State v. Gallup

Citation2011 UT App 422,267 P.3d 289
Decision Date08 December 2011
Docket NumberNo. 20100231–CA.,20100231–CA.
PartiesSTATE of Utah, Plaintiff and Appellee, v. Jeffrey Michael GALLUP, Defendant and Appellant.
CourtCourt of Appeals of Utah


Brook J. Sessions, Provo; and Anthony V. Rippa, Murray, for Appellant.

Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.

Before Judges DAVIS, ORME, and VOROS.


DAVIS, Presiding Judge:

¶ 1 Jeffrey Michael Gallup appeals his convictions for failing to respond to an officer's signal to stop, a third degree felony, see Utah Code Ann. § 41–6a–210(1) (2010); speeding, a class C misdemeanor, see id. § 41–6a–601; and driving on a suspended or revoked operator license, a class C misdemeanor, see id. § 53–3–227(1)(2). We reverse and remand.


¶ 2 The facts are not disputed. On October 22, 2008, at approximately 11:22 p.m., Utah Highway Patrol Trooper Jared Clanton clocked a vehicle traveling eighty-eight miles per hour in a sixty-five mile-per-hour zone on the southbound side of Interstate 15 (I–15) in Lehi, Utah. The trooper pulled the vehicle over and communicated the vehicle's license plate number to dispatch. The trooper identified the vehicle as a blue, four-door BMW with rear- and side-window tinting.

¶ 3 As the trooper approached the vehicle from the passenger side, it suddenly accelerated and sped away. The trooper did not have a chance to turn on his flashlight but did briefly observe the driver through the tinted rear passenger side window. The driver was silhouetted by the squad car's headlights, and the rear view mirror was tilted so that the trooper could not catch a glimpse of the driver's face in its reflection. The trooper observed that the driver was a white male with brown hair, between thirty and thirty-five years old, and between 190 and 200 pounds. A car chase ensued, but the trooper eventually terminated his pursuit after following the BMW off the highway into a residential area of Lehi.

¶ 4 The trooper ascertained that Jeffrey Gallup was the registered owner of the BMW and obtained a driver license image of Gallup. The license picture was consistent with the trooper's brief observation of the BMW driver. The trooper then obtained Gallup's phone number and called the number at around 12:20 a.m.—about one hour after the initial speeding incident occurred. A male voice answered the phone, and the trooper asked, ‘Is Mr. Jeffrey Gallup there?’ The person at the other end of the line responded, ‘This is Jeffrey.’ The trooper then identified himself and stated, ‘I was wondering if you could tell me your location. I'd like to meet with you for just a few minutes and talk to you about an incident.’ The telephone line was silent for a moment before Gallup hung up the phone with no further discussion or comment. Charges were filed in March 2009, several months after the October incident.

¶ 5 A jury trial was held on January 5, 2010, at which time Gallup raised several issues in a motion in limine.1 Those issues included a claim that the trooper's proffered testimony that Gallup hung up on him infringed on Gallup's “right against self-incrimination” because it “insinuate[d] that [Gallup] was guilty in some way.” The State asserted that the hang-up was akin to a party admission under the hearsay exceptions of the Utah Rules of Evidence. The trial court agreed with the State and determined that neither case law nor the Utah Rules of Evidence prohibited admission of the hang-up evidence.

¶ 6 At trial, the State focused its direct examination of the trooper on the phone call and particularly on the fact that Gallup hung up on the trooper:

[Trooper]: ... I explained who I was. “I'm Trooper Clanton with the Highway Patrol, and I was wondering if you could tell me your location. I'd like to meet with you for just a few minutes and talk to you about an incident,” and there was—and then at that point there was a brief moment of silence, possibly a second or so, and then the conversation ended.

[Prosecutor]: Okay.

[Trooper]: The person on the other end of the phone hung up the phone.

[Prosecutor]: So he hung up on you?

[Trooper]: Correct.

[Prosecutor]: He didn't say, “Hey, I'm glad you called. I wanted to talk to you. Someone has my car,” anything like that?

[Trooper]: No.

[Prosecutor]: Just hung up on you?

[Trooper]: Yes. During cross-examination, defense counsel asked the trooper, [I]f [a police officer] were to just call anybody at night and want to talk to them, they're not under a legal obligation to converse ... or speak, are they?” To which the trooper answered, They're free to say whatever they want, or not to speak.”

