Brown, Bradshaw and Moffat was founded by lawyers who shared a commitment to fighting for justice. The firm has grown, but the vision has never changed; and we have always been on the forefront challenging the existing state of the law. We are a litigation firm and extremely proud of the record we have generated by trying cases and challenging the power of the Government. Please take a moment and review a sampling of those matters we have handled and the substantive and real victories achieved for our clients.
Notable Cases
Casida v. Deland, 866 P.2d 599 (Utah App. 1993)
Convicted rapist appealed the denial of his petition for habeas corpus relief. The Court of Appeals held that: (1) district court’s finding that purported rapist’s reliability and credibility were doubtful was not abuse of discretion; and (2) district court’s finding that expert testimony was admissible at hearing on habeas corpus petition was not abuse of discretion. Affirmed.
Emig v. Hayward, 703 P.2d 1043 (Utah 1985)
Accused challenged his incarceration and extradition proceedings by successive petitions for writ of habeas corpus. The Third District Court denied accused’s final amended petition for habeas corpus and ordered accused’s surrender to demanding state, and accused appealed. The Supreme Court held that: (1) refusal to take evidence on issue of fugitive status in hearing on habeas corpus petition brought prior to issuance of governor’s warrant did not deny due process rights; (2) one week’s advance notice of hearing on habeas corpus petition was not inadequate; (3) there was no basis to disturb settled statement which constituted record on appeal; (4) loss of reporter’s notes from hearing on habeas corpus petition did not deny accused’s right to appeal; (5) incarceration of accused for almost two years without bail pending appellate review of denial of habeas petition did not deny due process rights; and (6) absent evidence that accused was not fugitive from justice, amended petition was properly denied. Affirmed.
Gutierrez v. Medley, 972 P.2d 913 (Utah 1998)
State sought to use the Subpoena Powers Act to coerce testimony and cooperation from potential witnesses to a murder committed in their home. It was this case that first defined the limitations of the Subpoena Powers Act and limited the State’s power to use the act.
State v. Basford, 799 P.2d 228 (Utah 1990)
Case defined the intent requirement for automobile theft cases in Utah.
State v. Belgard, 840 P.2d 819 (Utah App. 1992)
Defendant was convicted for possession of dangerous weapon by restricted person after bench trial. Defendant appealed. The Court of Appeals affirmed. Defendant sought writ of certiorari. The Supreme Court, 830 P.2d 264, reversed and remanded. On remand, the Court of held that: (1) police officer could knock on door of motel room as part of his investigation into theft of automobile without first obtaining warrant even if officer had probable cause before approaching unit to arrest defendant for stealing car; (2) police officer’s knock at motel unit door in order to investigate suspicious activity was not constitutionally intrusive; (3) seizure of gun in open view of police officer when defendant opened door to motel room was justified under exigent circumstances exception to warrant requirement; and (4) defendant failed to show that admission of handgun prejudiced outcome of his case in light of other evidence supporting conviction. Affirmed.
State v. Brooks, 833 P.2d 362 (Utah App. 1992)
Defendant was convicted of aggravated sexual assault and aggravated burglary. Defendant appealed. The Court of Appeals held that: (1) trial court has no affirmative duty to sua sponte engage in on-the-record colloquy with defendant at time of trial to ensure valid waiver of right to testify; and (2) trial court’s reasonable doubt instruction did not contain inappropriate language which reasonable juror might have interpreted as allowing finding of guilt based on degree of proof below that required by due process clause. Affirmed.
State v. Bush, 2001 UT App 10
Following denial by the district court of defendant’s motion to strike an amended information charging him with theft of lost, mislaid, or mistakenly delivered property, defendant petitioned for interlocutory appeal. Upon grant of defendant’s motion, the Court of Appeals held that: (1) state had authority, under consolidated theft statute, to amend information; (2) state did not lose authority to amend information, though first information charged defendant under a specific, rather than a general, theft provision; but (3) defendant was entitled to a new preliminary hearing following state’s amendment of information.
