State v. Whittle

• Decision Date: 08 October 1999
• Docket Number: No. 970112.,970112.
• Citation: 989 P.2d 52,1999 UT 96
• Parties: STATE of Utah, Plaintiff and Appellee, v. Forrest WHITTLE, Defendant and Appellant.
• Court: Utah Supreme Court

989 P.2d 52

1999 UT 96

STATE of Utah, Plaintiff and Appellee, v. Forrest WHITTLE, Defendant and Appellant.

No. 970112.

Supreme Court of Utah.

October 8, 1999.

Jan Graham, Atty. Gen., J. Frederick Voros, Jr., James Beadles, Salt Lake City, for plaintiff.

Craig S. Cook, Salt Lake City, for defendant.

DURHAM, Associate Chief Justice:

¶ 1 Defendant Forrest Whittle appeals from a jury conviction for murder, a first degree felony in violation of Utah Code Ann. § 76-5-203. Whittle asserts that because of flagrant prosecutorial misconduct during the grand jury proceedings leading to his indictment, the indictment and subsequent conviction should be set aside. In addition, he argues that because there is a reasonable likelihood that, absent a combination of evidentiary errors at trial, he would not have been convicted, his conviction should be set aside. We affirm.

¶ 2 According to the testimony at trial, early in the afternoon of May 11, 1986, Whittle and Mike Staples went to the basement apartment of Tim Robinson at the corner of 800 East and Bryan Avenue in Salt Lake City, Utah. Tina Schroyer and her two children lived in the apartment with Robinson. Whittle, Staples, Robinson, and Schroyer "hung out, Whittle partied, [and] dr[a]nk." At some point in the afternoon, defendant produced a blue .38 caliber handgun and tried to trade it to Robinson for marijuana.

¶ 3 At approximately two in the afternoon, Lisa Strong, a 25-year-old woman unacquainted with Whittle, walked past Robinson's apartment on the sidewalk. Whittle tried to get her attention but because she was wearing headphones he could not. Schroyer testified that Whittle became angry, "was jumping around and calling" Ms. Strong obscenities, "and saying that stuff about how all women are the same and he can't stand them."

¶ 4 Around midnight, Whittle, Robinson, and Staples were outside watching Robinson's dog. Staples and Robinson went into the house. While Staples was climbing the stairs from the basement apartment to return outside, he heard five or six gunshots. He came around a corner of the building and saw Whittle standing in the street lowering a handgun. Robinson also heard the shots. Robinson awakened Schroyer to ask if she had heard them. She had not, but both heard several dogs going "crazy." Through the window Schroyer saw Whittle run by the house.

¶ 5 Norman Sharples, a neighbor who also heard the shots, walked outside and discovered Ms. Strong's body. Ms. Strong had been shot in the temple with a .38 caliber handgun. Several witnesses testified that they heard a car drive away after the shooting.

¶ 6 The following day, Whittle told Staples, "Whatever you saw that night, it didn't happen." Two days later, Whittle told Schroyer, "I'm the one that killed that girl." Schroyer asked him "which girl?" Whittle answered, "the Strong girl, the Lisa Strong girl on the corner." Schroyer then asked Whittle why he had done it. He "said because he had just gotten a gun and he wanted to see if it worked. [H]e thought it was funny because she didn't even hear what was going on, she was wearing headphones." Schroyer also testified that Whittle telephoned her and said in a disguised voice that "he was going to come downstairs and do me like he did Lisa Strong." A few weeks later, Whittle told Robinson that "he [had] killed the bitch on the corner." In the summer of 1986, a witness named Douglas Batemen heard Whittle say that he had "capped a bitch downtown." On that same occasion, another witness, Terrence Robinson, heard Whittle say, "I capped a bitch." In December of 1994, Whittle told a cellmate, Derald Ross, that he killed a woman in Utah with a .38 caliber handgun.

¶ 7 In 1991, Whittle told police that he did not know Tim Robinson and that he knew nothing about Lisa Strong's murder. Later he admitted going to Robinson's house in 1986. Whittle told police that Robinson showed him a gun. He also stated that around midnight he was on the lawn with Staples and Robinson and heard a single shot fired while his head was turned. According to Whittle, when he turned he saw Robinson holding the gun and pointing it toward the corner of Bryan Avenue and 800 East.

¶ 8 On March 15, 1995, a grand jury was convened to consider the case and unanimously voted to indict Whittle on charges of murder. Whittle moved the trial court to dismiss the indictment due to prosecutorial misconduct. The court denied the motion. Whittle then filed a petition for interlocutory appeal with this court seeking review of the grand jury proceeding, which we denied.

¶ 9 After trial in March of 1996, the jury entered a verdict finding Whittle guilty of murder in violation of Utah Code Ann. § 76-5-203, a first degree felony, from which this appeal has been taken.

