State v. White

2016 UT App 241 THE UTAH COURT OF APPEALS STATE OF UTAH, Appellee, v. COY BRANDON WHITE, Appellant. Opinion No. 20141003-CA Filed December 15, 2016 Third District Court, Salt Lake Department The Honorable Elizabeth A. Hruby-Mills No. 121908920 Nicole G. Farrell, Alan S. Mouritsen, and Adam E. Weinacker, Attorneys for Appellant Sean D. Reyes and Marian Decker, Attorneys for Appellee JUDGE DAVID N. MORTENSEN authored this Opinion, in which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR. concurred. MORTENSEN, Judge: ¶1 Defendant Coy Brandon White was found uninvited and without pants in a darkened bathroom by Victim, who engaged in combat with his newfound adversary. A jury convicted Defendant of aggravated burglary and aggravated assault, and he now appeals. We affirm. BACKGROUND ¶2 On the evening of May 11, 2012, Victim arrived home and greeted his son (Son) before making his way to the master bathroom to wash his hands. As Victim approached the bathroom, he saw the silhouette of a man in his underwear. State v. White Victim asked the man who he was and what he was doing, to which the man replied, ‚I’m here for your daughter.‛ Victim’s daughter was not home at the time. Using the bedroom door, which is adjacent to the bathroom, Victim attempted to trap the man in the bathroom. The man ‚stuck the end of a broom through an opening in the doorway‛ and hit Victim. Victim then opened the bedroom door, and the two men engaged in a physical struggle. At some point Son came in, and Victim instructed him to go get a knife. Son returned with two, giving one to Victim. Victim did not immediately use the knife against the man because he felt ‚compassion not to kill him.‛ The man momentarily retreated to retrieve a clothes iron from the hall, which he used to strike Victim. When Victim countered with the knife, the man ‚started backing up defending himself with the iron,‛ then dropped the iron and fled the apartment. ¶3 Police found blood on the iron and sent the blood to the Utah State Crime Lab for testing. The DNA from the blood matched a DNA sample in Utah’s Combined DNA Index System. The sample belonged to Defendant. Neither Victim nor Son could identify Defendant at trial as the man in their home, and Victim failed to select Defendant’s picture from a photo array following the incident. No one in Victim’s family knew Defendant; he had never been invited to enter their home. ¶4 The State charged Defendant with aggravated burglary and aggravated assault, first and third degree felonies respectively. See Utah Code Ann. § 76-6-203 (LexisNexis 2012); id. § 76-5-103. During discovery, the State filed a motion under rule 16 of the Utah Rules of Criminal Procedure requesting a sample of Defendant’s DNA via buccal swab—a method of collecting DNA by swabbing the interior surface of a person’s cheek. The motion was supported by an affidavit from the investigating officer. Defendant objected to the motion. The trial court overruled Defendant’s objection, and after hearing argument, granted the State’s motion, ordering Defendant to provide the sample. Defendant refused. The State then filed a second motion, again under rule 16, requesting an order 20141003-CA 2 2016 UT App 241 State v. White allowing it to use force to obtain Defendant’s DNA sample. Again Defendant objected, arguing that rule 16 does not authorize the use of force in obtaining a DNA sample, and again the trial court granted the State’s motion. Defendant thereafter allowed investigators to take a sample of his DNA without force, and this was the only evidence the State presented at trial to prove Defendant’s identity as the man in Victim’s apartment. ¶5 Defendant’s trial strategy involved alternative defenses. Either (1) Defendant was not the man who Victim found in his bathroom or (2) Defendant’s actions were justified as a result of self-defense or compulsion. As Defendant explains, ‚Accordingly, the actions of [Victim] the night of the incident were relevant to *Defendant’s+ defense.‛ For this reason, Defendant informed the trial court that Victim had entered a plea in abeyance on a 2010 assault charge and stated that if Victim put his own character at issue, Defendant would question him about the 2010 charge. ¶6 In the course of Victim’s testimony, he stated that he had ‚felt compassion not to kill‛ the man in his bathroom and that he did not ‚have a criminal mind.‛ Defense counsel, during a bench conference, asserted that these statements were ‚somewhat ambiguous, [and] may be a question of interpretation‛ and asked permission to cross-examine Victim on ‚what it is that he meant.‛ In defense counsel’s view, ‚depending on *Victim’s+ answer,‛ that could ‚open the door to some discussion of the‛ plea in abeyance. The trial court refused the request. ¶7 Also during his testimony, Victim twice made comments indicating that he ‚felt more accused than the defendant.‛ 1 After the first comment, Defendant requested, and the trial court gave, 1. Only one of these comments is explicitly indicated in the trial transcript. The parties’ briefs and the context of the second comment indicate that Victim made an earlier comment along the same lines, which for some reason was not recorded. 