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Show , "jsm ' tilt o id i sssBBaaatassssssaacssssa itfisbfcKocins&fMli1 sse i In The Supreme Court Of The State Of Utah challenged one of the veniremen for cause. The p tart 'ctiSlfnji$ and the State removed from the list by two of it per'emptom the nftmta'dtfi the prospective jurors it had challenged, j Likewise, the defendante removed by peremptory challenge the name of the juror they had challenged for canee,v No claim is made by the defendants that by reason ef. the court's failure excuse the prospective juror they had challenged they; were compelled lipase the peremptory challenge might have used to strike another prospective name the from list. Defendants filled to show that any prejudice juror's to suited them by reason of the court's failure to grant their challenge for cause. 1 . thr TUCKETT. Justice: , HI The defendants were charged in the court below with 'the crimes of and rape robbery. Trial was had and a verdict of guilty was returned against the of defendants finding them 'guilty of rape and of robbery. Defendants ,each are here seeking a reversal of their convictions and for a new trial , Prosecutrix was a 19 year -- old college studentwho on the night of February 10( 1972, attended a social function on the college campus. $he testified that she left the campus at about 11 p. m. and while she was pio- ceeding towards her home she was followed by an old white automobile. During the course of the trial the court had directed that the third defendant be brought from the jail to the courtroom. The court stated for the record that this was done for the purpose of avoiding any delay should either, the State or the defendants need his presence. It does not appear that either the prosecution or the defense intended to call this man as a witness or that his presence was necessary. for any other purpose. Trial court apparently anticipated that the presence of the third defendant might become necessary. While it appears that this action did not serve a useful purpose, nevertheless the presence of that individual could nbt have prejudiced the defendants. The record does not disclose that die third defendant was identified to the jury or was anything said or done which would tend to connect him with the two defendants on trial. The failure of the court to grant the defendants' motion for a mistrial was not error. -- ' The occupants of the white automobile sounded its horn and drove alongside her compelling her to stop. The defendants who were occupants of the white car approached the automobile of the prosecutrix and one of them get in on the driver's side and the other the passenger side. Prosecutrix stated that they'had a gun and told her to. get in the middle. The defendants drove her automobile some distance followed by a third man in the white automobile. Prosecutrix's car was parked and they all proceeded in the white automobile. While in the'white automobile, defendants took money from the prosecutrix's purse and thereafter purchased gasoline and beer. While traveling in the white car the defendants placed a hat over the prosecutrix's face so that she see the route they were taking. However, the automobile did' was unable-tproceed upon a dirt road for sometime wheie it was parked. The prosecutrix testified that the defendants compelled her. by force and by threats to use the gun to have sexual intercourse with them of . trial and disputed the testimony that they and a third man saw Defendants testified prosecutrix. the prosecutrix in her automobile stopped at a traffic light,-- and they pulled alongside of her automobile and that one of them called to her and whistled and she waved to them. He further testified that they followed the prosecutrix's automobile and that she pulled over and stopped and that they stopped behind her. Defendant John Bautista went to the girl's automobile and talked with her a few minutes and she thereafter joined them in their automobile. They further testified that when they stopped to purchase beer the prosecutrix volunteered to pay part of die cost. The prosecutrix objected to the defendants drinking and driving and they thereupon drove to the place where the rape is alleged to have occurred. John Bautista admitted that he had intercourse with the prosecutrix but he testified that no force was used and that she submitted voluntarily. Jesse Bautista denied having intercourse with the prosecutrix. Defendants denied having or' using a gun to threaten the prosecutrix. The defendants testified during the glven-bythe- - - are here seeking The prosecutor in his summation to the jury at the conclusion of the evidence referred to the prosecutrix as the daughter ef a dentist and the .' daughter of a school teacher and that she was a college student, a religious girl and a virgin. And further along in his remarks the prosecutor pro- - . pounded the question . . . why should the prosecutrix go out'with a person not of her own race and a person she does not know who flags her down on the street. After a careful consideration of the record and after considering the entire remarks of the prosecutor in his summation we must conclude that they do not amount to misconduct or that the defendants' motion for mistrial should have been granted. The prosecutor in summing up his case before the jury as well as defense counsel has a wide discretion and is entitled to exercise considerable freedom in expressing to the jury his view of the evidence. 