State v. McCumber
State v. McCumber
Opinion of the Court
Defendant appeals his conviction by a jury, of one count of aggravated sexual assault,
At approximately 1:00 a.m. on the morning of Wednesday, May 9, 1979, prosecutrix Nichol was awakened from sleep by the presence of someone in the bedroom of her apartment in Salt Lake County, Utah. The assailant placed his hand over her mouth and threatened her with violence if she moved. Prosecutrix Nichol was unable to see her assailant’s face due to darkness, but heard him speak several short sentences regarding the presence of others in the apartment. The assailant placed a blouse over the eyes of the prosecutrix as a blindfold, following which he perpetrated three acts of rape on her person.
At approximately 4:00 a.m. on Wednesday, June 6, 1979, prosecutrix Morris, a resident in the same general vicinity as that of prosecutrix Nichol, was awakened by an assailant who put his hand over her mouth and threatened her with violence were she unwilling “to do what he said.” Prosecu-trix Morris was able to see the face of her assailant by reason of the light coming in from her window. She was ordered to turn around and not to look at him, the order being accompanied by a sharp, pointed object pressed to her side. She then told her assailant that she needed to go to the bathroom and was released. Upon reaching the bathroom, she turned on the light and turned to see her assailant standing in the hall. At this point, prosecutrix’s mother was awakened and called out, and the assailant fled.
Based upon a voice identification by pros-ecutrix Nichol, defendant was charged with one count of aggravated sexual assault. On the strength of a lineup and voice identification, coupled with identification of a coat belonging to defendant, on the part of pros-ecutrix Morris, defendant was charged with one count of aggravated burglary and one count of attempted rape. On September 10,1979, following a trial to the lower court sitting with a jury, defendant was found guilty on all three counts.
Defendant first assigns as error the trial court’s failure to grant a motion, filed subsequent to entry of not guilty pleas but prior to trial, to sever the counts of the information for separate trial. The trial court denied the motion on the grounds that a challenge to the form or content of the information must be made by motion to quash, and that, so viewed, defendant’s motion was not timely filed according to statute.
The Utah Code of Criminal Procedure states that “if the defendant does not move to quash the information or indictment before or at the time he pleads thereto he shall be taken to have waived all objections which are grounds for a motion to quash ....”
Defendant asserts, however, that the failure of the trial court to agree to a severance of the diverse counts of the information for trial denied him due process of law. While the fundamental right to due process may in fact be waived, such waiver may not be presumed absent a showing that it was knowing and voluntary.
We are aware that under Utah law, it is permissible to join in the same indictment or information two or more offenses which are of the same or similar character.
We also understand that severance of the various counts contained in an information rests within the discretion of the trial court, in the interests of the preservation of justice.
Defendant asserts that evidence relating to the photograph and lineup identification by prosecutrix Morris, together with her in-court identification of defendant as her assailant, should have been suppressed inasmuch as the photograph display and lineup were impermissibly suggestive.
Police identification procedures such as photograph displays, lineups, show-ups, and the like, do not deny the accused due process of law unless, under a totality of the circumstances, they are so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny the accused a fair trial.
In the instant case, defendant correctly observes that prosecutrix Morris had a very limited opportunity to observe her assailant. Her view of his face was very brief, and occurred in a darkened room immediately after she had been awakened from sleep. Such factors, however, although they may weaken the probative impact of the evidence offered, do not mandate suppression of the evidence in the name of due process without some showing that the identification procedures were themselves impermissibly suggestive. It is to be observed in this regard that the photographic display could not have been im-permissibly suggestive, as prosecutrix Morris failed, as a result thereof, to identify defendant’s photograph at all. Instead, she selected other photographs asserting that the individuals therein exhibited traits similar to those of her assailant. With regard to the lineup identification procedure, the defendant asserts only that the other individuals in the line were insufficiently similar to him in appearance. Such an assertion is dubious in light of the fact that defendant himself selected the other individuals to appear in the lineup. It is not the purpose of a police lineup to present a criminal victim with a procession of individuals so nearly identical as to make identification based on normal observation virtually impossible. The individuals appearing in the lineup complained of by defendant were not so different from him in appearance as to render the lineup impermissibly suggestive. As such, the admission of the lineup identification, and of the in-court identification (to the extent based thereon) were entirely proper.
Defendant next urges error in the trial court’s failure to suppress the admission into evidence of hair samples taken from his head during the process of the investigation. Specimens of head hair were found in the bed upon which prosecutrix Nichol was assaulted. Salt Lake County Sheriff deputies secured a search warrant for the purpose of extracting hair samples from defendant in order to make a comparative analysis. Defendant urges that the warrant was invalid, and therefore the taking of the hair samples was an unreasonable search and seizure in violation of his constitutional rights.
