State v. Guard, 20140039.

CourtSupreme Court of Utah
Citation2015 UT 96,371 P.3d 1
Docket NumberNo. 20140039.,20140039.
PartiesSTATE of Utah, Petitioner, v. Jimmy D. GUARD, Respondent.
Decision Date31 December 2015

371 P.3d 1
2015 UT 96

STATE of Utah, Petitioner
Jimmy D. GUARD, Respondent.

No. 20140039.

Supreme Court of Utah.

Dec. 31, 2015.
Rehearing Denied April 20, 2016.

371 P.3d 2

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Att'y Gen., Salt Lake City, for petitioner.

Margaret P. Lindsay, Matthew R. Morrise, Salt Lake City, for respondent.

Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice LEE, Justice DURHAM, Justice HIMONAS, and Judge HARRIS joined. Having recused herself due to her resignation from this court, Justice PARRISH did not participate herein; Judge RYAN M. HARRIS sat.

On Certiorari to the Utah Court of Appeals

Chief Justice DURRANT, opinion of the Court:


¶ 1 We are asked to review the court of appeals' retroactive application of our decision in State v. Clopten to Mr. Guard's case. We issued Clopten while Mr. Guard's case was on direct appeal. In Clopten, we held that “in cases where eyewitnesses are identifying a stranger and one or more established factors affecting accuracy are present, the testimony of a qualified expert is both reliable and helpful, as required by

371 P.3d 3

rule 702.”1 Prior to Clopten, there was a “de facto presumption against the admission of eyewitness expert testimony,” and courts generally relied on jury instructions to address this issue.2 Mr. Guard's motion to put on an expert on eyewitness testimony was denied because he failed to establish that such testimony was reliable, but the jury was instructed on the possible issues surrounding eyewitness testimony. The jury found Mr. Guard guilty of kidnapping, and he was subsequently sentenced to a prison term of ten years to life. Mr. Guard timely appealed his conviction, but his appeal was delayed due to his attorney's failure to file a docketing statement.

¶ 2 In deciding whether to apply Clopten retroactively, the court of appeals acknowledged our “clear break” rule regarding retroactive application of new rules of criminal procedure to cases on direct review, but declined to apply it. Rather, the court concluded that the “unusual circumstances” in this case required the retroactive application of our rule in Clopten.3 The court reasoned that, because the cases were very similar and were tried around the same time, if Mr. Guard's case had not been delayed, Guard and Clopten would “almost inevitabl[y] ... have been either consolidated on appeal or treated as companion cases” and the result in Guard “would have been identical to the result in Clopten.4 Thus the court stated, “it seems inconsistent with the administration of justice to deny Guard the benefit of the supreme court's approach in Clopten where, but for the happenstance that delayed Guard's appeal, it appears to us that the same analysis would have been applied to both cases.”5 The court therefore applied the rule in Clopten, holding that it was harmful error for the trial court not to admit Mr. Guard's eyewitness expert.

¶ 3 The State appealed. It argues that Clopten was a “clear break” from our previous caselaw on the admissibility of eyewitness expert testimony and should not have been applied retroactively. The State also argues that Mr. Guard did not preserve the issue. Mr. Guard counters that the court of appeals did not apply Clopten retroactively (but merely found it persuasive), that Clopten was not a “clear break,” and that Mr. Guard adequately preserved the issue.

¶ 4 We reverse. We conclude that Mr. Guard adequately preserved the issue. We decline to decide whether Clopten was a “clear break” (and therefore should not have been given retroactive application) because we conclude that our “clear break” rule is flawed and therefore abandon it. Instead, we return to our prior precedent—new rules of criminal procedure announced in judicial opinions are applicable retroactively to all cases pending on direct review at the time the new rule is announced.

¶ 5 After determining that Clopten applies retroactively to Mr. Guard's case, we then address whether the trial court abused its discretion under the Clopten standard when it failed to admit Mr. Guard's eyewitness expert. We conclude that it was not an abuse of discretion for the trial court to deny Mr. Guard's motion to admit eyewitness expert testimony under Clopten, and thus we reverse the court of appeals' decision.


