State v. Palmer

• Decision Date: 22 July 1993
• Docket Number: No. 930192-CA,930192-CA
• Citation: 860 P.2d 339
• Parties: STATE of Utah, Plaintiff and Appellee, v. Curtis PALMER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 339

860 P.2d 339

STATE of Utah, Plaintiff and Appellee, v. Curtis PALMER, Defendant and Appellant.

No. 930192-CA.

Court of Appeals of Utah.

July 22, 1993.

Elizabeth Holbrook, Salt Lake City, for appellant.

Jan Graham and Kris Leonard, Salt Lake City, for appellee.

Before BILLINGS, JACKSON and RUSSON, JJ.

OPINION

BILLINGS, Presiding Judge:

Defendant, Curtis Palmer, appeals his conviction of aggravated sexual abuse of a child, a first degree felony in violation of Utah Code Ann. § 76-5-404.1 (1990). We reverse.

FACTS

Defendant lived with his mother at 520 East Commonwealth Avenue in Salt Lake County. ¹ He met Chuck Bartholomew while both men were incarcerated at the Utah State Prison. After their release, the men maintained a friendship. Sometime in early 1990, Bartholomew introduced defendant to his stepson, nine year old E.N. Between the end of school in 1990 and December of 1990, E.N. visited defendant numerous times to return borrowed items, to work at defendant's home, or to stay while his parents were gone. Additionally, E.N. once spent the night at defendant's house when E.N.'s sister and some friends were staying at E.N.'s house.

At age five, E.N. had been sexually abused by his natural father. E.N. was removed from his mother's home for a time when he was eight years old for molesting his little sister. E.N. had participated in counseling as a result of these experiences.

On January 7, 1991, E.N.'s mother was walking him and his sisters to school. Because children had teased E.N. previously, he did not want to go to school and threw a tantrum. E.N.'s mother told him she was going to call defendant. The record is unclear as to her motivation for calling defendant. It was either to help calm E.N. down or to have defendant take E.N. to Bartholomew to be punished, or both. E.N. then accused defendant of sexually abusing him. E.N.'s mother took him home and after further questioning called the police.

The case was assigned to Salt Lake City Police Detective Dennis Sweat. On January 11, 1992, the detective left a message on defendant's answering machine. After receiving the message, defendant attempted to phone Bartholomew but reached E.N.'s mother and talked to her instead. On January 14, 1992, and again two days later, defendant contacted Detective Sweat by phone and discussed the situation. According to Detective Sweat, defendant suggested making a deal for community service stating "he never once claimed it didn't happen" and "he wanted to get some advice" before talking. The Salt Lake County Attorney filed an information. The information alleged defendant had committed the crime of "[a]ggravated sexual abuse of a child, a first degree felony, at 520 East Commonwealth, in Salt Lake County, State of Utah." Defendant surrendered and was arrested. The preliminary hearing was held March 28, 1992, at which time defendant was bound over for trial.

At trial, E.N. testified defendant had touched his penis and buttocks "about seven" different times at defendant's house between the end of school in 1990 and December of 1990, forced him to touch defendant's penis once, and tried to force him to kiss defendant's lips. E.N. further testified the last time defendant touched him was at a hot tub rental business. Additionally, E.N. alleged defendant had asked him to touch defendant several times. E.N. also testified defendant had warned E.N. his mother and stepfather would get in trouble if E.N. told anyone about the incidents.

The trial court allowed a "Stipulation of Expected Testimony" of Detective Sweat regarding defendant's prearrest conversations with him to be read into evidence. The jury convicted defendant of sexual abuse of a child. Because he had previously been convicted for attempted sexual abuse of a child, this conviction was enhanced to a first degree felony pursuant to Utah Code Ann. § 76-5-404.1(3)(e) (1990).

Defendant raises numerous claims on appeal. We do not discuss all the issues, ² but rather focus on the numerous issues which require our reversal of defendant's conviction.

I. PROSECUTORIAL MISCONDUCT

Defendant points to a number of instances of prosecutorial misconduct. He argues the prosecutor, both in his cross examination of defendant and his closing arguments, made improper statements. The State responds that defendant failed to preserve all but one issue for appeal and the preserved issue did not amount to prosecutorial misconduct.

Generally, the test used for determining whether a prosecutor's statements are improper and constitute error is whether the remarks " 'called to the jurors' attention matters which they would not be justified in considering in reaching a verdict.' " Improper statements will require reversal if they are determined to be harmful.

