State v. Tucker
| Decision Date | 11 October 1985 |
| Docket Number | No. 19281,19281 |
| Citation | 709 P.2d 313 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Paul Brian TUCKER, Defendant and Appellant. |
| Court | Utah Supreme Court |
James C. Bradshaw, Frances Palacios, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Dave B. Thompson, Asst. Atty. Gen., Robert L. Stott, Co. Atty., Salt Lake City, for plaintiff and respondent.
This is an appeal from a conviction of aggravated robbery under U.C.A., 1953, § 76-6-302 (1978 ed.). Defendant challenges his conviction on grounds that he was identified by the victim as a result of an improperly suggestive showup and lineup, that the prosecutor's closing argument constituted impermissible comment on his failure to take the stand, and that the trial court erred in refusing to give a cautionary Telfaire-type instruction regarding the eyewitness identification of defendant. We reject these claims and affirm.
Early in the morning of February 18, 1983, two men were returning to their rooms at the Little America Motel at 5th South and Main Street in Salt Lake City, when one of them heard a noise behind them. While his companion continued walking down the street, he turned around and was confronted by a man pointing a small handgun and wearing a bandana that covered the lower part of his face. The man demanded all of the victim's money. He complied, handing over about $21, and then watched as the robber quickly ran down 5th South, where the victim glimpsed a police car. The car, occupied by two Salt Lake County sheriff's deputies, swerved to avoid hitting the fleeing robber. Although neither deputy had seen the robbery, they both thought the man's conduct was suspicious. While one officer parked the car, the other pursued the man on foot, losing sight of him when he ran down a nearby alley. At about the same time, a Salt Lake City police department vice squad officer happened by and joined in the pursuit. The vice officer chased the man down the alley and briefly lost sight of him, but continued on in the same direction until he reached a vacant lot. He scanned the lot with his flashlight and discovered defendant, who ducked when the light struck him. The vice officer drew his revolver, announced that he was a police officer, and then detained defendant, who was dressed very much like the man the officer had been chasing. According to the vice officer, at the time of apprehension defendant was sweating profusely and had a rapid pulse. The vice officer turned defendant over to the Salt Lake County police officers. A search of defendant produced a bandana with a knot in it and about $21, while a search of the area through which the chase had taken place turned up a small handgun matching the description given by the victim. The victim and his companion, who had gone back to the motel after the robbery and summoned the police, were brought to the area by the police. Both men immediately identified defendant as the man who had committed the robbery. Approximately three weeks later, the victim again identified defendant as the robber by picking him from an eight-man lineup.
Defendant's first contention is that the initial showup in the vacant lot where he was apprehended was conducted under circumstances so fraught with potential for misidentification as to make the resulting identification unreliable and its admission violative of due process. See Neil v. Biggers, 409 U.S. 188, 198-200, 93 S.Ct. 375, 381-83, 34 L.Ed.2d 401 (1972); State v. McCumber, Utah, 622 P.2d 353, 357 (1980). We do not reach this issue because there is no indication in the record that defense counsel ever raised it below. Under such circumstances, we will not consider an objection raised for the first time on appeal. See Rule 4, Utah R.Evid.; State v. McCardell, Utah, 652 P.2d 942, 945-47 (1982). 1
Defendant next argues that evidence of his identification by the victim at the lineup held one month after the robbery should have been excluded. Relying on Neil v. Biggers, defendant contends that the lineup was tainted by the earlier suggestive showup. Again, we must reject defendant's claim because it was not raised at trial.
During the trial, defendant's counsel objected to the victim's testimony about the lineup "for foundation" and requested an off-the-record conference at the bench. Because the request was granted, no record exists as to the content of that objection. All the record reveals is that the court subsequently overruled it. After the jury was dismissed, defendant's counsel reiterated her objection on the record, stating that "there was no foundation laid as to the fairness and impartiality of that lineup in terms of the people who were in the lineup along with the defendant." On appeal, defendant's counsel does not contend that there were any foundational problems with the lineup. Instead, she alleges that the Neil v. Biggers due process argument applies--that because of the defective showup, the lineup was fraught with potential for misidentification. We have no record, however, of this objection being made below and must conclude, therefore, that the trial court's attention was never called to it. Under the contemporaneous objection rule, if the trial court objection does not "direct the court's attention" to the legal point being raised on appeal, we cannot consider it for the first time on appeal. 652 P.2d at 947.
The third claim is that the prosecutor's closing argument constituted impermissible comment on defendant's exercise of his fifth amendment right not to take the stand. For a statement by a prosecutor to be constitutional error his remark must be " 'manifestly intended or ... of such character that a jury would naturally and necessarily construe it to amount to a comment on the failure of the accused to testify.' " State v. Nomeland, Utah, 581 P.2d 1010, 1011 (1978), quoting State v. Jefferson, 116 R.I. 124, 137, 353 A.2d 190, 198 (1976); accord, State v. Hales, Utah, 652 P.2d 1290, 1291-92 (1982). In the present case, we do not find that constitutional error of reversible dimension occurred. During closing argument, the following colloquy took place:
Mr. Stott (prosecutor): She tells you that the reason the defendant was sweating, [sic] because a gun was pointed at him. She doesn't tell us why he was in the field hiding, does she?
Ms. Carter (defender): Your Honor, I am going to object to that.
Mr. Stott: Also--
Ms. Carter: The defense has no burden to put on any evidence of anything.
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