State v. Creviston

• Decision Date: 19 May 1982
• Docket Number: No. 17998,17998
• Parties: STATE of Utah, Plaintiff and Respondent, v. Allen CREVISTON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 750

646 P.2d 750

STATE of Utah, Plaintiff and Respondent, v. Allen CREVISTON, Defendant and Appellant.

No. 17998.

Supreme Court of Utah.

May 19, 1982.

Ralph C. Amott, Provo, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

In this case, the appellant, Creviston, appeals from a conviction of selling a controlled substance, for which he was sentenced to a term of not less than one and not more than 15 years in the Utah State Prison.

Creviston and another, Kathi Tuning, were charged with a violation of § 58-37-8(1)(a)(ii) U.C.A., 1953. The complaining witness was an Orem City police officer who had purchased one ounce of cocaine for $100 from the defendants in his role as an undercover agent. He testified that Creviston told him that Creviston could obtain some cocaine for him if the officer would contact Tuning. When the officer contacted Tuning, she telephoned Creviston and arrangements were made for the three to meet in Tuning's apartment for the sale. The officer testified that he saw Creviston pass the cocaine to Tuning who handed it to him, and that when he attempted to give the money to Creviston, Creviston requested him to give it to Tuning who passed it to Creviston. The defendants' trials were severed.

The appellant, Creviston, raises seven points in this appeal. First, Creviston alleges that the trial court erred when it refused to grant a continuance. The original trial date of July 16, 1981 was vacated on the court's own motion with a note that trial would be reset "as soon as possible." On August 13, 1981, before a new trial date had been set, Creviston brought a motion before the court asking that his trial be set for a date following the Tuning trial. Creviston stated that Tuning was the "key witness" in his defense, but if called to testify before her own trial, her attorney would advise her to "take the Fifth." At that time, Tuning's trial was set for September 3, 1981. The court denied the motion and trial was set for August 19, 1981.

It is well established in Utah, as elsewhere, that the granting of a continuance is at the discretion of the trial judge, whose decision will not be reversed by this Court absent a clear abuse of that discretion. State v. Moosman, Utah, 542 P.2d 1093 (1975). Abuse may be found where a party has made timely objections, given necessary notice and made a reasonable effort to have the trial date reset for good cause. Griffiths v. Hammon, Utah, 560 P.2d 1375 (1977). When a defendant in a criminal action moves for a continuance in order to procure the testimony of an absent witness, such a defendant must show that the testimony sought is material and admissible, that the witness could actually be produced, that the witness could be produced within a reasonable time, and that due diligence has been exercised before the request for a continuance. See, e.g., State v. Hartman, 101 Utah 298, 119 P.2d 112 (1941); State v. Freshwater, 30 Utah 442, 85 P. 447 (1906); State v. Reese, 25 Or.App. 231, 548 P.2d 998 (1976); People v. Dalton, 201 Cal.App.2d 396, 20 Cal.Rptr. 51, 95 A.L.R.2d 628 (1962). The defendant did not meet these requirements: his motion stated only that Tuning's testimony was "vital." In the affidavit which accompanied the motion, his counsel stated that while Creviston had no way of knowing how Tuning would testify, it was Creviston's opinion that if called to testify after her own trial, she would "testify in his behalf." A trial court must be able to pass upon the materiality of the testimony before granting a continuance. Where the content of the prospective witness' testimony is speculative or likely to be inadmissible, it is not an abuse of discretion to deny a continuance. State v. Derum, 76 Wash.2d 26, 454 P.2d 424 (1969). Further, Creviston could not show whether the witness could be produced within a reasonable time. A continuance for such time as Tuning might have had need of the Fifth Amendment privilege against self-incrimination could have meant a delay of many months or even years if an appeal were taken, since a defendant's ability to claim Fifth Amendment protection is preserved through post-conviction proceedings. Ottomano v. United States, 468 F.2d 269 (1st Cir. 1972), cert. den. 409 U.S. 1128, 93 S.Ct. 948, 35 L.Ed.2d 260 (1973); People v. St. Onge, 63 Mich.App. 16, 233 N.W.2d 874 (1975). In addition, it is questionable whether Creviston exercised due diligence in ascertaining the value or availability of Tuning's testimony, or in moving for a continuance. The motion was not brought until nearly a month after the original trial date. While the instant circumstances do not appear to be common, we note that in Hammett v. State, 84 Tex.Crim.Rep. 635, 209 S.W. 661 (1919), the court refused to postpone a trial until after the trial of another charged with the same offense. In that case, each of the defendants had requested postponement in order to secure the testimony of the other. Had the trial court granted a continuance in the instant case, it is difficult to see how a similar motion by Tuning could have been denied, thus subjecting the court to endless delays.

