State v. Beverly

435 P.3d 160

STATE of Utah, Appellee,

v.Mark Anthony BEVERLY, Appellant.

No. 20160511

Supreme Court of Utah.

Filed November 29, 2018

Sean D. Reyes, Att’y Gen., Jeffrey D. Mann, Asst. Solic. Gen., Salt Lake City, for appellee

Nathalie S. Skibine, Salt Lake City, for appellant

Chief Justice Durrant authored the opinion of the Court, in which Associate Chief Justice Lee, Justice Himonas, Justice Pearce, and Justice Petersen joined.

On Direct Appeal

Chief Justice Durrant, opinion of the Court:

Introduction

¶ 1 Mark Anthony Beverly was convicted of rape and forcible sexual assault of his wife. He claims the two had consensual sex.

¶ 2 After a period of separation, Mr. Beverly moved into his wife’s home, where he slept on her couch, because he had nowhere else to go. One night he became enraged, entered his wife’s room, slammed the door, and demanded that she have sex with him. She refused his demands multiple times and cried during the incident. Eventually, she followed his instructions and engaged in sexual conduct. Immediately afterward, she notified the police that she had been raped and Mr. Beverly was arrested.

¶ 3 He now appeals his conviction on several grounds. First, he claims the trial judge violated his constitutional rights by commenting on the outcome of the O.J. Simpson trial to potential jury members during voir dire. Second, he claims the trial court abused its discretion in excluding evidence suggesting the possibility that his wife had sex with another man before the alleged rape occurred. Third, he claims the trial court abused its discretion when it admitted evidence about Mr. Beverly’s domestic violence in the past, and when it precluded him from asking about specific details of those instances on cross-examination. Finally, he argues that all the errors in this case cumulatively warrant reversal.

¶ 4 We disagree with each of his contentions. Mr. Beverly’s constitutional challenge to the trial judge’s comments during jury selection fails because it was not preserved below and he does not meet an exception to preservation. Additionally, the trial court did not abuse its discretion in excluding evidence about a possible second sexual partner, because it was offered for the incorrect purpose of impeaching the wife and would have been highly prejudicial. Furthermore, the trial court’s decision to admit instances of Mr. Beverly’s domestic violence against his wife was correct because it was offered for a plausible, non-propensity purpose and the court did not abuse its discretion in limiting the scope of cross-examination on these incidents. And lastly, the cumulative error doctrine does not apply, because only a single error occurred below. Accordingly, we affirm.

Background¹

¶ 5 In August 2014, Mr. Beverly had been married to his wife, S.B., for over twenty years. They had two children together, both of whom lived with S.B. Mr. Beverly and S.B.’s marriage was "very volatile." The two experienced periods of separation, and Mr. Beverly had been kicked out of the house on a few occasions. A few months before the incident, S.B. allowed Mr. Beverly to move back in and sleep on her couch because he had nowhere else to live. At that time, the two had not had a physical relationship for about two years.

¶ 6 On August 12, 2014, Mr. Beverly returned to S.B.’s house after being gone for several days. He was "very angry" and accused S.B. of cheating on him. He called her a "whore" and a "bitch" and yelled at her for sleeping away from him in a different room. S.B. then left for her work, where Mr. Beverly showed up a few minutes later and again began accusing her of cheating on him. He demanded to see S.B.’s emails, which she showed to him, and he eventually left.

¶ 7 That evening, S.B. returned home to find Mr. Beverly even angrier. She told her two sons to go to bed because "Dad’s on one." She then retired to her own room. When she was almost asleep, Mr. Beverly came into her room, slammed the door, and said, "you’re having sex with me tonight." She replied, "no, I’m not."

¶ 8 One of the sons, having heard the door slam, came out of his room to make sure Mr. Beverly wasn’t hurting S.B. The son listened outside S.B.’s door for a few seconds and returned to his room.

¶ 9 Mr. Beverly then took off his clothes and instructed S.B. to take hers off as well. She refused and began to cry. He then told S.B. to touch him and tell him she missed him and loved him. She eventually followed his instructions. He proceeded to touch her breasts and vagina with his hands while she cried quietly. He also got on top of S.B. and penetrated her vagina with his penis. She continued to cry. During this incident, he told her to "shut up, bitch," but then would say things like, "I miss you, I love you, tell me you love me." At one point he also said, "I should tie you up and let a bunch of ... mother F’ers fuck you."

