State v. Dodge

564 P.2d 312, 1977 Utah LEXIS 1136

• Court: Utah Supreme Court
• Decided: May 9, 1977
• Docket: 14242
• Status: Published

Opinions

TIBBS, District Judge:

The defendant asks reversal of his jury conviction of aggravated robbery. He alleges error because of insufficiency of evidence and because prosecution witnesses violated the exclusion of witnesses admonition of the trial judge. The decision is affirmed.

After midnight on June 11, 1975, a man took money at gunpoint from the cashier at the Ming Restaurant in Granger, Utah. During the robbery a second male came up to the cash register, told the first man to hurry and then aided him in carrying the funds away. As they fled, a waitress and an off-duty officer ran to the parking lot in time to observe a golden brown sedan with square tail lights, (a Ford Fairlane, Plymouth Duster or Dodge Dart) leave with two men and a woman as occupants. The officer broadcast the information at 12:18 a. m. At 12:25 a. m. another officer observed a gold Duster in his area with similar occupants. He stopped the vehicle and found a pistol similar to the one used in the robbery. All occupants were arrested and a search of the vehicle uncovered cash, checks and IOU’s which were positively identified as the ones taken from the cash register in the robbery. One of the men was identified as the robber by the cashier. The appellant was the other male passenger in the vehicle.

At the trial the six prosecution witnesses were sworn and a rule excluding the witnesses from the courtroom was invoked. They were admonished not to discuss their testimony with anyone except counsel.

During the noon recess the State’s attorney discussed the case with several of the witnesses in a group. Counsel for defense observed the witnesses discussing their testimony about identification, eyeglasses and time. A motion for mistrial, because of the alleged violation of the exclusion rule, was made and denied.

The evidence was convincing that an armed robbery was committed and that a second male assisted in the robbery. While the State produced no direct evidence that established the defendant’s identity as the second man, there was a quantity of circumstantial evidence. This Court has held a conviction can be had on circumstantial evidence if it excluded every reasonable hypothesis except the guilt of the defendant.¹ The jury’s verdict was amply supported by the evidence.²

It is not the intent of the exclusion rule to deny the right of counsel to talk with their witnesses during the trial. In this case the State’s attorney should not have gathered the witnesses together in the hall to talk about the case after the exclusion order. Depending on what was said, the purpose of the exclusion order might have been frustrated.

Whether the exclusion rule has been violated however is within the sound discretion of the trial court and to declare a mistrial the burden is on the accused to demonstrate that he has been prejudiced.³

The trial court had other alternatives to the mistrial the appellant requested. A motion to strike or exclude the violating witnesses testimony could have been made. A request that the court instruct the jury that a violation of the admonition was a factor to be considered in determining the witness credibility was also a possible remedy.

The appellant should have availed himself of less drastic means of limiting the possible prejudice to himself.

In this case it is doubtful that the talking of the prosecution witnesses jointly with State’s counsel was a violation of the court’s exclusion order. No prejudice to the appellant has been shown.⁴ The decision is affirmed.

ELLETT, C. J., and CROCKETT, J., concur.

1 . State v. Schad, 24 Utah 2d 255, 470 P.2d 246 (1970).

2 . State v. BeBee, 113 Utah 398, 195 P.2d 746 (1948).

3 . State v. Vaughn, Utah, 554 P.2d 210; 14 A.L.R. § 22 p. 105.

4 . See Sec. 77-42-1, U.C.A.1953.