State v. Chambers, 709 P.2d 321 (Utah 1985)
Defendants convicted of burglary and theft, and they appealed. The Supreme Court held that instruction directing jury that possession of recently stolen property, in the absence of a satisfactory explanation, was prima facie evidence of theft by the person in possession of the property set forth a mandatory rebuttable presumption requiring the jury to find the element of theft unless the defendants persuaded the jury that such a finding was unwarranted and, as such, was unconstitutional as shifting burden of proof to defendants in violation of their right to a presumption of innocence. Reversed and remanded.
State v. Dibello, 780 P.2d 1221 (Utah 1989)
Defendant was convicted of second degree murder of his wife and defendant appealed. The Supreme Court held that: (1) evidence was sufficient to submit case to jury; (2) prosecutor properly called inconsistencies in defendant’s evidence to jury’s attention; (3) potential for unfair prejudice arising from admission of defendant’s statement, that he would kill wife if she ever left him, did not outweigh its probative value of reflecting defendant’s mental state; and (4) admitting portion of videotape into evidence that lingered on wife’s body and wounds, although erroneous, was harmless. Affirmed.
State v. Dutchie, 969 P.2d 422 (Utah 1998)
Juvenile defendant pleaded guilty to aggravated burglary and aggravated kidnapping. Juvenile appealed. The Supreme Court held that: (1) juvenile’s incriminating statements to police officer were voluntary, spontaneous, and not product of interrogation; (2) police officer’s questionnaire did not amount to interrogation; and (3) totality of circumstances supported trial court’s finding that juvenile waived his Miranda rights before giving a custodial confession. Affirmed.
State v. Hales, 2007 UT 14
Warren Hales had been represented by a public defender at trial. He had been convicted of murder and sentenced to prison. Brown Bradshaw and Moffat filed a motion for a new trial and uncovered new evidence which established that Mr. Hales had not committed the murder as alleged. The Utah Court of Appeals ordered that Mr. Hales be released from prison based upon the new evidence, and the Utah Supreme Court ordered a new trial. Upon remand, the State agreed to dismiss the case.
State v. Herrera, 993 P.2d 854 (Utah 1999), see also 895 P.2d 359.
This is the seminal case challenging the ability of the Utah legislature to eliminate the insanity defense. Defendant, who was charged with murder of his ex-girlfriend and two attempted murders, pleaded not guilty by reason of insanity and filed motions attacking statutory scheme for insanity defense as unconstitutional. The District Court denied motions and defendant petitioned for interlocutory review. The Supreme Court affirmed and remanded case for trial. On remand, the Third District Court accepted stipulated plea to murder charge and ordered defendant committed to state hospital, but on attempted murder charges, it found defendant guilty and mentally ill and sentenced him to concurrent terms of one to 15 years. Defendant appealed. The Supreme Court held that: (1) federal due process did require judgment of not guilty by reason of insanity for attempted murders based on allegation that defendant acted on an irresistible impulse; (2) due process and equal protection guarantees were not violated by a determination that defendant was legally insane in committing murder but legally sane when committing attempted murders seconds later; and (3) sentences on attempted murder convictions were not cruel and unusual under either the state or federal Constitutions. Judgment and sentence affirmed.
State v. Holmes, 774 P.2d 506 (Utah 1989)
Court ordered the suppression of drugs and charges were dismissed. The police had observed the defendant removing a roll of paper towels from her purse and stuffing them into the console of the car. Although cocaine was found in the paper towels, it had been found in violation of the constitutional rights of Ms. Holmes.
State in Interest of M.C., 916 P.2d 914 (Utah App. 1996)
State filed criminal information charging juvenile with aggravated robbery and firearm sentencing enhancement. The Third District Juvenile Court concluded that juvenile should stand trial as adult and issued transfer order. Juvenile appealed. The Court of Appeals held that transfer order was final order from which juvenile has appeal of right.
