State v. McCumber

Decision Date09 December 1980
Docket NumberNo. 16716,16716
Citation622 P.2d 353
PartiesSTATE of Utah, Plaintiff and Respondent, v. George Wesley McCUMBER, Defendant and Appellant.
CourtUtah Supreme Court

Bruce C. Lubeck of Salt Lake Legal Defenders Ass'n, Salt Lake City, for defendant and appellant.

Robert B. Hansen, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

HALL, Justice:

Defendant appeals his conviction by a jury, of one count of aggravated sexual assault, 1 one count of aggravated burglary, 2 and one count of attempted rape. 3

At approximately 1:00 a.m. on the morning of Wednesday, May 9, 1979, prosecutrix Nichol was awakened from sleep by the presence of someone in the bedroom of her apartment in Salt Lake County, Utah. The assailant placed his hand over her mouth and threatened her with violence if she moved. Prosecutrix Nichol was unable to see her assailant's face due to darkness, but heard him speak several short sentences regarding the presence of others in the apartment. The assailant placed a blouse over the eyes of the prosecutrix as a blindfold, following which he perpetrated three acts of rape on her person.

At approximately 4:00 a.m. on Wednesday, June 6, 1979, prosecutrix Morris, a resident in the same general vicinity as that of prosecutrix Nichol, was awakened by an assailant who put his hand over her mouth and threatened her with violence were she unwilling "to do what he said." Prosecutrix Morris was able to see the face of her assailant by reason of the light coming in from her window. She was ordered to turn around and not to look at him, the order being accompanied by a sharp, pointed object pressed to her side. She then told her assailant that she needed to go to the bathroom and was released. Upon reaching the bathroom, she turned on the light and turned to see her assailant standing in the hall. At this point, prosecutrix's mother was awakened and called out, and the assailant fled.

Based upon a voice identification by prosecutrix Nichol, defendant was charged with one count of aggravated sexual assault. On the strength of a lineup and voice identification, coupled with identification of a coat belonging to defendant, on the part of prosecutrix Morris, defendant was charged with one count of aggravated burglary and one count of attempted rape. On September 10, 1979, following a trial to the lower court sitting with a jury, defendant was found guilty on all three counts. 4

Defendant first assigns as error the trial court's failure to grant a motion, filed subsequent to entry of not guilty pleas but prior to trial, to sever the counts of the information for separate trial. The trial court denied the motion on the grounds that a challenge to the form or content of the information must be made by motion to quash, and that, so viewed, defendant's motion was not timely filed according to statute.

The Utah Code of Criminal Procedure states that "if the defendant does not move to quash the information or indictment before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash ...." 5 Among the grounds set forth by statute for a motion to quash an information or indictment is the joinder of more than one offense therein. 6 By the strict language of the statute, therefore, defendant effected a constructive waiver of all objections to the information filed against him by his failure to move to quash the information prior to pleading to the charges made therein.

Defendant asserts, however, that the failure of the trial court to agree to a severance of the diverse counts of the information for trial denied him due process of law. While the fundamental right to due process may in fact be waived, such waiver may not be presumed absent a showing that it was knowing and voluntary. 7 This suggests that, in the instant case, the statutory waiver due to failure timely to file a motion to quash, invoked both by the lower court and by the state pursuant to this appeal, may not be used to defeat defendant's right to separate trials of the various charges pressed against him in the event that due process should require. This conclusion is mandated by the absence of any showing that defendant's untimely action in the matter of moving for severance was occasioned by a desire to forego the right of separate trials. We are compelled to agree that due process did require such severance, and remand the case to the trial court for further proceedings.

We are aware that under Utah law, it is permissible to join in the same indictment or information two or more offenses which are of the same or similar character. 8 We also understand that severance of the various counts contained in an information rests within the discretion of the trial court, in the interests of the preservation of justice. 9 Where such joinder jeopardizes a criminal defendant's fundamental rights of due process, however, it must be regarded as an abuse of the discretion so extended. In the instant case, it must be observed that, while four of the five counts charged in the information were indeed of similar character, they did not form part of the same criminal transaction, nor were they so nearly identical as to evince a common design or scheme. The prejudicial impact upon a jury, listening to evidence relating to five separate alleged instances of criminal behavior, cannot be underestimated. It is also to be noted that, were the diverse counts of the information in question to be tried separately, evidence relating to each count would not be heard by the jury trying other counts; the evidence relating to the various alleged offenses is not "mutually admissible." 10 It is also to be borne in mind that, while defendant's motion was not made in time to comply with the strict requirements of statutory law, it was filed well in advance of the trial, and occasioned no surprise or unnecessary inconvenience for the state and the court. A consideration of all the foregoing circumstances leads to the conclusion that defendant had a due process right to severance of the counts contained in the information, and that denial of a motion to that effect was therefore improper, in that the waiver effected by the statute was not proven to be knowing and voluntary.

While the above holding is dispositive of the present appeal, other issues raised by the defendant are herein addressed in the interest of furnishing guidance for the trial court on remand.

Defendant asserts that evidence relating to the photograph and lineup identification by prosecutrix Morris, together with her in-court identification of defendant as her assailant, should have been suppressed inasmuch as the photograph display and lineup were impermissibly suggestive.

Police identification procedures such as photograph displays, lineups, showups, and the like, do not deny the accused due process of law unless, under a totality of the circumstances, they are so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the accused a fair trial. 11 Where an identification procedure, even though suggestive, does not give rise to a substantial likelihood of misidentification, no due process violation has occurred. 12 In determining the reliability of the identification under the totality of the circumstances, the court must also consider the opportunity of the witness to view the criminal at the time of the crime, the witness's degree of attention, the accuracy of any prior description of the criminal, the level of certainty demonstrated during the identification procedure, and the time between the crime and the identification. 13

In the instant case, defendant correctly observes that prosecutrix Morris had a very limited opportunity to observe her assailant. Her view of his face was very brief, and occurred in a darkened room immediately after she had been awakened from sleep. Such factors, however, although they may weaken the probative impact of the evidence offered, do not mandate suppression of the evidence in the name of due process without some showing that the identification procedures were themselves impermissibly suggestive. It is to be observed in this regard that the photographic display could not have been impermissibly suggestive, as prosecutrix Morris failed, as a result thereof, to identify defendant's photograph at all. Instead, she selected other photographs asserting that the individuals therein exhibited traits similar to those of her assailant. With regard to the lineup identification procedure, the defendant asserts only that the other individuals in the line were insufficiently similar to him in appearance. Such an assertion is dubious in light of the fact that defendant himself selected the other individuals to appear in the lineup. It is not the purpose of a police lineup to present a criminal victim with a procession of individuals so nearly identical as to make identification based on normal observation virtually impossible. The individuals appearing in the lineup complained of by defendant were not so different from him in appearance as to render the lineup impermissibly suggestive. As such, the admission of the lineup identification, and of the in-court identification (to the extent based thereon) were entirely proper.

Defendant next urges error in the trial court's failure to suppress the admission into evidence of hair samples taken from his head during the process of the investigation. Specimens of head hair were found in the bed upon which prosecutrix Nichol was assaulted. Salt Lake County Sheriff deputies secured a search warrant for the purpose of extracting hair samples from defendant in order to make a comparative analysis. Defendant urges that the warrant was invalid, and therefore the taking of the hair samples was an unreasonable search and seizure in violation of his constitutional rights. 14

It has generally been held that the simple...

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