State v. Perez

• Decision Date: 20 June 2002
• Docket Number: No. 20000517-CA.,20000517-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Juan Quiterio PEREZ, Defendant and Appellant.
• Court: Utah Court of Appeals

52 P.3d 451

2002 UT App 211

STATE of Utah, Plaintiff and Appellee, v. Juan Quiterio PEREZ, Defendant and Appellant.

No. 20000517-CA.

Court of Appeals of Utah.

June 20, 2002.

Stephen R. McCaughey, McCaughey & Metos, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Marian Decker, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, DAVIS, and ORME.

OPINION

ORME, Judge:

¶ 1 Defendant Juan Quiterio Perez appeals his aggravated burglary and attempted murder convictions. He raises several issues on appeal. Perez makes two claims regarding the jury instructions at trial. He argues (1) that the trial court's inclusion of a jury instruction on attempted depraved indifference murder was prejudicial error, and (2) that the trial court's failure to include an instruction on criminal attempt amounts to manifest injustice. Perez also raises two issues regarding the State's alleged failure to properly notify him of expert witness testimony. He claims that (1) the trial court abused its discretion by not excluding the expert testimony, pursuant to Rule 16 of the Utah Rules of Criminal Procedure, and (2) the trial court erred by not granting a continuance pursuant to Utah Code Ann. § 77-17-13(4)(a) (1999). Finally, Perez claims the trial court abused its discretion by failing to consider all the relevant sentencing factors before imposing consecutive prison terms.¹

¶ 2 We affirm in part, reverse in part, and remand for a new trial on the attempted murder charge.

BACKGROUND

¶ 3 The victim in this case, Ellen, and her adult son, Robert, moved into a four-plex apartment in Midvale, Utah, on April 28, 1999. On August 9, 1999, at about 12:30 a.m., an intruder entered Ellen's apartment through the kitchen window, went to her bedroom, and attacked her with a knife as she lay in bed. Ellen sustained a three-centimeter cut under her eye and a one-centimeter cut on her scalp, each requiring stitches, as well as abrasions on her shoulder, breast, arms, and hands. After her assailant left, Ellen woke Robert and then called the police.

¶ 4 Ellen was still on the phone when Officer Holdaway arrived. She told Officer Holdaway that she awoke to find a person on top of and assaulting her. Ellen could not identify her assailant, but she said she thought he was Hispanic because she had experienced previous problems with Hispanics in the neighborhood and because the assailant "smelled" Hispanic.

¶ 5 Officer Wathen arrived thereafter and conducted the crime scene investigation. After doing a cursory walk-through of the crime scene, Officer Wathen looked for fingerprints near the kitchen window where Ellen said her assailant entered and exited the apartment. On the tile of the windowsill, he found several prints, one of which was clearly discernible. That print was left by a finger from a right hand. Officer Wathen found other prints on the window pane that were clearly visible to the naked eye, assisted only by the illumination of a flashlight. They were from a left hand. A Detective Burgon later determined that both the print on the windowsill and the prints on the window pane matched Perez's fingerprints.

¶ 6 A month after the incident, Detective Norton, the case manager, showed Ellen an array of six photos, including one of Perez, who has a distinctive birth mark on his forehead. Although Ellen thought a couple of the men looked familiar, Detective Norton indicated Ellen "didn't recognize anybody in there as anybody that she had ever seen before."

¶ 7 On September 30, 1999, Perez was charged with aggravated burglary and attempted criminal homicide, and on October 5, 1999, Detective Norton interrogated Perez. Two Immigration and Naturalization Service agents participated in the interrogation and provided Spanish translation for Detective Norton. Agent Earnest interpreted while waiting for another agent to arrive; when the second agent arrived, Agent Earnest left.

¶ 8 The full interrogation was recorded, but portions of the recording were subsequently recorded over. What remained of the tape was interpreted and transcribed by a professional Spanish translator, and that transcript was admitted into evidence at trial.

¶ 9 The transcript of the interrogation reveals that Perez admitted he used to live in the apartment above Ellen and knew of Ellen and her son, though he claimed he had no involvement with them. Perez did admit that he once entered Ellen's apartment. Perez stated, however, that when he entered the apartment it was vacant—unoccupied by persons or furnishings—and that his purpose for entering was to have sex with a prostitute. Perez claimed he entered the apartment through the kitchen window, that he opened the front door from the inside to let the prostitute in, and that the two of them left through the front door. Perez maintained that there was no dead bolt lock on the front door when he went into the apartment. Perez also steadfastly denied any involvement in the incident giving rise to this case.

