Opinion
Case No. 2:02-CR-289TC.
June 23, 2003.
ORDER DENYING ALL DEFENSE MOTIONS FOR JUDGMENT OF ACQUITTAL NOTWITHSTANDING THE VERDICT
This matter is before the court on various post-trial motions, filed both by the Defendant Tyrese Smith and by his counsel. Although the court recognizes that generally, when a defendant is represented by counsel, that defendant does not have the right to submit motions, this case presented unique circumstances which prompted the court to permit Mr. Smith to file motions on his own behalf. Accordingly, the court will consider the motions filed both by Mr. Smith and by his counsel.
For the reasons set forth below, the court denies the motions.
Mr. Smith's Motion
Mr. Smith contends that his arrest on the State of Utah homicide charge was illegal and therefore, this federal prosecution, which stems in part from that arrest, is also illegal.
The basis of Mr. Smith's claim is the fact that his arrest warrant was issued by the Board of Pardons because Mr. Smith was then on State parole. According to Mr. Smith, the Utah State Constitution gives the right to issue an arrest warrant only to a judge, based upon a finding of probable cause. Mr. Smith argues that the Utah Statute which gives the Board of Pardons the right to issue a warrant to arrest parole violators is unconstitutional.
Utah Code Annotated § 77-27-1 1 gives Parole Board members the right to issue warrants for parolees believed to have violated conditions of parole. The statute also gives the Board discretion to return parolees who have been found to have violated their parole to prison.
Although this precise issue has apparently not been treated by the Utah State Courts, other decisions by the State Courts make clear that the statutes governing the actions of the Parole Board are considered lawful. See Peterson v. Utah Bd. of Pardons, 907 P.2d 1148 (Utah 1995) (holding that under Utah Code Ann. § 77-27-5(3), decisions of the Board of Pardons are final and not subject to judicial review); Thomas v. State of Utah, 63P.3d 672 (Utah 2002) (same).
From this authority, the court concludes that the authority given to the Board of Pardons to issue arrest warrants is constitutional.
Mr. Smith's Counsels' Motion
This motion presents a challenge to the sufficiency of the evidence presented by the government in support of Count 1 and Count 2 of the indictment. These arguments are essentially the same as those raised by the Defense during the trial, primarily at the conclusion of the government's case. For the same reasons that the court denied the Defense motion at that time, the court DENIES the present motion.
IT IS SO ORDERED.