State v. Alonzo
| Decision Date | 09 January 1997 |
| Docket Number | No. 960048-CA,960048-CA |
| Citation | 932 P.2d 606 |
| Parties | 307 Utah Adv. Rep. 39 STATE of Utah, Plaintiff and Appellee, v. Francisco ALONZO and Miguel Alonzo-Nolasco, Defendants and Appellants. |
| Court | Utah Court of Appeals |
Steven G. Shapiro and Ralph W. Dellapiana, Salt Lake City, for Appellants.
Cy H. Castle, Salt Lake City, for Appellee.
Before WILKINS, BENCH and JACKSON, JJ.
Defendants Francisco Alonzo and Miguel Alonzo-Nolasco appeal their jury convictions for assaulting a police officer, a class A misdemeanor, in violation of Utah Code Ann. § 76-5-102.4 (1995). Miguel Alonzo-Nolasco also appeals his conviction for interfering with an arrest, a class B misdemeanor, in violation of Utah Code Ann. § 76-8-305 (1995). We affirm.
On appeal from a jury verdict, we recite the facts from the record in the light most favorable to the verdict. State v. Verde, 770 P.2d 116, 117 (Utah 1989).
On the evening of July 23, 1995, Francisco Alonzo was visiting his brother Miguel Alonzo-Nolasco at the apartment Miguel shared with their cousin. Francisco and Miguel left the apartment to buy wine coolers. When they returned, their cousin was gone and they were locked out of the apartment. They knocked loudly several times, and then sat down in the hallway outside the apartment to wait for their cousin to return with the key. Francisco testified at trial that he drank two wine coolers, and eventually they both fell asleep.
Responding to a call that two people had "passed out" in the hallway of an apartment building, Salt Lake City Police Officer John Lundgren arrived on the scene, followed by Officer Shauna Bills. Both officers were accompanied by civilians--Officer Lundgren was accompanied by Judith Adams, a member of a citizen watch group, and Officer Bills was accompanied by a volunteer with the police department.
At trial, the officers testified that the hallway and defendants smelled of alcohol, and that they first removed two or more empty wine cooler bottles near defendants before attempting to awaken them. The officers then announced that they were Salt Lake City police and yelled several times for defendants to wake up. When the defendants did not awake, the officers turned to other methods to wake defendants. Officer Bills was able to wake Miguel quickly by shaking his leg; she then placed handcuffs on his wrists. Officer Lundgren had more difficulty waking Francisco. Officer Lundgren first attempted to wake Francisco by applying pressure behind Francisco's ear with his finger. When this failed, Officer Lundgren rubbed Francisco's chest vigorously with a flashlight. When Francisco awoke, he struggled with Officer Lundgren, grabbing the officer's shirt, kicking, and attempting to bite him. Officer Lundgren attempted to handcuff Francisco, but was unable to grab both of Francisco's hands. Officer Lundgren then began to strike Francisco in the midsection with his fist, telling Francisco to give him his hands. In this struggle, Francisco rolled over onto his stomach.
When Officer Bills heard Francisco and Officer Lundgren struggling, she left Miguel and went to aid Officer Lundgren. Officer Bills sat on Francisco's legs, and Francisco started kicking her in the back. Miguel had also moved closer to the officers and started kicking at them, hitting them in the face. Judith Adams, who was standing nearby in the stairway, then told the officers that Francisco was attempting to grab Officer Bills's gun. Officer Lundgren took out his pepper spray and called for backup. He then sprayed Francisco in the face with the pepper spray. Francisco let go of the gun, but still continued to struggle.
Officer Jeffrey Webb then arrived, responding to the call for backup. He attempted to grab Francisco's hands, but was unable to do so. Officer Webb then struck Francisco in the rib cage, while instructing him to stop resisting and put his hands behind his back. When Francisco put his hands behind his back, the officers handcuffed him. Other officers had arrived by this time, and they helped take defendants to a police van waiting outside.
The officers placed Francisco in the van without further incident. They had difficulty, however, placing Miguel in the van. When Miguel struggled, they took him from the van and placed him on the ground. One officer testified at trial that it was at this point that he saw that Miguel's face was bleeding, and that he had assumed that Miguel had been injured by hitting something hard either when the officers took him out of the van, or when they placed him on the ground. However, Judith Adams testified that as the officers were attempting to place Miguel in the van, Miguel was kicked in the face by his brother.
