State v. Gordon

• Decision Date: 01 December 1994
• Docket Number: No. 940345-CA,940345-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Anthony M. GORDON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 112

886 P.2d 112

STATE of Utah, Plaintiff and Appellee, v. Anthony M. GORDON, Defendant and Appellant.

No. 940345-CA.

Court of Appeals of Utah.

Dec. 1, 1994.

Martin V. Gravis, Ogden, for defendant and appellant.

Jan Graham and Kris C. Leonard, Salt Lake City, for plaintiff and appellee.

Before DAVIS, GREENWOOD and ORME, JJ.

OPINION

GREENWOOD, Judge:

Defendant Anthony M. Gordon challenges his conviction of aggravated burglary, a first-degree felony, in violation of Utah Code Ann. § 76-6-203 (1990); and aggravated kidnapping a first-degree felony, in violation of Utah Code Ann. § 76-5-302 (1990). Defendant claims that the introduction of false testimony by prosecution witnesses requires reversal. We affirm.

BACKGROUND

On September 12, 1993, Leonard Kellywood was at his Ogden apartment, awaiting the return of Roberta Ness, his fiancee, and their twenty-two-month-old child, both of whom had attended a wedding in New Mexico.

A little after 9 p.m., Kellywood heard the doorbell ring. Before opening the door, Kellywood looked through the peephole and observed a man wearing a dark blue pullover sweatshirt with the hood over his head. Kellywood testified that he recognized the man standing outside the door as defendant, although he knew him only by his nickname "Two Fly." ¹ Kellywood testified that he knew defendant as a frequent guest at numerous parties held in apartment K-9, which was directly below Kellywood's apartment.

When Kellywood opened the door, the man, who now had a bandanna over his face, pushed the door open, placed a gun to Kellywood's head and ordered him down on the ground. Kellywood testified that because he had recognized the man as Two Fly, he at first believed the confrontation was a prank. However, when the man repeated the command, Kellywood complied.

The man bound and blindfolded Kellywood, then began rummaging through the apartment. During that time, Kellywood secretly freed one of his arms, then managed to remove his blindfold and free his legs. With the blindfold removed, Kellywood got a good look at his assailant, who was no longer wearing the bandanna over his face, and once again recognized him as Two Fly. He testified that the two of them scuffled briefly before the intruder fled.

When police arrived, they found a blue and white bandanna, which Kellywood told officers was worn by the assailant. Two of the investigating officers later testified that the bandanna was similar to one defendant was wearing when they observed him earlier in the evening at an Ogden park.

The following morning, Kellywood identified a photo of defendant as the man who had broken into his apartment. The next day, Kellywood went to his landlord's house to pay rent and saw defendant outside the house. The landlord phoned police, who arrested defendant.

At trial, the State called Kellywood and Ness to testify. As the State's first witness, Kellywood recounted the incident and also testified that he had seen defendant frequently at apartment K-9 between mid-August and September 12 of 1993. He testified that he had spoken directly with defendant on two occasions in mid-August, once when Kellywood was working on a motorcycle, and again two days later when he was walking past apartment K-9.

After Kellywood's testimony, defense counsel requested a conference in chambers. Defense counsel informed the court that Kellywood could not have seen defendant at apartment K-9 during mid-to-late August because defendant was incarcerated at MOWEDA, a youth detention facility, from August 11 to September 3rd. Defense counsel argued that the prosecution was required by law to correct the record and asked the prosecution to stipulate that Kellywood was wrong when he testified that he had seen defendant at the apartment complex between mid-August and September 12. The prosecutor declined. However, he re-examined Kellywood, who acknowledged that he may have seen defendant at parties during the early part of August and that his conversations with defendant took place during the first week of September, after September 3rd. During cross-examination, defense counsel also emphasized Kellywood's mistaken testimony. ²

Next, the prosecutor called Ness and questioned her about defendant's presence at the apartment complex. Although Ness referred to several occasions when she saw defendant, she did not tie those occasions to specific dates. However, during cross-examination, defense counsel asked for specific dates, and Ness responded that she had seen defendant during the third or fourth week in August. Ness reiterated this statement the following day during further cross-examination.

Following Ness's testimony, defense counsel again requested that the prosecutor be required to correct the record. The trial court declined to require the clarification, stating that the question of whether the witnesses remembered correctly went to their credibility.

