State v. Grueber

• Decision Date: 02 June 1989
• Docket Number: No. 870532-CA,870532-CA
• Citation: 776 P.2d 70
• Parties: STATE of Utah, Plaintiff and Respondent, v. Darren Neil GRUEBER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 70

776 P.2d 70

STATE of Utah, Plaintiff and Respondent, v. Darren Neil GRUEBER, Defendant and Appellant.

No. 870532-CA.

Court of Appeals of Utah.

June 2, 1989.

Rehearing Denied July 7, 1989.

Richard G. Uday, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Charlene Barlow, Salt Lake City, for plaintiff and respondent.

Before DAVIDSON, BENCH and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

Defendant Darren Neil Grueber ("Grueber") was convicted of aggravated assault, a third degree felony, in violation of Utah Code Ann. § 76-5-103 (1978). Grueber appeals from his conviction claiming: (1) a shotgun seized during a warrantless search should have been suppressed; (2) he was prejudiced by the State's failure to produce requested information during discovery; (3) he was denied effective assistance of counsel; and (4) there was insufficient evidence to support his conviction. We affirm.

FACTS

On August 13, 1986, Michael Wade was driving his automobile southbound onto the I-15 on-ramp near 13th South in Salt Lake City, Utah. A green and white Ford van pulled up beside Mr. Wade in the right-hand lane of the on-ramp. The driver of the van yelled at Mr. Wade for not driving fast enough and attempted to force Mr. Wade's automobile off the road. The two vehicles proceeded side by side up the ramp for a sufficient length of time for Mr. Wade to view the driver of the van.

After merging onto the interstate, Mr. Wade was still traveling next to the green and white van. At this time, he observed a woman passenger in the van pointing a shotgun at him. Mr. Wade quickly applied his brakes and positioned his automobile directly behind the green and white van. From this vantage point, Mr. Wade observed the van's license plate number (674 ALH) and other identifiable features. As the vehicles approached the I-80 interchange, Mr. Wade veered to the far left lane and fled toward the I-80 entrance. At this time, Mr. Wade observed a shotgun sticking out of the driver's window of the green and white van, observed a large tattoo on the driver's upper arm and heard shotgun blasts. From these events, Mr. Wade concluded the driver of the van had fired two shots at his automobile. The shotgun blasts neither damaged his automobile nor injured the occupants.

The green and white van did not follow Mr. Wade as he entered the I-80 interchange. Mr. Wade exited I-80 and went directly to the South Salt Lake Police Department. He reported the incident and his observations to the police, including the van's license plate number. A registration check disclosed Carolyn Ray as the owner of the van.

On October 14, 1986, Mr. Wade viewed a number of photos from which he positively identified Grueber as the person who fired the shotgun at him.

In a separate incident, on November 7, 1986, Officer Scott Robinson of the Murray City Police Department was informed the occupants of a green and white van, license plate number 674 ALH, had attempted to sell a welder which the police had reason to believe had been stolen during a recent burglary at the Murray City Golf Course. Officer Robinson requested a registration check which again revealed Carolyn Ray as the owner of the van. Officer Robinson then proceeded to the address listed on the registration, and waited for the van's arrival. When the van entered the driveway, Officer Robinson exited his car and identified himself as a police officer. As he approached the van, Officer Robinson observed the driver get out of the van and run to the back of the house. Officer Robinson followed the driver, but his pursuit was impeded by a dog tied to the side of the house. The driver was later apprehended by Officer Robinson and identified as the defendant, Grueber.

Officer Robinson returned to the van after encountering the dog and observed Carolyn Ray, several children, and an adult male exiting the van. Through the windows of the van, Officer Robinson observed a welder matching the description of the stolen welder. Soon thereafter, a representative of the golf course arrived and positively identified the welder in the van as the welder stolen from the Murray City Golf Course. Officer Robinson then entered the van and attempted to locate the serial number on the welder. Once inside, Officer Robinson saw a shotgun with a Officer Robinson ran a check for warrants on Grueber. The check showed a warrant for aggravated assault from Sandy City and another warrant from Salt Lake City. Officer Robinson seized the welder, the shotgun, and some Halloween masks from the van and arrested Grueber.

pistol grip situated near the driver's seat, partially covered but in plain view.

