State v. Branch, 20557

• Decision Date: 17 September 1987
• Docket Number: No. 20557,20557
• Citation: 743 P.2d 1187
• Parties: STATE of Utah, Plaintiff and Respondent, v. Paul Anthony BRANCH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1187

743 P.2d 1187

STATE of Utah, Plaintiff and Respondent, v. Paul Anthony BRANCH, Defendant and Appellant.

No. 20557.

Supreme Court of Utah.

Sept. 17, 1987.

Rehearing Denied Oct. 21, 1987.

Brooke Wells, Christopher Kerecman, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Dave B. Thompson, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

A jury convicted defendant Paul Anthony Branch of theft, aggravated robbery, and aggravated assault. The judge who supervised defendant's jury trial subsequently convicted defendant of being a habitual criminal.

Defendant challenges the admission of testimony from several eyewitnesses; the judge's refusal to give a cautionary instruction concerning the eyewitness testimony; the sufficiency of the evidence; the judge's application of the habitual criminal statute; the conviction for aggravated robbery as well as aggravated assault and theft, which defendant claims are lesser included offenses of aggravated robbery; and the giving of a jury instruction concerning possession of recently stolen property.

Two men robbed the Oakwood Jewelry store in Salt Lake City in August 1984. One of the robbers forced the store's sole employee into the bathroom at the back of the store. A customer interrupted the robber and was forced into the bathroom with the employee. The pair was instructed not to look at the robbers' faces. One robber guarded the bathroom while the other plundered the jewelry cases. A woman and her daughter who were parked in a car outside the store saw the robbers leave the store. A diner in a nearby restaurant also observed the robbers leaving the store.

In September, Los Angeles police officers arrested several people, including the co-defendants in this case, in Los Angeles on drug-related charges. A search made at the time of their arrest revealed jewelry from the Salt Lake robbery. The search also uncovered a picture of defendant's half brother and identification documents in the name of defendant's half brother.

The Los Angeles police identified the store where some of the jewelry had been pawned and showed the proprietor of the establishment a photo array from which he selected a picture of defendant's half brother as the man who had pawned the stolen jewelry.

The Salt Lake City police received a picture of defendant's half brother, which they misidentified as defendant. Defendant was arrested for the robbery. At the time of his arrest, no jewelry was found among his possessions. Defendant was tried with the men who were arrested in Los Angeles.

The Eyewitness Identifications and Testimony

Defendant raises two issues concerning the admission of the eyewitness testimony associating him with the crime: the trial court's refusal to suppress in-court identifications of defendant by the State's witnesses and the trial judge's failure to give a cautionary jury instruction concerning eyewitness identification. We reject defendant's arguments.

Defendant made a motion in limine to suppress the eyewitness testimony. In support of his motion, defendant presented a summary that his counsel had created from the police reports and uncertified copies of the preliminary hearing transcripts. These materials purportedly demonstrated that the eyewitness testimony should have been suppressed. Defendant apparently based the motion on Utah Rule of Evidence 403 and an assertion that improper pretrial identification violated defendant's federal constitutional rights. See Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972). We find no error in the trial judge's rejection of defendant's motion.

The trial judge stated that he found "no real evidence here of unnecessarily suggestive procedures that took place during any pretrial investigation." In the absence of clear error, we uphold a trial judge's factual assessment underlying a decision to grant or deny a suppression motion. State v. Bullock, 699 P.2d 753, 755 (Utah 1985); State v. Tuttle, 16 Utah 2d 288, 291, 399 P.2d 580, 582, cert. denied, 382 U.S. 872, 86 S.Ct. 129, 15 L.Ed.2d 110 (1965). In this case, the trial judge considered the evidence proferred by the defense with appropriate suspicion. Although not bound by the Rules of Evidence in a suppression hearing, a trial judge must weigh the reliability and probative value of materials presented to aid in the decision to admit or exclude evidence. See Utah R.Evid. 1101, 104(a). In this case, the defense evidence consisted largely of defendant's own summaries of police reports and unofficial transcripts of the preliminary hearings prepared by the public defender's staff. Police reports are not prepared for the purpose of accurately recording the descriptions of a perpetrator given by individual witnesses; rather, they are compiled to aid the police in apprehending the perpetrator and often reflect the product of collective memory as it is gathered by several officers who communicate with each other. Defendant's prepared abstracts of such records are even more suspect because the witnesses' statements had been filtered through yet another recorder, who is not likely to be unbiased. The preliminary hearing reports are similarly suspect because the preparation was done, not by a neutral reporter, but by a party. Further, the trial judge felt that various witnesses' statements which described defendant as Mexican, Iranian, or Italian were not necessarily inconsistent and were not the product of improper police procedure, leaving the issue of inconsistency for cross-examination at trial. The only evidence defendant presented concerning the pretrial identification procedures used by the police was statements of defendant's counsel concerning the array displays and the pictures used in the arrays. ¹ Therefore, we think the judge did not err in rejecting defendant's claim that the procedures were unnecessarily suggestive.