20141003-CA 3 2016 UT App 241 State v. White a curative instruction to the jury to disregard the comment. Following the second comment, Defendant moved for a mistrial. The trial court denied the motion but indicated its willingness to give a second curative instruction; Defendant never requested this second instruction. ¶8 Finally, Defendant raised the issue of Victim’s status as an undocumented immigrant. Victim had filed I-918 petitions— used to obtain what are commonly called U visas—for himself and his family. Defendant presented an expert at trial who explained that U visas confer legal status on victims of violent crimes. Defendant used this evidence to suggest a possible motive for Victim to fabricate the details of that night, namely, obtaining a more favorable immigration status. Defendant also sought to question Victim concerning his refusal to provide defense counsel with a copy of the I-918 petitions. The trial court had reviewed the petitions in camera and concluded that there was nothing potentially exculpatory in them. It therefore barred that line of questioning, explaining, ‚*T+hat is not coming in, that’s not relevant for any purpose. . . . That’s his right.‛ ¶9 The jury convicted Defendant of aggravated burglary and aggravated assault. Defendant now appeals. ISSUES AND STANDARDS OF REVIEW ¶10 Defendant first argues that the trial court erred in granting the State’s rule 16 motions to obtain a sample of his DNA—particularly the second motion, which sought to obtain the sample by force—because the State should have been required to obtain a warrant. Normally, ‚rulings on motions to compel . . . are reviewed for an abuse of discretion.‛ Macris & Assocs., Inc. v. Neways, Inc., 2006 UT App 33, ¶ 8, 131 P.3d 263; see also State v. Tanner, 2011 UT App 39, ¶ 5, 248 P.3d 61. But because Defendant’s argument rests on whether rule 16 is a proper mechanism for obtaining DNA evidence by force, resolution of this issue requires us to interpret the language of rule 16 and decide whether Defendant was afforded necessary 20141003-CA 4 2016 UT App 241 State v. White constitutional protections. We therefore review the trial court’s grant of the State’s motions for correctness. See Ostler v. Buhler, 1999 UT 99, ¶ 5, 989 P.2d 1073 (‚The proper interpretation of a rule of procedure is a question of law, and we review the trial court’s decision for correctness.‛); State v. Holland, 921 P.2d 430, 433 (Utah 1996) (‚*T+he ultimate question of whether the trial court strictly complied with constitutional and procedural requirements . . . is a question of law that is reviewed for correctness.‛). ¶11 The second and third issues on appeal concern the trial court’s restriction of Defendant’s cross-examination of Victim, particularly regarding Victim’s 2010 assault charge and his I-918 petitions. We generally review the trial court’s decisions concerning the scope of cross-examination, including its decisions to allow or exclude evidence, for an abuse of discretion. State v. Gomez, 2002 UT 120, ¶ 12, 63 P.3d 72. ¶12 Defendant also argues that the trial court should have granted his motion for a mistrial following Victim’s statements that he felt more accused than Defendant. Because a district judge is in an advantaged position to determine the impact of courtroom events on the total proceedings, once a district court has exercised its discretion and denied a motion for a mistrial, we will not reverse the court’s decision unless it ‚is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.‛ State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quoting State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948). ¶13 Notwithstanding the standards of review just outlined, we will reverse Defendant’s convictions only if we are convinced that the trial court’s errors made ‚the likelihood of a different outcome . . . sufficiently high to undermine confidence in the 20141003-CA 5 2016 UT App 241 State v. White verdict.‛ State v. Knight, 734 P.2d 913, 920 (Utah 1987); see State v. Draper-Roberts, 2016 UT App 151, ¶ 16, 378 P.3d 1261 (dealing with harmlessness in an abuse-of-discretion context); State v. Hawkins, 2016 UT App 9, ¶ 33, 366 P.3d 884 (dealing with harmlessness in a correctness context); 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. Jimenez, 2016 UT App 138, ¶ 9, 379 P.3d 50 (explaining that even if we determine certain evidence should have been admitted, we will reverse only if admission of that evidence would likely have led to a different result at trial). Thus, even if we determine or assume that the trial court erred in one of the ways Defendant identifies, we will reverse only if there is a reasonable likelihood that Defendant was harmed by the error or by the cumulative effect of several errors. When it is more expedient to do so, we focus our attention first on what harm, if any, Defendant suffered as a result of the alleged errors. See State v. Cox, 2012 UT App 234, ¶ 5, 286 P.3d 15 (indicating that we need not decide whether an ‚error was obvious or invited, or whether counsel was deficient in failing to object to it because we conclude that the error was harmless‛ (footnote omitted)); cf. Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (explaining that under the ineffective-assistance-of-counsel standard, where it is easier to dispose of a claim on prejudice grounds, the court will do so without analyzing the reasonableness of counsel’s performance). ¶14 Finally, Defendant contends that ‚the errors presented on appeal warrant reversal of [his] convictions under the cumulative error doctrine.‛ ‚Under the cumulative error doctrine, we apply the standard of review applicable to each underlying claim or error‛ and ‚reverse only if the cumulative effect of multiple errors undermines our confidence that a fair trial was had.‛ State v. Davis, 2013 UT App 228, ¶ 16, 311 P.3d 538 (citations and internal quotation marks omitted). 20141003-CA 6 2016 UT App 241 State v. White ANALYSIS I. Authorization of Use of Force To Retrieve Defendant’s DNA ¶15 Defendant contends that the State violated his constitutional protection against unreasonable searches and seizures, see Utah Const. art. I, § 14,2 when it relied on rule 16 of the Utah Rules of Criminal Procedure to obtain authorization for the use of force in securing a sample of his DNA. We conclude that the trial court appropriately granted the State’s rule 16 motion, authorizing the use of force in obtaining a sample of Defendant’s DNA.3 ¶16 State v. Easthope, 668 P.2d 528 (Utah 1983), addressed a nearly identical issue. There, the district court had ordered the defendant to surrender body and pubic hair, saliva, and blood samples under the predecessor to rule 16. Id. at 530, 531; see also Utah Code Ann. § 77-35-16 (Allen Smith Co. 1982). The defendant argued that ‚the taking of his blood sample without a search warrant was . . . unconstitutional.‛ Easthope, 668 P.2d at 531–32 (footnote omitted). The Utah Supreme Court reasoned that ‚the purpose of the warrant requirement . . . was not to exalt the formality of the warrant but to assure that the decision to compel an invasion of a person’s body in search of evidence of guilt was made by a neutral and detached magistrate.‛ Id. at 532 (citation and internal quotation marks omitted). The court then 2. Defendant does not allege a violation of the Fourth Amendment to the United States Constitution. 3. We note that although the State ultimately did not need to resort to the use of force, see supra ¶ 4, Defendant’s argument is that ‚Rule 16 does not permit the warrantless taking of DNA by force.‛ Defendant is not precluded from pursuing this argument simply because he cooperated instead of risking injury by requiring the State to take his DNA by force. 20141003-CA 7 2016 UT App 241 State v. White set forth the following analysis, which applies directly to this case: That concern was fully satisfied in the circumstances of this case. Following defendant’s arrest on a warrant, the State filed a motion to compel discovery of body fluids. Defendant and his counsel were notified, an adversary hearing was held, and . . . the magistrate ordered the taking of a blood sample. That course of events, which provided the defendant greater procedural protection than he has under a search warrant (notably his participation in the hearing), satisfied the constitutional requirements for the invasion of a person’s body. Id. ¶17 Not only does this analysis from Easthope support the conclusion that the trial court did not err in granting the State’s motion in this case, but it also echoes the outcome of similar cases throughout the country. See, e.g., United States v. Pipito, 861 F.2d 1006, 1009–10 (7th Cir. 1987) (comparing retrieving fingerprints to retrieving blood samples and concluding that force may be used to obtain such materials because ‚while it may not enhance the image of justice to force a witness kicking and screaming . . . the choice has been made by the witness, not the court‛ (omission in original) (citation and internal quotation marks omitted)); Simmons v. Secretary, Dept. of Corr., No. 8:08-cv- 2433-T-17EAJ, 2010 WL 1408434, at *12 (M.D. Fla. April 6, 2010) (deciding, where the Florida Rules of Criminal Procedure authorized a court to require the defendant to ‚‘permit the taking of samples of the defendant’s blood, hair, and other materials of the defendant’s body that involves no unreasonable intrusion,’‛ that ‚the Court had the ability to require the Defendant to provide a saliva sample without needing a search warrant‛ (quoting Fla. R. Crim. P. 3.220)); People v. Treece, 511 N.E.2d 1361, 1367 (Ill. App. Ct. 1987) (concluding that Illinois 20141003-CA 8 2016 UT App 241 State v. White Supreme Court Rule 413 ‚can be used to obtain a blood sample from a defendant without resort to a search warrant following indictment or information‛). ¶18 Defendant’s attempts to distinguish Easthope are unavailing. He claims that ‚the Easthope court did not analyze the precise language of Rule 16(h) or its interplay with the State’s more recent constitutional jurisprudence and protection of individual rights.