State v. Beltran-Felix

• Decision Date: 05 July 1996
• Docket Number: No. 950341-CA,D,BELTRAN-FELI,950341-CA
• Citation: 922 P.2d 30
• Parties: STATE of Utah, Plaintiff and Appellee, v. Emilioefendant and Appellant.
• Court: Utah Court of Appeals

Page 30

922 P.2d 30

STATE of Utah, Plaintiff and Appellee, v. Emilio BELTRAN-FELIX, Defendant and Appellant.

No. 950341-CA.

Court of Appeals of Utah.

July 5, 1996.

Kent E. Snider, Ogden, for Appellant.

Jan Graham and J. Frederick Voros, Salt Lake City, for Appellee.

Paul G. Cassell and Scott Daniels, Salt Lake City, for Amicus Curiae. ¹

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

GREENWOOD, Judge:

Emilio Beltran-Felix (defendant) appeals his jury conviction on the grounds that the presence in court of one of the crime victims, throughout the trial, violated his Fifth Amendment right to a fair trial. Defendant also argues there was insufficient evidence to submit the charge of aggravated sexual assault to the jury, and that the trial court failed to make an adequate record in support of sentencing, and misapplied the weapons sentence enhancement statute. We affirm on all except the sentencing issues.

BACKGROUND ²

On April 18, 1994, defendant and his companion, Jose Estrada, entered a jewelry store in South Ogden, Utah. Defendant displayed a semi-automatic handgun, and Estrada brandished a folding knife with a six or seven-inch blade. Defendant and Estrada forced all four of the employees on the premises, along with a jewelry wholesaler who entered the store during the robbery, into a back room and tied them up.

While defendant remained in the store showroom, Estrada, in the presence of the other four victims, sexually assaulted and raped one of the store employees, G.L. Estrada then left the back room, and a few moments later defendant walked into the room. Defendant held the gun to G.L.'s head and forced her to perform oral sex on him. Defendant and Estrada also assaulted other persons present in the store, by kicking, choking, or hitting them. They left the store with approximately $380,000 worth of gems and jewelry, cash from the register, and one victim's wallet and watch. Police later arrested defendant and Estrada, and they were charged with various offenses.

On January 1, 1995, prior to trial, an amendment to the Utah Constitution became effective (the Victims' Rights Amendment). See Utah Const. art. I, § 28. The Victims' Rights Amendment, along with its implementing legislation (the Victims' Rights Act), provides that the victim of a crime has a right to be present at important criminal hearings, including trials, involving the crime in which they were victimized. See Utah Const. art. I, § 28; Utah Code Ann. §§ 77-38-2(5) & 4(1) (Supp.1995).

Before trial commenced, the prosecutor informed the trial court that G.L. wished to be present during the trial and that she had the right to be present under the Victims' Rights Amendment and the Victims' Rights Act. Defense counsel objected on the grounds "there may be some constitutional challenge under the United States Constitution, probably under the [Fifth] Amendment." The trial court denied the objection and G.L. remained in the courtroom throughout the trial. G.L. also testified at defendant's trial as the State's last witness. The jury returned a guilty verdict against both defendant and Estrada on all charges.

The trial court imposed on defendant a sentence of fifteen years for each of five counts of aggravated kidnaping, to run consecutively. The trial court also imposed a sentence of fifteen years for each of two counts of aggravated sexual assault, again to run consecutively. These sentences represented the maximum possible penalty for aggravated kidnaping and aggravated sexual assault. The trial court also imposed a five year weapon enhancement sentence for each of three aggravated robbery sentences, pursuant to Utah Code Ann. § 76-3-203(1) (Supp.1995), describing the resulting sentence as "[ten] years to life."

ISSUES

On appeal, we address the following issues: (1) Were defendant's constitutional rights under the Fifth Amendment of the United States Constitution violated by the victim's presence during trial; (2) did the trial court properly refuse to dismiss the charge of aggravated sexual assault; (3) did the trial court err in failing to state the reasons for imposing the highest minimum mandatory sentence; and (4) did the trial court err in its application of the mandatory firearm sentence enhancement statute?

ANALYSIS

Constitutionality of the Victims' Rights Provisions

G.L. was allowed to remain in the courtroom throughout trial under the recent declaration of the rights of crime victims in the Victims' Rights Amendment to the Utah Constitution and its implementing legislation. Article I, Section 28 of the Utah Constitution provides, in relevant part:

(1) To preserve and protect victims' rights to justice and due process, victims of crimes have these rights, as defined by law:

....

(b) Upon request, to be informed of, be present at, and to be heard at important criminal justice hearings related to the victim, either in person or through a lawful representative, once a criminal information or indictment charging a crime has been publicly filed in court ...

....

(4) The Legislature shall have the power to enforce and define this section by statute.

