State v. Brown

Stаte, renters) that worthiness can- in this view, legis-

not, magically imbue my validity. constitutional here with

lation Utah, Plaintiff and

STATE of

Respondent, BROWN, Defendant

Gerald Paul Appellant.

No. 15481.

Supreme Court of Utah.

Feb. Hansen, Gen., Atty.

Robert B. Craig L. Barlow, Gen., Atty. Asst. City, Salt Lake Wootton, Atty., T. County Noall Utah Provo, plaintiff respondent. WILKINS, Justice: charged Defendant was with one count degree first murder in violation of Section 76-5-202(l)(h),1 the criminal information alleging one defendant killed Steven Losh April 12, purpose pre- on for the venting the Losh appear- said Steven from as a witness in pending him a trial in the County District Court of Utah in charged was with defendant second degree murder. Defendant was tried first degree charge murder in bifur- a pursuant hearing cated 76-3- to Section Court, 2072 before the District Duchesne County, sitting with a twelve mem- bers, which returned a unanimous verdict murder, guilty degree and, of first after hearing penalty, on the returned a unani- judgment mous verdict death. From verdicts, entered on the and the Court’s firing squad, sentence of death defend- appeals. ant guilt-determining The evidence at phase of the trial showed Steven Losh been a subpoena appear had served as a witness on behalf of the in a State Utah 13, 1977, which, April trial scheduled in noted, charged as defendant had been degree second County. murder in Utah One Lou Ann Ross as was also named a subpoena, witness in the but had not been served. To insure that Lou Ann Ross Gary subpoena, D. J. would not be served with the Gary Stott Anderson of Stott, Wilson, Provo, Young taken & for defend- defendant had her to a house trailer Creek, and appellant. ant located in Red a wilderness area 1. All vides cifically Ann. knowingly causes the death of pose (h) first Criminal homicide constitutes murder pertinently: statutory ^[******] preventing indicated. Section homicide following amended, references if was witness circumstances: committed for the actor unless otherwise 76-5-202(l)(h) pro- are from intentionally another testifying, under Code pur- spe- or 2. Section 76-3-207 chesne degree murder cases. Hence references herein trial official a separate from person consisting participating guilt County investigation. from the from providing trial penalty phases a penalty' phase only only. provides guilt any legal evidence, or innocence for a bifurcated proceedings or a person phase first Du- or County, bending Utah. Steven Losh had over him with the Duchesne stay testify, and agreed gun also not to his came into the hand. Defendant County in Utah trailer until the trial said, on, Bud, got trailer and “Come we’ve April On against defendant over. grave dig.” went with Kummer defend- Kummer, 1977, Buddy friend of defend- sagebrush ant where area behind Losh in ant defendant and Steven drove began digging the two of them a hole. As Fork, from American Kummer’s truck asked, they digging, were defendant “How Utah, According the Creek area. to to Red run?” there fast can'Lou Ann and “Are testimony, con- the three men Kummer’s shells?” When Kummer said there more approximately cases of beer sumed two gun, were no more shells for the defendant addition, defendant was along way. the well, then, just way.” said “It’s as Be- Preludin, amphetamine, “up- an taking finished, grave was fore the defendant per,” drinking whiskey, also and was trailer, to and O’Neill went back the came taking Losh was Preludin and Vali- Steven helped digging out and Kummer finish um, tranquilizer, or “downer”. At some a helped grave. carry Then all three men to along way, Losh asked point defendant drag body grave Losh’s the defendant re- for more Valium which earth, it with rocks and dead wood. cover as, said, him, give he he needed it fused to trailer, When went back to the Lou day. This caused Losh for his trial the next cooking hamburgers, and Ann Ross was de- “rub the defend- angry, to become sat and ate. fendant down ant, way”. Specifically, a Kummer testi- he, fied had told defendant that that Losh testimony The of Lou Ann Ross and Mi- jail Losh, county could six months do substantially not differ chael O’Neill did head, contempt standing his of court on from Kummer’s. Lou Ann Ross also testi- spend going to but that the defendant was yell, she while he fied that had heard Losh asked years prison. ten in the state Losh trailer, “No, Paul, running was around the “punk” for if would be a one defendant he don’t, you,” I and that defendant am with When the truck arrived at the inmates. commented, he during had the time was Red Creek where Lou Ann trailer in dying “He was a hard eating hamburgers, staying, and one Michael were Ross O’Neill f_,” Lou mother and had asked Ann departed men from the truck. three go trailer with him because Ross to into the happened that the events Kummer testified killing “nothing makes me hornier than following manner: man.” trailer Kummer went to the back of the not found body The Losh was Steven bladder, went empty his while Losh 23, 1977, May police a month. On trailer, presumably for the front Examiner, Serge Doctor Medical around, purpose. Kummer turned same Moore, autopsy body. on the performed coming bumped already into gunshot were three He testified that there out the trailer. Defendant said some- body, on the but because wounds hole. thing to about a Defendant Kummer at he could not tell what decay state of truck and took Kummer’s ran over wound were fired. One range shots box”. Kummer gun “jockey out of the was of the left thumb where base him, coming ran into thought he was at second piece schrapnel was found. The O’Neill, trailer, just telling who was body from the bullet entered the decedent’s dressed, in the trailer be- getting stay back, bone, just and was above collar cause, coming He “something’s down”. The lodged the base of skull. found “Don’t, Paul, shots, Losh yelling, heard two bullet, the Doctor described third don’t,” footsteps as he and also heard Losh’s death, body Losh’s the cause of entered ran trailer. Two more shots around the just above and through temple, the left fired, pause, then another shot. were ear, right found in the behind the and was window and saw Kummer looked out side, right side the decedent’s brain. ground, on his lying Losh on the body 27, 1976, was determined to be that of That on August Bing- Samuel aid of dental Steven Losh with the his picked up ham had Steven Losh and defend- records. ant in his car Lounge outside Caravan Fork, in American Utah. Steven Losh was Defendant testified his own behalf. ear, bleeding from and the his three decided testimony His was when he went into trailer, through “guys up he to find that had saw the windows beat up picked piece that Losh had fire- They eventually parked Steve.” found a wood, club; which defendant described as a pickup Sonny white truck which Cordova apprehensive that he Losh would sitting. Bingham and Julian Cole were tes- him; try gun to harm that he had taken the Losh, he, got tified that and defendant out himself; to defend that when he accosted ear; Bingham walked toward Losh the weapon step Losh took a truck, driver’s seat of but that he club; toward him but he did raise the saw defendant behind him and saw that he that defendant then had blacked out and gun. Bingham had a went back his car. he nothing standing remembered until was toup Defendant went the driver’s seat of over Losh with the in his De- gun hand. Sonny the truck and shot Cordova once fendant that also testified he had been through head, and then shot Julian guilty degree found of the second murder in Cole, who up had thrown his arm to defend previous trial, testimony without of Sonny himself. Cordova died as a result of Losh Ross. and wound; gunshot Julian Cole lived. Peterson, Carl R. a psychiatrist, Doctor Bezzant, girlfriend, Janet Rummer’s also testified that he had examined defendant during penalty hearing testified that opinion, and that he had formed an noted defendant had stated to her on the morning infra, following which was on the based 13, 1977, April down, of after fell that Losh (1) elements: that defendant had had no gun defendant put had to his head and sleep days, four during or five which Preludin, Valium, time fired. he had taken . (2) whiskey; great whiskey, amount of Defendant following introduced the evi- alleged beer Preludin to have been dence hearing: during day consumed defendant psychiatric A written evaluation Doc- 1977; April (3) history defendant’s Peterson, tor Carl R. in essence paralleling child, stuttering inability as a his ante; testimony, his oral described testimo- express (4) adequately; his emotions Guy Moore, ny defendant, a friend of the pressures upcoming of his trial for who testified he that had never seen de- secоnd ex- murder. doctor pressed violence, opinion fendant commit act of an that defendant was in an and that “rage what he termed opinion reaction” at the time it was his incap- that defendant was killing of the have could not formed the murder; a premeditated able of testimony requisite purpose intent to kill Losh for the Phyllis Brown, Wilson defendant’s ex- preventing testifying. him from wife, who testified defendant was a good influence her on two children of a trial, During penalty phase previous marriage and on a child of their State introduced evidence that defendant marriage; testimony, and defendant’s ask- past had been burglary, convicted in the death, for life forgery imprisonment rather than and auto theft for had which he spent children, so that he his years a total of ten his adult in could visit raise prison, and had first been in as best trouble them he could under the circum- age Wayne law at the of fourteen. years stances. was 34 old Defendant at the Watson, County prosecutor, Utah related time of this trial. presented County in cites, error, prejudicial trial of Defendant as charge defendant on the of second degree murder. He testi- testified that the Court’s failure to include in its voir dire mony following had shown the jury panel, question facts: as to the penalty. juror following The Court asked each on the death veniremen’s beliefs nor the neither the It noted that question: inquiry, and such an requested you Do to believe you have reason to the omission. objection was made in can’t listen to the evidence here court case, Nevertheless, we as this is give you and based and the law as I it ap- contention consider defendant’s solely and that law and on that evidence Though defendant does not cite peal.3 just nothing else fair and verdict render States, 391 Witherspoon v. United case of parties. as between the 20 L.Ed.2d U.S. jurors Any implications that must analysis we, pursue sponte, sua Supreme every held that: case in

