State v. Webb

• Decision Date: 26 March 1990
• Docket Number: No. 890256-CA,890256-CA
• Citation: 790 P.2d 65
• Parties: STATE of Utah, Plaintiff and Respondent, v. Charles WEBB and John E. Humphrey, Defendants and Appellants.
• Court: Utah Court of Appeals

Page 65

790 P.2d 65

STATE of Utah, Plaintiff and Respondent, v. Charles WEBB and John E. Humphrey, Defendants and Appellants.

No. 890256-CA.

Court of Appeals of Utah.

March 26, 1990.

Samuel Alba (argued), Sally B. McMinimee, Prince, Yeates & Geldzahler, Salt Lake City, for defendants and appellants.

R. Paul Van Dam, Atty. Gen., Dan Larsen (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

Before BENCH, JACKSON and BULLOCK ¹, JJ.

OPINION

JACKSON, Judge:

Defendant Charles Webb challenges his jury conviction of aggravated robbery, a first degree felony in violation of Utah Code Ann. § 76-6-302 (1978). He raises the following substantial issues: denial of effective assistance of counsel; illegal search of his apartment and of his mate's purse; and insufficiency of the evidence. He also challenges the sentence imposed. We affirm the conviction, but remand the case with instructions to correct the sentence.

FACTS

In January 1987, Britt Martindale met defendant Webb and his girlfriend, Carolyn Gregersen, while in the hospital. Through them, Britt met John Humphrey, who stayed at her home for several days in mid-October 1987. At that time, Britt lived several blocks away from the apartment shared by Webb, Gregersen, her ten-year old son, and their infant son.

At approximately 3:30 p.m. on October 21, 1987, a bearded man held the owner of a Salt Lake City jewelry store and a security guard at gunpoint while he robbed the store of cash, jewelry, and diamonds worth approximately $40,000. The man had pulled a sawed-off shotgun from a cloth bag and directed the owner to put the contents of his safe and his display cases into the bag. Before leaving, the robber advised the two men not to try to follow him because he had "another guy" with a gun waiting outside. At trial, the store owner and the security guard identified Webb's codefendant, John Humphrey, as the robber.

According to the testimony of Britt Martindale, Webb drove up to her Midvale, Utah, home in a Cadillac at approximately 4:00 p.m. on October 21, 1987, with Gregersen in the passenger seat. Webb backed the car into Martindale's driveway, came into her home, and spoke to her briefly. He took the blanket off her bed and directed her to follow him outside to the car, where he handed her one side of the blanket and instructed her to hold it up. Webb told Gregersen to push the trunk release button inside the car. The trunk lid opened and inside Martindale saw Humphrey, whom she had seen many times, including a day or two before October 21, 1987. Everyone went inside her apartment, where Humphrey went into the bathroom and immediately began shaving off his beard. Webb went back outside and returned shortly with a canvas bag and a sawed-off shotgun with black tape around the handle, which he handed to Britt. She put the shotgun, which she later identified as the shotgun seized from Webb's bedroom and put into evidence, on a shelf in her pantry, while Webb and Gregersen sat at her kitchen table and went through money, rings, and other jewelry, including loose diamonds, an opal, and a diamond watch, that they removed from the canvas bag. Webb asked Humphrey's permission to give the diamond watch to Gregersen, and then did so. Britt later identified the diamond watch taken from Gregersen's purse as the watch she saw Webb take from the canvas bag and give to Gregersen. Meanwhile, Humphrey walked back and forth between the bathroom and the kitchen while shaving, explaining how "he put the shotgun in some guy's face" and handcuffed a guard who had walked in on them. Webb said everything "went great" and that it was a "little while before the cops showed up." He placed the jewels in a paper bag and put the canvas bag in a kitchen cupboard, telling Britt not to "mess with it" until he came back for it.

After approximately forty-five minutes, Britt's husband, Russell Martindale, arrived. Ten minutes later, Webb, Humphrey, and Gregersen left the Martindale apartment with the paper bag. In a phone conversation with Britt shortly thereafter, Webb asked if she had seen "it" on the news. Webb returned to the Martindale home a few hours later and left again with the canvas bag, saying he was going to put it in the river. Webb and Humphrey returned again at approximately 11:30 p.m. After Britt gave Webb the shotgun, Webb and Humphrey left for Las Vegas along with Russell Martindale.

