STATE v. POWELL, 2002 UT App 54

Case No. 20001114-CA.Utah Court of Appeals.
Filed February 22, 2002. (Not For Official Publication)

Appeal from the Fourth District, Provo Department, The Honorable Ray M. Harding, Sr.

Margaret P. Lindsay and R. Paul Kawai, Provo, for Appellant.

Mark L. Shurtleff and Jeffrey T. Colemere, Salt Lake City, for Appellee.

Before Judges Davis, Greenwood, and Orme.

MEMORANDUM DECISION
GREENWOOD, Judge:

Defendant asks this court to reverse her conviction because the trial court violated Rule 608(c) of the Utah Rules of Evidence by refusing to admit a letter (the Letter) into evidence that purported to impeach the testimony of the State’s witness, Brian Libbey. We affirm.

Under Rule 608(c), “Bias, prejudice or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by evidence otherwise adduced.” Utah R. Evid. 608(c). The right to introduce evidence that shows bias is limited by Rule 403. See State v.Hackford, 737 P.2d 200, 203 (Utah 1987). Rule 403 permits the exclusion of otherwise relevant evidence only “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Utah R. Evid. 403. Thus, for this court to reverse Powell’s conviction, we must be convinced that the trial court abused its discretion in refusing to admit the Letter, and that absent the error, “there is a reasonable likelihood of an outcome more favorable to the defendant.” State v.Dunn, 850 P.2d 1201, 1221 (Utah 1993).

To determine whether an error is harmless under Rule 403, this court must look at many factors, including,

the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence collaborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.

Hackford, 737 P.2d at 205 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 684, 106 S.Ct. 1431, 1438 (1986)).

While Libbey’s testimony was important to the State’s case, both the prosecution and defense agreed that Joann Ford’s testimony was more critical. During an in-chambers discussion between the trial judge and counsel, defense counsel remarked, “[T]he entire trial, weighs and turns on the credibility of Ms. Ford. She is the one who is going to come in and say that . . . the defendant was involved in the laboratory, and I think her credibility is the main issue in this case.” Ford’s testimony corroborated Libbey’s on every material point.

Furthermore, Libbey read the Letter’s numbered paragraphs to the jury and was thoroughly examined about any bias therein on direct, cross, redirect, and re-cross examinations. Libbey was also thoroughly examined about his plea bargain with the State in exchange for his testimony. Given the evidence presented, it is difficult to see how allowing the jury to refer to the Letter during deliberations would have changed the outcome of the trial. Therefore, even assuming the trial court committed an error, it was harmless.

In sum, because Powell cannot show that absent the alleged error there is a reasonable likelihood that she would have received a more favorable outcome, her conviction is affirmed.

WE CONCUR: James Z. Davis, Judge, and Gregory K. Orme, Judge.