State v. McCallie

Decision Date07 January 2016
Docket NumberNo. 20140148–CA.,20140148–CA.
Citation369 P.3d 103
CourtUtah Court of Appeals
Parties STATE of Utah, Appellee, v. James Christopher McCALLIE, Appellant.

Samuel P. Newton, for Appellant.

Sean D. Reyes, Salt Lake City, and Tera J. Peterson, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and KATE A. TOOMEY concurred.

Opinion

VOROS, Judge:

¶ 1 After an evening of drinking and card-playing, James Christopher McCallie and an acquaintance had an altercation involving a handgun. The acquaintance (Victim) got the worst of it, suffering a non-fatal gunshot wound to his abdomen. McCallie claimed self-defense, but the jury convicted him of aggravated assault, a third-degree felony. On appeal, McCallie contends that his right to remain silent was infringed when the prosecutor questioned why McCallie had not claimed self-defense in his police interview. We agree with McCallie that constitutional error occurred, but we agree with the State that the error was harmless beyond a reasonable doubt. We therefore affirm the conviction.

BACKGROUND1

¶ 2 Around 10:00 a.m. on March 30, 2013, Victim visited his aunt and uncle at their home. He brought a half gallon of whiskey for a day of drinking and cribbage. Sometime later, McCallie, who rented a room from Victim's aunt and uncle, returned home with an 18–pack of beer after completing a long-haul route as a truck driver.

¶ 3 McCallie and Victim drank, played cards, argued, and talked about guns. Victim asked to see McCallie's gun, and McCallie obliged. McCallie retired to his bedroom multiple times; each time, Victim followed and asked McCallie to come out and drink with him; each time McCallie joined him. At some point, McCallie and Victim's aunt got into a verbal confrontation. McCallie called her a derogatory name, and Victim demanded that McCallie apologize. McCallie refused; he "went to [his] room and ... was going to go to bed ... when [Victim] came in for the last time."

¶ 4 McCallie testified that as he sat on his bed, Victim stood over him with one foot on top of McCallie's feet and "both of his fists up." McCallie grabbed his gun from under his pillow. McCallie testified that he did not have his finger on the trigger but rather that he placed it "across the frame of the weapon." Then, according to McCallie, Victim grabbed the gun, McCallie pulled back on the gun, Victim fell on top of him, and when Victim fell, Victim "pushed the trigger and fired the weapon himself."

¶ 5 Victim gave a different version of events. He testified that McCallie invited him to his room for some brandy. Victim followed McCallie down the hall to his room when, suddenly, McCallie turned around "and he's got a gun." Then, according to Victim, McCallie "[p]ulled back the hammer, raised it up and pointed it in [Victim's] face." Victim testified that McCallie said "How about I just fuckin' kill you?" Victim grabbed McCallie's wrist with one hand and the barrel of the gun with the other hand. As Victim tried to pull the gun away, it came down near his side, "and then the gun went off." Victim suffered a non-fatal gunshot wound to his abdomen.2

¶ 6 After his arrest, McCallie acted—to use his word—"belligerent" with police. He testified that they "were trying to read [me] my rights and do the interrogation ... they were asking me what happened and it's like, ‘I'm not telling you anything’ and they read my rights and said I'm—‘no, I don't understand my rights, I'm not telling you anything.’ " On cross-examination, McCallie described the attempted interrogation:

[Prosecutor:] [T]hen they offered you a Coke?
[McCallie:] Yes.
[Prosecutor:] And your answer was, yes, I'll have a rum and Coke.
[McCallie:] Sure. I was being belligerent.
[Prosecutor:] ... And they came back and [said] we'll go get you a Coke and then you said not a problem, how about a six pack and a cigarette?
[McCallie:] Yes.
[Prosecutor:] And then you asked them, "Still don't understand why I'm here. What happened?"
[McCallie:] Exactly.
[Prosecutor:] They said you're under arrest and you said for what? Yes?
[McCallie]: Yes.
....
[Prosecutor:] And then [they] tried to explain and again you said, "For what? Why am I here?" And then they explained your rights.
[McCallie:] Yes.
[Prosecutor:] And then at one point [the detective] says what part of your rights do you not understand and your answer was "The part where you're fucking jerking me [around]. What the fuck am I doing here to begin with? You people woke me up."
[McCallie:] Yes.
[Prosecutor:] [The detective] tries to explain—this could be a real short thing. And you said, "No, I want to know what the fuck I am doing here in the first place...."

