State v. Todd

Decision Date25 October 2007
Docket NumberNo. 20030157-CA.,20030157-CA.
Citation173 P.3d 170,2007 UT App 349
PartiesSTATE of Utah, Plaintiff and Appellee, v. Shayne E. TODD, Defendant and Appellant.
CourtUtah Court of Appeals

Linda M. Jones, Salt Lake City, for Appellant.

Mark L. Shurtleff, atty. gen., and Kris C. Leonard, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges BILLINGS, DAVIS, and ORME.

OPINION

ORME, Judge:

¶ 1 On February 28, 1999, Stephanie Todd was shot and killed during an altercation with her estranged husband, defendant Shayne Todd. Defendant claimed the gun fired accidentally, while the State maintained the shooting was intentional. On appeal, Defendant asserts that the prosecutor made inappropriate statements during closing argument and that the trial court improperly denied Defendant's motion for a mistrial. We agree that the prosecutor's statements were improper and constituted prosecutorial misconduct. However, our confidence in the verdict is not undermined, and we conclude Defendant was not prejudiced by the misconduct. Therefore, we affirm Defendant's conviction.

BACKGROUND

¶ 2 Stephanie and Defendant were married but separated. In February 1999, Stephanie was living with her boyfriend, John Dinga. Following her separation from Defendant, Stephanie retained possession of a Chevrolet Blazer, which Defendant had purchased prior to the marriage, on the conditions that Dinga would not drive it and that she would properly care for it.

¶ 3 On February 28, 1999, Defendant drove by Stephanie's residence. He saw the Blazer parked in front and decided to take it using a key he had retained. Defendant was apparently unhappy with the way Stephanie was caring for the car and claimed to have seen Dinga driving it. Defendant took the Blazer, which contained some of Stephanie's personal property, including her purse. The purse contained $1300 in cash she had recently borrowed. When Stephanie noticed the Blazer was missing, she immediately suspected Defendant and called the police. The police informed her that because she was still married to Defendant and Defendant's name was on the Blazer's title, they regarded it as a civil matter.

¶ 4 Later that day, Stephanie and Defendant spoke by phone and arranged to meet in person at a parking lot in Sandy. At this meeting, Stephanie understood that Defendant would return the Blazer and her purse containing the $1300. Defendant decided to bring a Glock 10-millimeter pistol to the meeting.

¶ 5 That evening, Stephanie and her brother drove to the agreed destination. They pulled up next to the Blazer, and Defendant handed the purse to Stephanie's brother. Stephanie then exited the car, approached the driver's door of the Blazer, and started arguing with Defendant. Defendant began to drive away, and Stephanie reached into the window and hung onto the door. Despite Stephanie hanging onto the Blazer, Defendant continued to drive through the parking lot at a speed somewhere between 15 and 35 miles per hour. Stephanie's brother realized what was happening, made a U-turn, and followed the Blazer. Suddenly, Stephanie's brother "heard a popping noise," and Stephanie fell from the Blazer. Defendant continued driving and exited the parking lot. Stephanie had been shot in the head and was pronounced dead at the scene.

¶ 6 One day later, Defendant was apprehended at a relative's house. Defendant was charged with murder, among other crimes. The other charges were resolved via plea bargain, and Defendant proceeded to trial on the murder charge. After a nine-day jury trial, Defendant was convicted of murder.

¶ 7 At trial, Defendant testified that he brought the gun to the parking lot because he was afraid of Dinga. He also testified that his gun, loaded and ready to be fired, was in his lap as he waited in the Blazer for Stephanie to arrive. Further, he testified that after Stephanie jumped onto the Blazer, she grabbed the gun, they struggled, and the gun accidentally fired.

¶ 8 During closing argument, the prosecutor made several impassioned references to what Stephanie "might have told you" if she had been alive to testify. The prosecutor also discussed Defendant's reckless drive through the parking lot in arguing that Defendant intended to cause serious bodily injury to Stephanie and, in so doing, caused her death. Defendant did not object to these statements until after the prosecutor had completed her closing argument to the jury.

¶ 9 During his closing argument, Defendant's counsel told the jurors they should not be guided by their passions and sympathies, but should consider only the evidence. Further, he repeatedly reminded the jurors that they could only view the gun as the cause of death and that any consideration of the drive through the parking lot as a cause of Stephanie's death was inappropriate.

¶ 10 After closing arguments, Defendant's counsel moved for a mistrial. The trial court denied the motion, but indicated it would provide a curative instruction regarding the prosecutor's statements. Defendant's counsel then thanked the court. Before the jurors retired to deliberate, the court provided the curative instruction, admonishing the jurors that the attorneys were not testifying during closing arguments and that the jurors could only consider the evidence before them.