¶ 7 After the State rested its case, Gallup decided to testify in his defense even though he “had not intended ... to testify.” Gallup explained that [i]f [he] had been successful on the objection to the ... phone call evidence coming in, he would have had no reason to testify, and he would not have been testifying” but that “because [he] was overruled on that, and that evidence came in, it appear[ed] necessary that he ... testify.” The State objected on the grounds that Gallup's testimony as to the incident would “necessarily implicate whether or not he was present in the vehicle” and would thus constitute an alibi defense of which the State had not received notice. See generally Utah Code Ann. § 77–14–2(1) (2008) (requiring a defendant intending to introduce alibi evidence to notify the State of such within at least ten days before trial).

¶ 8 Gallup argued that section 77–14–2(3) permits a defendant to testify on his own behalf regardless of whether he complied with the notice requirement. The trial court disagreed, determining that the section Gallup characterized as an exception “simply means if he wants to establish his own alibi and doesn't have other witnesses he may do so, but he still has to give notice.” The trial court ruled that Gallup would be permitted to testify in vague terms—i.e., that he does not recall where he was the night of the incident, or that he knows he was not on I–15 that night—but that the court “would strike any testimony that start[ed] to establish a [specific] place where [Gallup] was that night, as opposed to being on the freeway at the time the officer was chasing this particular vehicle that was registered to him.”

¶ 9 Ultimately, Gallup testified simply that he was not driving the BMW at the time of the incident.2 On cross-examination, the State asked Gallup who was driving his car if it was not him, to which Gallup responded, “I do not know.” The State then dropped that line of questioning and proceeded to ask Gallup about the phone call:

[Prosecutor]: At that point didn't it seem important to talk to the officer a little more about the incident and figure out what he was talking about?


[Gallup]: At that time, no.

[Prosecutor]: Didn't seem important to ask the officer more about what he was calling you about?

[Gallup]: At that time, no, I did not know why he was calling me.

[Prosecutor]: Okay. Did you ask the officer, “Hey, why are you calling me?”

[Gallup]: I did not, and he did not relate that to me.

[Prosecutor]: Okay, did he—why didn't you respond to him when he said, “This is Trooper Clanton. I've been on the freeway. I want to talk to you about some events that happened tonight[?”]


[Prosecutor]: Why did you hang up on him?

[Gallup]: I was under the impression he was calling on another matter.

[Prosecutor]: Okay, so did you then follow up with him about that matter and ask more questions, or did you just hang up on him?


[Gallup]: I hung up on Officer Clanton at that point.

¶ 10 During closing arguments, the State emphasized the importance of the phone call, noting that “when [Gallup] had an opportunity ... within an hour of this incident, he failed to take that opportunity to talk to the officer about the incident, to explain it away somehow.” The State continued, What happened was he hung up the phone. Is that reasonable to believe that he was just confused. That he was just exercising his right to remain silent. Is that what he said to you today? Did he say, “I decided to exercise my right to remain silent, and I hung up.” That's not what he said.

Gallup objected, arguing that “the defendant's not required to say that [,] and [that] making comments upon his exercising of that right in closing is inappropriate.” The court overruled the objection but cautioned that “enough [had] been said” on the matter. The State ended its closing argument stating, “Hanging up that phone, ladies and gentlemen, showed his consciousness of guilt.”

¶ 11 After closing arguments and during deliberations, the jury submitted a question to the trial court asking, ‘Would it have been allowed for the prosecuting attorney to ask the defendant where he was on the night of October 22?’ The court drafted an answer, with the attorneys for each party present, that stated, “Due to an earlier evidentiary ruling made by the court, neither party was allowed to ask that question.” The jury subsequently found Gallup guilty on all charges. Gallup now appeals.


¶ 12 Gallup argues that the trial court committed error when it admitted the telephone call evidence and excluded his alibi testimony. [W]e grant a trial court broad discretion to admit or exclude evidence and will disturb its ruling only for abuse of discretion,” which “may be demonstrated by showing that the [trial] court relied on an erroneous conclusion of law or that there was no evidentiary basis for the trial court's ruling.” Daniels v. Gamma W. Brachytherapy, LLC, 2009 UT 66, ¶ 32, 221 P.3d 256 (first alteration in original) (internal quotation marks omitted). In this case, Gallup contends that the trial court abused its discretion because the admission of the telephone call evidence in the State's case-in-chief violated his Fifth Amendment right against self-incrimination and was based on an erroneous interpretation of the Utah...

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