State v. Bruce

• Decision Date: 28 July 1989
• Docket Number: No. 860325,860325
• Parties: STATE of Utah, Plaintiff and Appellee, v. Henry S. BRUCE, Jr., Defendant and Appellant.
• Court: Utah Supreme Court

Page 646

779 P.2d 646

STATE of Utah, Plaintiff and Appellee, v. Henry S. BRUCE, Jr., Defendant and Appellant.

No. 860325.

Supreme Court of Utah.

July 28, 1989.

Debra K. Loy, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Salt Lake City, for plaintiff and appellee.

HOWE, Associate Chief Justice:

Defendant Henry S. Bruce, Jr., appeals from his jury conviction of aggravated robbery, a felony of the first degree. Utah Code Ann. § 76-6-302 (1978, Supp.1989).

On November 26, 1985, the Corner Mart gas and convenience store in northwest Salt Lake City was robbed. At approximately 3:00 in the afternoon, Sue Ann Candelaria, a store employee, received a phone call from a man claiming to have a gun pointed directly at her. He instructed her to put all the money from the register in a bag and give it to a man who would soon be entering the store. The caller threatened to shoot her if she did not comply. Within a few minutes, a young man whom she subsequently identified as defendant entered the store and placed his hand under his jacket as though he had a gun and demanded that Candelaria "do what the man on the phone said." She did not see a gun and later testified that she could not recall that the man made any reference to his having a gun. She stated, "It just looked like a normal thing, like a gun, but it wasn't. I knew it wasn't." Without putting the money in a bag, she gave the robber approximately $214, and he left the store, heading north on foot. As he walked away, Candelaria saw him appear to place the money down the front of his pants.

Candelaria's sister, Ruthie K. Barton, was at the store at the time of the robbery. She stood at the side of the counter only four or five feet from the robber, whom she later identified as defendant. When the man fled from the store, Barton followed him at a distance of about 25 to 30 feet. She also testified that he appeared to place the money down the front of his pants. Barton followed him as he crossed the street and observed him enter a walkway between two apartment buildings, after which she did not see him again. She did, however, soon see an orange Datsun station wagon drive away from the parking lot of the apartment buildings, but she admitted that she did not see anyone enter the car, nor could she see the persons in the car. She further testified that inasmuch as she was a resident of one of the apartments in the complex, she was familiar with the automobiles of the other residents and the orange car did not belong to any of them.

Barton immediately returned to the store and told police officers, who arrived within minutes, what had occurred. She described the robber as a black male approximately 5 feet 7 inches in height, wearing dark corduroy pants, a dark sweat jacket with white lines, and a ski cap. Candelaria gave a similar description. An all-channel police broadcast was then disseminated by the officers stating that an armed robbery had occurred and instructing all police officers to be on the look-out for an orange Datsun or Volkswagen four-door sedan or station wagon, with two black males suspected of robbery, both riding in the front seat.

Police Officer Carl G. Hills heard the broadcast and, driving in the direction of the robbery, observed an orange Datsun station wagon with two black males in the front seat. Officer Hills followed the car for about three blocks but could detect no increase in the car's speed. Because the car and passengers matched the descriptions of the broadcast, Officer Hills notified the dispatcher of his location, that he was in pursuit, and that he was going to attempt to pull the car over. Believing the passengers to be "possible armed robbery suspects," Officer Hills made a high intensity stop in accordance with normal police procedures under the circumstances. Several other officers immediately arrived on the scene, frisked the suspects for weapons, and detained the driver, Otis Latham, and defendant until a witness arrived to make an identification. A broadcast was then dispatched back to the officers at the Corner Mart informing them that a vehicle conforming to the prior description had been stopped and requesting a witness to identify the vehicle and suspects.

Barton, who overheard the broadcast, accompanied a police officer to the location where the vehicle had been stopped and immediately identified the car as the one she had seen leaving the apartment complex parking lot. She then identified both suspects, who were standing with police officers beside the car. The driver of the car was identified by Barton as a man who had been in the store the prior evening inquiring about the store's phone number, which was not listed in the telephone directory. She identified defendant as the robber, and the suspects were placed under arrest for the robbery. Police officers then searched the suspects and the vehicle and seized three one dollar bills from the floor of the vehicle, $104.93 from Latham and $101 from defendant, which money was tucked down the front of his pants. No weapons were found.