¶ 11 At the end of the trial, the court specifically asked Defendant's counsel if he had any further objections for the record, to which he responded he did not. At no point did he register an objection to the substance or strength of the curative instruction.

¶ 12 At a sentencing hearing on March 14, 2001, the trial court orally announced Defendant's sentence. About a week later, Defendant filed a motion for a new trial. The court entered its written sentencing order on March 28, 2001. Nearly two years later, on January 23, 2003, the trial court denied Defendant's motion for a new trial.

¶ 13 Defendant filed a notice of appeal to the Utah Supreme Court on February 21, 2003. The case was transferred to this court, see Utah Code Ann. § 78-2-2(4) (2002), and we dismissed for lack of jurisdiction, holding that Defendant's motion for a new trial had not been timely filed. See State v. Todd, 2004 UT App 266, ¶ 22, 98 P.3d 46. The Supreme Court granted certiorari, see State v. Todd, 109 P.3d 804 (Utah 2005); reversed our jurisdictional determination; and remanded the matter for our consideration of the merits of Defendant's appeal. See State v. Todd, 2006 UT 7, ¶¶ 6-9, 128 P.3d 1199.

ISSUE AND STANDARD OF REVIEW

¶ 14 Only one issue is now before us: Whether the trial court erred in failing to grant Defendant's motion for a new trial based on statements the prosecutor made during closing argument. On a motion for a new trial, the initial determination of whether improper remarks have influenced a verdict is within the discretion of the trial court. See State v. Valdez, 30 Utah 2d 54, 513 P.2d 422, 426 (1973).

In determining whether a given statement constitutes prosecutorial misconduct, the statement must be viewed in light of the totality of the evidence presented at trial. Further, because the trial court is in the best position to determine the impact of a statement upon the proceedings, its rulings on whether the prosecutor's conduct merits a mistrial will not be overturned absent an abuse of discretion.

State v. Cummins, 839 P.2d 848, 852 (Utah Ct.App.1992) (citing State v. Gardner, 789 P.2d 273, 287 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990)), cert. denied, 853 P.2d 897 (Utah 1993).

ANALYSIS

¶ 15 "Generally speaking, in argument to the jury, counsel for each side has considerable latitude and may discuss fully from their viewpoints the evidence and the inferences and deductions arising therefrom." State v. Tillman, 750 P.2d 546, 560 (Utah 1987) (citation omitted).

A prosecutor's actions and remarks constitute misconduct that merits reversal if the actions or remarks call to the attention of the jurors matters they would not be justified in considering in determining their verdict and, under the circumstances of the particular case, the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant.

Id. at 555. See State v. Colwell, 2000 UT 8, ¶ 39, 994 P.2d 177; State v. Troy, 688 P.2d 483, 486 (Utah 1984); State v. Basta, 966 P.2d 260, 268 (Utah Ct.App.1998); State v. Cummins, 839 P.2d 848, 852 (Utah Ct.App. 1992). Thus, prosecutorial misconduct claims trigger "a two-step test that must be applied `under the circumstances of the particular case.'" Troy, 688 P.2d at 486 (quoting State v. Valdez, 30 Utah 2d 54, 513 P.2d 422 (1973)).

¶ 16 We first analyze whether the prosecutor's statements during closing argument called the jurors' attention to matters they were not authorized to consider during deliberations. Next, we analyze whether "the error is substantial and prejudicial such that there is a reasonable likelihood that in its absence, there would have been a more favorable result for the defendant." Tillman, 750 P.2d at 555.

I. Improper Statements

¶ 17 In our judicial system, "the prosecution's responsibility is that of `a minister of justice and not simply that of an advocate,' which includes a duty `to see that the defendant is accorded procedural justice and that guilt is decided upon the basis of sufficient evidence.'" State v. Hay, 859 P.2d 1, 7 (Utah 1993) (quoting Utah R. Prof'l Conduct 3.8 & cmt. 1) (footnotes omitted). Thus, "the conduct of the prosecutor at closing argument is [appropriately] circumscribed by the concern for the right of a defendant to a fair and impartial trial." Commonwealth v. Cherry, 474 Pa. 295, 378 A.2d 800, 803 (1977). See State v. Troy, 688 P.2d 483, 486 (Utah 1984) (discussing "whether [the prosecutor's] misconduct deprived defendant of a fair trial"). Prosecutors are held to a high standard regarding their conduct, given "the...

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    ...that “ ‘[a] criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone.’ ” State v. Todd, 2007 UT App 349, ¶ 31, 173 P.3d 170 (quoting United States v. Diaz–Carreon, 915 F.2d 951, 956 (5th Cir.1990)) (alteration in original), cert. denied, 186......
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