On November 2, 1987, the police learned that Britt might know something about the robbery. The police interviewed her on November 3. Based on the information she provided, the police obtained an arrest warrant for Webb, Gregersen, and Humphrey, who was staying at the Webb/Gregersen home that night. The warrant was executed by ten officers on the morning of November 4, 1987, at the apartment of Webb and Gregersen. Gregersen was arrested and handcuffed in the living room of the apartment. Her purse was searched for weapons incident to that arrest, and the diamond watch ultimately introduced by the State at trial was observed; however, it was not seized until later at police headquarters. While Gregersen's arrest was going on in the living room area, Webb and Humphrey were arrested in separate bedrooms and then brought to the living room area. The police seized a shotgun from the bedroom in which Webb had been found. A short time later, Gregersen signed a consent-to-search form. During the ensuing search of the apartment, conducted after the trio had been taken away, the police seized miscellaneous paperwork, some clothing, and jewelry, including a ring from Gregersen's jewelry box. The diamond watch and the ring were both identified by the store owner as items stolen from him on October 21, 1987.

At their preliminary hearings in late November 1987, Webb and Humphrey were represented by two attorneys from the Salt Lake Legal Defenders Association. Webb's appointed counsel withdrew from representing Webb two weeks later at his arraignment and Webb privately retained attorney Ray Stoddard to represent him and Gregersen. Humphrey continued to be represented by appointed counsel from the Legal Defender Association, Lisa Remal. In early January 1988, Remal filed a motion to sever Humphrey's trial from Gregersen's, a motion in which Stoddard joined on behalf of Webb. Also in January 1988, on behalf of Webb and Gregersen, Stoddard filed a motion to suppress the use of the shotgun, ring, and diamond watch as evidence. After an evidentiary hearing, the motion to sever Gregersen's trial from that of Webb and Humphrey was granted, and the suppression motion was denied.

In early March 1988, Stoddard filed a motion to withdraw as Webb's counsel, partly based on unspecified "differences" between Webb and Stoddard about how Webb's defense should be conducted. A few days later, Stoddard filed a motion to sever Webb's trial from Humphrey's on the ground that substantially more evidence would be adduced against Humphrey and defendant Webb would be prejudiced by the jury's inclination to find him guilty by association. The motion to withdraw as Webb's counsel was subsequently granted and another attorney at the Salt Lake Legal Defenders Association, Brooke Wells, was appointed to represent Webb, while Stoddard continued to represent Gregersen. Webb's severance motion was not pursued by his new counsel. After Webb's supplemental motion to suppress evidence seized from the apartment was denied and discovery was conducted, the codefendants proceeded to a joint trial in early June 1988.

At trial, Britt testified to the events at her house on October 21, 1987, recited above. Russell Martindale admitted he had stolen a car at Webb's request that was used in the jewelry store robbery. He had turned this car over to Webb in Salt Lake City on October 20, 1987. He stated that Webb had promised to pay his rent in exchange for the stolen car, and he denied knowing what was to be done with it. A coat and hat found in that car matched the eyewitnesses' description of the clothing worn by the robber. Russell also testified that, the night of October 21, Webb told him he knew someone in Las Vegas who could get rid of the stuff Webb and Humphrey had stolen. Russell was granted immunity from prosecution for car theft in exchange for trial testimony concerning the robbery.

Webb and Humphrey both testified and presented a united defense, claiming that they had been set up by the Martindales. Webb stated that he had purchased the ring and watch from Britt on November 2, 1987, and had then given the ring to Gregersen for her birthday. He claimed to have been in Ely, Nevada, pursuing his occupation as a seller of gold, silver, and diamonds when the robbery occurred, and he introduced a gas station receipt from there dated October 21, 1987, the day of the robbery. He admitted that he had pawned some diamonds in Las Vegas on October 22, 1987. Humphrey testified that he was staying at the Martindale apartment on October 21 and that Britt and Russell left the apartment about 3:00 p.m. that day and returned at 4:00 p.m. with a bearded man known to him only as Frank. Frank carried a large bundle wrapped in a quilt into the back bedroom. Humphrey said he never saw any weapon or jewelry. After "cleaning up" by shaving his own beard off, Humphrey left with Frank and Russell about 5:00 p.m. to go to Las Vegas, where they met up with Webb, and Frank left them. Humphrey stated he had seen Webb buy the diamond watch and a ring from Britt at her home on November 2.

After the jury found Webb and Humphrey guilty of aggravated robbery, Webb filed a motion for new trial claiming that his trial attorney, Wells, had inadequately represented him because of a conflict of interest created by her desire to not make her colleague at the Salt Lake Legal Defenders Association, Humphrey's counsel, "look bad." The trial court denied this motion, and Webb's appeal was pursued by newly-appointed private counsel.

ASSISTANCE OF COU...