State v. Trusty
| Decision Date | 18 October 1972 |
| Docket Number | No. 12469,12469 |
| Citation | 28 Utah 2d 317,502 P.2d 113 |
| Parties | d 317 STATE of Utah, Plaintiff and Respondent, v. Kenneth TRUSTY, Defendant and Appellant. |
| Court | Utah Supreme Court |
D. Gilber Athay, of Slat Lake Legal Defender Assn., Salt Lake City, for defendant and appellant.
Vernon B. Romney, Atty. Gen., David S. Young and William T. Evans, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.
Defendant Kenneth Trusty appeals from a jury conviction of second-degree murder for the shooting death of Craig Crandall early in the morning of April 12, 1970, at the latter's South Salt Lake City home. By beating and abusing his wife, defendant had forced from her an admission of illicit relations with the deceased. He then got a pistol, took her to confront the deceased, by threats forced from him a similar confession, and then shot him in the head.
The error upon which he seeks reversal of his conviction is that a comment by the district attorney about the prospect of defendant's wife testifying deprived the latter of the advantage of claiming privilege against her doing so. 1
Defendant's counsel had stated (in the absence of the jury) that he claimed the husband-wife privilege. The matter he complains of is this cross-examination:
Q. (By Mr. Banks) You said everything that you said is the truth, is that right?
A. Right.
Q. And I assume then, your wife will testify to the same thing, is that right?
A. I hope she testifies to the truth, that she doped me and she was having an affair with him.
Q. So I take it then . . .
Mr. Athay: Your Honor, I think we should approach the bench.
The Court: You may do so. (R 349--450)
The jury was then excused from the courtroom. Defense counsel made a motion for a mistrial. The court denied the motion, and after the return of the jury, stated to them:
Ladies and gentlemen of the jury, any question in regard to whether or not Mrs. Trusty will testify are to be totally disregarded by you. It is completely irrelevant in this case, and you're not to consider that point at all.
In contending that this occurrence effectively destroyed his right to claim privilege against his wife testyifying, the defendant places reliance on the case of State v. Brown. 2 That was a rape case. The defense was alibi: that defendant was home with his wife. The wife did not testify. In his argument to the jury the district attorney pointed out that the wife was the one person who could have corroborated the alibi. Under those circumstances we held that the comment had the effect of destroying or impairing the privilege, and reversed and remanded for a new trial.
In considering the principle stated in the Brown case and its applicability to the instant situation, we concede the correctness of these propositions: that any comment by the prosecutor which in a substantial way will impair or disparage a claim of privilege is improper and therefore is error; and that if it be such that there is a possibility that it prejudiced the defendant, in the sense that there is any likelihood that there may have been a different result, then the error should be deemed prejudicial and another trial granted. But the converse is also true: unless both of those propositions are affirmatively shown, there should be no such reversal. 3
Because of his advantaged position in proximity to the trial, and his responsibility of seeing that the proceedings are carried on in the way which will best serve their purpose of seeking the truth and doing justice by seeing that both sides are given a fair trial, the determination of the propositions just stated is primarily within the discretion of the trial court. And the reviewing court should not reverse unless it appears that he clearly abused his discretion. 4
In regard to the particular situation here these comments are pertinent. First there was no objection upon which the court could act until after the defendant had answered the question. The second, if there had been any implication adverse to the defendant, the trial judge gave an appropriate cautionary instruction which it should be assumed that conscientious jurors would follows.
It is appreciated that in certain exigent circumstances the two foregoing observations might be set aside in order to rule more fundamentally upon the merits. 5 Nevertheless, we have mentioned them in this case because they have a bearing upon and should be considered in connection with what we regard as the more important and controlling consideration: whether in surveying the total circumstances it appears that there is any resonable likelihood of any substantial prejudice to the defendant under the rules hereinabove stated.
When the district attorney asked the question under consideration here: 'I assume then, your wife will testify to the same thing . . .?' before any objection was made, the defendant stated what the trial court, and this court, should be able to assume expressed what he intended the court and jury to believe was his view of the matter when he voiced the '. . . hope (that) she testifies to the truth . . .' etc. He still had the choice of calling her as a witness, or of not calling her, and of having an appropriate instruction thereon if he so desired. It seems to us that it would be mere conjecture to presume that a jury would necessarily draw an inference adverse to the defendant from the occurrence. Also having an important bearing on this problem is the fact that the cautionary instruction given by the trial court protected the defendant's right to prevent his wife from testifying just as effectively as that could be done in the event of a new trial. 6
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State v. Carter, 920110
...(holding that marital privilege does not prevent spouse from voluntarily testifying at trial on his or her own behalf); State v. Trusty, 502 P.2d 113, 114-15 (Utah 1972) (holding marital privilege not violated by prosecutor's in-court reference to possible trial testimony of defendant's spo......
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State v. Harrison
...case supported the conviction. The absence of a prejudice analysis in Brown was later criticized. See State v. Trusty, 28 Utah 2d 317, 502 P.2d 113, 115 (1972) (Ellett, J., concurring). Part two of the Valdez analysis addresses the prejudice issue overlooked in Brown.34 We are aware of lang......
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State v. Ortiz
...gave an appropriate cautionary instruction which it should be assumed that conscientious jurors would follow." State v. Trusty, 28 Utah 2d 317, 502 P.2d 113, 115 (1972). Therefore, we find that any prejudicial error that occurred during the closing remarks was INSUFFICIENCY OF THE EVIDENCE ......
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State v. Kelsey, 13376
...107.4 Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).5 State v. Cobo, 90 Utah 89, 60 P.2d 952; State v. Trusty, 28 Utah 2d 317, 502 P.2d 113; and see also Rule 51, U.R.C.P.6 Utah, 529 P.2d 421.7 Utah, 531 P.2d 864 (1975).8 We say this in awareness of statements someti......