State v. Hodges
| Decision Date | 07 January 1974 |
| Docket Number | No. 13266,13266 |
| Citation | 30 Utah 2d 367,517 P.2d 1322 |
| Parties | d 367 STATE of Utah, Plaintiff and Respondent, v. Jeffery Lynn HODGES, Defendant and Appellant. |
| Court | Utah Supreme Court |
Rita G. James, Ogden, for defendant and appellant.
Vernon B. Romney, Atty. Gen., David L. Wilkinson, M. Reid Russell, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.
Jeffrey Lynn Hodges seeks to reverse his convictions by a jury of the crimes of robbery and assault with a deadly weapon committed at the Egyptian Theater in Ogden on the night of May 12, 1972. His contention is that the prosecuting attorney improperly asked questions concerning his involvement in another crime which so prejudiced the jury against him that he was deprived of a fair trial.
On the evening mentioned a man (later identified as the defendant) approached the cashier's cage of the theater, pulled a pistol out of a sack and demanded the money. The cashier, Carolyn Todd, complied with the demand and turned over about $138. As the man fled, the assistant manager, Mr. Gary Wall, came out of the theater and gave chase. He followed the man through a department store and into an alley, when he turned and fired the pistol at Mr. Wall. Quite understandably, this discouraged Mr. Wall from the pursuit.
Ronald Greenwood, an off-duty police officer who had observed the two men running and heard the shot, came to his assistance. The officer saw the defendant get into a 'small white car' and drive away. Pursuant to communication with, and the aid of other police officers, the defendant was within a few minutes apprehended in that car. He had therein what appeared to be the same money, in specie and amount, that had been taken from the theater, and the gun (a .22 pistol) in a sack. He was arrested and taken back to the theater where he was identified by Mr. Wall and Miss Todd.
The defendant testified in his own behalf. It was in effect an elsewhere alibi: that he had been with friends at a local bar at the time of the incident. Further: that he had loaned his car, (the little white car) to a friend who had it during that time. In cross-examining him the prosecutor asked him about his using the gun before. The particular question about which the defendant complains was:
Isn't it true, Mr. Hodges, that you have used that gun before and that you have used that gun to rob a Nancy Wilkinson at the Frosty Bear one month before?
Defense counsel stated:
Your Honor, I object to this as an attempt to bring in evidence, I suppose to bring in matters, not before this court, not being tried here today, matters which have not been resolved, matters which the State apparently doesn't want to resolve.
The court sustained the objection. However, on the basis of the foregoing incident in the court's chamber, defense counsel made a motion for a mistrial, arguing that the improper asking of the question, even without an answer, had cast such aspersions upon the defendant that they could not be removed by sustaining the objection, nor by cautionary instruction. Defendant makes that same argument on this appeal.
The asking of the question about which the defendant complains, and to which the trial court very properly sustained the objection, is certainly not to be commended; and we are made to wonder why the prosecuting attorney would ask it. Nevertheless, the processes of justice should not be distorted simply for the purpose of censuring a mistake. 1 The critical inquiry should be whether there is a reasonable likelihood that the incident so prejudiced the jury that in its absence there might have been a different result. Due to his advantaged position and consistent with his responsibilites as the authority in charge of the trial, the inquiry is necessarily addressed to the sound discretion of the trial court. He should view such an episode in the light of the total proceeding, 2 and if he thinks that there has been such prejudice that there is a reasonable probability that the defendant cannot have a fair and impartial determination of his guilt or innocence, he should of course grant a mistrial. But inasmuch as this is his primary responsibility, when he has given due consideration and ruled upon the matter, this court on review should not upset his ruling unless it clearly appears that he has abused his discretion.
The defendant cites and places reliance on the cases of State v. Dickson, 3 and State v. Kazda. 4 There this court reversed convictions because the prosecution had injected testimony concerning the defendant being implicated in...
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State v. Curtis
...941 P.2d 627, 635 (Utah Ct.App.1997), absent a “substantial and prejudicial” underlying error or irregularity, State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322, 1325 (1974). In order to justify remand, Curtis must therefore allege facts showing that sidebar discussions likely so tainted the j......
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State v. Menzies
...that a jury will follow the instructions given it. State v. Burk, 839 P.2d 880, 883-84 (Utah Ct.App.1992) (citing State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322, 1324 (1974)), cert. denied, 853 P.2d 897 (Utah 1993). Here, the testimony consisted of a very brief series of questions and answe......
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State v. Thompson
...this court on review should not upset his ruling unless it clearly appears that he has abused his discretion. State v. Hodges, 30 Utah 2d 367, 517 P.2d 1322, 1324 (1974) (footnote Defendants have failed to show any clear abuse of the trial court's discretion. The trial court and counsel bot......
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State v. Curtis
...941 P.2d 627, 635 (Utah Ct. App. 1997), absent a "substantial and prejudicial" underlying error or irregularity, State v. Hodges, 517 P.2d 1322, 1325 (Utah 1974). In order to justify remand, Curtis must therefore allege facts showing that sidebar discussions likely so tainted the jury that ......