State v. MacNeill
| Decision Date | 18 August 2016 |
| Docket Number | No. 20140875–CA,20140875–CA |
| Citation | 2016 UT App 177,380 P.3d 60 |
| Parties | State of Utah, Appellee, v. Martin J. MacNeill, Appellant. |
| Court | Utah Court of Appeals |
Jonathan T. Nish, Woods Cross and B. Kent Morgan, Salt Lake City, Attorneys for Appellant
Sean D. Reyes, Ryan D. Tenney, and Erin Riley, Salt Lake City, Attorneys for Appellee
Opinion
VOROS
, Judge:
¶1 Defendant Martin J. MacNeill appeals his conviction for forcible sexual abuse, a second degree felony. We affirm.
¶2 MacNeill's wife was killed in April 2007.1 Afterwards, their adult daughter (Victim) moved back home to help MacNeill with her four younger siblings. Because all the home's bedrooms were occupied by the younger children, Victim and MacNeill both slept in the master bedroom—she in the bed, he on a sofa. On May 23, 2007, Victim woke up to find MacNeill “rubbing [her] buttocks,” his hand underneath her underwear. He was also “licking ... and kissing” her hand. Victim slapped his hand away and got out of the bed. When she asked what he was doing, he said he was “sorry” and that he had thought she was her mother.
¶3 The next morning, Victim told her older sister (Sister) what had happened the night before. MacNeill spoke to Victim and Sister that day and acknowledged that he had touched Victim. He said he was glad it was Victim in the room and not one of her younger siblings, because he “could have gotten in trouble.”
¶4 Believing her siblings were not safe living with MacNeill, Victim continued to live in the family home to protect them. Two weeks after the incident, Victim argued with MacNeill, accusing him of killing her mother and questioning his relationship with a woman who had moved into MacNeill's home after Victim's mother died. MacNeill later had police remove Victim from the home. As police escorted her away, Victim told them she thought MacNeill had killed her mother. But she did not tell them that MacNeill had sexually abused her. She worried that if she reported the abuse, MacNeill “would not allow [her] to have any” contact with her siblings.
¶5 Victim attempted to “calm the situation down” and “mend some of the friction” with MacNeill by writing and telephoning him to ask his forgiveness. MacNeill eventually allowed her to live in the home again. Victim began speaking with MacNeill about giving her custody of her younger siblings. Although he was receptive to the idea at first, he later told Victim that he planned to give custody to a friend whom the siblings barely knew. Victim told MacNeill that if he did not agree to give her custody, she would report him for sexually abusing her. MacNeill said that he could do whatever he wanted with the children and that if she fought for custody, he would “destroy” her.
¶6 On September 1, 2007, Victim called police and reported the sexual abuse. She recounted the abuse in detail in a recorded interview ten days later. The State charged MacNeill with one count of forcible sexual abuse and one count of witness tampering. MacNeill was bound over on both charges, but in April 2008, the State moved to dismiss the entire case without prejudice. The trial court granted the motion.
¶7 On January 15, 2009, the State refiled the charges for forcible sexual abuse and witness tampering. In May 2009, MacNeill moved to dismiss the entire case, arguing that the State violated his due process rights when it refiled the case and that the delays in bringing him to trial violated his right to a speedy trial. The motion was denied. The magistrate bound MacNeill over on the forcible sexual abuse charge but dismissed the witness tampering charge.
¶8 MacNeill sought interlocutory review of the trial court's denial of his due process and speedy trial claims. This court granted his petition. In September 2012, we affirmed the trial court's resolution of both issues. See State v. MacNeill , 2012 UT App 263, 286 P.3d 1278
. MacNeill then filed a petition for certiorari with the Utah Supreme Court, which the court denied. The case then returned to the trial court.
¶9 While this case was pending, the State filed murder charges against MacNeill for the death of his wife. The court scheduled his trial on the murder charges for October and November of 2013. MacNeill requested that his forcible sexual abuse trial be delayed until after the murder trial. The trial court agreed and scheduled the trial for the forcible sexual abuse charge for December 2013. MacNeill's counsel later asked for more time to prepare between the two trials. Over the State's objection, the court rescheduled the trial for February 2014.
¶10 On November 8, 2013, MacNeill was convicted of murder. Two months later, he filed a motion to change venue in this case, alleging that “excessive publicity” surrounding the murder trial would impair his ability to receive a fair trial in Utah County. The trial had been live-streamed, profiled by the national media, and reported on daily by local and statewide newspapers.
¶11 Before the court ruled on MacNeill's motions, MacNeill's counsel filed a petition seeking a competency evaluation of MacNeill. The court stayed all proceedings until the competency review could be completed. Two competency evaluations were submitted to the court. One of the evaluators reported that MacNeill had repeatedly refused to cooperate, delaying the evaluation for about two months. On May 5, 2014, the court found MacNeill to be competent and rescheduled the trial for July 2014.
¶12 On May 14, 2014, MacNeill filed another motion to dismiss the case, asserting that his due process rights had been violated because the State had destroyed the recording of Victim's September 11, 2007 police interview. The prosecutor admitted that the recording had been inadvertently erased, but stated that “a detailed written narrative of the interview” had been given to MacNeill in October 2007.
