State v. Van Dyke, 20080613-CA.

• Citation: 223 P.3d 465,2009 UT App 369
• Decision Date: 10 December 2009
• Docket Number: No. 20080613-CA.,20080613-CA.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert VAN DYKE, Defendant and Appellant.
• Court: Court of Appeals of Utah

223 P.3d 465

2009 UT App 369

STATE of Utah, Plaintiff and Appellee, v. Robert VAN DYKE, Defendant and Appellant.

No. 20080613-CA.

Court of Appeals of Utah.

December 10, 2009.;

Shelden R. Carter, Provo, for Appellant.

Mark L. Shurtleff, atty. gen., and Ryan D. Tenney, asst. atty. gen., Salt Lake City, for Appellee.

Before Judges ORME, DAVIS, and McHUGH.

OPINION

McHUGH, Judge:

¶ 1 Robert Van Dyke appeals his conviction for driving under the influence of alcohol (DUI), see Utah Code Ann. § 41-6a-502 (2005).¹ Van Dyke asserts that the trial court erred in denying his motion to suppress evidence, his motion to dismiss, and his motion to arrest judgment postconviction. Van Dyke also appeals the trial court's decision to permit the State to comment on his assertion of his Fifth Amendment rights. We affirm.

BACKGROUND²

¶ 2 On September 25, 2007, Van Dyke was arrested for DUI as he was leaving a sports park in Spanish Fork, Utah. As he walked toward his car in the parking lot, Van Dyke passed a couple (Husband and Wife) who was walking along the same pathway with their four children. Van Dyke approached them and began a conversation with the couple's six-year-old. Husband and Wife found the conversation odd because neither they nor their son knew Van Dyke and he was talking loudly and laughing. Wife also smelled alcohol on Van Dyke as he walked past her. After watching Van Dyke stare into space for a while before driving out of the lot, Husband called 911.

I. The 911 Call

¶ 3 Husband informed the 911 dispatch operator that he was reporting a drunk driver. When asked why he believed that Van Dyke was drunk, Husband responded,

Oh, he walked right past me and my son and he was trying to talk to my son. You could smell it on his breath and my wife smelled him too. The guy was just clearly intoxicated. He was just, the way he was acting. He tried to strike up a conversation with my little boy.

¶ 4 Husband described Van Dyke as having black hair and a goatee. He also provided a description of the car, including its color, make, model, and license plate number, as well as its direction of travel. Before concluding the call, Husband identified himself and gave the dispatch operator his phone number. Dispatch then relayed the information to officers via a computer communication. The dispatch communication stated, "[G]reen jeep cherokee/poss[ible] dui/just leaving the new part of ball pa[rk/plate number] . . . dealer plate/male with goatee/t[ime]l[apse] one minute/went towards main st unk[nown] from there[/]walked past [reporting party] and could smell the alcohol on his breath and definitely intoxicated."

II. The Traffic Stop

¶ 5 Officer Matt Johnson was traveling southbound on Main Street in Spanish Fork when he saw Van Dyke's vehicle turn north onto Main Street from the sports park. Officer Johnson followed Van Dyke for nine and one-half blocks, during which time he saw Van Dyke's vehicle weave "one or two times" within the lane and three times onto the center divider line. However, Officer Johnson observed no traffic violations.

¶ 6 At approximately 50 North Main Street, Van Dyke voluntarily pulled off the road and stopped the vehicle. Officer Johnson "pulled in behind the vehicle and activated [his] emergency lights." Because Van Dyke had exited his vehicle, Officer Johnson ordered him back into the car.

III. Van Dyke's Refusal to Be Tested

¶ 7 Officer Johnson approached Van Dyke's vehicle. In response to Officer Johnson's inquiry, Van Dyke confirmed that he was traveling from the sports park. Officer Johnson then requested Van Dyke's driver license and vehicle registration. Van Dyke "fumbled through his wallet for a few seconds to locate his driver[] license and then . . . look[ed] in the billfold portion . . . for the registration."³ Eventually, Van Dyke produced a sales receipt for a different vehicle, which Van Dyke explained belonged to another car owned by his father's dealership. During their conversation, Officer Johnson noticed "a strong odor of an alcoholic beverage coming from [Van Dyke's] person," Van Dyke's slurred speech, and his slow responses to questioning. Officer Johnson asked Van Dyke to exit the vehicle to perform field sobriety tests. Van Dyke refused, and when asked why, he responded, "Fifth." Officer Johnson then placed Van Dyke under arrest for DUI.

¶ 8 Officer Johnson transported Van Dyke to the Utah County Jail where he was booked for DUI. The officer then advised Van Dyke of the penalties under Utah Code section 41-6a-520 for refusing a police request for chemical testing to determine an accused's level of intoxication. He asked Van Dyke to submit to blood, breath, and urine tests (collectively, chemical tests), and Van Dyke refused, again asserting his rights under the Fifth Amendment.