it. There the render a verdict of death determined, guilt verdict of of death cannot carried sentence [A] imposed or if the recom- impression out found have been was the by excluding ve- mended was chosen inquiry Court’s Bel- made the District simply cause because niremen for wood, certainly present here. We objections general voiced authority is no conclude Belwood therefore reli- penalty or conscientious or expressed point. defendant’s gious scruples against its infliction. [Em- presented theories his Defendant two phasis original] First, consumption defense. his Witherspoon But, also stated the Court drugs amounts of and alcohol enormous exclud- nothing precludes a state from capable of form- precluded being him from ing, cause, jurors from serv- prospective any requisite intent to commit the ing objections penalty to the death whose expert the presented tes- crime. Defendant finding a de- preclude them from would Peterson, earlier, as timony of Doctor noted capital crime. Of guilty fendant of a Secondly, theory. defendant support this to course, Witherspoon acknowledges that on the law of requested four instructions scruples against the general objections and self-defense, refused. De- which Court neces- by do not themselves death in re- argues that Court erred fendant finding guilt in juror from sarily preclude fusing give these instructions. to proper case. Here, prospective jurors no were exclud- is have the Defendant entitled to the death objections ed because their to theory of the crime if jury instructed on his guilt re- precluded finding their support is basis in there and circumstances gardless of “the facts Castillo, 23 Utah theory. v. that State pro- might emerge in the course of which 70, (1969), this drew P.2d 618 2d 457 4 inquiry no was made ceedings.” As guidelines in this area: jurors Court, excluded on certainly were evidence, although If the defendant’s in might prejudiced be ground State’s defendant, in material conflict with the per- fail and we favor of jury may enter- prejudiced by proof, be such that ceive how defendant could Witherspoon inquiry. such a or the omission of tain doubt as whether a reasonable self-defense, he is entitled not he acted in Belwood, 27 Defendant does cite State v. fully and instructed to have 214, (1972) support- 519 as Utah 2d 494 P.2d on the law self-defense. Con- clearly failure to position ive his that the Court’s if all reasonable men must con- versely, inquire panel as to their beliefs slight is so as to clude the evidence his penalty violated constitutional raising a reasonable doubt incapable rights. 214, Belwood, Stenback, 350, 27 Utah 2d 494 P.2d 519 2 1050 State v. v. P.2d 78 Codianna, Utah, (1972); 573 P.2d and State (1977), Witherspoon is in dis- which cases Witherspoon, S.Ct. 391 U.S. at n. cussed. governing our n. 21. See also statute bias, 77-30-19(9) challenges implied jury’s as to takably mind whether a de- shows instead that was aggressor. fendant accused of crime acted in covering self- The instructions defense, instructions the law of were prop- tendered thereon self-defense therefore erly refused. properly refused. P.2d at [457 620] self, governed law of is defense Defendant contends that the Court 76-2-402, provides perti- admitting erred in a film premises part: nent killing place, allowing where the took it jury. to be viewed ar person justified A Defendant threatening gues prejudicial film to de using or force another when and fendant, attempt he describes as an reasonably extent that he believes crime, to reenact the in front of jury, necessary that such force is to defend trying the “cameraman” to simulate person against himself or a third such the actions of the defendant. The tran force; other’s imminent use unlawful script shows the Court admitted the however, justified person using film purposes only, for illustrative force likely which is or intended to cause an viewing by alternative to a bodily injury death or only serious if he the area in Red Creek. Under Rule reasonably that the believes force is nec- Evidence, Utah Rules of admission essary prevent bodily serious evidеnce is within discretion of the Dis injury person, a third himself or or to trict Court. We have reviewed the film prevent the of a commission felo- forcible and find not in any that it is manner ny. [Emphasis added.] attempt to merely reenact crime. It is We find no credible evidence that defend- area, a film of the where killing oc might justified ant have been using curred, trailer, including the the sagebrush, deadly protect force to himself or that he and a hole in ground, none of which was reasonably danger. believed himself to be in inflammatory at all prejudicial de testimony His was that he was inside the fendant. There no basis for defendant’s pick up trailer when he Losh saw a club. If argument that the Court abused its discre true, this were only he would have had to tion in allowing the to view the film. stay prevent in the trailer to Losh from argues Defendant also that the evidence him, harming he even if believed he was in does support jury's not the verdict that danger. He also testified that Losh had not defendant Losh pur- killed Steven for the threatened him with the club. His testimo- pose preventing of him from testifying. ny on cross-examination was: Defendant that not asserts Losh would Well, A as I came around the corner have been a competent witness in defend- Steve turned and started towards me. trial, ant’s second murder because Q With a step? half night on the Sonny defendant killed Cordo- A Yes. va, Losh was on intoxicated alcohol and Q say Did he anything? drugs report and happened. could not what No, A he never. point, And to illustrate this defendant con- Q portions tends of Did he raise the club? that Losh’s testimony matter, hearing the preliminary that A Not that I recall. which the Court refused to admit in the Q you Did hit him that shot? case, instant show would that Losh remem- A I don’t believe so. nothing bered of events of night. that Q Then what did he do? Legislature, We believe that the in defin- A The best I can remember he run. ing categorizing killing of a witness There capable is no evidence of rais degree murder, recog- another as first ing a jury’s reasonable doubt mind as nized killing pаrticularly that such a is a to whether the acted defendant in self-de heinous and serious crime because it attacks fense; contrary, on the the very system justice. evidence unmis- heart of of We our intent We do not find the evidence this case to it was within the not believe that do re- Legislature that State of quality of such that reasonable minds prove that the witness was quired to doubt must have entertained a reasonable emas- To so hold would competent witness. guilt. statements as to defendant’s Several statute, until a witness culate attributed to show that defend- it known testify, called to not be testify against that would ant feared Losh competent he is or whether not. him, his purpose and that it was in fact trial de- The at the for second evidence prevent testimony. kill him to that Janet present murder that Losh was gree shows that defendant told her he Bezzant testified Sonny Losh when defendant shot Cordova. keep quiet. him The had killed Losh to knew, reasonably it was be- therefore or defendant to Kummer statements made knew, pertain- that he material facts lieved Losh, ante, shortly killing after noted hence, he had been charge, that probative demonstrating that concerning those subpoenaed testify killing purpose. was for this But more Regardless transcript of of what the facts. admitted that importantly, defendant hearing showed in the Cor- preliminary intent Losh in Red Creek was his secrete matter, ex- did not err in dova the Court testimony. purpose preventing for the his cluding that here as it was imma- evidence did, find, as it could therefore just noted. terial for reasons doubt, from all the beyond reasonable that that persists But defendant he knew substantial and credi- evidence was nothing events Losh remembered ble, from that evi- fair inferences concerning night; that de- Cordova killing per- Losh dence6 testimony; Losh’s fendant did not fear further, presenting Losh’s purpose a whole formed for support insufficient element testimony. sum, in this case. In defend- present crime the Utah Defendant also contends that not argues that he did kill Losh for ant are unconstitutional statutes testifying, him

purpose preventing from Fur- requirements and do meet simply rage in a but that he was because Georgia,7Gregg Georgia,8Proffitt man v. v. names. Losh had called him Florida,9 Texas,10 Jurek v. on v. intent, purpose, Defendant’s suitably theory that do not our statutes jury. a fact for the determination of sen and limit the discretion of the direct verdict, In order to set aside body minimize the tencing so as to risk appear so evidence must inconclusive wholly capricious action arbitrary act unsatisfactory that reasonable minds part jury. ing fairly it must have entertained upon the case of Recently this Court in a reasonable doubt the defendant Utah, Pierre, (1977),11meas- 572 P.2d 1338 crime.5 committed the 153, 2909, Utah, Jones, (1976) U.S. L.Ed.2d 859 554 8. 428 96 S.Ct. 49 5. State v. P.2d 1321 Sullivan, (1976). also, v. 6 Utah 2d 1322. See State Danks, 110, (1957); 10 307 P.2d 212 State v. 242, 2960, 913 428 U.S. S.Ct. 49 L.Ed.2d 162, (1960); 96 146 State v. 2d 350 P.2d Utah (1976). 119, (1972). Allgood, 28 499 Utah 2d P.2d 269 2950, 262, 929 428 U.S. S.Ct. 49 L.Ed.2d 96 this views the and all 6. That Court (1976). may which be drawn reasonable ‍‌​​​‌​​‌‌​‌‌​‌​‌​‌​​‌​​‌‌‌‌​​​‌​​‌‌​​‌‌‌‌‌​​​‌​‌‍inferences light most therefrom in the favorable 882, 219, denied, 99 58 439 U.S. S.Ct. 11. Cert. Utah, verdict, Helm, jury’s P.2d State v. 563 see also, (1978). An 194 See State v. L.Ed.2d Jones, Utah, (1977); 1321 554 P.2d 794 denied, drews, Utah, (1977) 574 P.2d 709 cert. 162, Sinclair, (1976); 15 2d 389 State v. Utah 882, 220, 58 194 U.S. 99 S.Ct. L.Ed.2d 439 (1964). P.2d 465 Codianna, Utah, (1978); 573 P.2d and State v. Codianna, (1977) Marvell 343 cert. denied 346 33 L.Ed.2d 7. 408 U.S. Dunsdon, 882, 99 58 S.Ct. and (1972). L.Ed.2d appellate Utah statutes constitution- review ured the automatic does not vitiate by possibility capricious of arbitrary as enunciated U. S. and requirements al part jury on the of an since cases. action aberrant Supreme Court in these four We reviewing speculate court must about legal system meets there held the Utah on which the its deter- jury bases made U. the constitutional tests of the S. Su- mination. above, preme Court cases cited because provide . it is structured to rea- Concerning (1) preceding of sonably unique irretrievable and Pierre, ante, paragraph, spe this sanction death will be mandated its cifically stated: provisions processes only and in extreme Utah, being the burden on the state unusually shocking serious crimes.” and and penal- to convince the death further, P.2d at And Sеction [572 1356.] ty appropriate by proof aggra- of total 76-3-206(2), provides for automatic outweighing mitigation, vation total mandatory in which review of all cases though findings required, written are not together imposed, the basic concern mentioned Mr. Jus- Court, our that in cases this sua rule in Gregg, tice at 428 U.S. Stewart prejudicial sponte, considers manifest and 2932, “to of whol- S.Ct. minimize the risk though error such error neither be arbitrary ly capricious action” is assigned argued,12 provide nor combine fully respect more satisfied with to a comprehensive review for a entire proof, submit, standard we than those case, death, including the sentence of Jurek; approved Gregg standards if that from

determine sentence resulted particularly when the standard prejudice arbitrary dispro- action or proof beyond a reasonable obtains doubt portionate and excessive in relation to the phase in the guilt in Utah to find the for which defendant was convicted. offense aggravating crime of murder of which part. circumstances are a P.2d at [572 defendant specifically But asserts that 1348.] (1) the required where is not articu- justification We consider these imposition dispositive comments

late its argument point. defendant’s on this penalty by specific find- death means of ings appellate thereon which the court just We discuss the points now other review, (2) jury is could then primary We con- mentioned. believe the entirely bound to base the those cerns of can be in his defendant centralized promulgated by that hearsay contention evidence in the (for Legislature, under 76-3- penalty phase was (though allowed ob- jury may any aggravat- 20713the consider jection thereto) attributing was made Court, ing which the its factor District prejudicial defendant inaccurate and com- discretion, value) probative finds to have killing Sonny ments about Cordova aggravat- introduction of such County at the Utah trial where defendant governed by factors is not exclu- murdеr, was convicted second evidence,14 rules sionary then the jury Specifically, which inflamed here. imposing Watson, has unlimited discretion in Wayne deputy County at- very penalty, which was the evil con- at the torney, penalty phase testified Supreme present demned the U. Court in Bingham, S. case that one Samuel Further, argues, murder, even eye Furman. to the Sonny witness Cordova Stenback, condition, physical any supra, State v. See Note mental and other penal- aggravation mitigation facts in ty. Any evidence the court deems have provides pertinent part: 13. Section 76-3-207 in may probative regardless force be received of of proceedings, these be evidence [I]n admissibility exclusionary its under the rules presented as to matter the court deems evidence. sentence, including, relevant to not limited but crime, the to the nature and circumstances of 14.Id. character, history, background, the defendant’s

