State v. Haga

• Decision Date: 26 February 1998
• Docket Number: No. 960405-CA,960405-CA
• Parties: 337 Utah Adv. Rep. 19 STATE of Utah, Plaintiff and Appellee, v. Norman Andrew HAGA, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1284

954 P.2d 1284

337 Utah Adv. Rep. 19

STATE of Utah, Plaintiff and Appellee, v. Norman Andrew HAGA, Defendant and Appellant.

No. 960405-CA.

Court of Appeals of Utah.

Feb. 26, 1998.

Rebecca C. Hyde and Susanne Gustin-Furgis, Salt Lake City, for Defendant and Appellant.

Jan Graham and James H. Beadles, Salt Lake City, for Plaintiff and Appellee.

Before DAVIS, P.J., and JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Defendant appeals his convictions for theft, in violation of Utah Code Ann. § 76-6-604 (1995), and burglary, in violation of Utah Code Ann. § 76-6-602 (1995). We remand to the trial court for a restitution hearing, but otherwise affirm.

FACTS

This case centers on a burglary of Dee Leasing, a wholesale computer store, which occurred on March 12, 1994. Richard Engh testified that on that date, a Saturday, he and his nephew delivered a van to Dee Leasing at about 9:30 a.m. and noticed the front door of the business was open. Engh's nephew notified the police after observing that no one was inside the business, the door looked like it had been forced open, and the telephone was dead. Upon investigation, the police discovered several pried-open doors, cut telephone lines (which disabled the alarm), and, of all things, fresh human feces on the floor. Donald Kaufer, Dee Leasing's owner, later calculated that about $14,000 worth of equipment had been stolen or damaged.

Earlier that morning, at about 9:20 a.m., Larry Olson, owner of the On & Off Roadhouse located next to Dee Leasing, stopped at his store before going to Bountiful. While there he saw a white pickup truck, which he had not seen before, parked next to Dee Leasing. He noticed a logo on the truck's side, which he thought said "Custom Installations," though he later told police it could have had something to do with "insulation." Olson saw defendant, a smaller individual with a receding hair line, standing next to the truck, and at times he "had eye-to-eye contact" with defendant. At trial, Olson could not remember whether he noticed defendant loading any boxes into the truck, although immediately after the crime occurred, Olson reported that the person he saw was loading boxes.

After returning from Bountiful, Olson saw police in front of Dee Leasing. He walked over and gave the police a statement, including a description of the person he saw by the truck. Two months later, an officer showed Olson photographs of several individuals, and Olson immediately identified defendant as the person he saw at Dee Leasing the morning of the burglary. The photos were admitted into evidence at trial.

Believing the burglar was someone who knew the business's layout and contents, the police read Kaufer, the owner, a description of the suspect and asked him to think about any customer or supplier who might fit the description. Kaufer responded, "That sounds like Norm Haga." Defendant Haga had purchased computer supplies from Dee Leasing and, about one year before the burglary, had repaired a unique power supply on one of the computers in Dee Leasing's inventory. Kaufer did not ask defendant to repair any other equipment because he had an "uncomfortable feeling" about him.

Less than two months after the burglary, a police officer on routine patrol saw a truck fitting the description of the pickup at the burglary scene and with the words "Intermountain Installers" on the side. The truck was broken down in a parking lot, and defendant, who admitted the truck was his, was working on it. Defendant was arrested.

At trial, Richard Perry testified that defendant was at his place of business, A & P Tire and Oil, from 9:00 a.m. to 9:00 p.m. on the date of the burglary. Perry testified that defendant was never gone for more than 15 minutes during the day and that he had been limping from a foot injury. Perry admitted that in 1986 he was convicted of both theft by receiving and attempted homicide.

A jury convicted defendant of burglary, a third degree felony, and theft, a second degree felony. At his sentencing hearing, in addition to imposing prison terms for the felonies, the trial court also imposed restitution in the amount of $13,630, apparently payable to Dee Leasing's insurer, and fines totaling $15,000, plus applicable surcharges. Defendant requested a restitution hearing and the court informed him he could have one. However, no hearing was ever held.

ISSUES

Defendant claims several instances of prosecutorial misconduct deprived him of a fair trial. He also contends that his trial counsel ineffectively assisted him in a variety of ways. Finally, defendant argues that an insurance company is not a victim and is therefore not entitled to restitution.

