State v. Maestas

560 P.2d 343, 1977 Utah LEXIS 1050

• Court: Utah Supreme Court
• Decided: February 7, 1977
• Docket: No. 13751
• Status: Published

Opinions

HENRIOD, Chief Justice.

Appeal from a second-degree murder conviction. Affirmed.

Defendant urges: 1) That one of the jurors was disqualified since he had talked to his son-in-law, a local telecaster, on two occasions, — once a few months before trial at about the time the homicide was reported in the media, and once, after he had been sworn as a juror but before any evidence was adduced; 2) that evidence of previous crimes erroneously had been admitted; and 3) that a cumulation of erroneous rulings as to evidence offered or admitted, amounted in itself to reversible error.

Treating the points on appeal in reverse, we conclude and hold as follows:

As to 3): The exception taken appears to be without merit, since the point, in large measure, addresses itself to numer-osity of the rulings, and not to specific errors of substance constituting prejudicially.

As to 2): The urgence here relates principally to testimony about a robbery committed a few days before the homicide in which the State claimed the victim was a knowledgeable witness, and whose testimony may have been damaging to defendant by way of identifying him as the robber,— thus pointing to a motive for the killing.

The rule cited by defendant in State v. Lopez,1 is not objectionable, but seems to be of little significance under the facts of this case, — particularly where the factor of “intent” looms large. We think a case more apposite and dispositive to be State v. Neal.2

As to 1): The venireman whose qualification is questioned, voluntarily sought out the trial judge, with his son-in-law, and apprised him of the conversations. The first conversation appeared to have been one that thousands may have indulged in talking about the reported events of the day, — much as people do at the dinner table. The second was a cautionary dialogue in which the son-in-law suggested the possibility or consequence of the first conversation as a disqualification. The matter was presented to the judge, as stated above, and without reciting the questions and answers of the parties, the trial court concluded as follows:

THE COURT: The court is of the opinion that Mr. Carpenter responded to the questions of the court and counsel honestly and to the best of his recollection yesterday and that upon being examined today fairly and honestly disclosed the conversation he had with his son-in-law at his shop last night and disclosed that because of this conversation he did recall an earlier conversation with his son-in-law where the matter was discussed. I think it is clear that . . . Mr. Carpenter himself formed no opinion regarding the case; that he has no opinion at this time except an opinion that he can try the case fairly and on the evidence introduced at the trial. He did answer yesterday that at the time of the offense he was aware of the matter being reported but that he had no opinions and no really present recollections of the occurrence. I think it’s fair to assume that he gave at the time and now gives no greater weight to any statement the son-in-law may have made to him than he did to other news reports at the time. Based upon the findings the court denies the motion for mistrial.

We believe the trial court’s determination to be one, under the facts here, that sustains a reasonable exercise of his discretion, as is his prerogative in such matters, as reflected in Brown v. U. S., 380 F.2d 477 (10th Cir.); State v. BeBee, 110 Utah 484, 175 P.2d 478; Lund v. 3rd Dist. Ct., 90 Utah 433, 62 P.2d 278; State v. Carrington, 15 Utah 480, 50 P. 526, distinguish: Remmer v. U. S., 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654.

ELLETT and CROCKETT, JJ., concur.

1 . 22 Utah 2d 257, 451 P.2d 772 (1969).

2 . 123 Utah 93, 254 P.2d 1053 (1953), pet. dn’d 1 Utah 2d 122, 262 P.2d 756; see also McCormick, Evidence, 2d Ed. sec. 190, p. 447.