State v. Perry, 940728-CA

• Decision Date: 13 July 1995
• Docket Number: No. 940728-CA,940728-CA
• Citation: 899 P.2d 1232
• Parties: STATE of Utah, Plaintiff and Appellee, v. Clifford W. PERRY, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1232

899 P.2d 1232

STATE of Utah, Plaintiff and Appellee, v. Clifford W. PERRY, Defendant and Appellant.

No. 940728-CA.

Court of Appeals of Utah.

July 13, 1995.

Rehearing Denied Aug. 14, 1995.

Mary C. Corporon, Salt Lake City, for appellant.

Marian Decker and Jan Graham, Salt Lake City, for appellee.

Before ORME, BENCH, and BILLINGS, JJ.

OPINION

BILLINGS, Judge:

Clifford W. Perry appeals his aggravated kidnapping conviction, a first degree felony in violation of Utah Code Ann. § 76-5-302 (1995). We affirm.

FACTS

At approximately 12:00 midnight on September 21, 1993, the victim stopped at a local Smith's grocery store. She parked her car four to five feet from a large light in the parking lot and entered the store. As she returned to her vehicle, she noticed that a late-model, yellow Cadillac had parked directly in front of her vehicle. She also noticed a man, whom she later identified as defendant, walking between the two cars toward the store. She next noticed he was walking up behind her. The man grabbed the victim around the neck. He informed her that he had a knife and, holding the blade to her throat, ordered her to get into her car.

As the victim entered the vehicle, she could see her assailant's lower body and noticed that he was not wearing any shoes, only a pair of white socks. The assailant ordered her to "slide over" to the passenger seat, and he then entered the vehicle. As the assailant climbed into the car, the victim was able to observe his profile, noting that he had blonde hair that was "really curly and kinda messed up, like he hadn't combed it." The victim could not recall whether the dome light in her car was on when the assailant entered the vehicle, but testified that it always came on when the door was opened and that it was operating properly both prior to and after the incident.

Once the assailant was inside the vehicle, the victim saw the knife, which she described as having a two- to three-inch blade. Her assailant continued to hold the knife in his right hand as he grasped the steering wheel. He demanded, and she handed him, the keys. At this time, the victim again looked directly at the assailant, gaining a three-quarter view of his face. She claimed that although the vehicle's interior was "kind of shadowy, the parking lot light shone through the windshield."

The victim inquired where he was taking her, and apparently referring to the music on the radio, the assailant replied that she had "good taste in music." He then asked the victim where the car lights were located and turned them on. As he began to back out of the parking space, the victim opened the passenger side door and "tried to jump from the car." The assailant grabbed her by the hair, yanking on her ponytail and pulling out several strands. He ordered her to get back in the car, but she pulled away. The victim testified that her assailant confined her in the vehicle for approximately four minutes before she was able to escape.

The victim ran toward another customer, who was loading his groceries into a pickup truck approximately forty to fifty feet away. The customer testified that he observed the victim's escape. The victim told the customer that the man in the car was trying to kidnap her and that he had held a knife to her throat. The victim and the customer observed the assailant get out of her car and run toward the Cadillac. The customer then ran into the store to call the police.

Steve McGregor also witnessed the incident. McGregor was waiting outside in a van while his co-worker entered the store. McGregor observed the victim exit the store. McGregor's attention was next drawn to the victim when he heard her scream and saw her run toward the customer. McGregor ran toward the yellow Cadillac as it backed away from him, then he and his co-worker jumped into their van and followed the Cadillac. The two men never lost sight of the car as it exited the parking lot and proceeded south on 900 East. The van came within two to three feet of the Cadillac and they were able to get the license plate number.

The police arrived at the store approximately five to ten minutes after the incident. The victim described the assailant to an officer. She stated the assailant was a white male in his mid-thirties, that he was approximately 5'6"' to 5'7"' tall and weighed approximately 150 pounds. She also described him as being clean shaven and noted that his hair was collar length, curly, and blonde. She told the officer that she was not certain about the color of the assailant's shirt or pants but noted he was shoeless and wore white socks.

