State v. Draper-Roberts

• Decision Date: 21 July 2016
• Docket Number: No. 20141057–CA,20141057–CA
• Citation: 2016 UT App 151,378 P.3d 1261
• Parties: State of Utah, Appellee, v. Dawn Ann Draper–Roberts, Appellant.
• Court: Utah Court of Appeals

378 P.3d 1261

2016 UT App 151

State of Utah, Appellee

v.Dawn Ann Draper–Roberts, Appellant.

No. 20141057–CA

Court of Appeals of Utah.

Filed July 21, 2016

John B. Plimpton and Steffen Soller, Attorneys for Appellant

Simarjit Gill and Craig N. Stanger, Attorneys for Appellee

Senior Judge Pamela T. Greenwood authored this Opinion, in which Judge J. Frederic Voros Jr. and Senior Judge Judith M. Billings concurred.¹

Opinion

GREENWOOD, Senior Judge:

¶1 Defendant Dawn Ann Draper–Roberts appeals after a jury found her guilty of theft, a class A misdemeanor. See Utah Code Ann. §§ 76–6–404, –412(1)(c)(i) (LexisNexis 2012). She argues that the trial court should have granted one or more of her several motions for a mistrial. We agree and therefore reverse and remand for a new trial.

BACKGROUND²

¶2 Defendant worked at a craft store, where she found a customer's purse in a shopping cart. Rather than immediately locking the purse in the store's safe, she put it in the store's classroom where there were locking cabinets and where she was working that day.

¶3 When the customer realized her purse was missing, she returned to the store and asked three employees if they had seen the purse. None of the employees reported knowing where the purse was. One of the employees—the acting manager—used the store's radio headset system to ask if any employees had found the purse. No one responded. The acting manager recorded the customer's contact information, and the customer left. The acting manager testified that she spoke to Defendant within a few minutes of the customer's departure, asking if she had seen the purse. According to the acting manager's testimony, Defendant indicated that she had not.

¶4 Meanwhile, at home, the customer used the Find My iPhone application on her iPad to determine the location of her iPhone, which was inside her missing purse. The application showed that her phone was still inside the craft store. She used the application to set off an alarm on her phone, and her husband informed police that she was returning to the store to look for her purse.

¶5 Around the same time, back at the store, Defendant brought the acting manager the customer's purse, from which the sound of the iPhone's alarm was emitting. The acting manager put the purse in the store safe. Police arrived, took possession of the purse, and “continued the investigation to obtain facts to write a report.” When the customer again returned to the store, police returned her purse to her; “nothing was missing from or disturbed in it.”

¶6 The officer who investigated the case questioned Defendant about where she found the purse and worked with her to obtain the store's surveillance video. The video showed that Defendant had found the purse in a different area of the store than where she had initially told the officer. At trial, the officer described Defendant as uncooperative, hostile, and suspicious.³

¶7 Also at trial and during the officer's testimony, it became apparent that the State possessed video retrieved from the officer's body camera (the body cam video) that Defendant had not been provided as part of the State's discovery. Defendant moved for a mistrial, arguing that “the video shows potentially exculpatory evidence” and that defense counsel “would have prepared for this trial in a completely different manner if [he] had the video available beforehand like [he] should have had.” Defense counsel further explained that even if the video was not exculpatory and was in fact incriminating, “it would change the way that [he] ask[ed] questions, how [he] approach[ed] the case, how [he] advise[d] [his] client as to her rights, [and] whether or not she should take a plea offer.”

¶8 The trial court denied Defendant's motion for a mistrial and instead gave “[d]efense counsel the evening and the rest of the afternoon to go over th[e] video as many times as he need[ed] to, to queue it up to where he need[ed] to ..., and to be ready for cross-examination [the next day].” The court then adjourned for the day at 2:45 p.m., with proceedings set to begin at 10:00 a.m. the following morning. When trial recommenced, Defendant renewed her motion for a mistrial, which the trial court again denied.

¶9 Aside from the revelation of the body cam video, two other events at trial are relevant to our review. During jury voir dire, the prosecutor named only three witnesses—the officer, the customer, and the store manager, who had been out of town during the events at issue—and those were the only witnesses about whom the court asked the jury, “Are any of you acquainted with or related to any of those people mentioned?” However, after defense counsel finished his opening statement, the State informed the court that the acting manager would also be testifying, explaining, “There is a witness that we did not think was available, that is.” When the prosecutor mentioned this fourth witness—the acting manager—defense counsel responded with what is only marked as “inaudible” in the transcript. The prosecutor responded, “She is in the police report,” to which defense counsel argued, “I asked him two days ago who the witnesses are going to be, and he named three witnesses.” The trial court allowed the acting manager to testify.

