State v. Lebeau

• Decision Date: 23 August 2012
• Docket Number: No. 20100072–CA.,20100072–CA.
• Citation: 715 Utah Adv. Rep. 46,286 P.3d 1,2012 UT App 235
• Parties: STATE of Utah, Plaintiff and Appellee, v. Andrew LEBEAU, Defendant and Appellant.
• Court: Utah Court of Appeals

286 P.3d 1

715 Utah Adv. Rep. 46

2012 UT App 235

STATE of Utah, Plaintiff and Appellee,

v.Andrew LEBEAU, Defendant and Appellant.

No. 20100072–CA.

Court of Appeals of Utah.

Aug. 23, 2012.

Linda M. Jones and Brittany D. Enniss, Salt Lake City, for Appellant.

Mark L. Shurtleff and Jeanne B. Inouye, Salt Lake City, for Appellee.

Before Judges ORME, ROTH, and CHRISTIANSEN.

OPINION

ORME, Judge:

¶ 1 Defendant Andrew Lebeau appeals his convictions of aggravated kidnapping, a first-degree felony, seeUtah Code Ann. § 76–5–302 (2008); ¹ aggravated assault, a third-degree felony, see id. § 76–5–103 (Supp. 2012); failure to respond to an officer's signal to stop, a third-degree felony, see id. § 41–6a–210 (2010); and cruelty to an animal, a class B misdemeanor, see id. § 76–9–301(2) (2008). Defendant asserts that his convictions were tainted by prosecutorial misconduct. He also appeals his life without parole sentence on his conviction for aggravated kidnapping. Imposition of this sentence, usually reserved for capital offenses, is indeed troubling. Nonetheless, we must affirm.

BACKGROUND

¶ 2 Defendant was charged in March 2009. During a three-day trial in September of that year, Defendant entered a guilty plea for failure to respond to an officer's signal to stop. The jury found Defendant not guilty of attempted murder but convicted him of aggravated kidnapping, aggravated assault, and cruelty to an animal. The trial court sentenced Defendant as follows: for count I, aggravated kidnapping, life in prison without the possibility of parole; for count II, aggravated assault, a prison term not to exceed five years; for count III, failing to respond to an officer's signal to stop, a prison term not to exceed five years; and for count IV, cruelty to an animal, a suspended jail term of 180 days. The court ordered the prison terms on counts II and III to run consecutively to count I, and it ordered full restitution.

I. Factual Background ²

¶ 3 Defendant and his girlfriend (Girlfriend) had lived together for about eighteen months as of the time of the events giving rise to this case. According to Girlfriend, they had a “pretty good relationship” for about a year, but by late 2008 “things had changed quite a bit.”

¶ 4 In February 2009, Girlfriend moved out of the bedroom she shared with Defendant and into a different room in the house. Both Defendant and Girlfriend regularly used drugs that they purchased from a friend of Defendant (Friend). Around the time Girlfriend moved to her own room, Defendant became suspicious that Girlfriend was seeing Friend for purposes unrelated to drug purchases. Girlfriend testified that Defendant became so suspicious that he once tampered with her car to keep her from going out.

¶ 5 Later that month, Girlfriend left the house to do various errands and to see Friend. She returned home around 5:30 p.m., but left again and spent the evening with Friend. Throughout the day and evening, Defendant called her a number of times and sent her text messages. She answered one or two of his calls but then turned off her phone. Defendant left her multiple voicemail messages that went unanswered. When Girlfriend returned home around 10:30 or 11:00 p.m., Defendant angrily confronted her. She did not want to talk or fight, and she refused to tell him where she had been. Defendant then sat on her, broke her phone, hit her in the face and head, and tried to choke her. Eventually, she admitted she had been with Friend.

¶ 6 Defendant and Girlfriend continued to argue, while also using drugs. At one point during the evening, Defendant told Girlfriend, “You better not run, because I'll catch you.” Defendant eventually took her into the garage, which he had previously modified by permanently sealing the bay door. The only remaining entrances to the garage were two locked doors, to which Girlfriend had no keys. Defendant left Girlfriend there alone for a few minutes. When he returned, he “beat [her] down,” yelled at her, and ripped her clothes to “tattered shreds.” He threw a cue ball at a mirror and shattered it. He eventually told her they were going for a “fast ride.” Speaking to his dog, Sally, Defendant said, “Sorry that you have to come along with us,” “Sorry you've got to go down with it,” and “If she just hadn't have broke our heart, you know, this—this wouldn't have to happen.” Before leaving, he wrote the date and following verse on the wall: “I was here, but now I'm gone. Those who knew me knew me well; those who didn't can go to hell. See you there.”