269 conviction, guilt is a once has that had there but in that trial testified defendant Bingham’s just opening “I the record to hearing: been determined said within f_for messing is with the further information that relevant head-shot two Code, fact, Penal contends sentence. Model my brother”. [A.L.I. 5, 201.6, pp. (Tent. Comment 74-75 Bingham quoting in defendant: that said 9, 1959).] shot Draft No. “Something to the effect of: T them head,’ or, T both the head-shot both of in Supreme ob- United States also them,’ that De- something to effect”. Gregg: in served as re- fendant is correct in this contention Jury sentencing has been considered de- transcript Bingham’s of testi- vealed a in cases in order to “main- sirable appeal. mony purposes of this made contemporary tain a link between com- nor transcript That was not available re- system munity penal values and —a noted, quested penalty phase, and as at of link without which determination objection testimony to this was entered punishment ‘the hardly could reflect there. We consider this matter all of evolving decency of mark standards that ” however, implications, though no its even progress maturing society.’ below, assigned because this is a error was 2933, quoting at at U.S. S.Ct. [428 involving imposition case Witherspoon, quoted Trop supra, required in penalty and our consideration is Dulles, 86 at 78 S.Ct. U.S. meaningful order to make review. L.Ed.2d 630.] Before addressing this matter fully ^{[*] [*] [*] [*] [*] [*]} dispose portion we of it now— shall of a when a human life is at stake and When namely, that Section defendant’s contention prejudi- jury must have information 76-3-207(1) is because it unconstitutional question guilt to the but relevant cial relaxation of the standards allows a penalty, question to the order allowing rules evidence evidence to be a bifurcated impose a rational sentence regardless exclusionary admitted system likely to ensure elimina- more not, rules. We think because the drafters deficiencies tion of constitutional (which Legis our of Model Penal Code U.S. at 191- identified Furman. [428 drafting lature our Criminal considered Emphasis 96 S.Ct. at 2934. added.] 1973) problem Code in considered this * * * % * * concluded: long as evidence introduced and [S]o unitary procedure If used deter- presentence arguments made at must punishment mination of the defendant, it is hearing prejudice do not based on less than all the that We preferable impose not to restrictions. issue, bearing such has a on that for the to have think it desirable previous example, as a criminal record of possible it as information before much accused, or be admit- evidence must sentencing decision. when it makes the ground ted that it is relevant 203-04, at 2939. U.S. [428 sentence, though it would excluded as Emphasis added.] respect prejudicial irrelevant or So, agree we do with defendant guilt lawyers alone. Trial or innocence 76-3-207(1) constitutionally in- understandably little in a have confidence se, necessarily firm, it does not per because evidence and trusts solution admits rules require application exclusionary should an instruction of evidence. determining only be considered assessing disrеgarded But, as larger let us return to guilt. case; viz., was pect in this matter testimony prejudicial . inaccurate . is to Watson's obvious solution [T]he We penalty phase? conclude proceeding, abiding strictly error in bifurcate the when this error particularly it was and and unless the rules of evidence until together that, with the testify considered failure did not that —to then would proof instruct on discussed infra. burden upon it not be in fact hearsay hearsay?” sir, A. “Yes it would.” Focusing testimony this inaccurate be- on ing prejudicial, colloquy we note the that testimony Whether the of Watson was transpired in the District Court revealed as not, hearsay accurate it on was admissi- by the record: hearsay. ble testimony Bingham The Watson, The “Mr. are an you Court: prior trial but hearsay was admissible attorney. hearsay upon You know what exception hearsay under an rule as is, you?” hearsay do 63(6) an admission. See Rule Rules of “Yes, Watson: Sir.” case, though, Evidence. In the instant The “I will you Court: ask —under significantly District Court ruled that hear- admissible, hearsay law evidence is but I say hearsay on would not be admissible you go hearsay upon will ask not to into probative because its lack of value. The hearsay. probative that be- value of prosecutor and his attorney-witness, how- tenuous, quite comes Mr. Wooton.” ever, ruling. did honor this Wooton, prosecutor, responded Mr. We also consider a alluded matter pros- that he understood. Thereafter ante, on appeal not raised below nor but ecutor Mr. asked Watson: “Tell us what review, by this relating discovered Court’s Bingham Mr. testified to as far that by give failure District was conversation concerned.” proof instruction on the burden of neces- responded: Watson Bingham “Mr. tes- sary a verdict in of death my tified to recollection that he was Pierre, ante, phase. In State v. at 572 P.2d present when Mr. Brown encountered 1347-48, this Court stated: her, Lou Ann Ross. Mr. Brown stated f_for justT two messing headshot penalty phase We hold that ” my with brother.’ proof offenses the burden nec-

Upon essary over cross-examination of Mr. Watson verdict of death life following defense counsel imprisonment ex- is on the and that the State change occurred: totality of evidence cir- outweigh cumstances must

Q. you therefore “Now were admonished hearsay hearsay.” totality court not to relate of mitigating on circumstances: [Emphasis original.]15 in A. “Yes.” Q. you you “Before testified consulted We hold failure to that the instruct with Mr. regard Wooton in proof sustained the case burden in testimony, you?” didn’t penalty phase prejudicial was error. “Yes, A. Sir.” instruction, Without that was not

Q. you after “Then that consultation suitably directed on a basic most matter proceeded you to tell the that which Pierre, required by and hence the standard have told them?” required involving therein in “the cases did,

A. “I sir.” unique and irretrievable sanction death” discrimination, “risk of arbitrari- Q. “If the record reflects to con- ness, not, Watson, caprice, irrationality trary, would Mr. as an [should be] is, to a attorney if the reduced minimum” was not met. record [572 —that proceeding Bingham other reflected Mr. P.2d at 1356.] 15. We note trial this case commenced tal offenses under the criminal code enacted in 19, 1977, September days lasted for four 1973 considered and in which this Court we alia, specified, proof that Pierre not filed until November inter that the burden Hence, penalty phase we realize that the District Court rests with such cases holdings did not have the benefit of our State. Pierre, involving capi- which was the first case

