State v. Belgard, 900267-CA

• Decision Date: 08 May 1991
• Docket Number: No. 900267-CA,900267-CA
• Citation: 811 P.2d 211
• Parties: STATE of Utah, Plaintiff and Appellee, v. Dayton J. BELGARD, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 211

811 P.2d 211

STATE of Utah, Plaintiff and Appellee, v. Dayton J. BELGARD, Defendant and Appellant.

No. 900267-CA.

Court of Appeals of Utah.

May 8, 1991.

Kenneth R. Brown (argued), Brown and Cox, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen. and Marian Decker (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BENCH, GREENWOOD and ORME, JJ.

OPINION

BENCH, Judge:

Defendant appeals his conviction following a bench trial for possession of a dangerous weapon by a restricted person, a third degree felony under Utah Code Ann. § 76-10-503(2) (1990). We affirm.

On March 1, 1989, defendant and his wife stayed overnight at the apartment of an acquaintance who, unbeknownst to defendant, was an informant for the FBI and Metro Narcotics. The informant and defendant had met while they were both serving time in the Utah State Prison. The informant's apartment was specially equipped with surveillance equipment for recording drug purchases arranged by the informant. Shortly after arriving, defendant removed a .45-caliber handgun from beneath his shirt.

On the morning of March 2, the informant called the undercover agent with whom he was working and told him that defendant had a gun he might be willing to sell. The undercover agent joined the informant and defendant at the apartment. Their meeting was recorded by means of the surveillance equipment. Defendant showed the agent the gun. When asked whether he would be interested in selling the gun, defendant refused, stating that he still had a "couple of jobs" he wanted to do with the gun and then he would sell it to the agent. Defendant and his wife later left the apartment with defendant carrying the gun in the waistband of his pants.

On March 3, a Salt Lake City police officer responded to a call concerning a used car that had been stolen from a dealership. An employee of the dealership had just seen the stolen car enter a hotel parking lot across the street from one of the dealership lots. The officer was told that on March 2, a man and woman had attempted to trade a VCR and a handgun for the car, but their offer was declined. After the couple had left, the dealership discovered that the keys to the car were missing. That night, the car was moved from the lot without the dealer's permission.

After talking with the employee at the dealership, the police officer and the employee located the car at the hotel across the street. The car was parked in the stall assigned to defendant's room, so the police officer knocked on defendant's door as part of his investigation. Defendant answered the door. The police officer testified that when the door was opened he could see the interior of the room and that he saw the handgun sitting on the bed, which was approximately five feet from the door. The police officer entered the room, seized the handgun, and arrested defendant.

Inasmuch as defendant had previously been convicted of a crime of violence, he was charged with possession of a dangerous weapon by a restricted person. Defendant's unsuccessful defense at trial was that the handgun, which was approximately 35 years old, was so old that it could not be dangerous. At no time prior to or during the trial did defendant ever contest the admission of the gun into evidence.

After his conviction, defendant obtained new counsel and sought a new trial. He asserted for the first time that the handgun was obtained by the police through an unconstitutional search and seizure and that he was denied effective assistance of counsel because his trial counsel did not object to the admission of the handgun. Defendant's motion for a new trial was denied. Defendant again obtained new counsel and then filed a motion to arrest judgment pursuant to rule 23 of the Utah Rules of Criminal Procedure. Rule 23 provides as follows:

At any time prior to the imposition of sentence, the court upon its own initiative may, or upon motion of a defendant shall, arrest judgment if the facts proved or admitted do not constitute a public offense, or the defendant is mentally ill, or there is other good cause for the arrest of judgment.

Defendant asserted in support of his motion that the judgment should have been arrested because the evidence against him was obtained by an unreasonable search and seizure in violation of his fourth amendment rights. In connection with his motion to arrest judgment, defendant moved to suppress the handgun. The trial court thereupon conducted what was purported to be a "suppression hearing" at which defendant's new counsel questioned the arresting officer about the details of defendant's arrest. Defendant's new counsel raised some questions about the statements made by the arresting officer at trial. The trial court nevertheless held that the handgun was in plain view when defendant opened his door and therefore denied the motion to arrest judgment.