Our review of the propriety of the trial court's action has necessarily been confined to those issues and documents before the trial court at the time of the denial of the motion. Nevertheless, we note that on September 24, 1981, after the completion of both trials, Tuning signed an affidavit in which she contradicted the testimony of the police officer at Creviston's trial. She denied that he had ever seen Creviston give her drugs to pass to him (the police officer) or that he had ever seen her pass money on to Creviston. Such testimony is far from exonerating Creviston from any participation in the transaction and in fact, would tend only to impeach the police officer's testimony with regard to one aspect of the transaction. Even if Creviston had proffered this statement of Tuning's testimony with his motion for continuance, it would have been within the sound discretion of the trial court to deny the motion. It is not an abuse of discretion to deny a motion for continuance when the testimony sought is only for impeachment purposes. State v. Boone, Utah, 581 P.2d 571 (1978); State v. Griffin, 117 Ariz. 54, 570 P.2d 1067 (1977).

We affirm the trial court's ruling on the motion for a continuance.

In his second point, Creviston argues that the trial court erred in not granting a motion in limine regarding Tuning's testimony. After the denial of his motion for a continuance, Creviston brought a motion in limine asking the court to determine whether he could ask Tuning on direct examination if he had ever handed any drugs to her or received money from her in the presence of the police officer, without raising the issue of her Fifth Amendment rights. Apparently, Creviston hoped to be able to obtain Tuning's testimony without exposing her to cross-examination by the prosecution. The trial court could neither disallow cross-examination nor compel the witness to answer. Even without cross-examination, Tuning could not have answered the proposed question without incriminating herself. The trial court's denial of the motion was proper and is affirmed.

In his third point, Creviston alleges error in testimony given by the undercover police officer which referred to $2,400 which the defendant owed to "the State Narcotics and Provo City Police Department." Creviston argues that the two references to this debt caused the jury to perceive him as a "regular trafficker in drugs or an otherwise hardened criminal." The trial court cautioned the witness but denied the defendant's motion for a mistrial, stating that the brief reference before the jury had not prejudiced the defendant. It does not appear from the record that the testimony was such as to give rise to the extreme inferences Creviston alleges. We affirm the trial court's ruling on this point.

For similar reasons, we also affirm the ruling complained of in the appellant's fourth point. That ruling concerned allegedly prejudicial and improper statements made by the prosecutor in his closing arguments. Specifically, Creviston objects to the prosecutor's statement that even if Creviston had not been present when Tuning gave the cocaine to the officer and received the money from him, "we have still got a sale. The defendant is still guilty." Creviston also objects to the prosecutor's reference to the "problem that we have with drugs in our community." Considerable latitude is allowable in closing argument. Counsel may discuss fully both the evidence and all legitimate inferences arising from the evidence. Such argument may merit reversal if (1) the remarks called to the jurors' attention matters which they would not be justified in considering in reaching a verdict, and (2) under the circumstances, the jurors were probably influenced by the remarks. State v. Valdez, 30 Utah 2d 54, 60, 513 P.2d 422, 426 (1973). In this case, the prosecutor's comments regarding the significance of Creviston's presence or absence at the sale were in direct response to the defense Creviston himself raised and are not outside the permissible range allowable in closing argument. The same may be said of the reference to the community drug problem. The prosecutor did not imply that the defendant was responsible for the community's problem. The comment reasonably called to the jury's attention the seriousness of the issues and their own duties. Finally, the court, in instruction number three, cautioned the jury to consider only the evidence and to disregard ...