State v. Carter

true, Accepting Taylor’s as as we relinquish right.” statements intention summary judg- appeal on from a the must do relinquish 940. The intention Id. at ment, Corp., Winegar v. Froerer may expressed implied right either be (Utah 1991), are to the led or inaction. Id. implied from action genuine inescapable conclusion that issues Here, summary judgment the is on was a waiver. fact exist as to whether there inappropriate would have been sue of waiver grant summary judg- We reverse Taylors have met K T and the because & for fur- ment and remand 56(e) of under rule the Utah their burden proceedings. ther Rules of Civil.Procedure to demonstrate for trial.” Paul “genuine there is issue A.C.J., HOWE, STEWART, via as follows: Taylor testified affidavit JJ., RUSSON, concur. DURHAM and plaintiffs At no eon- time did by pledge to a of his stock sent Koroulis (“FSB”). Although I Security Bank

First approached approximately March

was Pope, representative

1991 Richard (at

FSB, meetings personal loca- twice recall) I other times

tions can’t and various by telephone, regarding plaintiffs’ consent Utah, Appellee, Plaintiff and STATE Koroulis, pledge by plaintiffs proposed to a to execute the in each instance refused agreement submitted

form consent CARTER, Douglas Defendant Stewart Subsequent to March of FSB.... Appellant. contacts with FSB plaintiffs had no further No. 920110. else) (or anyone regarding the or Koroulis pledge. Supreme Court of Utah. subsequently, Koroulis told me fact Jan. occasions, telephone separate two conversations, worry, not to he didn’t need consents, the first such occasion

plaintiffs’ day after the second

occurring a or two present-

proposed Agreement Consent 1991). (approximately March

ed to me May 28, I received

On or about Brand counsel for Montana

letter letter, Company, Inc....

Produce 15,000 ownership Brand claims

Montana T, previously K & Inc. stock

shares of infor- by Koroulis. Plaintiffs’ first

owned Agreement had Pledge

mation executed, Brand Montana

been issue, an interest in the shares

claimed upon receipt of letter plaintiffs’

came said making

from counsel for Montana Brand Agreement.

reference no notice from

Plaintiffs at time received

Koroulis, by paragraph 1 of required as regarding Agreement,

the Stockholders’ providing pledge proposed to FSB right purchase their

plaintiffs a exercise

option contained therein.

lenge underlying murder conviction. conviction sentence. We affirm Carter’s challenging We deal first with those issues underlying murder conviction and then arguments regarding turn to Carter’s hearing. raises two respect underlying to his claims of error with (1) January denial of his conviction: motion in for a new trial and limine to motion alternatively sup- exclude evidence suppress press,3 and the refusal to law enforcement officials confession made Nashville, Tennessee.4 penalty hearing, respect to the 1992 With Gen., Dam, Atty. Claw- R. Van Carol Paul following arguments and Carter makes the Gen., son, Attys. Salt Murphy, Kevin Asst. J. § Utah Code Ann. 76-3- claims of error: City, plaintiff. Lake 207(4) face as is unconstitutional Provo, Barclay, Craig Snyder, M. Linda J. case, applied both the United to this under for defendant. Constitutions; (2) the trial States and Utah allowing error in court committed reversible DURHAM, Justice: allegedly jury to the heinous consider ap- aggravating Douglas Carter an cir- Defendant Stewart of the crime as nature sentence; (3) appeal for a pears determining this court on sec- his before cumstance by refusing ond In December Carter was to excuse for time. the trial court erred degree, in jurors in the first substan- potential convicted of murder who exhibited cause (4) incapacity; § Ann. physical 76-5-202 violation Utah Code tial bias and/or by admitting impact (Supp.1985),1 was sentenced to death. victim and trial court erred (5) evidence; admit- appeal, first the trial court erred his (Utah 1989) (“Carter I”), rape affirmed ting alleged we vic- evidence of tim; unanimously jury vacated the death did and the murder conviction but doubt, find, beyond jury erroneous instruction a reasonable specifically sentence due to an imposing aggravating circumstances and remanded factor relied on each sentencing sentence; proceeding. capital sen- the case for a new its and the Utah the United States tencing scheme violates hearing held in penalty was The second and Constitutions. Utah (“the hearing”).2 January penalty hear- At of the 1992 the conclusion AND PROCEDURAL I. FACTS unanimously rendered a ing, jury again a HISTORY appeals from this death. Carter verdict of history complex of this long sentence, having Given obtained second death case, complete recitation of appeal. undertake pending staying his execution order 27,1985, night February issues, the facts. On the purportedly not He raises new also Eva, wife, mur- discovered appeal, in a chal- Orla Oleson in his first renewed raised grounds, dismissed both on and the "aggravated under referred to as murder” 1. Now (Supp.1993). grounds. § them to- 76-5-202 address Code Ann. identical Utah gether. during represented new counsel hearing. That same counsel the pro supplemental se brief 4.Carter also filed appeal. on this acts as co-counsel sufficiency informa- challenging argu- We find these instructions. tion and recognize motion in limine to that Carter’s and, respect be without merit alternatively suppress ap- ments to evidence or exclude instructions, timely hearing under rule raised plies than the rather However, 26(9) phase proceeding. Procedure. guilt Rules of Criminal of the Utah on identical supported alternative motions Provo, dered their Utah home. The medi- tween his and his wife’s statements. Carter cal examiner testified that Mrs. had telling Oleson asserted that he was the truth. The back, eight police been stabbed times once in permission then obtained Carter’s abdomen, and once in the neck. The samples compare take hair with those examiner further stated that Mrs. Oleson police found at the crime scene. The learned gunshot had received a fatal wound to the a short time later that none of the hair Apparently, back of her head. the murderer samples taken from the Oleson residence be- gun point range through fired the blank race, longed to an individual of Carter’s Afri- pillow to muffle the sound. Other date, can-American. As of this Carter was revealed that Mrs. Oleson’s hands had been eight suspects one of about the homicide. tied telephone behind her back with a cord emerge prime Carter did not as the sus- pants pantyhose her had been 8, 1985, pect April sought until when his wife (or off) pulled lay down her feet. Her legal Deputy County advice from Attor- sanitary pad lay been had removed and also ney Sterling Sainsbury private attorney at her feet. morning April Robert Orehoski. On the Alcohol, specialist A with the Bureau of approached Sainsbury, Anne Carter whom Tobacco, and Firearms determined that the through position she knew her aas clerk for markings slug body on the removed from the court, juvenile him and told that she produced by consistent with those a .38 were thought her husband had been involved in However, special handgun. police could According Sainsbury, the Oleson murder. weapon not locate the at the murder scene. suspected Anne missing that her The knife used to inflict the stab wounds handgun, special, weap- a .38 was the murder came from the Olesons’ kitchen and was dis- Sainsbury on and she receipt showed body. covered on the near floor purchase. She feared that she would be possible suspect Carter first surfaced aas implicated accessory as an to the crime be- early in the case in to mid-March 1985. The handgun she cause owned the and it was police original included Carter’s name on the improperly registered. Finally, she men- suspects eye- list of for two reasons: An appeared tioned that some of Carter’s clothes probable witness identified Carter as the to be bloodstained. perpetrator attempted of an “automobile Sainsbury informed her that he was not trespass” which occurred about an hour or lawyer Deputy her and that as a Utah Coun- prior two to the in general murder the same ty Attorney, duty report he had a to her area, police the received information story County Attorney’s to the Office. He wife, Anne, that learning Carter’s on of the immediately then advised her to meet with a homicide, had told someone that she rushed private attorney and come forward with the home to see if her husband was involved. voluntarily. Early information that after- leads, 14, 1985, Following these on March noon, Sainsbury sought prosecutor out the police questioned met with Carter and case, assigned Deputy to the Oleson him about trespass both the automobile Watson, County Attorney Wayne and related charge Although and the Oleson homicide. Anne Carter’s statements. Carter admitted that he knew Mrs. Oleson5 and could not account for his whereabouts on approached Anne Carter then Robert Ore- murder, night he denied commit- hoski, private attorney represent- who was ting the crime. fingerprinted Carter was ing Coincidentally, her a divorce action. and released. private partner. Watson was Orehoski’s law 20, 1985, police again ques- March

