State v. Burk
| Decision Date | 23 October 1992 |
| Docket Number | No. 910404-CA,910404-CA |
| Citation | 839 P.2d 880 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. John BURK, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Ronald J. Yengich (argued), Yengich, Rich & Xaiz, Salt Lake City, for defendant and appellant.
R. Paul Van Dam, State Atty. Gen., Marian Decker (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before BENCH, ORME and RUSSON, JJ.
Defendant John Burk appeals his convictions of arson, a third degree felony, in violation of Utah Code Ann. § 76-6-102 (1990), and of tampering with a witness, a third degree felony, in violation of Utah Code Ann. § 76-8-508 (1990). We affirm.
On appeal, we recite the facts in the light most favorable to the jury's verdict. State v. Johnson, 821 P.2d 1150, 1153 (Utah 1991).
On the night of August 9, 1989, Burk asked Ivan Phipps to accompany him to Jennifer Powers's home to help him burn her car. In order to avoid recognition, Phipps borrowed a friend's Jeep, picked up Burk, and drove to Powers's home, where Burk then set fire to Powers's car.
Phipps was subsequently turned into the police by the Jeep's owner, and charged with arson. Prior to Burk being charged, Phipps told Burk that while he knew that he had done something wrong, he did not feel that what he was being charged with was fair. In response, Burk told Phipps to "[j]ust stick it out," while he tried to "figure out ways to have good excuses or anything like that." Burk further asked Phipps to testify that he "hadn't done it" and "knew nothing about it." Phipps also testified that on several different occasions, Burk and he had discussed possible alibis. In July 1990, Phipps entered into a diversion agreement with the State, whereby all charges against him would be dropped in exchange for his testimony and on the condition that he demonstrate good behavior for a year. Burk was subsequently charged with arson and tampering with a witness.
Burk was tried by a jury on April 10, 1991. During the course of that trial, a prosecution witness, Gina Wood, testified that she knew that Burk had "done this." Defense counsel objected to the testimony, which objection was sustained. The court also, sua sponte, ordered Wood's statement stricken from the record. Wood further testified that Burk's sister-in-law had told her that Burk "was going to cut her up." Again, defense counsel objected, and requested that the jury be excused. After the jury had been excused, Burk's counsel moved for a mistrial on the grounds that Wood's testimony was prejudicial and could not be cured by an appropriate instruction from the bench. The trial court denied Burk's motion, but instructed the jury to disregard Wood's statements. At the conclusion of the one-day trial, Burk was convicted as charged.
Subsequently, Burk moved for an arrest of judgment on the grounds that (1) the facts proved at trial did not constitute a public offense; (2) Wood had testified to matters that were inadmissible under Rule 404(b) of the Utah Rules of Evidence, which error was not cured by the trial court's cautionary instruction; (3) there was improper contact between witnesses and jurors; and (4) witnesses were improperly informed about other witnesses' testimony. Following a hearing on the issue of improper contact between witnesses and jurors, the trial court found that if any contact had taken place, it was incidental, and ruled that the evidence was insufficient to justify a motion to arrest judgment. Nonetheless, the trial court on its own initiative decided to question the jurors under oath as to whether they had overheard any conversations between witnesses. The trial court instructed both counsel to be present, but ordered that Burk would be excluded. Burk filed a memorandum challenging that order.
The trial court conducted two hearings during which the court questioned each of the jurors concerning Burk's allegation of improper contact between witnesses and jurors and determined that there had been no improper contact. At the conclusion of these hearings, the trial court overruled Burk's objection to the proceedings and denied Burk's motion to arrest judgment.
Burk appeals his convictions and the denial of his motion to arrest judgment, raising the following issues: (1) Did the trial court err in refusing to grant Burk a mistrial on the ground that Wood's testimony was prejudicial and not cured by the trial court's instruction to the jury to disregard that testimony?; (2) Was the evidence adduced at trial sufficient to support Burk's conviction of tampering with a witness?; (3) Was there improper contact between witnesses and jurors as to deny Burk due process of law?; and (4) Did the trial court err in refusing to allow Burk to be present at a post-trial hearing at which the jurors were questioned concerning improper contact?
