United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER
WADDOUPS UNITED STATES DISTRICT JUDGE.
the court are Defendant Misty Y. Angell's pending motions
for mistrial and for judgment of acquittal, both of which
were raised during the course of her trial. (Dkt. Nos. 79
& 85.) After a two-day trial, the jury found Ms. Angell
guilty of possessing, or aiding and abetting possession of,
stolen mail and of possessing methamphetamine. (Dkt. No. 92.)
The court now addresses each motion separately.
first day of its presentation of evidence, the United States
called Officer Steven Ray Rawson to the stand. (Dkt. No. 79.)
Officer Rawson testified that he was one of two officers who
spoke with Ms. Angell in the parking lot of the Walmart store
in Magna, Utah, after an eye witness reported seeing a
vehicle, matching the one Ms. Angell was entering, driving
slowly down a Magna street while a passenger got out and went
through mailboxes. Officer Rawson testified that mail was
found in the car below Ms. Angell's seat and that, after
being Mirandized, Ms. Angell took responsibility for the
mail. The officer paraphrased her statement as follows:
She said that they were going to [Walmart] and she decided to
get out of the car and go check mailboxes . . . . but she
said that she- we had determined it was over near that
location, Patrick Drive and off of 31st is where she
remembers, somewhere in there, and that she was walking and
checking mailboxes. And, you know, she remembers running from
the witness, I think . . . .
(Rawson Transcript p. 17.)
the course of Officer Rawson's testimony, the prosecutor
and witness had the following exchange:
Q So at the conclusion of this investigation, did Ms. Angell
ever follow up with you on it?
A Did she follow up with me?
Q Yeah. Did she ever call you to change her statement or-
(Id. at p. 22.) Before the prosecutor completed this
question, defense counsel objected and asked to approach the
bench. (Id.) While at the bench, defense counsel
moved for a mistrial “on the grounds that he is
commenting on the fact that-if she's under investigation,
she has a right to remain silent. And he's implying if
she did not follow up with him in some way, she might be
guilty . . . . That is a comment on her right to remain
silent . . . .” (Id. at p. 22-23.) After an
initial discussion at the bench in which the United States
opposed the defense's motion, the court excused the jury
so that the parties could fully argue the issue.
(Id. at p. 23.) After hearing their arguments, the
court posed options to the parties: that the court (1) grant
the motion immediately and declare a mistrial; (2) reserve
ruling on the issue, allowing the court to rule on it after
further instruction to the jury and briefing from the
parties; or (3) reserve the motion but give an immediate
curative instruction. (Id. at p. 26.) Ultimately the
court reserved ruling on the basis that the court could
adequately protect Ms. Angell's rights by proceeding,
issuing a curative instruction to the jury, and allowing the
parties to submit further briefing on the issue.
(Id. at p. 27.)
the jury had returned, the court asked the court reporter to
reread the questions at issue and instructed the jury to
completely disregard the prosecutor's most recent
questions and any answers and to understand that a person
under investigation has a right to remain silent and has no
obligation to correct any statement made. (Id. at p.
27-28.) The court further instructed that the jury was not to
draw any inferences about Ms. Angell's innocence or guilt
from the questions or any answer the witness may have given.
the first and second days of trial, each party submitted
briefing in support of its position. (See Dkt. Nos. 81 &
82.) In its brief, objecting to the motion, the United States
argued that this case is analogous to Greer v.
Miller, 483 U.S. 756 (1987), and that the motion should
be denied based on the facts that Officer Rawson never
answered the problematic question, that the court issued a
curative instruction, and that the prosecutor did not (and
would not for the duration of the trial) further pursue the
issue. (Dkt. No. 81.) Ms. Angell argued that the
prosecutor's questions constituted a “use” of
her silence in a manner that could not be cured. (Dkt. No.
trial then proceeded through the presentation of evidence
with no further comment on Ms. Angell's right to remain
silent. After the close of the government's case, Ms.
Angell rested without putting on any witnesses of her own.
Before closing arguments, the court gave each party the
opportunity to make additional arguments on the motion for
mistrial, which the defendant declined and the government
declined other than to emphasize to the court that review of
the transcript revealed ...