State v. Alonzo, 970104

• Citation: 973 P.2d 975
• Decision Date: 29 December 1998
• Docket Number: No. 970104,970104
• Parties: 359 Utah Adv. Rep. 32 STATE of Utah, Appellee and Respondent, v. Francisco ALONZO and Miguel Alonzo-Nolasco, Appellants and Petitioners.
• Court: Supreme Court of Utah

Page 975

973 P.2d 975

359 Utah Adv. Rep. 32

STATE of Utah, Appellee and Respondent, v. Francisco ALONZO and Miguel Alonzo-Nolasco, Appellants and Petitioners.

No. 970104

Supreme Court of Utah.

Dec. 29, 1998.

Jan Graham, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, Cy H. Castle, Salt Lake City, for appellee.

Linda M. Jones, Steven G. Shapiro, Ralph Dellapiana, Salt Lake City, for appellants.

On Certiorari to the Utah Court of Appeals

DURHAM, Associate Chief Justice:

Petitioners Francisco Alonzo and Miguel Alonzo-Nolasco seek review of a Utah Court of Appeals' decision upholding the convictions of both petitioners for assaulting a police officer and upholding Alonzo-Nolasco's conviction for interfering with an arrest. We affirm.

The factual accounts offered at trial by the police officers and the petitioners diverge significantly. The police officers report conducting themselves in a manner consistent with gaining control of a situation, while the petitioners complain of excessive force and brutality. Essentially, the facts can be described as follows:

On the evening of July 23, 1995, Alonzo and Alonzo-Nolasco found themselves locked out of Alonzo-Nolasco's apartment. While waiting for Alonzo-Nolasco's roommate to return with a key, both petitioners fell asleep. Responding to a telephone call that two individuals had "passed out" in the hallway of an apartment complex, Salt Lake City Police officers came to the scene. Upon arrival, Officer John Lundgren, accompanied by a civilian, and Officer Shauna Bills, accompanied by a police volunteer, confirmed that two individuals were sleeping in the hallway.

According to the officers, the hallway smelled of alcohol and at least two empty wine cooler bottles were observed near the petitioners. Officer Lundgren and Officer Bills announced to the sleeping individuals that they were with the Salt Lake City police and tried to awaken them verbally. When the sleeping petitioners did not wake up, the officers resorted to several methods of awakening them. According to his account, Officer Lundgren first tried to awaken Alonzo by applying some type of pressure behind Alonzo's ear. When that did not work, Officer Lundgren next began to "vigorously" rub Alonzo's chest with his flashlight. Alonzo awoke alarmed and immediately began to struggle with Officer Lundgren.

In the meantime, Officer Bills quickly awakened Alonzo-Nolasco by shaking his leg but then immediately handcuffed him, forcing him onto his stomach. While Alonzo-Nolasco was being handcuffed, Alonzo's struggle with Officer Lundgren intensified. Officer Lundgren testified that Alonzo awoke grabbing at his shirt, kicking, and biting. Officer Lundgren tried to handcuff Alonzo but could not do so due to the struggle. At some point, Officer Lundgren began to strike Alonzo in the mid-section with his fists and then tried to force Alonzo onto his stomach.

Officer Bills noticed the struggle and left the cuffed and prostrate Alonzo-Nolasco to go to the aid of Officer Lundgren. While Officer Bills sat on Alonzo's legs, Officer Lundgren continued to punch Alonzo repeatedly in the rib cage. Alonzo continued to fight and kick. At this point, the officers report that Alonzo-Nolasco had, while cuffed and on his stomach, slid over and joined the fray by kicking them. At this crucial juncture, one of the civilian witnesses yelled to the officers that Alonzo was attempting to grab Officer Bills' gun. In response to this report, Officer Lundgren pulled out his pepper spray and, while calling for backup, sprayed Alonzo in the face.

Responding to Officer Lundgren's call, off-duty Officer Jeffrey Webb quickly arrived. Officer Webb first tried unsuccessfully to grab Alonzo's hands then resorted to punching Alonzo repeatedly in the mid-section, spraining his wrist in the process. Soon thereafter, Alonzo placed his hands behind his back allowing the officers to handcuff him. Alonzo was then taken, without incident, to the waiting police van and placed therein.

When Alonzo-Nolasco was taken outside to be loaded into the police van, the police had a difficult time. Alonzo-Nolasco struggled when police tried to place him in the van and he was eventually placed upon the ground, bleeding profusely from his nose and mouth. One officer testified at trial that he assumed that Alonzo-Nolasco's injury occurred while he was struggling with the police as they tried to load him into the van. One civilian witness testified that she saw Alonzo kick Alonzo-Nolasco in the face while officers were trying to lift him into the van.

