State v. Duran

• Decision Date: 04 August 2011
• Docket Number: No. 20090943–CA.,20090943–CA.
• Citation: 688 Utah Adv. Rep. 6,2011 UT App 254,262 P.3d 468
• Parties: STATE of Utah, Plaintiff and Appellee,v.Anthony Joseph DURAN, Defendant and Appellant.
• Court: Utah Court of Appeals

262 P.3d 468

688 Utah Adv. Rep. 6

2011 UT App 254

STATE of Utah, Plaintiff and Appellee,

v.Anthony Joseph DURAN, Defendant and Appellant.

No. 20090943–CA.

Court of Appeals of Utah.

Aug. 4, 2011.

Samuel P. Newton, Ogden, for Appellant.Mark L. Shurtleff and Marian Decker, Salt Lake City, for Appellee.Before Judges McHUGH, THORNE, and ROTH.

OPINION

McHUGH, Associate Presiding Judge:

¶ 1 Anthony Joseph Duran appeals his convictions for burglary, a first degree felony, and theft, a third degree felony. He argues first that the trial court erred in denying his motion for a mistrial both because he was entitled to have the jury determine whether he was a habitual violent offender (HVO) and because a testifying police officer improperly referred to his criminal history. Duran also claims that the trial court committed plain error in not sua sponte declaring a mistrial when a police officer testified about Duran's invocation of his right to remain silent. We affirm.

BACKGROUND

¶ 2 On the morning of June 28, 2007, the police were investigating two home break-ins in an Ogden neighborhood near Weber State University. Duran was spotted by police officers and attempted to flee, but was later arrested in the parking lot of a nearby business. Although Duran claimed to be in the area looking for “college girls,” he was wearing clothing taken from one of the homes that had been burgled. The arresting officers found the homeowner's ATM card and other belongings in the pocket of the pants Duran was wearing. Based on this information, and other circumstantial evidence linking Duran to the other burglarized home, Duran was charged with two counts of burglary, see Utah Code Ann. § 76–6–202 (2008),¹ and two counts of theft, see id. § 76–6–404. In addition, the State notified Duran that it would be seeking an HVO enhancement under Utah Code section 76–3–203.5 (HVO statute) because of Duran's prior convictions. See id. § 76–3–203.5 (Supp. 2010).

¶ 3 During opening statements, both the prosecutor and Duran's defense counsel mentioned that Duran had outstanding warrants for his arrest. Specifically, defense counsel used the existence of the warrants to explain why Duran was nervous and fled from the police. Defense counsel's opening statement also intimated that because the officers did not find the ATM card the first time they “searched” Duran, their police work was “sloppy,” and he further mentioned that Duran initially agreed to talk to police, but asked for an attorney and invoked his right to remain silent after the officers found the ATM card in the pants he was wearing.

¶ 4 During direct examination, the prosecutor asked one of the officers (first officer) about Duran's reaction when confronted with the ATM card. The first officer responded that Duran “indicated he wanted to talk to a lawyer before we questioned him further.” Defense counsel did not object, instead reiterating this testimony during cross-examination by obtaining the first officer's affirmation of the statement: “And [Duran] says at this point I'm not going to talk ... anymore about it. I want an attorney.”

¶ 5 In addition, defense counsel's cross-examination of another police officer (second officer) included a request to read a portion of his police report in which he noted Duran's existing warrants to the jury. Defense counsel also cross-examined the second officer about his failure to discover the ATM card immediately upon apprehending Duran, again implying inferior police work.

¶ 6 On redirect examination, the prosecutor asked the second officer to explain the difference between an initial weapons frisk and a subsequent search, presumably to explain why the ATM card was not found until the search. The second officer replied, “I knew the background of Mr. Duran. I've heard a lot of case information about him. Um, and so I thought he possibly could be armed, committing burglaries et cetera. So I did a pat down frisk of him initially.” Defense counsel made no objection to this statement.

¶ 7 During the second day of trial, the court and attorneys discussed whether the issue of the HVO enhancement was to be decided by the judge or the jury. The court stated, “[B]efore we look at jury instructions, it's my understanding that if the jury convicts, the question about the habitual criminal and all the enhancements, that is not an issue for the jury to decide.” ² Defense counsel agreed, stating, “No, it is not.... [N]ot only the habitual criminal but also the issue of prior convictions on the theft.” During this discussion and later conversations regarding the application of the HVO statute, the trial court and the parties agreed that Duran's HVO status and the question of whether he had any prior convictions were issues for the court to decide.

