State v. Saunders

• Decision Date: 03 April 1985
• Docket Number: No. 19054,19054
• Citation: 699 P.2d 738
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Gary Vance SAUNDERS, Defendant and Appellant.
• Court: Utah Supreme Court

Page 738

699 P.2d 738

The STATE of Utah, Plaintiff and Respondent, v. Gary Vance SAUNDERS, Defendant and Appellant.

No. 19054.

Supreme Court of Utah.

April 3, 1985.

Linda E. Carter, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Asst. Atty. Gen., James F. Housley, Co. Atty., Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant appeals from his convictions of burglary, ¹ theft, ² possession of a firearm by a restricted person, ³ and being a habitual criminal. ⁴ He was accused of these offenses in connection with an incident in April 1982, in which a home in Sandy, Utah, was broken into and various property, including firearms, was stolen.

Before trial, defendant's counsel moved to sever the firearm count from the remaining charges. The motion was denied. Trial on the burglary, theft, and firearm counts proceeded before a jury. The primary evidence against defendant was the testimony of Stacy Williams, who was granted immunity in exchange for his testimony. Williams testified that he and defendant broke into the home and took the property. Defendant did not testify. However, he did stipulate that, at the time of the alleged offenses, he was an inmate at the Utah State Prison, housed in a halfway house.

The jury convicted defendant of burglary, theft, and possession of a firearm by a restricted person. Defendant was then tried by the court on the habitual criminal charge.

Documents showing that defendant had been convicted of burglary in 1964, 1977, and 1978 were admitted into evidence. Defendant objected to the admission of evidence of the 1964 and 1977 convictions, which were based on guilty pleas, on the ground that the pleas had not been shown to have been voluntary. Defendant testified that, before he entered the guilty plea in 1964, he had not been advised of any of his rights, that he entered the plea only because he had been promised probation, and that he was instead committed to the Utah State Prison. Defendant's affidavit, by which he admitted his guilt of the 1977 charge, was received in evidence. Defense counsel's name was not entered in the appropriate space in the affidavit. Attached to the affidavit, however, was a certificate of defense counsel stating he had discussed the affidavit with defendant. Defendant was convicted of the habitual criminal charge.

Defendant's first contention is that the firearm count should have been severed from the burglary and theft charges. Before reaching this issue, however, we address the State's contention that defendant waived the right to severance of the charges by failing to raise the issue at trial.

The Utah Rules of Criminal Procedure contemplate that severance issues ordinarily should be raised and determined before, rather than at, trial. Rule 9 provides that failure to move to sever at least five days before trial constitutes a waiver of the right to severance. ⁵ Rule 12 requires that a pretrial motion "shall be determined before trial unless the court for good cause orders that the ruling be deferred for later determination." ⁶ Moreover, where a motion to sever has been made and determined before trial in accordance with these rules, the record will contain an adequate basis for review of a severance issue. Rule 12 states that "a motion other than one made during a trial or hearing shall be in writing, unless the court otherwise permits," and that such a motion "shall state with particularity the grounds upon which it is made...." ⁷ Under these circumstances, renewal of the motion or exception to the ruling at trial is unnecessary to preserve the issue for appeal.

In this case, defendant filed a pretrial motion to sever the charges in accordance with Rules 9 and 12. The motion and a minute entry reflecting the court's denial of the motion, without provision for later determination of the issue, appear on the record. Therefore, the severance issue was effectively preserved for our review. This conclusion is not inconsistent with State v. Sparks, ⁸ cited by the State in its brief, which holds that matters outside the trial court record will not be reviewed on appeal. There, no record existed on which to base a review. Here, defendant's written pretrial motion and the minute entry provide ample basis for review.

In State v. Lesley, ⁹ we held that a pretrial motion alone was insufficient to preserve the issue of whether evidence should have been suppressed at trial. That decision, however, was based on Rule 4 of the Utah Rules of Evidence, which precluded reversal of a decision "by reason of the erroneous admission of evidence unless ... there appears of record objection to the evidence timely interposed...." Severance issues implicate neither Rule 4 nor the policies behind it.

