State v. Morgan
| Decision Date | 19 October 2001 |
| Docket Number | No. 20000257.,20000257. |
| Citation | 2001 UT 87,34 P.3d 767 |
| Parties | STATE of Utah, Plaintiff and Petitioner, v. Anna Marie MORGAN, Defendant and Respondent. |
| Court | Utah Supreme Court |
34 P.3d 767
2001 UT 87
v.
Anna Marie MORGAN, Defendant and Respondent
No. 20000257.
Supreme Court of Utah.
October 19, 2001.
Joan C. Watt, Salt Lake City, for respondent.
On Certiorari to the Utah Court of Appeals.
HOWE, Chief Justice:
¶ 1 We granted certiorari to review the decision in State v. Morgan, 2000 UT App. 48, 997 P.2d 910, in which the court of appeals reversed defendant's convictions for possession of methamphetamine with intent to distribute, a second degree felony, in violation of section 58-37-8(1)(a)(iii) of the Utah Code, and possession of marijuana, a class B misdemeanor, in violation of section 58-37-8(2)(a)(i). This court has jurisdiction pursuant to its grant of certiorari review. Utah Code Ann. § 78-2-2(3)(a) & (5) (1996). Our interpretation of case law, necessary in this review, presents a question of law reviewed for correctness. State v. Larsen, 865 P.2d 1355, 1357 (Utah 1993).
BACKGROUND
¶ 2 Defendant was charged with second degree felony possession of methamphetamine with intent to distribute and misdemeanor possession of marijuana. The arresting officer testified at the preliminary hearing that during an inventory search of defendant's vehicle following her arrest on outstanding warrants, he discovered a large amount of methamphetamine in a baggie under the driver's seat, three smaller bags of methamphetamine together with several empty one-by-one-inch baggies in defendant's purse, and a baggie of marijuana in the glove compartment. According to the officer, the methamphetamine found in defendant's purse, together with its packaging, weighed approximately 5 grams. The toxicology report indicated that if the packaging was excluded, the methamphetamine found in defendant's purse weighed approximately 2.4 grams.
¶ 3 The officer testified that he had only one year of police experience and one evening of police officer standards training in drug recognition, packaging, and use. Based on this limited experience, the officer testified, over objection from defense counsel, that the substances appeared to be illegal narcotics. The prosecutor then asked if the officer had an "opinion as to why Ms. Morgan would possess these substances in these quantities?" In response, the officer stated:
Based on my training and experience, it's my opinion that due to the amount and the bag found underneath the seat and the other plastic baggies, that that substance would probably be separated into smaller baggies and sold for profit.
¶ 4 The magistrate found the officer's testimony sufficient to establish possession of the drugs, but insufficient to establish intent to distribute the methamphetamine, ruling the officer's training insufficient to render the opinion. The prosecutor immediately moved to reopen the preliminary hearing to permit another officer who had already been sworn to testify as an expert witness regarding evidence of intent. The magistrate denied the motion and reduced the second degree felony distribution charge to third degree felony possession and bound defendant over on the reduced offense. At a subsequent hearing, the magistrate granted the prosecutor's request to dismiss the information without prejudice, effectively permitting the State to refile the original charges to present additional evidence on intent. The magistrate immediately scheduled a new preliminary hearing in anticipation of the refiling.
(1) the methamphetamine found under the seat in defendant's vehicle weighed 36.1 grams, an amount "generally not consistent with just individual or personal use";
(2) 36.1 grams equated to nearly 1.5 ounces;
(3) the methamphetamine found in defendant's purse weighed 2.4 grams, and was an amount "more in line" with an individual's personal use;
(4) street packaging of methamphetamine was usually 3-6 grams in a one-by-one-inch baggie similar to the empty ones found in defendant's purse;
(5) the marijuana found in the glove compartment weighed 3.7 grams, an amount "more than just simply for personal use,. . . especially when you take into consideration the other packaging materials" that were found;
(6) the methamphetamine, marijuana, and packaging materials when taken together were "more consistent" with distribution than personal use.
¶ 6 Provided with the additional evidence at this second preliminary hearing, the magistrate concluded that there was sufficient evidence to bind over defendant as charged. Defendant then informed the magistrate that she was "anticipating filing a Brickey motion" and asked if the motion should be filed with the magistrate or the trial judge. The magistrate responded that the motion should be filed with the trial judge.
¶ 7 At trial, defendant moved to dismiss the information, arguing that because the second officer was sworn and available at the first preliminary hearing, his testimony was not "new or previously unavailable" evidence as required, according to defendant, for refiling under State v. Brickey, 714 P.2d 644, 647 (Utah 1986). The prosecutor maintained that due process protections articulated in Brickey did not preclude refiling in this case. The court denied the motion to dismiss. Defendant did not petition for interlocutory review.1
¶ 8 Defendant was convicted of second degree felony possession of methamphetamine with intent to distribute and misdemeanor possession of marijuana. She was sentenced to the statutory term of imprisonment for each offense, which terms were suspended except for sixty days, and placed on supervised probation for thirty-six months. She was also fined $5,750, which was suspended except for $750. Defendant appealed.
¶ 9 On appeal, the State argued that the prosecutor's "innocent miscalculation" of the evidence, i.e., the inadequate evidence to support a finding of intent to distribute, constituted "other good cause" sufficient either to reopen or to refile the case. State v. Morgan, 997 P.2d 910, 2000 UT App. 48, ¶¶ 16-18. In a split decision, the court of appeals concluded that refiling the dismissed information was precluded under Brickey and reversed defendant's convictions. Id. The court reasoned that Brickey demands either (1) "new or previously unavailable evidence," or (2) "other good cause" to justify refiling. Id. at ¶¶ 15-16. The court determined that known and available evidence, i.e., the testimony
To continue reading
Request your trial
-
State v. Wilkinson
...or half grams . . . [m]aybe even at the most a gram") (internal quotation marks omitted) (alterations and omission in original); State v. Morgan, 2001 UT 87, ¶ 5, 34 P.3d 767 (stating that officer testified 2.4 grams was consistent with personal use and that methamphetamine is typically pac......
-
State v. Papizan
...the judge for a particular case). For an overview of jurisprudence from other jurisdictions in accord, see State v. Morgan, 2001 UT 87, p. 16, 34 P.3d 767, 771 (Utah 2001) ("[W]hen potential abusive practices are involved, the presumption is that due process will bar refiling.").1 The major......
-
State v. Nielsen
...preliminary stage is cured if the defendant is later convicted beyond a reasonable doubt.”) (internal quotation marks omitted); State v. Morgan, 2001 UT 87, ¶ 7 n. 1, 34 P.3d 767 (“[C]onviction renders any defect [in a bindover order] moot.”).D. Merger ¶ 53 Nielsen's last set of claims conc......
-
State v. Pacheco–ortega
...case law presents a question of law which is reviewed for correctness.” State v. Atencio, 2004 UT App 93, ¶ 7, 89 P.3d 191 (citing State v. Morgan, 2001 UT 87, ¶ 1, 34 P.3d 767).ANALYSIS ¶ 9 According to the State, State v. Brickey, 714 P.2d 644, 645 (Utah 1986), does not prevent the State ......
-
Article, Gerrymandering, Abortion, and Much More: Cases and Issues in the Pipeline at the Utah Supreme Court
...In 2001, in State v. Morgan, the court wrote that the due process inquiry focuses on whether "potential abusive practices are involved." 2001 UT 87, ¶ 15, 34 P.3d 767. When they are not, there is "no presumptive bar to refiling" because a defendant's due process rights are not implicated. I......