State v. Allen

• Decision Date: 11 February 2005
• Docket Number: No. 20000531.,20000531.
• Citation: 108 P.3d 730,2005 UT 11
• Parties: STATE of Utah, Plaintiff and Appellee, v. Paul Christopher ALLEN, Defendant and Appellant.
• Court: Utah Supreme Court

108 P.3d 730

2005 UT 11

STATE of Utah, Plaintiff and Appellee, v. Paul Christopher ALLEN, Defendant and Appellant.

No. 20000531.

Supreme Court of Utah.

February 11, 2005.

Rehearing Denied February 16, 2005.

Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, and William K. McGuire, Farmington, for plaintiff.

Todd A. Utzinger, Scott L. Wiggins, Salt Lake City, for defendant.

DURRANT, Justice:

¶ 1 Defendant Paul Christopher Allen appeals his conviction for aggravated murder. He argues that numerous prejudicial errors occurred during the course of his trial and requests that this court reverse his conviction. We affirm.

BACKGROUND

¶ 2 "On appeal from a jury verdict, we view the evidence and all reasonable inferences in a light most favorable to that verdict and recite the facts accordingly." State v. Gordon, 913 P.2d 350, 351 (Utah 1996).

¶ 3 On the evening of August 28, 1996, police were called to Allen's North Salt Lake City apartment, where they discovered Allen and the lifeless body of Allen's wife, Jill, lying on the hallway floor. Blood spatter covered the walls near Jill's body, and the carpet beneath her was soaked with blood. Jill's belt was broken and her clothing was pushed back, exposing her body from neck to ankles. The contents of her purse had been dumped out and scattered across the kitchen counter. A baseball bat lay in the doorway of a nearby bedroom.

¶ 4 Although the evidence at the scene indicated that there had been a struggle, there was no sign of forced entry through any of the apartment's doors or windows. A forensic pathologist later certified Jill's cause of death as the result of strangulation and blunt force trauma to the head. Despite indications that would suggest otherwise, the pathologist determined that there was no evidence of sexual assault.

¶ 5 Sergeant John Herndon, the lead investigator on the case, pursued several leads in the months following Jill's murder without success before Brandon Nicholsen came forward with information about the homicide. Nicholsen informed Sergeant Herndon that he, Nicholsen, had helped a coworker, George Anthony Taylor, dispose of evidence related to the murder of a woman in North Salt Lake.

¶ 6 In exchange for immunity for his part in the crime, Nicholsen recounted that three weeks before Jill's murder, Taylor had told him that he, Taylor, and another man, Joseph Wright, had been hired by a "Paul" to kill Paul's wife, and that Taylor would receive between $5,000 and $10,000 for his part in the murder. When Nicholsen confronted Taylor about his involvement after hearing a television report about Jill's murder, Taylor admitted to the killing. Taylor told Nicholsen that he entered Jill's home with a key provided by Allen. When the gun he had intended to shoot her with misfired, Taylor explained that he struck Jill in the head first with the gun and later with a baseball bat before he finally strangled her to death. Taylor later admitted that he had emptied the contents of Jill's purse and staged her body to make it look like a robbery and a sexual assault.

¶ 7 Following Nicholsen's disclosures, police arrested Taylor for Jill's murder. When Taylor confessed to his part in the murder and implicated Wright, police also arrested Wright.

¶ 8 Wright confessed to police that Allen had first approached him near the end of 1995 and indicated that he, Allen, knew someone at his work who wanted "a guy" killed for $10,000. When Allen asked if Wright was interested, Wright told Allen that he would "see what [he] could do." Sometime later, Allen told Wright specifically that he was having problems in his marriage and that he wanted his wife, Jill, killed. Allen stated that he would pay Wright $30,000 out of Jill's $50,000 life insurance policy for the murder. Wright agreed to the proposal, and the two thereafter discussed various methods of committing the murder and finding someone to do the job. In April 1996, Taylor agreed to murder Jill.

¶ 9 Wright testified that, to facilitate the murder, Allen paid Wright in cash at various times before and after the killing in an amount totaling between $14,000 and $16,000. Wright stated that Allen promised to pay the balance owing to Wright when Allen's negotiations with the insurance company were resolved.

¶ 10 Following the police investigation, the State charged Allen with aggravated murder, conspiracy to commit aggravated murder, and criminal solicitation in connection with Jill's murder.¹ A jury found Allen guilty of aggravated murder at the conclusion of Allen's trial, and Allen was sentenced to life with the possibility of parole.

