IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20100310‐CA
)
v. ) FILED
) (June 1, 2012)
William Alfred Dick, )
) 2012 UT App 161
Defendant and Appellant. )
‐‐‐‐‐
Eighth District, Vernal Department, 081800093
The Honorable A. Lynn Payne
Attorneys: Dean N. Zabriskie, Rhome D. Zabriskie, and Stephen R. Allred, Provo,
for Appellant
Mark L. Shurtleff and Ryan D. Tenney, Salt Lake City, for Appellee
‐‐‐‐‐
Before Judges Voros, Orme, and Thorne.
ORME, Judge:
¶1 Defendant appeals his several convictions, most of which concern illegal
possession of a controlled substance. After Defendant was tried and sentenced, he
moved for a new trial, alleging that the State had withheld evidence regarding a
rebuttal witness in violation of Brady v. Maryland, 373 U.S. 83 (1963). The trial court
denied that motion. Defendant appeals that ruling and further asserts that the State
violated rule 16 of the Utah Rules of Criminal Procedure.
¶2 “When reviewing a trial court’s denial of a motion for a new trial, we will not
reverse absent a clear abuse of discretion by the trial court. At the same time, however,
we review the legal standards applied by the trial court in denying such a motion for
correctness.” State v. Bisner, 2001 UT 99, ¶ 31, 37 P.3d 1073 (citations and internal
quotation marks omitted). Defendant claims that the State violated Brady and its
progeny by not providing notice prior to trial about its potential rebuttal witness, his
likely testimony, and other pertinent information, most notably taped interviews of the
rebuttal witness by law enforcement. Defendant asserts that the tapes “revealed that
officers wanted [the rebuttal witness] to help them with information to convict
[Defendant] and would get him a deal.” Consequently, Defendant contends that had
the State provided this information, he would have been able to find a former jailmate
of the rebuttal witness, who would have been able to undercut the latter’s testimony.
Defendant also argues that the State violated rule 16 of the Utah Rules of Criminal
Procedure by not disclosing the identity of its rebuttal witness until trial. A trial court’s
ruling on a rule 16 issue is reviewed for an abuse of discretion. See State v. Buck, 2009
UT App 2, ¶ 10, 200 P.3d 674.
¶3 The analytic approach for resolving an appeal like this one, in which a defendant
claims violations of Brady and rule 16 because the State failed to produce evidence that a
witness was induced to testify by a favorable plea deal, was recently revisited in State v.
Doyle, 2010 UT App 351, 245 P.3d 206 (mem.), cert. denied, 251 P.3d 245 (Utah 2011). As
explained in Doyle,
[a] due process or “Brady violation occurs only where the
state suppresses information that (1) remains unknown to
the defense both before and throughout trial and (2) is
material and exculpatory, meaning its disclosure would
have created a ‘reasonable probability’ that ‘the results of the
proceeding would have been different.’”
Id. ¶ 5 (quoting Bisner, 2001 UT 99, ¶ 33 (quoting United States v. Bagley, 473 U.S. 667,
682 (1985))). In Doyle, defense counsel located the plea agreements in question by the
time of trial and used them in cross‐examination. Because the ultimate outcome of the
trial was not affected, this court concluded that no Brady violation had occurred. See id.
¶ 6.
¶4 We confirmed in Doyle that the prosecution has an additional obligation under
rule 16 of the Utah Rules of Criminal Procedure to “produce discovery ‘as soon as
20100310‐CA 2
practicable following the filing of charges and before the defendant is required to plead’
and ‘has a continuing duty to make disclosure.’” Id. ¶ 7 (quoting Utah R. Crim. P.
16(b)). However, we held that the trial court in that case correctly ruled that the
defendant “waived her relief ‘by not making timely efforts to mitigate or eliminate the
prejudice caused by the prosecutor’s conduct.’” Id. ¶ 8 (quoting State v. Griffiths, 752
P.2d 879, 883 (Utah 1988)). See also Utah R. Crim. P. 30(a) (“Any error, defect,
irregularity or variance which does not affect the substantial rights of a party shall be
disregarded.”); State v. Rugebregt, 965 P.2d 518, 522 (Utah Ct. App. 1998) (“When the
prosecution introduces unexpected testimony, a defendant ‘essentially waive[s] his
right to later claim error’ if the defendant fails to request a continuance or seek other
appropriate relief under Rule 16(g).”) (alteration in original) (citation omitted).