Defendant further alleges, however, that by being constrained to surrender the hair samples taken from him without his consent, he was forced to “give evidence against himself” in violation of Utah constitutional rights.
Defendant next asserts that the trial court erred in denying a motion in limine to exclude testimony relating to defendant’s prior criminal convictions. Observing that evidence of prior criminal convictions could come before the jury in the event that he elected to testify,
Defendant misconstrues the nature of the constitutional right in question. The Constitution affords an accused a choice: He may refuse to become a witness, or he may elect to take the witness stand and testify in his own behalf.
A criminal defendant is entitled to have a jury instructed on his theory of the case if there is any substantial evidence to justify such an instruction.
Reversed and remanded for further proceedings consistent with this opinion.
. In violation of U.C.A., 1953, 76-5^05.
. In violation of U.C.A., 1953, 76-6-203.
. In violation of U.C.A., 1953, 76-5 — 402 and 76-4-101.
.Defendant was charged in the same information with an additional count of aggravated sexual assault on the person of another individual, and with one count of attempted burglary. He was acquitted on both these counts.
.U.C.A., 1953, 77-23-10, as amended.
. U.C.A., 1953, 77-23-3(1 )(g), as amended.
. United States v. Drummond, 354 F.2d 132 (2nd Cir., 1965); People v. Navarro, 243 Cal.App.2d 755, 52 Cal.Rptr. 686 (1966); Huffman v. Alexander, 197 Or. 283, 251 P.2d 87 (1952); Norman v. State, 81 Okl.Cr. 78, 160 P.2d 739 (1945).
. U.C.A., 1953, 77-21-31, as amended.
. U.C.A., 1953, 77-21-44, as amended.
. Counsel'both for the state and for defendant devote a considerable amount of time and energy arguing whether or not evidence relating to the diverse allegations would be mutually admissible in proving other counts under Rule 55, Utah Rules of Evidence. The attempt to apply the mechanical rules of evidence to such a speculative situation would place the court in an untenable situation. It is enough to observe that, were a prosecutor to attempt the introduction of evidence relating to an unproven and uncharged crime (allegedly committed by the defendant) as proof of the commission, by the defendant, of a separate and unrelated criminal offense, the trial court would be justified in regarding the probative value of such evidence to be outweighed by its prejudicial and inflammatory effect, and in excluding it under Rule 45, Utah Rules of Evidence.
. Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967).
. Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972).
. Neil v. Biggers, supra; Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140 (1977).
. Amendments IV and XIV, Constitution of the United States.
. United States v. D’Amico, 408 F.2d 331 (2nd Cir.,1969); Bouse v. Bussey, 573 F.2d 548 (9th Cir.,1977). It is to be observed that the exception to the warrant requirement here applied is not that of a search incident to lawful arrest, the standards for which are set out in the case of Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). The standards for such a search could not extend to the hair on a person’s head.
. Consistent with our holding in State v. Van Dam, Utah, 554 P.2d 1324 (1976).
. Art. I, Sec. 12, Constitution of Utah.
. Amendment V, Constitution of the United States.
. Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967).
. Utah, 619 P.2d 315 (1980).
. Id.
. U.C.A., 1953, 78-24-9, as amended.
. Art. I, Sec. 12, Constitution of Utah.
. Id.
. U.C.A., 1953, 77-44-5; People v. Hite, 8 Utah 461, 33 P. 254 (1893).
. U.C.A., 1953, 78-24-9; State v. Bennett, 30 Utah 2d 343, 517 P.2d 1029 (1973), cert. den. 416 U.S. 992, 94 S.Ct. 2403, 40 L.Ed.2d 771; State v. Van Dam, Utah, supra, note 16.
. State v. Castillo, 23 Utah 2d 70, 457 P.2d 618 (1969).
. State v. Bell, Utah, 563 P.2d 186 (1977).
. Coca v. People, 154 Colo. 488, 391 P.2d 462 (1964).
Concurring Opinion
(concurring with comment):
I concur, but on the issue of hair samples taken from the defendant here without his consent, I rely on the grounds stated in the dissenting opinion of Justice Stewart, with which I concurred, in Hansen v. Owens, (Utah) 619 P.2d 315 (1980).
Reference
- Full Case Name
- STATE of Utah, Plaintiff and Respondent, v. George Wesley McCUMBER, Defendant and Appellant
- Cited By
- 61 cases
- Status
- Published