¶ 7 Girlfriend, Defendant, and Sally then walked to Defendant's car, which was parked in the driveway, and Girlfriend got into the passenger seat. Defendant put Sally in the back seat and got behind the wheel. Before getting into the car, Girlfriend smoked marijuana and Defendant took some pills, including Lortab and morphine. Defendant then drove toward Friend's neighborhood. As they were driving, Girlfriend saw a police officer in a nearby vehicle and “stared at him,” hoping to get his attention. Having observed that Defendant's car lacked a rear license plate, the officer followed the car and eventually engaged his emergency lights. Defendant was driving at about 25 miles per hour at that point. Girlfriend screamed at Defendant to pull over, but he did not stop.

¶ 8 Defendant drove to the street where Friend lived. Once there, he pulled into a driveway, turned around, and headed back toward the police car. The officer maneuvered his car out of the way to avoid being hit. Defendant then drove his car toward Friend's truck, which was parked at the end of the dead-end street. As he did so, Girlfriend opened her door. Defendant accelerated as he drove toward the truck. When he hit Friend's truck, the impact pushed the truck through a fence, and it eventually came to rest forty-three feet from its location at the curb. An accident reconstruction specialist estimated that Defendant was traveling at about 58 miles per hour when he hit the truck. Another officer who observed the event testified that he saw no brake lights as Defendant headed toward the truck. He also saw Girlfriend ricochet off the passenger side door and into the street as the car hit the truck. Girlfriend suffered severe injuries. The dog was also injured and required surgery. Defendant was not seriously hurt.

II. Background Regarding Prosecutorial Misconduct

¶ 9 In closing arguments, during his rebuttal, the prosecutor talked about the trial testimony at length. Regarding the State's witnesses, the prosecutor stated that the doctors, toxicologists, and police officers had no “personal interest in the outcome of this case” and were unbiased and independent witnesses. He argued that Girlfriend “has nothing to gain” and “no motive to lie.” The prosecutor also stated that the consistency of Girlfriend's statements should assure the jury that she had “an excellent memory, and excellent knowledge of the events.” The prosecutor also stated that Defendant's witnesses were all close friends or family members who did not “want to see their brother, their son, their pal; they [did not] want to see him go to jail.” The prosecutor said that Defendant had the “biggest motive to tell [the jury] what [it] want[ed] to hear. He's got a lot at stake. He makes an effort to help himself out.” The prosecutor stated that Defendant, in a telephone call from jail, had lied to Girlfriend about whether he remembered what happened. The prosecutor described inconsistencies between Defendant's testimony and the testimony of other witnesses.

¶ 10 The prosecutor also commented about the lack of evidence corroborating Defendant's story. Concerning Defendant's testimony that he spent some time on the day of his crimes buying a shirt as a gift for one of his friends, the prosecutor stated that this friend did not testify about the gift. Regarding Defendant's sister's testimony that the verse Defendant wrote on his door before leaving the garage was one of Defendant's favorite sayings and that he had previously written it on the wall of his mother's Alabama home and in his school yearbook, the prosecutor pointed out that the sister did not bring a copy of the yearbook or a picture of the wall to support her testimony. The prosecutor also stated that Defendant's mother was not questioned about the verse and further stated that there was “no corroborative evidence to show [the jury] that any of those claims [that Defendant had quoted the verse before] are reliable.”

¶ 11 With regard to whether Defendant had the required intent to commit the alleged crimes, the prosecutor stated:

Defense Counsel brought up in his opening statement this issue of is this an accident or is it intentional? He's correct in saying that intent, it's a high state of mind. So let's look at some of the evidence, and help you determine whether or not this was an accidental or intentional act.

I'll go—I'll start by telling you, I submit to you that it is an intentional act. So what do I use to come to that conclusion? Look at the intentional acts of the defendant. He intentionally disabled [Girlfriend]'s car.... He intentionally broke [Girlfriend]'s phone. He intentionally took [Girlfriend]'s keys.

He intentionally hit [Girlfriend] repeatedly in the face; intentionally strangled her; intentionally threatened her not to run; ... intentionally threw the pool ball at [Girlfriend], specifically her head; intentionally wrote the [verse], ...; intentionally said, “We're going on a fast ride”; intentionally apologized to Sally for having to do this; intentionally took hits of crack; intentionally took a handful of pills; intentionally put the dog in the car.

Intentionally drove to [Friend]'s house; intentionally refused to yield to police; intentionally ignored [Girlfriend]'s pleas to stop the car; intentionally turned right on [Friend's street]; intentionally pulled in the driveway and turned around; intentionally drove past [the officer], almost hitting...