¶13 Two weeks before trial, the court ruled on all outstanding motions. It denied MacNeill's motions to change venue and to dismiss due to the destruction of evidence.
¶14 The trial took place in July 2014. The trial court conducted voir dire on the first day. The court identified MacNeill by name, read the charges against him, and asked if any prospective jurors knew him or “may have heard of him.” Of the eight jurors who were ultimately empaneled, only one had heard of MacNeill.
¶15 Defense counsel sought to question each prospective juror individually in chambers about their knowledge of MacNeill's murder case and whether they would be biased because of it. The court hesitated, observing that these questions would necessarily inform the jurors about the murder case, but eventually agreed. Defense counsel questioned each of the eight jurors who eventually sat. After both parties exercised their peremptory challenges, defense counsel passed the eight jurors for cause.
¶16 The prosecutor did not mention the murder case in his opening statement. Defense counsel referred to the murder case multiple times in his opening statement, explaining that Victim's belief that MacNeill killed her mother gave her an “ulterior motive[ ]” to falsely accuse MacNeill of sexual abuse. During direct examination, Victim repeatedly volunteered that MacNeill had “murdered” or “killed” her mother. Defense counsel did not object to any of these statements. Instead, on cross-examination, he used Victim's statements to attack her credibility. In closing argument, defense counsel reiterated that because Victim believed MacNeill murdered her mother, she “obviously” had “a motive and strong interest to at least slant [her] testimony, if not misrepresent the truth.”
¶17 The jury convicted MacNeill of forcible sexual abuse, a second degree felony.
¶18 First, MacNeill contends that the trial court abused its discretion in denying his motion to change venue.
¶19 Second, MacNeill contends that his counsel was ineffective for not objecting to Victim's testimony that she thought MacNeill murdered her mother.
¶20 Finally, MacNeill contends that the delays in bringing this case to trial violated his right to a speedy trial.
¶21 MacNeill contends that the trial court abused its discretion in denying his motion to change venue “because a fair and impartial trial was impossible in the jurisdiction in which [he] was tried.”
¶22 “[I]f a party believes that a fair and impartial trial cannot be had in the court location or in the county where the action is pending, that party may move to have ... the case transferred to a court location in a county where a fair trial may be held.” Utah R. Crim. P. 29(d)(1)
. “A decision to deny or grant a motion for a change of venue is within the discretion of the trial court and will not be reversed absent clear abuse of that discretion.” State v. Cayer , 814 P.2d 604, 608 (Utah Ct. App. 1991). “The ultimate test of whether a failure to change venue constitutes an abuse of discretion is whether the defendant was tried by a fair and impartial jury.” State v. Lafferty , 749 P.2d 1239, 1250 (Utah 1988). In short, “because the purpose of a change of venue is to protect the parties' right to a fair trial by an impartial jury, once a jury has been impaneled, the determinative question is whether the impaneled jurors were in fact impartial.” Butterfield v. Sevier
Valley Hosp ., 2010 UT App 357, ¶ 20, 246 P.3d 120. “Thus, defendant has the burden of demonstrating the existence of actual prejudice on his appeal.” State v. Bishop , 753 P.2d 439, 459 (Utah 1988), overruled on other grounds , 889 P.2d 393 (Utah 1994). And “[e]vidence of the pervasiveness of pretrial publicity is not enough to answer the question of whether the jury was fair and impartial.” Lafferty , 749 P.2d at 1250.
¶23 When a jury panel is seated, a defendant who passes the jury panel for cause thereby acknowledges that the jury is impartial. State v. Widdison , 2001 UT 60, ¶ 39, 28...
To continue reading
Request your trial
-
State v. Carrera
...denial of this motion, but he waived the issue by passing on the jury panel for cause. See State v. MacNeill , 2016 UT App 177, ¶¶ 23–25, 380 P.3d 60 (stating that a party who "passed the jury panel for cause" thereby "forfeited any claim of juror bias and with it his challenge to the court......
-
State v. Carrera
...denial of this motion, but he waived the issue by passing on the jury panel for cause. See State v. MacNeill, 2016 UT App 177, ¶¶ 23-25, 380 P.3d 60 (stating that party who "passed the jury panel for cause" thereby "forfeited any claim of juror bias and with it his challenge to the court's ......
-
State v. Littlejohn
...not properly part of the record. Under these circumstances, we cannot consider the letter as part of our appellate review. See State v. MacNeill , 2016 UT App 177, ¶ 41, 380 P.3d 60 ("An appellate court's review is limited to the evidence contained in the record on appeal." (quotation simpl......
-
JLPR LLC v. Procurement Policy Bd.
...Id. § 63G-6a-1802(4)(a), (b). "An appellate court's review is limited to the evidence contained in the record on appeal." State v. MacNeill , 2016 UT App 177, ¶ 41, 380 P.3d 60 (quotation simplified). And this is true even in instances where we are asked to review an administrative agency's......