Furthermore, for reversal to be appropriate under rule 16, the violation must prejudice
the defendant. See Doyle, 2010 UT App 351, ¶ 9; State v. Basta, 966 P.2d 260, 265 (Utah
Ct. App. 1998) (“[F]or us to reverse defendant’s conviction based on the prosecutor’s
discovery violation, we must conclude that [the] violation ‘resulted in prejudice
sufficient to warrant reversal under Rule 30‘ of the Utah Rules of Criminal Procedure.”)
(quoting State v. Knight, 734 P.2d 913, 919 (Utah 1987)).
¶5 In this case, “it is clear that the defense knew about the possibility of the
inducement [of the rebuttal witness to testify] well before the trial concluded,” yet “the
defense utterly failed to make use of this knowledge during trial.” Bisner, 2001 UT 99,
¶ 38. “‘[C]ourts universally refuse to overturn convictions where the evidence at issue
is known to the defense prior to or during trial, where the defendant reasonably should
have known of the evidence, or where the defense had the opportunity to use the
evidence to its advantage during trial but failed to do so.’” State v. Pinder, 2005 UT 15,
¶ 25, 114 P.3d 551 (quoting Bisner, 2001 UT 99, ¶ 33) (emphasis added).
¶6 Defendant knew about the existence of other evidence related to the rebuttal
witness before the end of trial.1 During a break at trial, the State informed defense
counsel, “I’ve told you all along I’ve got two people” that could attest to Defendant’s
drug use in February 2008. Defense counsel failed to follow up as to the identities of the
possible witnesses. After Defendant testified in his own defense and volunteered that
1
Defense counsel was afforded the opportunity to view the rebuttal witness’s
case file at trial and declined. The videotaped interviews of the rebuttal witness by law
enforcement officers were not disclosed until after trial.
20100310‐CA 3
he had not used or dealt methamphetamine in February 2008, the State called the
rebuttal witness to counter that testimony. Defense counsel did not ask for a
continuance at that time and chose not to review the rebuttal witness’s plea affidavit,
despite the trial court’s offer to make it available. Indeed, defense counsel stated, “We
don’t need any further information as it relates to [the rebuttal witness]. We’re
prepared to go forward with [the State’s] next witness.”2
¶7 In response to Defendant’s post‐trial Brady challenge, the State included
affidavits from both Defendant’s prosecutor and the rebuttal witness’s trial attorney
stating that there was never a deal between the rebuttal witness and the State for the
rebuttal witness to testify against Defendant. The rebuttal witness’s attorney stated that
he told the rebuttal witness that “whether or not he testified[,] the sentence
recommendation would be the same.” The trial court conducted an in camera review of
the tape recorded conversations between the rebuttal witness and law enforcement
officers and confirmed that no deal was in place to induce the rebuttal witness to testify
against Defendant. Accordingly, no Brady violation occurred.3
2
The jailmate’s potential connection to the rebuttal witness and their alleged
conversation was not known to the State until after Defendant’s sentencing. Thus, this
information was not withheld by the State.
3
Even if the defense could not have learned of the evidence without an express
disclosure by the State, that, in itself, would not establish a reversible Brady violation.
[S]trictly speaking, there is never a real “Brady violation”
unless the nondisclosure was so serious that there is a
reasonable probability that the suppressed evidence would
have produced a different verdict. There are three
components of a true Brady violation: The evidence at issue
must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.
Strickler v. Greene, 527 U.S. 263, 281–82 (1999). Here, the trial court found “no credible
evidence that . . . the rebuttal witness testified falsely” and “no evidence that . . . the
rebuttal witness believed he was required to testify as a condition of his plea
(continued...)
20100310‐CA 4
¶8 Turning to Defendant’s claim that the State violated rule 16 by failing to provide
evidence about the rebuttal witness prior to trial, we conclude that Defendant waived
his right to challenge that evidence when he did not request a continuance or seek other
relief under rule 16(g) of the Utah Rules of Criminal Procedure. See State v. Doyle, 2010
UT App 351, ¶ 8, 245 P.3d 206 (mem.), cert. denied, 251 P.3d 245 (Utah 2011). Defendant
had several opportunities to inquire further about the rebuttal witness or other potential
rebuttal witnesses. Defense counsel did not request a continuance to investigate the
rebuttal witness, even going so far as to say, “We don’t need any further information as
it relates to [the rebuttal witness].” Defendant waived any potential claim under rule 16
when he not only failed to pursue relief under rule 16 at the time of trial but also
affirmatively declined the court’s invitation to access further information for use during
cross‐examination.