‛ But as we explained, see supra ¶ 16, the statute relied on in Easthope was simply an earlier version of rule 16, and Defendant does not attempt to explain how the existence of two versions of the same rule, nearly identical in substance but different in name, affects the outcome on appeal. And the mere passage of time since it was decided, without more, does not make Easthope any less controlling. ¶19 As in Easthope, the trial court in this case used the then- current discovery rules to provide Defendant more protection than he would have received if the State had simply obtained a warrant for a sample of his DNA. See infra ¶ 24. In this we see no error. ¶20 Even without reference to the Easthope analysis, application of the relevant criminal discovery rules yields the same result. Rule 16 of the Utah Rules of Criminal Procedure provides that, ‚*s+ubject to constitutional limitations, the accused may be required to . . . permit the taking of samples of blood, hair, fingernail scrapings, and other bodily materials which can be obtained without unreasonable intrusion.‛ Utah R. Crim. P. 16(h)(6). That same rule provides that if a party fails to comply, ‚the court may order such party to permit the discovery or inspection, . . . or it may enter such other order as it deems just under the circumstances.‛ Id. R. 16(g). Here, the trial court required Defendant to provide ‚other bodily materials‛ when it ordered him to submit to a buccal swab. See id. R. 16(h)(6). Then, when Defendant failed to submit to such procedure, the trial court authorized the State to use force in obtaining the DNA sample. 20141003-CA 9 2016 UT App 241 State v. White ¶21 Other courts have consistently described buccal swabs as minor intrusions. See, e.g., Maryland v. King, 133 S. Ct. 1958, 1980 (2013) (‚minor intrusion of a brief swab of his cheeks‛); Haskell v. Harris, 669 F.3d 1049, 1050 (9th Cir. 2012) (‚a de minimis intrusion‛), aff’d, 745 F.3d 1269 (9th Cir. 2014) (en banc); Friedman v. Boucher, 580 F.3d 847, 863 (9th Cir. 2009) (‚far less intrusive than drawing blood and a relatively minor intrusion‛). And Defendant does not contend that the State’s buccal swab procedure resulted in an ‚unreasonable intrusion.‛ See Utah R. Crim. P. 16(h)(6). Instead, Defendant argues that the trial court’s order failed to comport with ‚constitutional limitations‛ by authorizing the use of force. See id. He further claims that discovery rules cannot be used to circumvent the warrant requirement for searches. In Defendant’s view, while rule 16 can be used to ‚require* the accused+ to permit the taking of . . . bodily materials that can be obtained without unreasonable intrusion,‛ ‚the accused can decide to comply with the order, or refuse to comply and face the consequences.‛ According to Defendant, those consequences cannot include ‚use of reasonable force.‛4 4. Defendant suggests that State v. Bakalov, 1999 UT 45, 979 P.2d 799, supports this argument. Bakalov involved a rape defendant who sought to have an expert evaluate a semen sample found on his victim. Id. ¶ 54. The trial court ‚granted the request subject to *the defendant’s+ first submitting a sample of his blood to the State.‛ Id. ¶ 10. Because the defendant refused to provide the sample, the court denied his motion. Id. On appeal, our supreme court concluded that the trial court’s imposed condition for testing ‚comported with Utah Rule of Criminal Procedure 16(h)(6).‛ Id. ¶ 54. Specifically, recognizing the significant discretion afforded trial courts ‚to remedy any prejudice to a party resulting from a breach of the criminal discovery rules,‛ the supreme court determined that forcing the defendant to choose between providing a sample of his DNA or not having the semen sample evaluated did not ‚violate the constitution or (continued<) 20141003-CA 10 2016 UT App 241 State v. White ¶22 We cannot agree with Defendant’s interpretation of the rule, which would effectively preclude the State from seeking information through discovery if that information could properly be the subject of a warrant. Instead, the rule grants the trial court considerable discretion to make discovery orders, so long as those orders comply with constitutional requirements. The constitutional requirement applicable to searches of a defendant’s person and seizure of his or her DNA is one of reasonableness: ‚The right of the people to be secure in their persons . . . against unreasonable searches and seizures shall not be violated . . . .‛ Utah Const. art. I, § 14. ¶23 The most common way the law ensures that a search and seizure is reasonable is to require a warrant, which ‚shall *not+ issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.‛ Id. Probable cause ‚undoubtedly requires a nexus between suspected criminal activity and the place to be searched.‛ State v. Dable, 2003 UT App 389, ¶ 5, 81 P.3d 783 (citation and internal quotation marks omitted). Probable cause is typically established by affidavit, as occurred here. In the present case, the suspected criminal activity was a man’s unlawful entry into Victim’s home and the ensuing altercation, which left blood on the clothes iron. The place to be searched was Defendant’s person via a buccal swab for DNA. The strong nexus between the criminal activity and the place to be searched was the match between the DNA in the blood found on the iron (