Andrews v. Morris
607 P.2d 816
Utah
1980
Check Treatment

*1 Under the specific case.1 in a punishment, petitioners the claims of

circumstances these reviewed in

should be qualitative dif- a consciousness

with imposed. the sentences

ference of initial response petitioners validity of the death

regarding the on deci- this court relied

statutes in by the United States Su-

sions rendered Subsequent issued in 1976.

preme Court mosaic, added to the have further

decisions pattern of basic emerges

from statutory The Utah

constitutional doctrine.

plan require- minimal with the

does not conform Supreme Court. of the United States

ments dissenting opinion in

My concurring and Brown, Utah, (1980), 607 P.2d 261

State my reasons for

sets forth in detail

conclusion. ANDREWS, Plaintiff

William Appellant, MORRIS, Warden of

Lawrence Prison, Defendant and

State

Respondent.

No. 16168. of Utah.

Supreme Court

Feb. )(cid:127) Carolina, 280, 305, Woodson v. North *2 corpus, An-

In his for habeas urges general two contentions: drews predisposed convict deprived of racial tensions because jury, impartial a fair him a trial sentence violates the that the death *3 Giauque of Caine, W. T. Richard John Specifically, support of the Constitution. Timo- City, Lake Giauque, & Salt Berman urges: Ford, Seattle, Wash., latter contention he plaintiff for thy K. appellant. and sentencing A. That Utah’s statutes6 Hansen, Gen., discretionary F. Atty. arbitrary Earl and im- permit B. Robert Wallace, Attys. Dorius, R. Asst. Robert penalty in violation position of the death and Gen., City, for defendant Lake Salt principles enunciated of constitutional respondent. 238, 92 in Furman 2726, (1972). 346 L.Ed.2d HALL, Justice: imposition of pattern B. That of (hereinafter Andrews Appellant, William in Utah and the United penalty “Andrews”), the order of appeals from of that the sentence death States reflects which dis- Judicial District Court Third arbitrarily imposed rarely so and re- postconviction his for missed discriminatorily as to violate constitution- petition challenged commit- lief.1 Said principles, again al cites Furman by shooting of death ment under Georgia. being in degree2 for first murder in the as C. That the of the Constitution the United violation Andrews, having upon he not (Andrews no violation of States. asserts personally taken life intended take although it affords the Constitution of Utah similar, protections). life, unconstitutionally if not more extensive cruel dis- proportionate the crimes. co-defendant, and a Dale S.

