State v. Kohl

Decision Date28 March 2000
Docket NumberNo. 981821.,981821.
Citation999 P.2d 7,2000 UT 35
PartiesSTATE of Utah, Plaintiff and Appellee, v. Jason KOHL, Defendant and Appellant.
CourtUtah Supreme Court

Jan Graham, Att'y Gen., Marian Decker, Asst. Att'y Gen., Salt Lake City, Matthew P. Jube, Provo, for plaintiff.

Nelson Abbott, Provo, for defendant.

WILKINS, Justice:

¶1 Defendant Jason Kohl appeals from convictions for aggravated burglary, a first degree felony, and possession of a weapon by a restricted person, a third degree felony. We affirm, but remand for the limited purpose of resolution on the record of defendant's objections to the presentence investigation report pursuant to Utah Code Ann. § 77-18-1(6)(a) (1999).

BACKGROUND1

¶2 On April 6, 1998, shortly after noon, Kornya French placed a 911 telephone call indicating that the defendant and five or six companions had invaded her home in Pleasant Grove, Utah, which she shared with Justin Lee. She gave her address and indicated the approximate number and gender of the invaders. She also stated that handguns had been used and that the invaders left in three vehicles: a green Chevrolet pickup truck, a blue Chevrolet S-10 truck, and a maroon passenger car. Officer Flygare received the dispatch call, which related this information and indicated that French had personally witnessed these events. The officer arrived at French's home within minutes. As officers were speaking with French, a green truck drove by which French pointed out as being the green truck she had seen in front of her home when the suspects first arrived. Officer Flygare broadcasted the description and approximate location of the green truck, asking that it be stopped in connection with the aggravated burglary. Another officer, Officer Tauffer, pursued and stopped the truck to question the driver about the incident.

¶3 The sole driver of the green truck, Tiffanie Davis, informed Officer Tauffer that earlier that morning defendant had approached her and asked where French lived. Davis also described the defendant's vehicle, indicating that he was driving a blue truck and his friends had a maroon vehicle. She also indicated that the group was currently at her house. Officer Tauffer broadcasted this information over his police radio. As the officers followed Davis back to her home they observed a blue truck followed by a maroon car matching the description and number of occupants given by French and Davis, passing in the opposite direction. Based upon the dispatch and bulletin from Officer Tauffer, Officer Eastman stopped the blue truck and removed defendant and the others. In removing the occupants, police found two guns — an SKS assault rifle and a twelve-gauge shotgun — which some officers testified were in plain view in the bed of the truck. Meanwhile, Officers Willes and Blackhurst stopped the maroon car and, after removing the occupants, saw and confiscated three loaded guns in plain view.

¶4 Defendant was charged with aggravated burglary of a dwelling and possession of a firearm by a restricted person. The trial court, after conducting an evidentiary hearing, denied defendant's motion to suppress the seized weapons.2 The matter was then tried before a jury. Defendant was tried together with two co-defendants, Frank Pettingill and Donald Veteto.

¶5 During the trial, and despite a relevancy objection from the defendant, the State elicited testimony regarding the amount of ammunition in and the firing status of the SKS assault rifle and the twelve-gauge shotgun. The prosecutor also called several witnesses at trial to testify for the State. French, an in-custody witness, appeared in civilian clothing while Michael Hubbard, a co-defendant also in custody, appeared in jail attire. Before Hubbard testified, defendant moved for a mistrial and objected to Hubbard's appearance in jail garb. The trial court denied the motion.

¶6 During his closing argument, the prosecutor gave several reasons why the testimony of certain co-defendants was credible, including the following:

If you look at the manner they testified, they saw they were both threatening while they had the guns. They didn't come in and try to make a clean story to the State. And I recognize that having known the defendants and having engaged in this incident with the defendants that they would be somewhat reluctant.

The trial court sustained defendant's objection to this comment and gave a curative instruction, telling the jury to "[r]emember my admonition. Statements of the lawyers are not evidence in the case." In addition, the court's final jury instructions included an admonition that statements of counsel were not evidence.

