CUWCD v. UEU et al.,
2013 UT 67, No. 20111028 (November 15, 2013)
ISSUES: Contractual Interpretation, Material
Breach, Impossibility, Rule 54 Certification, Necessary Parties
Justice Parrish,
This appeal arises from the Central Utah Water Conservancy District’s (CUWCD) January 7, 2003 agreement (Agreement) to improve irrigation structures belonging to Upper East Union Irrigation Company (UEU), East River Bottom Water Company (ERB), and Timpanogos Canal Company (TCC) (collectively, Canal Companies) in exchange for rights to the increased water flow arising from the improvements. CUWCD failed to complete its obligations under the Agreement. After negotiations with the Canal Companies broke down, CUWCD filed a declaratory action to establish its contractual rights.
At ¶ 1.
The district court ruled that because CUWCD breached its obligations under the Agreement, UEU and ERB were entitled to enforce the bargained-for damages provisions, resulting in the loss of CUWCD’s prospective water rights. CUWCD appeals, asserting that the district court erred by: (1) granting summary judgment in favor of the Canal Companies, (2) failing to recognize that UEU and ERB received the benefit of their bargain, (3) refusing to reconsider its summary judgment ruling, (4) rejecting CUWCD’s claims that its performance was excused under the doctrine of impracticability, (5) failing to recognize CUWCD’s tender of cash in lieu of performance, and (6) refusing to allow CUWCD to amend its pleadings to add allegedly necessary parties.
At ¶ 2.
We affirm the judgment of the district court in its entirety. Specifically, we hold that CUWCD’s breach was material because UEU and ERB did not receive the benefit of their bargain. And the breach was not excused by the doctrine of impracticability or CUWCD’s tender of cash in lieu of performance. Therefore, the district court appropriately entered summary judgment in favor of UEU and ERB and was under no obligation to reconsider its ruling. Finally, the district court did not abuse its discretion when it refused to allow CUWCD to amend its pleadings to join allegedly necessary parties.
At ¶ 3.
The Court describes the facts of this
case. Most importantly: 1) the terms of
the agreement between the parties, including the liquidated damages provision, 2)
CUWCD’s independent determination that it was impossible to fully perform the
contract, 3) CUWCD’s argument that their breach was not material because UEU
and ERB received the benefit of the bargain, and 4) CUWCD’s tender of $75,000
in lieu of complete performance.
At ¶¶
4-15.
CUWCD argues that any breach of the Agreement was not material because UEU and ERB received the full benefit of their bargain. The district court disagreed. It reasoned that “all parties were to benefit from the rehabilitation [of the TCC Diversion],” that CUWCD had not substantially performed, and that UEU and ERB therefore had not received the full benefit of their bargain. We review the district court’s decision for correctness, affording no deference to its legal determinations. Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 7, 48 P.3d 941.
At ¶ 19.
CUWCD concedes that it owed TCC an obligation to replace the TCC Diversion. Its concession is supported by the language of the Agreement, which requires CUWCD to replace the TCC Diversion “as consideration for TCC’s granting of [a] permanent right and easement to ERB and UEU.” But CUWCD argues that because the Agreement consists of three contracts merged into a single document, CUWCD’s consideration to UEU and ERB was “separate[] and apart from the consideration recited for TCC.” We disagree. The language of the Agreement simply does not support CUWCD’s argument. Rather, CUWCD’s obligation to replace the TCC Diversion was owed to all of the Canal Companies.
At ¶ 21.
Because the Agreement required that UEU and ERB abandon their preexisting right to own and operate an independent diversion, they suffered a legal detriment that constituted a portion of the consideration for CUWCD’s obligation to replace the TCC Diversion. CUWCD therefore owed both UEU and ERB an independent duty to replace the TCC Diversion. And CUWCD cannot now establish substantial performance under the Agreement when it has not even attempted to begin construction of the bargained-for diversion.2 As the district court correctly reasoned, the anticipated TCC Diversion is essential to the proper and continued operation of UEU and ERB’s irrigation systems.
At ¶ 25.
We hold that CUWCD’s obligation to replace the TCC Diversion was owed to all of the Canal Companies, including UEU and ERB. Because CUWCD refused to fulfill its contractual obligation, it breached the Agreement. And CUWCD cannot establish substantial performance because UEU and ERB did not receive the benefit of their bargain.
At ¶ 26.
Impracticability
CUWCD next argues that the district court erred by rejecting its claim that the doctrine of impracticability excused its failure to replace the TCC Diversion. Whether impracticability affords a party relief from its obligations under a contract is a question of law that we review for correctness. See Robinson v. Robinson, 2010 UT App 96, ¶ 6, 232 P.3d 1081 (noting that whether contract defenses can afford relief is a question of law reviewed for correctness). We hold that CUWCD’s failure to perform is not excused by the doctrine of impracticability for several independent reasons. First, CUWCD cannot establish that the event giving rise to the claim of impracticability was unforeseen. Second, CUWCD failed to show that performance was impracticable because it did not even attempt to obtain the required permits. Finally, even had it attempted to do so, CUWCD assumed the risk of failing to obtain the requisite permits.
