State v. Vigil

• Decision Date: 05 July 2013
• Docket Number: No. 20110698–CA.,20110698–CA.
• Citation: 306 P.3d 845,738 Utah Adv. Rep. 77
• Parties: STATE of Utah, Plaintiff and Appellee, v. Paul Raymond VIGIL, Defendant and Appellant.
• Court: Utah Court of Appeals

306 P.3d 845

738 Utah Adv. Rep. 77

STATE of Utah, Plaintiff and Appellee,

v.Paul Raymond VIGIL, Defendant and Appellant.

No. 20110698–CA.

Court of Appeals of Utah.

July 5, 2013.

Joel J. Kittrell, for Appellant.

John E. Swallow and Jeanne B. Inouye, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judge CAROLYN B. McHUGH concurred. Judge GREGORY K. ORME concurred in the result.

VOROS, Judge:

¶ 1 Paul Raymond Vigil appeals from his convictions for aggravated kidnapping, rape, and related crimes.¹ On appeal he contends that the trial court erred by denying his request to recall the victim, J.B., for a third cross-examination. We affirm.

BACKGROUND

¶ 2 In September 2010, J.B. asked Vigil, who had previously sold drugs to her, for a ride from the airport to a friend's house. Vigil picked her up but drove her to his home rather than to the friend's house. J.B. repeatedly asked Vigil to take her to the friend's house but ended up staying at Vigil's house. While there, both she and Vigil took drugs. Several days later, J.B. told Vigil she was leaving. Vigil became angry, raped J.B., then emptied her wallet while she was getting dressed. J.B. got a ride to a different friend's house and reported the rape.

¶ 3 J.B. left Utah for an out-of-state drug treatment center but returned to testify at Vigil's trial. On the first day of trial, she was called to the stand as a witness for the State. As relevant here, she testified that she had arrived in Utah the day before trial and had gone to Temple Square with a care provider from the treatment center. On cross-examination, J.B. denied that she had visited a defense witness (Witness), denied giving Witness money, and denied asking Witness for drugs.

¶ 4 On the second day of trial, J.B. was recalled to the stand by the State and admitted that her prior testimony about the night before trial had not been accurate. She admitted that the care provider had not accompanied her and that she had returned to her hotel before reaching Temple Square. But she reaffirmed her testimony about the events giving rise to the charges against Vigil. On cross-examination, J.B. again denied that she had visited Witness the night before trial.

¶ 5 On the third day of trial, the prosecutor disclosed to the court and defense counsel that she had talked to the hotel bus driver the previous evening. The bus driver told her that on the night before trial a young woman, possibly J.B., had ridden the bus to a location near Witness's house. The judge, prosecutor, and defense counsel discussed recalling J.B. again to cross-examine her about the falsity of her prior testimony on this point. They recognized that if J.B. denied riding the bus, defense counsel would seek to impeach J.B. by calling the hotel bus driver to testify. However, neither the prosecutor nor defense counsel could reach the hotel bus driver despite placing “dozens” of calls. As a result, the trial judge requested that the prosecutor and defense counsel consider stipulating that J.B. had testified falsely on this point.

¶ 6 The State was willing to enter into such a stipulation, but Vigil wanted to recall J.B. The State objected to recalling J.B. and the trial court sustained the objection, noting “It seems to me that the defense gets everything they want out of the stipulation.” Accordingly, the State's stipulation was read to the jury. The stipulated facts were (1) that J.B.'s revised testimony about her whereabouts on the night before trial was false and (2) that J.B. had visited Witness's neighborhood.

¶ 7 Later that day Witness took the stand. She testified that J.B. came to her house the night before trial looking for drugs. Vigil did not ask Witness whether J.B. had offered her money in an attempt to influence her trial testimony.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Vigil contends that his “rights under the Confrontation Clause were violated because he did not have the opportunity to cross-examine the complaining witness about her motives for lying twice under oath about visiting one of the key witnesses” whose testimony was contrary to hers. “When reviewing a trial court's decision to limit cross-examination, we review the legal rule applied for correctness and the application of the rule to the facts of the case for an abuse of discretion.” State v. Chavez, 2002 UT App 9, ¶ 17, 41 P.3d 1137.²

¶ 9 Vigil also contends that the “trial court erred when it denied [his] motion for a new trial.” “[T]he trial court's decision to deny [a] defendant's motion for new trial is reviewed under an abuse of discretion standard.” State v. Evans, 2001 UT 22, ¶ 26, 20 P.3d 888. However, “we review the legal standards applied by the [trial] court in denying [a] motion [for a new trial] for correctness.” State v. Allen, 2005 UT 11, ¶ 50, 108 P.3d 730.