271 point defendant, view of it is dif- that oc- of the say that the errors We cannot severity finality. An inflamma- its and harmless.16 ferent in both its curred here were inaccurately imputed to obscenity was the tory point society, view of From the of penalty phase, which in the the defendant life sovereign taking in action of the District from a violation of arose its dramati- one of citizens also differs penalty phase this Order. same Court’s legitimate ac- cally аny from other state during just lasted one hour and which for. importance tion. It is of vital to testified, psychia- seven witnesses which community any and to defendant evidence, into report was received trist’s be, impose decision to the death sentence gave and defense clos- counsel the State be, rather appear based reason the Court read instruc- ing arguments, caprice than emotion. inflammatory this obsceni- jury, tions scrupulous par care must And that excessively vivified—and ty became by ticularly extend evidence introduced single of a but awesome decision crucible phase penalty in the where State was to live sen- whether defendant ad probative evidence is but would not be die imprisonment life or to tence of exclusionary of evi missible under the rules by the' sentence of execution State. guilt-determining phase. dence in the phase of this guilt-determining In the type this When the State offers trial, proved the State phase, in the it must be certain that shocking crime of violent committed prej it is prejudicial not defendant — purpose murder in the first course, udicial, legal in a sense. See testifying. preventing a witness from ante, Gregg, where Mr. Justice Stewart’s that, then another found Once quoted language repeating: bears hearing required decision another long as the evidence introduced [S]o most which one the two seri- determine hearing presentence at not [does] imposed. penalties in law would be ous defendant, prejudice preferable it is Scrupulous care must be exercised [Emphasis restrictions. impose added.] in both the cases 76-3-207(3) states: phases in guilt-determining any by the defendant argument Upon appeal evidence and be presentation of death, su- acknowledged uniqueness is of where sentence cause court, prejudicial Mr. error penalty. preme Justice Stevens’ if it finds Florida, may only, v. 430 U.S. sentencing proceeding words Gardner in the 1197, 1204, 357-58, L.Ed.2d re- 97 51 393 of death and S.Ct. set aside the sentence uniqueness: court, (1976)picture this case to the trial mand the impose trial shall event court have Court now Members [F]ive life imprisonment. sentence of recognized is a dif expressly that death from oth punishment ferent kind of there are As we have determined that imposed in this er which country. in the prejudicial two errors that occurred 153, 181-188, 428 Gregg Georgia, U.S. case, here, penalty phase pursuant (opinion 96 2929-2932 Stew S.Ct. statute, to the District Court is remanded Stevens, JJ.) id., art, Powell, see at impose purpose having for the 231-241, 2971, at 2973-2977 96 S.Ct. upon the imprisonment the sentence of life J., Furman v. (Marshall, dissenting); respects. in all other defendant. Affirmed 286-291, 92 Georgia, at S.Ct. J., (Brennan, [2726],at concur 2750-2753 STEWART, (concurring in the Justice 306-310, [2726], at 2760- ring), 92 S.Ct. judgment): J., id., (Stewart, concurring) see I of Justice Wilkins 314-371, opinion concur [2726], at 2765-2794 verdict, sets guilty J., concurring). From the insofar as sustains (Marshall, Rule Rules of Evidence. 16. See sentence, aside the in Gregg, at 428 U.S. remands for resen- tice Stewart tencing because of the trial court’s failure S.Ct. “to minimize the risk of whol- jury to instruct that the aggravating ly arbitrary capricious action” is outweigh mitigat- circumstances must fully more respect satisfied with to a justify circumstances to a verdict of submit, proof, standard of we than those I death. also concur with Justice Hall inso- Gregg and Jurek approved standards agrees jury far as he that must find aggravating circumstances out- I am agree any departure unable to with weigh mitigating circumstances. from this rule of law which was concurred Pierre, Utah, In State v. 572 P.2d by four members ‍‌​​​‌​​‌‌​‌‌​‌​‌​‌​​‌​​‌‌‌‌​​​‌​​‌‌​​‌‌‌‌‌​​​‌​‌‍of this Court. How- (1977), 1347-48 stated: ever, law, this statement of the although penalty phase We hold that in the proper goes, as far as it does not inform the proof offenses the burden of nec- jury as to what standard should be em- essary for a verdict death over life ployed determining aggravating whether imprisonment is on the that the outweigh mitigating circumstances circum- totality of evidence of cir- consequence stances. The instructing cumstances must therefore outwеigh the jury it may impose a death sen- totality mitigating circumstances. finding tence by merely that aggravating vation ty In convince the ^[******] Utah, appropriate outweighing the burden jury by proof being total of total on the State mitigation, aggra- penal- intended. stances, heavily in favor not, my weigh outweigh view, of the death what mitigating circum- penalty. Legislature proceeding That though findings (1953), written Section required, are not 76-3-207 U.C.A. by amended,1 basic concern mentioned Mr. Jus- and other sections of the crimi- 1. Section 76-3-207 defendant was under the influence of ex- treme mental or emotional ry 202. the received the state’s tion, es shall include those as outlined in 76-5- sentence of death. permitted court deems to have be the ground, history, limited to the nature and circumstances of mitigation found the in which event the fendant court. deems relevant to conducted before the court or proceedings issue of (1) The murder was committed while the (b) (a) Capital felony Hearing When a defendant has been found following: presented crime, exclusionary prior The defendant has no Mitigating capital felony, attorney may regardless penalty. these criminal the defendant’s present argument before the court or waive other facts in as to — and the defendant shall be circumstances shall include mental and proceedings, penalty. Any provides: sentence, including hearing rules of evidence. The The Aggravating of its activity; hearing guilty, provided probative any there shall be proceedings admissibility shall be before the matter the court on sentence.— disturbance; significant character, before physical aggravation for or force circumstanc- evidence the jury jury shall be but not the de- further on the condi- under histo- guilty back- jury, may the sentence of life the court shall verdict for death is not found. mous verdict death. If the it shall be instructed sentence of proceedings death and that to be reports penalty. participation shall retire to consider the of the murder committed disease, intoxication, his conduct to the (wrongfulness) of his conduct or to conform substantially impaired as a result of mental of the defendant to ress another (g) (e) (f) (d) (c) imposed upon jury The defendant The court or The And The defendant acted under extreme du- At the time of the ^[******] crime; unanimous under the substantial person; and shall youth any death, before a imposing discharge other fact in of the defendant at the time relatively minor; is unable to reach a unani- jury, a unanimous verdict for the court shall appreciate agreement imprisonment. anwas impose requirement imposed toas jury, another or influence of the sentence of murder, as the case under this accomplice mitigation the sentence of penalty. if a unanimous person punishment domination of of law was impose If the criminality discharge capacity may section, impose and his death, drugs; In all jury be, code, significant guilt. to be than the trial on permit penalty of death nal guilt be- only beyond overriding importance proving if the finds imposed mitigat- recog- reasonable has been yond doubt there are doubt reasonable adoption sufficiently substantial nized its as a constitutional ing circumstances mandate, In re leniency. Winship, U.S. call for (1970), by its 25 L.Ed.2d 368 S.Ct. (1953), as 76-3-207 U.C.A. accept- origin, and its common ancient amended, sentencing phase deals indispensable our as an element of ance forth capital homicide case and sets in a justice system. stringent That criminal circumstances; however, specific guilt proof applied of is standard persuasion specify not of it does reduce the of error. phase chance justify imposition necessary apply 502 much more it is to penalty. appropriate death Sections 76-1-501 and How amended, (1953), as with the standard when life itself is at stake U.C.A. deal that crimes It is at best proof respect of with to all error irreversible. burden prove every that the must the issue of life or death require State anomalous on a burden beyond of a crime a reasonable should be decided the basis of element defenses, persuasion typically which is doubt.2 Even as affirmative of standard civil ordinary, has the burden of used to decide run-of-the-mill for which defendant negating producing proof, the burden of cases. by proof beyond a reasonable such defenses Because of the of the Utah structure prosecution. doubt remains State provisions, weight due can capital homicide (1935); Green, 192, 86 Utah 40 P.2d 961 v. by mitigating be accorded circumstances Harris, 331, 145 v. 58 199 P. Utah State jury only persuasion if the standard of White, P. (1921); v. 121 State 40 Utah exist- a reasonable doubt as to the beyond is 169, 120 Vacos, (1912); v. 40 Utah The ence of circumstances. (1911). 76-1-502. Sec P. 497 See also § capital provisions, homicide unlike proof beyond a

tion 76-1-501 establishes of provisions of a number capital homicide degree of necessary reasonable doubt as the states, require of at least one proof other “culpable for the mental state" persuasion beyond a rea- “aggravating circumstance” circumstances,” as well as and “attendant a defend- part proving doubt as of sonable lan elements of a crime. This all other offense. See guilty of a substantive ant encompass clearly enough is broad guage phase, In the after penalty 76-5-202. § guilt phase of case. proved, jury is necessari- guilt has been it has Certainly aspect capital proceed- ly aware found doubt; importance beyond a reasonable great has as for the defend- circumstance arguing imposi- for sentencing phase. every prosecution, sense ant as the In undoubtedly penalty, death will deprivation life which tion of the possible jury may upon more fact. If the penalty hearing from the is far dwell follow provides: preponderance the evi- established 2. Section 76-1-501 dencе. Presumption innocence —“Element provides: 76-1-502 (1) in a the offense” A defendant defined. — Negating allegation proof— defense or proceeding presumed to be inno- criminal is required. 76-1-501 does When not each the offense cent until element —Section negating require charged against beyond a defense: proved him a rea- is information, (1) By allegation indict- proof, in an of such sonable doubt. absence ment, charge; acquitted. or other or shall be defendant (2) By (2) proof, part in this words “element unless: As used (a) is case as a of the offense” The defense in issue in the mean: conduct, circumstances, trial, (a) presented The either attendant of evidence result prohibited, defense; proscribed, prosecution or results of conduct or offense; defense, (b) forbidden in the definition of the is The defense an affirmative (b) culpable required. The mental state presented the defendant has jurisdiction venue The existence of affirmative defense. such but shall are not elements the offense impose merely by finding aggra- sciously death rational. “It certainly not a nov- vating outweigh mitigating proposition el circumstances that discretion in the area of (a preponderance of evidence sentencing be in an exercised informed test) virtually a death assured. Gregg manner.” Georgia, The Utah was not statute intended to Since members of a will have imposition result in the of a little, previous had if any, experience in in all penalty might eases in which that sentencing, they are unlikely to be skilled possibly imposed. Legislature com dealing with the information responsibility mitted to con given. American See Bar Association carefully, sider thoughtfully weigh, all Project Standards Criminal Jus- the individual characteristics of the defend tice, Sentencing Alternatives and Proce- status, physical ant’s mental and including dures, 1.1(b), rehabilitation, Commentary, pp. 46-47 potential § possibil 1968); (Approved Draft ity that the President’s Com- may again commit a murder,3 mission on Law Enforcement and and all other Admin- circumstances bear ing upon istration Challenge the determination of of Justice: The penalty, only Society, see 76-3-207. Not Crime in a Free Task Force such delibera Re- required by statute, port: (1967). tion and The 26 evaluation but Courts at U.S. [428 192, constitutionally is also 96 mandated. As S.Ct. 2934.] Carolina, stated Woodson v. North 428 It is therefore essential that be 280, 304, 2978, 2991, U.S. 49 L.Ed.2d instructed as to the proper per- burden of (1976): 944 necessary suasion to impose penal- a death capital respect cases the fundamental [I]n ty. In Gregg, Supreme Court stated: humanity underlying Eighth The given idea that a should be requires Amendment . . consider- guidance in its decisionmaking is also ation of the character and of the record hardly a novel proposition. Juries are individual offender and the circumstances invariably given careful instructions on particular of the offense as a constitu- the law apply and how to it before tionally indispensable part process are authorized to decide the merits of a inflicting penalty of death. lawsuit. It would be virtually unthinka Ohio, 586, See also Lockett v. 438 U.S. 98 ble any legal to follow other course in a 2954, (1978). S.Ct. 57 L.Ed. 973 system traditionally operated that has following prior precedents and fixed rules The depends evaluation of those factors of law. Gaso upon judgment See sentencing [Footnote omitted.] au- line Champlin Refining Products Co. v. thority, but judgment the exercise of that Co., 494, 498, 513, 514, 283 51 may not be used in a U.S. S.Ct. 75 manner which results (1931); L.Ed. 1188 penalty being in the death Fed.Rule Civ.Proc. 51. “wantonly and When freakishly imposed.” given, erroneous instructions are Furman v. Georgia, 238, 309-10, required. quite 92 retrial is often It is S.Ct. sim (1972). 2762 Accordingly, power ply legal a hallmark of our system that judgment sentencing juries carefully committed to the adequately guided au- and must, thority possi- to the extent it is in their deliberations. at 192- U.S. [428 ble, be exercised in a manner that is con- 96 S.Ct. at 2934.] (3) penalties 3. See Section propor- 76-1-104: Prescribe which are tionate to the seriousness of offenses and Purposes principles of construction.— permit recognition which or differences [sic] provisions The of this code shall be construed possibilities among in rehabilitation individu- general purposes. in accordance with these al offenders. (1) prevent Forbid and the commission of (4) arbitrary oppressive Prevent treat- offenses: persons ment of accused or convicted of of- adequately Define the conduct [Emphasis fenses. added.] mental state which constitute each offense safeguard conduct is without fault from condemnation as criminal.