¶10 Finally, Defendant again moved for a mistrial after the State decided not to have the store manager testify. During Defendant's opening statement, defense counsel had previewed some of the exculpatory testimony he anticipated the store manager would provide. Namely, he expected the store manager to testify that she had known Defendant for ten years, that she knew Defendant to be a good employee, and that she had never had any problems with her. When the State announced that it would not have the store manager testify, Defendant objected, but the trial court released the witness because the State—and not Defendant—had subpoenaed her to testify. Defendant moved for a mistrial, arguing that the State opted not to have the store manager testify because it knew she would provide testimony beneficial to Defendant. The trial court denied the motion.

¶11 The jury found Defendant guilty of theft. She now appeals her conviction.

ISSUES AND STANDARDS OF REVIEW

¶12 Defendant raises four issues on appeal. First, she argues that the trial court erred by denying her motions for a mistrial to remedy the State's failure to give Defendant the body cam video before trial. “ ‘We review rulings on motions for a mistrial based on prosecutorial misconduct [i.e., discovery violations] for abuse of discretion.’ ” State v. Martinez , 2002 UT App 126, ¶ 16, 47 P.3d 115 (alteration in original) (quoting State v. Reed , 2000 UT 68, ¶ 18, 8 P.3d 1025 ).

¶13 Second, Defendant argues that the trial court erred when it allowed the acting manager to testify despite the State's failure to disclose her as a witness prior to trial. We review the trial court's decision to allow the acting manager to testify for an abuse of discretion.⁴ See State v. Perea , 2013 UT 68, ¶ 31, 322 P.3d 624 (“[W]e give the district court broad discretion to admit or exclude evidence, including lay witness testimony, and will disturb its ruling only for abuse of discretion.” (citation and internal quotation marks omitted)).

¶14 Third, Defendant argues that the trial court should have required the store manager—who had been subpoenaed by the State and was present at trial—to remain in court and testify, even though the State indicated it would not need her testimony. In her brief, Defendant suggests that we should review this issue for correctness, because the release of the store manager as a witness was based on the trial court's arguably incorrect “conclusion of law” “that a party cannot compel a witness who is present in court to testify without having subpoenaed the witness.” (Citing Utah R. Civ. P. 45(j) ; State v. Petersen , 810 P.2d 421, 425 (Utah 1991) ; McKelvey v. Hamilton , 2009 UT App 126, ¶ 17, 211 P.3d 390.) The State's brief is unhelpful in determining what standard of review applies, as it suggests that “[n]o standard of review applies.” After careful consideration of the parties' briefs and relevant law, we conclude that this particular question is one that should be reviewed for an abuse of discretion.⁵ See Miller v. Brocksmith , 825 P.2d 690, 693 (Utah Ct. App. 1992) (explaining that when an issue “involves the trial court's discretionary power, ... we will not disturb the trial court's decision in such matters absent a clear abuse of such discretion”). Defendant alternatively contends that the trial court should have granted the motion for a mistrial that she lodged after the trial court's release of the store manager. We also review this question for an abuse of discretion. State v. Decorso , 1999 UT 57, ¶ 38, 993 P.2d 837.

¶15 Finally, Defendant argues that “even if the errors raised [above] are not individually prejudicial, taken together they are cumulatively prejudicial.” “Under the cumulative error doctrine, we apply the standard of review applicable to each underlying claim of error ....” State v. McNeil , 2013 UT App 134, ¶ 16, 302 P.3d 844 (omission in original) (citation and internal quotation marks omitted), aff'd , 2016 UT 3, 365 P.3d 699.

ANALYSIS

¶16 For Defendant to succeed on any of her claims on appeal, she must show that the trial court abused its discretion. “Under the abuse of discretion standard, we determine whether the trial court's ruling was beyond the limits of reasonability. However, even if the trial court abused its discretion, we will reverse only if we find that the error is harmful.” State v. Archuleta , 850 P.2d 1232, 1240 (Utah 1993) (citations and internal quotation marks omitted).

An abuse of discretion occurs when, taking into account any remedial measures ordered by the trial court, the prejudice to the defendant still satisfies the standard for reversible error set forth in Rule 30 [of the Utah Rules of Criminal Procedure], and the remedial measures requested but

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