On Anne Carter told Orehoski that Carter had regarding given tioned Carter the homicide. The her information about the mur- Oleson police they him told doubted his truth- der missing and that she was worried the discrepancies handgun fulness because of some be- would be traced to her. Orehoski home, products 5. Anne Carter accompanied by sold health care to Mrs. their time, Carter. At that occasion, Oleson. On one Anne found a wallet Anne told Carter that Mrs. Oleson had belonging jewelry Olesons’ son and returned it to "nice from around the world.” following provided the account of Eva seek a conditional Ole- recommended she evening February grant immunity exchange for infor- son’s murder. On her 27, 1985, friend, went visit Carter mation. Epifanio Tovar. at the Tovar While resi- parties dispute what at this occurred dence, met two of Tovar’s friends. point. Anne The State claims that recently escaped of the men was a One con- proposal requested agreed Orehoski’s a grudge against vict who held Provo Police County Attorney’s that he contact Office. Nielsen, Chief a relative Eva Oleson. Swen State, According con- Orehoski then go to The three men decided to the Oleson and, revealing Anne without tacted Watson gold residence and steal Mrs. Oleson’s neck- identity, proposed Carter’s described home, arriving at lace. On the Oleson Car- for immunity in return deal conditional car two ter waited while other men accepted proposal information. Watson on knocked the door and entered. Carter produced a condi- signed, handwritten know had did not that Mrs. Oleson been grant immunity gave which he tional until the men returned with murdered blood exchange information. Anne Carter her clothing on their and one of them said “she’s hand, Carter, on the other asserts that Ore- Anne he got dead.” also told ques- into invited Watson his office to hoski when he Mrs. Oleson’s blood his clothes regarding tion Anne Carter’s involvement pulled out one of the men into reached the murder. Carter further asserts the car. why Anne did Orehoski want- not understand Watson, ac- As speak her with but she a result of information received ed quiesced representa- police from Anne identified sev- because of Orehoski’s witnesses, including regarding grant Epifanio of immu- eral and Lucia tion conditional disclosure, gave very nity. As a result of Anne’s Car- Tovar. The Tovars different murder, stating investigation that Carter claims that the focus account of ter perpetrator bragged and even shifted from Orla to Carter. was the sole Oleson heavily on the his deed. State relied consent, Provo Pursuant to Anne Carter’s incriminating testimony Tovars’ trial. home, police officers searched the Carter provided Anne statements also au- handgun. Al- hoping missing discover ownership identity thorities they though they weapon, did not find the weapon,6 special the .38 murder the .38 cali- clothing articles of discovered several possession, ber bullets taken The appeared to be bloodstained. officers clothing. and Carter’s bloodstained requested, a signed, Anne then and Carter 11,1985, police a issued for permitting April On warrant was new consent warrant evidentiary The arrest for the Oleson homicide. for and seize article of Carter’s search day, an simultaneously following filed information A the State value. search warrant was capital murder. After charging circuit court. Pursu- Carter from local obtained authorities, warrants, fleeing Carter was new seized from ant to these officers Nashville, clothing and Tennessee. located and arrested several articles bloodstained jail, the Nashville Carter was inter- copper-jacketed .38 caliber ammunition simi- While at by and then viewed first Nashville authorities lar to that used in the homicide. by George Pierpont of the Provo Lieutenant day, Anne met with Later Carter City Department, who been sent Police had police give a formal state- Provo officers receiving Carter to After to extradite Utah. first, At refused to recount ment. she voluntarily warnings, Carter con- Miranda given had to Watson information she Pierpont. fessed to Lieutenant However, grew coopera- more Orehoski. she phase began assigned guilt of Carter’s trial new was to take tive when a officer hesitation, and, State theorized 1985. The statement after some December her trial, Epifanio mately missing a week before the 1985 never located the hand- 6. The authorities request, he had Testimony that at Carter's gun. that Carter had hidden Tovar admitted revealed whirlpool handgun portable whirlpool out of the and then stored taken the it in Spanish River. Approxi- Fork homes. thrown into the machine at various friends' victim before death.” Id. Faced with this that Carter acted alone the homicide and error, presented witnesses and evidence accord- manifest we remanded for a new sen- ingly. put Carter on no live witnesses but tencing phase because we could not “con- reports miti- present psychiatric did two prejudiced by [Carter] clude was not gation during penalty phase. (l)(q) subsection instructional error and its incorporation effective into the 18,1985, unanimously jury On December phase.” Id. at 896. guilty in the found Carter of murder first degree. special A verdict revealed that the preparation In for the second jurors had found two circum- 23,1990, hearing, on March filed its State beyond a stances reasonable doubt: Carter case, proposed presentation method of Eva while he was en- had murdered Oleson proposed in which the State to call witnesses gaged attempt an in the commission of or previous who testified at the trial and sen- aggravated burglary, commit and the homi- tencing phase. Ann. Pursuant to Utah Code heinous, especially cide was committed 76-3-207(4), § sought intro- State also cruel, atrocious, exceptionally depraved trial, original duce all the exhibits from penalty phase day manner. followed along transcript properly with a all admit- later, 19, 1985, jury and on December testimony. ted This “Abstract Tran- sentenced to death. Carter (the “Abstract”) script of Trial” contained all I, Carter appealed 1985 ver- testimony party introduced either at the grounds. dict and death sentence on several guilt original sentencing proceedings. following We reached the conclusions in that However, up” had “cleaned (1) appeal: confession was volun- transcript deleting arguments, counsels’ tary, correctly and the trial court denied his motions, objections. The State intended (2) suppress; motion to Fifth that the Abstract be admitted as an exhibit rights prejudiced Amendment were not when for the to take into the room. lack of State referred to the addition, the State declared its intent to read confession; regarding allegedly coerced excerpts particular, from the Abstract —in prejudiced by Carter was not the trial portions testimony directly of the Tovars’ — police court’s decision to allow a Provo officer jury. prosecution to remain at the table and then 4, 1990, On October Carter filed a motion State; testify for the opposing pro- and memorandum the State’s not denied effective assistance counsel. posed presenting method of its case. On I, 776 P.2d at 890-94. 30, 1991, January the trial court denied Car- Despite foregoing, we vacated Carter’s prior ter’s motion to exclude the transcribed pen- death sentence and remanded for a new testimony. Carter then filed an interlocu- alty proceeding because we found manifest tory appeal, asking us to review the trial during penalty phase. error committed 11, 1991, April court’s decision. On we de- § Pursuant Ann. Utah Code 76-5- interlocutory appeal. nied Carter’s On Janu- 202(l)(q), jury the trial court instructed the 16, 1992, ary trial the court denied Carter’s degree that it could convict Carter of first prevent being motion to the Abstract from murder if it found that the intentional or admitted as an exhibit. knowing homicide in an es- was “committed heinous, atrocious, cruel, 28, pecially 1990, excep- September or On Carter filed alia, manner.” Id. at 895. As tionally depraved discovery request seeking, inter the above, jury expressly tape original recording mentioned the found of his and confession particular aggravating this factor all and then evidence known to the State that tended making mitigate guilt. responded considered it when deter- to The State However, produce original tape mination. the trial court failed to that it could not the jury aggravating destroyed. further recording, instruct the that the as it had been As for evidence, in (l)(q) any possible exculpatory factor contained subsection “must be the State torture, by physical replied any way demonstrated serious that all evidence relevant abuse, physical bodily injury known the serious of the to the case and to State was jury regard. for to use this long ago made diet form the police reports included proposed refused the instruc- The trial court to available Carter. special The and verdict form. court’s tion 4, 1990, a motion Carter filed October On penalty jury included an instructions to into prohibit limine to introduction aggravating on heinousness as an instruction reference factor, objections. despite earlier Carter’s §Ann. 76-5- in Utah Code facts contained exhibits, jurors including court Carter’s took 202(l)(q). trial denied 16, Abstract, After deliber- 30, January room. January 1991. into on On motion hours, approximately six on Janu- 1992, unsuccessfully ating to for moved again Carter jury unanimously rendered ary on the of the prevent instruction again appeals his aggrava- a verdict of death. Carter nature the crime as an heinous sentence to court. death ting circumstance. January 16, week be- about one On ISSUES II. CONVICTION-RELATED penalty hearing, trial court