At ¶ 27.
The doctrine of impracticability excuses a party’s performance “if an unforeseen event occurs after formation of the contract and without fault of the obligated party, which event makes performance of the obligation impossible or highly impracticable.” W. Props. v. S. Utah Aviation, Inc., 776 P.2d 656, 658 (Utah Ct. App. 1989) (footnotes omitted) . . . A party is not excused for impracticability, however, when the event leading to the impracticability was known to the parties prior to contracting. See W. Props., 776 P.2d at 658. Additionally, a party may not defend on grounds of impracticability when that party takes on the risk that a supervening event will occur and render performance impracticable or impossible. See RESTATEMENT (SECOND) OF CONTRACTS § 266 cmt. b (1981).
At ¶ 28.
The Court explains its three reasons for refusing
to apply the doctrine of impracticability in more detail.
At ¶¶ 29-32.
Tender of payment
CUWCD next asserts that the district court erred when it ruled that CUWCD’s offer of payment in lieu of performance did not constitute a valid tender that excused its failure to perform. CUWCD argues that its offer of payment in lieu of its promise to replace the TCC Diversion was a valid tender offer and that the Canal Companies waived any objection to the tender by failing to timely object. The district court concluded that CUWCD’s purported tender was invalid, in part, because it was “inappropriate for [CUWCD] to tender money instead of its agreed-upon performance obligations.” We review the district court’s ruling for “correctness, giving no deference to [its] decision,” Bahr v. Imus, 2011 UT 19, ¶ 16, 250 P.3d 56, and agree that CUWCD could not “tender” substitute performance for its original contractual obligations.
At ¶ 33.
CUWCD relies on PDQ Lube Center, Inc. v. Huber to argue that its offer of substitute performance constituted a valid tender. 949 P.2d 792 (Utah Ct. App. 1997). The court in PDQ Lube Center stated that, “[i]n order to be valid, tender of payment on a contract must be (1) timely, (2) made to the person entitled to payment, (3) unconditional, (4) an offer to pay the amount of money due, and (5) coupled with an actual production of the money or its equivalent.” Id. at 800 (internal quotation marks omitted).
At ¶ 34.
CUWCD’s invocation of PDQ Lube Center is misplaced because, “[b]y definition, [a valid] tender requires the holding out of that which is to be delivered or performed before the condition is satisfied.” 13 CORBIN ON CONTRACTS § 67.5 (Rev. ed. 2003). In other words, “[t]he tender must be made in accordance with the terms of the contract, or it is no tender at all.” 17B C.J.S. Contracts § 735 (2013) (footnotes omitted). For an offer to constitute a tender (valid or otherwise), “[t]he tenderer must do and offer everything that is necessary on his or her part to complete the transaction.” Id.
At ¶ 35.
Before CUWCD can establish that the Canal Companies waived any objections to CUWCD’s purported tender, “[CUWCD] must [have made] an unconditional tender of the performance required by the agreement.” Kelley v. Leucadia Fin. Corp., 846 P.2d 1238, 1243 (Utah 1992) (emphasis added). “In other words, a party must make a tender of his own agreed performance in order to put the other party in default.” Id. . . .
At ¶ 36.
Here, CUWCD agreed to “remove and replace at its sole expense TCC’s existing diversion structure and replace it with a new radial gate and other appurtenant facilities.” It did not agree to pay a sum to the Canal Companies so that the Canal Companies could replace the TCC Diversion themselves. CUWCD did not, therefore, tender the performance due under the Agreement. Rather, CUWCD tendered a cash payment as an alternative. In the face of the explicit requirements of performance under the Agreement, CUWCD’s cash offer was not a tender at all. Rather, it is more appropriately characterized as a settlement offer. And there is no authority to support the novel proposition that a party’s failure to object to a settlement offer can be deemed an acceptance of that offer.
At ¶ 37.
In summary, the Canal Companies were not obligated to object to CUWCD’s settlement offer. The district court correctly ruled that CUWCD’s purported tender was ineffectual.
At ¶ 38.
Final Judgment
. . . We [have] held that [rule 54(b)] certification [is] improper if substantial factual overlap exists between the claims certified as final and the claims remaining before the district court. [Kennecott Corporation v. Utah State Tax Commission, 814 P.2d 1099, 1104 (Utah 1991)].
At ¶ 40.
The Court concludes that there is not
substantial factual overlap between the certified claims the claims remaining
before the trial court.
At ¶¶ 41-42.
Summary Judgment
CUWCD argues that the district court erred in granting summary judgment in favor of UEU and ERB because (1) CUWCD’s alleged breach will be resolved when the court resolves the reserved issues in its action with TCC, (2) the court failed to address all of the issues raised in CUWCD’s complaint, and (3) the court failed to address CUWCD’s claim for quantum meruit. “In considering a grant of summary judgment, we review the [district] court’s legal decision for correctness.” Peterson v. Coca-Cola USA, 2002 UT 42, ¶ 7, 48 P.3d 941 (internal quotation marks omitted). We disagree with CUWCD on all counts and conclude that the district court correctly ruled in favor of UEU and ERB on summary judgment.
