STATE v. STUDHAM

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Docket Number

Nos. 17688, 17717.

Attorney(S)

Jo Carol Nesset-Sale, Salt Lake City, for defendant and appellant. David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.

Judges

PER CURIAM:

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Smart Summary

Factual and Procedural Background

On July 18, 1980, at approximately 2:00 a.m., the defendant emerged from a 7-Eleven store after using loud and abusive language during an unsuccessful attempt to purchase beer. Outside the store, the defendant had an altercation with a person using a public telephone and was then observed firing a handgun at a departing automobile. Police officers nearby heard the shots, responded immediately, saw the defendant discard the weapon under a car, pursued and arrested him, and retrieved the gun. The defendant was identified as a parolee from the Utah State Prison. The facts and identification were uncontested.

The defendant was convicted by a jury of possession of a dangerous weapon by a restricted person and aggravated assault. On appeal, the defendant challenged the trial court's denial of his motions for separate trials and to waive a jury trial on the first count but not the second.

Legal Issues Presented

Whether the trial court abused its discretion by denying the defendant's motion for separate trials on the two counts.
Whether the trial court erred in denying the defendant's request to waive a jury trial as to the possession charge but not the aggravated assault charge.

Arguments of the Parties

Defendant's Arguments

The defendant contended that the jury might be prejudiced by evidence of his prior convictions if the counts were tried together, justifying separate trials.
The defendant claimed his right to an impartial trial and due process was violated when his request to waive a jury trial on the possession count but not the assault count was denied.

Prosecution's Arguments

The prosecution argued that the defendant's motion to sever the counts was untimely under the applicable statute (U.C.A., 1953, 77-35-9).
The prosecution contended that the defendant's status as a parolee was an essential element of the possession charge, making any prejudice from joint trial minimal or justified.
The prosecution noted that waiver of jury trial requires court approval and prosecution consent, which were not granted.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. McCumber, 622 P.2d 353 (Utah 1980)	Statutory time limits on motions to quash and severance of charges.	The court distinguished McCumber because the statutory restrictions present then were not applicable here, and no constitutional due process violation was shown.
Johnson v. Zerbst, 304 U.S. 458 (1938)	Waiver of constitutional rights must be voluntary and knowing.	The court found no evidence that defendant waived rights involuntarily or in ignorance, so the waiver provisions applied.
Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir. 1980)	Standard for abuse of discretion in denying severance; constitutional right to severance is not absolute.	The court relied on Corbett to affirm that denial of severance was not an abuse of discretion under the facts.
United States v. Jamar, 561 F.2d 1103 (4th Cir. 1977)	Supporting authority for abuse of discretion standard in severance decisions.	Cited as part of the legal consensus that severance denials are reviewed for abuse of discretion.
Spencer v. Texas, 385 U.S. 554 (1966)	Concurrent trials involving habitual offender charges do not violate due process.	The court applied the principle that joinder of counts involving prior convictions does not inherently deny due process.
Singer v. United States, 380 U.S. 24 (1965)	Waiver of jury trial requires court approval and prosecution consent.	The court held defendant’s claim to waive jury trial without prosecution consent was without merit.

Court's Reasoning and Analysis

The court first addressed the defendant’s motion to sever the counts, noting the motion was untimely under the statute but emphasizing that constitutional rights cannot be defeated by procedural time limits unless due process is satisfied. The court found no showing that the defendant’s constitutional rights were violated or that he waived them involuntarily or unknowingly.

The court explained that the defendant’s status as a parolee was an essential element of the possession charge, so any prejudice from joint trial was not unfair or improper. Citing Corbett v. Bordenkircher and related cases, the court reiterated that denial of severance is reviewed for abuse of discretion and that the constitutional right to severance is not absolute.

The court further relied on Spencer v. Texas to support the proposition that concurrent trials involving prior convictions do not deny due process.

Regarding the defendant’s request to waive a jury trial for one count but not the other, the court held that neither federal nor state constitutions guarantee a right to waive a jury trial unilaterally. Both Federal Rule 23(a) and its Utah counterpart require court approval and prosecution consent, which were not present here. The court found no abuse of discretion in denying the waiver.

Holding and Implications

The court affirmed the trial court’s rulings, holding that:

The denial of the defendant’s motion for separate trials was not an abuse of discretion and did not violate due process.
The denial of the defendant’s request to waive a jury trial on one count but not the other was proper under the governing rules requiring court and prosecution approval.

The decision directly affects the parties by upholding the convictions and trial court’s procedural rulings. The opinion does not establish new legal precedent beyond applying existing standards for severance and jury trial waiver.

