State v. Speer

• Decision Date: 26 January 1988
• Docket Number: No. 860112,860112
• Citation: 750 P.2d 186
• Parties: STATE of Utah, Plaintiff and Respondent, v. Thomas M. SPEER, Defendant and Appellant.
• Court: Utah Supreme Court

Page 186

750 P.2d 186

STATE of Utah, Plaintiff and Respondent, v. Thomas M. SPEER, Defendant and Appellant.

No. 860112.

Supreme Court of Utah.

Jan. 26, 1988.

Jerome H. Mooney, Salt Lake City, for appellant.

David L. Wilkinson, Kimberly S. Hornak, Salt Lake City, for respondent.

HOWE, Justice:

Defendant Thomas M. Speer was tried by a jury and convicted of aggravated burglary and aggravated assault. He appeals, raising several points of error. The facts leading to his arrest and conviction are as follows.

Defendant and his wife were legally separated and living apart. On the morning of February 13, 1985, he entered his wife's home while she was in the bathtub. Upon hearing noises, she put on a robe to go downstairs and investigate. As she stepped out of the bathroom, she was confronted by defendant. He was carrying a loaded shotgun, a bottle of vodka, and a roll of duct tape. He shoved her to the floor and stated, "This is going to be our last day together." The phone rang, and Mrs. Speer answered it. On hearing the voice of a family friend, she handed the phone to defendant. He threw down the phone and knocked her against a dresser. Hearing the struggle, the caller contacted the police.

Defendant started to tape Mrs. Speer's wrists together, but succumbed to her pleading to stop. Carrying the shotgun, he forced her downstairs to lock up the house. She opened the side door and tried to run free, but defendant grabbed her by the hair and dragged her back into the house. Once inside, he threw her against a washing machine. She fell to the floor, where he grabbed her by the throat and choked her. When the police arrived, defendant was taken into custody without incident. Mrs. Speer was taken to the hospital, where she was treated and released.

At trial, defendant testified that his wife had turned his stepsons against him. On cross-examination, he was asked if he had turned the boys against himself by his own conduct. He denied that he had threatened or physically abused them. He testified that he had disciplined the boys out of concern for their welfare. On rebuttal, the State called defendant's stepsons, who testified, over defendant's objection, of specific instances where defendant had threatened or hurt them, such as whipping them with a belt for getting bad grades.

The jury was instructed on charges of aggravated assault, aggravated burglary, aggravated kidnapping, and kidnapping. No instructions were requested or given on simple burglary or assault. Instructions on aggravated assault listed the following elements: "(2) that the defendant then and there used a deadly weapon or such means or force likely to produce death or serious bodily injury, (3) that the defendant did so intentionally or knowingly or recklessly."

The jury returned a verdict acquitting defendant of the kidnapping charge and convicting him of aggravated burglary and aggravated assault. In sentencing defendant, the judge applied Utah Code Ann. § 76-3-203(1) (1978), which adds an additional year for the use of a firearm in the commission or furtherance of a felony.

I.

Defendant's first contention is that the trial court did not follow proper procedures in reassigning the case. Judge Hansen heard and ruled on pretrial motions; however, Judge Frederick presided at the trial. The Rules of Practice in the District Courts provide in rule 3.4(b):

Criminal cases that have been set for trial or hearing shall not be continued or reassigned except upon order of the court.

Although no order reassigning the case appears on the record, there was no objection by defendant to the change or any evidence that the change in any way prejudiced him. Since a review of the proceedings does not indicate that reassigning the case without a written order of the court affected defendant's rights, the irregularity falls within the ambit of rule 30 of the Utah Rules of Criminal Procedure, which states:

(a) Any error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded.

Although it was improper for the trial court to transfer the case without entering an order, absent any prejudicial effect, we will not upset the jury verdict on this ground. (See State v. Knight, 734 P.2d 913, 919 (Utah 1987), for a review of cases applying rule 30.)

II.

Defendant next contends that calling his stepsons to testify in rebuttal was improper impeachment by the prosecution and that the prejudicial impact of their testimony requires reversal. Rule 608(b) of the Utah Rules of Evidence states:

(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of his privilege against self-incrimination when examined with respect to matters which relate only to credibility.

(Emphasis added.)

The rebuttal testimony offered in this case was in the form of specific instances of conduct, supposedly offered to attack the credibility of defendant. This is in direct contravention of the plain language of rule 608. ¹ In his direct testimony defendant, in the context of describing how he had reacted to the breakup of his marriage, made the statement that his wife had "turned the two boys against [him]." This statement, if relevant at all to the charges before the court, may have been probative of defendant's motive. Instead of using the testimony to support its case in that manner, the prosecution attempted to use this statement as a vehicle to bring in evidence that defendant abused his stepsons. Such use of this evidence violates rule 404(b) of the Utah Rules of Evidence, which states:

(b) Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent....

While the statement made on direct examination may have been probative of motive, the evidence offered by the State in an attempt to show that defendant had turned the boys against himself by his own conduct was not relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Nor was the evidence necessary to prove an essential element of a charge, claim, or defense so as to allow proof of specific instances of conduct under Utah Rule of Evidence 405(b). Having found no legitimate ground for the admission of the rebuttal testimony, we conclude that the trial court erred in admitting it.

Rule 103(a) of the Utah Rules of Evidence states:

(a) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected....

In determining whether a "substantial right of the party is affected," we look at the evidence as a whole in the context of the trial to determine if, absent the error, there is a reasonable likelihood that a different result would have been reached. State v. Rammel, 721 P.2d 498, 500 (Utah 1986); In re Estate of Hock, 655 P.2d 1111, 1117 (Utah 1982); Stagmeyer v. Leatham Bros., 20 Utah 2d 421, 426, 439 P.2d 279, 282 (1968).

The rebuttal testimony did not bear directly on whether defendant did or did not do any of the acts with which he was charged. He contends that the testimony that he physically abused his stepchildren was so inflammatory that it prejudiced the jury. While we agree that such testimony carries the potential to improperly influence the jury, there is no indication that it did so in this case. Defendant admitted that he entered the victim's home with a loaded shotgun and that he physically assaulted her. The evidence was not contradictory. The factual events as related by the victim were not disputed by defendant. Therefore, the jury's determination of the facts, which may be subject to influence by the admission of improper evidence, was not crucial in this case. Also, the fact that the jury acquitted defendant of two of the four charges indicates that the verdict was a result of a reasoned application of the law, rather than prejudice engendered by the improper evidence. We find therefore no prejudicial error in the admission of improper impeachment evidence.

III.

Defendant next contends that the verdict should be reversed and a new trial granted on the basis of prosecutorial misconduct. In reviewing a claim of prosecutorial misconduct, we must determine if the prosecutor's remarks calls to the attention of the jurors matters they would not be justified in considering in reaching the verdict and, if so, whether there is a reasonable likelihood that the misconduct so prejudiced the jury that there would have been a more favorable result absent the misconduct. State v. Tillman, --- P.2d ----, 72 Utah Adv.Rep. 6 (Dec. 22, 1987); State v. Fisher, 680 P.2d 35, 36 (Utah 1984). In determining whether a remark or question by the prosecution had such an effect, the alleged misconduct must be viewed in light of the totality of the trial. No one is in a more advantageous position to view the incident in the context of the trial than the trial judge; therefore, his rulings on whether the conduct of the prosecution warranted a mistrial will not be overturned absent an abuse of discretion. State v. Hodges, 30 Utah 2d 367, 370, 517 P.2d 1322, 1324 (1974).

Of the five instances defendant cites as misconduct, two were...