Utah Const. art. I, § 28 (emphasis added). Pursuant to Article I, Section 28(4) of the Utah Constitution, the legislature passed the Victims' Rights Act. See Utah Code Ann. §§ 77-38-1 to -14 (1995 & Supp.1995). Under the Victims' Rights Act, "[t]he victim of a crime shall have the right to be present at the important criminal or juvenile justice hearings." ³ Id. § 77-38-4(1). The term "important criminal justice hearings" includes "any criminal or delinquency trial." Id. § 77-38-2(5)(e). Accordingly, G.L.'s presence was proper under the Victims' Rights Amendment and the Victims' Rights Act.

On appeal, defendant contends that G.L.'s presence in the courtroom during the entire trial, and her testimony as the last witness for the State, violated his "[c]onstitutional rights to due process under the [F]ifth, [S]ixth and [F]ourteenth amendments of the United States Constitution." However, at trial, defendant objected only on Fifth Amendment grounds. See State v. Shickles, 760 P.2d 291, 301 (Utah 1988) ("An objection must be both timely and specific."); see also State v. Rangel, 866 P.2d 607, 611 (Utah App.1993) ("It is well established that 'a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal.' " (quoting State v. Johnson, 774 P.2d 1141, 1144 (Utah 1989))). In addition, defendant has not provided any separate argument or analysis in his brief on the Sixth or Fourteenth Amendments. See State v. Wareham, 772 P.2d 960, 966 (Utah 1989) (declining to rule on constitutionality of statute where brief "wholly lacks legal analysis and authority to support" argument). Therefore, we address only the Fifth Amendment challenge.

"Defendant is guaranteed the right to a fair trial by the [F]ifth ... amendment[ ] to the United States Constitution." State v. Boone, 820 P.2d 930, 932 (Utah App.1991) (footnote omitted). "However, defendant bears the burden of proof in establishing he was denied a fair trial." Id. (footnote omitted); cf. State v. McGrath, 749 P.2d 631, 634 (Utah 1988) ("When an exclusion order has been violated, the burden is on the accused to demonstrate that he has been prejudiced to the extent that a mistrial should be granted."); State v. Carlson, 635 P.2d 72, 74 (Utah 1981) (placing burden on defendant to show prejudice where prosecutor talked to two witnesses together in violation of exclusion order); State v. Dodge, 564 P.2d 312, 313 (Utah 1977) (placing burden on defendant to show prejudice where witnesses were observed discussing case in violation of exclusion order).

Both parties appear to agree that the Victims' Rights Amendment and Victims' Rights Act are not facially unconstitutional under the Fifth Amendment, a position supported, at least inferentially, by numerous authorities. See Bell v. Duckworth, 861 F.2d 169, 170 (7th Cir.1988) ("A refusal to exclude ('separate') witnesses until they testify is not a denial of due process."), cert. denied, 489 U.S. 1088, 109 S.Ct. 1552, 103 L.Ed.2d 855 (1989); Willis v. Kemp, 838 F.2d 1510, 1523 (11th Cir.1988) (finding no error in trial court's refusal to remove victim's young son, noting that "[p]etitioner cites no authority for the proposition that due process requires that in a capital sentencing proceeding, the defendant has a constitutional right to have removed from the courtroom spectators whose presence may remind the jury of the victim."), cert. denied sub nom. Willis v. Zant, 489 U.S. 1059, 109 S.Ct. 1328, 103 L.Ed.2d 596 (1989); Mathis v. Wainwright, 351 F.2d 489 (5th Cir.1965) (refusing to grant habeas relief on grounds that trial court refused to sequester witnesses, noting that "such denial does not amount to a deprivation of [defendant's] constitutional rights"), cert. denied, 384 U.S. 1009, 86 S.Ct. 1960, 16 L.Ed.2d 1021 (1966); Stephens v. State, 290 Ark. 440, 720 S.W.2d 301, 303 (1986) ("Nothing in the constitution touches on the exclusion of witnesses during criminal trials."); State v. Harrell, 67 N.C.App. 57, 312 S.E.2d 230, 236 (1984) ("Due process does not automatically require separation of witnesses who are to testify to the same set of facts."); Rucker v. Tollett, 4 Tenn.Crim.App. 672, 475 S.W.2d 207, 208 (1971) (finding trial court's refusal to exclude witnesses from the courtroom "raises no constitutional question"). Our research reveals no authority to the contrary. See, e.g. Wheeler v. State, 88 Md.App. 512, 596 A.2d 78, 88 n. 16 (1991) (noting that "[w]e have found no federal or state constitutional provisions establishing sequestration as a constitutional right under either [the state or federal] constitution."). Accordingly, because there is no constitutional right to require exclusion or sequestration of witnesses, the Victims' Rights provisions do not,...