State v. Chambers

• Decision Date: 21 October 1985
• Docket Number: 19152,Nos. 19151,s. 19151
• Citation: 709 P.2d 321
• Parties: STATE of Utah, Plaintiff and Respondent, v. James D. CHAMBERS, Stanley Ned Jacobsen, and J.D. (last name unknown), Defendants and Appellant. STATE of Utah, Plaintiff and Respondent, v. James D. CHAMBERS, Stanley Ned Jacobsen, and J.D. (last name unknown), Defendants and Appellant.
• Court: Utah Supreme Court

Page 321

709 P.2d 321

STATE of Utah, Plaintiff and Respondent, v. James D. CHAMBERS, Stanley Ned Jacobsen, and J.D. (last name

unknown), Defendants and Appellant.

STATE of Utah, Plaintiff and Respondent, v. James D. CHAMBERS, Stanley Ned Jacobsen, and J.D. (last name

unknown), Defendants and Appellant.

Nos. 19151, 19152.

Supreme Court of Utah.

Oct. 21, 1985.

Rehearing Denied Nov. 7, 1985.

Thomas A. Mitchell, Kenneth R. Brown, Salt Lake City, J. Bruce Savage, Park City, for defendants and appellants.

David L. Wilkinson, Dave B. Thompson, Salt Lake City, Terry Christiansen, Park City, for plaintiff and respondent.

DURHAM, Justice:

Defendants James Chambers and Stanley Jacobsen appeal from a conviction of burglary, a second degree felony under U.C.A., 1953, § 76-6-202, and theft, a second degree felony under U.C.A., 1953, § 76-6-404. We reverse the convictions and remand for a new trial.

On January 6, 1983, an informant contacted officers of the Park City Police Department and told them that a burglary had taken place in the vicinity of Park City. The informant stated that he knew who had committed the crime. Police officers met with the informant, who offered to take the officers to the residence where the stolen items were being held. At that meeting, the informant said that some of the items involved in the burglary were stereos with speakers, video cassettes, televisions, and clothing. The informant then took the officers to the residence of James Chambers. The informant also arranged a meeting between defendants and a Park City Police officer operating under cover; the purpose of the meeting was to have the undercover officer make a "buy" of some of the stolen property from defendants. On January 7, the officer, the informant, and defendants met at the informant's apartment. After some conversation in which defendants expressed concern about the possible presence of police in the area, defendants took the officer outside to a car and showed him a video cassette recorder which the officer bought for $200.

Also on January 7, a burglary was reported by a Summit Park resident, Richard Thompson. Mr. Thompson had returned home that day after a business trip and discovered that his home had been burglarized. He reported missing a Sony video cassette recorder, a cassette deck, stereo equipment, a pistol, a leather coat, and a pair of Tony Lama cowboy boots. Mr. Thompson later identified the video cassette recorder purchased from defendants as the one missing from his home.

On January 10, 1983, an officer of the Park City Police Department obtained a search warrant for defendant Chambers' residence. Defendant Jacobsen was also living in the residence at the time. Pursuant to the warrant, officers searched the home and seized one pair of Tony Lama boots and a .22 caliber pistol. At trial, Mr. Thompson identified the pistol and the boots as those stolen from his home.

Prior to trial, defendants filed a motion to suppress the evidence seized pursuant to the search warrant. They also filed a motion to require the State to disclose the identity of the confidential informant. Both motions were argued before the trial court and were subsequently denied.

At trial, defendants presented testimony which sought to establish their whereabouts at the time of the crime. Defendants also presented evidence in explanation of their possession of the video cassette recorder, the pistol, and the cowboy boots.

On appeal defendants raise five issues: invalidity of the search warrant, denial of due process by the court's failure to require the State to disclose the identity of the confidential informant, two constitutional errors in connection with jury instructions, and insufficiency of the evidence.

Defendants' first argument is that the trial court erred by not suppressing the evidence seized pursuant to the search warrant; defendants claim that the underlying affidavit was not sufficient based on the two-pronged test established in Aguilar v. State of Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), and followed in Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). Defendants concede that under the "totality of the circumstances" test articulated by the United States Supreme Court in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), the affidavit would have been sufficient. However, defendants contend that the Gates test is not the appropriate test to be applied in this case, because the Gates test was prospective only. In particular, defendants rely on the following language:

For all of these reasons, we conclude that it is wiser to abandon the "two-pronged test" established by our decisions in Aguilar and Spinelli. In its place, we reaffirm the totality of the circumstances analysis that traditionally has formed probable cause determinations.

