State v. McGrath

• Decision Date: 06 January 1988
• Docket Number: No. 19878,19878
• Citation: 749 P.2d 631
• Parties: STATE of Utah, Plaintiff and Respondent, v. Richard McGRATH, Defendant and Appellant.
• Court: Utah Supreme Court

Page 631

749 P.2d 631

STATE of Utah, Plaintiff and Respondent, v. Richard McGRATH, Defendant and Appellant.

No. 19878.

Supreme Court of Utah.

Jan. 6, 1988.

William R. Russell, Salt Lake City, for defendant and appellant.

David L. Wilkinson, David J. Schwendiman, Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

This is a case of first impression, being the first appeal of a conviction under the Utah Racketeering Influences and Criminal Enterprise Act, ¹ Utah Code Ann. §§ 76-10-1601 to -1609 (1978, Supp.1986), sometimes referred to as RICE. Defendant Richard McGrath was charged by a Weber County grand jury in nine separate indictments with eight counts of distribution of a controlled substance for value, in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (1986), and one count of racketeering, in violation of section 76-10-1603. Upon motion of the State, the trial court consolidated all of the indictments for a single trial. At the close of the State's case, the trial court granted defendant's motion to amend count VIII to attempted distribution of a controlled substance for value. The jury returned verdicts of not guilty on counts I through VII (distribution), but convicted defendant on count VIII (attempted distribution) and count IX (racketeering). Defendant appeals, making several claims of error which we will consider separately.

I. IMMUNITY

Narcotics officers arrested defendant McGrath after an undercover investigation revealed that he was the main cocaine supplier for Eric Marcus, a lower-level cocaine supplier and street dealer. Prior to trial, defendant and his counsel met with the Weber County Attorney to discuss a plea negotiation in exchange for defendant's cooperation in the ongoing drug investigation. The parties reduced their proposed agreement to writing, but it was not signed by them. Defendant claims that the county attorney verbally granted him transactional immunity for his cooperation. He also claims that based on the understanding that he had been granted immunity, he waived substantial fifth amendment rights by participating in a debriefing.

Defendant moved to have all charges dismissed because of the alleged grant of immunity. However, the trial court found that the county attorney had not granted any immunity through his verbal representations. Furthermore, the court found that the testimony which defendant gave the questioning officers was not in good faith and therefore any agreement for immunity which may have existed failed because of defendant's lack of cooperation. State v. Ward, 571 P.2d 1343 (Utah 1977), cert. denied, 435 U.S. 1005, 98 S.Ct. 1874, 56 L.Ed.2d 386 (1978). In view of these factual findings, the trial court did not err in its denial of defendant's motion to dismiss. Moreover, defendant has failed to point to any fact disclosed during the debriefing that was in any way related to the nine indictments brought against him or that was in any way used by the State against him.

II. CONSOLIDATION OF INDICTMENTS

Defendant contends that the court erred in granting the State's motion to join for a single trial the eight indictments for distribution and the indictment for racketeering because the charges were not closely related in time or incident to the accomplishment of a single criminal objective as required by Rule 9(a), Utah Rules of Criminal Procedure, and Utah Code Ann. § 76-1-401 (1978). The granting of a motion to join offenses for trial rests within the sound discretion of the trial court, and this Court will not interfere with the exercise of that discretion unless it is shown to have been clearly abused. State v. Peterson, 681 P.2d 1210 (Utah 1984). We find no abuse of discretion in this instance. The eight charges were for trafficking in drugs, allegedly within a seven-week period while the police were conducting their continuing investigation. In most of the instances, the sales of cocaine were made by Marcus to an undercover agent working for the police. Marcus testified that in each instance he obtained his cocaine from defendant. His records disclosed that over a five-month period, defendant had supplied him with cocaine approximately every other day. Because of the similarity of the offenses charged and the fact that the same persons were involved each time and because the transactions occurred over a relatively brief period of time, we find no error in consolidating the eight indictments for trial. The remaining indictment, which was for racketeering, arose out of the repeated sales by defendant to Marcus; therefore, the joinder of that indictment was likewise proper. The situation here was much different from that in State v. Gotfrey, 598 P.2d 1325 (Utah 1979), relied on by defendant, where the defendant was charged with two separate charges of rape which occurred six months apart and involved different victims and a charge of sodomy involving a third victim.

