State v. Smith
| Decision Date | 28 December 2012 |
| Docket Number | No. 20100474–CA.,20100474–CA. |
| Citation | 293 P.3d 1148,724 Utah Adv. Rep. 65 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Brian Avery SMITH, Defendant and Appellant. |
| Court | Utah Court of Appeals |
OPINION TEXT STARTS HERE
Jacqueline R. Hopkinson and Brenda M. Viera, Salt Lake City, for Appellant.
Mark L. Shurtleff and Christopher D. Ballard, Salt Lake City, for Appellee.
Before Judges ORME, DAVIS, and THORNE.
¶ 1 Defendant Brian Avery Smith appeals his convictions for possession of a controlled substance, a third-degree felony, seeUtah Code Ann. § 58–37–8(2)(a)(i) (2012),1 and possession of drug paraphernalia, a class B misdemeanor, see id. § 58–37a–5(1). He argues that the trial court erred by refusing to consider his motion to suppress evidence and by admitting evidence of a broken crack pipe, a twist of cocaine, and a related lab report without an adequate chain of custody. We affirm.
¶ 2 Defendant argues that the trial court erred when it refused to consider his motion to suppress evidence on the ground that the motion was untimely under rule 12(c)(1)(B) of the Utah Rules of Criminal Procedure. The interpretation of a rule of procedure is a question of law that we review for correctness. See State v. Sosa, 2011 UT 12, ¶ 3, 248 P.3d 482. We interpret statutes and rules according to their plain meaning and “need not look beyond the plain language unless we find some ambiguity.” State v. MacGuire, 2004 UT 4, ¶ 15, 84 P.3d 1171.
¶ 3 At a pretrial conference held on November 6, 2009, Defendant's counsel asked the trial court to continue the trial and informed the court that she would be filing a motion to suppress.2 The State objected to the filing of the motion on the ground that it would be untimely pursuant to rule 12(c)(1)(B) of the Utah Rules of Criminal Procedure because it needed to have been filed five days prior to May 20, 2008, the first scheduled trial date. The court granted the continuance and set the trial for December 23–24, 2009, but agreed with the State that the motion to suppress would be untimely. On November 20, the State filed a motion to continue the trial, which was granted. Defendant's counsel then filed a motion to suppress on January 8, 2010. At a scheduling conference held a week later, Defendant's counsel requested a hearing on the motion. The State again argued that the time for filing the motion to suppress had expired prior to the first scheduled trial date. The court agreed with the State that the motion was untimely and declined to schedule an evidentiary hearing on the motion. The trial was held in March 2010.
¶ 4 Rule 12(c) of the Utah Rules of Criminal Procedure requires a defendant to file a motion to suppress “at least five days prior to the trial.” 3Utah R.Crim. P. 12(c)(1)(B). Defendant states—and the emphasis is his—that if the rule meant that any motion must be filed five days “prior to the initial trial date that was set, regardless of any trial date changes, it would indicate as much.” He argues that, based on that plain language of the rule, the word “trial” is unambiguous because the reference to a “trial” in the rule “necessarily requires an actual trial to take place.” Thus, Defendant contends that the motion to suppress was timely filed in accordance with the rule because it was filed well before the trial in this case.
¶ 5 We agree with Defendant that the rule's use of the word “trial” refers to the actual trial—not merely the date for which trial was first scheduled.4 Thus, we conclude that the trial court erred by determining that the motion was untimely.5
¶ 6 The State argues that any error in the trial court's refusal to consider the motion to suppress was harmless. “We will reverse an erroneous evidentiary ruling only if, absent the error, there is a reasonable likelihood that there would have been a more favorable result for the defendant.” State v. Kohl, 2000 UT 35, ¶ 17, 999 P.2d 7 (citation and internal quotation marks omitted).
¶ 7 The procedural posture of this case is analogous to that of State v. Ramirez, 817 P.2d 774 (Utah 1991), in which a defendant filed a motion to suppress evidence on the basis that, among other things, the stop and seizure were unlawful because the officer in that case did not have an objective, articulable suspicion that the defendant had committed a crime. See id. at 777, 785. The trial court took this particular basis for the motion to suppress under advisement but never explicitly ruled on it. See id. at 777. The Utah Supreme Court stated that this effectively “was the same as a denial of the motion, but a denial without the active participation of the court.” Id. at 787. The Court noted that,
in cases in which factual issues are presented to and must be resolved by the trial court but no findings of fact appear in the record, we assume that the trier of facts found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it.