fore motions, mo- including several Carter’s heard Trial and A Motion New Carter’s for in limine for a new trial and motion tion Evidence Motion in Limine to Exclude suppress. alternatively to evidence or exclude Alternatively Suppress the issues latter motions dealt with These 8, 1992, a motion January Carter filed On by Anne surrounding the statement made in limine to a new trial and motion Orehoski, Watson, the Provo Carter suppress. alternatively to evidence or exclude both police officers. The trial denied the same These motions were based on January on motions newly grounds alleged discovered hearing began on Jan- The second i.e., sur- the circumstances information — January uary and concluded rounding statements au- Anne Carter’s dire, for cause During challenged voir Carter guilty verdict thorities —undermined Manwaring, jurors, including Alan several the exclu- a new trial or and mandated Fausett, Nancy Zabel. Lynne Connie inculpatory certain evi- sion/suppression of particular claimed that these three Carter penalty hearing. Carter at the 1992 dence substantial gave answers which indicated variety of with a in- supported the motions as a incapacity to serve physical bias and/or begin, To Carter arguments. terrelated juror. The court refused to dismiss disclosures violated the claimed Anne’s all three jurors, and later excused I, in article privilege rights contained marital challenges. peremptory the Utah Constitution7 and section 78-24-8(1) (1985) of Code. the Utah hearing, the State section the 1992 At Admitting subsequently discovered Abstract, which contained introduced evidence, Carter, in ef- continued “tainted” witnesses who testified all statements against right self-incrimina- fect violated his guilt sentencing proceedings. by the state and federal unsuccessfully objected guaranteed again tion excerpts from constitutions. plan read selected State’s entry into evi- also to its document and January further as- 1992 motions Accordingly, the State as an exhibit. dence improperly obtained the State serted it into transcript and entered from read evidence, statements, ultimately evidence. related, by exploiting two undis- Anne Carter First, Carter of interest. hearing, closed conflicts At the conclusion impres- gave that Anne claimed Orehoski requiring the requested an instruction in the mat- represent her ag- that he would unanimously specifically each sion and to find disclosing prosecutor reaching in a sen- ter without on factor relied gravating case, Watson, Wayne assigned to ver- Carter’s special Carter also submitted tence. I, section 77- does assert a claim under not in article privilege marital contained 7. The codified 12 of Utah Constitution is section 1-6. However, (1990). § Code Ann. 77-1-6 Utah Second, privilege recognized in law extends partner. tal Utah private law was also his assumption beyond a con- stand. This alleged that also had the witness Watson 78-24-8(1) wrong. Anne on flict of because Watson used is Carter relies section interest I, relationship to obtain section 12 of with Orehoski of the Utah Code and article argu- in support from her. Intertwined this in of his statements the Utah Constitution implication 1985,10 argument is the that Orehoski written in these standards ment. As attorney-client privilege and breached the provided: prosecutorial engaged mis- Watson testify compelled to wife shall not be [A] Finally, conduct. Carter’s motions asserted husband, against her nor a husband denied effective assistance of that he was against his wife.... by original his counsel’s failure to counsel Const, (codified I, § art. at Utah Utah known, they claims if were or raise these (1982)). 77-l-6(2)(d) § Code Ann. could have been discovered. Privileged There are Communications. The trial court denied both motions on the policy particular relations in which it is the ground, ruling privi- that “the marital same encourage confidence and to of the law to privilege lege is a testimonial and does not Therefore, preserve person it inviolate. pursuing preclude law enforcement from ad- cannot be examined as a witness and leads from the infor- ditional information following cases: supplied mation wife this [Carter’s] (1) A husband cannot be examined for further case.” The trial court determined consent, against his wife without her provide failure to counsel State’s against her husband nor a wife for or copy grant immu-