At ¶ 43.
The Court explains why CUWCD’s breach cannot be
cured by how the trial court resolves its action with TCC because CUWCD owed
independent duties to construct the TCC diversion and UEU and ERB have been
without for a decade.
At ¶¶ 44-46.
The Court holds that “CUWCD’s attempts to raise
the title issues on appeal in the first instance are futile inasmuch as the
plain and uncontroverted language of the Agreement gives CUWCD no legal claim
to title of the improved piping.”
At ¶¶ 47-49.
The Court holds that CUWCD failed to preserve
any argument regarding quantum meruit.
At ¶¶ 50-54.
. . . The district court denied CUWCD’s motion on the grounds that CUWCD offered no new and previously unavailable information. A district court is not required to reconsider its previous rulings merely because a party wishes to present different arguments, based on previously known facts, following an adverse ruling by the court. We therefore conclude that the district court did not err when it refused to grant CUWCD’s motion to reconsider.
At ¶ 56.
Motion to Amend
Finally, CUWCD asserts that the district court abused its discretion when it did not allow CUWCD to amend its complaint to join URMCC and DOI as parties to the lawsuit. “A trial court’s determination of whether a party should be joined to an action will not be disturbed absent an abuse of discretion.” Green v. Louder, 2001 UT 62, ¶ 40, 29 P.3d 638. We hold that the district court did not abuse its discretion because URMCC [“Utah Reclamation Mitigation Conservation Commission”] and DOI [“Department of the Interior”] were not necessary parties.
At ¶ 57.
Rule 19 of the Utah Rules of Civil Procedure establishes a two-part procedure to determine whether joinder is required. “First, the court must ascertain whether a party has sufficient interest in the action to make it a necessary party. Second, if the court . . . deems the party necessary to the action, and joinder is unfeasible, the court must then determine whether the party is indispensable.” Mower v. Simpson, 2012 UT App 149, ¶ 27, 278 P.3d 1076 (internal quotation marks omitted); see also Landes v. Capital City Bank, 795 P.2d 1127, 1130 (Utah 1990). But a court is required to address indispensability under rule 19(b) only if it first finds that joinder of the party is necessary. Johnson v. Higley, 1999 UT App 278, ¶ 29, 989 P.2d 61.
At ¶ 58.
Rule 19(a) defines a necessary party as one in whose “absence complete relief cannot be accorded” or one necessary to prevent those existing parties from “incurring double, multiple, or otherwise inconsistent obligations.” The motivation for “requiring joinder of necessary parties is to protect the interests of absent persons as well as those already before the court from multiple litigation or inconsistent judicial determinations.” Grand Cnty. v. Rogers, 2002 UT 25, ¶ 28, 44 P.3d 734 (internal quotation marks omitted).
At ¶ 59.
Here, CUWCD asserts that the district court abused its discretion by refusing to allow it to join URMCC and DOI as necessary parties. It argues that joinder of these parties was necessary because the project was intended “to benefit, in part, federal purposes.” Specifically, CUWCD contends that “URMCC and DOI were the real parties in interest with the District with regard to the water rights, and the intended uses of the water represented by those rights, and their joinder was necessary to prevent multiple litigation and contradictory claims over ownership of the water rights.”
At ¶ 61.
Although CUWCD contends that “all parties understood” that the intended purpose of the project was to benefit these federal entities, it offered no evidence to substantiate its assertion. And even assuming that this was the general understanding of all parties, CUWCD offered no evidence that URMCC or DOI have any present interests in the water rights, vested future interests in the water rights, or interest in any unvested water rights. In short, there is nothing to suggest that failure to join the DOI and URMCC will lead to the deprivation of their rights. Accordingly, they are not necessary parties and our analysis of rule 19 need not continue further. Id. ¶ 29 (“Only if the party is necessary, but the court finds joinder unfeasible, must the court address indispensability under [r]ule 19(b).”).
At ¶ 62.
Because neither DOI nor URMCC are necessary parties, the district court did not abuse its discretion when it denied CUWCD’s motion to amend its complaint.
At ¶ 63.
CUWCD materially breached its obligation to replace the TCC Diversion. That breach was not excused under the doctrine of impracticability or by CUWCD’s purported tender. Nor did CUWCD preserve its quantum meruit claim. The district court therefore appropriately entered summary judgment in favor of UEU and ERB and appropriately denied CUWCD’s request to reconsider. Finally, the district court did not abuse its discretion when it refused to allow CUWCD to amend its complaint to add additional parties. We therefore affirm the judgment of the district court in all respects.
At ¶ 64.
State v. Perea, 2013 UT 68, No. 20100891
(November 15, 2013)
ISSUES: False Confession Expert Testimony, Crime Scene Reconstruction Expert Testimony, Foundation, Disclosure of Witness Names, Miranda, Harmless Error, Constitutionality of Life without Parole, Recording of Station House Confessions
Justice
Parrish,
Riqo Perea appeals from a conviction for two counts of aggravated murder in violation of Utah Code section 76-5-202 and two counts of attempted murder in violation of Utah Code section 76-5-203. Mr. Perea was sentenced to life without parole (LWOP) for each aggravated murder conviction and three years to life for each attempted murder conviction.