¶ 11 On appeal, Allen identifies numerous errors that he alleges occurred during his trial. Specifically, he raises six issues that, according to Allen, warrant reversal of his conviction. Because several of these issues are inadequately briefed, however, we address only whether the district court abused its discretion in (1) allowing the State to introduce evidence under Utah Rule of Evidence 404(b) that Allen had made fraudulent credit card purchases, (2) refusing to grant a mistrial after Wright testified that Allen had been asked by the police to take a lie detector test, and (3) refusing to grant a new trial based on juror misconduct.² We have jurisdiction pursuant to Utah Code section 78-2-2(3)(i) (2002).

ANALYSIS

I. UTAH RULE OF EVIDENCE 404(b)

¶ 12 We first examine Allen's contention that the district court abused its discretion under Utah Rule of Evidence 404(b) when it admitted evidence showing that Allen had made fraudulent credit card purchases both preceding and following his wife's murder. ¶ 13 During Allen's trial, the State was allowed to introduce evidence that, while employed as an AT & T sales representative, Allen misappropriated confidential credit information from at least two of his clients and used this information to fraudulently obtain credit cards and purchase several personal items from various retailers, including JC Penney, Pro Golf, Uintah Golf, and the Bombay Company.³ Wright also testified that Allen had told him that he, Allen, was using stolen credit cards from his AT & T clients to make purchases at several different locations in order to account for the discretionary income he was using to pay Wright.

¶ 14 Allen argues that the district court abused its discretion under Utah Rule of Evidence 404(b) when it permitted the State to introduce evidence of Allen's fraudulent purchases. The State counters that the district court did not abuse its discretion for two reasons. First, it asserts that the evidence of Allen's fraudulent purchases does not implicate rule 404(b) since it was introduced not as evidence of "other crimes, wrongs, or acts," Utah R. Evid. 404(b) (emphasis added), but as an act committed directly in furtherance of the charged conspiracy. In support of this assertion, the State cites several federal cases in which courts have concluded that rule 404(b) of the Federal Rules of Evidence applies only "to evidence of acts extrinsic to the crime charged." United States v. Green, 175 F.3d 822, 831 (10th Cir.1999) (internal quotations omitted); accord, e.g., United States v. Alexander, 331 F.3d 116, 125 (D.C.Cir.2003) ("Rule 404(b) applies only to `extrinsic' evidence of other crimes and not to `intrinsic' evidence of the same crime."); United States v. Abrego, 141 F.3d 142, 175 (5th Cir.1998) ("[E]vidence of acts committed pursuant to a conspiracy and offered to prove the defendant's membership or participation in the conspiracy are not extrinsic evidence, i.e., evidence of `other' acts, for purposes of Rule 404(b)." (internal quotations omitted)). Alternatively, the State argues that the district court did not abuse its discretion because the evidence of Allen's fraudulent purchases satisfies the requirements of Utah Rule of Evidence 404(b).

¶ 15 We need not consider whether the evidence of Allen's fraudulent purchases was admissible as "intrinsic evidence" under a federal analysis because we conclude that it was admissible under a traditional Utah Rule of Evidence 404(b) analysis. When examining a district court's decision to admit evidence under Utah Rule of Evidence 404(b), we review for an abuse of discretion. State v. Nelson-Waggoner, 2000 UT 59, ¶ 16, 6 P.3d 1120. In so doing, "[w]e review the record to determine whether the admission of other bad acts evidence was scrupulously examined by the [district] judge in the proper exercise of that discretion." Id. (internal quotations omitted).

¶ 16 Utah Rule of Evidence 404(b)provides that

[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident....

Utah R. Evid. 404(b). We have held that rule 404(b) allows for the introduction of bad acts evidence if the evidence satisfies the following three criteria: (1) the evidence is offered for a proper, noncharacter purpose, such as one of those listed in rule 404(b); (2) the evidence meets the requirements of rule 402; and (3) the evidence meets the requirements of rule 403. Nelson-Waggoner, 2000 UT 59 at ¶¶ 18-20, 6 P.3d 1120 (citing State v. Decorso, 1999 UT 57, ¶¶ 21-22, 29, 993 P.2d 837). We examine each of these criteria in turn.

A. Proper, Noncharacter Purpose

¶ 17 Under the first part of a rule 404(b) analysis, a court must make an initial determination as to whether the bad acts evidence is being offered for a proper, noncharacter purpose. Id. at ¶ 18. Rule 404(b) lists several purposes for which evidence of other crimes, wrongs, or acts may be admitted, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Utah R. Evid. 404(b). This list is not exhaustive,...