GRAND JURY PROCEEDINGS

¶ 10 Whittle alleges that during the grand jury proceeding leading to the indictment in this case, the prosecutor engaged in "flagrant" misconduct that significantly affected the grand jury's ability to exercise independent judgment. Among other things, the alleged misconduct included: references to unrelated murders; presentation of improper and inaccurate character evidence including evidence of prior convictions; expression of the prosecutor's personal opinion; failure to present exculpatory evidence as required by Utah law; and use of hearsay evidence.

¶ 11 Whittle asks this court to adopt the approach of the Tenth Circuit Court of Appeals in United States v. Kilpatrick, 821 F.2d 1456 (10th Cir.1987). Kilpatrick holds that, when faced with the question of prosecutorial misconduct in grand jury proceedings, a court must first determine whether the alleged misconduct or error can properly be characterized as procedural or technical or whether it actually threatened "the defendant's right to fundamental fairness." Id. at 1466. According to the court in Kilpatrick, "[i]f the errors can be characterized as procedural violations affecting only the probable cause charging decision by the grand jury, then the defendant must have successfully challenged the indictment before the petit jury rendered a guilty verdict." Id. (quoting United States v. Mechanik, 475 U.S. 66, 106 S.Ct. 938, 89 L.Ed.2d 50 (1986)).

¶ 12 We do not find the Kilpatrick distinction helpful. The purpose and function of the grand jury is "not only to examine into the commission of crimes, but to stand between the prosecutor and the accused, and to determine whether the charge [is] founded upon credible testimony or was dictated by malice or personal ill will." Hale v. Henkel, 201 U.S. 43, 59, 26 S.Ct. 370, 50 L.Ed. 652 (1906). Whether an indictment is questionable because of significant procedural versus substantive misconduct makes little difference. In either case, an indicted party (as happened in this case) may move the trial court to dismiss a grand jury's indictment. If the trial court denies that motion, the indicted party may petition this court for interlocutory appeal of that order (as also happened here).

¶ 13 However, once a trial jury has rendered a guilty verdict, any error or misconduct associated with the grand jury proceeding must generally be considered harmless.¹ As the United States Supreme Court noted in Mechanik, 475 U.S. at 70, 106 S.Ct. 938, a

petit jury's subsequent guilty verdict means not only that there was probable cause to believe that the defendant[] was guilty as charged, but also that [he is] in fact guilty as charged beyond a reasonable doubt. Measured by the petit jury's verdict, then, any error in the grand jury proceeding connected with the charging decision was harmless beyond a reasonable doubt.

The Court further observed that "[t]he reversal of a conviction entails substantial social costs: it forces jurors, witnesses, courts, the prosecution, and the defendants to expend further time, energy, and other resources to repeat a trial that has already once taken place; victims may be asked to relive their disturbing experiences." Id. at 72, 106 S.Ct. 938 (citing Morris v. Slappy, 461 U.S. 1, 14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983)). While we agree with this point, we do not rely entirely on factors related to judicial economy. Whittle has had the review of the trial court of his motion to quash the indictment, the opportunity to persuade this court to look at the trial court's decision on interlocutory appeal, and finally and most importantly, the decision of the trial jury on the merits of the charges against him. The jury found not merely that there was probable cause to believe that Whittle committed the crime with which he was charged, but that he was guilty beyond a reasonable doubt of the charge.

¶ 14 Our holding today fully accords with the position we suggested in State v. Humphrey, 823 P.2d 464, 467 n. 6 (Utah 1991). In Humphrey we held that the bindover orders of magistrates were not the equivalent of orders of a circuit court for purposes of appeal. We recognized that if bindover orders "were in fact orders of a circuit court," then the defendant would have an automatic right of appeal, which "would not be satisfied if the defendant first had to endure a trial in the district court, because any challenges to the bindover order would be mooted by the trial verdict." Id. We see no reason to adopt a different approach when a defendant is charged by grand jury indictment rather than by information. ¶ 15 Finally, we note that the foregoing view has been adopted by numerous courts across the country. See, e.g., United States v. Dugan, 150 F.3d 865, 868 (8th Cir.1998),

cert. denied, ___ U.S. ___, 119 S.Ct. 528, 142 L.Ed.2d 438 (1998); United States v. Eltayib, 88 F.3d 157, 173 (2d Cir.1996),

cert. denied, 519 U.S. 1045, 117 S.Ct. 619, 136 L.Ed.2d 543 (1996); United States v. Cobleigh, 75 F.3d 242, 251 (6th Cir.1996); United States v. Console, 13 F.3d 641, 671-72 (3d Cir.1993),

cert. denied, 511 U.S. 1076, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994); Guam v. Muna, 999 F.2d 397, 399 (9th Cir.19...