275 strictly process weighing are ad- first. The Only principles if these tion de- evaluating can there be reasonable evidence to the exist- hered to some determine expectancy proposition the choice gree process ence of a factual is a un- jury must make will be exercised ordinary common to the activities of life. biases, at least to the tainted individual points The reference are facts and inferenc- them jurors consciously lay facts; can process logic extent es from is one of concept of any juror’s Whatever one aside. practical experience. point The Utah, be, through justice may people evaluating aggravating mitigating cir- have that death Legislature, mandated prove cumstances in case is not to punishment only the meted out as proposition a factual but to determine a lacking any egregious cases which are most punishment. provides, 76^-3-207 mitigating circumstances. substantial example, youth that the of the defend- significant history prior a lack of ant and jury applies only preponderance If activity criminal circum- penalty phase, test of the evidence defendant, youth or the stances. will in induced to admin- effect be prior activity, criminal cannot be lack of virtually if it were ister the Utah statute as “weighed” sense meаningful mandatory death statute. A con- aggravating facts. one find How does which all but as- struction of statute age that the “fact” that the of the defend- raises sures infliction ant, or 30 does years, whether 18 does or A manda- questions. serious constitutional preponderate against tory penalty, a scheme that How does one make such a circumstance? virtually mandatory, is unconstitutional. shop- if the defendant had a determination Carolina, v. North 96 Woodson U.S. lifting conviction or embezzlement convic- At the S.Ct. L.Ed.2d years previous tion ten to the murder? To very least there will be a number of cases speak weighing those factors which, greater because of the far latitude an aggravating employ circumstances is to preponderance allowed for doubt under the meaningless which appealing metaphor but test, inappro- the evidence will be death mind reso- gives guidance in fact priately imposed. For the to execute overwhelmingly important lution of such when a defendant there is substantial doubt question. part jury appropri- of the as to the penalty, repugnant ateness of that “beyond The a reasonable doubt” stan- society. preponder- basic values of our A course, may, of similar dard be considered simply ance of the evidence test does not proof by preponderance in its function to policy stat- reflect our death evidence, e., both used to i. standards are ute, upon or the values which our criminal However, disputes. resolve factual justice system is built. “beyond term a reasonable doubt” is some- thing evaluating than a more standard Moreover, preponderance of the evi- inferences; conflicting facts and in the con- meaningless test is as a standard for dence penalty hearing, conveys of a it also text deciding incapable the critical issue concept upon jury that the values application. basically is in- rationаl What justice system is built do which the criminal sentencing phase volved in the of a permit the to be im- not ultimate sanction weighing is not a to deter- ease of evidence unless the is free of sub- posed conclusio’n fact, mine the existence vel non of a but a standard doubt of kind. That defendant, stantial legal-moral question: should a determi- require would more than a factual murder, guilty for that who is live or die nation; would, as contemplated aggravating Whether circumstances crime. statute, into the tolerable take account mitigating cannot outweigh circumstances all, is, It after beings. frailties of human determined same mental jury is to those that the by which circumstan- deference frailties processes direct and determining mitigating consider circum- required tial evidence are evaluated questions such as who entered an intersec- stances.

Of course the standard which I think The judgment of the trial court imposing required by provide the statute does not reversed, the death properly sentence is test, mathematically precise but the nature the case remanded to the trial court to inquiry of the does not admit of such a test. impose imprisonment. a sentence of life accomplished All that can give is to upon This action can be sustained alterna- jury guidance which likely is most viz., grounds, tive prejudicial there was er- promoting objectives result in of the sentencing proceeding, ror in the 76-3- § statute in a manner that is most under- 207(3); statutory provisions and the impos- jury. to a standable ing the sentence of are death unconstitu- sum, I think the should be in- tional, 76-3-207(4). opinion This will ad- imposed structed death should be only dress the constitutional infirmities of the beyond if the is convinced a reasonable statutory imposition scheme for of the doubt that mitigating there are no circum- errors, penalty. specific death sufficiently stances substantial to call for prejudicial were sentencing in the proceed- leniency.4 ing, are well managed trеated and

MAUGHAN, (concurring opinion Justice and dis- of Mr. Justice Wilkins. comment): senting with statutory plan The Utah violates the concurring This dissenting opinion is Eighth and Fourteenth Amendments to the written for purpose directing atten- United States Constitution in that there are tion to what I consider to be fatal flaws in “inadequate statutory guidelines to instruct our statute as it relates to penal- the jury proper application on the ty. These flaws are fatal only because infirmity, Constitutional but provided law, leaving thus grimmer fatal in a sense. The statute is untrammeled impose discretion to or with- virtually a mandatory death law. In addi- hold the penalty. Secondly, death tion, my imposition view it allows sentencing procedure percep- inhibits capital sanction in a fashion which has here- judicial tive review. styled “freakish,” tofore been and with- out Again, direction or limitation. in my To understand the constitutional infirmi- view, the provide statute does not proper statute, ties in the Supreme a review of the guidelines “to minimize the wholly risk of Georgia1 decisions since Furman v. arbitrary capricious action.” In Gregg Georgia2 beneficial. the court Additionally, I wish point to out Iwhat commenting in on underlying principle the consider to be extreme anomalies in the Furman, stated: enactments which control first and second Furman mandates that where discre- degree murder. These are also constitu- tion is sentencing body afforded a on a tionally infirm. I concur conviction grave matter so as the determination of for homicide ‍‌​​​‌​​‌‌​‌‌​‌​‌​‌​​‌​​‌‌‌‌​​​‌​​‌‌​​‌‌‌‌‌​​​‌​‌‍and in the imposi- remand for whether a human life should be taken or sentence, tion of a life for the reasons stat- spared, that discretion suitably must be ed. I respectfully opinion dissent from the directed and limited so as to minimize the remaining, with All statutory comments. U.C.A.1953, wholly arbitrary risk of capricious references are to as enacted 1973. action.3 153,

4. The American Law (1976). Institute Model Penal 2. 428 U.S. 96 S.Ct. 2909 (1962), provided Code the basic frame- capital punishment provisions work fоr the Eighth 3. “. . . and Fourteenth Amend- code, provides pen- our criminal alty that the death ments cannot tolerate infliction of a sen- imposed only should be if “there are no legal systems permit tence of death under sufficiently substan- unique penalty wantonly to be so and so 210-6, leniency.” p. tial to call for 131. freakishly imposed.” Georgia, Furman v. 238, 309-310, U.S. 92 S.Ct. 1.408 U.S. 33 L.Ed.2d testing constitutionality, sentencing the ulti- Where the author- In ity required specify it is to the factors sentencing proce- mate issue is whether decision, upon reaching its relied risk the death create a substantial dures safeguard meaningful appel- further arbitrary will imposed in an penalty late review is available to ensure that cases, In a five capricious manner. series of imposed capri- death sentences are not five Supreme examined diverse in a ciously or freakish manner. imposition statutory plans for summary, expressed In the concerns constitutional,4 Three were held penalty. Furman that the of death not be not two were found to be constitution- imposed arbitrary an or capricious responses rejec- Furman’s ally tolerable to can be drafted carefully manner met jury discretion in the im- tion unbridled sentencing statute that ensures From position sentences.5 these given authority adequate information opinions, five there certain comments general guidance. proposition As a which indicate the consti- and observations system met aby these concerns are best perimeters, within which exer- tutional provides proceeding for a bifurcated challenged of discretion in these sen- ap- cise sentencing authority at which the prised tencing procedures can of the information relevant to be made. imposition provided of sentence observed, Gregg, In the court under the guide to its use of the informa- standards statute, required Georgia was not tion.6 any mitigating find circumstances in or- significant The admonition of the court is mercy recommendation of der to make a assessing procedure: binding that was trial court. How- suggest only We do intend ever, statutory aggra- find must procedures would be above-described vating recommending before circumstance permissible under Furman or that a sentence of death. along sentencing system constructed Gregg, pos- explained In the court inevitably satis- general these lines would Furman, fy each dis- capital-sentencing sys- the concerns of sible construct an system tinct be examined on must capable meeting tems Furman’s constitu- individual basis. . to fulfill the aspect tional concerns. One requirements guide is to devise standards Florida,8 procedures to Proffitt sentencing sensible review were not- capital jury’s appellate deliberations. ensure a court, ad- receiving ed. trial after formulated The court cited the standards (which deter- visory from the sentence .Code, Penal of the Model the drafters aggravating circum- mines whether (Tent. A.L.I., Model Penal Code 201.6 jus- outweigh mitigating), must stances 9, 1959) possi- it was Draft No. to illustrate tify imposition point to the main circumstances of ble re- findings. Upon appellate with written mitigation aggravation and as means of view, aggravating and the evidence of the guidance sentencing au- providing mitigating circumstances reviewed thority. Doing so would reduce likeli- independently re-weighed determine imposition arbitrary óf of an hood the ultimate imposition whether capricious sentence. urged In Proffitt was warranted. circumstances cannot The court stated: 195, Gregg Georgia, supra; 6. 96 2935. v. note 2 Proffitt v. 428 U.S. S.Ct. 4. 2960, Florida, 242, 96 49 L.Ed.2d 428 U.S. S.Ct. Texas, 262, (1976); Jurek v. 428 U.S. 96 913 Id. 2950, (1976). S.Ct. 49 L.Ed.2d 929 supra. 8. Note 4 Carolina, U.S. Woodson v. North 428 96 (1976); v. S.Ct. Louisiana, 49 L.Ed.2d 944 Roberts 49 L.Ed.2d weighed against mitigating without the sentences under law. sys- Because this assignment weights by of numerical tem serves to assure the sentences of legislature to each factor. “wantonly” death will not be or “freak- ishly” imposed, it does not violate the response, the court said Furman was Constitution. . . sentencing authority’s satisfied when guided discretion is by spe- channeled Carolina,11 In Woodsonv. North the court factors, eliminating thus arbitrariness cific found a mandatory death sentence was not capriciousness. The trial court’s sen- constitutionally a proper response to Fur- tencing guided discretion is and channeled rejection man’s jury unbridled discretion by system which focuses on the circum- imposition capital sentences. The stances of each individual homicide. There- court observed that central to the limited after, Supreme the Florida Court reviews holding concept in Furman was the that the each death sentence to ensure similar re- vesting sentencing power of standardless sults in similar cases. jury Eighth violated the and Four- Texas,9 In Jurek statutory the Texas mandatory teenth Amendments. A death scheme Although was found constitutional. papers problem sentence over the of un- Texas statutory aggravating does not have guided jury and unchecked discretion. The have, Georgia circumstances as and Florida mandatory provided North Carolina act offenses have been confined to a guide jury standards to in the exercise group narrowly small defined partic- power of its to determine who lives or dies. offenses, ularly brutal which fulfill the Furthermore, way provided there was no purpose. sentencing same In the phase of judiciary for the arbitrary to check the proceedings, jury required re- capricious power exercise of the through a spond statutory, designated to three ques- review of the death sentence. The manda- tions. If the finds the has sus- tory death sentence does not fulfill Fur- proving beyond tained burden of a rea- viz., man’s requirements, basic arbitrary doubt, sonable the answer and wanton replaced discretion be questions, affirmative to each of the then objective guide, regular, standards to make imposed. sentence is The court reviewable, rationally process stated: imposing sentence of death. Since there is By narrowing its of capital definition qualitative difference in the sentence of murder, essentially Texas has said that death, there is a corresponding difference in statutory there must be at least one ag- reliability need for in the determination gravating circumstance in a first that death appropriate punishment is the murder case before a death sentence specific case. By even authorizing be considered. responded Louisiana also to Furman bring defense to before the at the enacting a mandatory penalty; death how- separate sentencing hearing of whatever ever, there requirement that four ver- relating setting dict forms forth first and second adduced, individual defendant can be degree murder, manslaughter, and not sentencing Texas has ensured that guilty, be jury, submitted to the whether jury will adequate guidance have to en- requested raised the evidence de- perform sentencing able it to its function. fendant. In Roberts v. Louisiana12 By providing prompt judicial review of murder, said Louisiana’s court definition of jury’s decision in a court with state- although jurisdiction, provided wide more narrow than Texas has North evenhanded, Carolina’s, promote means to controlling ra- was not of constitu- tional, imposition and consistent significance.. tional The constitutionally supra. supra. 9. Note 4 11. Note 5 supra. 10. 428 U.S. 96 S.Ct. 2958. 12. Note 5 mandatory sentencing cases to consider the circumstances of the of proscribed vice the of focus on the circumstances the particular was lack crime and attributes of the and the character particular However, the offense of offender. this discre- individual The di- propensities of the offender. limited aby tion must be directed and presented by cases versity circumstances of purpose designed specific with the of means killings during single category of within a minimizing arbitrary capri- risk of the as well specified felony, of a the commission sentencing body. Final- cious aсtion offenders, variety possible under- as sufficiently definite ly, there must be rigidity of Louisiana’s enactment scores the identification of the factors specification or similarity its to the North Carolina upon by sentencing authority, relied con- opportunity for statute. There no decision, judicial reaching so perceptible its mitigating presented factors sideration of to review available ensure sentence particular by the circumstances of imposed capriciously not or in a has been crime, individual byor attributes freakish manner. mandatory sentence also offender. The plan imposition statutory The Utah for requirement with comply fails to Furman’s comply with not does re- jury discretion be that standardless To requirements. minimal hold the these safeguard which procedures placed by statutory requires el- scheme constitutional arbitrary capricious imposition over evation form substance. The court observed death sentences. 76-5-202(1) aggravating sets forth the cir- provided procedure neither stan- Louisiana incorporated which are as ele- per- cumstances judgments, nor dards to channel first arbitrary capital exer- ments of the crime of mitted review to check the sentencing capital jury’s Although de facto these circumstances are cise murder. Carolina, there As North discretion. than the five under the more numerous guide provided were no standards statute, require- do fulfill the Texas power select jury in the exercise of its statutory aggravating circum- ment degree murderers who would those first During guilt phase pro- stances. sentence, possibili- receive the death aggravating ceeding, at least one these discerning of a review of the ty appellate beyond must be found a rea- jury’s decision. finder, doubt, by the or the sonable fact subject capital sen- is not concept defendant Further substance to the court’s phase During sentencing appellate provided review was tence. perceptive 76-3-207(1), in addition proceeding, in Gardner v. Florida :13 under circumstances, statutory admin- Since State must body sentencing sentencing hears capital procedures ister its impor- [Citation], even it is matter the court deems relevant an hand appeal mitigation disclose aggravation tant that record of the sentence. reviewing the considerations court findings, ag- makes no Since motivated the death sentence gravating circumstances other than imposed. With- every case in which it is considered, impossi- it is statutory ones are for the out full disclosure of basis to conduct a appellate ble for court sentence, capital-sen- the Florida discerning precise to determine the review tencing procedure subject would be the verdict considerations which motivated holding of defects which resulted type problem applies of death. The same Georgia. unconstitutionality in Furman v. circumstances, regarding the appellate is no which the

