State v. Banner

Decision Date14 April 1986
Docket NumberNo. 20371,20371
Citation717 P.2d 1325
CourtUtah Supreme Court
PartiesThe STATE of Utah, Plaintiff and Respondent, v. Nicholas BANNER, Defendant and Appellant.

Walter F. Bugden, Jr., Salt Lake City, for defendant and appellant.

David L. Wilkinson, Sandra L. Sjogren, Roger D. Sandack, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant, Nicholas Banner, was found guilty by a jury of committing sodomy upon a child, a first degree felony, in violation of U.C.A., 1953, § 76-5-403.1 (Supp.1983), and sexual abuse of a child, a first degree felony, in violation of U.C.A., 1953, § 76-5-404 (Supp.1983). Our resolution of this appeal requires that we reach two of the issues presented by defendant: whether he was denied a speedy trial and whether the lower court erred in failing to exclude evidence of defendant's prior convictions.

I.

Defendant was arrested on December 5, 1983, after being charged in a two-count information with sexual abuse of a child (hereinafter count one), and sodomy upon a child (hereinafter count two). During defendant's initial appearance on December 6, 1983, the circuit court judge appointed counsel to represent defendant.

Defendant first met his attorney on December 13, 1983, the date initially set for the preliminary hearing, and informed counsel of the existence of some alibi witnesses. The preliminary hearing, however, was continued to December 20 after the State requested increased bail based upon an indication that defendant had a prior criminal record under another name.

Defendant was bound over to district court and arraigned on December 23, at which time he entered a plea of not guilty. Trial was set for February 14, 1984. On or about January 26, defendant's counsel visited defendant in jail and informed him that the alibi witnesses had not yet been contacted.

An investigator testified at a pretrial hearing that he was first assigned by defendant's counsel to locate the alibi witnesses on January 31 and actually interviewed two of the witnesses for the first time on February 2. The investigator testified that Jim Oxin, the bartender at the tavern where defendant contended he was at the time the crimes were alleged to have occurred, remembered defendant and the evening in question, but could not pinpoint the incident in question. The record fails to indicate whether the tavern's owner, Gary, remembered whether defendant was at the bar the night of the incident. It also appears the investigator did not talk to another witness, Paula or Paulette, who at some point left the state without leaving a forwarding address. Therefore, five days prior to trial, counsel advised defendant to plead guilty. Defendant testified that he declined this invitation.

On February 14, 1984, the prosecutor told the court that there was going to be a change of plea. Neither defendant nor his counsel was present. The case was eventually continued to March 6, at which time defendant met with his counsel for the first time since before the trial date. Defendant testified that when he asked what happened to his trial he was told by his counsel that it was past that stage and that he had to plead guilty. Defendant pleaded guilty, and sentencing was set for March 29, but was then continued on defendant's motion to April 12. At the April 12 hearing, defendant asked Judge Wilkinson to grant him new counsel and to allow him to withdraw his guilty plea. Both motions were denied, and sentencing was again continued until April 26 so the parties could prepare memoranda on the new sentencing statute for sodomy upon a child.

On April 25, 1984, David Drake entered his appearance as defendant's new private counsel "for the specific purpose of representing Defendant in his sentencing and/or or [sic] the setting aside of the guilty plea entered by Defendant in the above matter." And on April 26, sentencing was again continued on defendant's motion to May 22.

On May 22, 1984, defendant's guilty plea was set aside, and defendant's previous counsel was allowed to withdraw from the case. At some later time, a new trial date of July 12, 1984, was set.

Defendant's calls to Drake, after the setting aside of the guilty plea, were unreturned, and defendant's attempts to secure new counsel were unavailing. On July 10, 1984, Drake was allowed to withdraw from the case by Judge Banks, who did not require that substitute counsel appear in Drake's stead. On July 11, 1984, Drake visited defendant for the first time since the setting aside of the guilty plea. Defendant testified that he learned at this time for the first time that his trial was set for the following day. Defendant further testified that Drake gave him the names of three attorneys who could be court appointed and that Drake would make the proper arrangements with the legal defender's office before moving to San Diego that day.

No arrangements were made by Drake, and defendant's trial date passed without defendant appearing in court. On July 16, defendant contacted one of the attorneys suggested by Drake, but could not raise the attorney's fee. On August 10, 1984, defendant wrote Judge Wilkinson a letter requesting release from jail. Defendant testified that he would have written Judge Wilkinson sooner had Judge Wilkinson not previously refused to appoint substitute counsel at the April 12 hearing. On August 20, 1983, defendant was brought before Judge Banks, the legal defender's office was again appointed to represent defendant, and trial was set for September 5, 1984. Due to the conflict of interest between defendant and the legal defender's office, however, defendant's present counsel was appointed on August 27. Defendant met with his new lawyer for the first time on August 29, and at defendant's request the court set a new trial date of November 13, 1984.

On November 9, 1984, defendant's motion to dismiss for lack of a speedy trial and motion to exclude defendant's prior convictions were heard in part. Argument was continued to the nineteenth, and the trial was moved to December 4, 1984. The trial court denied both motions on November 21. In regard to defendant's motion to exclude his prior felony convictions, the court made no finding on the record that the admission of the prior convictions was more probative than prejudicial.

Defendant's case went to trial on December 4 and 5, 1984. The victim, "J," age eleven, testified that on the night in question she was being babysat by her aunt. "J" fell asleep in a chair while watching TV. While sleeping, "J" felt two hands inside of her panties touching her vagina. She stated that she was too afraid to open her eyes. She then fell back asleep. The next thing "J" remembered was that she was lying on the floor and felt something move across her face from one cheek, across her mouth, to the other cheek. However, it did not go inside of her mouth. She opened her eyes and saw defendant kneeling over her wearing only underwear down around his knees. At the time "J" opened her eyes, defendant's erect penis was approximately four inches from her face.

At about that time, "J's" aunt came down the stairs. The aunt observed defendant slipping his penis back into his underwear. Defendant did not testify at trial.

Defendant was found guilty of count one and count two. He was sentenced to life without the possibility of parole for his conviction of count two and sentenced from one to fifteen years on count one. On January 14, 1985, defendant was resentenced to fifteen years to life on count two.

II.

Defendant claims he has been deprived of his federal and state constitutional and state statutory rights to a speedy trial. The sixth amendment to the United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." 1 Article 1, section 12 of the Utah Constitution provides a similar guarantee. 2 In State v. Knill, we stated:

Whether the federal right has been violated is determined by balancing the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and the prejudice to the defendant."

Similar considerations also apply under the Utah constitution. 3

Applying these principles to this case, 4 we find that defendant's speedy trial rights have not been abridged.

As stated in Barker v. Wingo, the length of delay is to some extent a triggering mechanism which analytically is closely related to the reason for the delay. 5 The Barker Court then elaborated on the necessary balancing process required when considering the reason for the delay: different weights must be assigned to the varying justifications and reasons given for the delay. As the Court said:

A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay. 6

Between December 5, 1983, the time at which defendant was arrested, and February 14, 1984, the date initially set for defendant's trial, the only delay which could be characterized as avoidable and attributable to the prosecution was a continuance for seven days to allow the prosecution to research whether or not defendant had a prior criminal record under another name. At the hearing on the speedy trial motion, defendant testified that his counsel made no objection to this delay.

On February 14, the day set for trial, the prosecutor told the trial judge:

Neil Gunnarson for the state. I spoke to Miss Palacios. She indicated there will be a change of plea. It was her request as I understand it. She was going to oppose the court about putting it on the change of plea calendar. She had...

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