State v. Dibello

• Citation: 780 P.2d 1221
• Decision Date: 24 August 1989
• Docket Number: No. 860220,860220
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jerry J. DIBELLO, Defendant and Appellant.
• Court: Supreme Court of Utah

Page 1221

780 P.2d 1221

STATE of Utah, Plaintiff and Appellee, v. Jerry J. DIBELLO, Defendant and Appellant.

No. 860220.

Supreme Court of Utah.

Aug. 24, 1989.

Rehearing Denied Oct. 24, 1989.

Kenneth R. Brown, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant Jerry J. Dibello appeals from his conviction of second degree murder, a first degree felony. Utah Code Ann. § 76-5-203 (Supp.1988). Dibello raises four arguments on appeal. He claims that the trial court erred in (i) determining that there was sufficient evidence to submit the case to the jury, (ii) denying his post-conviction motion for a new trial based on prosecutorial misconduct in the closing statement, (iii) allowing certain state-of-mind hearsay to be admitted into evidence, and (iv) allowing a portion of a videotape of the crime scene that dwelled on the victim's body and wounds to be admitted into evidence and viewed by the jury during its deliberations. We reject his contentions and affirm the conviction.

We set out the pertinent facts in some detail because of Dibello's insufficiency-of-the-evidence claim and state them in a manner most favorable to the jury's verdict. State v. Verde, 770 P.2d 116, 124 (Utah 1989). On the morning of Sunday, July 21, 1985, the body of Tammy Dibello was found by a neighbor in the trailer she had until recently shared with her husband, defendant Jerry J. Dibello, at the S & W Trailer Park in Lakepoint, Tooele County, Utah. She had been beaten and stabbed. The medical investigators, who arrived around noon, determined that Tammy was killed sometime between 9:00 Saturday night and 4:00 Sunday morning. Jerry and Tammy had separated six days earlier, on July 15, 1985, at which time Jerry moved out of the trailer. That same day, Jerry and another trailer park resident had fought over a minor automobile accident. Jerry suffered some cuts to his face and ear during the fight. For the next few days, Jerry camped out at night or stayed with his daughter, her husband, and another couple at an apartment they shared in West Jordan. On July 20th, Jerry's daughter asked him to leave because his presence bothered the couple with whom they shared the apartment. He left. Around 10:00 or 10:30 that evening, Jerry returned to the trailer park, found Tammy at another trailer with some friends, and left with her to go to their trailer so that he could pick up some of his clothes. A few neighbors heard what they perceived to be a loud argument coming from the Dibello trailer at approximately 11:00 to 11:30 p.m. This argument appeared to end abruptly after a few minutes, followed by a door slam and the sound of a loud vehicle, possibly a pickup truck, driving off. A neighbor went over to the dimly lit Dibello trailer around 11:30 p.m. and knocked on the door, but received no response. The same neighbor returned to the trailer around 9:30 the following morning and saw bloodstains on the door. When he looked through the front window, he saw Tammy's body lying on the living room couch. She appeared to have been beaten and stabbed. The neighbor called the police.

Experts later determined that fingerprints made in the blood smeared on the trailer door matched those on four fingers of Jerry's left hand. The amount of blood on the door was insufficient to permit blood typing. Jerry was arrested the next day. Traces of human blood were found on his chest, left arm and hand, and right thumb, although not enough to allow blood typing. Traces of blood that could not be positively identified as human were found on Dibello's right hand, right arm, and left front thigh. The driver's side door handle, driver's side window crank, steering wheel, ignition keys, gear shift, seat, and most of the dashboard switches of Jerry's pickup truck tested positive for blood, some of which was identified as human and some of which was unidentifiable. Again, there was not enough blood to permit typing. Other physical evidence consisted of head hairs with characteristics similar to Jerry's hair found between Tammy's fingers.

At trial, Jerry's daughter and other trailer park residents testified that Jerry and Tammy had had loud arguments in the past and that on occasion Jerry had been violent with Tammy. There was also testimony tending to show that Tammy expressed fear of Jerry during the week between their separation and her death and that Jerry told a neighbor shortly before he and Tammy separated that he would kill her if she ever left him. Jerry was convicted of second degree murder and sentenced to five years to life.

