State v. O'Neil, 920439-CA

• Decision Date: 12 February 1993
• Docket Number: No. 920439-CA,920439-CA
• Citation: 848 P.2d 694
• Parties: STATE of Utah, Plaintiff and Appellee, v. Alfred Lee O'NEIL, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 694

848 P.2d 694

STATE of Utah, Plaintiff and Appellee, v. Alfred Lee O'NEIL, Defendant and Appellant.

No. 920439-CA.

Court of Appeals of Utah.

Feb. 12, 1993.

Certiorari Denied July 6, 1993.

William L. Schultz (argued), Moab, for defendant and appellant.

Jan Graham and J. Kevin Murphy (argued), Salt Lake City, for plaintiff and appellee.

Before BILLINGS, P.J., and GREENWOOD and RUSSON, JJ.

BILLINGS, Presiding Judge:

Defendant Alfred Lee O'Neil appeals from three convictions of unlawful distribution of a controlled substance, first degree felonies in violation of Utah Code Ann. § 58-37-8(1)(a), (b) (Supp.1992). Defendant asserts the trial court erred in admitting evidence of his prior conviction. We affirm.

FACTS

Defendant and his wife were charged with three counts of unlawful distribution of methamphetamine. A confidential informant working for the State purchased methamphetamine from defendant's wife on December 6, 10, and 12, 1990. The State alleged defendant knew of the drug sales because he drove his wife to the bar where the transactions occurred. Further, defendant was present in the bar during two of the transactions. Defendant's criminal liability was based on an accomplice theory under Utah Code Ann. § 76-2-202 (1990).

Judge Halliday presided over a joint trial of defendant and his wife. On the first day of trial, counsel for the couple filed a motion and supporting memoranda asking that the State be prevented from introducing evidence about the prior convictions, crimes, wrongs or acts of defendant or his wife. The disputed evidence involved defendant's 1987 conviction for distribution of cocaine. He had received a 1 to 15 year sentence and was paroled in September of 1990. In conjunction with the 1987 incident, his wife pled guilty to a charge of attempted distribution. She had been placed on probation. The State did not file a response to defendant's motion. The judge granted the motion. The jury convicted defendant's wife but could not reach a decision on defendant. Judge Halliday declared a mistrial as to defendant.

Judge Bunnell presided over a subsequent hearing to determine whether to schedule a second trial or dismiss the charges against defendant. At the hearing, the State asked for a ruling on a motion to allow evidence of defendant's prior conviction. After reviewing memoranda in support and opposition, Judge Bunnell granted the motion. At the ensuing trial defendant was convicted.

On appeal, defendant claims the doctrine of "law of the case" precluded Judge Bunnell from reconsidering Judge Halliday's ruling on the admissibility of defendant's prior conviction. Defendant also claims the admission of the prior conviction evidence was reversible error. ¹

I. LAW OF THE CASE

Defendant argues that Judge Halliday's ruling, which denied the admissibility of his Law of the case is a legal doctrine courts apply when refusing to readdress an issue previously decided in the same case. See Plumb v. State, 809 P.2d 734, 740 (Utah 1990); In re Estate of Mecham, 537 P.2d 312, 314 & n. 2 (Utah 1975). We review application of the doctrine under a correction of error standard. See State v. Lamper, 779 P.2d 1125, 1129 (Utah 1989); Richardson v. Grand Central Corp., 572 P.2d 395, 397 (Utah 1977); see also People v. Roybal, 672 P.2d 1003, 1006 (Colo.1983). The policy behind the doctrine is that "in the interest of economy of time and efficiency of procedure, it is desirable to avoid the delays and the difficulties involved in repetitious contentions and rulings upon the same proposition in the same case." Richardson, 572 P.2d at 397. Law of the case applies only to final determinations and "does not prevent a judge from reconsidering his or her previous nonfinal order." Plumb, 809 P.2d at 739-40.

prior conviction, was the "law of the case" and, therefore, Judge Bunnell was precluded from allowing the evidence at his second trial. The State responds that the law of the case doctrine is not applicable.