At ¶ 1.
Mr. Perea raises numerous issues. He contends that the district court erred by limiting and excluding the testimony of defense experts, precluding the testimony of potentially exculpatory defense witnesses, and denying Mr. Perea’s motion to suppress his confession. Mr. Perea further contends that the combination of errors constitutes cumulative error and requires reversal. Mr. Perea also argues that Utah Code section 76-3-207.7, which provides the sentencing scheme for first degree felony aggravated murder, is unconstitutional. He finally argues that we should require recording of confessions occurring at police stations.
At ¶ 2.
We hold that the district court erred when it excluded the testimony of the defense’s expert witnesses. But we conclude that the error was harmless and does not undermine our confidence in the verdict when viewed against the backdrop of Mr. Perea’s overwhelming guilt. We also hold that section 76-3-207.7 is constitutional on its face and was constitutionally applied to Mr. Perea. We therefore affirm.
At ¶
3.
The
Court outlines the facts of this case and the challenged rulings.
At ¶¶
4-30.
The
Court outlines the standards of review for each issue presented.
At ¶¶
31-35.
1. Crime Scene Reconstruction Expert
Mr. Perea argues that the district court erroneously excluded the testimony of James Gaskill, the defense expert on crime scene reconstruction. Mr. Gaskill visited the scene, took measurements, and determined that there “were multiple shooters[,] . . . that the bullet casing pattern did not seem consistent with the State’s version of events, [and] that it would be difficult, if not impossible, for [Mr. Perea] to hit the[] victims according to the State’s theory.” While the district court allowed Mr. Gaskill to testify to his investigation and theory, it did not allow him to directly comment on the credibility of the State’s witnesses, or utilize photographic and animated evidence in support of his testimony.
At ¶ 38.
We hold that the district court did not err when it prevented Mr. Gaskill from commenting on the veracity of other witnesses and when it refused to admit his proffered photographs. But the district court did abuse its discretion when it refused to admit the computer animations in support of Mr. Gaskill’s testimony.
At ¶
39.
A. Comments on witness credibility
While our rules of evidence allow Mr. Gaskill to present theories that contradicted the testimony of other witnesses, our rules do not allow him to comment directly on the veracity of those witnesses. See Eskelson, 2010 UT 59, ¶ 17. We therefore hold that the district court did not err when it prohibited Mr. Gaskill from testifying as to the truthfulness of the State’s witnesses.
At ¶ 41.
Here, the defense sought to introduce photographs taken by Mr. Gaskill that he claimed represented the crime scene. The State objected, arguing that the photographs did not accurately represent the scene on the night of the shooting. Though the photographs were based on actual crime scene photographs, Mr. Gaskill admitted that there were many differences between his photographs and the scene on the night of the shooting. He admitted that the photos purporting to show Mr. Perea’s view from the SUV could not be accurate because the appropriate make and model SUV was not used. He further admitted that a pickup truck in one of the photographs was not the same make or model as the truck parked there on the night of the shooting. Finally, Mr. Gaskill admitted that he was not certain if a car in one of the photographs was in the same location as it had been on the night of the shooting.
At ¶ 43.
Mr. Gaskill’s admissions create significant doubt as to the accuracy and relevance of the photographs. Particularly where the defense’s theory was contingent on the location and size of the vehicles involved, the inaccurate use of substitute vehicles had the potential to unfairly prejudice or mislead the jury or to confuse the issues. See UTAH R. EVID. 403. Therefore, the district court did not abuse its discretion when it refused to admit the inaccurate and potentially misleading photographs.
At ¶ 44.
The defense attempted to introduce two computergenerated animations to visually represent Mr. Gaskill’s testimony. Mr. Gaskill testified that although he did not personally create the animations, they “g[a]ve an indication of what [he] believe[d] may have happened” and would make it easier for the jury to understand his testimony. The State objected and the district court refused to admit the animations, finding that “there [was] no foundation for the animation[s]” because Mr. Gaskill did not know “who created [them],” “the background of the people who created [them],” “how [they were] created,” or “what [the animators] relied upon in creating [them].” We hold that the district court applied an erroneous legal standard in refusing to admit the animations.
At ¶ 45.
Broadly speaking, all evidence can be categorized as either substantive or demonstrative. See Steven C. Marks, The Admissibility and Use of Demonstrative Aids, 32 A.B.A. THE BRIEF 24, 25 (2003). Demonstrative evidence is evidence that is meant only to illustrate a witness’s testimony. Id. It carries no independent probative value in and of itself, but aids a jury in understanding difficult factual issues. Id. Common examples of demonstrative evidence include models, charts, and timelines.
At ¶ 46.
On the other hand, substantive evidence is “offered to help establish a fact in issue.” BLACK’S LAW DICTIONARY 640 (9th ed. 2009). In other words, relevant “[substantive] evidence directly affects the perceived likelihood that a fact of consequence has occurred” whereas the “effect of demonstrative evidence is to help clarify and make more understandable a piece of substantive proof.” Robert D. Brain & Daniel J. Broderick, The Derivative Relevance of Demonstrative Evidence: Charting Its Proper Evidentiary Status, 25 U.C. DAVIS L. REV. 957, 967 (1992). Common examples of substantive evidence include eyewitness testimony, ballistic reports, and security camera footage.
