State v. Snyder

• Decision Date: 09 January 1997
• Docket Number: No. 950601-CA,950601-CA
• Citation: 932 P.2d 120
• Parties: 307 Utah Adv. Rep. 29 STATE of Utah, Plaintiff and Appellee, v. Barry J. SNYDER, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 120

932 P.2d 120

307 Utah Adv. Rep. 29

STATE of Utah, Plaintiff and Appellee, v. Barry J. SNYDER, Defendant and Appellant.

No. 950601-CA.

Court of Appeals of Utah.

Jan. 9, 1997.

Robert L. Lord, Salt Lake City, for Appellant.

Scott L. Wyatt, Cache County Attorney's Office, Logan, for Appellee.

Before DAVIS, P.J., WILKINS, Associate P.J., and ORME, J.

OPINION

DAVIS, Presiding Judge:

Defendant Barry Snyder appeals his second jury conviction ¹ of two counts of lewdness involving a child, a Class A misdemeanor, in violation of Utah Code Ann. § 76-9-702.5 (1991) (amended 1994, 1996). We reverse.

BACKGROUND

"On appeal, we recite the facts in the light most favorable to the jury's verdict." State v. Burk, 839 P.2d 880, 882 (Utah App.1992), cert. denied, 853 P.2d 897 (Utah 1993).

On March 17, 1992, two girls, ages seven and nine, were walking home from school at approximately 3:00 p.m. The girls claim that as they were passing defendant's house, defendant exposed himself to them while he was standing in the front doorway of his house. The girls walked the remaining four blocks to their house and told their mother what they had seen. The mother reported the incident to the police, who conducted a videotaped interview of the girls on March 18, 1992.

Subsequently, defendant was charged and, on May 21, 1992, convicted by a jury of two counts of lewdness involving a child in violation of section 76-9-702.5. Defendant appealed and on August 27, 1993, this court reversed defendant's conviction and remanded for a new trial. The case was remitted by this court on September 28, 1993.

After the case was remitted, a trial date was set for April 19, 1994. On March 18, 1994, defendant's counsel and the prosecuting attorney stipulated to a continuance because the investigating officer, Lynn Nelson, would be unavailable for trial until after July 1, 1994. A second trial date was set for July 28, 1994. On July 20, 1994, counsel for defendant and the prosecutor stipulated to a second continuance, this time because defendant's trial counsel had another trial scheduled at the same time. On September 16, 1994, a trial date was set for January 4, 1995.

On July 19, 1994, defendant filed a Motion to Suppress, seeking an order suppressing "all evidence and testimony of Trooper Kyle Bushnell, Margy Prescott and Trooper Dan Richards as illegally obtained evidence as inadmissible under the 'fruit of the poisonous tree' doctrine." On December 23, 1994, defendant made a Motion to Dismiss on Grounds of Double Jeopardy, requesting dismissal of the case "because further prosecution on this charge may result in multiple punishment in violation of his constitutional rights against double jeopardy."

At a hearing on December 29, 1994, the parties first addressed defendant's Motion to Suppress. The State stipulated that it would not call Bushnell, Prescott, or Richards as witnesses in its case in chief, but would call them as witnesses for impeachment purposes only, if necessary. The trial court sought defendant's approval by asking defense counsel, "[D]oes this satisfy your Motion to Suppress the Evidence based on that?" Defendant responded, "That's correct."

The trial court denied defendant's Motion to Dismiss on Grounds of Double Jeopardy, ruling, in part, that defendant's motion was premature and "if the Defendant were to be found guilty in this case and the Court were to impose the maximum sentence, disregarding the sentence that the Defendant has previously served, then I think that that would be an appropriate time to file such a motion."

On December 30, 1994, five days before the trial was scheduled to begin, the State filed a Motion to Use Trial Transcript or in the Alternative to Continue, wherein the State sought court approval to use the transcript from the first trial of the girls' testimony and that of their mother. These three witnesses were subpoenaed for trial but had, in the interim, moved to Texas and were unavailable for the January 4, 1995 trial. Defendant opposed using the trial transcript, arguing the motion was untimely pursuant to Rule 12(b)(2) of the Utah Rules of Criminal Procedure and that because this court had previously held that defendant received ineffective assistance of counsel in the first trial, the prior trial transcript is "tainted" and its use would prejudice defendant. Therefore, defendant maintained that the trial either go forward as scheduled without the witnesses or the prior trial transcript, or the case be dismissed with prejudice.

