State v. Alvarado, 20120807–CA.

325 P.3d 116

758 Utah Adv. Rep. 4

STATE of Utah, Plaintiff and Appellee,

v.Adrian J. ALVARADO, Defendant and Appellant.

No. 20120807–CA.

Court of Appeals of Utah.

April 17, 2014.

Certiorari Denied Aug. 27, 2014.

Samuel P. Newton, for Appellant.

Sean D. Reyes and Marian Decker, for Appellee.

Senior Judge PAMELA T. GREENWOOD authored this Opinion, in which Judges J. FREDERIC VOROS JR. and STEPHEN L. ROTH concurred.¹

GREENWOOD, Senior Judge:

¶ 1 Defendant Adrian J. Alvarado appeals his four convictions of various drug-related charges. He raises several claims of error, each involving the State's midtrial disclosure of previously undisclosed and unanticipated evidence. We affirm.

BACKGROUND

¶ 2 On February 18, 2011, Agent Jared Francom, a member of the Weber–Morgan Narcotics Strike Force, learned from a second agent, Derek Draper, that drug dealing was suspected at a specified house in Ogden, Utah Agent Francom went to the house and conducted surveillance from his vehicle. As he watched, a red car arrived at the home, the male and female occupants of the car entered the house, and shortly thereafter they exited and drove away.

¶ 3 Agent Francom followed the car and observed a signaling violation. He then radioed for assistance to stop the car because he was in an unmarked car and wearing plain clothes. Officer Brett Connors responded and eventually stopped the car. Both officers exited their cars, and Officer Connors approached the driver while Agent Francom went to the passenger side of the car. The driver, Alvarado, told Officer Connors that he did not have a driver license. Officer Connors arrested Alvarado for this violation. Upon searching Alvarado incident to his arrest, the officers found a bundle of $1,850 in cash, which Alvarado claimed was from a tax refund.

¶ 4 During the arrest process, Agent Francom noticed a strong smell of marijuana coming from inside the red car. He asked the woman seated on the passenger side, Shelly Borrego, to step out of the car. When she did so, Agent Francom noted that the marijuana smell was even stronger. Agent Francom observed that Borrego was nervous and seemed to be hiding something. Agent Francom questioned Borrego as to whether she had anything on her, to which she responded that the officer could check her pockets. Agent Francom found nothing in Borrego's pockets, but he observed that she continued to act suspiciously, holding her arms over her middle. He asked her again about having something on her, at which point she took off her shoes and ran at Agent Francom. Agent Francom was able to restrain Borrego, and Officer Connors helped handcuff her. Officer Connors then also detected the marijuana odor.

¶ 5 While the officers were handcuffing Borrego, they saw a small duffel bag sticking out from under her jacket. Agent Francom opened the duffel bag and found grocery bags containing marijuana and a digital scale and another bag containing balloons, a funneling device, heroin, and psilocybin mushrooms. Borrego refused to talk about the drugs, and because Agent Francom suspected that the drugs really belonged to Alvarado, Agent Francom questioned him about them. Alvarado denied that the drugs were his or that he had any knowledge of them.

¶ 6 Although Alvarado denied any knowledge of the drugs found on Borrego, he expressed interest in helping the police find drug dealers so as to reduce charges against him and Borrego. He offered to help the police by arranging a drug buy with large distributors. Agent Francom arranged for Alvarado to meet with several strike force members and attempt to arrange a buy. Officer Connors then took Alvarado to meet with strike force members, including Agent Draper and Agent Lynn Wright. Agent Draper told Alvarado that the only deal available was to help Borrego and that Alvarado would have to go to jail regardless. During this conversation, Agent Draper told Alvarado that he needed to be honest. Alvarado then admitted that the drugs found on Borrego were his.

¶ 7 Alvarado spent several hours on his cell phone attempting to arrange a drug deal, while Agent Draper monitored those calls. Alvarado was unable to arrange a drug deal. While the attempts were in process, Agent Francom arrived and had a conversation with Alvarado, in which Alvarado admitted that he had planned to use the cash found on him to buy more drugs, identified the source of some of the drugs, and explained how to package heroin. Thereafter, Agent Draper asked Agent Francom if Alvarado had admitted to him that the drugs were his. Agent Francom said that Alvarado had not. Agent Draper then questioned Alvarado about the drugs, Alvarado and Borrego made eye contact, and Borrego then claimed ownership of the drugs. At this point, Agent Draper told Alvarado that they no longer had any deal, and the officers took both Alvarado and Borrego to jail.