462 U.S. at 238, 103 S.Ct. at 2332 (footnote and citations omitted). It is this very language, however, that indicates that the totality of the circumstances test is the traditional analysis and that the two-pronged test was a supplementary standard which was superimposed on the traditional test. By "reaffirming" the traditional analysis in effect, Gates stripped away certain refinements and retained the simpler totality of the circumstances test, thereby returning probable cause analysis to its traditional basis. Further, in Massachusetts v. Upton, 466 U.S. 727, 104 S.Ct. 2085, 80 L.Ed.2d 721 (1984), the Supreme Court retroactively applied the Gates test to determine the validity of a search warrant issued in September 1980, almost three years prior to the announcement of the Gates decision. We find, therefore, that the application of the totality of the circumstances test was proper here.

Defendants next contend that they were denied due process of law because the trial court failed to require the State to disclose the identity of the confidential informant. Rule 36 of the Utah Rules of Evidence, which was applicable at the time of trial, provides:

A witness has a privilege to refuse to disclose the identity of a person who has furnished information purporting to disclose a violation of a provision of the laws of this state or of the United States to a representative of the state or the United States or governmental division thereof, charged with the duty of enforcing that provision, and evidence thereof is inadmissible, unless the judge finds that (a) the identity of the person furnishing the information has already been otherwise disclosed or (b) disclosure of his identity is essential to assure a fair determination of the issues.

Utah R.Evid., Vol. 9B, U.C.A., 1953 (1977).

In State v. Forshee, Utah, 611 P.2d 1222 (1980), we said, "There are two exceptions to the general privilege of nondisclosure of an informer's identity. Disclosure is required (1) when the informer's identity is already known, and (2) when disclosure is essential 'to assure a fair determination of the issues.' " Id. at 1224 (citing from Rule 36, Utah R.Evid.). Because it was evident that the defendant in that case knew the identity of the informant, we further said:

However, it is defendant's very knowledge of the informer's identity that further served to vitiate any prejudice that may have otherwise resulted from the lower court's failure to require disclosure. Thus, the court's failure to require disclosure of the informer's identity, in any event, is at best harmless error.

Id. at 1225 (citation omitted). From our review of the record it is equally evident that defendants in this case were aware of the identity of the confidential informant. ¹ Therefore, we conclude that Forshee is dispositive and that defendants' claim is without merit.

Defendants raise two issues concerning the jury instructions that were given at trial. Defendants' claims focus on jury instruction No. 18 which contained the following:

A person commits theft if he obtains or exercises unauthorized control over the property of another with the purpose to deprive him thereof.

Possession of property recently stolen, when no satisfactory explanation of such possession is made, shall be deemed prima facie evidence that the person in possession stole the property.

This instruction is in part based on U.C.A., 1953, § 76-6-402(1). Defendants first contend that instruction No. 18 improperly comments upon a defendant's failure to testify and that it penalizes the accused for exercising the constitutional right to remain silent. On that basis, defendants argue that the jury instruction was improper and that the underlying statute is unconstitutional. Defendants' second claim is that the instruction shifts the burden of proof to defendants and is therefore inconsistent with defendants' rights to be presumed innocent.

Defendants' first argument, that the instruction infringes on federal Fifth Amendment rights, is not persuasive. Nothing in the instruction required testimony by defendants, because an explanation of possession could have been made by the testimony of other witnesses or by other evidence. In a similar situation, the United States Supreme Court found this argument to be without merit: "Petitioner also argues that the permissive inference in question infringes his privilege against self-incrimination. The Court has twice rejected this argument." Barnes v. United States, 412 U.S. 837, 846, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973). ² Therefore, we conclude that defendants' argument on this point is not compelling. See also Annot., 88 A.L.R.3d 1178 (1978) (indicating the trend established in recent cases that instructions such as the one in question do not constitute an improper comment by the court on the defendant's failure to testify, and do not violate the privilege against self-incrimination).

Defendants' second claim regarding the jury instructions is more problematic. Defendants argue that instruction No. 18 violates their rights to a presumption of...