At the conclusion of the State's case, defendant moved for a mistrial, claiming that the State's refusal to correct the "false or misleading" testimony violated defendant's due process rights under the United States and Utah Constitutions. The trial court denied the motion. Defense counsel later introduced the testimonies of defendant and Patrick Lambert, director of MOWEDA, who both testified that defendant was incarcerated from August 11 to September 3. ³

The jury convicted defendant on both counts. He was sentenced to fifteen years in prison on the burglary count, one-to-five years in prison on the kidnapping count, and was ordered to pay $275 in restitution to the victim.

ISSUE ON APPEAL

The sole issue on appeal is whether the prosecutor's failure to correct erroneous testimony by two prosecution witnesses resulted in a violation of defendant's due process rights.

STANDARD OF REVIEW

Trial courts are generally accorded some degree of discretion in applying a legal standard to a given set of facts. State v. Pena, 869 P.2d 932, 937 (Utah 1994). Such "discretion" allows the trial court "to reach one of several possible conclusions about the legal effect of a particular set of facts without risking reversal." Id. The Pena court likened the degree of discretion accorded a trial court to a "pasture," the boundaries of which are determined by "fences" erected by appellate courts. Id. The trial court's pasture may be narrowly fenced when there is little discretion or more expansive when there is broad discretion. Id. at 937-38.

The precise standard of review for a trial court's decisions regarding false or misleading testimony has not yet been articulated under Pena 's pasture analogy. However, it is consistent with similar types of decision-making to accord trial courts relatively wide discretion in this area. See Norman H. Jackson, Utah Standards of Appellate Review, Utah Bar Journal, October 1994, at 9, 21 (examples of broad discretion include a trial court's decisions on motions for new trial or mistrial, disqualification of prosecutor, and excluding victim during trial). We therefore accord the trial court in this case considerable discretion in its decision regarding the legal effect of the incorrect testimony on defendant's trial.

ANALYSIS

Defendant argues that the prosecutor's failure to correct the false testimony ⁴ of Kellywood and Ness concerning the period of time they saw defendant at the apartment complex violated defendant's due process rights. Defendant further claims he was forced to introduce the prejudicial MOWEDA evidence in order to rebut the false testimony.

As the State's representative, the prosecutor has a duty to " 'see that justice is done.' " Walker v. State, 624 P.2d 687, 691 (Utah 1981) (citation omitted). A conviction obtained through false testimony "must fall under the due process clause of the Fourteenth Amendment and Article I, Section 7, of the Utah State Constitution." Id. at 690; see Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 1177, 3 L.Ed.2d 1217 (1959). Therefore, when a prosecutor is aware that testimony is false, he or she has a duty to correct the false impression; failure to do so requires reversal "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Walker, 624 P.2d at 690; ⁵ State v. Schreuder, 726 P.2d 1215, 1228 (Utah 1986); State v. Shabata, 678 P.2d 785, 789 (Utah 1984); see Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766, 31 L.Ed.2d 104 (1972). This applies even if the prosecutor unwittingly introduced the false testimony, as appears to have happened in the instant case. Napue, 360 U.S. at 269, 79 S.Ct. at 1177; Shabata, 678 P.2d at 789; Walker, 624 P.2d at 690.

In this case, the State clearly made some effort to correct the record after defense counsel informed the prosecutor and the trial court of defendant's MOWEDA incarceration. On redirect, Kellywood admitted that he may have been wrong in his earlier testimony about the dates he had seen defendant. ⁶ Further, during cross-examination, Kellywood repeatedly acknowledged that his original testimony was in error. ⁷

Additionally, when examining Ness, the prosecutor avoided questioning her about the dates she had observed defendant at the apartment. It was defense counsel who elicited testimony from Ness that she had seen defendant at the apartments during the third or fourth week in August. ⁸

Although it might be argued that the prosecutor could have done more to correct the false testimony, the record indicates that, well before the MOWEDA evidence was presented, the prosecution and defense effectively removed any lingering misapprehension by the jury about whether the witnesses could have seen defendant at the apartments between August 11 and September 3. Thus, the trial court did not abuse its discretion by implicitly ruling that the inaccurate testimony had been sufficiently clarified. ⁹

Moreover, even if some jurors continued to believe Kellywood and Ness had seen defendant during...