State v. Bullock, 18858

• Decision Date: 05 April 1985
• Docket Number: No. 18858,18858
• Citation: 699 P.2d 753
• Parties: STATE of Utah, Plaintiff and Respondent, v. Jerry Wayne BULLOCK, Defendant and Appellant.
• Court: Utah Supreme Court

Page 753

699 P.2d 753

STATE of Utah, Plaintiff and Respondent, v. Jerry Wayne BULLOCK, Defendant and Appellant.

No. 18858.

Supreme Court of Utah.

April 5, 1985.

Andrew A. Valdez, Salt Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

ZIMMERMAN, Justice:

Defendant Jerry Wayne Bullock appeals from his conviction on a charge of robbery, a second degree felony under section 76-6-301 of the Code. U.C.A., 1953, § 76-6-301 (1978 ed.). He raises two issues on appeal. First, defendant asserts that his due process rights were denied when the trial court refused to suppress a tainted in-court identification. Second, defendant claims that the State violated section 77-29-1 of the Code, which allows a prisoner to demand disposition of pending charges within 120 days after such a demand is delivered, and that as a consequence, the trial court had no jurisdiction to adjudicate the charges against him. U.C.A., 1953, § 77-29-1 (1982 ed.).

On January 1, 1981, at approximately 6:00 p.m., a Rainbo Oil gas station in Salt Lake City was robbed. The robber entered the store alone, approached the cashier, and asked her for directions to the bathroom and telephone. She gave him the instructions. The man then walked toward the back of the station, put on his sweatshirt hood, turned toward the cashier and said, "Give me your money." The cashier opened the cash register drawer and began taking out the money, while the robber repeated his demand. Then he took a small container from his pocket and, from about two feet away, sprayed her with a foul smelling chemical. The robber grabbed the money from the tray and out of the cashier's hands, stuffed it into his sweatshirt pockets, and headed for the door. While this was occurring, a customer, Michael Rosenhan, entered the store. He saw the robber take the money from the register and put it in his pockets. The robber brushed past Rosenhan's shoulder on the way out of the store. Rosenhan testified that he had a straight-on view of the robber's face for approximately five seconds.

Three months later, in April of 1981, Rosenhan was asked to examine a photo array in connection with the robbery. He selected one photo out of a group of eight and described the man in it as having some characteristics similar to those of the robber; however, he made no positive identification. Defendant's photo was not in the array. On February 8, 1982, Rosenhan began working as a jailer at the Salt Lake County jail. On March 25, 1982, defendant was arrested and booked into the jail on an unrelated charge. On March 26th, Rosenhan was again asked to examine a photo array. This time he positively identified the photograph of defendant as that of the Rainbo Oil robber. At an April 7th preliminary hearing, Rosenhan made a positive in-court identification of defendant.

Defendant's trial began on October 25, 1982. Rosenhan testified that the April 7th in-court identification was based on his recollection of the robbery, but that the March 26th photo array helped him remember the robber's basic facial features. Shortly thereafter, defense counsel moved to suppress the April 7th in-court identification, arguing that Rosenhan had contact with defendant while he was in jail prior to the March 26th photo identification and that this contact tainted the subsequent in-court identification.

Out of the presence of the jury, witnesses for both defendant and the State testified about the nature and extent of any contact Rosenhan might have had with defendant while he was in jail. Rosenhan testified that he first saw defendant in jail on April 5th, two days before the preliminary hearing, when he took defendant out of his cell to make a telephone call. Two defense witnesses testified to an incident they said occurred at the jail either at the end of March or during the first week of April. They said that an on-duty jailer brought Rosenhan to the cell in which they were playing cards with defendant and pointed defendant out to Rosenhan. Defendant also testified to this incident and further stated that Rosenhan had taken him to make phone calls on several occasions. After the evidence had been heard, the trial court denied defendant's motion to suppress and the trial continued, eventually resulting in defendant's conviction.

Defendant first challenges the trial court's denial of the motion to suppress evidence of Rosenhan's April 7th in-court identification. He contends that the trial court should have accepted his version of Rosenhan's contacts with him before the identification. He misunderstands the nature of a motion to suppress.

A motion to suppress requests that a trial judge determine whether proffered evidence is constitutionally defective. In making such a ruling, a trial judge will often be called upon preliminarily to resolve factual disputes. State v. Tuttle, 16 Utah 2d 288, 291, 399 P.2d 580, 582 (1965). If, after resolving the factual questions in his own mind, the judge concludes that the State has shown by a preponderance of the evidence that the defendant's constitutional rights will not be violated by admission of the evidence, it is admitted. Cf. Lego v. Twomey, 404 U.S. 477, 489, 92 S.Ct. 619, 626, 30 L.Ed.2d 618 (1972). On appeal, we will not disturb the trial court's resolution of the factual issues underlying its decision to grant or deny the motion to suppress absent clear error. State v. Tuttle, 16 Utah 2d at 291, 674 P.2d at 125; State v. Cole, Utah, 674 P.2d 119, 122, 125 (1983).

Defendant's appeal is predicated entirely on our acceptance of his version of what occurred after he was booked into jail on March 25th. However, there was directly conflicting evidence on this point....