State v. Peterson

• Decision Date: 13 April 1984
• Docket Number: No. 18298,18298
• Citation: 681 P.2d 1210
• Parties: STATE of Utah, Plaintiff and Respondent, v. Byron Dale PETERSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1210

681 P.2d 1210

STATE of Utah, Plaintiff and Respondent, v. Byron Dale PETERSON, Defendant and Appellant.

No. 18298.

Supreme Court of Utah.

April 13, 1984.

Bryce K. Bryner, Price, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Robert A. Parrish, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice.

Defendant appeals convictions of aggravated burglary, ¹ aggravated assault ² and assault. ³

In the early morning of September 1, 1981, Sandra Dotson, a resident of Price, Utah, was awakened by noises in her kitchen. She had been sleeping on a couch in the living room, which was adjacent to the kitchen, because she had recently broken both legs in an automobile accident and was unable to negotiate the stairs leading to her bedroom. As she awoke, although the room was still somewhat darkened, she could see a person, whom she described as balding, approximately 6 feet tall and of heavy build, lean out from the kitchen doorway. She thought it might be her boyfriend, Joe Gross, or perhaps her ex-husband, Walter Dotson. However, when she asked who was there, the person did not respond; instead, he approached her and placed both hands around her neck. She struggled and screamed, but the assailant beat her about the head and face, sat on her body and then strangled her. As a consequence, she drifted in and out of consciousness several times.

One of Mrs. Dotson's two children, Tammy, age 14, had been sleeping in the basement and was awakened by the simultaneous sounds of her mother's screams and her alarm clock, which had been set for 6:30 a.m. Tammy immediately went upstairs and looked into the living room, where she observed someone on top of her mother, and assumed it was her mother's boyfriend. She then turned on the kitchen light and asked her mother if she was all right. Her mother did not answer, but the assailant turned and looked at her. At that point, she recognized him, not as her mother's boyfriend or ex-husband, but rather as one "Pete" Peterson, the defendant herein.

Tammy ran for the back door, but the assailant caught her by the wrist and began choking her. She too lost consciousness momentarily. When she regained consciousness, she again observed defendant beating and choking her mother, whereupon she ran out the back door to the house of a next-door neighbor, Edward McKinney.

Edward McKinney testified that at approximately 6:20 a.m. on September 1, 1981, he was awakened by Tammy Dotson, who had come running and screaming to his front door. She quickly apprised him of what was happening and he immediately ran to her house, entered by the back door and observed the assailant lying over Sandra Dotson. McKinney asked what was going on, to which the assailant replied, "Nothing." The assailant then got up, walked past Mr. McKinney and left through the back door. A kitchen light clearly illuminated his face as he left the Dotsons' house.

In the meantime, Tammy Dotson, having remained at the McKinney's house with Mrs. Marilyn McKinney, saw the assailant leave in an orange van. Mrs. McKinney also testified that she saw the orange van, and further, that a portion of the van's front fender was yellow.

Another neighbor, Richard Rathers, testified that he had heard the screams and had seen the assailant drive off in what he described as an orange "Dodge" van with license plate number NV 5500.

Price City Police apprehended the defendant at his house in Price at approximately 7:00 a.m. on the morning of the incident. He was in bed when they arrived.

The police also found that defendant was in possession of an orange Dodge van, although the license plate number was NV 5301, which slightly varied from the number reported by Mr. Rathers (NV 5500), and the front fender did not have any yellow on it as indicated by Mrs. McKinney.

Sandra and Tammy Dotson and Edward McKinney all described the assailant as balding on the top and bearded. They also testified that they recognized him as "Pete" Peterson. Peterson had come to the Dotsons' house with Joe Gross just a few days prior to the incident, at which time Sandra and Tammy met him for the first time. Also on that occasion, Mr. McKinney, while using the Dotsons' telephone, had seen and recognized Peterson. He had known who Peterson was for several years.

At the time defendant Peterson was apprehended, although he fit the general description given by the witnesses, he did not have a beard.

Robert Gilson and Eve Martines testified that they were with defendant from 1:00 p.m. on August 31 to approximately 4:30 a.m. on September 1, 1981, that they had all been drinking, that defendant had consumed 1 1/2 fifths of whiskey during that time and had driven them back and forth between Price and Helper several times. Sandra Dotson testified that she did not smell alcohol on her assailant.