Defendants presented a different version of what happened when the officers arrived and awakened them. Francisco testified at trial that the first thing he saw when he awoke was blood on his brother's face. Francisco testified that he tried to use his body to cover Miguel to protect him from the officers' blows, but that he was pulled back by the hair. He testified that he was himself kicked and punched repeatedly, and that he turned over on his stomach to protect himself from the blows. He also testified that he did not attempt to take a gun from any of the officers, or did not remember trying to do so, and that he did not attack his brother. Miguel also testified that he was struck in the nose before he and his brother were maced, while still in the hallway of the apartment building.
Before being transported to the county jail, defendants were treated by ambulance personnel for injuries resulting from being maced in the face. Miguel was taken to the hospital to be treated for a broken nose before he was taken to jail. Miguel also had rug burns on his face, and both defendants had numerous bruises.
On November 1, 1995, a jury found both defendants guilty of two counts of assault on a police officer, and found Miguel guilty of one count of interfering with legal arrest.
On appeal, defendants argue the trial judge committed reversible error by: (1) failing to recuse himself after making biased statements regarding defendants' guilt; (2) commenting favorably on the prosecution's evidence; (3) excluding character evidence of one of the officers; (4) excluding testimony by one of the defendants as to his good character; (5) restricting defense counsel's closing argument; and (6) refusing to give a self-defense instruction as requested by defense counsel. Defendants also argue that they were denied a fair trial under the cumulative error doctrine.
Defendants first argue the trial judge, Judge S. Mark Johnson, committed reversible error by failing to recuse himself after making biased statements regarding defendants' guilt. Defendants assert that, during the jury selection process, the trial judge made comments in chambers in the presence of counsel for both parties that showed actual bias. Defendants allege the judge stated that defense counsel should have their clients waive their right to a trial by jury, and that he would then find the defendants guilty and they could end the matter. Defendants further allege that the trial judge suggested he knew or everyone knew that defendants were guilty, and that he stated that he was a former prosecutor and was thus aware of how these things went.
After these alleged comments were made, defense counsel filed a motion for the trial judge to recuse himself and submitted affidavits detailing their versions of the trial judge's comments. The trial judge referred the affidavits to Third Circuit Court Judge Phillip Palmer, who found that, based on the affidavits, there was "not sufficient cause to disqualify Judge S. Mark Johnson from presiding over a jury trial of the defendant[s]."
In State v. Neeley, 748 P.2d 1091 (Utah), cert. denied, 487 U.S. 1220, 108 S.Ct. 2876, 101 L.Ed.2d 911 (1988), the Utah Supreme Court set out the standard for whether a trial judge's failure to recuse himself or herself constitutes reversible error. In Neeley, the court stated that, under the Utah Code of Judicial Conduct, "a judge should recuse himself when his 'impartiality' might reasonably be questioned." Id. at 1094. However, a trial judge's failure to observe this standard "does not necessarily mean that the defendant is entitled to a new trial," for "[t]he parameters of defendants' constitutional rights to a fair trial are defined by [Rule 29 of the Utah Rules of Criminal Procedure] and relevant case law, not the Code of Judicial Conduct." Id. Thus, while recommending that a judge recuse himself or herself "where there is a colorable claim of bias or prejudice," the Neeley court held that "absent a showing of actual bias or an abuse of discretion, failure to recuse does not constitute reversible error as long as the requirements of [Rule 29] are met." Id. at 1094-95.
Rule 29 provides in 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).
In this case, the trial judge followed the procedure of Rule 29 by certifying the affidavits alleging bias...
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...courts have addressed only one instance where a judge’s comments during trial created an appearance of bias. See State v. Alonzo , 932 P.2d 606, 611 (Utah Ct. App. 1997), aff’d , 973 P.2d 975 (Utah 1998). In Alonzo , the trial judge allegedly stated prior to trial, in chambers, and with bot......
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..., 748 P.2d at 1093 ("Defendants filed a pretrial motion to disqualify [the judge] from presiding at their trial."); State v. Alonzo , 932 P.2d 606, 610 (Utah Ct. App. 1997) ("After these alleged comments were made, defense counsel filed a motion for the trial judge to recuse himself and sub......
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...only if "the cumulative effect of the several errors undermines our confidence ... that a fair trial was had." ' " State v. Alonzo, 932 P.2d 606, 617 (Utah Ct.App.), cert. granted, 940 P.2d 1224 (Utah 1997) (citations omitted). We find that our determination of the issues demonstrates eithe......
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Utah Standards of Appellate Review – Revised [1]
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