State v. Boone

¶1(concurring in result):

¶2I do not share the view that defendant failed to raise a constitutional issue necessary to invoke the jurisdiction of this Court,1 and I therefore deem it inappropriate to dismiss the appeal. However, I would affirm the conviction and judgment of the trial court because defendant’s contention that he was denied a fair and impartial trial fails on its merits.

¶3In support of his contention that he was denied a fair trial when the judge altered his ruling excluding a witness from the courtroom, defendant relies upon Rule 43(f), Utah Rules of Civil Procedure, which provides for the exclusion of witnesses so that they may not hear the testimony of other witnesses. Defendant overlooks the fact that Rule 43(f) is made applicable to criminal cases by Rule 81(e), which conditions the application of the Rule to instances “where there is no other applicable statute or rule” and where its application “does not conflict with any statutory or constitutional requirements.” U.C.A., 1953, § 78-7-4 is an applicable and conflicting statute. It reads in pertinent part as follows:

[A]nd in any cause the court may, in its discretion, during the examination of a witness exclude any and all other witnesses in the cause.

¶4(Emphasis added.)

¶5In State v. Carlson,2 this Court determined the issue as follows:

Clearly, the exclusion of witnesses is discretionary with the trial court....

Even when properly invoked, the trial court retains discretion in the application *1116of the rule. It is specifically within the court’s discretion to decide whether a defendant will be prejudiced by permitting a witness to testify in the face of a violation of the rule. In the instant case, the court made the discretionary ruling to permit the state’s witness to testify, although the exclusion order had been violated.

This Court has held .that it will not disturb any decision within the discretion of the trial court, unless there is a clear showing of an abuse of that discretion. No such showing has been made in the instant case. Furthermore, the onus of showing wherein he has been prejudiced by a ruling of the lower court falls upon the defendant. Defendant in the instant case merely alleges prejudice without pointing to inconsistencies in the record or other evidence which would show wherein he has been prejudiced. Having failed in his burden, defendant cannot succeed in securing a reversal ....

¶6(Citations omitted.)

¶7In the instant case, defendant has failed to make a clear showing of an abuse of discretion on the part of the trial judge. Furthermore, he has failed to make a showing of prejudice which rises to the level that would reflect the denial of the constitutional right to a fair and impartial trial.