State v. Whitely , 100 Utah 14 ( 1941 )

I concur in the results, but only because it is somewhat difficult to determine what was in the mind of the trial judge at the time he found the defendant guilty, and under such circumstances in a criminal case it is better to grant the defendant a new trial than to speculate on what the lower court might have meant. However, there is a basis, not considered by the prevailing opinion, upon which the trial court's remarks at the time of rendering his verdict might be construed so as to reveal that he did not base his decision upon an application of the law erroneously conceived. Assuming, without deciding, that reasons given by a trial court in its decision of a criminal case come within the category of instructions to a jury in so far as determining whether the case was considered on a correct theory of the law, it is nevertheless difficult to see how the court could have had any other idea than that there continued throughout with the State the task of persuading the jury that the defendant was guilty beyond any doubt within reason — his remarks on the subject of alibi made at the time of rendering the verdict notwithstanding.

An alibi is nothing more than an element of defense. In all instances where the State's case may, to the jury's mind, be proved beyond a reasonable doubt, the defendant must introduce sufficient evidence at least to raise a reasonable doubt where none existed theretofore. Otherwise a jury may find the defendant guilty and he may or may not raise this reasonable doubt by a defense of alibi. In this sense defendant has a burden to shake a conviction and it is in that sense which the lower court may have used the term when he delivered the reasons for his judgment. And if the defendant succeeds in raising a doubt in the mind of the jury, he should be acquitted unless the State is able to overcome that doubt by other evidence as to defendant's guilt sufficient to rebut the defense evidence. However, the State does not have to disprove an alibi any more than the defendant has to prove it.

Whether this task of establishing a defense or infusing a doubt or overcoming what might be otherwise convincing proof is called "the burden of proof," "the burden of going forward," "the burden of establishing," or merely "the responsibility of defending" makes no difference. In any instance the defendant must, if he wishes to overcome the state's case (unless that case is so weak it does not require defense evidence), introduce some evidence to that effect. And that is what the lower court could have meant when he used the somewhat inapt language, "the burden is on the defendant to establish that alibi by competent evidence, and not on the State."

In its memorandum decision on motion for new trial, the court summarized the case thus:

"So at the time plaintiff rested its case, and considering the State's case with the bare denial of the defendant, as recited above, he Court was of the opinion that the positive identification of the defendant by Oviatt, coupled with the circumstance consistent with the other facts; and consistent with defendant's guilt, and inconsistent with his innocence,established the State's case beyond a reasonable doubt.

"The defendant relied upon an alibi.

"The Court cannot say that the defendant has by that alibioffered sufficient proof to establish a reasonable doubt that hewas not at Farmington at the time of the burglary, as against the other testimony in the case, established by direct and circumstantial evidence in the case."

Certainly if the State has proved the defendant's guilt beyond a reasonable doubt, and the defendant does not offer sufficient evidence thereafter to create some doubt, he should be found guilty.

If the above memorandum decision be taken into account in determining what the court meant when he stated to counsel that "if the State had to carry the burden of proof as against this alibi, and to show that the alibi was not true, I am in doubt if the evidence would be sufficient," a very much stronger case is made out for upholding the verdict. The defendant's proof in support of his asserted alibi did not require the State to prove it untrue or fail as a matter of law in its task of persuasion, since it may, regardless of the asserted alibi, have proved its case beyond a reasonable doubt. The judge may have concluded that there was, up to the point where the identification evidence was complete, a sufficient case made out to convict, and as a jury he thought that up to that point the defendant had been proved guilty beyond a reasonable doubt. He then takes the alibi evidence into account. He concludes that unless it is the duty of the state to introduce evidence that the alibi is not true the state has, as far as his fact-finding qualities are concerned, still carried its burden of duty to persuade. In other words, the judge in determining the fact, did not think the alibi evidence was sufficient to overcome in his mind the tentative conclusion that Whitely was the one the sheriff saw the night of the crime. Only in this sense did he mean that the defendant had not sustained his "burden of proof."

Stated in another way, the lower court could hardly have meant that if there was some evidence of identification and the defendant desired to contradict that evidence by affirmative evidence that he was elsewhere the court would take the position that, regardless of how weak the state's identification was, the defendant would have to establish such fact, either beyond a reasonable doubt or even to the satisfaction of the jury. Certainly the jury might, in a criminal case, disbelieve the alibi but still conclude that the state's identification was so weak that it had not fulfilled its duty of persuasion. To hold otherwise would mean that if the defendant once gave an alibi he would have to alibi himself out of even the weakest case the state might put up; that the duty would be on the defendant if he once tendered an alibi to convince the jury that it was true or he would be convicted regardless of the weakness of the state's case. Must we conclude that the learned trial judge had the latter view in mind? Might he not have meant that when the identification evidence and the alibi evidence were both in the State could rest without disproving the alibi by cross-examination or rebuttal evidence; and that if the defendant had not carried the burden of overcoming evidence which he thought was sufficient to convict the defendant would fail? The judge acting as jury may have concluded that defendant in this case had not overturned evidence which independent of the alibi was sufficient to convince him, the judge, that defendant was guilty — all reasonable doubts considered.

That simply expresses the process which goes on in every criminal case where the State introduces evidence which is convincing until the defendant introduces evidence which overcomes the convincingness of the State's evidence.

However, inasmuch as the correct statement of the law was made by the trial judge on motion for new trial at which time he may have been endeavoring to correct his statements made at the time he made his finding rather than endeavoring to explain what he meant theretofore, I agree that it is better that defendant be accorded a new trial.