III. WITNESS COLLUSION

Pursuant to rule 615 of the Utah Rules of Evidence, the court granted defendant's motion to exclude all witnesses from the courtroom. While outside, one of the State's witnesses read an agent's report to refresh his recollection of the events of the evening on which the officers searched Marcus's apartment. He also talked to defendant's roommate (Stoddard) and a detective, who were both witnesses for the State, about what he remembered. Upon discovering this, defendant moved for a mistrial. The court admonished the witnesses to refrain from communicating with each other, found that there was no collusion, and denied defendant's motion. When an exclusion order has been violated, the burden is on the accused to demonstrate that he has been prejudiced to the extent that a mistrial should be granted. See State v. Carlson, 635 P.2d 72 (Utah 1981); State v. Dodge, 564 P.2d 312 (Utah 1977) (construing similar witness exclusion rule under prior rules of evidence). The witness testified that talking with the other witnesses did not jog his memory in any respect and that the report he read merely confirmed his recollection of what had happened during the search. There was no evidence or suggestion that any witness changed his testimony because of the conversations. We find no abuse of discretion in the court's denial of defendant's motion for a mistrial. We decline defendant's urging that we adopt the position taken in a dissent in State v. Dodge, supra, that prejudice is inherent in the violation of an order of exclusion.

IV. PREJUDICIAL AND IRRELEVANT EVIDENCE

Over defendant's objections, the court admitted into evidence exhibits 18 and 19 which were two sacks containing drug paraphernalia and a number of containers of suspected drugs. The exhibits were part of the evidence seized at the Marcus apartment. Defendant complains that the court erred in admitting the exhibits into evidence because no foundation was laid to show that all of the items in the exhibits were controlled substances. He also complains that rule 403 of the Utah Rules of Evidence required the court to exclude them because they were not relevant to the offenses charged, their probative value was substantially outweighed by the danger of unfair prejudice to defendant, they confused the jury, and they were needlessly cumulative evidence.

The State's expert on controlled substance testing tested only a random sample of the items within the exhibit. The sample was approximately equal to the square root of the number of items. It is on this basis that defendant challenges the adequacy of the foundation for admitting the exhibits. We need not address the sufficiency of the testing procedure employed because other competent evidence also contributed to the foundation necessary for the admission of the exhibits. Marcus testified that the items were drugs. They were seized in a drug raid along with other known controlled substances. They were also packaged in the same manner as the other known controlled substances.

The exhibits were relevant because they corroborated Marcus's and Stoddard's testimony that defendant was Marcus's supplier and that there was an "enterprise" (see section VI infra ). The exhibits were not needlessly cumulative because they helped establish the extent to which defendant and Marcus had created an enterprise for trafficking in drugs. We will not interfere with the trial court's ruling admitting assertedly inflammatory evidence unless it appears that the trial judge so abused his discretion as to create a likelihood that injustice resulted. State v. Danker, 599 P.2d 518 (Utah 1979). We find no abuse here.

V. PATTERN OF RACKETEERING ACTIVITY

Defendant contends that because the State failed to convict him on at least two of the eight indictments which charged him with distribution of a controlled substance it failed to prove that he engaged in a "pattern of racketeering activity" necessary to convict under section 76-10-1603. "Pattern of racketeering activity" is defined by section 76-10-1602(4) ² as "engaging in at least two episodes of racketeering conduct which have the same or similar objectives, results, participants, victims, or methods of commission, or are otherwise interrelated by distinguishing characteristics and are not isolated events." Acts constituting racketeering under section 76-10-1602(1) do not need to be charged or indicted, and under subsection (w) they include "soliciting, requesting, commanding, encouraging, or intentionally aiding another in commission" of any of the illegal activities listed in section 76-10-1602.

We are cognizant of federal cases that reverse convictions under the Racketeer Influences and Corrupt Organizations Act, 18 U.S.C. §§ 1962-1968 (RICO), after the same court has reversed the conviction of a predicate crime upon which the jury may have relied in reaching the RICO conviction. See, e.g., United States v. Brown, 583 F.2d 659 (3d Cir.1978), cert. denied, 440 U.S. 909, 99 S.Ct. 1217, 59 L.Ed.2d 456, reh'g denied, 441 U.S....