The trial judge was also correct in refusing to exclude the testimony on the basis of Utah Rule of Evidence 403:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

"We will not overturn the trial court's ruling [on the application of Rule 403] unless the abuse of discretion is so severe that it results in a 'likelihood of injustice.' " State v. Knowles, 709 P.2d 311, 312 (Utah 1985) (quoting State v. McCardell, 652 P.2d 942, 944 (Utah 1982)). We do not think the trial judge abused his discretion in refusing to exclude the eyewitness identifications. Indeed, we do not see how the eyewitness testimony could fall within the categories of evidence excludable under Rule 403. The eyewitness testimony did not have the inflammatory potential found in the sort of evidence typically excluded under that Rule. See State v. Cloud, 722 P.2d 750 (Utah 1986) (gruesome photographs of a crime victim should have been excluded because the probative value of the photographs was outweighed by the possibility that the jury's passions would be inflamed by the gruesome nature of the crime and would distract them from the issue of the defendant's mental state). Nor could the eyewitness testimony have confused or misled the jury or wasted its time. The eyewitness testimony was the heart of the State's case and did not serve to draw the jury into the type of collateral assessments that Rule 403 is designed to avoid. The trial judge was correct in allowing the jury to assess the credibility of the eyewitness; Rule 403 is not to be used to allow the trial judge to substitute his assessment of the credibility of testimony for that of the jury by excluding testimony simply because he does not find it credible.

We next consider defendant's claim that a cautionary instruction should have been given. In State v. Long, 721 P.2d 483 (Utah 1986), we made a detailed analytical consideration of the reliability of eyewitness testimony and concluded that "in cases tried from this date forward, trial courts shall give such an instruction whenever eyewitness identification is a central issue in a case and such an instruction is requested by the defense." Id. at 492. This case was, however, tried before Long became law. In reviewing cases tried before Long, we evaluate the defendant's claim under the case law applicable at the time the defendant was tried. State v. Jonas, 725 P.2d 1378, 1380 (Utah 1986).

At the time of trial, the giving of a cautionary instruction was left to the discretion of the trial judge under the "totality of the circumstances." State v. Reedy, 681 P.2d 1251, 1254 (Utah 1984); see also State v. Jonas, 725 P.2d 1378 (Utah 1986) (summarizing the crucial pre-Long case law).

This case presents us with a particularly difficult task in evaluating whether the trial judge abused his discretion. The eyewitness testimony identifying defendant as one of the robbers was equivocal. The jewelry store clerk admitted that she did not see defendant during the robbery because she was restrained in the bathroom by a man she identified as one of the co-defendants. A Los Angeles police officer identified defendant as a man he saw walking in front of the motel where the co-defendants were arrested. The officer admitted that he was on a routine patrol when he saw defendant for a few moments. The officer testified that he had observed defendant only briefly and had no reason to suspect defendant of any criminal activity. The officer admitted that defendant strongly resembled defendant's half brother, whose picture was found in the co-defendants' motel room, and that the officer had only recently learned that the picture was not of defendant. The officer admitted that the photo had been included in photo spreads on the assumption that it was of defendant. The officer's partner, who had a similarly brief glimpse, also...