Andrews Pierre, triple were convicted of a murder D. That execution the sentence 1974, robbery April perpetrated on by shooting hanging pain inflicts death shop Ogden, at Hi-Fi Utah. The evolving inconsistent with standards of subsequent jury3 they verdict decency and is “cruel” “unusual.” be death was rendered and sentenced to below, argument In his to the court An- them to death court thereafter sentenced presented delineated the drews issue by shooting.4 Their unsuccessful new, significant develop- whether or not the affirmance this Court5 resulted ments of fact or law have occurred since and sentence and rehear- their conviction appeal which have taking direct ings peti- subsequently were denied. Their litigated now be created issues should tions for certiorari the United States litigated have been and which would not Court were also unsuccessful proceedings. He conceded that Each have since been denied. defendant issue, the issue as the constitution- racial corpus relief. com- now seeks habeas See statutes, sentencing and the ality of the case, panion Morris, Utah, Pierre v. whether issue death 812, also P.2d filed this date. U.C.A., 1953, 77-36-16, providing pursuant provisions in- Sought Rule 4. See for 1. by shooting, hanging, at 65B(i), fliction of Rules of Civil Procedure. the defendant’s election. U.C.A., 1953, 76-5-202, designating of- 2. said Andrews, felony. 574 P.2d 709 State v. as a 5. fense Pierre, Utah, State v. P.2d sentencing separate 3. with a Bifurcated trial U.C.A., U.C.A., (enacted proceeding provided and 207 76-3- 76-3-206 July, 1973). being imposed manner,” having fence is a fair upon one not should upon.9 to take raised and ruled The court life or intended had been personally taken life, substantially raised and addressed also observed: were appeal. the direct thing that me is the fact One disturbs that, regardless feeling capi- of our about further that a collater- Andrews conceded punishment, you tal it seems that what corpus may not by way of habeas al attack urging is that in situation where for, duplica- or a as a substitute be utilized an individual is convicted and sentenced Nevertheless, he appeal.7 tion of direct guess we should wait over a to death I there are certain constitution- contends that whether years period few and see or not adjudicated, and which rights yet al others that are so convicted and there are deliberately waived.8 not been being and then if it is not sentenced an evidentia- support request of his equal pattern then the imposed on an applicability ry hearing, urged stay man should have a and should have a *4 “new,” certain cases which he termed of something. I’m not sure I new trial or Florida, 430 among which were: Gardner v. willing give it theory that but I’m buy 1197, 349, 393 51 L.Ed.2d 97 S.Ct. U.S. I’m not sure that I some consideration. 14, Georgia, 439 99 (1977); Presnell v. U.S. right opinion have a to even voice an 235, (1978); L.Ed.2d 207 Woodson S.Ct. 58 question it. The is whether or not about Carolina, 280,, 96 North 428 U.S. S.Ct. v. that should con- there is a new issue be 2978, (1976); Roberts v. 49 L.Ed.2d 944 only sidered and the one that I can see is 633, 1993, Louisiana, 97 52 431 S.Ct. U.S. involving prosecutorial the one discretion Ohio, (1977); v. 438 L.Ed.2d 637 Lockett the death as it affects the of 586, 2954, 57 L.Ed.2d 973 98 S.Ct. U.S. so I’ll consider it penalty 584, (1978); Georgia, 433 and Coker v. U.S. 2861, (1977). 982 97 S.Ct. 53 L.Ed.2d following The court thereafter made thereon, conclusions, findings and based it had re- The trial court recited that petition: dismissed rulings Andrews’ and viewed this Court’s on ma- developments 1. No of fact or law remarked that Pierre’s direct legality terial to the determination every possibly issue that could “nearly constitutionality the conviction of except the raised in a case herein and sentence of the Petitioner or not the death sen- question of whether Utah, (3) penalty Smith, (1976); serves a com- Whether 7. Bennett v. 547 P.2d 696 Smith, Utah, (1976); pelling Maguire P.2d 697 state interest. v. 547 Turner, 96, proof penal- (4) 21 2d 440 P.2d 968 Constitutional standard of Brown v. Utah 284, Turner, (1968); Bryant ty phase 19 Utah 2d of bifurcated trial. v. (1967). publicity. (5) Prejudicial pre-trial 431 P.2d 121 effect of testimony. (6) Prejudicial hearsay effect of Noia, 391, Fay Relying upon 372 U.S. v. (7) dispro- of death was Whether 822, (1963) which set forth 9 L.Ed.2d 837 S.Ct. portionate and excessive relation to offenses placed by-pass” doctrine which the “deliberate committed. persuasion upon the burden of the state denied, supple- Although re-hearing a was by-pass of a consti- there had been a deliberate opinion of actual addressed the issue mental right. tutional napkin prejudice inci- in connection with the Andrews, v. 576 P.2d dent. See State in Pierre 9. The issues addressed this Court (1978). following: included the adopted ar- the basic constitutional penalty (1) Constitutionality of the death Pierre, guments and the issue as advanced light of Furman v. statutes viewed sequester was raised and the failure to 238, 2726, 33 L.Ed.2d 346 408 U.S. 92 S.Ct. Andrews, Although not raised addressed. 153, (1972); Gregg Georgia, 96 S.Ct. v. 428 U.S. (1) the constitution- also addressed: the Court Florida, 2909, (1976); Proffitt v. 49 L.Ed.2d statute; ality the stan- 2909, 49 L.Ed.2d 859 428 U.S. penalty phase proof applicable in the dard Texas, (1976); and Jurek v. trial; death sentence whether disproportionate in relation and excessive (2) Constitutionality automatic of the lack of the offenses committed. appellate review. This filing traditionally applied Court has a re- Petition- have occurred since doctrine, strictive waiver similar to Supreme appeal er’s direct doctrine of the federal courts common law Court’s decision on Court and that Noia,11 Fay consistently and has appeal. by way held a attack collateral regarding the consti- All the issues corpus may habeas not be utilized as a processes for death sen- tutionality of the of, for, duplication a substitute direct law, the constitution- tencing under Utah Further, on appeal. issues not raised direct in Petition- sentences ality of raised, appeal, but that could been case, any alleged the effect er’s barred.12 publicity or influences on Peti- prejudicial Turner,13 proper scope Brown raised or could trial which are tioner’s upon use cor- and limitations of habeas by this Petition are the have been raised were pus after conviction summarized as: raised in issues that Petitioner same corpus] It is not a sub- [habeas appeal the Utah Court. direct properly stitute for and cannot be treated that Utah’s death 3. Petitioner’s claim regular appellate review [citation being arbitrarily applied law is extraordinary remedy It is an omitted]. discriminatorily fails to state a claim properly only which is invocable when the granted could be on which relief jurisdiction person court no over Moreover, hearing need be held. offense, requirements or where the raised petitioner could and should have disregarded law have been so appeal. issue on direct *5 and party substantially effectively de- identical 4. Constitutional issues law, nied where process due or some appeal raised and decided on direct those such is shown that it would be un- fact again pro- in collateral cannot be raised conscionable not to re-examine con- ceedings. Turner, [Citing supra, v. Bryant viction. challenges to the 5. Constitutional . footnote 7.] pattern of of a criminal stat- application appears entirely Utah law14 consist of a ute or the excessiveness criminal Fay evolving ent with the federal law since which were not but could Noia. In v. v. Stone Powell15 appeal direct cannot be been raised on prisoner held that a state who asserted that proceedings. through raised collateral prejudiced by trial been admis an procured illegal sion of evidence in prin- Andrews’ assertions of error consist seizure be denied federal search and should afford cipally of the court’s failure to trial show he habeas relief unless he could that evidentiary hearing its and failure opportunity had been denied a full and fair pro- law which he asserts apply new case litigate that in the state court.16 claim corpus habeas relief. vides a basis for However, underlying issue further Wainwright Sykes17 The case of v. ex- is, or emerges, and that whether Wainwright v. pressly Fay limited Noia. in Utah having waiver doctrine heretofore followed matter do addressed a factual viable, has whether it been di- with the to make remains failure defense counsel objection 65B(i).10 contemporaneous admis- by said Rule minished 501, Williams, Supra, In 425 10. 1. 16. accord: Estelle U.S. footnote 1691, 126 96 S.Ct. L.Ed.2d Fran Supra, 11. 8. footnote Henderson, 536, 1708, cis v. 96 S.Ct. (1976). 48 L.Ed.2d Supra, 12. footnote 7. Id. 2497, 17. 433 U.S. (1977). Supra, footnote 6. 15. 428 U.S. 49 L.Ed.2d question in violation We turn now to the inculpatory