IV. The Trial

¶ 9 Van Dyke was charged by information for DUI. Van Dyke moved to suppress the evidence obtained from the stop, claiming that it was the product of an unreasonable seizure. The trial court denied this motion, and the case proceeded to trial by jury. The trial court also denied Van Dyke's motion in limine, which sought to exclude evidence of or references to Van Dyke's invocation of his Fifth Amendment rights.

¶ 10 At trial, the State presented the testimonies of a scorekeeper at the ballpark (Scorekeeper), Husband, Wife, the three officers responding to the dispatch report, and the booking officer. Their testimonies produced the following evidence against Van Dyke.

¶ 11 Scorekeeper testified that Van Dyke approached her to discuss the postponement of his baseball game. She stated that Van Dyke was initially nice to her but that "all of a sudden he started getting belligerent, swearing at [her], just yelling." He also smelled "really bad," "like alcohol." Van Dyke's encounter with Scorekeeper lasted approximately twenty minutes.

¶ 12 Van Dyke then left Scorekeeper's office and headed to his car. Along the way, he met Husband, Wife, and their son. Husband and Wife both testified that they did not know Van Dyke and that he engaged their six-year-old son in a conversation that was "out of the ordinary" because Van Dyke was loud and laughing. Husband also said that he immediately noticed Van Dyke's slurred speech and glazed eyes. Wife testified that she smelled alcohol on Van Dyke and that he was limping. Both Husband and Wife observed that when Van Dyke reached his vehicle, he stared across the parking lot for several seconds, as if he were "in a stupor," before loading his baseball gear into his car and driving out of the lot toward Main Street. It was then that Husband decided to call 911.

¶ 13 Officer Johnson testified that upon locating the vehicle described in the dispatch report, he followed it until it stopped on the side of the road. Detective Phil Nielsen and Officer Trent Shepherd arrived at the scene shortly thereafter to provide back-up assistance. Detective Nielsen testified that he stood by the front passenger window of Van Dyke's vehicle while Officer Johnson returned to his car to check for any outstanding warrants. Detective Nielsen further testified that he could smell alcohol inside the vehicle and that Van Dyke's movements appeared "slow and lethargic." At one point, Van Dyke turned the keys in the ignition to start the car and Detective Nielsen reached inside, turned off the vehicle, and removed the keys from the ignition.

¶ 14 Officer Johnson stated that he returned to the vehicle and requested that Van Dyke complete field sobriety testing. When Van Dyke refused, Officer Johnson arrested Van Dyke for DUI. As he was exiting the vehicle, Van Dyke placed his hand on the hood, but Officer Johnson reported no other problems with Van Dyke's balance. By that time, Van Dyke's father had arrived and was standing next to Officer Shepherd at the rear of Van Dyke's vehicle. According to Officer Shepherd, Van Dyke paused to say, "I'm sorry, [D]ad," before Officer Johnson placed Van Dyke in the rear of his police cruiser. A search incident to the arrest produced one unopened can of beer, cold to the touch, behind the front passenger seat.

¶ 15 Deputy Daniel Herrin was working in the jail booking area when Van Dyke arrived. Deputy Herrin testified that Van Dyke's "speech was very slurred, his eyes had a glassy appearance[,] . . . [and he] just appeared incoherent, a little confused." He also recalled that Van Dyke was unsteady and staggered as he entered the booking area, but Deputy Herrin did not remember if Officer Johnson had to assist him.

¶ 16 Following the State's case-in-chief, the defense moved for dismissal on the ground that the State failed to carry its burden. The trial court denied this motion, concluding that the State "ha[d] established the prima facie case that would allow the final deliberations of the jury." The jury convicted Van Dyke. Pursuant to rule 23 of the Utah Rules of Criminal Procedure, Van Dyke filed a motion to arrest judgment, asserting that the State presented insufficient evidence to support the DUI conviction. That motion was also denied. Van Dyke now appeals.

ISSUES AND STANDARDS OF REVIEW

¶ 17 Van Dyke first asserts that the trial court erred in denying his motion to suppress because Officer Johnson did not have reasonable suspicion to justify the investigatory detention as required by the Fourth Amendment.⁴ "In an appeal from a trial court's denial of a motion to suppress evidence, `we review the trial court's factual findings for clear error[,] and we review its conclusions of law for correctness.'" Salt Lake City v. Bench, 2008 UT App 30, ¶ 5, 177 P.3d 655 (quoting State v. Tiedemann, 2007 UT 49, ¶ 11, 162 P.3d 1106), cert. denied, 199 P.3d 367 (Utah 2008). "In search and seizure cases, no deference is granted to . . . the [trial] court regarding the application of law to underlying factual findings." State v. Alverez, 2006 UT 61, ¶ 8, 147 P.3d 425.

¶ 18 Van Dyke also claims that the State's introduction of his refusal to...