State v. Maestas, 815 P.2d 1319 (Utah App. 1991)
Defendant was convicted of burglary of a dwelling and theft, and he appealed. The Court of Appeals held that: (1) delay of 316 days between defendant’s arrest and trial did not violate defendant’s constitutional right to speedy trial; (2) arrest warrant was not required before defendant, a parolee, could be arrested by parole officer for parole violation; and (3) refusing to permit defendant to present alibi defense based on defendant’s failure to file timely notice of alibi witness did not violate due process. Affirmed.
State v. Medina, 738 P.2d 1021 (Utah 1987)
Defendant was convicted of second degree murder and he appealed. The Supreme Court held that: (1) defendant had waived challenge to Allen charge, and (2) any failure to object was a matter of trial strategy which did not amount to ineffective assistance of counsel. Affirmed.
State v. Menke, 787 P.2d 537 (Utah App. 1990)
Defendant was convicted of retail theft, and he appealed. The Court of Appeals held that: (1) police officers had reasonable and articulable suspicion that defendant was involved in shoplifting, warranting his prearrest seizure, and (2) officers’ search of defendant’s grocery bag was supported by plain view exception to warrant requirement. Affirmed.
State v. Mitchell, 779 P.2d 1116 (Utah 1989)
Defendant was convicted of first degree murder following jury trial and defendant appealed. The Supreme Court held that: (1) defendant preserved for appeal issue of admissibility of hypnotically enhanced testimony; (2) hypnotically enhanced testimony is inherently unreliable and inadmissible as evidence; (3) admission of hypnotically enhanced testimony constituted harmful error requiring reversal; and (4) incriminating statement of defendant inadvertently overheard by telephone operator was admissible. Reversed and remanded for new trial.
State v. Mitchell, 824 P.2d 469 (Utah App. 1991)
Defendant was convicted of first degree murder following jury trial and defendant appealed. The Supreme Court reversed and remanded. On retrial the defendant was convicted of manslaughter in the second degree. Defendant appealed. The Court of Appeals held that: (1) the probable cause statement provided sufficient firearm enhancement notice; (2) imposition of fine and second sentence was not more severe than original life imprisonment sentence; and (3) shackling defendant during trial was not abuse of discretion. Affirmed.
State v. Moore, 788 P.2d 525 (Utah App. 1990)
Defendant was convicted of sexual exploitation of a minor, dealing in harmful material to a minor, and distributing pornographic material. Defendant appealed. The Court of held that: (1) homemade pornographic videotapes were properly admitted despite defendant’s stipulation as to their contents; (2) informant’s audiotape of conversation with defendant was admissible; (3) search warrants obtained in connection with investigation of defendant were valid; and (4) common-law relationship between underage actor and fellow actor and their later marriage did not affect prosecution for sexual exploitation of a minor. Affirmed.
State v. Nelson-Waggoner, 6 P.3d 1120 (Utah 2000)
Defendant was charged with five counts of rape involving five different victims and separate trials were ordered on each count. Following jury trial on one count in which bad acts evidence from two other alleged victims was admitted to show modus operandi and lack of consent, defendant was convicted of rape. Defendant appealed. The Supreme Court held that: (1) bad acts evidence in form of testimony of other victims regarding circumstances of their alleged rapes was offered for proper noncharacter purpose of showing lack of consent; (2) evidence was relevant; and (3) probative value of evidence was not substantially outweighed by its danger of unfair prejudice. Conviction affirmed.
State v. Nielsen, 727 P.2d 188 (Utah 1986)
Defendant was convicted of possessing a controlled substance with intent to distribute for value, and he appealed. The Supreme Court held that police officer’s false representation in application for search warrant was not material to magistrate’s finding of probable cause. Affirmed.
State v. Parker, 834 P.2d 592 (Utah 1992)
Utah Court of Appeals ordered the suppression of evidence finding that the police officer was not justified in continuing to detain the defendant.