State v. Emmett, 839 P.2d 781, 785 (Utah 1992) (quoting State v. Johnson, 663 P.2d 48, 51 (Utah 1983) (quoting State v. Creviston, 646 P.2d 750, 754 (Utah 1982))) (footnote omitted). Failure to object to the improper remarks, however, waives the claim unless the remarks reach the level of plain error. Id. Normally, we find plain error only if we conclude: an error exists, it should have been obvious to the trial court, and it was harmful. State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993); see also State v. Verde, 770 P.2d 116, 121 n. 10; State v. Ellifritz, 835 P.2d 170, 174 (Utah App.1992). But see State v. Eldredge, 773 P.2d 29, 35 n. 8 (Utah) (noting "obviousness requirement poses no rigid and insurmountable barrier to review"), cert denied, Eldredge v. Utah, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989). An error is harmful if it undermines our confidence in the verdict or, put another way, there is a reasonable likelihood of a more favorable outcome without the error. Dunn, 850 P.2d at 1208-09; Ellifritz, 835 P.2d at 174.

A. Unsupported Innuendo

First, defendant claims the prosecutor failed to support prejudicial, inculpatory inferences arising from his questions with appropriate evidence. During cross-examination of defendant the following exchange occurred:

Q. [Prosecutor] You really liked [E.N.], didn't you?

A. [Defendant] Yes.

Q. You admitted as much to his stepfather, didn't you?

A. Yes. I mean, I had a friendship with the stepfather and with [E.N.].

Q. And didn't you, at one time, say to the stepfather, "Yes, I'm having feelings for [E.N.] that I really shouldn't be having?"

A. I don't know whether I made [a] statement to that effect.

Q. That certainly would have been an accurate statement wouldn't it?

A. I mean, I was close to [E.N.]. But if you're talking about sexual feelings, no.

Q. You deny you ever had sexual feelings toward this young boy?

A. Yes.

After further questions on different topics, the prosecutor asked:

Isn't it true that you in fact, on previous occasions, had told [E.N.'s stepfather] that you were concerned about feelings that you were having for E.N. that were inappropriate?

To which defendant answered "no."

The prosecution did not put on evidence that defendant made such an incriminating statement to E.N.'s stepfather. Defendant claims the failure to introduce supporting evidence means the question brought improper information to the jurors' attention. The State responds that under the plain error test any error embodied in the exchange was neither obvious nor harmful.

The Utah Supreme Court, in dicta, recently noted this type of questioning is generally error. See State v. Emmett, 839 P.2d 781 (Utah 1992). In Emmett, after ruling the defendant was entitled to a new trial, the court addressed some issues which it felt might be presented on retrial. One of those issues was the propriety of the prosecutor's questioning. Referring to the defendant's pretrial witness preparation, "the prosecutor asked, 'He didn't tell you to face the jury and tell you exactly what to say? ' " Id. at 786 (emphasis in original). The defendant denied the allegation and no evidence was entered which supported it. The court noted: "Generally, it is error to ask an accused a question that implies the existence of a prejudicial fact unless the prosecution can prove the existence of the fact. Otherwise, the only limit on such a line of questioning would be the prosecutor's imagination." Id. at 786-87. See also United States v. Silverstein, 737 F.2d 864, 868 (10th Cir.1984) (requiring prosecutor who asks accused question implying existence of prejudicial fact to prove the fact); State v. Peterson, 722 P.2d 768, 769-70 (Utah 1986) (per curiam) (holding questioning about prior convictions after witness's denial improper without extrinsic proof of convictions). Hence, we conclude the prosecutor's questions which implied inculpatory facts that were unsupported by evidence were error.

The next question is whether the error is obvious. The trial judge could not know whether later evidence would support the inculpatory inferences of the prosecutor's questions. Thus, we cannot say the error was obvious. However, this is a circumstance "when an error not readily apparent to the court" does not raise an "insurmountable barrier to review." State v. Eldredge, 773 P.2d 29, 35 n. 8 (Utah 1989). In this case, the egregious nature of the prosecutor's question and the strong inculpatory inferences contained therein lead us "to dispense with the requirement of obviousness so that justice can be done." Id. Unless we apply this exception, this type of error would always escape review under the obviousness requirement.

We reserve an analysis of the harmfulness of this error in order to consider it in conjunction with all other errors in the case. See Emmett, 839 P.2d at 786 (assessing harmfulness after considering all errors).

B. Examination on the Veracity of Other Witnesses

While cross-examining defendant, the prosecutor asked him to comment on the conflict between his testimony and that of two other witnesses, E.N. and his mother. The prosecutor asked defendant if E.N. was "mistaken or lying" regarding the visit to...