sion of statements as to the law, rights. Under Florida said propriety of Miranda of the trial court’s order of dis- waiver object failure to constituted a evidentiary hearing. missal without an again through post- right to raise the issue initially petition We note for The court reversed proceedings. conviction language relief is drawn conclusional procedur- that the the circuit court and held lacking support factual data to its al constituted a waiver that would default allegations, contrary to the mandate of said system. to the federal Thus it is extend 65B(i), pertinent part Rule reads Wainwright establishes a “cause seen follows: prejudice” test of waiver narrower (2)The complaint [petition] “knowing intelligent” stan- than the plain shall set forth and concise terms Noia, places the Fay dard of burden constituting the factual data each and persuasion upon petitioner. every complainant manner in which the Wainwright was bn The obvious focus of rights any claims that constitutional were convictions, a wor- finality the need for complaint violated. The shall have at- endeavor, long recognized and focused thy affidavits, copies tached thereto of rec- upon by this Court. ords, supporting or other evidence 65B(i) pertains portion of Rule allegations adjudication prior of issues reads as fol- fact, petition “adequate” seeks time lows: briefing, discovery, preparation thereon, hearing yet hearing on the complaint further state shall petition proceeded motion to dismiss constitutionality of his legality objection request without for continu- or confinement has not al- commitment ance. ready adjudged prior been in a habeas Spinkellink v. Wainw The case of corpus proceeding; or other similar right18 proposition for the stands complainant shall have instituted if affirmatively appears where it from the court, similar petitioner that a is not entitled to *6 federal, state within the of or State writ, evidentiary hearing the an is unneces complaint, he shall so state in his Hence, petition legal sary. if the raises and shall set forth the reasons for the only, evidentiary hearing questions In denail of relief in such other court. fully develop underlying the facts would be case, apparent such if it is to the court pointless, required. and is not proceeding which the under this Rule is legality instituted that the or constitu- case, hearing In the on the instant already has tionality of his confinement was held on Novem the motion to dismiss prior proceedings, adjudged been in such 30, 1978,some twelve months after the ber the court shall forthwith dismiss 25, 1977, the con November affirmance of notice thereof complaint, giving written appeal. We viction and sentence on direct further by complaint, mail to the and no time to assemble adequate deem that to be proceedings shall be had on such com- postconviction pro pertinent all data for plaint. [Emphasis added.] clearly the ceedings. Andrews burden foregoing provisions to deem the We granted, be showing why of relief should waiver as be consistent with the doctrine of including raised could not why the issues they and that heretofore followed Utah regard appeal. have been raised on In this way have in no diminished said doctrine. and thus failed to his was deficient application of We also deem the continued state a claim. assuring of the doctrine as a fair means Notwithstanding foregoing de-. the finality any sacrifice of appeals of without termination, the proceed we now to address rights. constitutional cert, (5th 1978), 18. 578 F.2d 582 Cir. denied 440 U.S. Assuming, deciding, er. but without that by appeal. the points of error raised