At ¶ 47.
Because rule 901(a) of the Utah Rules of Evidence requires that “the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is,” the distinction between substantive and demonstrative evidence is critical to understanding the foundational burden imposed on the evidence’s proponent. If the evidence is merely demonstrative, then the proponent claims only that the proffered demonstrative evidence accurately illustrates the testimony given and rule 901 is satisfied so long as there is sufficient evidence to support the claim that it accurately depicts a witness’s testimony as well as any uncontested relevant facts.2 Alternatively, in the case of substantive evidence, there must be some showing that the evidence itself supports the proffered conclusion.
At ¶ 48.
Because computer animations are merely a subset of demonstrative evidence, it is not necessary that the testifying witness know how the animation was created in order to satisfy rule 901's authenticity requirement. Rather, it is sufficient that the animation accurately reflects the witness’s testimony. . . .
At ¶ 51.
Because the animations offered to illustrate Mr. Gaskill’s testimony were only visual representations of his opinions, the evidence was demonstrative in nature. It is uncontested that Mr. Gaskill did not know the exact computer processes through which the animations were created. But the court had already found that Mr. Gaskill’s testimony about the events depicted in the animations was relevant under rule 401 and it did not exclude the testimony or animations based on prejudice under rule 403.
At ¶ 52.
2. False Confession Expert Testimony
A. Regarding Veracity of Defendant’s Confession
. . . Because Mr. Perea never testified, he was not a witness in this case. Rule 608 is therefore not controlling.
At ¶ 56.
Although rule 608 is not controlling here, it may be that the policy behind rule 608 is equally applicable to situations like this where a witness offers to testify as to the truthfulness of a nontestifying defendant’s out-of-court statement. Indeed, in Rimmasch, we relied on rule 608 to disallow expert testimony as to the veracity of a testifying witness’s specific out-of-court statement, recognizing the important public policy goal of preventing “trials from being turned into contests between what would amount to modern oath-helpers who would largely usurp the fact-finding function of judge or jury.” 775 P.2d at 392. This same public policy goal appears to be implicated in the case of a defendant’s out-of-court confession when the defendant declines to testify. Thus, it may well be that rule 608’ s prohibitions should be extended to apply to the out-of-court statements of nontestifying witnesses. However, because the parties to this appeal did not brief this issue, and because we conclude that any error in refusing to admit Dr. Ofshe’s testimony is ultimately harmless, see infra Section V.A.2, we decline to resolve the issue here.
At ¶ 57.
Thus, we do not reach the question of whether the district court erred when it prohibited Dr. Ofshe from testifying about the veracity of Mr. Perea’s confession.
At ¶ 58.
B. Regarding False Confessions Generally
Issues relating to the admissibility of expert testimony regarding the reliability of confessions are similar to those relating to the admissibility of expert testimony regarding the reliability of eyewitness identification testimony that we recently examined in State v. Clopten, 2009 UT 84, 223 P.3d 1103. We therefore begin by reviewing our analysis in that case.
At ¶ 60.
. . . we held in Clopten that expert testimony regarding eyewitness identifications should be admitted as long as it met the standards set out in rule 702 of the Utah Rules of Evidence. Id. ¶ 32. Our expectation was that the “application of rule 702 will result in the liberal and routine admission of eyewitness expert testimony.” Id. ¶ 30. Although we cautioned that the admission of eyewitness testimony is not mandatory, we warned that “the testimony of an eyewitness expert should not be considered cumulative or duplicative of cautionary instructions to the jury.” Id. ¶¶ 33–34.
At ¶ 67.
This case presents issues closely paralleling those we decided in Clopton. A confession, much like an eyewitness identification, is more or less reliable based on a number of factors. Unfortunately, however, research has shown that the potential infirmities of confessions are largely unknown to jurors.
At ¶ 69.
False confessions are an unsettling and unfortunate reality of our criminal justice system. Just as the criminal law is “rife with instances of mistaken identification,” Long, 721 P.2d at 491 (internal quotation marks omitted), “[i]t is beyond dispute that some people falsely confess to committing a crime that was never committed or was committed by someone else,” State v. Mauchley, 2003 UT 10, ¶ 21, 67 P.3d 477. And like expert testimony regarding eyewitness identification, expert testimony about factors leading to a false confession assists a “trier of fact to understand the evidence or to determine a fact in issue.” UTAH R. EVID. 702(a).
At ¶ 70.
Recent laboratory-based studies have identified several factors that increase the likelihood of false confessions.7 Among the factors identified are sleep deprivation, the presentation of false evidence and use of minimization techniques by questioners, the subject’s age and intelligence level, and certain personality traits. Though expert testimony regarding the phenomenon of false confessions would not be appropriate in every case, when such indicia are present, a defendant should be allowed to present expert testimony on the subject.
At ¶ 71.
