State v. Kohl

2000 UT 35, 999 P.2d 7, 392 Utah Adv. Rep. 3, 2000 Utah LEXIS 41, 2000 WL 313216
CourtUtah Supreme Court
DecidedMarch 28, 2000
Docket981821
StatusPublished
Cited by88 cases

This text of 2000 UT 35 (State v. Kohl) 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.

Bluebook
State v. Kohl, 2000 UT 35, 999 P.2d 7, 392 Utah Adv. Rep. 3, 2000 Utah LEXIS 41, 2000 WL 313216 (Utah 2000).

Opinion

WILKINS, Justice:

¶ 1 Defendant Jason Kohl appeals from convictions for aggravated burglary, a first degree felony, and possession of a weapon by a restricted person, a third degree felony. We affirm, but remand for the limited purpose of resolution on the record of defen *10 dant’s objections to the presentence investigation report pursuant to Utah Code Ann. § 77-18-l(6)(a) (1999).

BACKGROUND 1

¶2 On April 6, 1998, shortly after noon, Kornya French placed a 911 telephone call indicating that the defendant and five or six companions had invaded her home in Pleasant Grove, Utah, which she shared with Justin Lee. She gave her address and indicated the approximate number and gender of the invaders. She also stated that handguns had been used and that the invaders left in three vehicles: a green Chevrolet pickup truck, a blue Chevrolet S-10 truck, and a maroon passenger car. Officer Flygare received the dispatch call, which related this information and indicated that French had personally witnessed these events. The officer arrived at French’s home within minutes. As officers were speaking with French, a green truck drove by which French pointed out as being the green truck she had seen in front of her home when the suspects first arrived. Officer Flygare broadcasted’the description and approximate location of the green truck, asking that it be stopped in connection with the aggravated burglary. Another officer, Officer Tauffer, pursued and stopped the truck to question the driver about the incident.

¶3 The sole driver of the green truck, Tiffanie Davis, informed Officer Tauffer that earlier that morning defendant had approached her and asked where French lived. Davis also described the defendant’s vehicle, indicating that he was driving a blue truck and his friends had a maroon vehicle. She also indicated that the group was currently at her house. Officer Tauffer broadcasted this information over his police radio. As the officers followed Davis back to her home they observed a blue truck followed by a maroon car matching the description and number of occupants given by French and Davis, passing in the opposite direction. Based upon the dispatch and bulletin from Officer Tauf-fer, Officer Eastman stopped the blue truck and removed defendant and the others. In removing the occupants, police found two guns — an SKS assault rifle and a twelve-gauge shotgun — which some officers testified were in plain view in the bed of the truck. Meanwhile, Officers Willes and Blackhurst stopped the maroon'car and, after removing the occupants, saw and confiscated three loaded guns in plain view.

¶ 4 Defendant was charged with aggravated burglary of a dwelling and possession of a firearm by a restricted person. The trial court, after conducting an evidentiary hearing, denied defendant’s motion to suppress the seized weapons. 2 The matter was then tried before a jury. Defendant was tried together with two co-defendants, Frank Pet-tingill and Donald Veteto.

¶ 5 During the trial, and despite a relevancy objection from the defendant, the State elicited testimony regarding the amount of ammunition in and the firing status of the SKS assault rifle and the twelve-gauge shotgun. The prosecutor also called several witnesses at trial to testify for the State. French, an in-custody witness, appeared in civilian clothing while Michael Hubbard, a co-defendant also in custody, appeared in jail attire. Before Hubbard testified, defendant moved for a mistrial and objected to Hubbard’s appearance in jail garb. The trial court denied the motion.

¶ 6 During his closing argument, the prosecutor gave several reasons why the testimony of certain co-defendants was credible, including the following:

*11 If you look at the manner they testified, they saw they were both threatening while they had the guns. They didn’t come in and try to make a clean story to the State. And I recognize that having known the defendants and having engaged in this incident with the defendants that they would be somewhat reluctant.

The trial court sustained defendant’s objection to this comment and gave a curative instruction, telling the jury to “[rjemember my admonition. Statements of the lawyers are not evidence in the case.” In addition, the court’s final jury instructions included an admonition that statements of counsel were not evidence.

¶ 7 The jury found defendant and his co-defendants guilty of aggravated burglary. Defendant was also found guilty of possession of a firearm by a restricted person. At sentencing, the court determined that the group crime penalty enhancement statute, Utah Code Ann. § 76-3-203.1, was constitutional and ordered that it be imposed against the defendant for the aggravated burglary offense. The court sentenced defendant to an indeterminate term of five years to life. The court applied the enhancement statute, sentencing defendant to an additional nine years.

¶ 8 Defendant argues on appeal that: (.1) the trial court erred in denying his motion to suppress the admission of the weapons; (2) the trial court erred in admitting evidence regarding the ammunition and firing status of the SKS assault rifle and twelve-gauge shotgun; (3) the trial court should have declared a mistrial when the prosecutor selectively chose to dress an in-custody witness in jail attire; (4) the comments by the prosecutor in closing argument amount to reversible error; (5) the cumulative effect of the errors warrants reversal; (6) the group crime penalty enhancement statute is unconstitutional and therefore should not have been imposed; and (7) the trial court erred in failing to correct inaccuracies in the presentence investigation report. We will address these issues in turn.

ANALYSIS

I. MOTION TO SUPPRESS

A. In General

¶ 9 First, defendant challenges the trial court’s denial of his motion to suppress the admission of the two assault rifles and three handguns found in the two vehicles. “We review the factual findings underlying the trial court’s decision to grant or deny a motion to suppress evidence using a clearly erroneous standard.” State v. Pena, 869 P.2d 932, 939 n. 4 (Utah 1994). However, we review the trial court’s conclusions of law based on these findings “for correctness, with a measure of discretion given to the trial judge’s application of the legal standard to the facts.” State v. Moreno, 910 P.2d 1245, 1247 (Utah Ct.App.1996); see Kaysville City v. Mulcahy, 943 P.2d 231, 233 (Utah Ct.App. 1997) (indicating “whether specific set of facts gives rise to reasonable suspicion is a determination of law and is reviewed non-deferentially for correctness” (citation omitted)).

¶ 10 A car stop and investigatory detention by police of the car’s occupants constitutes a “seizure” under the Fourth and Fourteenth Amendments.

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Cite This Page — Counsel Stack

Bluebook (online)
2000 UT 35, 999 P.2d 7, 392 Utah Adv. Rep. 3, 2000 Utah LEXIS 41, 2000 WL 313216, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-kohl-utah-2000.