexual abuse of a child disproportionate. his sentences are abuse, kidnaping, kill),10 and threats to (i.e., trial court also listed factors that are not victim,

sodomizing taping her mouth CONCLUSION body, toilet, flushing slapping her head correctly The trial court determined that her, hair, pulling exposing her her to the the warrantless search defendant’s balco- cold). ny justified by probable cause and exi- that, previously We have if held even Thus, gent circumstances. the trial court improperly trial court considered invalid correctly suppress refused to the evidence circumstances, aggravating if the trial court arising from the search. The trial court also aggravating found other circumstances ade properly suppress refused defendant’s in- quate support mandatory minimum statements, criminating as were not the imposed, any sentence it in considering error interrogation. result of custodial The trial improper aggravating circumstances was court’s determination that defendant did not 1232, Perry, harmless. See State v. 899 P.2d qualify guilty for the status mentally (Utah.Ct.App.1995); 1242-43 see also State v. ill clearly Finally, was not erroneous. Archuleta, 1232, (Utah trial court did abuse its discretion in 1993) (holding aggra consideration of invalid sentencing defendant to the min- most severe vating sentencing circumstances at harmless mandatory imum aggravated sentences for remaining where one or more aggravating sexual kidnaping. abuse a child and child factors). outweigh mitigating factors In this Accordingly, we affirm defendant’s convic- case, the trial court did list factors included tions and sentences. aggravated the offense of sexual abuse. However, because the trial court found other ORME, J., aggravating

valid concurs. outweighed factors that mitigating factor and that were sufficient to GREENWOOD, Judge (concurring in the re- court, support imposed by the sentence sult): any error committed the trial court in considering the invalid factors was harmless. I concur in the result and reasoning my colleagues in finally respects except all as con- the sen imposed probable justi- tences the trial cerns the existence of dispropor are cause to fy imposed tionate to sentences the warrantless similar cases search defendant’s jurisdiction. seeking compara agree I cannot proportionality totality justifies tive review of the trial court’s of the circumstances decision, sentencing probable defendant misconstrues conclusion that there was cause to Utah law. The Utah Court has believe defendant had committed or was 76-5-404.1(3) § See (Supp. naping, committing harm, Utah Code Ann. offense force or threat of 1996) (stating aggravating causing bodily injury during circumstances include to victim offense). committing during offense the course of a or kid- as a result of cause,” is, basis, probable approximating offense. See State v. criminal committing a (Utah.Ct.App. emergency situation Spurgeon, 904 a nexus between 1995). However, can be I believe the search justify apartment, the search “emergency of the by application validated emergency Addition- aid doctrine. under doctrine,” exception provides aid which ally, primary concern at the time the Fourth requirement of the warrant or was not the arrest of defendant search this doctrine elements of Amendment. The rather, evidence, the life and but seizure as follows: missing I would well-being of the child. (1) police have reasonable The must legal find the search under therefore an emer- that there is grounds believe on the basis of the emer- Fourth Amendment an immediate need for gency at hand and gency doctrine. aid protection of life their assistance for

property.

(2) primarily moti- search must not be The and seize evi- intent to arrest

vated

dence. basis,

(3) must be some reasonable There cause, probable to associate

approximating place emergency to be with area

searched. Mitchell,

People 39 N.Y.2d 246, 248, 347 N.E.2d

N.Y.S.2d Mitchell,

(1976). officers City a cham

searching a New York hotel for missing assigned reported from her bermaid WISDEN, Joseph M. Petitioner Id. at 347 N.E.2d at 608. The location. partially Appellant, street clothes and eaten maid’s discovered, but a four hour lunch were Finally, police unsuccessful. search was room-by-room Defen search. commenced DIXIE COLLEGE PARKING talked, dant, officers had earlier to whom COMMITTEE, Respondent maid, not seen the and his room said he had Appellee. last one searched. Police discovered

was the corpse in defendant’s closet. The the maid’s No. 950791-CA. Appeals held that New York Court of Fourth “was not interdicted search Appeals of Utah. Court triggered in because it was re Amendment emergency and was sponse to an situation March apprehend and not motivated the intent to Id.; him or to seize evidence.” arrest cf. Warden, City v. Provo

(Utah.Ct.App.1992) (adopting “imminent dan justify

ger to life or limb” as criteria community stop), automobile caretaker aff'd (Utah 1994).

875 P.2d 557 emergency situation exist- child, discovery missing

ed because clothing, temperature, and the

her the cold passed

amount of time that had since the disappearance. Proximity of the

child’s

clothing and the

officers’ concerns about defendant’s behavior cause, probable not rise to

and demeanor do my provide opinion, but do a “reasonable

Case Details

Case Name: State v. Yoder

Court Name: Court of Appeals of Utah

Date Published: Mar 20, 1997

Citation: 935 P.2d 534

Docket Number: 950568-CA

Court Abbreviation: Utah Ct. App.