Defendant appeals, claiming that the trial court erred in denying his motion to arrest judgment in light of the alleged constitutional violation. We affirm defendant's conviction but, because of the procedural irregularities in this case, we do so on a slightly different ground than that relied upon by the trial court. See Buehner Block Co. v. UWC Assocs., 752 P.2d 892, 894-95 (Utah 1988) (appellate court may affirm trial court on any proper ground, even though the trial court assigned another reason for its ruling); State v. Bryan, 709 P.2d 257, 260 (Utah 1985).

Any objection to the introduction of the handgun into evidence was waived when defendant's counsel consented to its admission without objection. Rule 12 of the Utah Rules of Criminal Procedure provides:

(b) Any defense, objection or request, including requests for rulings on the admissibility of evidence, which is capable of determination without the trial of the general issue may be raised prior to trial by written motion. The following shall be raised at least five days prior to the trial:

(2) motions concerning the admissibility of evidence;

....

(d) Failure of the defendant to timely raise defenses or objections or to make requests which must be made prior to trial or at the time set by the court shall constitute waiver thereof, but the court for cause shown may grant relief from such waiver.

(Emphasis added.)

The principle of waiver under rule 12(d) increases judicial efficiency and economy, creates a predictable system of advocacy, and fosters finality in convictions. The principle also serves the public interest by reducing litigation expenses. See Watkiss and Campbell v. Foa & Son, 808 P.2d 1061 (Utah 1991). If a defendant has, as a possible defense, a claim that his or her rights have been violated, then the defendant must raise the issue before trial or else lose the claim. See, e.g., State v. DeMille, 756 P.2d 81, 83 (Utah 1988) (failure to object to the manner of voir dire during voir dire waived any objection, even though actual bias was discovered after the trial); State v. Lairby, 699 P.2d 1187, 1192 (Utah 1984) (failure to object to the legality of arrest waived the issue). ¹

In State v. Tuttle, 16 Utah 2d 288, 292, 399 P.2d 580, 582, cert. denied, 382 U.S. 872, 86 S.Ct. 129, 15 L.Ed.2d 110 (1965), the Utah Supreme Court held that Tuttle's objection to the legality of a search had been waived. The supreme court reasoned that:

there was no timely objection made to the evidence in question. Everything concerning such evidence was known to the defendant at the time of the preliminary hearing.... No objection was made to the evidence, nor was there any indication of a contention that there had been an illegal search. Neither then nor at the trial was there any motion to suppress. On the contrary, during the trial the defendant's counsel in his questioning continually referred to these exhibits.... Fairness requires that if he disputed the competency of the evidence he should make his objection at the earliest reasonable opportunity. He should not be permitted to wait until the questioned evidence was before the jury and attempt to make use of it, then claim that it was not admissible. Inasmuch as he chose to conduct his examination upon the basis of this evidence[ ] before he stated his objection to it[,] he should be deemed to have waived any such objection.

(Emphasis added.)

Defendant in the present case focused his defense at trial on the characteristics of the handgun that was introduced into evidence. Defense counsel conducted considerable questioning in order to show that the gun was not "dangerous." She asked about the age of the gun, whether the gun had been recently fired, whether the gun had hung for years on a plaque as a collector's piece, whether the gun was loaded or did it even have a magazine or clip, whether the gun was mechanically functional, and so forth. By actually having the gun entered into evidence, the factfinder could see that the gun was in fact old and missing some of its parts. Given the eyewitness testimony placing the gun in defendant's possession at the informant's apartment, prior to its seizure at the hotel, counsel's failure to object to the gun's admission may well have been a trial strategy. See, e.g., State v. Morehouse, 748 P.2d 217, 219 (Utah Ct.App.1988) (failure to object to admission of evidence was within ambit of trial strategy since defense called expert witness who used the same challenged evidence in support of his proposition). To permit defendant now to claim that the gun should not have been admitted, would permit him to present one strategy, lose, and then start over with a whole new strategy. We will not "sanction the practice of withholding positions that should properly be presented to the trial court but which may be withheld for purposes of seeking a reversal on appeal and a new trial or dismissal." State v. Lee, 633 P.2d 48, 53 (Utah) cert. denied, 454 U.S. 1057, 102 S.Ct. 606, 70 L.Ed.2d 595 (1981).

The waiver...