specific the trial court new law has contends that constitutional case retroactive Andrews first which failing to determine of his application erred to collateral attacks on convic- new, therefrom, whether claims were as constitutional tions as well direct waived, and of had been survey upon. of them we the cases relied on new facts law not them were based makes three basic contentions appeal. the time of his direct available at unconstitutionality the death to the of light our discussion of matter In (1) sentencing the penalty statutes: that and in further preceding paragraphs, the (a) portion of the trial is in that no deficient findings conclusions the light of the and given grounds (aggravat- notice is recited, we trial court hereinabove deem ing circumstances) upon which the death be merit. this contention to without (b) sought; is is not re- State assertion of error Andrews’ second quired expressly plead prove applied trial court doctrine (c) grounds supporting penalty; the death finding facts and adjudieata of res without findings upon grounds no factual relied it. entire before In so without the record (d) by required; appellate are and unique na doing, recognize he fails adequate is not because of the ab- review Al proceedings. of post-conviction ture findings; of factual sence civil, they are though not he was penalty may be because rules governed by general of civil not not to have life or specifically found taken specifically said Rule procedure, but life; to take intended 65B(i) complain which mandates method of execution constitutes cruel (petitioner) shall forth factual ant set punishment. unusual plain his claims in support data in U.C.A., be It is to noted terms, whether or concise shall state eight aggra 76-5-202 sets forth specifically constitutionality of his legality commit circumstances, vating one or more of previously been ment or confinement has alleged, proved, must and found adjudged, he and if shall instituted Hence, fact one with a charged finder. relief, proceedings for the reasons for prior put capital felony is on notice is made case, the denial thereof. In such if it prove aware of what the must State apparent the court that the matter has prepare thus able defense. already adjudged pro in such been ceedings, the com it shall forthwith dismiss upon Andrews relies Gardner v. Florida plaint. supra, the issue Presnell However, each of those cases are notice. light foregoing provi distinguishable on their facts. Rule, light long- sions of the *7 waiver, the trial established doctrine of Gardner involved a sentence of clearly simply upon and called to court was presentence re- upon a confidential based raised whether the issues in the determine not port that was disclosed the defend- or could have been raised on petition were re- Supreme ant. The United Court States necessary not to look be appeal. It was following: versed and stated the pleadings the documents of yond the and important . is that the record [i]t legal to determine the suffi record in order reviewing to the court appeal on disclose ciency of our review there the the the considerations which motivated that the court did of causes us to conclude case which it is every death sentence in in dismissing petition. not err in the disclosure of the imposed. Without full sentence, Florida basis for the death the Andrews’ third fourth assertions of procedure would be pertain alleged capital-sentencing the failure of the error in subject to the which resulted trial constitutional defects court to consider new holding unconstitutionality of in Fur- retroactively to the apply decisions and them Georgia. case; [Emphasis they togeth- hence are considered man added.] may comprehensive a review of the on the basis conduct was not sentenced Andrews was and insure that the information any undisclosed or secret of imposed arbitrarily or the capriciously, not adequate on notice of the he was Georgia, supra, concerns Furman v. are of sentencing upon the authori- grounds Hence, aggravat- findings met. written of rely. ty would ing are not required. circumstances procedure, The Utah as followed case evi- The record in this reveals the case, complete provided a record the instant aggravating the circum- supporting dence the all of considera appeal disclosed charged stances and discloses that the evi- the death sentence tions which motivated the was vir- mitigation dence of offense hence, totally consistent with the tually nonexistent.19 holding in Gardner. cites Woodsonv. North Carolina Presnell, Georgia required In the statutes Louisiana, authori- supra, and Roberts v. bodily injury sup- in order finding of ty for that written factual his contention port of murder the offense commit- findings sentencing at required the engaged in the commission of a ted while However, phase of said of trial. neither jury kidnapping. Although the did not specific proposition. cases for that stands finding bodily injury, Georgia of the make “the re- Woodsonholds that fundamental affirmed, stating evi- Court Supreme spect humanity Eighth the underlying bodily apparent injury of was from dence considera- requires Amendment the record. United States the of character and record of tion reversed for the reason that the de- offender and the circumstances individual had no notice whatsoever of fendant particular of the offense as a constitutional- upon relying was grounds which the state indispensable of of in- ly part process requisite aggravating circum- prove flicting implica- of death.” No stances. “considera- tion arises therefrom that inapposite Presnell instant case tion” to be reduced to written find- referred times on since Andrews at all notice ings. provided aggravating circumstances clearly afford such Utah statutes20 U.C.A., 1953,76-5-202, supra. Unlike they specifical- inasmuch “consideration” Presnell, principles the “fundamental hearing “as ly any mandate a matter fairness” were adhered to here- procedural sentence, including court relevant to deems already found at one in. The least and circum- but limited to nature guilt phase aggravating circumstance crime, the char- stances of the defendant’s Consequently, the trial. there was not a acter, background, mental history, opportunity denial of an rebut condition, physical other facts during sentencing phase case State’s mitigation penalty.” aggravation or of the ¡nosupport There appears the trial. addition, specify aggra- In the statutes he for Andrews’ contention that had no vating mitigating circumstances grounds upon which the death notice shall be included. particular- penalty would be based. This is Roberts, again In faced the Court was light especially na- ly so in heinous constitutionality with the issue as to ture of the murders. The murder mandatory death sentence.21 Gardner, it was stated that so police performing victim officer was a *8 evidentiary the The long regular as the record reveals Court observed duties. an may regarded as imposition penal although the such fact basis for appellate aggravating circumstance: ty as to insure that the court so previously Supra, 21.The determined Court 19. footnote 5. imposed. See a could not be such 325, Louisiana, v. Stanislaus Roberts Supra, footnote 6. 3001, (1976). L.Ed.2d 96 S.Ct. 49 974 824 inapplicable deem to be suppose that We Lockett is incorrect to [i]t can exist mitigating circumstances participa-

