State v. Andreason
| Decision Date | 06 May 1986 |
| Docket Number | No. 20616,20616 |
| Citation | 718 P.2d 400 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Derek D. ANDREASON, Defendant and Appellant. |
| Court | Utah Supreme Court |
G. Fred Metos, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant Derek Andreason was charged jointly with his father, Ray Andreason, for theft of electrical services consumed in defendant's construction company buildings. His father was acquitted, but defendant was convicted of third degree theft, under U.C.A., 1953, §§ 76-6-404, -409 (1978 ed.). He seeks reversal of his conviction, charging the prosecutor with prejudicial statements made during the closing arguments. We agree that the State's closing argument was improper and prejudicial to defendant, and we reverse the conviction.
Defendant's construction company occupied two buildings in Salina, a remodeled dairy barn and an adjacent new warehouse still being constructed. On September 4, 1984, a Utah Power & Light employee, while inspecting nearby electrical connections, observed that electric lights and tools had been used in the new warehouse but that a battery jumper cable was illegally connected to bypass the electrical meter. After testing the incoming power lines, he concluded that live voltage brought electricity from the power company pole to the meter. However, he did not test whether the live voltage passed through the meter into the outlets in the building. He did not observe any tools in actual use and did not determine the actual source of the electrical power consumed by the tools. Other witnesses testified that the power for the tools was brought in by extension cord from outside sources.
The following day, the employee also investigated the electrical connections at the old dairy barn building and determined that one of the two electrical meters there had been altered so that electricity used by outdoor lights was not metered. The other meter was properly connected and metered all electricity used inside the building.
Considering the type and number of electric tools observed in the new warehouse and the outdoor lights connected to the dairy barn, Utah Power & Light estimated an electrical usage based on certain Utah Power & Light formulas. This estimate assumed that the tools and lights were used a certain average number of hours per day. No evidence was presented by the State as to the actual usage of the tools by defendant's employees. Based on its assumption, the power company claimed that between April 1983 and August 1984, defendant's company had consumed $2,900 worth of unpaid electricity. The jury found Derek guilty of theft of electrical services valued at less than $1,000. Ray was acquitted.
Concluding his closing argument to the jury, the prosecutor admitted that the evidence against defendant was circumstantial. After pointing out certain inconsistencies in the evidence, he argued:
Now, if these two gentlemen were our only concern, we could probably let them go but they're not. Ladies and gentlemen, we have a concern for all of society, we have concerns if this goes on and that this is not an isolated incident. This type of conduct is pervasive and when we're--
Mr. Mower: I object. I think the prosecutor is trying to paint the picture that there are others who are not charged and who are not before the Court.
The Court: Objection's overruled. This is argument, Counsel.
Mr. Brown: Perhaps the Defense would have you believe that nobody else is doing it but they are and everytime we have a jury trial, people are watching. People are watching to see how we administer justice and so, before you determine that there is some reasonable doubt--and I'm not sure what it is--but before you determine that, you need to consider that we're not--we've heard a lot about these two Defendants but they are not the only ones here and they are not the only ones we need to be concerned about. We've got to be concerned about the law.
Now, we give the Defendants a lot of rights to insure that we never convict an innocent man but while we're insuring that, we need to be concerned about how many who aren't innocent are turned loose and how it affects them and us but also how it affects others, others who are going to base their decisions on conduct and what they know about how our system works.
So it is a weighty decision but you need to consider everyone who is involved here.
The standard applicable to reviewing alleged prejudicial remarks of counsel is whether the remarks call the attention of the jurors to matters they would not be justified in considering in determining their verdict. If so, then defendant must show that, under the particular circumstances of this case, the jurors were probably influenced by the improper remarks in reaching their verdict. State v. Slowe, Utah, --- P.2d ----, 25 Utah Adv.Rep. 21 (1985); State v. Valdez, 30 Utah 2d 54, 513 P.2d 422 (1973). Statements which suggest that a jury has an obligation to convict a defendant on some basis other than solely on the evidence before it are improper and beyond the broad latitude allowed in closing argument. We have previously held improper similar closing arguments by the prosecution. 1
We agree with defendant's contention that the prosecutor...
To continue reading
Request your trial
-
State v. Soto
...degree of influence may be sufficient to affect the verdict. State v. Troy , 688 P.2d 483, 486 (Utah 1984) ; see also State v. Andreason , 718 P.2d 400, 402–03 (Utah 1986) ; State v. Stephens , 946 P.2d 734, 737 (Utah Ct. App. 1997) ; Tenney , 913 P.2d at 755.¶99 The federal courts likewise......
-
State v. Bakalov
..."that a jury has an obligation to convict a defendant on some basis other than solely on the evidence before it." State v. Andreason, 718 P.2d 400, 402 (Utah 1986); see State v. Hopkins, 782 P.2d 475, 479-80 (Utah 1989) (quoting United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 ......
-
State v. Dunn
...on the merits of the case. We have twice held that similar remarks by the same prosecutor constituted error. State v. Andreason, 718 P.2d 400, 402 (Utah 1986) (per curiam); State v. Smith, 700 P.2d 1106, 1112 (Utah 1985). Because there is no material difference in the comments complained of......
-
State v. Soto
...degree of influence may be sufficient to affect the verdict. State v. Troy, 688 P.2d 483, 486 (Utah 1984); see also State v. Andreason, 718 P.2d 400, 402-03 (Utah 1986); State v. Stephens, 946 P.2d 734, 737 (Utah Ct. App. 1997); Tenney, 913 P.2d at 755. ¶99 The federal courts likewise use t......