State v. Pearson, 943 P.2d 1347 (Utah 1997)
Defendant was convicted of aggravated murder in connection with shooting of police officer during automobile chase, and he was sentenced to term of life imprisonment with possibility of parole. Defendant appealed. The Supreme Court held that: (1) denial of motion for change of venue was not abuse of discretion; (2) defendant lacked standing to challenge constitutionality of felony murder statute; (3) trial court’s refusal to give instruction on manslaughter was at most harmless error; (4) evidence of prior drug incident in Indiana was admissible; (5) prosecutorial misconduct did not warrant reversal; and (6) expert testimony regarding simulation experiment was properly excluded. Affirmed.
State v. Pearson, 985 P.2d 919 (Utah App. 1999)
Defendant was convicted of failure to disclose transaction to government employer, and theft of services. Defendant appealed. The Court of Appeals, held that: (1) jury was not fairly instructed on the mens rea requirement for failure to disclose transaction to government employer; (2) there was insufficient evidence to support conviction for failure to disclose; but (3) evidence supported conviction for theft of services. Affirmed in part, and reversed in part.
State v. Penn, 2004 UT App 212
Physician had been represented by another law firm at trial and convicted of Unlawful Possession of a Controlled Substance. Brown Bradshaw and Moffat filed an appeal and got the conviction reversed. The Utah Court of Appeals remanded for a new trial based upon a failure to give a Miranda warning and an improper and prejudicial jury instructions.
State v. Schweitzer, 943 P.2d 649 (Utah App. 1997)
Defendant was convicted of aggravated assault and stalking. He appealed. The Court of Appeals held that: (1) the trial court acted within its discretion in imposing consecutive sentence, and (2) the trial court lacked authority to order that all of defendant’s property be liened and sold to satisfy restitution order. Affirmed with modifications.
State v. Stettina, 868 P.2d 108 (Utah App. 1994)
Defendant was convicted of kidnapping and forcible sexual abuse. Defendant appealed. The Court of Appeals held that: (1) court properly imposed consecutive sentences that exceeded 30 years when aggregated with defendant’s previous sentence, and (2) trial court correctly sentenced defendant for both kidnapping and forcible sexual abuse. Affirmed.
State v. Thurston, 781 P.2d 1296 (Utah App. 1989)
Defendant was convicted of two counts of distribution of a controlled substance and sentenced to one to fifteen years in prison. Defendant appealed. The Court of Appeals held that: (1) prosecutor’s agreement to make sentencing recommendation of probation as part of plea bargain agreement did not bind law enforcement agency to same recommendation; (2) defendant’s plea bargain agreement was not breached by investigating officer’s sentencing recommendation; and (3) defendant could not withdraw his guilty plea. Affirmed.
State v. Troyer, 910 P.2d 1182 (Utah 1995), see also 866 P.2d 528
State appealed from orders of the Third District Court granting defendant’s motion to suppress evidence derived from custodial interrogation, defendant’s statements to Seattle police officers, DNA evidence, and testimony of prison inmates. The Supreme Court held that: (1) defendant’s statements to police during interrogation was not result of coercion, in violation of Fifth Amendment; (2) failure of police to give defendant Miranda warnings prior to questioning did not require suppression of statement of defendant’s sister; (3) defendant’s statements, taken in violation of his Miranda rights, could be used by state for impeachment purposes; (4) prejudicial effect of evidence that defendant had told police officer that he had escaped from prison and that he was “getting nervous” because people were questioning him about attempted rape of a 60-year-old woman outweighed its probative value; (5) state’s decision to abandon its DNA evidence did not prejudice defendant, so that allowing state to present DNA evidence at trial would not violate defendant’s right to fair trial or implicate other due process concerns; and (6) both defendant and trial court, which detrimentally relied on state’s assurance that it would not use testimony of prison inmates at trial, precluded state from using inmate’s testimony. Affirmed in part, reversed in part and remanded.
State v. Tuttle, 713 P.2d 703 (Utah 1985)
Defendant convicted of first degree murder and he appealed. Following defendant’s escape from prison, the Supreme Court dismissed his appeal. Defendant was then returned to custody. The Supreme Court held that defendant was entitled to reinstatement of his appeal after he was returned to custody, absent showing that State was prejudiced by defendant’s absence. Appeal reinstated.
