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Show FRIDAY, JANUARY 11, 1974 TNI DAILY IICORD PAGE ELEVEN In the Supreme Court of the State of Utah 1953; and the subsequent charge of which he was convicted in this case is not "the same offense" but a different one, of forging and uttering a check 2 in violation of Section 1. It is basic that the twice in jeopardy rule protects against subsequent prosecution only for the same offense. 3 76-26-- Supplementing what has been said above, there is an even more fundamental ground upon which we base this decision: that the defendant, in full awareness of his rights, and with the advice of competent counsel, having moved and obtained a dismissal of the prior charge on technical grounds, is not in a position to urge the defense of double jeopardy. In the prior trial the following dialogue dismissal of the fictitious check charge: took place concerning the Defendant's Counsel: And I have consulted with you regarding this particular motion for a dismissal of this case, have I not? Mr. Harris: Yes, sir. error and either granted a mistrial, or a dismissal because of such error. When a person is charged with committing an act which the law has prohibited as an offense against the peace and dignity of the state (the public), he is entitled to be accorded those protections and defenses which are included in our concept of due process of law, including a fair trial by jury to determine his guilt or innocence. ? He should not be convicted of crime merely upon technicalities or foibles of the law; and by the same measure, he .should not be released on such grounds. The proper safeguarding of the interests of 4be defendant, and of the public, requires that they both be entitled to a determination of the merits. This, and nothing more, is what has been done in this case. has found In regard to the defendant's contention that he was denied effective counsel: we are impelled to remark that it is nothing less than shameful that our law seems to have degenerated to a point where whenever an accused is convicted of crime, the charge of incompetency of counsel is, with ever increasing frequency, leveled at capable attorneys who have given entirely adequate service, when the real difficulty was that he had a guilty client. In this respect also defendant had his entitlement of adequate representation by capable and conscientious counsel. 8 Mr. Barney: You understand that the state may still file a new charge on this case, and it may be that of forgery, which would carry a penalty of one to twenty years? Affirmed. No costs awarded. WE CONCUR: Mr. Harris: Yes. E. R. Callister, Jr. This is implemented by Sees. and U.C.A. 1953; similar provision in U. S. Constitution Amendment V. 2. See State v. Jensen, 103 Utah 478, 483, 136 P. 2d 949 (1943), to the effect that the offense of uttering a fictitious instrument is a separate and distinct offense from that of uttering a forged instrument. 3. See State v. Thatcher, 108 Utah 63, 157 P. 2d 258. Mr. Barney: Nevertheless it is your desire, and was and is your desire that we proceed on your motion to dismiss, and have your case dismissed at this time, is that correct? 1. 77-1-- 10 , Chief Justice 77-24-- 13, F. Henri Henriod, Justice ... ... A. H. Ellett, Justice R. L. Tuckett, Justice e.g., People v. Kelly, 132 Cal.App. 118, 22 P. 2d 526, where defendant's counsel in effect requested and agreed to a mistrial, he was precluded from pleading double jeopardy on subsequent trial. 5. State v. Lawrence, 120 Utah 323, 234 P. 2d 600. 6. See State v. Jaramillo, 25 Utah 2d 328, 481 P. 2d 394; and cf. State of Illinois v. Somerville, U.S. , 35 L. Ed. 2d 425 (1973), where, after a was declared, and over defendant's objection jury had been sworn, mistrial as to double jeopardy, he was convicted, and on appeal was affirmed. 7. See Sees. 10, 11 and 12, Art. I, Utah Const; Gallegos v. Turner, 17 Utah 2d 273, 409 P. 2d 386. 4. See, Mr. Harris: Yes. The Court: Motion granted. Inasmuch as the prior charge was dismissed on defendant's motion was any possibility of his being convicted, it was in accordance there before with proper and permissible procedure that the correct charge was filed and a trial had thereon. 4 The invariable rule is that if on appeal error has been found justifying a reversal, what the defendant is entitled to is another trial 5 There should be no difference where the trial court eliminating the error. 8. Alires v. Turner, 22 Utah 2d 118, 449 P. 2d 241. State of Utah, The asking of the question about which the defendant complains, and to which the trial court-verproperly sustained the objection, is certainly Counsel i Vernon B. Romney FILED we are made to wonder why the prosecuting attorney and be not to commended; David L. Wilkinson v. 1974 would ask it. Nevertheless, the processes of justice should not be distorted January 7, M. Reid Russell 1 The critical inquiry should simply for the purpose of censuring a mistake. be whether there is a reasonable likelihood that the incident so prejudiced the Jeffery Lynn Hodges, Defendant and Appellant. L. M. Cummings, Clerk jury that in its absence there might have been a different result. Due to his Counsel t Rita G Janes advantaged position and consistent with his responsibilities as the authority 8l8 26th St. , , in charge of the trial, the inquiry is necessarily addressed to the sound disCROCKETT. cretion of the trial court. He should view such an episode in the light "of 'the total proceeding, 2 and if he thinks that there has been such prejudice that to seeks his reverse convictions by a jury of Jeffrey Lynn Hodges there is a reasonable probability that the defendant cannot have a fair and t the crimes of robbery and assault with a deadly weapon committed at the impartial determination of his guilt or innocence, he should of course grant on the in Theater of 1972. His 12, contention Ogden May Egyptian night a mistrial. But inasmuch as this is his primary responsibility, when he has is that the prosecuting attorney improperly asked questions concerning his given due consideration and ruled upon the matter, this court on review should involvement in another crime which so prejudiced the jury against him not upset his ruling unless it clearly appears that he has abused his discretion. 