The doctrine of law of the case has two branches. The first branch requires an issue decided by an appellate court " 'be followed in all subsequent proceedings in the same case ... unless ... the decision was clearly erroneous and would work a manifest injustice.' " Conder v. A.L. Williams & Assocs., 739 P.2d 634, 636 (Utah App.1987) (quoting Daly v. Sprague, 742 F.2d 896, 900 (5th Cir.1984)). "This serves the dual purpose of protecting against the reargument of settled issues and assuring the adherence of lower courts to the decision of higher courts." Roybal, 672 P.2d at 1005. The second branch advises that "a court should not reconsider and overrule a decision made by a co-equal court." Conder, 739 P.2d at 636. See also People ex rel. Gallagher v. District Court, 666 P.2d 550, 553 n. 8 (Colo.1983) (describing law of the case as discretionary when applied to court's own ruling). The second branch neither mandates blind adherence to earlier rulings nor does it "rise to the dignity of res judicata or stare decisis." Richardson, 572 P.2d at 397. In short, a trial court has significantly more discretion to reconsider an issue decided by a co-equal court. ²

Utah courts have not considered the impact of a mistrial on the doctrine of law of the case. Other jurisdictions, faced with conflicting evidentiary rulings in sequential trials have concluded that the doctrine of law of the case is inapplicable.

In State v. Commeau, 438 A.2d 454 (Me.1981), the Maine Supreme Court held, for the purposes of the law of the case, a second trial after a mistrial is not the same case. The defendant argued that his prior convictions should have been excluded because "they were not admitted at his first trial and therefore the doctrine of the law of the case dictates that they be excluded at the second trial." Id. at 460. The Maine Supreme Court disagreed. [T]he law of the case doctrine does not apply when a mistrial has been declared in a proceeding in which a determination was made on the admissibility of prior convictions.... [T]he declaration of a mistrial renders the trial itself a nullity and returns both parties to their original positions, as if there had been no trial.

Id.

A New Jersey appeals court reached the same conclusion in State v. Hale, 127 N.J.Super. 407, 317 A.2d 731 (1974) (per curiam). In Hale, the defendant appealed after a mistrial because the second trial court admitted a confession which the first trial court had ruled inadmissible. Id. 317 A.2d at 732. The appeals court upheld the second court's admission of the evidence. It held the decision excluding the confession during the first trial

was not the "law of the case" binding on the court when the same issue was raised at the second trial. The declaration of mistrial rendered nugatory all of the proceedings during the first trial. The State and defendant were returned to their original positions as if there had not been a trial. Each was entitled to offer evidence and to make motions and objections without limitation to that which had been offered or made at the first trial, and without being bound by the prior rulings of the court with respect thereto. If the result were otherwise, the evidentiary problems on a retrial would be insurmountable and the administration of justice rendered completely unworkable.

Id. at 734.

We agree a second trial after a mistrial is not the same case for purposes of the law of the case. Accordingly, defendant's reliance on the law of the case doctrine to prevent the admission of his prior conviction at the second trial is misplaced.

II. ADMISSION OF THE PRIOR CONVICTION

Defendant also contends that the trial court erred as a matter of law when it allowed evidence of his prior conviction at his second trial. The State responds the evidence was properly admitted to show knowledge on the part of defendant. Prior to the second trial, Judge Bunnell ruled evidence of defendant's and his wife's prior convictions admissible. ³ During trial, the judge considered and also allowed, under Rule 404(b) and Rule 403, testimony which showed that in February of 1992, defendant had attempted to collect a drug debt owed to his wife by the State's confidential informant. ⁴

Defendant argues that evidence of his prior conviction was inadmissible under Rule 404(b) and Rule 403 of the Utah Rules of Evidence. Because the admission of evidence under Rule 404(b) is a question "of law, it is reviewed for correctness. However, the trial court's subsidiary factual determinations should be given deference by the appellate court and only be Thus, the procedure this court follows when reviewing the admission of prior bad act evidence is straight-forward. First, the evidence must, as a matter of law, be admissible under Rule 404(b). Second, we determine, as a matter of law, whether the trial court acted reasonably in striking the probative value versus prejudicial effect balance required by Rule 403. If both those standards are met we will affirm. If we determine either of the first two standards is not met, we must then determine whether the admission of the evidence amounted to prejudicial error.

                overruled when they are clearly erroneous."  State v. Taylor, 818 P.2d 561, 568 (Utah App.1991) (citation omitted);  see also State v. Thurman, 846 P.2d 1256, 1270 n. 11 (Utah1993) (recognizing bifurcated standard when appeals court reviews underlying factual findings).  When reviewing a trial court's balancing of the probativeness of a piece of evidence against its potential for unfair prejudice under Rule 403, we reverse only if the court's decision as a matter of law "was beyond the limits of reasonability."  State v. Hamilton, 827 P.2d 232, 240 (Utah 1992). 5  Improperly admitted evidence requires reversal of a conviction only where we conclude there is a " 'reasonable likelihood that the error affected the outcome of the proceedings.' "  Hamilton, 827 P.2d at 240 (quoting State v. Verde, 770 P.2d 116, 120 (Utah 1989))
                

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