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STATE OF UTAH, PLAINTIFF AND RESPONDENT, v. CLYDE LLOYD STUDHAM, DEFENDANT AND APPELLANT. STATE OF UTAH, PLAINTIFF AND RESPONDENT,

PER CURIAM:

Defendant was convicted by a jury of possession of a dangerous weapon by a restricted person and aggravated assault. On appeal, defendant contends that the trial court abused its discretion by denying his motion for separate trials and later, by denying his request to waive a jury trial as to the first count in the information (possession) but not the second (assault).

In violation of U.C.A., 1953, 76-10-503.

In violation of U.C.A., 1953, 76-5-103.

On July 18, 1980, at about 2:00 a.m., defendant emerged from a "7-Eleven" store where he had used loud and abusive language in an apparently unsuccessful attempt to purchase beer. Once outside the store, defendant had an altercation with a person using a public telephone. Defendant was then seen firing a handgun at a departing automobile. Police officers in the vicinity heard the shots, responded immediately, saw defendant throw the weapon under a car, chased and arrested him, and then retrieved the gun. Defendant was identified as a parolee from the Utah State Prison. The facts were uncontroverted, and the identification positive.

Moments before the trial, defendant moved to sever the counts since the jury might be prejudiced by the necessary evidence of prior convictions. The prosecution pointed out that the motion was untimely under U.C.A., 1953, 77-35-9. It is conceded that even though there is a statutory time limit for asserting such right in writing, the statute cannot be used to defeat a person's constitutional right if the basic essentials of due process clearly are lacking. Even where a constitutional privilege has been waived, if it is shown that a person did so involuntarily or in ignorance of his rights, the constitutional protections may nonetheless be asserted.

State v. McCumber, Utah, 622 P.2d 353 (1980).

Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).

Neither of the foregoing principles apply in the instant case. State v. McCumber, supra, was decided at a time when the statute provided "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." The multiplicity of charges and criminal episodes that may have been confusing to a jury, in McCumber, and the restriction on time to assert one's right to a separate trial that existed at the time, are non-existent in the instant case. The charges in Johnson v. Zerbst, supra, based on numerous offenses arising out of four or more criminal episodes, are not similar to those in this case. There has been no substantial showing here that defendant and his counsel were unaware of or acted involuntarily in not complying with the waiver provisions of the Code. The motion to sever was therefore ineffective.

The basis for defendant's claim of prejudice in the denial of separate trials is that the jury in the aggravated assault trial would know defendant was a parolee and hence a felon, which would prejudice him. The status of "parolee" was implicit in the weapon possession charge and a necessary element for commission of the offense.

The defendant's contentions are undercut by the principles enunciated in Corbett v. Bordenkircher, 615 F.2d 722 (6th Cir. 1980), and the cases therein collated. There it was said that "a trial court will be overruled for failure to grant a severance for trial under Rule 14 [whose counterpart is U.C.A., 1953, 77-35-9] only if there has been an abuse of discretion." (Emphasis added.) The Court referred to language from United States v. Jamar, 561 F.2d 1103 (4th Cir. 1977), and others to the same effect. In addressing itself to the claimed constitutional right of severance, Corbett reflects the consensus of authority that such right is not absolute, with or without its waiver. In referring to Spencer v. Texas, 385 U.S. 554, 87 S.Ct. 648, 17 L.Ed.2d 606 (1966), the Court upheld a refusal to sever counts and said:

Under Texas law, a person prosecuted for the offense of being an habitual offender could be tried concurrently before the same jury on the habitual offender charge and also the pending criminal charge which, together with other crimes of which he had been convicted in the past, would make him such an offender. This meant that evidence of the conviction of prior crimes is presented to the jury that is also trying the pending charge. The Court held that such a procedure does not deny due process to a defendant so tried.

In the instant case, Kentucky was entitled, under the Spencer doctrine, to try Corbett as it did as an habitual offender and concurrently try him for the burglary charge (of which he was convicted) and to prove to the jury the two prior felony convictions.

* * * * * *

Accordingly, we conclude that, even if the joinder of counts for trial could be so egregiously prejudicial as to constitute a denial of due process, this is not such a case.

The defendant's claim that his rights to an impartial trial and due process were invaded, when his requested waiver of trial by jury was denied, is without merit. Although an accused is guaranteed a right of trial by jury, neither the state nor the federal constitution guarantees him a right to "waive" a jury trial. On the contrary, Federal Rule 23(a), Criminal Procedure, and its counterpart, U.C.A., 1953, 77-35-17, both allow such waiver only by the court's approval and the consent of the prosecution.

Singer v. United States, 380 U.S. 24, 85 S.Ct. 783, 13 L.Ed.2d 630 (1965).

The record reflects no circumstance that so clearly demonstrates an invasion of due process or waiver of rights such as to constitute an abuse of discretion on the part of the trial court.

Affirmed.