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State v. Smith

Court of Appeals of Utah

August 22, 2019

State of Utah, Appellee,
Brandon Perry Smith, Appellant.

          Fifth District Court, St. George Department The Honorable G. Michael Westfall No. 101501945

          Gary W. Pendleton, Mary C. Corporon, and J.D. Lauritzen, Attorneys for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.


         ¶1 Brandon Perry Smith appeals his conviction of murder. We affirm.


         ¶ 2 Smith was acquainted with Paul Ashton, who had a history of violence and dealing drugs. Ashton had two roommates, Roommate and Boyfriend. While living with Ashton, Roommate and Boyfriend had been visited by another individual (Friend) who used illegal drugs with Boyfriend at Ashton's home. Ashton, who had become a drug informant following a previous arrest for drug possession with intent to distribute, contacted his law enforcement handler and informed him that he knew of two individuals the police might be interested in investigating. A few days later, Roommate and Boyfriend learned that Ashton was an informant. Boyfriend texted Friend to ask if he would help them move out of Ashton's residence. Friend and his girlfriend (Girlfriend) accompanied Roommate to Ashton's residence while Boyfriend stayed at another friend's home. In an effort to prevent Ashton from knowing that she was aware he was a police informant, Roommate told Ashton that the reason she was moving out so suddenly was that Boyfriend had been arrested.

         ¶3 Roommate's ruse apparently did not fool Ashton, however, because while Roommate, Friend, and Girlfriend loaded a truck with Roommate and Boyfriend's belongings, Ashton began texting Smith. Ashton told Smith that he needed "a piece" to "defend [himself]" because he had been "labeled a rat." Eventually, Smith agreed to help, arriving at Ashton's residence about forty minutes later with two guns. Smith was wearing his shooting gloves and entered the apartment complex stealthily from the back, anticipating trouble. He gave Ashton one of the two guns, which Ashton put in his waistband. Soon after, Friend and Girlfriend left with a truckload of belongings while Roommate stayed behind to continue packing. Ashton gave Smith a pipe wrapped in electrical tape and told him to knock Roommate out, explaining that "then there would just be two" to deal with when the others returned. Ashton also began cutting lengths from a piece of rope to tie them up with. Smith believed Ashton intended to "[tie] them up and [take] them out, like, in the desert somewhere and then-yeah." Despite Ashton's instructions, Smith did not hit Roommate because he did not think the pipe was "substantial enough" to knock her out.

         ¶4 When Friend and Girlfriend returned, they and Roommate began loading additional items into the truck. When they could not find Boyfriend's mountain bike, Roommate confronted Ashton and accused him of stealing it. She called him names and hit him in the face with a plastic tool kit. Ashton and Smith both pulled out their guns. Ashton shot Roommate in the head, killing her instantly. He then shot Friend in the shoulder. Friend fell to the ground and blacked out. By this time, Girlfriend had locked herself in the bathroom, and Ashton yelled at Smith to "go get her."

         ¶5 Smith broke the bathroom door open and hit Girlfriend in the head thirteen times with the pipe while Ashton waited outside the bathroom. Although Smith initially intended only to knock Girlfriend out, "that didn't work" and she was in "a lot of pain," so "somewhere along the line," Smith concluded that things had "gone too far" and he "might as well just" kill her. He slammed her head into the floor, choked her, and slashed her throat three times with a pocket knife he had brought with him. Ashton and Smith then fled. Girlfriend died from her wounds a short time later.

         ¶6 In the meantime, Friend had escaped and called the police. Police quickly caught up with Ashton and arrested him. Soon after, Smith turned himself in because he heard that the police were looking for him. At that time, Smith admitted that he had loaned a gun to Ashton but claimed that he blacked out after Ashton shot Roommate and Friend.

         ¶7 Officers picked up Smith and took him to the police station. Before questioning Smith, the interviewing detective (Detective) advised him of his Miranda[1] rights in the following exchange:

[Detective:] But you understand you do have the right to remain silent, that anything you say can and will be used against you in court? Okay. You have the right to an attorney and to have one present with you while you're being questioned- and if you can't afford one-
[Smith:] [I can't afford] one. [I can't] afford one.
[Detective:] Yeah. The courts will appoint you a lawyer if you really need one, okay?
[Smith:] Okay.
[Detective:] So-
[Smith:] If it came to that or-
[Detective:] Yeah. If it-you know, if it comes to that, but-so keep those in mind, you know, and go ahead and tell me what you want to tell me.

         Detective then proceeded to question Smith, who confessed to killing Girlfriend.

         ¶8 Smith was charged with aggravated murder and aggravated assault.[2] Prior to trial, he moved the court to suppress his police interview on the ground that his Miranda rights had been violated. Smith also moved the court to suppress a crime scene video and autopsy photos of Girlfriend. The court denied both motions.

         ¶9 Detective passed away before trial, but the State played the audio recording of his interview with Smith for the jury. The State also called as a witness the police officer who transported Smith to jail after his interview (Officer). Defense counsel sought to cross-examine Officer regarding a conversation he had with Smith in which he asked Smith "what he felt as he was committing the act of murder." Smith explained to Officer that "he felt he needed to complete the act because he didn't know what [Ashton] would do to him if he didn't." When Officer asked Smith "what he meant," Smith responded, "[Ashton] just shot two people. So I thought maybe he would shoot me." The State objected to this line of questioning as being beyond the scope of Officer's direct examination, and defense counsel agreed to defer questioning about the conversation until Smith presented his defense.

         ¶10 When it came time for Smith to present his defense on day five of the trial, he began by calling Officer as a witness, but the State objected on hearsay grounds to Officer testifying regarding his conversation with Smith. Smith asserted that the conversation should be admitted under the rule of completeness. See Utah R. Evid. 106. The court initially sustained the State's objection, but upon receiving further information that same day, it indicated that it would reexamine the issue if defense counsel provided additional relevant authority. Defense counsel did not raise the issue again until after the jury was excused on day seven of the trial. At that point, the court heard additional argument and took the State's objection to Officer's testimony under advisement. The next day, following further discussion of the matter off the record, the State withdrew its objection, and Officer was permitted to testify regarding his conversation with Smith.

         ¶11 Smith moved for a mistrial on the grounds that the delayed ruling had "an unfair effect upon the defendant." Because Officer's statement was admissible under the rule of completeness, Smith argued, the jury should have been permitted to hear that testimony at the same time it heard the audio recording of Smith's police interrogation. The court denied Smith's motion because it determined that any delay was invited by Smith, who did not argue that the rule of completeness was applicable at the time of ...

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