ANALYSIS

I. Confrontation Clause

¶ 10 Vigil first contends that the trial court's denial of his request to recall J.B. to the stand for a third time resulted in a violation of his Confrontation Clause rights. “The Sixth Amendment to the United States Constitution states in relevant part, ‘In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him....’ ” State v. Marks, 2011 UT App 262, ¶ 13 n. 6, 262 P.3d 13 (omissions in original) (quoting U.S. Const. amend. VI). Nevertheless, a defendant's Sixth Amendment right to confront his accuser “is not absolute,” State v. Tarrats, 2005 UT 50, ¶ 36, 122 P.3d 581, and “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process,” Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) (citation and internal quotation marks omitted). Thus, “trial judges retain wide latitude to limit reasonably a criminal defendant's right to cross-examine a witness based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant.” Id. (citation and internal quotation marks omitted).

¶ 11 “[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness....” Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); see also Chavez, 2002 UT App 9, ¶ 18, 41 P.3d 1137. Even if a defendant does so, the Supreme Court has “repeatedly reaffirmed the principle that an otherwise valid conviction should not be set aside if the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 681, 106 S.Ct. 1431;see also Chavez, 2002 UT App 9, ¶ 22, 41 P.3d 1137 (stating that where we conclude that a trial court committed a Confrontation Clause error, “we must [then] consider whether the error was harmless beyond a reasonable doubt”).³ Accordingly, upon a showing of Confrontation Clause error, reversal is required unless a reviewing court determines that the error was harmless beyond a reasonable doubt.

¶ 12 Assuming without deciding that the trial court erred by refusing to recall J.B. to the stand, we turn to the second part of this test. “The correct inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized, a reviewing court might nonetheless say that the error was harmless beyond a reasonable doubt.” Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. A reviewing court considers “a host of factors,” including “the importance of the witness'[s] testimony in the prosecution's case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution's case.” Id. For convenience, we refer to these as the Van Arsdall factors.

¶ 13 Vigil contends that the denial of a third cross-examination harmed him in two ways. He asserts that had he been able to cross-examine J.B. again “[1] the jury could have become aware of [J.B.'s] true intentions for going to [Witness's] house the night before trial, and [2] the jury would have had the seriousness of [J.B.'s] second perjured testimony more memorable in their minds.”

¶ 14 We first consider the “importance of the witness'[s] testimony in the prosecution's case.” Id. Vigil argues that his conviction “rests almost exclusively on [J.B.'s] testimony. Because of that, it is very likely that [her] testimony heavily influenced the jury's decision.” J.B. was, of course, the key prosecution witness to the facts supporting the elements of the charged crimes. In this sense, her testimony was of ultimate importance. However, Vigil had and took full opportunity to cross-examine J.B. concerning the facts supporting the elements of the crimes. Vigil was prevented from cross-examining J.B. only about the two facts stipulated to: (1) that J.B. went to Witness's neighborhood on the night before trial and (2) that J.B.'s earlier testimony about her whereabouts on that night was false. Accordingly, our evaluation of harmlessness is limited to the damaging potential of cross-examination on those topics.

¶ 15 With respect to J.B.'s intent, Vigil points out that J.B. lied about where she went the night before trial during both cross-examinations. As a result, the “defense never had the opportunity” to cross-examine her “regarding the reasons for [her] perjury and late-night visit to an opposing witness.” Vigil suggests that, given the chance to cross-examine J.B. after “hard evidence of her whereabouts finally emerged,” he “might have revealed her reasons for visiting [Witness], including offering money in exchange for favorable testimony.”

¶ 16 Vigil did not, in fact, have the chance to cross-examine...