¶ 8 Alvarado was charged with possession of heroin with intent to distribute, possession of psilocyn, possession of marijuana, and possession of drug paraphernalia. On the first day of trial, the officers involved testified about the house surveillance, the traffic stop, the discovery of the drugs, and Alvarado's subsequent admissions. The State also introduced evidence that a fingerprint matching Alvarado's was found on one of the grocery bags containing the drugs. In response, the defense presented testimony by Alvarado's aunt that she had given him $1,500 in cash from her tax return to buy a house. Borrego testified that the drugs were solely hers and that Alvarado had no knowledge of them. She also explained that she used grocery bags from her home and that Alvarado occasionally did shopping for her family.²

¶ 9 On the morning of the second day of trial, the State moved to admit, under rule 404(b) of the Utah Rules of Evidence and as proof of lack of mistake, testimony that Alvarado had sold heroin in a controlled buy just before the traffic stop at the house under officer surveillance. The prosecutor stated that he had just learned of this information the night before when speaking with Agent Draper. According to Agent Draper, he and Agent Wright had used a confidential informant to do the controlled buy at the house immediately before the traffic stop occurred, and Agent Draper had requested Agent Francom's assistance because he wanted to catch Alvarado with the drugs still on him. Agent Draper reportedly had not said anything about the controlled buy earlier because he wanted to protect the identity of the confidential informant who facilitated the buy.

¶ 10 The trial court did not immediately rule on the motion, but instead decided to wait to see whether Alvarado would testify and deny knowing anything about the drugs and paraphernalia found on Borrego. Defense counsel then requested, and was granted, ten minutes to confer with Alvarado. Subsequently, Alvarado testified, denying all knowledge of the drugs and paraphernalia found on Borrego. Before cross-examination, the State renewed its request to present evidence of the controlled buy. Defense counsel objected, arguing that the admission of the evidence would be unfair and prejudicial to Alvarado. Although clearly troubled by the late disclosure of the evidence, the trial court ultimately granted the motion to admit the evidence, reasoning, in part, that the evidence was not a surprise to Alvarado because he was involved in the controlled buy and could have told his counsel about it.

¶ 11 On cross-examination, Alvarado continued to deny knowledge of the drugs found on Borrego and further denied involvement in selling heroin prior to the traffic stop. Alvarado claimed that prior to the stop, he was at his fiancée's apartment and a friend came by to sell him a camera. The State then called Agents Draper, Wright, and Francom as rebuttal witnesses. Agent Draper described the controlled heroin buy and Alvarado's involvement in the buy. Agent Draper also testified that he overheard Alvarado agree to “front” a balloon of heroin to the confidential informant. Agent Draper testified that after the traffic stop, Alvarado admitted fronting the heroin and asked whether the confidential informant was working for the police. Agent Wright largely confirmed Agent Draper's testimony about the controlled buy and Alvarado's later statements concerning the heroin exchange. And Agent Francom testified that he had not known about the controlled buy but testified about his response to Agent Draper's request for assistance in surveillance of the suspected drug house. Defense counsel vigorously cross-examined the officers, highlighting weaknesses in their testimonies, revealing inconsistencies between their current testimony and their testimony given the day prior, and questioning why no report of the alleged buy had ever been submitted.

¶ 12 After both parties rested, defense counsel moved to dismiss based on a discovery violation under rule 16 of the Utah Rules of Criminal Procedure. The trial court denied the motion, determining that the prosecutor was unaware of the controlled buy evidence until the night of the first day of trial and that Alvarado should not have been surprised by the evidence. Thereafter, closing arguments were presented, with defense counsel continuing to emphasize the contradictory statements made by the officers and the lack of supporting evidence for the controlled buy.

¶ 13 The jury returned a guilty verdict on all four counts. The trial court denied Alvarado's motion for a new trial based on hearsay grounds. Alvarado timely appealed, raising other issues on appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 14 Alvarado first argues that the State committed a Brady violation when it failed to disclose certain exculpatory evidence before trial, see Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that the trial court should have accordingly granted his motion to dismiss. We review for correctness the legal standards applied by the trial...