Importantly, the shortcomings in the use of cautionary instructions and cross-examination in lieu of expert testimony are even more acute when dealing with potentially false confessions than when dealing with potentially mistaken identifications. Crossexamination of eyewitnesses is routine in all cases. Conversely, the ability to examine the defendant is only possible if he waives his Fifth Amendment protections and testifies in his own case—a situation that is far from routine. To require a defendant to testify regarding the factors that contributed to his alleged false confession, rather than allow the use of an expert witness, opens the defendant up to cross-examination and impinges on his constitutionally guaranteed right against self-incrimination. For these reasons, expert testimony regarding the phenomenon of false confessions should be admitted so long as it meets the standards set out in rule 702 of the Utah Rules of Evidence and it is relevant to the facts of the specific case.
At ¶ 72.
Under rule 702(a), proposed expert testimony must “assist the trier of fact.” UTAH R. EVID. 702(a). Here, there is no question that Dr. Ofshe’s proposed testimony would have assisted the jury in evaluating the reliability of Mr. Perea’s confession. Testimony regarding the factors that can lead to false confessions is exactly the type of evidence that would have helped the jury assess Mr. Perea’s claim that he falsely confessed. Such testimony aids a jury in reaching a just verdict because it puts a jury on guard to protect against giving disproportionate weight to confessions where multiple indicia of false confessions are present. In other instances, however, such expert testimony may embolden juries to give more weight to confessions where no such factors are present.
At ¶ 74.
The Court discusses the science behind false
confessions and determines that it is sufficiently developed to satisfy rule
702.
At ¶¶ 75-86.
Mr. Perea argues that the Compulsory Process Clause of the Sixth Amendment grants defendants the right to call favorable witnesses, particularly when those witnesses are “material and favorable to his defense.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982). While a defendant’s right to call favorable witnesses is a “fundamental element of due process of law,” Washington v. Texas, 388 U.S. 14, 19 (1967), “[t]he right to present defense witnesses . . . is not absolute,” United States v. Russell, 109 F.3d 1503, 1509 (10th Cir. 1997). For instance, in Taylor v. Illinois, the U.S. Supreme Court affirmed a district court’s exclusion of a potentially exculpatory defense witness based on the defense’s discovery violation. 484 U.S. 400, 418 (1988). The Court began by stating that “[t]he accused does not have an unfettered right to offer testimony that is incompetent, privileged, or otherwise inadmissible under standard rules of evidence.” Id. at 410. The Court continued, stating:The defendant’s right to compulsory process is itself designed to . . . [ensure that] judgments [are not] founded on a partial or speculative presentation of the facts. Rules that provide for pretrial discovery of an opponent’s witnesses serve the same high purpose . . . [and] minimize[] the risk that a judgment will be predicated on incomplete, misleading, or even deliberately fabricated testimony.Id. at 411–12 (internal quotation marks omitted). The Court’s ruling makes clear that a district court’s decision to “[e]xclud[e] witnesses for failure to comply with discovery orders, if not an abuse of discretion, does not violate a defendant’s Sixth Amendment right to compulsory process.” Russell, 109 F.3d at 1509.
At ¶ 88.
Under rule 16(c) of the Utah Rules of Criminal Procedure, “[e]xcept as otherwise provided or as privileged, the defense shall disclose to the prosecutor such information . . . [or] item of evidence which the court determines on good cause shown should be made available to the prosecutor in order for the prosecutor to adequately prepare his case.” Because district courts must manage discovery in such a way as to prevent unfair prejudice to either party, they do not abuse their discretion when they exclude witnesses based on a party’s failure or refusal to disclose a witness’s identity. . . .
At ¶ 89.
Here, the district court acknowledged concerns regarding potential retaliation against the defense witnesses, and it left open the possibility that it would allow the witnesses to testify under an assumed name or undertake similar protective measures. But, emphasizing its duty “to [ensure] a fair trial,” and concluding that the potential witnesses were both relevant and material to Mr. Perea’s defense, the district court determined that fairness afforded the State an opportunity to fully investigate the witnesses’ stories. Such a decision is not an abuse of discretion when it “prevents last minute surprises and enables the prosecution to make a full and thorough investigation of the merits of the defense.” Id. We therefore hold that the district court did not err when it excluded the potential defense witnesses.
At ¶ 91.
Mr. Perea next argues that his confession should have been suppressed for a Miranda violation. Specifically, Mr. Perea argues that his statement “that he needed to speak with a lawyer first before he came in” was sufficient to anticipatorily invoke his right to counsel. The State argues first that a defendant cannot anticipatorily invoke his right to counsel prior to a custodial interrogation. It next argues that even if an anticipatory invocation of the right is proper, Mr. Perea’s statements do not constitute a proper invocation of that right. We agree with the State and therefore hold that the district court did not err when it denied Mr. Perea’s motion to suppress his confession.
At ¶ 92.