Id. (citation and internal quotation marks omitted). See also State v. Lovegren, 798 P.2d 767, 771 & n. 10 (Utah Ct.App.1990) ().
¶ 8 Here, as in Ramirez, the trial court did not consider the merits of the motion to suppress—or at least left no record of doing so. As a result, we can evaluate the merits of the motion only if the facts adduced at trial are undisputed. See Ramirez, 817 P.2d at 788 n. 6. We look to the motion to suppress to determine the scope of the argument and, consequently, what trial evidence we should consider.
¶ 9 The motion to suppress argues only that the basis for the stop was “purely speculative” and that the police officers had no reasonable, articulable suspicion to stop and question Defendant. Specifically, the motion contends that the State failed to establish the reliability of the police officers' observations made via the surveillance camera because the police report did not mention the camera's resolution, how far away from the camera the purported drug exchange occurred, or the ability of the officers to observe the exchange while monitoring the surveillance video.6 On appeal, Defendant has not raised any issue related to the reliability of the officers' observations, presumably because the trial testimony disposed of those concerns.7 Instead, Defendant now contends that we have no basis for considering the merits of the motion because Defendant was “denied the opportunity to develop the record and no decision was entered on the merits.”
¶ 10 Consistent with the latter argument, Defendant's appellate brief mentions that the facts related to the stop and the alleged consent to search were disputed.8However, he did not identify any factual disputes in his motion to suppress. In fact, Defendant's motion discusses only the facts from the police report. “Generally, a defendant who fails to bring an issue before the trial court is barred from asserting it initially on appeal.” State v. Archambeau, 820 P.2d 920, 922 (Utah Ct.App.1991). Therefore, our consideration of the State's harmless error argument necessarily focuses on the issues raised in the motion itself. We noted above that the State presented unrefuted evidence at trial regarding the quality and location of the camera relative to the drug exchange. Because this undisputed evidence defeats the only argument raised in the motion to suppress, we conclude that the trial court's refusal to consider the motion to suppress was harmless.
¶ 11 At oral argument, Defendant's counsel stated that an evidentiary hearing need not be limited to the issues raised in a motion to suppress, implying that we can consider the alleged factual dispute on appeal because the trial court could have addressed it at a hearing on the suppression motion had it held one. It may be within a trial court's purview to consider other grounds for suppression that arise at an evidentiary hearing. See, e.g., Evanoff v. State, 2011 WL 1431520, at *8 (Tex.App. April 14, 2011) (). Nevertheless, it is speculative to suggest that facts contrary to what was in the police report might have emerged at a suppression hearing even though they did not emerge at trial. Therefore, our review is limited to the issues expressly raised in the motion to suppress and we do not consider any newly claimed factual disputes.9See Archambeau, 820 P.2d at 922.
¶ 12 Defendant also argues that the trial court abused its discretion by admitting evidence of the crack pipe, the cocaine, and a related lab report because the State failed to establish an adequate chain of custody or explain why the cocaine's appearance at trial differed dramatically from its purported appearance at the time of seizure. “A trial court's determination that there was a proper foundation for the admission of evidence will not be overturned unless there is a showing of an abuse of discretion.” State v. Torres, 2003 UT App 114, ¶ 7, 69 P.3d 314 (citation and internal quotation marks omitted).
¶ 13 Defendant begins with the premise that the degree of proof needed to establish an uninterrupted chain of custody depends on the nature of the evidence at issue.
If the evidence is unique, readily identifiable and resistant to change, the foundation for admission need only be testimony that the evidence is what it purports to be. Alternatively, if the evidence is open to alteration or tampering, or is not readily identifiable, the trial court requires a more elaborate chain of custody to establish that the evidence has not been tampered with or altered.
United States v. Clonts, 966 F.2d 1366, 1368 (10th Cir.1992) (internal citation omitted). Defendant also suggests that controlled substances can be easily altered and...
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