State v. Tuttle, 780 P.2d 1203 (Utah 1989)
Defendant was convicted of first degree murder and sentenced to life imprisonment. Defendant appealed. The Supreme Court, held that: (1) defendant lacked standing to claim that trial court erred in forcing him to waive his right to jury in penalty phase by denying his motion for nondeath-qualified jury; (2) hypnotically enhanced testimony should not have been admitted and defendant should not have been prevented from presenting expert testimony on reliability of such testimony; (3) errors with respect to enhanced testimony were harmless; and (4) although evidence was insufficient to establish that killing was heinous so as to support first degree murder conviction, evidence was sufficient to support second degree murder conviction.
Reversed and remanded.
Tuttle v. State of Utah, 57 F.3d 879 (10th Cir. 1995)
Defendant was convicted of first degree murder and he appealed. The Supreme Court of Utah reversed and remanded with instructions to enter conviction for second degree murder. Defendant filed federal habeas petition. The United States District Court for the District of Utah denied his petition, and he appealed. The Tenth Circuit Court of Appeals held that trial court’s errors in admitting witness’ post-hypnotic testimony and excluding expert testimony on unreliability of this post-hypnotic testimony, assuming that they were constitutional violations, were harmless. Affirmed.
State v. Vigil, 842 P.2d 843 (Utah 1992)
This case redefined what is required under Utah law to convict a person for attempted murder. The Utah Supreme Court reversed the trial court and found that there could be no crime of attempted depraved indifference homicide under Utah law.
United States v. Banta, 127 F.3d 982 (10th Cir. 1997)
Defendant pleaded guilty in the United States District Court for the District of Utah of bank fraud and aiding and abetting. Defendant appealed. The Court of Appeals held that: (1) It lacked jurisdiction to review claim that district court erred in failing to grant downward sentencing departure in fixing defendant’s loss enhancement level; (2) evidence supported determination that defendant intended to deprive bank permanently of vehicles purchased through fraudulently obtained loans; and (3) use of intended loss in determining increase in defendant’s base offense level for loss caused, under Sentencing Guidelines, was proper, even though vehicles purchased through fraudulently obtained bank loans secured those loans. Case affirmed.
United States v. Bradshaw, 787 F.2d 1385 (10th Cir. 1986)
Defendant was convicted in the United States District Court for the District of Utah of three counts of interstate transportation of stolen property and one count of conspiracy, and defendant appealed. The Court of Appeals held that: (1) trial court’s refusal to conduct evidentiary hearing in response to allegation of juror bias arising out of juror’s business relationship with government witnesses was not abuse of discretion; (2) refusal to conduct evidentiary hearing before denying motion for new trial on grounds of recanted testimony of witness was not abuse of trial court’s discretion, absent recanting affidavit from witness; and (3) evidence of overt act allegedly committed in furtherance of conspiracy after date which government witness claimed was end of conspiracy was admissible. Affirmed.
United States v. Redcap, 79 F.Supp.2d 1322 (Utah 2000)
Federal murder case was remanded by the 10th Circuit based upon an appeal of the judge’s failure to make specific finding regarding an upward enhancement in sentencing.
United States v. Franco, 981 F.2d 470 (10th Cir. 1992)
Defendant was convicted of drug charges involving firearm in the United States District Court for the District of New Mexico. Defendant appealed. The Court of Appeals held that warrantless search of defendant’s vehicle which uncovered firearm was permissible search incident to his arrest. Affirmed.
United States v. Lang, 405 F.3d 1060 (10th Cir. 2005)
Due to violations of the defendant’s Sixth Amendment rights, the case was remanded to the district court for re-sentencing consistent with United States v. Booker.
