State v. Schaffer

• Decision Date: 29 October 1981
• Docket Number: No. 16664,16664
• Citation: 638 P.2d 1185
• Parties: The STATE of Utah, Plaintiff and Respondent, v. Gregory B. SCHAFFER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1185

638 P.2d 1185

The STATE of Utah, Plaintiff and Respondent, v. Gregory B. SCHAFFER, Defendant and Appellant.

No. 16664.

Supreme Court of Utah.

Oct. 29, 1981.

Steven L. Hansen, Salt Lake City, for defendant and appellant.

David L. Wilkinson and Robert N. Parrish, Salt Lake City, for plaintiff and respondent.

OAKS, Justice:

A jury convicted defendant of aggravated robbery in violation of U.C.A., 1953, § 76-6-302. On appeal, he urges two errors by the trial court: (1) denying his motion for a new trial for newly discovered evidence, and (2) failing to give his requested jury instruction on identification testimony. We affirm the conviction.

At about 10:30 p. m. on August 21, 1978, two men and a woman entered the Shakey's pizza parlor in Granger. The business was empty except for two other patrons. The men ordered pizza from Ms. Warenski, the assistant manager, and ordered two beers from Mr. Guley, the bartender. A short time later, after the woman and the two other patrons had departed, one of the men approached Warenski for change for a pinball machine. When she opened the cash register to make change, the man produced a pistol and demanded and took all of the money in the drawer. At the same time, Warenski noticed that the other man was robbing Guley's till at the bar. Afterwards, the robbers shut the employees in the walk-in cooler. Both Warenski and Guley testified at the trial, positively identifying defendant as the man who robbed Warenski.

On May 9, 1979, seven days after he was convicted, defendant moved for a new trial on the basis of newly discovered evidence. In support of that motion, he filed affidavits by his attorney, by a Mr. Howard (a friend), and by Howard's wife. In his affidavit, Howard states that he was fishing with defendant on the night of the robbery and "did not return home until very late." Howard asserted that this information was not available to him until after the trial because August 21 is the birthday of his daughter and he naturally assumed that he was celebrating the daughter's birthday on that day. Following trial, Mrs. Howard checked her calendar and found that the child's birthday had been celebrated on August 22 instead. Mr. Howard then recalled that he had been fishing with defendant on the night of the robbery. Mrs. Howard's affidavit states that she did not check her calendar until after trial because she was not aware of the reason for her husband's inquiry until that time.

Section 77-38-3 provides in part:

When a verdict or decision has been rendered against the defendant the court may, upon his application, grant a new trial in the following cases only:

(7) When new evidence has been discovered, material to the defendant and which he could not with reasonable diligence have discovered and produced at trial.

"New evidence" within the meaning of § 77-38-3(7) is not evidence newly remembered after trial, State v. Merritt, 67 Utah 325, 247 P. 497 (1926); State v. Moore, 41 Utah 247, 126 P. 322 (1912), or evidence available to defendant but not obtained by him prior to the time of trial. State v. Harris, 30 Utah 2d 77, 513 P.2d 438 (1973); State v. Jiron, 27 Utah 2d 21, 492 P.2d 983 (1972).

In this case, defendant obviously knew of the witness, Howard, since he used him as a character witness at the trial. There is no indication that Mrs. Howard or her calendar were unavailable prior to trial. The fact that defendant had every incentive and opportunity to pursue the question of alibi in advance of trial is evident from the fact that defendant requested a continuance in advance of trial to investigate a potential alibi witness. (He did not introduce evidence on that point.) In view of these circumstances, we are unpersuaded that the alibi evidence involving the fishing trip could not with reasonable diligence have been discovered and produced at trial. We therefore find no abuse of discretion in the trial court's denial of the motion for a new trial. State v. Harris, supra.

Defendant also complains of the trial court's failure to give his proposed instruction on identification testimony, which is set out in the footnote. ¹ Defendant maintains that identification was the only issue in his case, and cites Utah authority to the effect that a defendant is entitled to have the jury instructed on his theory of the case. ² Here, the jury was instructed that the burden was on the state to prove defendant guilty beyond a reasonable doubt, that they were the exclusive judges of the credibility of the witnesses, and that, in order to convict, they must find that defendant committed all of the elements constituting the offense. Taking these instructions as a whole, as is proper, State v. Coffey, Utah, 564 P.2d 777 (1977); Taylor v. Johnson, 18 Utah 2d 16, 20, 414 P.2d 575 (1966), we find that they adequately advised the jury on the law pertaining to this case.