there means the jury can whether did cases, court determine general foregoing From the certain evidence, it, disregarded believe the concepts emerge. There must be discretion body the evidence insufficient. sentencing found conferred on 1197, 1206, 349, 361, (.1977). 51 L.Ed.2d deficiency in The most serious the Utah death of the deceased or another would statutory sup- scheme is the total failure to result; ply any guidelines sentencing to the author- (2) probability Whether there is a ity mitigating in the assessment of the the defendant would commit criminal aggravating circumstances. The statute acts of violence that would constitute a proof neither states who has the burden of continuing society; threat to quantum the assessing nor of this burden in If raised the evidence whether aggravating mitigating the circum- the killing conduct of the defendant in Through stances. this omission the sen- the deceased was unreasonable in re- effect, tencing authority, in has unbridled sponse provocation, any, by if the discretion to who determine shall die and 37.071(b) (Supp.1975- deceased. Art. who shall live. 1976). Pierre,14 compen In State imposed, The death sentence is only if the legislative sated for the omission supply jury proved, finds the has beyond State Pierre, guidelines. the In the trial doubt, reasonable the answer to each of the

judge had instructed the had questions three is affirmative. If the an- prove burden to a death sentence was swer questions negative, of the case, appropriate. In the instant the trial imprisonment imposed.15 sentence of life statutory provisions court adhered to the 76-3-207(2) concerning and no instruction § The Utah statute lacks a counter-balance proof quantum the burden of or its Namely, similar to that of Texas. Utah Pierre, held, given. In this Court in the require does not the state to sustain a simi- offenses, penalty phase capital the bur doubt) lar burden (beyond a reasonable con- proof den of for a verdict of death was on cerning mitigation, the circumstances in State, totality and the of evidence of it during guilt phase regard does aggravating circumstances must therefore statutory aggravation. outweigh totality mitigating circum Although the Pierre test is effective in stances. Georgia states such as and Florida where opinion As noted in the of Mr. Justice sentencing body aggra- finds both the Wilkins, opinion public in Pierre became vating mitigating circumstances and after the matter at hand was tried. weighs during them penalty phase, Jurek, In aggravating where the circum- has the effect under the Utah statutory are, effect, incorporated stances as an creating scheme of mandatory pen- offense; and, element of the inas alty. Specifically, aggravating since the Utah, are determined the fact finder (the ones) statutory have al- beyond during guilt reasonable doubt ready proved been under a standard of phase proceeding, the same burden of proof grеatest magnitude which is of the proof imposed during on the state judicial system (beyond a reasonable penalty phase. doubt), circumstances must Jurek), necessarily always outweigh (again specifically, mitigating However effect, following must mitigating answer three circumstances. questions penalty phase; after re- proof circumstances must attain a level of ceiving circum- magnitude of a unknown unidentified in stances: legal system; outweigh aggra-

(1)Whether vating present circumstances. The statute the conduct of the de- prior does not even have the latitude fendant that caused the death of the de- statute, 76-30-4, ceased deliberately permitted was committed expectation with the leniency. reasonable to recommend Utah, Texas, 572 P.2d 1347-1348 15. See Jurek v. review, viz., statutory plan support has a format does evidence The Utah Model Code16the stan- finding mitigating similar to the Penal there were no circum- Gregg which were commended in dards of sufficiently stances to call for substantial However, aggravating Georgia.17 contrast, statute, In leniency. the Utah circumstances, which are first determined omission, through legislative the sen- leaves phase Penal penalty in the under the Model tencing body with carte blanche discretion Code, guilt phase in engrafted into the aggravating in its evaluation of the and Code, and more the Utah become one or mitigating circumstances. murder, 76-5- elements of first § Furthermore, even with the Pierre bal- through (h). forth 202(l)(a) Both Codes set standard,, ancing statutory which has no pen- mitigating circumstances in similar authority,19 appellate there can re- be no 76-2-307(l)(a) through (g). alty phase, § view, cognition, for the court is left to no provides The Utah Code silent and speculate sentencing body whether the did guidelines as to the manner in which mitigating not believe the evidence of cir- mitigating sentencing body deals with the cumstances, whether or it was determined aggravating circumstances. The Model and mitigating aggrаvating outweighed supplies these deficiencies. Sec- Penal Code facts. 210.6(2)provides: tion The deficiencies in the Utah statute are exercising The court in its discretion as vividly illustrated the matter at hand. sentence, determining the jury, and evidence There was a substantial amount of verdict, upon its shall into account take ingested had rather substantial aggravating mitigating circum and (Preludin Valium) drugs quantities (3) enumerated stances in Subsections beer) (whiskey prior to the and alcohol (4) any it deems other facts that addition, In there was included murder. relevant, impose but it shall not or recom evidence, during penalty phase it finds mend sentence death unless stating de- proceeding, psychiatric report a aggravating circumstances one fendant had acted in state of diminished (3), further enumerated in Subsection reason, ability capacity, without mitigating finds that there are circum no drugs. intoxication Such caused sufficiently to call for stances substantial mitigating supports statutory leniency. When issue is submitted circumstance, 76-3-207(l)(d): § jury, the Court shall so instruct. murder, capacity At the time of the crimi- appreciate of the defendant my opinion, if the doubt the has (wrongfulness) or to nality of his conduct penalty proper, it should not im- requirement[s] conform his conduct to the in- pose penalty; and it should be. so substantially impaired was as of law structed. disease, intoxication, or result of mental clearly guides The Model Code format drugs; influence authority’s dis- sentencing and channels the con- given instruction cretion and thus averts arbitrariness and Furthermore, circum- capriciousness. guide- cerning which this manner vis-a-vis, with cognitive appellate appraised, provide lines basis for stance should statute, A.L.I., Code, Proposed pursuant Penal if Model Official that even A.L.I., Draft, 210.6, 128-132; present, pp. see were also Code, pp. imposed Model Penal Tentative Draft No. found need not if the circumstances; outweighed mitigating 59-63. were is, constituting justifica- circumstances not 17. 428 U.S. 193-195. question, ‘but or excuse for offense in tion which, mercy, may be con- in fairness and [Emphasis p. supplied.] 18. Id. at extenuating degree’ reducing as sidered culpability punishment. moral 589-591, Georgia, 19. See Coker v. supplied.] [Emphasis 53 L.Ed.2d instructed, it is stated: also wherein “The court circumstances, statutory aggravating respect With circum- evidence, well as the facts in other stances, provides you may the law Thus, proceeding. this Court phase following: consider the speculate on review is left to whether the (a) The significant defendant has no concerning the evidence jury disbelieved history prior criminal activity; circumstance, statutory mitigating ig- (b) The while murder was committed statute, nored the or attributed little the defendant was under the influence weight it. The record does not disclose to of extreme mental or emotional distur- to this court the basis and considerations bance; , motivated the death sentence.20 which (c) The defendant acted under ex- An of the instruction to the examination treme duress or under the substantial jury during penalty phase clearly re- person; domination another veals the constitutional infirmities in the statutory plan. Significantly, the in- (d) murder, At the time of the 76-3-207(2),21 struction adheres to capacity appreciate of the defendant to concerning’instruction only is the statute to criminality (wrongfulness) of his jury during penalty phase. conduct or to conform his conduct to The jury court instructed the as follows: requirement of law was substan- Jury:. Members of the tially impaired a result of mental as Having guilty found the defendant disease, intoxication, or influence of homicide, the crime of criminal murder in drugs; degree, capital felony, the first which is a (e) youth The of the defendant at now, law, you responsi- have a under crime; the time of the bility respect to the sentence for (f) accomplice The defendant was an that crime. ' murder committed another provides The law that when a defend- person participation and his was rela- guilty ant has been of a found minor; tively felony proceeding there shall be a further penalty. issue of The (g) Any mitigation other fact in imposed which will ultimately pro- be penalty. impris- vided law either or life death provides you The law further if onment. death, return a unanimous verdict for provides may The law that evidence be imposed by then that sentence is to be presented you any to as to matter the hand, you Court. On the other if do not sentence, court deems relevant to the in- death, reach a unanimous verdict of then cluding but not limited to the nature and required impose the Court is to a sen- crime, circumstances of the the defend- imprisonment. tence of life character, background, history, ant’s is, parties The to proceeding, this condition, physical mental and defendant, of Utah and aggravation mitigation other facts in may proceed bring you now before penalty. attorney, State’s such circum- attorneys defendant’s and the defendant may stances as be relevant to the sen- permitted present are and will be evi- imposed, tence to be and at the conclusion arguments against dence and for or sentence of death. proceedings you will retire for Florida, death, supra. agreement impose 20. Gardner v. note 13 sentence discharge impose court shall and shall be, jury, may 21. “The court or as the case shall the sentence of death. If the is unable to penalty. proceed- retire to consider the ings In all imposing a unanimous verdict the sen- reach section, jury, before a under shall be death, discharge tence of the court shall punishment imposed instructed as impose imprison- the sentence of life upon a unanimous verdict for death and that to ment.” imposed if a unanimous verdict for jury reports not found. If the unanimous prejudicial With reference to the error of When in the course thereon. deliberation your you testimony, either reach a to make deliberаtions the inadmissible I wish you for death or be- unanimous verdict This be deemed of comment. error such unan- reasonably satisfied that come The Utah Consti- constitutional dimension. rendered, not be then imous verdict will I, tution, provides: Article notify having you in you will the officer prosecutions criminal the accused into court. charge you who will conduct . to be right shall have the . con- forms, two you I hand herewith will fronted the witnesses him one which is denominated Sentence other has no denomina- Verdict further, go Although, necessary it is not tion. note, Gregg, it is well to the court ex- The sentence verdict reads: procedure which pressed approval of a does “We, impanelled in the above Jury unnecessarily restrict the cause, having found entitled heretofore hearing. The can be offered at the of criminal homi- guilty the defendant court admonished: cide, degree, render a murder in the first long . So as the evidence intro- for death.” verdict arguments duced and the made at the The other form reads: hearing prejudice presentence do not have been conclud- “Our deliberations defendant, impose not to preferable ed, reasonably we are satisfied that restrictions.23 we will not a unanimous verdict for reach v. Georgia,24 In Presnell the court stated death.” procedural principles the fundamental of appropriate sign foreman will The apply no less force at the fairness with other, bring and not the both form capital penalty phase a trial in a case of forms into court. guilt-determining phase in than do you You take this instruction v. criminal trial. In Florid Gardner to the room. a,25 capital in a the court observed that day September, Dated this 22nd case, sentencing process satisfy must 1977. of the Due Process Clause. requirements legitimate in The has a interest Allen Hon. B. Sorensen which leads procedure the character of the Judge. The imposition ‍‌​​​‌​​‌‌​‌‌​‌​‌​‌​​‌​​‌‌‌‌​​​‌​​‌‌​​‌‌‌‌‌​​​‌​‌‍of sentence. court instruction, jury had this un- Under given must to the cоnsideration stated impose or withhold trammeled discretion quantity well infor quality as as the The recital of the penalty. mere sentencing body upon which mation mitigating circumstances statutory found, the court in a may rely. Gardner instruction, any guidance as its without case, capital reliability interest usage weight, suitably not direct or or did sentencing the information used so limit the discretion of process outweighed other asserted interests wholly arbitrary and minimize the risk of of the State.26 capricious The conclusion com- action.22 Gardner, analogous to where case is This statutory scheme im- pelling, judge informa- used confidential trial position violates the determining to process of sen- tion in the Eighth Amendments of the and Fourteenth The I, court Constitution, tence the defendant death. Art. § United States process due ruled defendant was denied Constitution Utah. supra. supra. Gregg Georgia, 25. 13 note 2 Note 203-204, 358-359, 23. 428 U.S. 96 S.Ct. 2939. 97 at 1204-1205. U.S. at S.Ct. 430 14, 15, 58 L.Ed.2d 24. 439 U.S.