with a of the conditional consent; during without his nor can either nity impro- in an error or “[did] result be, marriage or afterwards without the priety which had or would have a substantial other, consent of the examined as to upon rights of [Carter].” adverse effect communication made one other primary argument thrust during marriage appeal is that the violation of the marital privilege, combined with Orehoski’s breach attorney-client privilege undis- 78-24-8(1) § (Supp.1985). Ann. Utah Code interest, improperly led to closed conflicts expressly we have not stated While discovery incriminating evi- the State’s privilege applies only the marital dence.8 the “tainted” evidence should given sought to be testimonial suppressed have been at the 1985 and 1992 courtroom, agree introduced within the

proceedings. argues also that he was Supreme po with the United States Court’s improp- denied a fair trial because the State States, sition Trammel v. United U.S. erly exculpatory withheld certain evidence9 n. 52 n. attorney’s original failure to his (1980), privilege that the marital L.Ed.2d 186 address these matters amounted to ineffec- “prevent[] does Government tive assistance of counsel. spouse give enlisting one information con argu cerning other or to portion

The first of Carter’s aid the other’s only assumption apprehension. spouse’s mari- It testó- ment rests on the that the I, privilege According improperly 10. The marital contained in article obtained confession, incriminating section 12 of the Utah Constitution has remained evidence included his However, codi constant. the statutes rules the .38 caliber ammunition bloodstained home, fying privilege have been revised several clothing and the Tovars’ in- found Currently, last decade. rules 502 times over the culpatory testimony. govern Evidence and 507 of the Rules of this area. alleged improperly exculpatory withheld 9. The Anne Carter's alternative ac- today’s evidence includes We note that decision construes murder, grant the conditional privilege count of marital 24-8(1) as it existed under section 78- indicating immunity, police reports opinion (Supp.1985). that nei- de- This does not privi- fingerprints scope Carter's nor African-American termine the nature or of the marital ther lege superseding samples in rules 502 and 507. were found at the murder scene. embodied hair