PROSECUTORIAL MISCONDUCT

Prosecutorial misconduct requires reversal where (1) the prosecutor's "remarks ' " 'called to the jurors' attention matters which they would not be justified in considering in reaching a verdict' " ' " and (2) such remarks were harmful. State v. Emmett, 839 P.2d 781, 785 (Utah 1992) (citations omitted). See State v. Winward, 941 P.2d 627, 632 (Utah Ct.App.1997).

First, defendant contends that the prosecutor committed misconduct by asking Perry, defendant's alibi witness, if he had ever purchased computer equipment from defendant and whether the equipment had been stolen. ¹ " '[I]t is improper conduct for the Government to ask a question which implies a factual predicate which the examiner knows he cannot support by evidence or for which he has no reason to believe that there is a foundation of truth.' " Winward, 941 P.2d at 632 (quoting United States v. Harris, 542 F.2d 1283, 1307 (7th Cir.1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977)). At the same time, the rules of evidence allow questioning, for impeachment purposes, about a witness's "bias, prejudice or any motive to misrepresent." Utah R. Evid. 608(c). If defendant had been selling stolen goods to him, Perry would indeed have had a "motive to misrepresent."

In this case, the prosecutor had " 'reason to believe that there [was] a foundation of truth' " on which to ask Perry if he had bought stolen goods from defendant, Winward, 941 P.2d at 627 (quoting Harris, 542 F.2d at 1307), and thus, the prosecutor properly pursued his inquiry about Perry's possible motive to misrepresent. First, Perry had received a computer keyboard from defendant, and the two had an on-going business relationship. Second, Perry had been convicted of receiving stolen goods. Third, defendant was charged with stealing computer equipment. And fourth, compelling evidence placed defendant at the crime scene, making any alibi somewhat suspect. These factors, of course, do not establish Perry's culpability, but they do prompt one to legitimately wonder if Perry and defendant were somehow in cahoots. Thus, the prosecutor's examination of Perry fell within the permissible bounds of prosecutorial conduct and of Utah Rule of Evidence 608(c).

Second, defendant contends that the prosecutor misbehaved by arguing Perry's felony conviction "substantively" in closing argument. In support of this contention, defendant relies on State v. Emmett, 839 P.2d 781 (Utah 1992), which states "it is well established that under Utah Rules of Evidence 404 and 609, past criminal convictions are only admissible for the limited purpose of attacking the credibility of defendant and should not be used as substantive evidence of guilt." Id. at 785-86. If defendant was concerned about how the prosecutor was using Perry's convictions in closing, he should have interposed an objection. He did not do so. Defendant asserts we should nonetheless consider the matter as "plain error." To establish plain error, the appellant must show that "(i) [a]n error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful." State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993).

We hold that, under the first prong of the plain error test, there was no error. After reviewing closing argument, we conclude that the prosecutor, although rambling and unfocused, did not use Perry's felony conviction substantively; rather, he used it to undermine the credibility of the defense's chief alibi witness. ² In closing argument, the prosecutor compared the credibility of the owner of Dee Leasing with Perry's credibility and emphasized that Perry had been convicted of theft by receiving. This was clearly proper. See Utah R. Evid. 609(a)(2) ("For the purposes of attacking the credibility of a witness, ... evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment."). Then, the prosecutor suggested a scenario in which Perry may have bought stolen equipment from defendant which, as we explain above, was within the limits of prosecutorial advocacy. ³

Third, defendant claims prosecutorial misconduct based on the prosecutor's questions to Perry and other witnesses about their failure to come forward with their alibi information before being called as witnesses. ⁴ Defendant argues that these questions by the State were meant to imply that the witnesses fabricated their alibi testimony. ⁵ Such insinuation, defendant contends, is improper because alibi witnesses have no duty to come forward during the course of a criminal investigation and share their information with the police. The State distinguishes several of defendant's cases in support of this proposition and provides other cases where it was held that such questions are a legitimate area of cross-examination. ⁶ Neither party cites a Utah case in support of its argument.

A recent Kansas case, not cited by either party, examines the same issue. In State v. Miller, 259 Kan. 478, 912 P.2d 722 (1996), the prosecutor established, in cross-examination, that two of the defendant's alibi witnesses had not come forward with their stories until several months after the defendant's arrest. See id., 912 P.2d at 726. The ...