State v. Ross

• Decision Date: 26 December 1997
• Docket Number: No. 970015-CA,970015-CA
• Citation: 951 P.2d 236
• Parties: 333 Utah Adv. Rep. 19 STATE of Utah, Plaintiff and Appellee, v. Albert ROSS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 236

951 P.2d 236

333 Utah Adv. Rep. 19

STATE of Utah, Plaintiff and Appellee, v. Albert ROSS, Defendant and Appellant.

No. 970015-CA.

Court of Appeals of Utah.

Dec. 26, 1997.

Scott L. Wiggins, Salt Lake City, for Defendant and Appellant.

Jan Graham and Barnard N. Madsen, Salt Lake City, for Plaintiff and Appellee.

Before WILKINS, Associate P.J., and BILLINGS and GREENWOOD, JJ.

BILLINGS, Judge:

Defendant Albert L. Ross appeals his conviction of eight counts of forgery, a third degree felony under Utah Code Ann. § 76-6-501(4) (Supp.1997), and one count of communications fraud, a second degree felony under Utah Code Ann. § 76-10-1801(1)(d) (Supp.1997). We affirm in part and reverse in part.

FACTS

In November 1995, defendant and two accomplices cashed more than thirty-five forged checks at stores in Weber and Davis Counties, Utah. All of the checks were cashed in the same manner. Defendant and an unidentified man called "Nikki" would pick up a female accomplice, Susan Sanchez, in defendant's car. One of the men would hand Sanchez a forged check and false identification. Defendant would then drive to a store, and the two men would wait in the parking lot while Sanchez cashed the forged check and brought back the money. When Sanchez returned, she would give the money to Nikki, who would then divide it among the three accomplices.

On November 22, 1995, Sanchez tried to cash a check at an Albertson's grocery store but was detained and arrested. When defendant entered the store to look for Sanchez, he was also arrested. Defendant was charged with eight counts of third degree forgery and one count of second degree communications fraud. Sanchez pleaded guilty to two felonies arising from the forgeries and was sentenced before defendant's trial. Nikki was never apprehended.

At defendant's trial, Sanchez appeared as a State witness. She testified that she had cashed thirty-five to forty checks for defendant and Nikki over a three week period and that each check had been worth $300 to $700. In its opening statement, the State told the jury that Sanchez was a codefendant in the case, that she had pleaded guilty to and been sentenced for two felony counts arising from the forgeries, and that "she'll testify to you as to the nature of the plea and what consideration she was given by the State for the purposes of her testimony here today, and you can evaluate her testimony in light of that." Defendant's attorney made no objection to this statement, and the court gave no limiting instruction on the permissible evidentiary use of Sanchez's guilty plea.

The State established on direct examination that Sanchez had pleaded guilty to two felony counts, that she had already been sentenced, and that she had received no special treatment in return for her testimony against defendant. The State also argued in closing that, because Sanchez had already been sentenced and incarcerated for her two felony convictions, she had no motive to testify falsely against defendant. In contrast, defendant's attorney presented Sanchez's guilty plea both through cross-examination and in closing argument as evidence that she was a confirmed liar and criminal who had falsely accused defendant in order to obtain a better plea agreement.

After deliberation, the jury found defendant guilty on all nine charges. On November 18, 1996, the court sentenced defendant to zero-to-five years and a $5,000 fine for the eight forgery counts; one-to-fifteen years and a $10,000 fine on the single count of communications fraud, to be served concurrently; and restitution to be determined by the Department of Corrections. Defendant now appeals.

ANALYSIS

Defendant raises three issues on appeal. First, he claims the trial court committed reversible error by failing to admonish the jury after the prosecutor presented evidence that Sanchez had pleaded guilty to charges in the same case. Second, he claims the State presented insufficient evidence at trial to establish his conviction for second degree communications fraud. Third, he claims his counsel at trial provided ineffective assistance by failing to seek dismissal of the communications fraud count, because it was a lesser-included offense of forgery, and conviction of both crimes exposed him to double jeopardy.

I. Sanchez's Guilty Plea

Defendant argues the trial court erred in failing to admonish the jury after the State introduced Sanchez's guilty plea. Because defendant failed to raise this issue at trial, we must review the trial court's alleged failure for plain error. See, e.g., State v. Cook, 881 P.2d 913, 914 (Utah Ct.App.1994). "To establish plain error, a party must show the following: (1) an error exists; (2) the error should have been obvious to the trial court; and (3) the error was harmful, or in other words, absent the error, there is a reasonable likelihood of a more favorable result for the complaining party." State v. Reyes, 861 P.2d 1055, 1057 (Utah Ct.App.1993).