As observed in Lesley, suppression issues must be raised at trial because the judge often has a more complete view of the evidence and the grounds for its suppression or admission than he or she does before trial. In deciding a motion to sever, however, the judge is ordinarily in no better position at trial than at the hearing on the pretrial motion. Where the judge presiding at trial is different from the one who denied the pretrial motion, as was the case here, to grant the same motion at trial, absent a change in the facts relevant to ruling on the motion, would be to overrule a coequal. This would be improper. ¹⁰

Moreover, evidence not yet presented to the jury may easily be suppressed after the commencement of the trial without prejudice to the defendant. Severance of offenses, on the other hand, would necessitate a new trial if granted after trial has begun and the jury has been informed of the charges. Thus, in the interest of judicial economy, severance issues should be decided and any evidentiary hearings necessary to their determination should be held before trial. Again, this is the procedure established by Utah R.Civ.P. 9 and 12. Since defendant adequately preserved the issue for appeal, we may consider his contention that the denial of his pretrial motion to sever was erroneous.

A ruling on a motion to sever charges under Rule 9 is within the sound discretion of the trial court and will not be disturbed on appeal, absent an abuse of discretion. ¹¹ In the present case, the failure to sever the charges of possession of a firearm by a restricted person from the burglary and theft charges was an abuse of discretion.

Under Rule 9, "[t]wo or more offenses may be charged in the same indictment or information in a separate count for each offense if the offenses charged arise out of a criminal episode...." ¹² In this case, all of the charges against defendant arose from the same criminal episode. ¹³ Thus, joinder of the charges was proper in the first instance. Rule 9 further provides, however:

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. ¹⁴

Here, joinder of the offense of possession of a firearm by a restricted person with the offenses of burglary and theft was unduly prejudicial to defendant.

But for the joinder, evidence that defendant was at the time of the offenses committed to the Utah State Prison and living in a halfway house would have been inadmissible at trial on the burglary and theft charges. This evidence clearly implied that defendant had committed a prior crime. The admissibility of such evidence is severely restricted under the Utah Rules of Evidence. Rule 55 ¹⁵ provides:

[E]vidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove his disposition to commit crime or civil wrong as the basis for an inference that he committed another crime or civil wrong on another specified occasion but ... such evidence is admissible when relevant to prove some other material fact....

Evidence that defendant was a prison inmate at the time of the offense was clearly relevant to prove a fact other than criminal disposition material to the offense of possession of a firearm by a restricted person. This evidence was not relevant, however, to the charges of burglary and theft, except to show a criminal disposition as the basis for an inference that he was guilty. Thus, at a separate trial on the burglary and theft charges, this evidence would have been inadmissible under Rule 55. Nor would evidence of a prior crime have been admissible under Rule 20 ¹⁶ of the Utah Rules of Evidence as relevant to defendant's credibility since defendant did not testify. Thus, no legitimate reason would have existed to introduce evidence of a prior crime at a separate trial on the burglary and theft charges.

The basis of these limitations on the admissibility of evidence of prior crimes is the tendency of a fact finder to convict the accused because of bad character rather than because he is shown to be guilty of the offenses charged. ¹⁷ Because of this tendency, such evidence is presumed prejudicial and, absent a reason for the admission of the evidence other than to show criminal disposition, the evidence is excluded.

In the instant case, the effect of the joinder was to permit the jury to consider evidence of defendant's prior crime as the basis for an inference that he committed the burglary and theft, a purpose giving rise to the undue prejudice the rules are intended to prevent. The joinder being unduly prejudicial to defendant, his motion to sever should have been granted.

In State v. Studham, ¹⁸ we held that the denial of an untimely motion to sever the offense of possession of a firearm by a restricted person from the offense of aggravated assault was not a denial of due process of law. However, in that case the defendant had waived his right to severance under ...