The police ran a registration check on the license plate number and found that the Cadillac was registered to defendant's girlfriend. Several officers went to her home at approximately 1:00 a.m., where they observed the yellow Cadillac parked outside. The officers knocked on the door and defendant answered. The officers noted that defendant substantially matched the witnesses' physical descriptions of the assailant.

With defendant's permission, the police entered his living room, where they observed several items spread out on the coffee table, including a pocket knife with an approximate two-inch blade. The officers also observed defendant's shoes and socks and noted that defendant's white socks were soiled on the bottom. Defendant told the police that he had been at a bar earlier that evening and that he had been the only person driving the Cadillac that night.

An officer brought the victim to defendant's apartment and told her that "he was going to ask [her] to identify the person that was there." The victim was seated in the front seat of the patrol car when the officer drove the vehicle onto the lawn so that the car lights shone on defendant, who was standing on the front porch. There was one officer standing to the left of defendant and a couple more officers standing to the right. The officer asked the victim if the man standing on the porch was her assailant. The victim thought he looked like the assailant, but asked the officer to pull closer. The officer then pulled the car within forty feet of defendant's porch. The victim observed defendant for an additional thirty seconds and positively identified him as her assailant.

Defendant was thereafter arrested and charged with aggravated kidnapping. At the time of his arrest, defendant was 5'9"' tall, weighed 170 pounds, and had collar-length blonde hair and a slight blonde mustache.

Prior to trial, defendant filed a motion to suppress the victim's eyewitness identification as unreliable. Following an evidentiary hearing, the trial court denied the motion.

At trial, defendant continued to challenge the reliability of the victim's identification. A jury found defendant guilty of aggravated kidnapping and the trial court sentenced him to a fifteen-year minimum mandatory term pursuant to Utah Code Ann. § 76-3-201 (1995). Defendant's current counsel filed motions for a new trial, alleging that defendant's trial counsel had provided ineffective assistance of counsel and that the jury's verdict was not supported by sufficient evidence. The trial court denied both motions. Defendant appeals.

On appeal, defendant argues the trial court erred in: (1) denying his motion to suppress the victim's pre-arrest identification of him as unconstitutionally unreliable; (2) denying his motion for a new trial because he received ineffective assistance of counsel and because the prosecution did not establish the elements of aggravated kidnapping; and (3) sentencing defendant to a fifteen-year minimum mandatory term. ¹

SHOW UP IDENTIFICATION

Defendant contends the trial court erred in denying his motion to suppress the victim's pretrial identification. He argues that the identification was unreliable such that it violated his right to due process under the Fourteenth Amendment to the United States Constitution and Article 1, Section 7 of the Utah Constitution.

"The constitutionality of an identification procedure is a mixed question of law and fact." State v. Mincy, 838 P.2d 648, 657 (Utah App.) (citing Sumner v. Mata, 455 U.S. 591, 597, 102 S.Ct. 1303, 1306, 71 L.Ed.2d 480 (1982)), cert. denied, 843 P.2d 1042 (Utah 1992); accord State v. Ramirez, 817 P.2d 774, 781 (Utah 1991).

The Utah Supreme Court recently articulated a new analytical model for the standard of review to be used in evaluating the application of law to a particular set of facts in State v. Pena, 869 P.2d 932 (Utah 1994). The court in Pena likened the trial court's discretion in such instances to a fenced pasture:

To the extent that a trial judge's pasture is small because he or she is fenced in closely by the appellate courts and given little room to roam in applying a stated legal principle to the facts, the operative standard of review approximates what can be described as "de novo." That is, the appellate court closely and regularly redetermines the legal effect of specific facts. But to the extent that the pasture is large, the trial judge has considerable freedom in applying a legal principle to the facts, freedom to make decisions which appellate judges might not make themselves ab initio but will not reverse--in effect, creating the freedom to be wrong without incurring reversal. Only when the trial court judge crosses an existing fence or when the appellate court feels comfortable in more closely defining the law by fencing off a part of the pasture previously available does the trial judge's decision exceed the broad discretion granted.

Id. at 937-38.

The court cited a number of reasons for granting trial judges discretion when applying law to fact:

(i) when the facts to which the legal rule is to be applied are so complex and varying that no rule adequately addressing the relevance of all these facts can be spelled out; (ii) when the situation to which the legal principle to be applied is sufficiently new to the courts that appellate judges are...