¶ 10 Perez's trial counsel entered his appearance on October 12, 1999, and made a contemporaneous discovery request for all "inculpatory evidence"; all "reports or results of scientific tests"; "[a]ny police or investigative reports"; and the names, addresses, and telephone numbers of all potential witnesses. On October 20, 1999, defense counsel made a second discovery request, asking specifically for "[a]ll reports, documents and other information related to any fingerprint evidence and analysis conducted." The State's written response to Perez's second discovery request stated both that the "State is not in possession of requested items," and that "[o]ther documents may or may not exist in individual police agency files and you are directed to contact these agencies for such information."

¶ 11 Defense counsel then filed a motion to compel discovery, asserting that "it is clear from what the State has already provided that materials of the kinds that defendant specifically ... requested in his Second Request exist, and are accessible to law enforcement investigating this case." Defense counsel also challenged the prosecution's invitation for the defense to contact the police directly concerning those items. See State v. Shabata, 678 P.2d 785, 788 (Utah 1984) ("Information known to police officers working on a case is charged to the prosecution since the officers are part of the prosecution team."). The trial court never acted on Perez's motion to compel. On March 24, 2000, defense counsel filed a notice that he may call an expert witness on fingerprint analysis. In the notice, counsel stated that he could not specify the substance of the expert's testimony "[s]ince defendant ha[d] not yet received full discovery or an expert witness notice from the State on this subject." On March 30, 2000, two weeks before trial, the State filed a notice of intent to call Detective Burgon as an expert witness on fingerprint identification. The State, however, never notified Perez of an intent to call Officer Wathen as an expert.

¶ 12 During his opening statement at trial, the prosecutor conceded: "We clearly don't have an identification here. But we have some pretty good evidence ... of the fingerprints and the telling stab wounds on Ellen[.]" Defense counsel followed in his opening statement by reiterating that Ellen "really doesn't have any idea who attacked her." He also asserted that although Perez's prints had been found on the window pane and windowsill in Ellen's apartment, the State could not connect Perez to the crime because "the fingerprint witnesses in the case will tell you that fingerprints can last a long time." ¶ 13 At trial, the State called Officer Wathen and, without defense objection, elicited testimony from him as an expert on fingerprint placement. On direct examination, Officer Wathen explained: "I guess the easiest thing to explain is that when a print is fresh or recent, they seem to just jump out. There is very fine, ridge detailing." He then said of the print found on the windowsill: "[I]t just jumped right out. The only way I can describe it is it looked as if I took my own finger and put it on and pulled it away and hit it with a brush. It just came right up." Of the prints found on the window pane, he said: "I took my flashlight, held it up to the window at an angle, and, again, boy, I saw a great set of prints on there that even without fingerprint powder I could see had ridge detail on them."

¶ 14 Rather than objecting to the testimony, Perez's counsel commenced cross-examination. Defense counsel mentioned Officer Wathen's previous testimony that some fingerprints "jump out," and then elicited from Officer Wathen a concession that "fingerprints can last a long time," even years. He also elicited from Officer Wathen a variety of environmental factors that influence the longevity and quality of latent fingerprints, although there was no subsequent testimony analyzing the prints in this case in light of those factors. Officer Wathen also explained techniques, not used in this case, for lifting fingerprints that are "very, very old." He also expressed again that when he "roll[s] [his] own fingers" on a surface and then immediately checks for prints that the "prints pop[ ] right up."

¶ 15 On redirect examination, the prosecutor asked Officer Wathen: "[I]f a print was a year old, would it pop up?" Defense counsel objected to this question on the ground that the defense had "not been noticed up that [Officer Wathen] would be an expert on the time and place of the fingerprints." The court noted that "the question of `pop up' was gone into on cross-examination." Defense counsel acknowledged it had been, but said that going into "pop up" on cross-examination was "only to clarify it." Defense counsel did not at this time or any other explicitly request a continuance or the exclusion of Officer Wathen's testimony.

¶ 16 The trial court overruled defense coun...