639 attorney- similarly find Carter’s prohibited.”11 is mony in the courtroom that interrogate merit. privilege argument and receive to be without is free to client The State any disclosure, spouse witness on from a time of Anne Carter’s information At the matter, including confidential communica attorney-client at sec privilege codified tions, long spouse’s state 78-24-8(2) as the witness so tion Utah Code: into at trial is not introduced evidence ment cannot, attorney An without the consent objections spouse. accused over client, any examined as to communi- his Moreover, any upon free to act is State him, his by the client to or cation made leads, may pursue received —it information therein, pro- given the course of advice witnesses, evidence, engage locate or obtain nor an attor- employment; fessional can investigative procedure. any other lawful secretary, stenographer, clerk be ney’s or of the wit discovered as result Evidence examined, his em- without consent of sub spouse’s statements the State’s ness any fact, knowledge concerning ployer, court, is sequent investigation admissible acquired capaci- which has been in such constitutional, subject any statu to relevant ty. evidentiary tory, or rules exclusion. 78-24-8(2) (1985). §Ann. Utah Code discussion, find Based on the above argument attorney-client merit. to be without Carter’s invocation of stand, nor were understanding not take the Anne Carter did privilege reveals a flawed her statements introduced into concept. privilege belongs to that “The deposition form of affidavit. may he enforce client and waive it or [or she] not, 1992, marital invoke the may could 1985 proper.... him her] it as to seem [or con- prevent the admission of his privilege to privilege was purpose [and is] The sole de- incriminating fession other Re protect to the client’s interest.” More- rived from Anne Carter’s disclosures. Estate, 382, 387, P. Young’s 94 731 33 Utah over, record we note our review of the (1908). attorney-client relationship at statements reveals Anne Carter’s Anne Car in this case existed between issue Orehoski, Watson, City police Provo improp If and Orehoski. Orehoski acted ter af- given voluntarily. Accordingly, we were injured party and erly, Anne Carter is the ruling the marital firm the trial court’s no only a claim. has she assert privilege privilege is an in-court testimonial attorney-client privi standing to assert from preclude does not law enforcement lege her behalf.13 and leads pursuing additional information that the unconvinced We are likewise supplied by Anne Car- from the information newly exculpatory evi- alleged discovered ter.12 858, 253, Cox, trial); 147 P.2d suggests support State v. 106 prior 11. Our case law Smith, See, object e.g., (finding P.2d at trial State v. 726 that failure to conclusion. 1986) 1232, (Utah privi (finding marital implied 1236-37 to introduction former consent prevent unsuccessfully lege privileged invoked trial to testimony regarding allegedly spouse’s Benson, testimony); contrast, spouse’s communications). State v. in-court Carter has failed 256, (Utah 1985) (same); State 258-59 posi authority any legal supporting his to cite 58, (Utah 1984) (same); Bundy, 684 60-61 P.2d tion. 1978) (Utah Trevino, P.2d State v. prevent privilege (holding does not that marital attempt passing, that We note in Carter's voluntarily testifying on his spouse at trial alleged privilege violation marital link behalf); Trusty, P.2d own State v. or her right against the state self-incrimination under 1972) (Utah (holding privilege marital 114-15 also Carter was federal fails. constitutions by prosecutor's reference violated in-court not testify, nor his statements forced were not spouse); possible trial of defendant's against Car- him. into evidence entered 1964) Brown, impli- right against self-incrimination ter's by prosecu (holding prejudiced defendant cated. spouse indicating assert had comment tor's privilege testifying at first avoid ed marital unpersuaded undis- Brown, are trial); 13. We also Utah 2d State v. theory. attor- As in the conflict-of-interest (finding prejudiced closed defendant context, wrongdoing privilege ney-client if spouse invoked prosecutor's had comment occurred, party. aggrieved is the testify Anne Carter privilege and refused to the marital dence, in the files and avail- alternate ac- dence” has been State’s including Anne Carter’s murder, open-file grant through of the conditional able to State’s count of the Carter — Thus, they if immunity, fingerprint policy or hair 1985. even had and the lack of —since evidence, merit, exclusion/sup- they required a retrial or the claims were waived when incriminating appeal. pression of were not raised on Carter’s first 26(9). penalty hearing. Anne Carter’s alter- Utah R.Crim.P. fact that of the murder and the nate account ineffective-assistance-of- We find Carter’s construed possibly she knew of it cannot inapposite as to some counsel contention pro- newly If as discovered evidence. Carter untimely claims and raised as to others. Our story, he that he vided Anne with the knew standard is as follows: Thus, Carter was aware of had done so. first, show, prevail, “To a defendant must possibility of both the evidence and the rendered a defi- [or her] that his counsel trial. Anne’s corroboration before performance in some demonstrable cient manner, an respect grant performance to the conditional which fell below With immunity, objective profes- we note that Carter claims he standard reasonable and, second, judgment that counsel’s totally unaware of the circum sional remained performance prejudiced obtained Anne the defendant.” stances under which State until December Carter’s statement (Utah Germonto, 868 P.2d State v. of the 1985 when Anne informed Carter 1993) DeLand, (quoting Bundy P.2d State, hand, on the other insists events. (Utah 1988)). A defendant must grant that it was unaware of the conditional prevail meet both burdens to on ineffec copy immunity until attached a Id.; Barnes, 871 tiveness claim. Parsons v. January his 1992 motions.14 1994); Templ 522-23 State v. (Utah 1990). in, However, 182, 186 inability properly While the State’s we reiterate that we need not address both concern, maintain is of we do not see its files parts if of the test a defendant fails to meet prejudiced by how the State’s Parsons, on one. her burden See provide copy him with a failure to Germonto, 522-24; P.2d at 868 P.2d at 60- grant immunity. conditional Whether or DeLand, 61; Bundy v. 805-06 necessary, not it was Anne Carter cut a deal (Utah 1988). That led the with the State. deal State independently evidence that established Car- part We need not discuss the first Simply put, grant guilt. ter’s the conditional clearly test because Carter has failed to meet was, remains, immunity irrelevant to imposed by the second. The the burden guilt. agree trial court with the Carter’s original performance rendered provide failure to Carter with that the State’s prejudice him. have counsel did not As we in an copy of the document not result “[did] clear, statement, neither Anne made would impropriety error or which had or immunity, grant the conditional nor the upon effect have a substantial adverse fingerprint hair and evidence tend to excul- rights of the defendant.”15 pate Carter. finger Finally, we note that we addressed and As for the lack of Carter’s rejected samples hair a similar ineffective-assistance-of- prints and African-American scene, fail to see how such counsel claim raised his first the murder Moreover, Specifically, exculpates appeal. our Carter’s brief Carter. argued: reveals that this “evi- case review of the record Sainsbury’s Wayne Apparently, had left the Utah met with her and Orehoski. Given Watson County Attorney's years information, earlier and quite likely Office several that the authorities placed the document in the State's files. never independently sought out Anne Car- would have a warrant to search the Carter ter and obtained Moreover, expressly note that Carter as- certainly almost would home. suggest any impropriety on serts that he does not incriminating evidence inde- have discovered the signifi- part attorney Sainsbury. This is Orehoski, pendent Watson, of Anne’s later disclosure Sainsbury reported cant because his conversa- City police. and the Provo Carter to Watson Watson tion with Anne before