¶7 The jury found defendant and his co-defendants guilty of aggravated burglary. Defendant was also found guilty of possession of a firearm by a restricted person. At sentencing, the court determined that the group crime penalty enhancement statute, Utah Code Ann. § 76-3-203.1, was constitutional and ordered that it be imposed against the defendant for the aggravated burglary offense. The court sentenced defendant to an indeterminate term of five years to life. The court applied the enhancement statute, sentencing defendant to an additional nine years.

¶8 Defendant argues on appeal that: (1) the trial court erred in denying his motion to suppress the admission of the weapons; (2) the trial court erred in admitting evidence regarding the ammunition and firing status of the SKS assault rifle and twelve-gauge shotgun; (3) the trial court should have declared a mistrial when the prosecutor selectively chose to dress an in-custody witness in jail attire; (4) the comments by the prosecutor in closing argument amount to reversible error; (5) the cumulative effect of the errors warrants reversal; (6) the group crime penalty enhancement statute is unconstitutional and therefore should not have been imposed; and (7) the trial court erred in failing to correct inaccuracies in the presentence investigation report. We will address these issues in turn.

ANALYSIS
I. MOTION TO SUPPRESS
A. In General

¶9 First, defendant challenges the trial court's denial of his motion to suppress the admission of the two assault rifles and three handguns found in the two vehicles. "We review the factual findings underlying the trial court's decision to grant or deny a motion to suppress evidence using a clearly erroneous standard." State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994). However, we review the trial court's conclusions of law based on these findings "for correctness, with a measure of discretion given to the trial judge's application of the legal standard to the facts." State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996); see Kaysville City v. Mulcahy, 943 P.2d 231, 233 (Utah Ct.App. 1997)

(indicating "whether specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewed non-deferentially for correctness" (citation omitted)).

¶10 A car stop and investigatory detention by police of the car's occupants constitutes a "seizure" under the Fourth and Fourteenth Amendments. See State v. Case, 884 P.2d 1274, 1276 (Utah Ct.App.1994)

; State v. Roth, 827 P.2d 255, 257 (Utah Ct. App.1992). To surmount the Fourth Amendment's proscription against unreasonable searches and seizures, a limited crime investigation stop must satisfy a two-part test: "`First, the officer's initial stop must be justified; second, subsequent actions must be within the scope of the circumstances justifying the stop.'" Mulcahy, 943 P.2d at 234 (quoting Case, 884 P.2d at 1276); see Terry v. Ohio, 392 U.S. 1, 19-20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968). Defendant challenges only the first part of the test: whether officers had reasonable suspicion to justify the stop of the two vehicles.

B. Reasonable Suspicion

¶11 A stop is justified only if there is a reasonable suspicion that a person is involved in criminal activity. See Mulcahy, 943 P.2d at 234

. Police "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant th[e] intrusion." Id. (citations omitted). While the required level of suspicion is lower than the standard required for probable cause to arrest, "the same totality of facts and circumstances approach is used to determine if there are sufficient `specific and articulable facts' to support reasonable suspicion." Case, 884 P.2d at 1276 (quoting Terry, 392 U.S. at 21,

88 S.Ct. at 1880) (additional citations omitted). The burden of establishing those articulable facts falls on the State. See id.

¶12 In this case, defendant argues that the stop of the vehicles was not based on articulable facts supporting a reasonable suspicion of criminal activity because the source of the 911 dispatch call was not sufficiently identified by the State at the suppression hearing, although the informant was later identified at trial as the victim, Kornya French. Therefore, defendant argues that the stop violated his Fourth Amendment rights, as well as his rights under article I, section 14 of the Utah Constitution and Utah Code Ann. § 77-7-15 (1999).3 We disagree.

¶13 It is well-established in this state that the articulable facts supporting reasonable suspicion may come from an officer's own observations as well as external information such as an informant's tip via police dispatch, or information, bulletins or flyers received from other law enforcement sources. See Pena, 869 P.2d at 940

("[U]nder certain circumstances, police officers can rely on a dispatched report in making an investigatory stop."); City of St. George v. Carter, 945 P.2d 165, 168 (Utah Ct.App.1997); Mulcahy, 943 P.2d at 234.

¶14 We conclude that the State produced sufficient evidence to show the dispatch was based on articulable facts to justify the stop through the informant's tip. All the State must introduce is evidence showing the informant's tip was reliable, provided sufficient detail of criminal...

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