2 After a careful consideration of the entire record we find noerfor of sufficient magnitude to compel a reversal. Judgment of the court below is affirmed. WE CONCUR: E. R. Callister, a We will deal with these claimed errors in the order referred to above. The record reveals that during the voir dire examination of the prospective-jurorthe State challenged two of the veniremen for cause and the defendants s New Actions Murray City Court 615; Mary 6. Fletcher dba Certified Collection service -- vs- HILL; Ave.; $$1.8 1973 pltf.; SAM 1090 So. -- vs- ft VERONA HOLLIDAY; Ath East; $1.73 to pltf . ; Sep 13, 1973 f6l56; Mary S. Fletcher 6150 dba -- va- -- V8- 8060 So DAVID A. WHITLEY; Sep 13, 1973 KEMP -- va- JOHN ROBERT to i $H6.50 to pltf. 2789 So. 9050 Vest Sep 18,. pltf.i 6169; Valley -- va- Bank ft LOREN RYAN; 7381 Clr. 1973 $637.15 Trust Co Claret to pltf.; Sep 17 6191; interstate Collections WILLIAM A. ERSKINE dba BLIND CRAFTS OF UTAH; 826 So. Vest; $506.25; to Sep 13, 1973 -vs- Interstate 619;EXliEN CLARK; pltf.; So. 2920 Vest, V. Jordan; $867.09 to Pltf.; Sep 13, 1973 ALVA RUSH; pltf. 5325 So. 5th W. ; Sep 13, 1973 6156 ; Mary S. Fletcher dba Certified Collection Service -- vs- DALE W. GEURTS ft RICH HUISH; 798 E. 2700 to pltf.; ' So.; $60.55 13, I973 Sep 6157; Mary S. Fletcher dba Certified Collection service -- VS- XVERN 766 SO. Sep ft JUDY BRADLEY; 20 Vest; $61.77 to 13, 1973 6159; Mary S. Fletcher dba Certified Collection Service -- vs- B. HERBERT AEKINSON; Dee Park Dr.; $76.68 Sep 13, 1973 to 6167 pltf,; , Collections 750 6 -- VS- Pltf.; -- Vs- 20 S. Fletcher dba Mary $27.00 to 6166; Allied Collection Service, Inc. -- va- FELIX h ROSE MANZANARES; pltf,; Certified Collection Service ft PHYLLIS KEMP; 10273 Croc ua St., sandy; $72.7 Sep 18, 1973 to 6155; Seen-- ' Bureau, Inc. MAN; 1588 to pltf,; V. Sep .. Adjustment :)1, MARIE SHER- So.; $516.30 1973 73-0- 36 PREPARED Representative Richard J. Carling, 7th District BY: Attorney General Holmgren, Assistant Attorney General Vernon B. Romney, BY: Homer H.B. 129, which enacted Section U.C.A. 1953, as amended by the laws Is the Intent of of Utah 1973, with regard to expungement of criminal records, being accomplished? SUSAN WINGER; ft SUSAN BURT; 376 E. LARRY 615; 6165; Allied Collection Service, Inc. A. ft KEITH State of Utah September 26, 1973 QUESTION: Mary 3360 So.; $36.93 Sep 13, 1973 East, Sandy; $62.00 to pltf.; 5 6151 t Mary S. Fletcher dba Certified Collection Service 6157; Mary S. Fletcher dba Certified Collection service TOO Big $5.3 5073 Jolly St., Taylorsville; $7 .55 to pltf. ; Sep 13, 1973 - OPINION NO. REQUESTED S. Fletcher dba Certified Collection Service s -- VS- GURVITZ; 6900 BARRY Cottonwood Canyon Rd.; to pltf.; Sep 13, 1973 Certified Collection Service -- vsFAUSTIN P. MARTINEZ; 125 So. th East; $35.25 to pltf.; Sep 13, 1973 1. State v. Musser, 110 Utah 534, 175 P. 2d 725; Irvin v. Dodd, 366 U.S. 717. 2. Gates v. State, 90 Okla.Cr. 380, 214 P. 2d 451; State v. Dillon, 104 Ariz. 33, 448 P. 2d 89; State v. Brown, 35 Wash. 2d 379, 213 P. 2d 305. Sep 13f 1973 Certified Collection Service Mary -- vs- J. Allan Crockett, Justice Office of the Attorney General 81539; Mary S. Fletcher dba S. Fletcher dba Certified Collection Service 6l55; A. H. Ellett, Justice 61515; Meadowbrook Downs Apart ments -- vs- MARTIN k RIA ELTING 838, Roberta St.; $188.00 to 127 Illinois to pltf.; Sep 13 SANDRA Chief Justice F. Henri Henriod, Justice reversal on three grounds. Firstly, in the court's failure to excuse prospective jurors for cause; secondly; that the trial court erred in having a third defendant who was awaiting a separate trial brought into the courtroom during the trial of this cause while he was chained, handcuffed, unshaven and dressed in jail attire; and thirdly, that the prosecutor in his concluding argument to the jury was guilty of misconduct in referring to the defendants' racial and social backgrounds. The defendants Jr., See Opinion. CONCLUSION: Your letter dated August 24, 1973, recites that notwithstanding enacted In 1973, county clerks In sealing the records Section of persons pardoned under said section for criminal offenses are not sealing the Indexes which are open to the public Indicating the name of the Individuals convicted of prior crimes, and are still open to public view. provides that when a court judicially pardons a an order that all records In the petitioner's case enter "shall person It In the custody of that court, or In the custody of any other court, agency or official be sealed." Upon such pardon being granted, the petitioner stands as If never convicted. Section 7.5 In our opinion the words "all records" would Include every record In the custody of the county clerk pertaining to the Individual pardoned and would Include all Indexes, and every other record that would In any wise pertain to the case Involving the Individual pardoned. An Index containing the name of a convicted person would certainly be a record In his case. It would be the first record to which anyone would resort to gain Information concerning someone thought to have been charged with or convicted of a crime. The county clerks should not leave the name of the person pardoned In such an Index or In any other record open to the public. A separate Index should be maintained containing the names of convicted persons who have been pardoned and such Index sealed and open to Inspection only by court order as provided In said section. Respectfully submitted. Ci VERNON B. MMNEY Attorney General r. |