Defendant cites authorities stating that the giving of a specific jury instruction on identification is desirable when identification is in issue. ³ In view of the general instructions summarized above and in view of the witnesses' abundant opportunity to observe the robber when he was drinking his beer and when he was in the well-lit kitchen area to order his pizza, to empty the cash register, and to shut the witnesses in the cooler, the omission of the "desirable" identification instruction suggested in those cases did not constitute reversible error. U.C.A., 1953, § 77-42-1 (effective until July 1, 1980); U.R.C.P., Rule 30, U.C.A., § 77-35-30 (effective July 1, 1980); State v. Taylor, 109 Ariz. 267, 508 P.2d 731 (1973); State v. Ollison, 16 Or.App. 544, 519 P.2d 393 (1974).

The conviction is affirmed.

HALL, C. J., HOWE, J., and J. ALLAN CROCKETT, Retired Justice, concur.

MAUGHAN, Justice, did not participate herein; CROCKETT, Retired Justice, sat.

STEWART, Justice (dissenting):

I dissent from the majority's holding that the lower court properly refused the proposed instruction on eyewitness identification testimony. In my view, the requested instruction should have been given. The court's finding that the instruction was not necessary is based on a misplaced trust in the accuracy of such testimony.

The inherent dangers in eyewitness testimony are well chronicled. As noted by Mr. Justice Brennan in United States v. Wade, 388 U.S. 218, 228, 87 S.Ct. 1926, 1932, 18 L.Ed.2d 1149 (1967):

(T)he annals of criminal law are rife with instances of mistaken identification. Mr. Justice Frankfurter once said: "What is the worth of identification testimony even when uncontradicted? The identification of strangers is proverbially untrustworthy. The hazards of such testimony are established by a formidable number of instances in the records of English and American trials."

See generally Stewart, Perception, Memory, and Hearsay: A Criticism of Present Law and the Proposed Federal Rules of Evidence, 1970 Utah L.Rev. 1. ¹ "(I) n-court testimony of an eyewitness can be devastatingly persuasive," United States v. Greene, 591 F.2d 471, 475 (8th Cir. 1979), and result in undetectable error. Recognizing the grave problems with eyewitness identification testimony, Macklin v. United States, 409 F.2d 174 (D.C.Cir.1969), held it imperative that trial courts routinely include an identification instruction. The court went so far as to say that "(i)n cases where identification is a major issue the judge should not rely on defense counsel to request so important a charge." Id. at 178. In United States v. Levi, 405 F.2d 380 (4th Cir. 1968), the court, relying on Jones v. United States, 124 U.S.App.D.C. 83, 361 F.2d 537 (1966), directed trial judges to instruct the jury, on defendant's request, that the prosecution has the burden of proving beyond a reasonable doubt the identity of the defendant as the perpetrator of the crime charged. Other courts have emphasized that an identification instruction should be given when eyewitness identification is crucial. United States v. O'Neal, 496 F.2d 368 (6th Cir. 1974); United States v. Roundtree, 527 F.2d 16 (8th Cir. 1975); United States v. Hodges, 515 F.2d 650 (7th Cir. 1975); United States v. Holley, 502 F.2d 273 (4th Cir. 1974); United States v. Barber, 442 F.2d 517 (3rd Cir. 1971). Independent evidence of identification may, however, obviate the necessity of a special instruction. United States v. Kavanagh, 572 F.2d 9 (1st Cir. 1978); United States v. Scott, 578 F.2d 1186 (6th Cir. 1978).

To support its conclusion that the requested eyewitness identification was not necessary, the majority opinion cites State v. Taylor, 109 Ariz. 267, 508 P.2d 731 (1973), and State v. Ollison, 16 Or.App. 544, 519 P.2d 393 (1974). These cases rely on other instructions given which focus on the identification issue by clearly establishing defendant's theory that he was not present. The absence of any other instructions bearing on the identification issue in the instant case renders the authorities cited inapposite.

In the instant case there is no independent evidence of defendant's connection with the crime; the critical link is supplied solely by the eyewitness identification. ² If failure to give...