State v. Torres-Garcia

• Decision Date: 16 February 2006
• Docket Number: No. 20040815-CA.,20040815-CA.
• Citation: 131 P.3d 292,2006 UT App 45
• Parties: STATE of Utah, Plaintiff and Appellee, v. Salvador TORRES-GARCIA, Defendant and Appellant.
• Court: Utah Court of Appeals

131 P.3d 292

2006 UT App 45

STATE of Utah, Plaintiff and Appellee, v. Salvador TORRES-GARCIA, Defendant and Appellant.

No. 20040815-CA.

Court of Appeals of Utah.

February 16, 2006.

Lori J. Seppi, David P. Mack, and Brennon L. Fuelling, Salt Lake Legal Defender Association, Salt Lake City, for Appellant.

Mark L. Shurtleff, Attorney General, and Jeffrey S. Gray, Assistant Attorney General, Salt Lake City, for Appellee.

Before Judges BENCH, DAVIS, and ORME.

OPINION

ORME, Judge:

¶ 1 Defendant Salvador Torres-Garcia appeals his conviction of one count of murder, a first degree felony. See Utah Code Ann. § 76-5-203 (2003). He argues that the trial court erred by refusing to grant his motion for a continuance. We agree that the denial of the motion was erroneous, and we reverse Defendant's conviction and remand the case for a new trial.

BACKGROUND

¶ 2 On September 23, 2003, Clara Irwin contacted a drug dealer and requested a delivery of cocaine to the hotel room in which she and her husband, Todd Irwin, were staying. During the delivery, the drug runner left several baggies of heroin in the Irwins' hotel room to avoid the potential discovery of the drugs by a police officer that the runner had seen in the area. Mr. Irwin later met the drug runner at a nearby gas station to return the heroin. But when the two could not agree upon the amount of cocaine Mr Irwin should receive for the heroin's safe return, he retained the heroin and returned to the hotel room. Fifteen minutes after Mr. Irwin's return, several men entered the hotel room and, in the presence of Ms. Irwin, assaulted, shot, and killed him.

¶ 3 Ms. Irwin, sleep-deprived and having recently indulged her drug addiction, was interviewed by the police after the shooting. Because of her physical state, she would periodically "nod off" during this initial interview. Then, during subsequent interviews — one at the police station later that evening and another held several weeks later — many details recounted were inconsistent with her initial statement. So, although Ms. Irwin picked Defendant out of a photo array and identified him at a lineup, her testimony about who actually shot her husband was far from impenetrable because of her inconsistent interview responses.

¶ 4 Defendant was charged with murder and, in preparing his case, he filed discovery requests for identification of all expert witnesses that the State planned to use in prosecuting him. On April 15, 2004 — almost two months after the preliminary hearing — the State filed a Notice of Expert Witnesses, stating its intention to use Craig Watson, the Assistant Chief Investigator for the District Attorney, as an expert witness to "testify concerning drug trafficking." The certificate of delivery attached to the notice, however, verified that it was mailed to an attorney other than the one representing Defendant.

¶ 5 Apparently, then, the earliest that Defendant's trial counsel was actually made aware that the State planned to use Watson as an expert witness was during a hearing held Thursday, May 20, 2004 — five days before the trial was set to commence. The following Monday, Defendant raised the lack of notice issue at a motion hearing. The trial court determined that the State had not complied with the notice requirements of Utah Code section 77-17-13 and determined that Defendant was entitled to a continuance. See Utah Code Ann. § 77-17-13(1), (4)(a) (2003). Rather than see the trial continued, the State opted to go forward with the trial, expressly representing it would forgo the use of Watson as an expert witness.

¶ 6 The trial commenced the following day, Tuesday, May 25. That morning, the State filed a motion asking the trial court to reconsider its ruling regarding the State's use of Watson as an expert, arguing that he met the exception specified in subsection 6 of the statute as recently amended.¹ The trial court ultimately agreed with the State, which prompted Defendant to again request a continuance, but this time the trial court denied the request. However, the court ordered that Watson could not testify until the second day of trial so that defense counsel would have an opportunity to interview Watson prior to his in-court testimony. With this minimal limitation in place, the trial then proceeded as scheduled.

¶ 7 During opening statements and during the examination of witnesses, defense counsel heavily emphasized the inconsistencies in Ms. Irwin's various accounts of the shooting. For example, her testimony varied regarding what Mr. Irwin requested — money or drugs — as payment for the heroin's return, who drove the car used in fleeing the crime, and the name of the shooter. Defense counsel especially highlighted these inconsistencies during the cross-examination of Ms. Irwin, which took place on the first day of trial and well before defense counsel had any opportunity to talk with Watson.