¶ 8 During closing argument, defense counsel suggested that Duran had broken into the second home not to commit theft, but to secure a disguise, because he was nervous that the police officers were looking for him due to his outstanding warrants. Defense counsel then reminded the jurors that Duran agreed to talk to the police until the officers found the ATM card in the pocket of the homeowner's misappropriated pants, at which point Duran asked for an attorney and invoked his right to remain silent. The defense argued that these facts showed that Duran was surprised by the discovery of the ATM card in the pocket of the purloined pants and, therefore, established that Duran had no intention of stealing the card.

¶ 9 After the jury was charged and had begun its deliberations, Duran alerted defense counsel that the second officer's explanation of why he performed a weapons frisk included references to Duran's criminal background. Although defense counsel brought Duran's concerns to the trial court's attention, defense counsel stated that he was not sure whether to move for a mistrial then or after the jury reached a verdict. The trial court responded that the issue was preserved and even if defense counsel made the motion immediately, the court would simply take it under advisement until after the jury returned a verdict.

¶ 10 The jury found Duran guilty of one count of burglary and one count of theft, both arising out of the break-in of the home whose owner's clothing Duran was wearing at the time of arrest. Because the jury was unable to reach a unanimous verdict on the charges involving the other home, they were dismissed at sentencing. After the jury returned its verdict, the trial court inquired whether either party had “[a]nything else before [it] released the jury.” Defense counsel responded, “We have nothing further, your Honor.” The trial court then released the jury.

¶ 11 After the jury was dismissed, Duran moved for a mistrial, arguing that the second officer improperly commented on his criminal history. He also claimed, for the first time, that a mistrial should be granted because he was entitled to have the jury decide whether he was an HVO under the HVO statute. After oral argument, the trial court denied the motion, concluding that Duran waived his right to have a jury decide the HVO enhancement, and that the second officer's comment was made in good faith and was not prejudicial in light of the “absolutely overwhelming” evidence supporting Duran's conviction. Duran filed a timely appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 12 On appeal, Duran argues that the trial court erred in denying his motion for a mistrial, again asserting that he was entitled to have the jury determine whether he was an HVO, see Utah Code Ann. § 76–3–203.5 (Supp.2010), and that the second police officer improperly commented on his past criminal history. While “[a] trial court's denial of a motion for a mistrial will not be reversed absent an abuse of discretion,” State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948, “[a]ny legal determinations made by the trial court as a basis for its denial of a new trial motion are reviewed for correctness,” State v. Pritchett, 2003 UT 24, ¶ 15, 69 P.3d 1278 (alteration in original) (internal quotation marks omitted).

¶ 13 Duran also argues that the first officer improperly commented on Duran's invocation of his right to remain silent. Although Duran concedes that he did not preserve this issue, he argues on appeal that the trial court committed plain error in not sua sponte declaring a mistrial. To prevail on a claim of plain error, Duran “must demonstrate that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful.” State v. Ross, 2007 UT 89, ¶ 17, 174 P.3d 628 (internal quotation marks omitted). For “certain federal constitutional errors” we evaluate prejudice for whether “the error was harmless beyond a reasonable doubt.” State v. Verde, 770 P.2d 116, 121 (Utah 1989); see also State v. Maas, 1999 UT App 325, ¶ 14, 991 P.2d 1108 (stating that when the State's witness improperly commented on the defendant's invocation of her right to remain silent and the claim was preserved, the standard of review was “harmless beyond a reasonable doubt”). “If any one of these requirements is not met, plain error is not established.” State v. Dunn, 850 P.2d 1201, 1209 (Utah 1993).

ANALYSIS

I. Duran's Right to a Jury Trial

¶ 14 Duran argues that because the HVO statute requires the jury, rather than the trial court, to determine whether he was an HVO, the trial court erred when it dismissed the jury and decided Duran's HVO status from the bench. In addition, Duran contends that defense counsel's failure to object to, and even his acquiescence in, the decision to dismiss the jury and submit that issue to the trial court cannot constitute a waiver. Duran argues that both the Utah and United States Constitutions require that the waiver of a right to a jury trial must be knowing and voluntary. See Patton v. United States, 281 U.S. 276, 312, 50 S.Ct. 253, 74 L.Ed. 854 (1930) (requiring knowing and voluntary waiver of the right to jury trial), abrogated in...