State v. Calliham

Decision Date16 August 2002
Docket NumberNo. 20000169.,20000169.
Citation2002 UT 86,55 P.3d 573
PartiesSTATE of Utah, Plaintiff and Appellant, v. Terril CALLIHAM, Defendant and Appellee.
CourtUtah Supreme Court

Mark L. Shurtleff, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, Craig C. Halls, San Juan County, for plaintiff.

Stephen R. McCaughey, Salt Lake City, for defendant.

DURHAM, Chief Justice:

¶ 1 Two brothers, Jordan and Terril Calliham (collectively, "the Calliham brothers"), were convicted of murder for the killing of their friend and classmate James Eaton ("Eaton"). Terril Calliham ("Terril") appeals,1 claiming that the trial court erred in denying his request for a psychological evaluation of the State's primary witness and in refusing to sever his trial from that of his brother. In addition, Terril claims that the trial court erred in denying his motions for a mistrial, that the trial court improperly removed two potential jurors for cause, that the prosecutor engaged in misconduct by arguing accomplice liability to the jury, and that the trial court erred in reading certain passages of the trial transcript to the jury at the jury's request after deliberations had begun. We affirm Terril's conviction.


¶ 2 Eaton, the Calliham brothers, and Misty Ernst ("Ernst"), the girlfriend of Jordan Calliham ("Jordan"), were residents of Dove Creek, Colorado. In April 1999, when Eaton's parents could not locate him, they filed a missing persons report with the county sheriff's department. Six days later, Eaton's body was found near Ucolo Road, approximately a mile inside the Utah border. He had been shot at least nineteen times. Following a criminal investigation, the Calliham brothers were arrested and charged with murder.

¶ 3 At trial, the State offered evidence suggesting the following fact scenario. Eaton and Jordan were best friends; however, Jordan suspected that Eaton had stolen some drugs from him. On the evening of April 3, 1999, Eaton joined Terril, Jordan and Ernst on a drive to a nearby town where they planned to purchase illegal drugs. The group had planned to make the purchase in Cortez, but Ernst suggested they could buy drugs cheaper in Monticello, so they headed in that direction. While driving, Eaton suggested they smoke a joint of marijuana. Jordan whispered to Ernst to not let them smoke in the car.2 Ernst complied, and Eaton suggested they turn onto Ucolo Road and park the car. After parking, Ernst stayed at the car, while the three men went beyond a grove of trees to smoke the joint. Ernst at first heard them laughing; then she heard a gun shot, followed by a volley of fifteen or more shots. During the shots, Ernst heard Eaton crying and asking, "Why did you kill me?" After a brief pause, Ernst heard a final shot. When the Calliham brothers came running back to the car, Ernst asked if Eaton was dead. Jordan stated he had "finished James off in the head" and that he had fired the final shot after clearing a gun jam. He also explained how Eaton had tried to shield himself from the bullets with his hands. Terril stated that Eaton did not immediately fall when he shot him and that he had thought he might have to kick Eaton over.

¶ 4 After the murder, the Calliham brothers split up, in an apparent effort to establish alibis. Terril was dropped off in Dove Creek, while Jordan and Ernst drove to Cortez. Just after dropping off Terril, Jordan called Terril on his cell phone to make it look as though Jordan were already in Cortez. After arriving in Cortez, Jordan spoke with a friend, Michael Gentry ("Gentry"), while Ernst waited in the car. Asked how things were going, Jordan told Gentry he had "solved his problems" and gestured as though he were pulling the trigger of a gun. Jordan asked Gentry to tell anyone who asked that Jordan had been there that night. When he returned to the car, Jordan told Ernst that he had told Gentry "what him [i.e., Jordan] and Terril had done."

¶ 5 That evening, Jordan showed Ernst the blood-spattered guns he and Terril had used in the shooting. Later, while in jail awaiting trial, Jordan admitted to other prisoners that he had been involved in the killing, showed them how he had held his gun, and imitated the way Eaton's body vibrated as it was impacted by bullets.

¶ 6 At trial, Terril offered evidence that he was not present when the murder took place. The Calliham brothers also offered evidence to show that Ernst, the State's primary witness, had made inconsistent statements about the killing and had a reputation in the community for being dishonest. In addition, they offered evidence to suggest that someone other than the Calliham brothers had a motive to kill Eaton and had threatened to kill Eaton.