Although the Court has not ruled directly on the issue before us, a footnote in McNeil v. Wisconsin suggests that the Court would not allow a defendant to anticipatorily invoke his right to counsel. 501 U.S. 171 (1991). The Court stated that while it hasnever held that a person can invoke his Miranda rights anticipatorily, in a context other than “custodial interrogation” . . . [t]he fact that we have allowed the Miranda right to counsel, once asserted, to be effective with respect to future custodial interrogation does not necessarily mean that we will allow it to be asserted initially outside the context of custodial interrogation, with similar future effect.Id. at 182 n.3 (citations omitted). Moreover, the Court has repeatedly clarified that a suspect’s Miranda rights are contingent on his being subject to a custodial interrogation. . . .
At ¶ 94.
Similarly, this court has stated that the procedural safeguards of Miranda apply only when a defendant is in custody. . . .
At ¶ 95.
Assuming, without deciding, that Mr. Perea’s statement two days before his arrest constitutes a request for a lawyer’s assistance, such a prospective request would still be subject to waiver. Had Mr. Perea made the same statement at any point during his custodial interrogation, our decision may be different. But that was not the case. And once he was taken into custody, Mr. Perea waived his rights to the assistance of counsel when he consented to the investigators’ questioning and confessed to the shootings.
At ¶ 97.
Because Mr. Perea was advised of and subsequently waived his Miranda rights, the district court did not err when it denied Mr. Perea’s motion to suppress his confession.
At ¶ 98.
5. Harmless Error
We have concluded that the district erred when it limited the testimony of Mr. Gaskill and chose not to admit the proposed testimony of Dr. Ofshe. But the potential harm of each error must be viewed against the backdrop of the entire body of evidence. And when so viewed, the errors were harmless.
At ¶
100.
The
Court outlines the overwhelming evidence of Mr. Perea’s guilt and the harmless
nature of the Court’s errors in light of that evidence.
At ¶¶
101-109.
Utah Code section 76-3-207.7 provides that “[a] person who has pled guilty to or been convicted of first degree felony aggravated murder . . . shall be sentenced by the court . . . [to] life in prison without parole or an indeterminate prison term of not less than 25 years and which may be for life.”
At ¶ 110.
Mr. Perea argues that section 76-3-207.7 violates the Utah Constitution and the United States Constitution in a number of ways. First, he argues that the statute is unconstitutionally vague because it authorizes arbitrary and discriminatory enforcement. He next argues that the statute violates the due process and equal protection clauses of the Utah Constitution and the federal constitution and that it runs afoul of the uniform operation of laws provisions of the Utah Constitution. Finally, he argues that his sentence violates the unnecessary rigor provision of the Utah Constitution and the cruel and unusual punishment clause of the federal constitution. We find these arguments unavailing and conclude that section 76-3-207.7 is constitutional on its face and as applied to Mr. Perea.
At ¶
111.
A. Vagueness
. . . Although it is well settled that statutes must clearly articulate the behavior that they proscribe, there are far fewer cases in which vague sentencing guidelines have been overturned. Even so, the U. S. Supreme Court has made clear that “vague sentencing provisions may pose constitutional questions if they do not state with sufficient clarity the consequences of violating a given criminal statute.” Batchelder, 442 U.S. at 123.
At ¶ 113.
We conclude that Section 76-3-207.7 does not suffer from such an infirmity. It states clearly that a defendant convicted of noncapital first-degree felony aggravated murder may be incarcerated for a term up to and including the rest of his life. While it also holds out the possibility of a more lenient sentence of 25 years to life, the fact that the sentencing court may choose to impose the more lenient sentence does not render the statute unconstitutional. Sentencing courts have long been afforded broad discretion in sentencing. And when section 76-3-207.7 is read in the context of Utah’s sentencing scheme as a whole, we conclude that it provides sufficient guidance to withstand Mr. Perea’s facial vagueness challenge. We further conclude that it was not unconstitutionally applied to Mr. Perea.
At ¶ 114.
Mr. Perea argues that section 76-3-207.7 is impermissibly vague because it does not specify the particular items the sentencing court must consider in deciding which of the two possible sentences to impose. We are unpersuaded. Section 76-3-207.7 must be read in the context of Utah’s sentencing scheme as a whole. To give full effect to the Legislature’s intent, we construe statutes in harmony “with other statutes under the same and related chapters.” Lyon v. Burton, 2000 UT 19, ¶ 17, 5 P.3d 616. And, when read in context, the statutory scheme provides adequate guidance to sentencing courts. Utah Code section 76-1-104 provides that “[t]he provisions of [the criminal] code shall be construed . . . [to p]revent arbitrary or oppressive treatment . . . [and to p]rescribe penalties which are proportionate to the seriousness of offenses and which permit recognition o[f] differences in rehabilitation possibilities among individual offenders.” Section 76-1-106 reinforces section 76-1-104 by providing that “[a]ll provisions of this code and offenses defined by the laws of this state shall be construed . . . to effect the objects of the law and general purposes of [s]ection 76-1-104.” When read in harmony, these provisions make clear that a sentencing court is to consider all the evidence before it—the totality of the circumstances— in imposing a sentence that is proportionate to the crime and the culpability of the defendant.
At ¶ 117.
. . . Because our rules do not constrain the introduction of any evidence tending to inform the court’s determination, it is not incumbent upon the statute to enumerate the factors the sentencing judge may or must consider.
At ¶ 118.
