State v. Archambeau

• Citation: 820 P.2d 920
• Decision Date: 16 October 1991
• Docket Number: No. 900564-CA,900564-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. George B. ARCHAMBEAU, Defendant and Appellant.
• Court: Court of Appeals of Utah

Page 920

820 P.2d 920

STATE of Utah, Plaintiff and Appellee, v. George B. ARCHAMBEAU, Defendant and Appellant.

No. 900564-CA.

Court of Appeals of Utah.

Oct. 16, 1991.

Joan Watt and Elizabeth Holbrook (argued), Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., and Annina M. Mitchell (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BILLINGS, Associate P.J., and GARFF and RUSSON, JJ.

BILLINGS, Associate Presiding Judge:

Defendant George B. Archambeau appeals his conviction for possession of a dangerous weapon by a restricted person, a third-degree felony, in violation of Utah Code Ann. §§ 76-10-501(2)(a) and -503(2) (Supp.1988). ¹ We affirm.

FACTS

Defendant was on parole for aggravated robbery, a first-degree felony. In May of 1988, defendant's parole officers confiscated a 10-inch knife with a 5 1/2-inch blade in a sheath bearing the initials "G.A.," a 10-inch bowie knife with a 6-inch blade, a 48-inch blowgun, and blowdarts from defendant's home. The officers considered them dangerous weapons that defendant was prohibited from possessing while on parole. The parole officers released the confiscated items to a third party designated by defendant.

Defendant's parole officers conducted a search of defendant's home on March 28, 1989. During the search, the officers discovered and seized knives, a blowgun, and blowdarts identical to the ones previously confiscated. There was no evidence that defendant had used or intended to use the knives or blowgun in a dangerous manner. Based upon the seized items, the State subsequently filed charges against defendant for possession of a dangerous weapon by a On appeal, defendant alleges: (1) Section 76-10-503(2) is an unconstitutional infringement upon the right of Utah citizens to keep and bear arms, as provided in Article I, Section 6 of the Utah Constitution; (2) Section 76-10-503(2), as defined by section 76-10-501(2)(a), is unconstitutionally vague; and (3) there is insufficient evidence to support his conviction.

restricted person. Defendant was convicted of possession of a dangerous weapon by a restricted person, a third-degree felony, in violation of Utah Code Ann. §§ 76-10-501(2)(a) and -503(2) (Supp.1988) and sentenced to a term of not more than five years, to run concurrently with defendant's sentence for aggravated robbery.

PROPRIETY OF CONSIDERING A CONSTITUTIONAL ISSUE FOR THE

FIRST TIME ON APPEAL

Defendant contends that Utah Code Ann. § 76-10-503(2) (Supp.1988) is unconstitutional because it infringes upon his right to bear arms. He claims Article I, Section 6 of the Utah Constitution provides the legislature may only limit the use of weapons, not their possession. He, therefore, reasons that because section 76-10-503(2) purports to penalize possession of weapons without regard to their use, it is unconstitutional. As a threshold matter, the State argues this court should not consider the merits of defendant's constitutional challenge as he raises it for the first time on appeal.

Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal. ² Utah's appellate courts have applied this rule to constitutional questions advanced for the first time on appeal. ³

However, there are two limited but well-established exceptions to this general rule. An appellate court may address a constitutional issue for the first time on appeal if: (1) the trial court committed "plain error;" or (2) there are "exceptional circumstances." See State v. Gibbons, 740 P.2d 1309, 1311 (Utah 1987); State v. Webb, 790 P.2d 65, 78 (Utah App.1990).

The Utah Supreme Court outlined the principles involved in determining whether "plain error" exists in State v. Eldredge, 773 P.2d 29 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989):

The first requirement for a finding of plain error is that the error be "plain," i.e., from our examination of the record, we must be able to say that it should have been obvious to a trial court that it was committing error.... The second and somewhat interrelated requirement for a finding of plain error is that the error affect the substantial rights of the accused, i.e., that the error be harmful.

