State v. Graydon
| Decision Date | 20 January 2023 |
| Docket Number | 20190918-CA |
| Citation | 2023 UT App 4 |
| Parties | State of Utah, Appellee, v. Gary Joseph Graydon, Appellant. |
| Court | Utah Court of Appeals |
Third District Court, West Jordan Department The Honorable Chelsea Koch The Honorable Katie Bernards-Goodman No. 171404075
Janet Lawrence and Steffen Soller, Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
[1]
OPINION
¶1 A jury convicted Gary Graydon of aggravated assault and reckless driving after he displayed a gun during a road rage incident. On appeal, Graydon argues that there was insufficient evidence to support his conviction for aggravated assault, that the district court should have declared a mistrial after a police officer testified that Graydon had been in "a similar situation" before and that the district court should have suppressed the victim's identification of him. For the reasons set forth below, we affirm.
BACKGROUND[2]
¶2 Around 8:30 p.m. on August 5, 2017, Graydon's wife (Wife) called 911 and told the dispatcher that Graydon was suicidal and had just left their home in Riverton, Utah, with a handgun. Wife also reported that Graydon was driving a "goldish/brown" 2000 Lexus RX 350. An officer with the Unified Police Department (Officer 1) responded to the call and interviewed Wife.
¶3 Sometime within the next twenty minutes or so, the victim (Victim) was driving north on Highland Drive in Draper, Utah. A vehicle "pulled out in front of [him] and there wasn't much room at all, so [he] hit [his] brakes and slowed down." Victim later recalled that the vehicle was a "silverish-blue" Lexus and that it was a "small SUV" model, like "an RX350." After pulling in front of Victim, the Lexus driver "slammed" on the brakes and "came to a complete stop." When the Lexus didn't move, Victim drove around it, and he could see the Lexus driver yelling and shaking his fist at Victim. Victim later identified the Lexus driver as Graydon.
¶4 "[A]bout five seconds later," Graydon came "whizzing" past Victim, slammed on his brakes, and then started "swerving back and forth." Victim decided to pull over to the side of the road because he thought Graydon would just keep going. After Victim pulled over, other vehicles followed suit and parked behind him.
¶5 But Graydon did not keep going. Instead, he pulled to the side of the road about 30 feet in front of Victim, got out of his vehicle, and came running back towards Victim. Victim got out of his truck too. At trial, when asked why he exited his vehicle, Victim explained that his truck was new and he was worried that Graydon would damage it. Graydon met Victim at Victim's driver-side door, said, "Let's go," and kicked Victim in the side at about rib height. Victim was able to mostly block the kick with his elbow. Graydon then swung at Victim with his fist, but he missed. Victim swung back at Graydon, hitting him and knocking him to the ground. Victim hit Graydon "probably" "two, three more times" because he was afraid that if he "let [Graydon] up for a second," Graydon would "swing" or "kick" at Victim again. When Graydon said, "I've had enough," Victim stopped swinging.
¶6 The two men returned to their respective vehicles, and because the fight had happened near Victim's truck Victim arrived at his first. When Victim got to his door, he "stood there for just a second" and watched Graydon to make sure that Graydon didn't "run back" at him. Victim then got into his truck when Graydon reached his Lexus. But Graydon didn't get into his vehicle- instead, he leaned in and pulled out "a silver pistol." Graydon then stood by his door and tried to "rack a round" by pulling the slide "at least six or seven times," but it "looked like it was jammed." As Graydon did this, he didn't "draw a bead on" Victim, but the gun "was pointing towards [Victim at] about a 45-degree angle in [his] general direction."
¶7 Victim was frightened and wanted to drive away, but he could back up only a few feet because a vehicle was parked behind him. He was also afraid that Graydon would shoot him if he pulled forward. So Victim "froze like a deer in the headlights for a second." After the unsuccessful attempts to chamber a round, Graydon threw the gun into his Lexus and "sped off."
¶8 Victim pulled out and drove behind Graydon, "hoping to follow him long enough that the cops could catch him." But Graydon was driving "erratically," so after "about a half a mile," Victim pulled over and called 911.
¶9 At 8:44 p.m., an officer from the Draper City Police Department (Officer 2) responded to Victim's 911 call. Victim and Officer 2 met just off Highland Drive, and Officer 2 observed that Victim "was in somewhat of a panic or looked stressed." Victim described what had happened, and Officer 2's body camera captured at least some of Victim's description.[3]
¶10 After talking with Victim, the police identified Graydon as a suspect in the case because Victim's description of the driver and vehicle from his confrontation mostly matched the description of Graydon and his vehicle that Wife had given to officers earlier. Sometime within an hour of the incident, an officer presented Victim with a photograph lineup that included a headshot of Graydon. Victim was unable to identify Graydon from the lineup, however, because in his opinion, "the pictures were not good to go off of."
¶12 After the preliminary hearing, Graydon filed a motion to suppress Victim's eyewitness identification. Graydon contended that the identification was "unconstitutionally unreliable," and he based his argument on the factors laid out in State v. Ramirez, 817 P.2d 774 (Utah 1991). For example, he argued that although Victim had the "opportunity to observe the unknown individual during the event," Victim was likely more focused on the fight than on identifying the other man and "that the stress from the fight caused him to be distracted and not focused." Graydon also argued that Victim's identification "was influenced by his own independent research" and that Victim "may have simply identified the man he searched for online after being given the name of the individual by the State." Graydon accordingly argued that Victim's identification was "unreliable and should be excluded at trial."
¶13 The district court held a hearing on Graydon's motion to suppress. Victim was the only witness, and he testified to the events described above. Relevant to Graydon's motion, Victim testified that on the day of the incident, he had not consumed any drugs or alcohol, he was wearing his contacts and could see clearly, it was "[v]ery light" outside, and the other driver's face was not covered. Victim described the other driver as being "about" his height with a muscular build, and he said that the driver was either barefoot or wearing flip-flops. He also said the Lexus was either an RX350 or an RX330, that it was "maybe 10 years old," and that it was "[s]ilver with maybe a little bit of blue to it." He said that he saw the Lexus in the parking lot at the preliminary hearing. And although Victim admitted that he was unable to identify Graydon at the earlier photo lineup, he said that he was "absolutely 100 percent" certain that Graydon was the driver after looking at Graydon's Facebook page.
¶14 After argument from both sides, the court denied Graydon's motion to suppress. In doing so, the court found that Victim "had sufficient opportunity to observe the person assaulting him for 20-30 seconds at close range," that "it was light outside," that Victim's "attention was completely on the person assaulting him," that Victim "was wearing contacts[,] giving him clear vision," and that Victim "was not on any substances that would impair his vision or mental acuity." The court also concluded that "looking up photos on Facebook is no more suggestive than coming to a court hearing and seeing the Defendant sitting next to his attorney." The court thus held that the "identification made by [Victim] by looking up photos of [Graydon] on Facebook [was] sufficiently reliable for admission and consideration by a jury." But the court also ruled that Graydon could "discuss the suggestive event with the jury," "have an expert," and cross-examine Victim "to try and damage the weight of the identification."
¶15 At trial, the State presented four witnesses: Victim, the 911 dispatcher (Dispatcher) who answered Wife's call, Officer 2, and Officer 1.
¶16 Victim testified to the events as described above. On cross-examination, trial counsel (Counsel) asked Victim about the photo lineup and the Facebook search. Victim confirmed that he was unable to pick Graydon out of the lineup and that he was only able to identify him after viewing his Facebook page. Counsel also questioned Victim about the inconsistencies among his four accounts of the incident.
¶17 Officer 2 testified next, and on...
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