The hearing on the State's Motion to Use Trial Transcript or in the Alternative to Continue was held on January 4, the morning the trial was to begin. After hearing argument from counsel, the court gave defense counsel the option to either proceed with the trial using the prior trial transcripts, or to continue the trial until the witnesses' attendance could be procured. Defendant strenuously objected to his options. However, although the trial court recognized defendant's right to a speedy trial, the court determined the State had used its best efforts to have its witnesses present. Regarding defendant's argument that his prior trial counsel had been deemed ineffective by this court, the trial court noted the ineffective counsel conclusion was limited to the narrow issue of the untimeliness of filing the motion to suppress, and not on counsel's cross examination of the witnesses. Thus, the State's request for a continuance was granted.

On March 20, 1995, defendant's new counsel filed a motion demanding a speedy trial pursuant to Article I, Section 12 of the Utah Constitution and Utah Code Ann. § 77-1-6 (1995). On March 24, 1995, a new trial date was scheduled for June 2, 1995.

On May 3, 1995, defendant filed a Motion to Dismiss, arguing (1) the information was defective for failing to specifically identify a victim and for failing to specify the offense with which defendant was charged; and (2) defendant was denied his constitutional right to a speedy trial. Although defendant also requested a bill of particulars, he argued in his Motion to Dismiss that this would not cure the defective information.

Defendant filed a Motion in Limine on May 9, 1995, seeking a court order suppressing "any and all evidence of, mention of, or references to, defendant's sexual fantasies, alleged autoeroticism, or alleged prior acts of exhibitionism, upon the ground that the prejudicial effect of such evidence far outweighs any probative value that such evidence may otherwise have." Also filed on May 9 was defendant's second Motion to Suppress Evidence, wherein defendant again sought to suppress the statements of Bushnell, Richards, and Prescott for any purposes, including rebuttal and impeachment.

A hearing for the pending motions was held on May 23, 1995. Regarding defendant's Motion to Dismiss because of the information's lack of specificity, the trial court allowed the State to amend the information by adding the initials of the victims. Defendant's Motion to Dismiss based on the State's alleged violation of his right to a speedy trial was denied. Defendant's Motion to Dismiss based on the duplicate offenses charged in the information was also denied. With respect to defendant's Motion in Limine and Motion to Suppress Evidence, the trial court ruled that defendant was entitled to object if Bushnell, Richards, or Prescott were called as witnesses for the State's case-in-chief, but the testimony was admissible for impeachment or rebuttal purposes.

On the morning of the trial on June 2, 1995, the State made a motion to use the videotaped interview of the two girls pursuant to Rule 15.5 of the Utah Rules of Criminal Procedure. The State argued because the girls were only seven and nine when the incident took place, and three years had elapsed since, they were having a difficult time remembering the details. Even though the girls were available as witnesses, the video was "more helpful and more specific." Over the objection of defense counsel and after viewing the videos, the trial court ruled the older girl's videotaped interview admissible, but the younger girl's unreliable and not trustworthy and therefore inadmissible.

On the video, the older girl's identification of the perpetrator was as follows:

[The witness]: And we know him too.

Mr. Nelson: Oh, what's his name?

[The witness]: He has two--[h]e has a partner living with him, but we don't know which one it is.

....

[The witness]: But one of them's [sic] name is Barry Snyder.

On direct examination during the second trial, the older girl pointed to defendant as the perpetrator, but on cross-examination, she admitted she could not recognize him as the man she had seen on the porch three years earlier. During the younger girl's testimony she stated, "I don't think I could identify him now, but I might have back then." In response to her statement, defense counsel questioned her about her testimony at the first trial, using the previous trial transcript: "The question is asked by the Prosecutor, okay ..., is this the individual you saw in the doorway? And your answer was, I can't tell. And the Prosecutor said, you can't tell for sure? And your answer was no."

After each side had rested and discussion had begun regarding jury instructions, defense counsel requested that the court give the jury an instruction on "the [effect of] eyewitness testimony." However, although the court was willing to so instruct the jury, defense counsel had not drafted such an instruction for the court. The court declined to prepare the instruction and gave defense counsel the time during which the court clerk was retyping the other instructions to furnish it. Defense counsel was apparently unable to do so and the instruction was not given.

The jury began their deliberation at approximately 6:15 p.m. on Friday, June 2, 1995. At approximately 8:15 p.m., the jury sent a note to the judge by way of the bailiff asking what would happen if the...