Eldredge, 773 P.2d at 35. ⁴

The second exception to the rule prohibiting consideration of issues for the first Defendant contends there is a third exception to the general rule that constitutional issues will not be considered for the first time on appeal. He argues that a constitutional issue may always be raised for the first time on appeal by any defendant whose "liberty interest" is in jeopardy, citing State v. Jameson, 800 P.2d 798, 802-03 (Utah 1990).

time on appeal is a catch-all device requiring "exceptional" or "unusual" circumstances. It is a safety device to make certain that manifest injustice does not result from the failure to consider an issue on appeal. Both the Utah Supreme Court and the Court of Appeals have often acknowledged this exception. ⁵

The "liberty interest" doctrine is of questionable origin and uncertain development. The doctrine first appeared in an early Utah Supreme Court case, In re Woodward, 14 Utah 2d 336, 384 P.2d 110, 111 n. 2 (1963). Woodward was committed to the Utah State Industrial School after committing a delinquent act. Even though matters in juvenile court are civil in nature, a more accurate designation would be quasi-criminal because Woodward was incarcerated for violating the criminal law. On appeal, Woodward attacked the constitutionality of Utah Code Ann. §§ 55-10-1 and -3 (1953), arguing that the sections violated the separation of powers doctrine. In a footnote, the court, by way of dicta, relied on American Jurisprudence for the proposition that

[t]here may be some doubt as to whether we should review the two points on appeal for the first time. If what we say in this opinion would jeopardize the liberty of appellant, which it will not, so far as the two sections are concerned, there would be authority for raising a constitutional issue for the first time on appeal (3 Am.Jur. 63, sec. 293, Const. Law).

Woodward, 384 P.2d at 111, n. 2. ⁶ Although Woodward's liberty was at stake, the court did not articulate a "liberty interest" Almost twenty years later, the court resurrected this doctrine in a civil appeal by Riverton police officers seeking to enjoin Salt Lake County from providing police services to Riverton. See Pratt v. City Council of City of Riverton, 639 P.2d 172 (Utah 1981). The court opined: "Issues not raised at trial cannot be raised on appeal. This general rule applies equally to constitutional issues, with the limited exception of where a person's liberty is at stake." Id. at 173-74.

as a justification for considering matters for the first time on appeal. ⁷

Neither Woodward nor Pratt illuminates the meaning of "liberty interest" or provides guidance for its application.

The Utah Supreme Court first mentioned the "liberty interest" exception in a criminal case in State v. Breckenridge, 688 P.2d 440 (Utah 1983), an appeal to set aside a guilty plea to a charge of arson. Factually, however, Breckenridge is a case in which the "exceptional circumstances" exception would have allowed appellate review. ⁸ Nevertheless, relying upon Pratt, the court stated, "[t]he general rule that constitutional issues not raised at trial cannot be raised on appeal is excepted to when a person's liberty is at stake.... Here Breckenridge's felony conviction and sentence rest on the outcome of his appeal." Id. at 443.

After Breckenridge, the Utah Supreme Court ignored the "liberty interest" exception in four subsequent criminal cases, choosing instead to apply the traditional "plain error" or "exceptional circumstances" standards. See Gibbons, 740 P.2d at 1311 (Utah 1987) ("ordinarily, this Court will not entertain an issue first raised on appeal in the absence of exceptional circumstances or plain error"); Eldredge, 773 P.2d at 35 (Utah) (emphasizing and discussing elements of "plain error"); Jolivet v. Cook, 784 P.2d 1148, 1151 (Utah 1989) ("We have held that in the absence of exceptional circumstances, this Court will not entertain a claim raised for the first time on appeal), cert. denied, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990); and State v. Anderson, 789 P.2d 27, 29 (Utah 1990) ("The error must be obvious ('plain'), and it must be harmful.").

However, in October, 1990, the Utah Supreme Court ambiguously alluded to the "liberty interest" exception in State v. Jameson, 800 P.2d 798 (Utah 1990), an appeal from a probation revocation. ⁹ The We read Jameson differently. We conclude that a defendant may not assert a constitutional issue for the first time on appeal unless he can demonstrate "plain error" or "exceptional circumstances." The fact that a "liberty interest" is at stake is merely one factor articulated by the court to be considered when determining whether "exceptional circumstances" exist.

                defendant raised several issues for the first time on appeal.  In ascertaining which of the defendant's claims were appropriate for appellate review, the court was inconsistent in articulating the standard for when the court would consider an issue for the first time on appeal.  The court began by stating that "[t]he general rule is that, outside exceptional circumstances, an appellate court will not hear issues raised for the first time on appeal.  This rule applies to constitutional issues unless a person's liberty is at stake."  Jameson, 800 P.2d at 801.   Next, in response to the defendant's argument that the procedural errors in his first revocation hearing qualified as unusual circumstances, the court acknowledged the traditional "exceptional circumstances" exception, stating that "it is true that in some circumstances serious procedural defects may constitute exceptional circumstances that will allow a criminal defendant to raise issues for the

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