law, imposed, when the death sentence was ble relation purposes objectives or part, at least in accomplished on basis of information to be by the act. If some opportunity deny persons transactions, which he had no excluded from explain. law, defendant Brown’s death operation Since were as to the sub- based, part, sentence was ject on information matter of the law in no differentia- (hearsay hearsay) unreliable, that was ble class from those included within its opportunity and where he had no operation, to con- the law is discriminatory in the accuser, process front his he was denied due being arbitrary sense of and unconstitu- of law. tional. . . Even if there awere reasonable doubt as objective The or functions of the death prejudicial, to whether this error were retribution, purported are to be i. court has ruled the doubt should be resolved e., a society’s outrage vindication of moral defendant, especially favor of the where at particularly pos offеnsive conduct the error violates a defendant’s constitu- sible deterrence of by prospective crimes rights.27 tional ders.29 offen Anomaly 76-5-202 Section offensive, brutal, The most cold-blooded n degree homicide is second murder if its aspect Another of constitutional dimen- within specified those sion which merits consideration is the arbi- 76-5-202(1). rapes If “A” and mur- trary and unreasonable classification of woman, ders a degree murder, it is first second and first murder. (l)(d). subdivision If “B” tortures and mur- 76-5-202(1) provides: raping ders woman without her and dis- (1) Criminal homicide constitutes mur- sects body, degree her it is second murder. degree der the first if the actor inten- If “A” people murders two at the same tionally knowingly or causes the death of time, murder, it is first degree subdivision another under any following cir- (l)(b). If “B” people, murders a dozen each cumstances: . time, separate at a each murder is in the provides: Section 76-5-203 degree. second If “A” commits a murder (1) Criminal homicide constitutes mur- after previously he has been convicted of degree der in the second if the actor: degree murder, first or second it is first (a) Intentionally or knowingly causes degree murder, (l)(g). subdivision If “B” another; the death of commits prior a number of murders conduct, continuing conviction for this each person A convicted of murder in the first murder is in degree. the second If “A” kills degree subject is penalty, to the death his property, father to inherit his it is first person degree convicted of second murder murder, degree (l)(f). subdivision If “B” subject is to a imprisonment term of of not kills his father because he knows his father less than five years, be for life. him, disinherited degree it is second mur- degrees require Both of murder the actor pecuni- der. If “A” kills someone for some intentionally or knowingly cause the death ary personal gain, or degree it is first mur- another, distinction classification der, (l)(f). subdivision If “B” kills someone eight involves the circumstances set forth in personal enjoyment for the thrill or in kill- (a) (h) through subdivisions inclusive in ing, degree it is second murder. 76-5-202(1), the degree first murder stat- utе. us, In the matter before defendant could legislative

A classification is never ar- not have degree been convicted of first bitrary long or unreasonable so as the murder if he could have convinced the basis for differentiation purpose prevent bears a reasona- his was not to the victim Eaton, Utah, (1977). 153, 183, 29. Gregg Georgia, 27. State v. 569 P.2d 1114 v. 2909, 2929-2930. McGinn, Utah, 28. Leetham v. 524 P.2d proof to instruct on the burden of to be testifying legal proceeding, in a subdi- from killed (lXh), penalty phase but rather he because borne at the vision state Furthermore, had irritated him. appeal. the victim never nor on It is also raised below victim, had murdered after if defendant particular exceptions note that were testified, although had motivated he given. as taken the court’s instructions guilty he been vengeance, would have addressing sponte, the matter sua degree Admittedly, murder. second opinion appear main would to misconstrue important; have defend- timing would been trial and purpose of the bifurcated have kill the victim after ant would had to function, meaning and grossly distorts its he was convicted of he testified before Gregg Georgia,1 effect. In the case of degree second murder. Supreme approved the United States proceeding to that a bifurcated similar foregoing examples The illustrate the adopted separat- The in Utah. reason persons or transactions excluded from the guilt from a deter- murder determination operation statute first statute, are, subject mination is to avoid the constitu- to the matter of pitfalls class from those includ- tional which exist in the automatic in no differentiable operation. imposition following The basis differen- ed in its of the death the two classes murder tiation between crime.2 As stated in conviction of a relationship does not bear reasonable Gregg, objectives purposes avowed to be relevant Much the information that is viz., penalty, vin- accomplished sentencing mаy have no decision society’s outrage particularly dication of question guilt, may relevance to the conduct and the claimed deterrent offensive fair extremely prejudicial even to a arbitrary value. classification question. of that determination [Citation discriminatory law is unreasonable however, problem, This omitted.] grounds on the and unconstitutional who scarcely insurmountable. Those crimes from the de- heinous excluded first question suggest that a have studied the are, gree subject murder statute as to in which the procedure bifurcated —one matter, not differentiable from those in- un- question of sentence not considered cluded. guilt til the of has been determination aspect could be made—is the best answer.