¶ 10 Mr. Beverly ejaculated inside of S.B.’s vagina before climbing off of her. Not wanting to anger Mr. Beverly further, S.B. waited until he fell asleep and then called 9-1-1 to report that she had been raped. Law enforcement arrived and arrested Mr. Beverly. After his arrest, S.B. was interviewed by an officer from the Unified Police Department. She also underwent a sexual assault examination by a trained nurse.

¶ 11 Shortly after his arrest, Mr. Beverly was also interviewed by an officer. During the interview, Mr. Beverly stated that he had "penetrated [S.B.’s] vagina with his penis, [and] that he touched her breasts and her vagina with his hand." He "acknowledged that [S.B.] had said ‘no’ ... more than on[c]e," but that he had asked permission to kiss her, touch her legs, and rub her back and she said "yes." He also said that during sex "she was crying, and it was upsetting him, because at one point they used to be so close," and that "he would yell, ‘why—why are you crying? Why are you crying?’ " He then explained to the officer that he had told S.B. that "your pussy is mine and I’m going to have it." He also stated in front of another officer that "it’s a wife’s responsibility under the law of God, and he’s allowed to have sex with his wife," that it was the "right of a man to turn her on," and that "if he took time he could get her into the mood."

¶ 12 Mr. Beverly was subsequently charged with rape, a first degree felony; forcible sexual abuse, a second degree felony; and domestic violence in the presence of a child, a class B misdemeanor.

Testimony Concerning the Choking Incidents

¶ 13 At a preliminary hearing, S.B. testified that Mr. Beverly had committed prior acts of domestic abuse against her. Specifically, she testified that he had choked her on two specific occasions, once in November 1993 and the other in December 2004, and that he had threatened to kill her in the past. Following the hearing, the prosecution moved to admit these prior acts of domestic violence at trial to explain the wife’s conduct and state of mind during the alleged rape. The trial court granted the prosecution’s motion and admitted the evidence, concluding "that the proposed evidence is being offered for a non-character purpose that is relevant to this matter"—to show whether "the alleged victim was overcome by her fear for her safety" and "to demonstrate the victim’s state of mind during the sexual assault."

¶ 14 At trial, S.B. testified on direct examination that "[there had] been some times where [Mr. Beverly] physically harmed me, he’s choked me or threatened to kill me." S.B. did not testify about any specific instances of domestic abuse on direct. On cross, however, defense counsel proceeded to ask S.B. about the details of the November 1993 choking incident, but S.B. could not remember much besides the fact that she and Mr. Beverly were in a fight, and that he had choked her and threatened to kill her. Defense counsel then asked S.B. about an incident on New Year’s Eve 1993. The prosecution objected and the trial court required that defense counsel’s cross be limited to questions about the 2004 choking incident because the older incidents were "too old" and "no longer relevant." Defense counsel then proceeded to cross-examine S.B. about the 2004 incident, and S.B. admitted that she initiated an argument before that incident because she "suspected [Mr. Beverly] was cheating."

The Trial Court’s Comments to Potential Members of the Jury

¶ 15 Before trial, Mr. Beverly wrote a letter to the trial court asking the court to replace his appointed counsel because his counsel allegedly told him that he "must understand how ‘you being black and she (my wife) is white how this will look’ " to a jury. The trial court allowed Mr. Beverly’s counsel to withdraw and appointed him new counsel.

¶ 16 During the jury selection process, the trial judge spoke to the jury pool to pass the time while counsel for both sides reviewed the jury list. The judge explained to the jury pool the jury selection process and different strategies parties use when selecting a jury. He mentioned that many of these selection strategies, in his opinion, "border[ ] on witchcraft." He then proceeded to give an example of a selection strategy:

For instance, in the O.J. Simpson trial, which a lot of you obviously know about, the defense lawyers at that time paid some firm $150,000. And what the firm would do is they would pull people off of the street and then read them different arguments, and see how they reacted to those arguments. And then they gave the lawyers this perfect demographic of what the jury should look like so they would do well in trial.

The judge then explained how, in his experience as a prosecutor and as a defense lawyer, he believed "the whole [selection strategy] is baloney," and "that if I found a person that was open minded, that hadn’t had an experience similar to something like this," and was "intelligent," that he "always got a very good verdict that way."

¶ 17 The judge then described the evolution of Anglo-American jurisprudence, focusing on how cultures have...