no reasons: Andrews’ acts of two police a the victim is officer. when significantly than Lock- tion were different Roberts emphasized repeatedly in As we sentencing procedure Utah ett’s the companion de- its cases [Stanislaus] mitigating for full consideration of allows Term, is that the last it essential cided whereas Ohio’s did not. circumstances con- allow for capital-sentencing decision mitigating circum- whatever sideration of sup authority cites no in Andrews the may either be relevant to stances port of his contention the the of- particular particular offender penalty by shooting hanging the Louisiana statute fense. Because He “cruel” and “unusual.” does cite Coker partic- not allow for consideration of does the Georgia, supra, v. which struck down factors, mitigating it is unconsti- ularized penalty rape being as “barbaric” death in Jurek v. [Citing tutional. its decision How and “excessive” for offense. 262, 2950, Texas, 428 49 U.S. ever, holding in the Coker is not (1976), Texas holding the L.Ed.2d means the imposing strained to cover the sentencing procedure to be constitutional- penalty appropriate in an case.23 death permitted mitigating it ly adequate since by the circumstances to be considered Legislature has seen fit jury.] provide penalty propor as a to death Woodson, Again, just require- no as and it tionate sentence for felonies findings is and it of written ment of this to deter prerogative is not the adequately clear that the Utah statutes aptly That was mine otherwise. conclusion authority meet the standards established Georgia24 as follows: Gregg stated of the cases cited. Therefore, assessing punishment a Ohio, su- Lockett v. Andrews next cites legis- by democratically elected selected a violates pra, wherein it was stated that “[i]t measure, against the constitutional lature Eighth impose pen- to Amendment presume validity. may not we its We alty finding of death without a require legislature to the least select possessed purpose cause the a defendant long severe so possible of the victim.” cruelly is not inhumane selected Lockett, defendant was sentenced disproportionate crime involved.- participa- consequence to death as her rests who heavy And a burden on those robbery in a “wheelman” tion n judgment repre- would attack the in a resulted murder. people. sentatives of the con facts in Lockett are to be part This is the consti- true because case with of the instant trasted those with an as- tutional test is intertwined participant was an active wherein Andrews contemporary sessment of standards preceded final in acts of torture which heavily legislative judgment weighs Also, the focus of acts of murder.22 central ascertaining such standards. “[I]n the failure of the Ohio Lockett legislatures, society democratic permit adequate consideration statute courts, respond constituted event, mitigating circumstances. In values of consequently will and moral impose “purely the instant ease does not people.” [Citing Furman v. liability” as characteriz theory vicarious supra.] in Lockett. ed Justice Marshall participation 24.428 U.S. 49 L.Ed.2d