641 invitation to overturn prepare motions We decline Carter’s [Car- than for Other ter, engage in we noted in original] did not our earlier determination. As his counsel I, prov- He no of investigation. made Carter the State bears the burden other extensive discovery ing by preponderance he make an the evi- for nor did at least a of motion held was vol- to examine evidence dence that a defendant’s confession effort attorney. attempt county untary. (citing He did not to P.2d at State v. (Utah 1988)). expert testimony supporting Bishop, [Carter’s] get 753 P.2d 463-64 totality change for of venue. [Carter’s motion Voluntariness is determined of attempt an original] surrounding counsel never made to the accused circumstances tape recording interrogation. made of [Carter] and his her Id. While we obtain gave particular manner in at the time he his statement to deter- still do not sanction the taken,16 if with the statement corresponded mine which confession was Carter’s totality Pierpont. Detective that of that made to remain convinced under [Carter] circumstances, the its burden State met argu- makes these same Because Carter proof correctly admit- and the court hand, in the case at his ineffective- ments ted confession. doubly claim is flawed. See Utah assistance 26(9). reaffirm our conclusion R.Crim.P.

in I that Carter’s ineffec- Carter “.claims THE III. CHALLENGING CLAIMS ... are assistance counsel without tive 1992 PENALTY HEARING merit.” at 894. Constitutionality A. 76- Section Suppress 3-207(1) B. The Trial Court’s the Utah Code Refusal Made to Latv En- Carter’s Confession 76-3- asserts that section Carter Nashville, in Ten- Officials forcement 207(4) unconstitutional, the Utah Code is nessee him, facially applied under the both and as original convic- In a second attack on That Utah and United States Constitutions. tion, asks to revisit issue al- Carter us establishes, alia, evidentiary provision inter rejected in I. ready raised and Carter He capital resentencing proceed guidelines for suppress his confession before moved 76-3-207(4) provides in ings. This section phase original guilt of his trial part: relevant motion, and af- denied the trial court sentencing In new cases of remand for appeal. 776 P.2d at 890-91. Prior firmed on transcript of proceedings, all exhibits and a hearing, Carter’s new properly testimony other all suppress and renewed motion to counsel sentencing prior in the trial and admitted copy tape recording of requested in the new proceedings shall be admissible response In 1985 confession. sentencing proceedings.... discovery replied request, the State (1990). 76-3-207(4) §Ann. Utah Code into tape was never taken permits destroyed. complains had been the statute Carter transcript prior the use of a that we should reverse now claims safeguards meeting the confrontation without ruling upholding the trial court’s our earlier Roberts, U.S. established Ohio of the inter- finding of voluntariness because (1980), 65 L.Ed.2d 597 S.Ct. variety argues of factors. He play of a Brooks, adopted by procedure, irregular” “highly confession Roberts, (Utah 1981). destroyed tape re- combined with the when Supreme held: Court United States evidence, cording, exculpatory withheld hearsay present declarant is not took [W]hen who his con- allegations the officer trial, the Confron- fession, Pierpont, regularly em- cross-examination Lieutenant normally showing requires a tactics, tation that we Clause ployed coercive demonstrates then, his unavailable. Even I. he is erred confession, then reduced The confession was Pierpont accurate. dictated 16. Lieutenant I, signed. writing every stopping Carter whether it few lines to ask only if it part is admissible bears turn to the second of Webb’s critical statement reliability.” adequate adequate inquiry, “indicia Reliabili- whether there are safe ty protect plain can inferred without more a case guards those values. 76-3-207(4) firmly the evidence within a language where falls of section contains no cases, hearsay exception. adequate rooted other safeguards, otherwise. Howev excluded, must at least er, the evidence be duty has to “this Court a construe a showing particularized guaran- a of absent possible to statute whenever so as effectuate tees of trustworthiness. legislative intent save and avoid and/or or infirmities.” from constitutional conflicts 66, at 100 S.Ct. at Because 448 U.S. Bell, (Utah 1989) 390, v. 785 76-3-207(4) State P.2d 397 recognize section does not the Wood, (plurality opinion); v. see also State standards, Roberts Carter claims (“[W]e 71, (Utah) 82 648 P.2d construe stat provision capital violates a con- defendant’s utes, possible, running if to avoid the risk of right to wit- stitutional confront adverse prohibitions.”), constitutional cert. afoul of de rights the extent are nesses. To that these 988, nied, 341, 459 U.S. 74 L.Ed.2d 103 S.Ct. denied, capital continues a defen- (1982). Thus, capital to protect 383 a defen process right to due denied. dant’s is also rights process confrontation dant’s and due transcript testimony Although a all 76-3-207(4), incorporate under section we properly at prior admitted trial and sen- provision safeguards into that articulated tencing proceedings clearly is un- admissible by in Supreme the United States Court Rob 76-3-207(4), of section der the terms we have by adopted in erts and this court Brooks. recognized previously State, 43, v. 427 See Tichnell 290 Md. A.2d jus- admission of certain evidence could be (1981) (“Absent 991, agreement 1001 of the hearsay exception, yet tified under still showing unavailability parties, or a of the right violate the defendant’s constitutional testify separate witnesses to at the sentenc inquiry confrontation.... The critical 413(c) ing hearing, § we [of conclude that is whether values embodied Maryland’s capital sentencing scheme] does by impinged upon confrontation clause are objection, permit, timely over the admis and, so, hearsay if the admission of sentencing jury in evidence sion before a new adequate safeguards there are whether prior testimony prove recorded trial protect those values. or the existence absence of (Utah Webb, 1108, 1111-12 State v. denied, circumstances.”), mitigating cert. (citations omitted). 