State v. Boone

Utah Supreme Court

State v. Boone

677 P.2d 1114, 1984 Utah LEXIS 756

CourtUtah Supreme Court

DecidedJanuary 24, 1984

DocketNo. 18843

StatusPublished

Cited by2 cases

This text of 677 P.2d 1114 (State v. Boone) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State v. Boone, 677 P.2d 1114, 1984 Utah LEXIS 756 (Utah 1984).

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HOWE, Justice:

The defendant was convicted in a circuit court of driving an automobile while under the influence of alcohol. He appealed to a district court where his conviction was affirmed. In this Court, the defendant raises two claims of error at the trial in the circuit court. First, he contends that the court should have dismissed the information because of the failure of the State to establish a prima facie case. We are unable to treat this question on its merits since U.C.A.1953,' § 78-3-5 provides in part: “The decisions of the district court on appeals from circuit courts shall be final except in a case involving a constitutional issue.”

[1115]*1115Secondly, defendant contends that the circuit court committed prejudicial error in a ruling it made regarding the exclusion of a witness from the courtroom. Prior to the opening statements of counsel at the trial, counsel for defendant moved the court to exclude all witnesses. Counsel for the State requested that Trooper Ellsworth, the arresting officer, be allowed to remain. The defendant objected and the court excluded all witnesses including Ellsworth. Shortly after the defendant began testifying, the court called both counsel to the bench and suggested to counsel for the State that he move that Ellsworth be allowed to reenter the courtroom and listen to the defendant’s testimony in the event he was later called as a rebuttal witness. Counsel for the defendant objected arguing that the exclusion order should remain in effect throughout the trial. The court overruled the objection and permitted Ells-worth to hear the defendant’s testimony. Ellsworth was called as a rebuttal witness. He testified that he had listened to the defendant’s testimony and would not change his testimony regarding defendant’s condition at the time of arrest. Defendant now assails the ruling of the court which permitted Ellsworth to reenter the courtroom and hear the defendant’s testimony, charging that it prejudiced the defendant in the minds of the jurors and denied him a fair and impartial trial guaranteed by Article I, Section 12, of the Utah Constitution, and the Sixth and Fourteenth Amendments to the Constitution of the United States.

We do not find that a constitutional question is presented by defendant’s second point. Even if we were to agree with him that the court’s ruling was in error, it was nothing more than a violation of Rule 43(f) of the Utah Rules of Civil Procedure. Counsel for the defendant has not cited to us any authority that the violation of such a rule of procedure would have constitutional implications. Something more than the defendant’s bald assertion that his constitutional rights were invaded must be shown in order to present a constitutional question which this court can review under § 78-3-5.

The appeal of the defendant is dismissed.

STEWART, OAKS and DURHAM, JJ., concur.

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HOWE, Justice:

The defendant was convicted in a circuit court of driving an automobile while under the influence of alcohol. He appealed to a district court where his conviction was affirmed. In this Court, the defendant raises two claims of error at the trial in the circuit court. First, he contends that the court should have dismissed the information because of the failure of the State to establish a prima facie case. We are unable to treat this question on its merits since U.C.A.1953,' § 78-3-5 provides in part: “The decisions of the district court on appeals from circuit courts shall be final except in a case involving a constitutional issue.”

[1115]*1115Secondly, defendant contends that the circuit court committed prejudicial error in a ruling it made regarding the exclusion of a witness from the courtroom. Prior to the opening statements of counsel at the trial, counsel for defendant moved the court to exclude all witnesses. Counsel for the State requested that Trooper Ellsworth, the arresting officer, be allowed to remain. The defendant objected and the court excluded all witnesses including Ellsworth. Shortly after the defendant began testifying, the court called both counsel to the bench and suggested to counsel for the State that he move that Ellsworth be allowed to reenter the courtroom and listen to the defendant’s testimony in the event he was later called as a rebuttal witness. Counsel for the defendant objected arguing that the exclusion order should remain in effect throughout the trial. The court overruled the objection and permitted Ells-worth to hear the defendant’s testimony. Ellsworth was called as a rebuttal witness. He testified that he had listened to the defendant’s testimony and would not change his testimony regarding defendant’s condition at the time of arrest. Defendant now assails the ruling of the court which permitted Ellsworth to reenter the courtroom and hear the defendant’s testimony, charging that it prejudiced the defendant in the minds of the jurors and denied him a fair and impartial trial guaranteed by Article I, Section 12, of the Utah Constitution, and the Sixth and Fourteenth Amendments to the Constitution of the United States.

We do not find that a constitutional question is presented by defendant’s second point. Even if we were to agree with him that the court’s ruling was in error, it was nothing more than a violation of Rule 43(f) of the Utah Rules of Civil Procedure. Counsel for the defendant has not cited to us any authority that the violation of such a rule of procedure would have constitutional implications. Something more than the defendant’s bald assertion that his constitutional rights were invaded must be shown in order to present a constitutional question which this court can review under § 78-3-5.

The appeal of the defendant is dismissed.

STEWART, OAKS and DURHAM, JJ., concur.

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677 P.2d 1114, 1984 Utah LEXIS 756, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-boone-utah-1984.

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