¶ 7 At the close of a three-day trial, the jury found Jordan and Terril guilty of criminal homicide.


¶ 8 Terril, Jordan, and Ernst were charged with criminal homicide, a first-degree felony, under Utah Code Ann. § 76-5-203 (2001). When Ernst agreed to testify for the State, the charge against her was reduced to attempted obstruction of justice, to which she pled guilty. After a preliminary hearing, the Calliham brothers were bound over for trial.

A. Pretrial Motions

¶ 9 The Calliham brothers made a number of pretrial motions. Terril moved to have his trial severed from that of his brother.3 The court denied the motion to sever, stating that Terril had failed to demonstrate that he would be prejudiced by a joint trial. The court stated that its ruling might be reconsidered if and when the prosecution decided to use statements of either defendant at trial.

¶ 10 Jordan moved to require Ernst to submit to a psychological evaluation, and Terril joined in the motion. They argued that Ernst's testimony at the preliminary hearing suggested that she experienced hallucinations, had difficulty distinguishing dreams from reality, and manifested a propensity to lie. Ernst opposed the motion, stating that she had no history of mental illness and that any inconsistencies in her testimony at the hearing were due to normal emotional turmoil. The court denied the motion for an evaluation. It held that there was no evidence that Ernst had suffered from mental illness in the past and that the hearing transcript gave no indication that she was unable to differentiate dreams from reality or to testify truthfully. The court stated that "absent evidence of actual mental illness, the court will not order an examination to fish for it."

¶ 11 Jordan also moved to exclude from evidence crime scene and autopsy photographs of the victim. He argued that the photos were gruesome, would unfairly prejudice the jury, and were of no probative value because the manner in which the victim died was not disputed. The State argued that the photographs were essential to bolster its prosecution witnesses' testimony about where and how the crime occurred. The court denied the motion with regard to the crime scene photographs but granted it with respect to all but two autopsy photos. It held that the crime scene photographs were not gruesome and that the two autopsy photographs were highly relevant to showing that the final wound was inflicted at close range.

B. Renewed Motion for Severance and Motions for Mistrial

¶ 12 Prior to trial, the Calliham brothers anticipated that the State planned to introduce the testimony of persons who had been in jail with Jordan. These informants were expected to testify about inculpatory statements made by Jordan while in jail. Upon finding that the State planned to use this testimony, Terril renewed his motion for severance, claiming that admission of Jordan's statements would prejudice Terril.4

¶ 13 In an unrecorded conference before trial, the parties discussed the admission of this testimony with the court. The court determined that because Jordan was not going to testify, use of Jordan's statements against Terril would violate Terril's constitutional right to confront the witnesses against him. The court therefore ruled that the witnesses could testify to Jordan's statements, but that the testimony must be limited so that it would not mention or implicate Terril. The witnesses were to be instructed that, when relating Jordan's admissions, the witnesses must replace Jordan's pronoun "we" with "I." Also, to ensure that the witnesses did not inadvertently implicate Terril, the court instructed counsel to lead the witnesses. Further, the court instructed Jordan's counsel that she could not cross-examine in a way that might elicit from the witnesses any testimony that Jordan had said there was another person with him at the time of the killing.

¶ 14 The court later repeated its ruling on the record. Jordan objected to the redactions in his statements, arguing that the redaction prevented him from arguing that he was merely a passive observer when the killing took place. Jordan also objected to the court's decision to allow the State to use leading questions and to the limits the court imposed on the scope of cross examination.5 The court overruled the objections, holding that the redaction was in no way prejudicial because the statements in their original form did not suggest that Jordan had merely been an observer.

¶ 15 At trial, the State's first witness was Ernst. During direct examination, Ernst testified that after the murder, Jordan told her that he had told Gentry "what him [i.e., Jordan] and Terril had done." Immediately following Ernst's testimony, Terril moved for a mistrial. Terril argued that Ernst's failure to omit reference to Terril in recounting Jordan's statement was in violation of his constitutional rights because it inculpated Terril without giving him an opportunity to cross-examine Jordan about the statement. The court denied the motion, holding that the reference to Terril had no prejudicial effect. Ernst had already implicated Terril directly in describing the killing; thus, if the jury believed her...

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