¶9 Finally, even if any of the foregoing analysis is flawed and it were to be
concluded that the trial court erred in its handling of the Brady or rule 16 issues, the
result would not be different. It is axiomatic that to secure a new trial, a defendant
must not only show that error occurred but also that it was prejudicial, i.e., that it
affected the outcome in such a way that we can say that, without the error, there is a
reasonable likelihood that the result would have been more favorable to the defendant.
See State v. Knight, 734 P.2d 913, 920 (Utah 1987) (in reviewing claim that prosecutor
violated “discovery duties, we must determine whether there is a reasonable likelihood
that the outcome of [the defendant]’s trial would have been more favorable to him had
the prosecution revealed the requested information”). See also Doyle, 2010 UT App 351,
¶ 8 (noting applicability of same prejudice test to Brady violations).
¶10 In this case, the evidence against Defendant is so overwhelming that it is not
likely that, even had the jailmate testified to refute the rebuttal witness’s testimony, the
result of the trial would have been any different. The trial court found that the evidence
at issue “was not material to the outcome of the trial.” We agree. Defendant was found
3
(...continued)
agreement.” Additionally, the court had “little confidence in the reliability of . . . the
jailmate’s testimony.” It is unlikely that evidence related to the rebuttal witness would
have “put the whole case in such a different light as to undermine confidence in the
verdict.” Id. at 290 (citation omitted). This is a subject that we revisit at the conclusion
of this decision.
20100310‐CA 5
passed out in the front seat of a car parked in front of the Uintah Care Center, with the
car’s engine running and its turn signal on. The driver‐side window was partially
down, despite the cold February morning. Defendant was wearing nothing but a
“short sleeved shirt” that was “partially unbuttoned.” The responding police officer
was not able to rouse Defendant by “yelling” at him or “bang[ing] on the window,” and
ultimately resorted to reaching through the open window, “grabb[ing] [Defendant] by
the arm, and sh[aking] him.” Officers arrested Defendant for lewdness and conducted
a search of the vehicle, employing a drug‐sniffing dog, and discovered a hunting knife,4
drugs, and drug paraphernalia. The dog picked up the scent of drugs on the clothes
found on the front seat, as well as on a bandana wrapped around a grocery bag that
contained various illegal drugs packaged in a manner typically associated with
distribution.
¶11 When officers contacted the registered owner of the vehicle that morning, she
said that she had allowed Defendant to borrow the car the previous afternoon and had
not heard from him after 11:30 p.m. She said that the drugs, paraphernalia, and clothes
were not in the car at the time she lent it to Defendant. A DNA expert testified that the
combined profile from the “touch DNA” found on the bandana matched Defendant,
while a randomly selected person would only have a 1 in 9,620 chance of matching the
combined profile.
¶12 At trial, Defendant claimed for the first time that the vehicle had earlier become
stuck in four to five inches of snow after he visited a friend in a remote part of Uintah
County. He then spent five to six hours on his hands and knees digging the car out of
the snow with the knife that was later discovered in the vehicle, which he had the good
fortune to find on the back seat. Defendant claimed that, on his return drive, he was
afraid he was going to hit something because he was drifting in and out of
consciousness, so he pulled into the parking lot of the Uintah Care Center, even though
he knew there was a hospital just a few blocks away. He claimed that he then took his
wet pants, shoes, and socks off and passed out—not from the effects of drugs but
because of his exertions over the course of the night—inexplicably disregarding other
dry clothes in the vehicle and somehow overlooking the advisability of rolling up the
window.
4
Defendant later stipulated that he was a restricted person not legally permitted
to carry a dangerous weapon.
20100310‐CA 6
¶13 The myriad of other evidence against Defendant overcomes any possible
rehabilitation of Defendant’s credibility that may have resulted from using the jailmate
to impeach the rebuttal witness’s testimony about Defendant’s methamphetamine use
and dealing in February 2008.
¶14 Affirmed.
____________________________________
Gregory K. Orme, Judge
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¶15 WE CONCUR:
____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge
____________________________________
William A. Thorne Jr., Judge
20100310‐CA 7