1989) Applying the first 2374, U.S. 80 L.Ed.2d 846 portion inquiry present of this critical (1984). context, hearsay find that the prior we testi- addition, procedural we add two other 76-3-207(4) mony permitted under section First, safeguards and one we con- condition. capital impinges right on a defendant’s 76-3-207(4) permitting strue section as “The confrontation. essence of the confron- prior testimony admission in oral form right opportunity is the have the tation Second, only. See id. 427 at A.2d accusing subject witness court and transcript hold that written should cross-examination, so that bias and credibili- exhibit, not be admitted into as an ty by can be evaluated the finder of fact.” jury it be nor should taken into the room Nelson, State P.2d during deliberation. id. The condition See 1986). 76-3-207(4) permits Because section simply timely that the make a is defendant a transcript prior the introduction of testi- objection transcript to the introduction of the mony, capital may defendant be denied 76-3-207(4). under section id. at 1001. See opportunity to cross-examine and “sift the Further, conscience” of adverse witnesses. 76-3-207(4) a consti’uction Such of section opportuni- the fact finder be denied the law, supported by our well is own case as as ty principled to make evaluations of a wit- the Utah Rules Criminal Procedure. credibility. ness’s demeanor Solomon, (1939), Having capital testimony held determined that a defen- that “such right implicated, we [given hearing dant’s to confrontation is former and used for by claims that the court erred though taken a re- impeachment], even certified, (1) transcribed, permitting not docu- the State to introduce the. porter, writing mentary evidence to be received an exhibit to Abstract into evidence as jury.” (2) further given to room; allowing the taken into the always law ex- that “the common observed only inculpatory excerpts of read State to testimony depositions written cluded testimony, leaving most Tovars’ 1985 out being away from bar carried (3) cross-examination; pri- admitting the jury.” at 811. Id. Solomon testimony not testi- of individuals who did If some evidence court’s rationale is sound: fy penalty hearing but were only, form while other is admitted oral so; prior admitting to do available then is first read and delivered individuals who testified at also writing, “it is obvious that the hearing; admitting the 1992 by given sustained written is side testimony the transcript the Tovars’ 1985 advantage.” Id. an undue good make a though even the State did not they Davis, showing faith unavailable at decision, that were v. more recent State A hearing. reject the We all of 1984), applies. Citing Sol- P.2d 5 also these of error. approval, held claims with that case that the omon by allowing jury erred the to take trial court unfairly that he bur- Carter asserts was jury deposition the partial into room by dened the decision to admit trial’court’s However, Id. the at 14-15. deliberation. the into evidence as an exhibit be Abstract question of never the whether court reached only jury taken room. Not did he into the prejudicial or harmless the error be- credibility testi- disprove have the of the proper to make cause the defendant failed Abstract, mony complains in the contained objection. seasonable Id. and also but he was forced counteract 76-3-207(4) Finally, reading our of section given testimony emphasis the undue 17(k) of comports with rule the Utah also exposure resulting the double because of 17(k) Procedure. Rule Rules Criminal jury presence in the from the Abstract’s states, deliberation, “Upon retiring for room. jury may take the instructions of with them 76-3- today’s As construction of section papers all the court and exhibits and which 207(4) clear, we agree makes with Carter evidence, depo- except as have been received ” 17(k) admitting the Abstract into evidence as (empha- .... Utah R.Crim.P. sitions added). permitting to be taken into point, an exhibit and directly on rule sis While not hold 17(k) jury room was error. now We indicates that exhibits which are testi- testimony 76- given prior introduced under section in nature not be monial should 3-207(4) only form jury during its is admissible oral deliberations. jury into How- taken room. not be sum, that, subject timely In we hold ever, case, this particular facts of under 76-3-207(4) governed by objection, section is prejudi- we do find the error harmful or not safeguards the constitutional established beyond-a-reasonable-doubt cial under adopted by this court in Brooks. Roberts and Chapman California, 386 U.S. standard. transcript all further hold that “the We 18, 22, 827, 17 L.Ed.2d 705 by testimony” contemplated [prior] section (1967); Hackford, 76-3-207(4) only in oral is admissible form (Utah 1987). into evidence as must not introduced given jury during to use an exhibit portions Ab- It some is true that deliberation. stract, testimony, particularly Tovars’ inculpa- sole source of certain constituted the Today’s 76- construction section however, case, we 3-207(4) tory In this do evidence. arguments renders Carter’s moot impact not of that evidence was believe provision facially unconstitutional. that the is by jurors later unduly magnified letting the allegations that now turn to his the stat they already heard. read had unconstitutionally applied par what to his ute was testimony in the Ab- inculpatory contained case. ticular prior they impact what the resen- undoubtedly had a dramatic information want stract n Moreover, tencing authority into the to receive. simply being read record. Moreover, taking the Abstract course affords both sides an effective check note jurors only provided party room with should one decide to read into only opportunity inculpatory exculpatory to read and most evidence. their consider any event, portions previously likely, read think it advisa- those into the ble, State, complained prehear- parties record omission will enter into a although ing stipulation the trial to what not be Carter. as will and will erred, ruling provided com- read.