22. As to the leading (1976). up set the murders see facts events Pierre, supra, forth in State footnote U.S. L.Ed. 345 23. Wilkerson v. *9 given impris- convicted was life error chal- murderer final assertion

Andrews’ onment, that the circumstances of of his claim because the lenges the dismissal arbitrarily and sentence was each additional defendant so sentenced death He discrimination. the result of racial additional factors to be would become only allegations went not that his contends process would be never- considered. the whole but to prosecutorial discretion compari- ending and the benchmark for supra), (as system in Furman chronically would be undefined. Fur- son an evi- he was entitled to consequently ther, there is no reason believe that the This contention is some- dentiary hearing. jus- render better judiciary federal can however, novel, a similar contention what Supreme itself tice. the Florida Court As Wainwright, Spinkellink v. was advanced in admits, State, Provence v. candidly so see Flori- alleged that the supra, wherein it was Fla., 783 at reasona- supra, 337 So.2d being applied arbitrarily, statute was da persons differ over the fate of ble can disproportion- capriciously, excessively, and every every criminal defendant in death eighth and four- ately in violation of re- penalty case. If the federal courts amendments, and that the statute teenth again again aggravating tried impermissibly and being was administered mitigating circumstances in each of prosecutors plea in the discriminatorily by cases, re- may these we at times reach against defendants con- bargaining process in the sults different from those reached opposed whites as murdering victed of courts, Florida state but our conclusions blacks, persons. against poor males and less, more, accurate. would be no nor no is the cor- interpretation If this latter is the human condition. Such Proffitt, reading problems serious rect Supreme in Proffitt or in First, criminal defendant every arise. Woodson, Furman, Jurek, Gregg, or Rob- 921.141 sentenced to death under Section erts, re- not have intended these could pro- through corpus habeas could federal [Emphasis sults. added.] applied by ceedings attack the statute foregoing rationale adopt We murderers, alleging that more convicted said here coupled with what has been die, deserving to equally or more tofore, trial court’s dis conclude that pen- thus that the death spared, been proper. missal was arbitrarily and alty being applied by his own capriciously, as evidenced is affirmed. The order of dismissal then would be case. The federal courts continuously question every compelled CROCKETT, J., concurs. C. of the Florida crimi- substantive decision WILKINS, J., in result. concurs justice system regard with nal penalty. The in- STEWART, (concurring in re- Justice the Flori- trusion would not be limited to sult): It would be neces- Supreme da Court. result in only I to concur am able also, properly review sary in order to view of I hold a different this case because to re- Florida Court’s decision of the appropriate role and function the trial view the determinations of justice corpus in our criminal writ of habeas properly And in order to review courts. view, however, does not system. That determinations, examina- a careful those a result different compel this case me to would be in every tion of trial record plurali- reached in the the merits from that order. ty decision. thorough review would necessitate A set Nevertheless, appropriate to I think it jurors and looking behind the decisions of point raised my forth view on one crucial Additionally, well. unsuc- prosecutors, as argues that could, appellant Andrews. their sen- litigants cessful before de- Supreme Court decisions out, United challenge their States tences were carried subsequent to our affirmance again as each later- cided again sentences *10 tent rea. the issuance or mens This does not mean that require of execution corpus. person subjected capital writ of a of habeas could not be to in a con- punishment engaging for criminal alia, contends, inter that the Andrews an- spiracy intentionally to take the life of of the United intervening opinion States an aiding abetting other or for such Ohio, Lockett v. 438 U.S. Supreme Court in endeavor, long jury as the is instructed (1978), 57 L.Ed.2d for person directly responsible that a writ and the of a requires the issuance killing pur- the actual must have had the of execution. setting of the sentence aside killed pose and intention that another be that it has never been al- Andrews states that supports proposition. evidence proved personally he took a leged or life, Indeed, he it should be noted that murder argues take a life or intended proposition degree by is § that Lockett stands for the the first defined 76-5-202 punishment circumstances is in such which actor a criminal homicide in “the disproportion- unconstitutionally cruel and intentionally knowingly causes the death and that the sentence of ate to the crime short, imput- In an of another must be set aside. It is death therefore ed rea is the Utah mens insufficient under this case does not true that the evidence in statute, my under view the Utah himself ac- finding sustain a that Andrews Constitutions, support the United States However, tually holding took a life. capital punishment. major in fact sustain the Lockett does not case, however, In instant the trial appellant’s argument. Justice premise care judge jury great instructed the with opinion, represents only White’s imposed could penalty the death must, views, is the effect that one only that each defendant if found subject penalty, the death order personally intended that one or more of that a murder be personally intended my killed. view evidence victims be though he himself did not committed even amply implied jury supports in this case take a life. finding appellant that the did in fact harbor agree stated proposition I with the intention. the Eighth that “it violates Justice White Amendment the United States Constitu- [to MAUGHAN, (dissenting): Justice impose of death without tion] finding possessed a the defendant rigid restric- With the adherence purpose to the death of victim.” cause doctrine, corpus tive waiver in a habeas 2983. I 438 U.S. at 98 S.Ct. at also involving I cannot penalty, action I, of the believe that Article § finality The need convictions concur. Constitution, prohibits cruel un- when is an insufficient reason the convic- punishment, imposes the same re- usual in the first tions involve quirement; so does the Utah criminal two tried the new statute. cases under code, 76-5-202, (1953), as see U.C.A. § infallibility of this unbridled reliance on amended. assessing issues court in the constitutional rife in- experience simply Human with Pierre and involved in the stances, people, especially young with is not with the broad consistent into group where activities evolve unlawful performing its play role court must go persons beyond conduct more and one or pointed As out institutional function. other of the the intention of members Court, since States United group and an act which cannot and commit sen- qualitative there difference in the every person in should not be attributed to death, corresponding tence there is a group. reliability in the difference need appropriate is the punishment be determination that death Capital simply should not in a case.1 Under the punishment, specific on the basis of a constructive in- Carolina, 280, 305, 2978, 2991, v. North 1. Woodson petitioners the claims circumstances these be reviewed in