A hearing was held prior to trial on Grueber's motion to suppress the shotgun from evidence and Grueber renewed his objection at trial. Officer Robinson articulated three reasons for seizing the shotgun: (1) the gun was present with other stolen property; (2) the driver, with an outstanding warrant for aggravated assault, had fled the scene and thus the officer believed the gun could have been used in the prior crime; (3) the Halloween masks were present with the weapon, indicating a criminal purpose for the presence of the gun. The trial court denied Grueber's motion, finding Grueber did not have standing to object to the seizure of the gun and that the seizure was proper.

At trial, Officer Richard Mattingly, a witness for the State, utilized notes during his direct examination which had not been provided to the prosecution, and consequently, had not been furnished to defense counsel, though the notes were covered by a defense discovery request. Defendant filed a motion for a mistrial claiming he was prejudiced by the late disclosure of these police reports and notes. The trial court allowed defense counsel additional time to examine the notes and prepare for his cross-examination of Officer Mattingly. As a result, the trial was recessed for 24 hours. The court also required the State to recall any prior witnesses, including Mr. Wade, if defense counsel wished to re-examine the witnesses in light of the newly discovered notes. However, the court denied Grueber's motion for a mistrial finding: (1) the discovery violation was discovered prior to the conclusion of the State's case-in-chief and therefore, any prejudice was cured; (2) the information in the notes was inculpatory in nature and since neither party obtained the notes prior to trial, their unavailability was probably, on the whole, beneficial to Grueber; and (3) any possible prejudice would be prevented or mitigated by giving defense counsel adequate time to prepare for and incorporate into their trial strategy any new information.

Subsequently, Grueber was convicted of aggravated assault under Utah Code Ann. § 76-5-103(1)(b) (1978).

SUPPRESSION OF THE SHOTGUN

Grueber argues the shotgun seized from the green and white van should not have been allowed into evidence. Although Grueber concedes the shotgun was in plain view when seized, he claims the shotgun was not clearly incriminating and the officer did not have probable cause to believe it was connected to any criminal activity.

The State argues Grueber had no expectation of privacy in the van or the gun, and thus he does not have standing to object to the seizure of the gun. The State further argues that even if Grueber could object to the seizure, the police officer had probable cause to seize the gun since it was clearly incriminating. We do not reach the issue of whether the gun found in plain view during an otherwise proper search was properly seized as clearly incriminating since we agree that Grueber did not have an expectation of privacy in the van or the gun, and thus cannot complain of the seizure.

The concept of standing is not "theoretically separate" under the fourth amendment. Rakas v. Illinois, 439 U.S. 128, 139, 99 S.Ct. 421, 428, 58 L.Ed.2d 387 (1978). The proper test, which implicitly incorporates the concept of standing, is whether the person who claims the protection of the fourth amendment "has a legitimate expectation of privacy in the invaded place." Id. at 143, 99 S.Ct. at 430. See also State v. Constantino, 732 P.2d 125, 126-27 (Utah 1987); State v. Larocco, 742 P.2d 89, 91 (Utah Ct.App.1987).

The United States Supreme Court has repeatedly recognized that an expectation of privacy in an automobile is different from an expectation of privacy in one's The legitimate expectation of privacy test is not a "bright line" test but is fact sensitive. Therefore, in order to determine whether Grueber had a legitimate expectation of privacy in the van or the gun, we compare the facts before us with the facts in other similar cases.

residence. "We have on numerous occasions pointed out that cars are not to be treated identically with houses or [a]partments for [f]ourth [a]mendment purposes." Rakas, 439 U.S. at 148, 99 S.Ct. at 433 (citing United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 2484, 53 L.Ed.2d 538 (1977); United States v. Martinez-Fuerte, 428 U.S. 543, 561, 96 S.Ct. 3074, 3084, 49 L.Ed.2d 1116 (1976); Cardwell v. Lewis, 417 U.S. 583, 590, 94 S.Ct. 2464, 2469, 41 L.Ed.2d 325 (1974)).

The State relies on, among others, the following cases to assert Grueber had no reasonable expectation of privacy in the green and white van at the time the shotgun was seized from it: Rakas; Constantino; State v. Valdez, 689 P.2d 1334 (Utah 1984); State v. Purcell, 586 P.2d 441 (Utah 1978).

In Rakas, police stopped a van they suspected to be the get-away car in a recent robbery. The defendants were passengers in the car which the owner was driving. The police searched the car and found a box of rifle shells in the glove compartment and a sawed-off rifle under the front passenger seat. Defendants were arrested. The Court held the defendants, as occupants of the van, had neither a proprietary nor a possessory interest in the automobile, nor an interest in the property seized. 439 U.S. at 148, 99...