¶ 8 On the second day of trial, the State called Watson as its final witness. Watson, as an expert witness regarding drug trafficking, was able to explain away many of the inconsistencies in Ms. Irwin's testimony — inconsistencies upon which the defense was so heavily relying to undermine her testimony. Watson testified that drug dealers often use monetary amounts to refer to quantities of drugs, that drug dealers usually have many cars and their runners do not consistently use the same cars, and that drug dealers use frequently changing nicknames in communicating with their customers. Watson's testimony provided compelling explanations for many of the apparent inconsistencies in Ms. Irwin's testimony.

¶ 9 The jury returned a guilty verdict on May 28, 2004, and Defendant was later sentenced to prison. Defendant then filed this appeal.

ISSUE AND STANDARD OF REVIEW

¶ 10 Defendant argues that the trial court improperly denied his renewed motion for a continuance. "The decision to grant or deny a requested continuance lies within the broad discretion of the trial court, and we will not disturb such a decision absent a clear abuse of discretion." State v. Begishe, 937 P.2d 527, 530 (Utah Ct.App.1997). Accord State v. Cabututan, 861 P.2d 408, 413 (Utah 1993). Further, it is necessary in establishing such an abuse of discretion to show that Defendant was prejudiced by the denial, since "[a]ny error, defect, irregularity or variance which does not affect the substantial rights of a party shall be disregarded." Utah R.Crim. P. 30(a). Thus, we will only reverse when our "review of the record persuades [us] that without the error there was a reasonable likelihood of a more favorable result for the defendant." State v. Knight, 734 P.2d 913, 919 (Utah 1987) (internal quotations, citations, and emphasis omitted).

ANALYSIS

¶ 11 Utah Code section 77-17-13 governs the notice requirements applicable to expert testimony. See Utah Code Ann. § 77-17-13 (2003). Under this section, a party that intends to call an expert witness to testify at trial is generally required to give notice to the opposing party "not less than 30 days before trial." Id. § 77-17-13(1)(a). Such notice must include the expert's name, address, curriculum vitae, and either the expert's written report, a written explanation of the proposed testimony, or notice that the expert is available for consultation upon reasonable notice. See id. § 77-17-13(1)(b). When a party does not "substantially comply" with the notice requirements, the other party is "entitled to a continuance ... sufficient to allow preparation to meet the testimony" if such continuance is "necessary to prevent substantial prejudice." Id. § 77-17-13(4)(a).

¶ 12 The State argues, however, that its use of Watson as an expert comes within an exception found in subsection 6 — which applies to state employees used as expert witnesses — and, therefore, that only informal notice was required. See id. § 77-17-13(6). Subsection 6 requires only that the opposing party be "on reasonable notice through general discovery that the expert may be called as a witness at trial, and the witness is made available to cooperatively consult with the opposing party upon reasonable notice." Id. The State contends, and the trial court concluded when this subsection was belatedly called to its attention, that the conditions for this less formal notice were met here.

¶ 13 The State's recast argument presents a "square peg in a round hole" dilemma. Despite its belated reliance on the "general discovery" exception of subsection 6, the State had actually attempted to give specific notice under subsection 1, providing Watson's name, address, and curriculum vitae.² The certificate of mailing, however, shows that the notice was not sent to Defendant's counsel, but rather to a different attorney at a different address. While the State contends that the notice was also sent to Defendant's counsel, and that it had a paralegal ready to testify to that effect, defense counsel maintained that he never received the notice. Thus, whether the notice was sent to Defendant's counsel or not, it appears that Defendant first actually learned of the State's intention to use Watson's expert testimony from a comment the State made during the hearing held five days before trial.³

¶ 14 As concerns notice pursuant to subsection 6, it appears that the only "general discovery" the State can point to as meeting that subsection's "reasonable notice" requirement is the problematic Notice of Expert Witnesses that the State attempted to send to Defendant's counsel several weeks before trial. Utah Code Ann. § 77-17-3(6). Moreover, there is no indication Watson was ever "made available to cooperatively consult" with Defendant's counsel until the trial had started. Id.

¶ 15 But whether the trial court was correct in holding that subsection 6 controlled is, ultimately, unimportant given the unique circumstances of this case, and we express no opinion on this determination. For regardless of whether subsection 6 applied, the...