The foregoing account largely reflects the prosecution's evidence at trial. Alonzo and Alonzo-Nolasco testified to a much different scenario. Alonzo-Nolasco, who was awakened first, testified that he was "startled and scared" when Officer Bills woke him up. He said that one of the officers punched him in the nose and that he was maced, handcuffed, pummeled, and knocked unconscious. Alonzo-Nolasco testified that he had no idea why the police were attacking him. In fact, when Alonzo-Nolasco arrived at the jail, the jail refused to accept him due to his physical injuries, and he was taken instead to the hospital.

Alonzo testified that he awoke startled, presumably by the "vigorous" rubbing of his sternum with the police flashlight and found his brother kneeling on the floor close by, bleeding. He reported that he had originally sought to come to the aid of his brother but that he was pulled back by his hair and repeatedly punched and kicked. Alonzo further testified that he rolled onto his stomach to protect himself from the blows of the police officers and that at no time did he reach for or attempt to take the gun of Officer Bills. Further, Alonzo reported that he did not inflict any kind of injury upon his brother.

Both men, according to the record, were bloodied and bruised when they finally arrived at the jail. The record also is clear that at no time during the encounter did the police officers announce to the brothers that they were under arrest.

On November 1, 1995, a jury found both men guilty of assault on a police officer and found Alonzo-Nolasco guilty of interfering with a legal arrest. The jury did not find either petitioner guilty of public intoxication, the charge the police were investigating when they came upon the sleeping brothers.

Petitioners appealed the jury verdict and the court of appeals affirmed their convictions. State v. Alonzo, 932 P.2d 606 (Utah Ct.App.1997). We granted certiorari to review the court of appeals' decision. State v. Alonzo, 940 P.2d 1224 (Utah 1997). On certiorari we review the court of appeals' decision, not that of the trial court, and use the same standard of review applied by the court of appeals. Hebertson v. Willowcreek Plaza, 923 P.2d 1389, 1392 (Utah 1996). We review each of the court of appeals' holdings as follows:

I. RECUSAL OF TRIAL JUDGE

Petitioners argue that the trial judge erred by failing to recuse himself after making biased statements regarding petitioners' guilt. The court of appeals conceded that at the very least, the trial judge created an appearance of bias but held that no actual prejudice was shown by petitioners and refused to reverse on bias grounds. Alonzo, 932 P.2d at 611-12. We agree.

Determining whether a trial judge committed error by failing to recuse himself or herself under the Utah Code of Judicial Conduct, rule 29 of the Utah Rules of Criminal Procedure and our accompanying case law is a question of law, and we review such questions for correctness. See State v. Pena, 869 P.2d 932, 936 (Utah 1994).

We made clear in State v. Neeley that, under the Utah Code of Judicial Conduct, a "judge should recuse himself when his 'impartiality' might reasonably be questioned." State v. Neeley, 748 P.2d 1091, 1094 (Utah), cert. denied, 487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988). Petitioners assert that prior to trial, in chambers, with both parties present, the trial judge stated that petitioners' case could be resolved quickly if they would waive their right to a jury trial and "just plead guilty." Petitioners further claim that the trial judge suggested that he knew, based on his experience as a prosecutor, that petitioners were guilty. Whether these comments were made in jest, as argued by the State, is immaterial. Such comments call into serious question the impartiality of any judge regardless of humorous intent.

We have held, however, that a judge's failure to recuse himself or herself does not automatically entitle a defendant to a new trial, particularly if the offending judge complied with rule 29 of the Utah Rules of Criminal Procedure. See Neeley, 748 P.2d at 1094-95. Rule 29 provides in relevant part:

(c) If the prosecution or a defendant in any criminal action or proceeding files an affidavit that the judge before whom the action or proceeding is to be tried or heard has a bias or prejudice, either against the party or his attorney or in favor of any opposing party to the suit, the judge shall proceed no further until the challenge is disposed of....

(d) If the challenged judge questions the sufficiency of the allegation of disqualification, he shall enter an order directing that a copy be forthwith certified to another named judge of the same court, ... which judge shall then pass upon the legal sufficiency of the allegations.... If the judge to whom the affidavit is certified does not find the affidavit to be legally sufficient, he shall enter a finding to that effect and the challenged judge shall proceed with the case or proceeding.

Utah R.Crim. P. 29(c) & (d).

The trial judge in this case complied exactly with rule 29. After he had been approved to continue, the burden shifted to the petitioners to show actual bias or abuse of discretion. Neeley, 748 P.2d at 1094-95.

Petitioners assert that the judge's comments in chambers constituted actual bias and that his failure to recuse himself...