The unconstitutional Eighth based on the and Fourteenth equally dealing two-step Although we are with a ground the Amendments the classifica- “guilt” may process, decision the evidence degree tion between first and second mur- overlap “penalty” well with the evidence. effect, in provides, a random and arbi- der Indeed, evidence need be sub- no additional trary imposition penalty. the penalty both the phase, mitted.3 At the oppor- prosecution the defense have the HALL, (concurring Justice and dissent- tunity any evidence of present additional ing): have, aggravation mitigation they may or conviction, affirming the but I concur any go forward. but neither has burden to opin- the portion from that main dissent Indeed, any may elect to offer not judgment imposing the ion reverses the merely argue additional evidence penalty. penalty propriety imposing the death guilt the based on the evidence adduced at opinion acknowledges that the The main pur- For phase. (As Gregg). was done in relating to trial court’s “failure” issue the 153, 2909, Gregg, con- 3.In Court held that “[e]vidence 1. 428 U.S. S.Ct. 49 L.Ed.2d 859 96 during guilt stage may (1976). con- sidered stage during sentencing without sidered being Carolina, 96 2. Woodson North resubmitted.” (1976); 49 Roberts v. S.Ct. L.Ed.2d 944 Louisiana, 49 U.S. L.Ed.2d 974 death, sentencing poses circumstances, a defendant to sider the any, facts and if that, jury only presented find from the “to- parties mitigation need evidence,” tality aggravating aggravation. cir- outweigh cumstances cir- Finally, judge jury instructed the cumstances.4 that it “would not be authorized to con- n penalty phase sider [imposing] of death” adversary is not an beyond unless it first found a reasonable sense; rather, proceeding in the traditional aggravating doubt one of these circum- it is proceeding whereby a neutral both stances: court then listed three of [The prosecution defense are afforded the statutory aggravating circumstances opportunity apprising jury of circum- Georgia.] already regarding stances not before it de- character, background, history, Regarding fendant’s the court’s final instruction above, physical quoted mental and it is of Georgia, condition and other note that in jury aggravation mitigation facts in can convict a defendant of a Also, offense penalty.5 considering aggravat- the court itself is without even afforded the opportunity becoming directly aggrava- circumstances.8 Evidence of in- prosecu- tion need not be submitted process, volved in this evaluation since the penalty phase,9 tion until the provides statute at which time proceed- these “[i]n at least one circumstance must ings, presented any evidence as to beyond be found a reasonable doubt before matter the court deems relevant to sentence can imposing consider weighs . .” The then ag- finding, of death. After so aggravation is gravating the miti- weighed against mitigation determining the, gating circumstances to pen- determine Utah, penalty. In a jury before can alty imposed.7 to be even convict a defendant of first opinion While the main cites authority murder, it ag- must find that at least one in support analysis, Gregg of its contains gravating proven circumstance has been be- language consistent foregoing. with the yond Then, a reasonable doubt.10 at the affirming judgment, the Court recited penalty phase, weigh is to the facts Gregg as follows: aggravation against mitiga- evidence of At penalty stage, place which took tion in passing upon a sentence. It would jury, prosecu- before the same neither appear procedure therefore that Utah’s of- tor nor the petitioner’s lawyer offered fers even protections additional to a defend- counsel, additional evidence. Both ant, present in Georgia’s procedure however, lengthy arguments made deal- specifically which has been approved by the ing generally propriety capi- with the Supreme United States Court. punishment tal under the circumstances reasons, foregoing For the it was not weight and with the evidence of upon give specific incumbent the court to guilt. The judge jury trial instructed the instruction as to proof burden of in the that it could recommend either a death case, especially instant where neither party sentence prison or a life sentence on each requested it. judge count. The charged further the determining that in' what opinion sentence The main also bases its decision appropriate was prejudicial was free to con- the effect of certain testimo- Pierre, Utah, (1977), Georgia (1972). 4. State v. 572 P.2d 1338 8. See Code Ann. § 26-1101 denied, cert. L.Ed.2d 194 Georgia (Supp. 9. See Code Ann. 27-2534.1 1975). given 5. An instruction to this was effect penalty phase of the trial. is, fact, Aggravation an element of the 10. U.C.A., 1953, offense. 76-5-202. U.C.A., 1953, 76-3-207. Supra, footnote 4. thereof, phase. penalty my permit It is the Courts or the Justices to ny admitted at any personal justify assuming, arguendo, predilections to ration- opinion even that that way regard alizations one or the other to improperly Watson was testimony propriety admitted,11 efficacy penal- or of the death testimony of other witnesses ty. making pre- of the laws and the clearly aggravation outweighed show that scribing in which the manner are to per- mitigation in the instant case. Several prerogative be carried out is the and the guilt phase of the trial sons testified in the Whereas, legislature. responsibility of the the same that had used and simi- judges it is the that duty bounden see language used other lar obscenities and had laws those are carried out accordance disregard callous which the same reflected purpose, with their and without com- intent by testified to Wat- for human life as was punction resulting or from our distortion jury’s son. The consideration these other ought own notions what the law to be. as to assuages any possible error and testimonies it harmless.12 renders commendably The main and cor- opinion defend-, disposes of the rectly discusses and overwhelming totality Given the assignments attacking ant’s of error in his and the extreme impelled to eyidence disagree conviction. But I am mitigation, it paucity of offered position was with the there error in obviously not to be said failing proof to the burden of instruct as imposed as the result of the “penalty phase” proceeding. in the action arbitrary capricious of an aber- and jury. contrary, rant the record of On the guilt In the case to the trial of the or as. supports ver- adequately trial before us defendant, fully, innocence of the the court dict of The acts of defendant in death. carefully instructed the repeatedly unusually committing this serious presumption of the as to defendant’s violence, shocking of raw heedless of crime was upon innocence that the burden proven life, proven in the human were —and prove and all of the elements each just trial. environs of a fair and charge beyond him reason- able doubt. judg- I the verdicts would affirm

ment. pre- of the statutes From examination cases, scribing procedure abun- in such CROCKETT, (concurring Justice Chief legislature clear dantly intended conviction, with affirmance of but dissent- guilty if an accused is found judgment): intеrference subsequent pen- felony, then agree opinion’s phase any I with the main affirm- alty proceedings formali- procedure ance of conviction. But I ties of to be relaxed for the the defendant’s receiving judi- purpose inquiry, am see it as consistent with of full unable to information, any on behalf of the prerogative responsibility nullify cial either defendant, State, recommendation, as to mat- jury’s judg- or of the mitigation which aggravation ters of ment thereon trial court. entered problem on the as to should considered These extended trial in careful done after imposed. to be law and conformity with the conscientious aspects of all the case consideration out just The view is borne stated Sec. jury. both court and 76-3-207, provides U.C.A. subsequent hearing part and states in such preface observations in this that: dissent, partial appropriate I think it proceedings, In these evi- regard proper it

observe that I do not as a any as to writer, may presented matter prerogative of this nór of dence or concern opinion separate 12. That this reverse a verdict But Jus- Court cannot see the Chief error, U.C.A., interprets Rule Utah Rules tice for harmless see Crockett which Evidence. 76-3-207. sentence, relevant to in- the court deems related to reservations because of the seri- cluding (a limited to the but not nature and ousness of the death matter crime, emphasize legislative which I is properly circumstances of defend- character, judicial concern) background, history, ant’s and not of and has the condition, interfering effect of defeating with and physical any mental and and express legislative processes intent as to aggravation mitigation other facts in justice, carrying rather than them out. penalty. Any of the evidence the court probative may force deems to have Notwithstanding gravity of this mat- regardless admissibility received of its ter, that, inescapable it seems to me how- exclusionary under rules evidence. ever unpleasant and stark the realities of [Emphasis added.] be, may the situation the facts should be that, significant up guilt phase It is further to note in so faced to that in the trial, ample both prescribing procedure, opportunity that statute sides had does present arguments all of their evidence impose any requirement as to burden of jury; to the court and and that when proof. they disharmony I see no with the obser- trial, penalty phase arrived at the vation made in v. Pierre1 that “the both sides likewise were full and totality of evidence of circum- afforded opportunity present fair whatever facts outweigh stances must therefore the totali- they thought might upon questions bear ty Simply circumstances.” mitigation aggravation. stated, case, unless that is the a death sen- imposed. tence could not and would not be review, Upon duty of this Court obviously That is so matter of common to assume that the believed those as- require explana- sense as would not further pects support of the evidence which their so, jurors. Particularly tion to the when verdict and their recommendation. Under they already had been told several times assumption, the sordidness of this prove it was the burden to State’s hardly crime could be overstated. The beyond a every reasonable doubt element of opinion correctly main characterizes it as “a defendant; against the accusation shocking and crime violent of murder in the there had given been no other instructions purpose preventing first for the any proof as to other burden of in the witness from testifying” defendant. proceedings. accepting jury’s view of the evi- dence, indisputably plain it seems that the It worthy is also of note that neither the defendant, arrogant in truculent and defi- any request defendant nor made the State law, appointed ance of the had himself as any such further instruction in the trial Losh; the executioner of Steven court, nor any point raised such in this up plan defеndant set for and carried out However, I certainly Court. have no disa- upon a heartless and cold-bloodedexecution greement proposition with the that in mat- victim when he was cowed down in import, appears ters of such serious if it begging mercy; submission that there any reasonable likelihood that vulgarity that the vileness and of his con- any prejudice may to the defendant have said, duct in what was pre- done and both omission, resulted because of error or ceding following proper- that crime are this Court should take notice thereof and ly as manifesting unspeakable characterized However, correct it on its own initiative.2 depravity. Under that version of facts as impres- that is not the It my case here. accepted jury, the verdict and recom- opinion, acting sion that the main on its hardly surpris- mendation arrived at is question own motion to raise the as to an ing. proof penal- instruction on burden trial, ty phase specious above, constitutes a to what Correlated has been said objection, having bearing but unrealistic well be on the issue under Utah, Cobo, (1936). 572 P.2d 1338 2. State v. 90 Utah 60 P.2d 952 here, is: Was question the vital discussion JENKINS, Lynn A. Plaintiff any or omission in the sentenc- there error Appellant, and prej- which was phase proceeding It is submitted to the defendant? udicial v. objective upon a and view the that fair FINLINSON, Fred W. Utah State Bar situation, appears without doubt total Association, Matheson, M. and Scott instruct, any nor any neither failure that Respondents. Defendants and evidence, any had receipt error No. 16257. upon adverse effect the defendant or such Supreme Court of Utah. judgment any rendered that there otherwise likelihood there reasonable Feb. have been a different result.3 would final There this observation defendant, assures this

made. Our law crime, persons other accused of numer-

all rights protections ample

ous punishment conviction

innocent,4 appear all which to have ‍‌​​​‌​​‌‌​‌‌​‌​‌​‌​​‌​​‌‌‌‌​​​‌​​‌‌​​‌‌‌‌‌​​​‌​‌‍been carefully accorded this defend-

properly Nevertheless, anything if there is

ant. bespeaks yet nature whatsoever which behalf,

clemency including any in his subse- conduct, provides law

quent expiatory our prob- still further consideration of Pardons, has

lem our Board of a death sen- power

unrestricted commute

tence, if it is the persuaded thing

proper to do.5 herein, the basis of what has been said

On opinion has had my

it is law, under our

his full and fair entitlement impro- been error or

and that there has justify

priety therein which would verdict interference with the

Court’s judgment; and that it is therefore our

duty to affirm them. Utah, I, Wells, Sec. 603 P.2d 810 4. Art. Utah Constitution. 3.State authorities cited therein. VII, Constitution. Art. Sec. Utah

Case Details

Case Name: State v. Brown

Court Name: Utah Supreme Court

Date Published: Feb 7, 1980

Citation: 607 P.2d 261

Docket Number: 15481

Court Abbreviation: Utah