I.

Defendant first contends that the stop by Officer Hills and his subsequent arrest violated his constitutional rights under the fourth amendment to the United States Constitution and article I, section 14 of the Utah Constitution. It therefore follows, defendant argues, that the trial court committed prejudicial error in denying his pretrial motion to suppress evidence obtained from the illegal stop and arrest, specifically, the out-of-court identification by Barton.

The State initially responds that defendant failed to preserve this issue for appeal in that he made only a pretrial motion to suppress the challenged evidence and did not make any objection to the introduction of that evidence at trial. Relying upon our decision in State v. Lesley, 672 P.2d 79, 82 (Utah 1983), the State argues that in order to preserve the issue challenging the admission of evidence at trial, "a specific objection is required even where a pretrial motion to suppress has been made." We later held, however:

[T]he rule in Lesley does not require a defendant to object or to renew his motion to suppress at trial where the trial judge is also the judge who ruled on the pretrial motion and where the record or transcript indicates that an evidentiary hearing was held. Since the trial judge in this case was also the judge who presided at the suppression hearing, the defendant's failure to object at trial did not constitute a waiver of his Fourth Amendment claim.

State v. Johnson, 748 P.2d 1069, 1071-72 (Utah 1987). While it may be prudent for defense counsel to notify judges who have ruled on pretrial suppression issues that a defendant's objections to challenged evidence are reserved and not withdrawn, Johnson, 748 P.2d at 1076 (Durham, J., concurring separately), an evidentiary hearing on the motion to suppress was held in this case and the trial judge presided over that hearing. The motion was denied, and accordingly, defendant did not waive his right to appellate review by failing to further object to the admission of the evidence at trial.

In the absence of clear error, we uphold a trial judge's factual assessment underlying a decision to grant or deny a suppression motion. State v. Mendoza, 748 P.2d 181, 183 (Utah 1987); State v. Ashe, 745 P.2d 1255, 1258 (Utah 1987); State v. Branch, 743 P.2d 1187, 1189 (Utah 1987), cert. denied, 485 U.S. 1036, 108 S.Ct. 1597, 99 L.Ed.2d 911 (1988). The error complained of by the defendant in this case is the "lack of a basis for the initial police broadcast which, in theory, gave Officer Hills the probable cause to stop the vehicle" and which led to the subsequent identification of defendant, his arrest, and the seizure of incriminating evidence introduced at trial. Defendant argues that Barton provided the police officers with insufficient information for the broadcast placing the robber of the store in the orange car. The facts only revealed that Barton observed the robber, whom she followed on foot, enter a walkway between two apartment buildings. She did not see the man again and, specifically, did not see him enter the orange car, nor could she see anyone in the car as it drove away. The police broadcast, however, placed not one, but two, black males in the front seat of the orange car. Thus, it is argued, the police officers took liberties with the facts and issued the broadcast without probable cause for a stop. The issue, then, is the validity of the stop by Officer Hills in reliance on the broadcast issued by other police officers concerning possible armed robbery suspects.

Defendant cites Whiteley v. Warden of Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971), for support. In that case, a county sheriff in Wyoming obtained an arrest warrant for a person suspected of burglary. The sheriff then issued a statewide law enforcement radio broadcast describing the suspect, his car, and the property taken. The broadcast did not specify the evidence that gave the sheriff probable cause to believe the suspect had committed the burglary. In reliance on the radio broadcast, police officers in Laramie stopped the suspect and searched his car. The Supreme Court ultimately held that the sheriff had lacked probable cause to obtain the warrant and that the evidence obtained during the search had to be excluded at trial. In so ruling, the Court stated:

We do not, of course, question that the Laramie police were entitled to act on the strength of the radio bulletin. Certainly police officers called upon to aid other officers in executing arrest warrants are entitled to assume that the officers requesting aid offered the magistrate the information requisite to support an independent judicial assessment of probable cause. Where, however, the contrary turns out to be true, an otherwise illegal arrest cannot be insulated from challenge by the decision of the instigating...