Burk argues that the trial court erred in denying his motion for a mistrial based on Wood's hearsay and inflammatory testimony. "We will uphold the trial court's denial of defendant's motion for a new trial unless we determine the court has abused its discretion." State v. Boone, 820 P.2d 930, 932 (Utah App.1991) (citing State v. Knight, 734 P.2d 913, 918-19, 923 (Utah 1987); Anton v. Thomas, 806 P.2d 744, 747 (Utah App.1991)). Burk claims that Wood's testimony that she knew Burk had "done it," and her hearsay testimony that Burk was going to "cut her up" were so prejudicial as to deny Burk a fair trial in contravention of the Fifth and Fourteenth Amendments to the United States Constitution and article I, section 7 of the Utah Constitution. 1 We disagree.
Evidence is unfairly prejudicial:
if it has a tendency to influence the outcome of the trial by improper means, or if it appeals to the jury's sympathies, or arouses its sense of horror, provokes its instinct to punish or otherwise causes a jury to base its decision on something other than the established propositions of the case.
Terry v. Zions Coop. Mercantile Inst., 605 P.2d 314, 323 n. 31 (Utah 1979) (citation omitted), overruled on other grounds, McFarland v. Skaggs Cos., Inc., 678 P.2d 298 (Utah 1984).
We turn first to Wood's testimony that she knew Burk was responsible for the arson. While such testimony may have been conjectural and without foundation, Burk does not demonstrate that the testimony was so prejudicial as to justify a mistrial, particularly since the court sustained defense counsel's objection to that testimony, and the court, sua sponte, ordered Wood's statement stricken from the record. In light of this, we conclude that such testimony did not unduly prejudice Burk so as to deny him a fair trial.
Burk likewise fails to demonstrate that Wood's testimony that she had been told that Burk was going to "cut her up" was so prejudicial as to deny Burk a fair trial. Following Wood's statement, defense counsel, outside the presence of the jury, moved for a mistrial based on that testimony, as well as Wood's prior testimony that Burk had "done it." In overruling the motion, the court stated:
First of all the court will find that this is not the first testimony that has come in relative to threats that the defendant has made against several of the witnesses. Ms. Powers testified that the defendant indicated that if she did not drop the telephone harassment charges against him, that she was a dead girl. No objection was made to that comment.
The court would further find that under these circumstances it is not so prejudicial as to be the basis of a mistrial in this matter[.]
After denying Burk's motion and recalling the jury, the court instructed the jury that "the court has ordered stricken any testimony of [Wood] relative to what some third person may have said about what the defendant may or may not do to her and you are not to consider that in any manner in your decision in this particular case." At the close of trial, in its instructions to the jury, the court again admonished the jurors that "[a]ny evidence as to which an objection was sustained by the [court], and any evidence ordered stricken by the [c]ourt must be entirely disregarded."
"In the absence of the appearance of something persuasive to the contrary, we assume that the jurors were conscientious in performing to their duty, and that they followed the instructions of the court." State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322, 1324 (1974). In the case at bar, Burk contends that the cautionary instruction did not purge the prejudicial effect of the statement, but offers nothing which convinces us that the jury did not follow the court's instruction to disregard Wood's testimony. Therefore, we assume that the cautionary instruction was sufficient to remedy any prejudicial effect of such testimony.
Moreover, Burk does not explain how Wood's hearsay testimony that he was going "to cut her up" could possibly be so prejudicial as to warrant a mistrial in light of the fact that the substance of that testimony was admitted without any objection by defense counsel. Specifically, Wood testified:
Q. [By Prosecution] Now, Ms. [Wood], we would like to ask you, as the Court has indicated, was there ever a time when you had a direct discussion with [defendant], were there any threats made directly to you by [defendant]?
A. [By Wood] Yes.
Q. Do you know approximately when that was?
A. In July, I would say.
Q. Of '89?
A. Yeah.
Q. Who was present at that time?
A. Linda Burk.
Q. Where were you located at?
A. I was sitting in Linda Burk's kitchen.
Q. Was [defendant] present?
A. Yes. He had brought his children back from visitation.
Q. What occurred on that occasion only as to what you said to [defendant] or [defendant] said to you?
A. I said to [defendant] that I heard you were going to cut me up into little pieces and scatter me all over Utah. [Defendant] replied to me that yes, that was very possible.
Because evidence of Burk's threat toward Wood was ultimately admitted without...
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