should *11 qualitative dif-

with a consciousness imposed.

ference of sentences response initial petitioners validity of the death

regarding Utah, court relied on deci-

statutes in the United States

sions rendered Su- Subsequent in 1976.

preme Court issued mosaic, have further added to

decisions emerges pattern of basic

from statutory

constitutional doctrine. The Utah for

plan require- not conform with the minimal

does Supreme

ments of United States Court. concurring dissenting opinion in

My Brown, Utah, February No.

State my sets forth reasons for this in detail

conclusion. Schumacher, Provo, appel-

Robert J. lant. Hansen, Gen., Atty. Craig

Robert L. B. Barlow, Gen., City, Atty. Asst. Salt Lake respondent. WILKINS, Justice: In the Interest of STATE T. S. T.S.V., 17, (hereinafter “juve- age V., age person a under Court, nile”) was referred Juvenile eighteen years. charge burglary County, At a hear- violation of Section 76-6-202.1

No. Court, allega- ing judge before of that of Utah. proved beyond a charge tions of were juvenile was com- reasonable doubt and 15, 1980. Feb. Development Center mitted the Youth juvenile ap- for the State of Utah. The peals. juvenile companion ap- were and a shop of Farrer

prehended inside area School, approximately at 11:30 High Junior 5, 1979,by evening January m. on p. Police, responding call from the Provo to a in the doing work an electrical contractor window police school. found broken doors, entry in one of school’s made, tools observed that several shop area. racks in the missing were from These were found behind a desk tools shop juvenile area and his com- where statutory Ann., 1953, 1. All references are to Utah Code as amended.