On appeal, Jerry first contends that there was insufficient evidence to warrant sending the case to the jury. This Court reviews such challenges under the same standard applied to a claim that insufficient evidence exists to support a jury verdict. We will uphold the trial court's decision if, upon reviewing the evidence and all inferences that can be reasonably drawn from it, we conclude that some evidence exists from which a reasonable jury could find that the elements of the crime had been proven beyond a reasonable doubt. See State v. Verde, 770 P.2d 116, 124 (Utah 1989); State v. Marcum, 750 P.2d 599, 601 (Utah 1988); State v. Pierce, 722 P.2d 780, 781 (Utah 1986). Applying this standard, in light of the evidence related above, we conclude that the trial court did not err in submitting the case to the jury for decision.

Jerry's second claim is that the trial court erred in denying his motion for a new trial. See Utah R.Crim.P. 24 (codified at Utah Code Ann. § 77-35-24 (1982), repealed effective July 1, 1990). This motion was based on Jerry's claim that remarks made by the prosecutor during the closing argument improperly criticized Jerry's counsel's tactics and improperly implied that the prosecutor personally believed Jerry to be guilty. Counsel for both sides have considerable latitude in their closing arguments. They have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports. State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988); State v. Valdez, 30 Utah 2d 54, 60, 513 P.2d 422, 426 (1973). Nonetheless, counsel exceeds the bounds of this discretion and commits error if he or she calls to the jury's attention material that the jury would not be justified in considering in reaching its verdict. E.g., State v. Troy, 688 P.2d 483, 486 (Utah 1984); Valdez, 30 Utah 2d at 60, 513 P.2d at 426. Such conduct warrants reversal if the appellate court concludes that absent the improper argument, there was a reasonable likelihood of an outcome more favorable to the defendant. See Utah R.Crim.P. 30 (codified at Utah Code Ann. § 77-35-30 (1982), repealed effective July 1, 1990); State v. Rimmasch, 775 P.2d 388, 407 (Utah 1989); State v. Verde, 770 P.2d at 122; State v. Bell, 770 P.2d 100, 106 (Utah 1988); State v. Hackford, 737 P.2d 200, 204 n. 1 (Utah 1987); State v. Knight, 734 P.2d 913, 919-20 (Utah 1987).

In considering Jerry's claims under this standard, we will consider separately the two allegedly offensive remarks. The first challenge relates to the prosecutor's remarks about defense counsel's strategy. During trial, the defense introduced expert testimony to explain why the fingerprints left in the bloodstains on the Dibello trailer door were not Jerry's. When Jerry got on the stand, he testified that if they were his, they got there entirely innocently. The prosecutor argued to the jury that a logical inference from the defense's putting on this arguably inconsistent evidence is that Jerry made up his story about how the fingerprints got on the trailer after his counsel put on the expert evidence and without telling his counsel the story. The prosecutor mused that that could be the only explanation for defense counsel's presenting inconsistent factual theories. ¹ Defense counsel objected to the argument as improper because it called into question defense counsel's state of mind. The trial judge sustained the objection and instructed the jury to disregard the remarks. ² On appeal, Jerry's counsel argues that the prosecutor's remarks were so prejudicial that an admonition could not cure them; a new trial should have been granted.

Assuming the prosecutor's remarks were error, we are not convinced that they were so prejudicial as to require that a new trial be granted. The only arguably improper part of the prosecutor's remarks was the reference to defense counsel's state of mind, and while that was irrelevant to the jury's consideration of Jerry's guilt, the mention of it was hardly likely to produce a different result. It is true that the prosecutor called attention to the alternative factual theories of the defense, but that was not impermissible. While a defendant does have the right to assert inconsistent defenses, State v. Mitcheson, 560 P.2d 1120, 1122 (Utah 1977), there is nothing improper in calling the jury's attention to this factual inconsistency as undermining a defendant's credibility.

The second challenge relates to the prosecutor's remarks during rebuttal. In summarizing his view of the evidence and how it bore on Jerry's credibility, he repeatedly prefaced his statements with "I think." The assertion of personal knowledge or opinion about the facts by counsel is improper. Lafferty, 749 P.2d at 1255. ³ On appeal, Jerry contends that the prosecutor's comments ran afoul of this rule and constituted harmful error. Whatever merit there may be to this claim of error, the fact is that the defense made no objection at trial to these remarks. Therefore, the issue has not been properly preserved for appeal. ⁴ See Utah R.Evid. 103(a); State v. Eldredge, 773 P.2d 29, 34-35 (Utah 1989); State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986).

The next challenge to the verdict is a claim that the trial court erred in admitting certain state-of-mind hearsay. This evidence...