. . . Absent statutorily articulated aggravating and mitigating circumstances in noncapital cases, courts have historically based their sentencing decisions on the totality of the circumstances. . . .
At ¶ 119.
And that is exactly what the district court did here. Specifically, the district court found that Mr. Perea's relative youth, his poor educational background, and his borderline IQ/learning disability constituted mitigating factors. But the district court found that there were a wealth of aggravating factors to offset these considerations, including the multiple young victims, the fact that Mr. Perea fired ten shots into a large group of partygoers, and Mr. Perea’s lengthy prior criminal record.
At ¶ 120.
Because district courts are “in the best position to ensure that justice is done and to determine whether any ‘[o]ne factor in mitigation or aggravation [should] weigh more than several factors on the opposite scale,’” they are “allowed a great deal of discretion in determining the relative weight of competing aggravating and mitigating circumstances.” State v. Moreno, 2005 UT App 200, ¶ 9, 113 P.3d 992 (alteration in original) (quoting State v. Russell, 791 P.2d 188, 192 (Utah 1990)). And as here, where the district court considered the totality of the circumstances and explicitly weighed the mitigating and aggravating factors, we are not persuaded that it abused its discretion or applied the statute in an unconstitutional fashion.
At ¶ 121.
B. Uniform Operation of the Laws
Mr. Perea argues that section 76-3-207.7 violates the uniform operation of laws provision of the Utah Constitution. Article 1, section 24 of the Utah Constitution requires that “[a]ll laws of a general nature shall have uniform operation.” Under the uniform operation of laws provision, a statute must be “uniform on its face.” State v. Mohi, 901 P.2d 991, 997 (Utah 1995). Further, it “is critical that the operation of the [statute] be uniform,” such that similarly situated people are treated similarly under the statute. Id. (emphasis in original).
At ¶ 123.
Our analysis under the uniform operation of laws provision requires that we first “determine what classifications, if any, are created by the statute.” Id. We must then analyze “whether different classes or subclasses are treated disparately. Finally, if any disparate treatment exists between classes or subclasses, we must determine whether the legislature had any reasonable objective that warrants the disparity.” Id. Mr. Perea asserts that section 76-3-207.7 divides the general class made up of those found guilty of aggravated murder into two subclasses based on the sentence imposed by the district court. He then asserts that the disparate treatment between those sentenced to 25 years to life and those sentenced to LWOP is not justified because the statute fails to provide guidance to the district court.
At ¶ 124.
We disagree. Not all those found guilty of aggravated murder are similarly situated. While all are found guilty of the same crime, each case and each defendant presents a different set of facts and a different combination of aggravating and mitigating factors. The discretion afforded to district courts furthers the legitimate legislative purpose of sentencing offenders based on the totality of the unique circumstances present in each case. District courts are authorized and empowered by the Legislature to review the totality of the circumstances before imposing a sentence. Therefore, because the discretion given to district courts therefore furthers the legitimate legislative purpose of sentencing offenders based on the severity of their particular circumstances, we hold that section 76-3- 207.7 does not violate our uniform operation of laws provision.
At ¶ 125.
C. Unnecessary Rigor
Mr. Perea argues that his sentence of LWOP violates Utah Constitution’s unnecessary rigor provision because it fails to take into account his “age, mental disabilities and IQ.” But Mr. Perea misapprehends the application of the unnecessary rigor provision. That provision protects prisoners from “the imposition of circumstances . . . during their confinement that demand more of the prisoner than society is entitled to require.” Dexter v. Bosko, 2008 UT 29, ¶ 17, 184 P.3d 592. It therefore applies only to the conditions of one’s confinement and does not speak to the proportionality of the particular sentence imposed. The unnecessary rigor provision is therefore not implicated by the imposition of his sentence of LWOP.
At ¶ 126.
D. Cruel and Unusual Punishment
The Court differentiates between Perea and the
cases cited, then concludes that
. . . in the absence of a statutory mandate or compelling factual circumstances indicating the district court erred, we will not second-guess the district court, which is “in the best position to ensure that justice is done.” Moreno, 2005 UT App 200, ¶ 9. We therefore hold that Mr. Perea’s sentence is not unconstitutional under the Cruel and Unusual Punishment Clause of the federal constitution.
At ¶ 129.
7. Station House Recordings
Finally, we turn to Mr. Perea’s argument that we should require the police to record all confessions given at police stations. Mr. Perea argues that recording station-house confessions aids the fact finder in ascertaining the truth and that the absence of a recording makes it difficult to assess the voluntariness of a confession. The State concedes that “an electronic recording requirement would have benefits,” but argues the determination of this issue is better left to a legislative body. While we have concerns about the Ogden Police Department’s policy of not recording interrogations or confessions, this appeal is not the appropriate context for addressing those concerns.
At ¶ 130.
Because there was no constitutional, statutory, or common law obligation for the investigators to record Mr. Perea’s confession, and because any ruling that law enforcement should record interrogations in the future would have no effect on the case before us, we decline Mr. Perea’s invitation to judicially pronounce a requirement that investigators record station-house confessions. . . .
At ¶ 132.
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