We do not think that error existed, let alone an error that should have been obvious to the trial court. ¹ The few Utah rulings on the admissibility of codefendant guilty pleas appear to suggest that excluding evidence of testifying codefendants' pleas may be reversible error. See State v. Hackford, 737 P.2d 200, 202-03 (Utah 1987) (holding trial court erred in limiting cross-examination about disposition of charges against testifying codefendant when such evidence might have established bias or motive); State v. Patterson, 656 P.2d 438, 438-39 (Utah 1982) (holding exclusion of dismissed charges against testifying codefendant was error because " 'exposure of a witness's motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination' ") (quoting State v. Chesnut, 621 P.2d 1228, 1233 (Utah 1980)); State v. Vigil, 661 P.2d 947, 948 (Utah 1983) (stating "[w]hile there is some question as to whether plea discussions and plea agreements should be admitted into evidence," once evidence of pleas was admitted without objection, trial court erred in limiting defense counsel's use of pleas in closing argument); State v. Edwards, 13 Utah 2d 51, 368 P.2d 464, 466 (1962) (holding court need not give cautionary instruction after admitting evidence defendant's wife pleaded guilty to prostitution charge arising from same incident as defendant's indictment for procurement). While these Utah cases establish no rule on limiting instructions, they clearly contemplate that evidence of a testifying codefendant's guilty plea is properly admitted to help the jury assess the codefendant's credibility, bias, and motive for testifying.

There is no Utah law requiring a limiting instruction in these circumstances, and certainly none holding that failure to give such an instruction is plain error. Utah courts have repeatedly held that a trial court's error is not plain where there is no settled appellate law to guide the trial court. See, e.g., Eldredge, 773 P.2d at 35-36 (rejecting claim of plain error where dispositive appellate case not yet decided); State v. Braun, 787 P.2d 1336, 1341-42 (Utah Ct.App.1990) (same).

Furthermore, other jurisdictions have reached no consensus on when a trial court's failure to issue cautionary instructions after admitting plea evidence will be reversed as plain error. The tenth circuit has held that failure to caution a jury after admitting a testifying codefendant's plea is not per se plain error, and reviewing courts must examine the record at trial in light of the following factors:

(1) whether there was a proper purpose in introducing the guilty plea; (2) whether the guilty pleas were improperly emphasized or used as evidence of substantive guilt; (3) whether the alleged error was invited by defense counsel; (4) whether the failure to object could have been the result of tactical considerations; and (5) whether, in light of all the evidence, the error was harmless beyond a reasonable doubt.

United States v. Pedraza, 27 F.3d 1515, 1526 (10th Cir.1994); see also United States v. Davis, 766 F.2d 1452, 1456-57 (10th Cir.1985) (holding failure to caution jury is not per se plain error and "the entire record must be examined to determine whether the trial court's failure to give the cautionary instruction was so egregious as to undermine the fundamental fairness of the trial and contribute to a miscarriage of justice").

A majority of circuits have similarly refused to find plain error in a court's failure to issue a sua sponte cautionary instruction. See, e.g., United States v. Johnson, 26 F.3d 669, 678 (7th Cir.1994) (stating court should give instruction if defense objects to plea evidence and requests instruction); United States v. Hernandez, 921 F.2d 1569, 1582 (11th Cir.1991) (failing to give sua sponte instruction is plain error only when State emphasizes codefendant plea "for no other reason than to prejudice the defendant"); United States v. Ojukwa, 712 F.2d 1192, 1193-94 (7th Cir.1983) (holding trial court's failure to give sua sponte cautionary instruction was not reversible error); United States v. DeLucca, 630 F.2d 294, 299 (5th Cir.1980) ("Only in those rare situations in which other 'aggravating circumstances' have exacerbated the prejudice will the failure to give cautionary instructions result in plain and reversible error."); United States v. Rothman, 463 F.2d 488, 490 (2d Cir.1972) (failing to give sua sponte instruction was not plain error because prosecution was entitled to raise pleas in opening statement and on direct examination to prevent defense from creating false impression that prosecution was concealing credibility evidence). ²

In the case before us, evidence of Sanchez's pleas was admitted for the clearly proper purpose of informing the jury of her firsthand knowledge of the events at issue, her motivation and possible bias in testifying, and her overall credibility as a witness. The record does not indicate the State...