¶ 6 On November 15, 2004, C.M., who was nine years old at the time, was attacked as she walked the few blocks from her school bus stop to her home. After she had parted ways with her friends, crossed the street, and reached the corner of her apartment complex, a male stranger grabbed her from behind. He held C.M.'s arms behind her back, covered her mouth, and told her to come with him or he would harm her with a knife. C.M. never saw a knife. She fought off her attacker using techniques she had learned through a self-defense course offered at her school. She kicked him in the shin, causing him to loosen his grip. She then

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turned around and poked him repeatedly in the eyes and face. He tried to avoid her jabs and hit her back. The stranger then released her, and she ran straight home to her mother. As she ran home, she looked back and saw the stranger running in the opposite direction. C.M. recounted the attack to her mother, who called the police.

¶ 7 The police responded to C.M.'s home. Officer Becerra was the first officer on the scene and the first to interview C.M. about her kidnapping. She described her attacker to Officer Becerra as a “Hispanic male with curly black hair and a faded beard and mustache” who was “wearing white shoes, jeans, a black T-shirt with a picture of the wrestler ‘Stone Cold’ on it, and a black baseball cap.” When Officer Becerra asked C.M. if she could remember her attacker's face, she said “I don't know. I saw the shoes,” and “I saw the pants.”

¶ 8 Detective William Devon Jensen arrived at C.M.'s home a short while later and took over the interview, as he had more training and experience interviewing children. Detective Jensen took time to calm C.M. down and took special care not to lead her, using non-suggestive questions. C.M. described her attacker as “slightly chubby, ... dark complected, possibly Hispanic” and said he “was wearing a black baseball cap with the letter ‘A’ on it, ... a black shirt with ‘Stone Cold’ on the front of it, blue jeans, and white tennis shoes.” She described her assailant as taller than Officer Becerra, but shorter than Detective Jensen, a range from 5'7? to 6'1?. She also said he had hair like her brother, who had a short Afro. Detective Jensen asked C.M. if she would be able to recognize her attacker. She said she thought she would be able to identify him if she saw him again.

¶ 9 The following day, Detective Jensen went to C.M.'s school to show her a photo array of six men who generally matched her description of her attacker. The Defendant, Jimmy Guard, was included in the photo array. Detective Jensen had included Mr. Guard after he saw his picture on a “person of interest” bulletin that described a similar kidnapping incident in Springville, Utah. Detective Jensen did not tell C.M. that her attacker was among those pictured, but she understood that he would be. Detective Jensen showed C.M. the photos one at a time and asked her to look at each photo and tell him whether any of them was the person who had kidnapped her the day before. C.M. looked at the first two photos and told the detective they were not her attacker. But when C.M. was presented with the third picture “[h]er eyes got big, she appeared excited and scared at the same time[,] and she immediately said, ‘That's him. That's him.’ ” Detective Jensen asked whether she was sure the man pictured was her attacker, and she said “Yes, I'm sure that's him.” The detective then showed C.M. the remaining three pictures, and she said none of them was of her attacker.

¶ 10 Through his investigation, Detective Jensen found three witnesses who identified Mr. Guard as the kidnapper. On the day of the attack, he interviewed a friend of C.M.'s who saw the abduction from about a block away. C.M.'s ten-year-old friend told Detective Jensen that she had seen the assailant grab C.M., that she initially thought that the assailant was C.M.'s brother, and that he was wearing blue pants, a black shirt, a cap, and white shoes.

¶ 11 The day after the attack, Detective Jensen found two witnesses through a canvass of C.M.'s neighborhood, where he spoke with fifteen to twenty people. He took Mr. Guard's photo with him that day and asked people in the neighborhood whether they had seen Mr. Guard the day before. Two neighbors said they had seen Mr. Guard: Darwin Goode, who said he saw Mr. Guard loitering and then following a group of girls, and Kathleen Spechard, who believed she saw him run past her home.

¶ 12 Mr. Goode, who lived two blocks from the kidnapping, said he saw Mr. Guard the previous day standing by a UTA bus stop that was about 100 feet from his home.6 He was out watering his lawn when he noticed Mr. Guard at the UTA bus stop. At first he did not notice anything unusual, as Mr.

371 P.3d 5

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