3 that he was deprived of a fair trial. The defendant cites and places reliance on the cases of State v. Dickson, 4 There this court reversed convictions because the pro and State v. Kazda. On the evening mentioned a man (later identified as the defendant) secution had injected testimony concerning the defendant being implicated in approached the cashier's cage of the theater, pulled a pistol out of a sack other crimes, and where it appeared that the main purpose and effect was to and demanded the money. The cashier, Carolyn Todd, complied with the disgrace the defendant in the minds of the jury. There is an important differdemand and turned over about $138. As the man fled, the assistant manager, ence between those cases and this one. Here there was no such evidence, Mr. Gary Wall, came out of the theater and gave chase. He followed the because the court sustained the objection. It is conceivable that under some man through a department store and into an alley, when he turned and fired circumstances the asking of improper questions might by suggestion or innuthe pistol at Mr. Wall. Quite under standibly, this discouraged Mr. Wall endo have the effect the defendant contends. Yet if our rules were based on from the pursuit. such an assumption, there would be little need or incentive for the trial court to rule correctly on objections. ty Ronald Greenwood, an police officer who had observed the to the contrary, In the absence of the appearance of something-persuasivtwo men running and heard the shot, came to his assistance. The officer we assume that the jurors were conscientious in performing to their duty, and saw the defendant get into a "small white car" and drive away. Pursuant 'that they followed the instructions of the court. In addition to making the correct to communication with, and the aid of other police officers, the defendant ruling as above stated, the trial judge followed what we think is the well advised was within a few minutes apprehended in that car. He had therein what policy of not overemphasizing the matter by discussing it in the presence of the appeared to be the same money, in specie and amount, that had been taken jury. He allowed the motion to be made, and stated his ruling thereon, in from the theater, and the gun (a . 22 pistol) in a sack. He was arrested chambers. Then he included the following instructions- to the jury: and taken back to the theater where he was identified by Mr. Wall and Miss You should consider the evidence all together, fairly, Todd. impartially, and conscientiously. You should arrive at your verdict solely upon the evidence introduced before you at the The defendant testified in his own behalf. It was in effect an elsetrial and upon the instructions of the court. You should not where alibi: that he had been with friends at a local bar at the time of the consider or be influenced by any evidence offered and not accident. Further: that he had loaned his car, (the little white car) to a admitted by the court, nor any evidence stricken out by the him the prosecutor friend who had it during that time. In court. Emphasis added. asked him about his using the gun before. The particular question about Upon the basis of the circumstances as shown by this record as herein which the defendant complains was: recounted, we are not persuaded that the trial court was mistaken in concluding that there was no sufficient basis for believing that the defendant had been deIsn't it true, Mr. Hodges, that you have used that gun prived of a fair trial and a just result. Supportive of this conclusion is what we before and that you have used that gun to rob a Nancy Wilkinson "A felon should not 1. Reminiscent of Justice Cardoso's classic remark-thatat the Frosty Bear one month before? go free because a constable has blundered. 2. See State v. Kelback, et al. , 23 Utah 2d 231, 461 P. 2d 297, where a police stated: counsel Defense officer made an remark, but it was held not to be prejudicial error. 3. State v. Dickson, 12 Utah 2d 8, 361 P. 2d 412. Your Honor, I object to this as an attempt to bring in 4. State v. Kazda, 14 Utah 2d 266, 383 P. 2d 407 (1963). evidence, I suppose to bring in matters, not before this to be the sound and salutary policy of our law: that there should be regard not which matters have here today, court, not being tried no reversal of a conviction merely because of error or irregularity, but been resolved, matters which the State apparently doesn't only if it is substantial and prejudicial in the sense that in its absence there want to resolve. is a reasonable likelihood that there would have been a different result. 5 The court sustained the objection. However, on the basis of the foregoing Affirmed. No costs awarded. defense a a counsel made mismotion for the court's in chamber, incident, 5. Sec. U.C.A. (1953), requires that errors which do not affect trial, arguing that the improper asking of the question, even without an the of the parties be disregarded. See State v. Scandrett, essential ' rights answer, had cast such aspersions upon the defendant that they could not be 24 Utah 2d 468 202, P. 2d 639 (1970), citing Harrington v. California, 395 removed by sustaining the objection, nor by cautionary instruction. Defendant 250 to the that there should be no reversal if it appears beyond effect U.S. makes that same argument on this appeal. a reasonable doubt that the error was not thus prejudicial. Plaintiff and Respondent, No. 13266 Justice' . off-du- j - cross-examini- ng : 11 ill-advis- , 77-42- -1, ed |