United States v. Mayer, 818 F.2d 725 (10th Cir. 1987)
Defendants charged with conspiracy to possess marijuana with intent to distribute and possession of marijuana with intent to distribute moved to suppress evidence. The United States District Court for the District of Utah found that search of airplane and hangar was justified as search at functional equivalent of border, and defendants appealed. The Court of Appeals held that evidence was insufficient to establish a reasonable certainty that airplane had just crossed United States-Mexico border so as to support finding that warrantless search was justified as search at functional equivalent of border. Denial of motions to suppress reversed, judgment set aside and cases remanded.
United States v. McLaughlin, U.S. District Court for the District of Utah, Case No. 2:04CR-00100DB. Defendant had been stopped by the police and a drug sniffing dog was brought in to search the vehicle. Narcotics were discovered, but the evidence was ordered suppressed and the case ultimately dismissed based upon the court’s finding a violation of defendant’s constitutional rights.
United States v. McRae, 81 F.3d 1528 (10th Cir. 1996)
After defendant’s motion to suppress cocaine seized following traffic stop was denied, defendant was convicted of possession of a controlled substance with intent to distribute. Defendant appealed. The Court of Appeals held that: (1) police officer’s traffic stop of defendant’s automobile was not unreasonable under Fourth Amendment; (2) police officer’s brief detention of defendant following routine traffic stop was supported by reasonable and articulable suspicion that illegal activity was occurring; (3) police officer had reasonable suspicion to frisk defendant for weapons; (4) defendant’s consent to search of automobile was voluntary; and (5) police officer did not exceed scope of defendant’s consent to search of automobile, even though officer pulled up carpet of trunk. Affirmed.
United States v. Nichols, 841 F.2d 1485 (10th Cir. 1988)
Defendants were charged with violations of the Comprehensive Drug Abuse Prevention and Control Act. Upon conviction, the United States District Court ordered exemption of defendants’ assets otherwise subject to forfeiture to extent necessary to pay reasonable attorney fees, and Government appealed. The Court of Appeals held that: (1) forfeiture statute did not exempt attorney fees, and (2) it was not unconstitutional to require defendants to forfeit assets that would otherwise be paid to attorney. Reversed and remanded.
United States v. Patterson, 41 F.3d 577 (10th Cir. 1994)
After conviction for possession of firearm after conviction for felony, defendant moved for new trial, and the United States District Court for the District of Utah granted the defendant’s motion. The Government appealed, and the Court of Appeals held that the district court did not abuse its discretion in granting motion for new trial in interests of justice to allow brother of defendant who was unable to testify at first trial to testify. Affirmed.
United States v. Romero, 360 F.3d 1248 (10th Cir. 2004)
Case reversed and remanded where defendant was mistakenly indicted, but where district court judge denied several government motions to dismiss and to allow defendant to withdraw his guilty plea, as well as defendant’s motion to compel government to comply with its agreement or to allow defendant to withdraw his plea.
United States v. Wagner, 994 F.2d 1467 (10th Cir. 1993)
Defendant was convicted, pursuant to a guilty plea, of possession of a listed chemical with intent to manufacture a controlled substance. Defendant appealed her sentence. The Court of Appeals held that: (1) sentencing court had to consider both the specific guideline for listed chemicals and the controlled substance guideline in calculating the base offense level and then impose a sentence reflecting the higher of the levels calculated under the two guidelines; (2) possession of a listed chemical is not a “controlled substance offense” within the meaning of the career offender guideline; and (3) a stipulation in the guilty plea providing for the application of the career offender guideline did not preclude defendant from claiming on appeal that she should not have been sentenced as a career offender. Remanded with instructions.
United States v. Wilkinson, 169 F.3d 1236 (10th Cir. 1999)
Defendant pleaded guilty to charges that he possessed videotapes and photographs depicting minors engaged in sexually explicit conduct. Defendant appealed. The Court of Appeals held that: (1) district court properly applied cross-reference in sentencing defendant; (2) defendant was held criminally culpable only for his conduct occurring within United States, even though he received enhanced punishment based on his production of materials at issue while in Thailand; and (3) defendant’s sentencing challenge was moot. Affirmed.