State v. Smith
| Citation | 776 P.2d 929 |
| Decision Date | 23 June 1989 |
| Docket Number | No. 880412-CA,880412-CA |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Roger Clayton SMITH, Defendant and Appellant. Case |
| Court | Court of Appeals of Utah |
James L. Shumate, Cedar City, for defendant and appellant.
R. Paul Van Dam and Sandra L. Sjogren, Salt Lake City, for plaintiff and respondent.
Before DAVIDSON, BILLINGS and ORME, JJ.
Defendant Roger Clayton Smith appeals from his jury conviction of two counts of attempted second degree murder and one count of possession of a weapon by a restricted person. Defendant claims the trial court erred in denying his motion for a new trial and motion to arrest judgment. We affirm.
Defendant, a restricted person, found two teenage boys soaping the windows of and throwing eggs at his friend's daughter's car. Defendant blocked the boys' car and as they attempted to leave, fired several shots into the car at close range seriously injuring one of the boys.
Based on these events, defendant was convicted by a jury of two counts of attempted second degree murder in violation of Utah Code Ann. § 76-4-101 (1978) and § 76-5-203 (1988), and possession of a weapon by a restricted person in violation of Utah Code Ann. § 76-10-503 (1988). Following his conviction, defendant moved to arrest judgment and for a new trial claiming he was deprived of a fair trial because one of the jurors was threatened by an unknown individual during the trial. The court denied both motions on October 13, 1987, by an unsigned minute entry, and committed defendant to the Division of Corrections for a ninety-day diagnostic evaluation.
Following the initial diagnostic evaluation, the trial court granted defendant's motion to appoint alienists pursuant to Utah Code Ann. §§ 77-16-1, 77-16-2 (1982). The order was granted for the purpose of considering whether defendant 1) was competent to proceed to sentencing, 2) was competent at the time of trial, and 3) suffered from mental disease or defect at the time he committed the crimes. Two alienists, Dr. Louis Moench and Dr. Peter Heinbecker, conducted independent psychiatric evaluations of defendant. Based on the doctors' reports, defendant again moved for a new trial claiming that the reports demonstrated defendant was incompetent to stand trial, and insane at the time he committed the offense. On April 20, 1988, the trial court denied defendant's second motion for a new trial again by an unsigned minute entry.
An order of judgment and sentence was signed by the trial court on April 26, 1988. Defendant appeals from this judgment claiming the trial court abused its discretion in denying his various motions. Specifically, defendant claims he is entitled to a new trial due to jury tampering, and on the basis of newly discovered evidence, namely the post-conviction psychiatric evaluations. 1
We first address the State's claim that this court lacks jurisdiction. The State argues defendant appeals from unsigned minute entries denying his motions for a new trial and to arrest judgment, and correctly asserts that an unsigned minute entry is not a final appealable order. See, e.g., South Salt Lake v. Burton, 718 P.2d 405, 406 (Utah 1986) (per curiam). However, defendant actually appeals from the trial court's order of judgment and sentence which is a final appealable order, and not the unsigned minute entries. See, e.g., State v. Gerrard, 584 P.2d 885, 886 (Utah 1978) (). Accordingly, the issues are properly before us.
Defendant asserts the trial court erred in denying his motion for a new trial under Utah R.Crim.P. 24(a), which provides that a trial court "may ... grant a new trial in the interest of justice if there is any error or impropriety which had a substantial adverse effect upon the rights of a party." Defendant argues a new trial should have been granted both on the grounds of jury tampering and newly discovered evidence. "[T]he decision to grant or deny a new trial is a matter of discretion with the trial court and will not be reversed absent a clear abuse of that discretion." State v. Williams, 712 P.2d 220, 222 (Utah 1985).
Defendant first argues the trial court abused its discretion in denying his motion for a new trial based on jury tampering. Defendant's jury tampering claim is premised on a threatening phone call made to a juror's husband. On the morning of the second day of trial, a juror reported to the court that someone had telephoned her husband while she was in court on the afternoon of the previous day and stated: "If he is convicted, I'm going to kill all the jurors." Following the juror's disclosure, the trial court ordered a recess and counsel and the juror convened in the trial court's chambers. During the meeting, the trial court asked the juror how she felt about the threatening phone call. The juror responded that she was unaffected by the threat and felt she could continue to serve and fairly deliberate. The trial court also admonished the juror not to discuss the phone call with the other jurors. She agreed and was thereafter excused from chambers.
While still in chambers, the trial court continued discussions with counsel and asked if they were sufficiently assured that the juror was unaffected by the incident. Defense counsel responded, On that basis, trial proceeded.
At the close of trial, before the jury was instructed, the trial court questioned each of the jurors individually in his chambers at the request of both counsel. Each juror, except the one previously noted, denied any contact with anyone outside the courtroom about the case. The juror who received the threat responded that she had not been contacted since the first incident. Following discussions concerning the threatening phone call between the court, defense counsel, and defendant in the court's chambers, defendant stated that he would like to proceed with the existing jury and that he expressly did not want a mistrial. After defendant was convicted on all counts, defendant moved for a new trial on the basis that the jury had been influenced by improper contact. Defendant now claims that the trial court abused its discretion in denying his motion.
This court is fully aware of the serious nature of a claim that a juror's ability to deliberate impartially has been affected through improper contact. See, e.g., State v. Erickson, 749 P.2d 620, 621 (Utah 1987); State v. Pike, 712 P.2d 277, 279-80 (Utah 1985). 2 However, we find that under these facts, defendant waived his right to object. 3 It is well settled that
[i]f the complaining party participated therein, or, having knowledge thereof, failed to make timely objection, relief by new trial will not be granted, for the reason that a party will not be allowed either to obtain advantage from his own wrong or to remain silent and speculate upon the chances of a verdict.
Glazier v. Cram, 71 Utah 465, 267 P. 188, 190 (1928).
A defendant cannot lead the court into error by failing to object and then later, when he is displeased with the verdict, profit by his actions. See, e.g., State v. Tillman, 750 P.2d 546, 561 (Utah 1987) (). In Tillman, the court declared "we reemphasize this Court's past decisions wherein we stated that 'invited error' is procedurally unjustified and viewed with disfavor, especially where ample opportunity has been afforded to avoid such result." Id. at 560-61.
Accordingly, we find defendant had two opportunities to move for a mistrial based on the threatening phone call made to the juror. He deliberately and affirmatively refused on both occasions, and therefore defendant waived his right to now complain that he was deprived of the right to trial by an impartial jury.
Defendant also claims the trial court erred in refusing to grant his motion for a new trial on the basis of the post-conviction psychiatric evaluations. Defendant claims these reports demonstrate that he could have raised an insanity defense at trial, and therefore, there is a reasonable likelihood of a different verdict.
To qualify as newly discovered evidence justifying a new trial, defendant must demonstrate that the evidence was unknown at the time of trial and could not have been...
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