¶ 7 Before trial, McCallie's trial counsel moved to exclude McCallie's police interview because he "stated numerous times that he didn't understand his Miranda rights and finally the State gave up and did not question [him] any further." The prosecutor responded that he would not elicit any testimony from the detective about the content of his interview with McCallie, because "that can be cast as us commenting on his right to remain silent." Accordingly, the detective testified about McCallie's demeanor, attitude, and general belligerence during the attempted interrogation but not about any of McCallie's statements.

¶ 8 However, in closing arguments, the prosecutor described the evolution of McCallie's story over time as proof that McCallie had fabricated it:

[T]he facts that I've offered react together, show an evolution, a progression of what? Of the defendant's fabrication.
....
The evolution of his story from the very beginning when they question him, what does he say? Why am I here? Why are you jerking me [around]? Nothing happened. You woke me up. You woke me up. He didn't say it was an accident. He doesn't say this was self-defense.

McCallie's trial counsel objected and moved for a mistrial on the ground that the prosecutor had "comment[ed] on [McCallie's] right to remain silent." The court denied the motion.

¶ 9 Ultimately, the jury acquitted McCallie of felony discharge of a firearm but convicted him of third-degree-felony aggravated assault. After the verdict, McCallie moved for a new trial, which the court denied.

ISSUES ON APPEAL

¶ 10 McCallie raises two challenges on appeal. First, he contends that the trial court committed constitutional error by denying his mistrial and new trial motions, because the prosecutor impermissibly commented on McCallie's exercise of his right to remain silent. Second, he contends that the trial court erred in denying his motion for a directed verdict based on the insufficiency of the evidence.

ANALYSIS
I. Constitutional Error

¶ 11 McCallie contends that the trial court erred "in denying [his] motion for mistrial and motion for a new trial, given the State's comments regarding [his] exercise of his right to remain silent." The State contends that the prosecutor's closing argument "was not that Defendant had remained silent when given an opportunity to offer an innocent explanation for his conduct, but rather that his statements to the police and others were inconsistent with his trial testimony." Accordingly, the State maintains that "[t]his type of argument is proper."

¶ 12 "We review a trial court's ruling on a motion for a new trial under an abuse of discretion standard. At the same time, however, we review the legal standards applied by the trial court ... for correctness...." State v. Billingsley, 2013 UT 17, ¶ 9, 311 P.3d 995 (first omission in original) (citations and internal quotation marks omitted). If we determine the trial court erred, and "the error results in the deprivation of a constitutional right, we apply a higher standard of scrutiny, reversing the conviction unless we find the error harmless beyond a reasonable doubt." State v. Calliham, 2002 UT 86, ¶ 45, 55 P.3d 573 ; see also Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). "The State bears the burden of proving that an error passes muster under this standard." Brecht v. Abrahamson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

A. The Prosecutor Impermissibly Commented on McCallie's Silence.

¶ 13 McCallie argues that "[t]he State's use of Mr. McCallie's silence as evidence of guilt violates his right against self-incrimination and was a critical error requiring reversal." He asserts that the prosecutor's statement during closing amounted to an argument that "McCallie made up the story later, otherwise he would have shared it at the time of interrogation."3

¶ 14 The State, on the other hand, argues that the prosecutor "described how Defendant told the police not that he acted in self-defense or that it was an accident—as he did at trial—but that he did not know what happened because the police had just awakened him." Thus, the State argues that the prosecutor "did not raise the inference that silence equals guilt; in fact the [prosecutor] did not mention Defendant's silence at all. Instead, the [prosecutor] properly argued that Defendant's trial testimony was inconsistent with his prior statements to the police" and others.

¶ 15 The Fifth Amendment to the United States Constitution commands, "No person ... shall be compelled in any criminal case to be a witness against himself...." U.S. Const. amend. V. And the Supreme Court's decision in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), requires "that a person taken into custody be advised immediately that he has the right to remain silent, that anything he says may be used against him, and that he has a right to retained or appointed counsel before submitting to interrogation." Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976). Implicit in the Miranda warning is the "assurance that silence will carry no penalty." Id. at 618, 96 S.Ct. 2240. Consequently, where a defendant remains silent after hearing Miranda warnings, "it would be fundamentally unfair and a deprivation of due process...

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