Charles Peterson, defendant's father, testified that he heard, but did not see, his son come in at 5:30 a.m. on the morning of September 1, 1981, and that he made a note of the time in his diary. He also testified that in addition to himself, his wife and defendant, there were two other persons living in his house on the date in question. Those two persons are his sister-in-law and her husband, LaVar and Lee Seeley.

On September 3, 1981, defendant was charged with one count of aggravated burglary and two counts of aggravated assault. He was arraigned in the circuit court on these charges, and a preliminary hearing was held on November 9, 1981. The court dismissed the aggravated burglary charge, and defendant was bound over to the district court on the two counts of aggravated assault.

On November 16, 1981, defendant was arraigned in the district court on the two counts of aggravated assault, and trial was set for December 21, 1981.

On November 30, 1981, the State refiled the charge of aggravated burglary in the circuit court on a new information. The arraignment and preliminary hearing were held on December 16, 1981, and the defendant was bound over to the district court for trial.

On the next day, December 17, 1981, counsel for defendant received a telephone call from the presiding district judge, who advised defense counsel that the State had just filed a motion to join the new information containing the aggravated burglary charge with the information containing the two counts of aggravated assault. The judge further informed counsel that he felt inclined to grant the motion. The defendant then filed his objection to plaintiff's motion for joinder on December 18, 1981. On the first day of trial, December 21, 1981, the motion was granted over defendant's objection.

Defendant was tried before a jury and convicted of aggravated burglary, aggravated assault and assault. He was sentenced to a 5-year-to-life term of imprisonment in the Utah State Prison, together with a $10,000 fine for the aggravated burglary conviction, 0 to 5 years for aggravated assault and 0 to 6 months in the Carbon County jail for assault, all terms to run concurrently.

I.

Defendant's first contention on appeal is that the trial court erred in granting plaintiff's motion to join the new information containing the aggravated burglary charge with the information containing the two counts of aggravated assault. He contends that the joinder was improper and prejudicial because it did not afford him adequate time to prepare a defense to the aggravated burglary charge.

As noted above, plaintiff's motion for joinder was filed on December 17, 1981, and granted on the first day of trial, December 21, 1981. Defendant asserts that this four-day period did not afford him adequate time to investigate, subpoena witnesses, or consult with his attorney with respect to the new charge of aggravated burglary. Accordingly, he claims that he was prejudiced by the joinder and should have been granted relief pursuant to U.C.A., 1953, § 77-35-9(d), which provides in pertinent part:

(d) If it appears that a defendant or the prosecution is prejudiced by a joinder of offenses or defendants in an indictment or information, or by a joinder for trial together, the court shall order an election of separate trials of separate counts, or grant a severance of defendants, or provide such other relief as justice requires.

Section 77-35-9(d) further provides: "A defendant's rights to severance of offenses or defendants is waived if the motion is not made at least five days before trial." Defendant maintains, in light of this provision, that inasmuch as the State's motion for joinder was both filed and granted later than "five days before trial," defendant was precluded from exercising his right to move the court for a severance of the offenses. He therefore contends that the State should be likewise bound by the five-day requirement of this provision in the exercise of its right to enter a motion for joinder of offenses or defendants.

The granting of a motion to join offenses or defendants is a matter which rests within the sound discretion of the trial judge, and this Court will not interfere with that discretion unless it is shown to have been clearly abused. ⁴ Under the circumstances herein presented, we find no abuse of discretion in the decision to grant the State's motion for joinder.

The record does not support defendant's claim that he was prejudiced by the lack of time to prepare his defense to the aggravated burglary charge. Contrary to the implications of his argument, defendant had much more than just the four-day period between the filing of the motion for joinder (December 17, 1981) and the granting thereof (December 21, 1981) to prepare his defense to this charge.

As noted previously, the original information filed against defendant on September 3, 1981, included the offense of aggravated burglary. Defendant had more than two months, until November 9, 1981, the date of the arraignment and preliminary hearing in the circuit court, to prepare his defense to all charges. Although the...