plete original access to full counsel’s final claim of error any other

cross-examination and subcategories. three He breaks down into mitigation contained in the Abstract. argues by admitting that the trial court erred Hackford, that whether an er- we said the Abstract into evidence it con because beyond-a-reasonable-doubt under ror (1) testimony tained who did witnesses depends standard harmless numerous hearing testify at the 1992 factors, including unavailable, were not to be wit shown importance “the witness’ person nesses at the 1992 who testified case, prosecution’s in the whether the tes- Epifanio hearing, and Lucia cumulative, timony presence was or Tovar, despite the State’s show insufficient corroborating of absence evidence or con- ing unavailability. of tradicting testimony of the witness points, subcategories easily material the extent of cross-exami- dis- first two are (cid:127) and, course, permitted, nation otherwise of missed. it was error the trial court While for strength prosecution’s the overall to admit the without a Abstract testimonies showing unavailability, ease.” find the error to be harmless. Aside from Tovars’ testi- Hackford, (quoting 737 P.2d at 205 Delaware mony, category in the witnesses the first Arsdall, 673, 684, v. Van 475 U.S. material, provided relatively uncontroversial (1986)). 1431, 1438, 89 L.Ed.2d 674 Our findings such as the of the Utah State Crime consideration of these factors and the total Laboratory, eyewitness an identification hearing of the in state Wendover, Nevada, general in Carter that harm convinces us no resulted from the foundational evidence. of the Abstract. use respect no in With to Carter’s second We also find error the trial court’s claim, no permit we find error in the court’s decision to certain witnesses to other only testify hearing allow in person decision to the State to read se at the 1992 excerpts despite into lected the Abstract evidence. the fact that Abstract contained today testimony. category While we hold that the entire tran their 1985 This included Leatham, Oleson, script prior testimony might be Dr. read into Orla Detective Brad Schnittker, 76-3-207(4) subject, George under section Sharon and Lieutenant — course, Pierpont.17 princi begin, Clause that all Confrontation To Carter admits basically ples par gave it to four testi- discussed above—we leave witnesses the same any, they mony they gave if portions, ties to determine which 1992 as in 1985. While approach testimony undoubtedly to read. this was choose We think somewhat parties duplicative, serves the interests of both because it we think harm done was Carter, resentencing hearing outweighed by helps make more like the benefit afforded words, original penalty hearing. opportunity In other who had the confront and parties will have some discretion as to cross-examine the four witnesses. findings regarding body Oleson his of the 17. Orla described movements on condition night discovery Pierpont murder and his of the death. de- cause of Lieutenant body. Detective Leatham testified to the condi- apprehen- scribed the circumstances Carter's body physical and location and other tion of his sion and the substance confession. presented Dr. her evidence. Schnittker medical dispute contended that the was not claim is part of Carter’s The third assumed, evidentiary, merely as the State the trial court’s determination directed at right implicated his to confrontation. but also testify were unavailable that the Tovars dispute Having anticipated a over the Tovars’ testimony hearing. Their the 1992 unavailability, proffered evidence of they were the State’s important because investigator private made the efforts example, the Tovars’ key witnesses. For According Tovars. to locate the confession corroborated Carter’s (1) investigator Beehive Bail learned him in the home on placing Oleson’s jail Epifanio out of Bonds had bailed Tovar provided persuasive night of the murder and $50,000 skipped Tovar and then lost its when the homicide.18 evidence that he committed (2) bail; repeatedly the Tovars had travelled and California back and forth between Utah hearing, the State At the years; the Tovars over the last several Pierpont George called Lieutenant or East Los might be located Riverside to demonstrate the Tovars’ stand an effort relatives; California, they Angeles, where had unavailability rule 804 of the Utah under Riverside, the Tovars were seen Pierpont Lieutenant tes- Rules of Evidence. California, in Based on late November 1991. attempted to locate the tified that he had information, argued that the To- this time time over the last few Tovars “from could be located with assistance from vars pre- attempt years.” His latest occurred agencies and were not un- law enforcement day contacted the United vious when he purposes. available for Confrontation Clause Apparently, Pier- Marshall’s Office. States considering parties’ arguments, After States Marshall pont knew that United court determined that the State’s the trial Epifanio Tovar’s arrest had a warrant satisfactory: efforts were thought the federal authorities appears there has It to the Court as to the To- might have some information ease, effort made been reasonable were, howev- vars’ whereabouts. His efforts if, fact, informa- now with the additional er, The federal authorities still unsuccessful. defense], peo- by the if these [secured tion but a out for Mr. Tovar’s arrest had warrant located, you steps if take under ple can be any information provide could not concrete attempt procure to to their the uniform act location, than that he present other as to his attendance. might found in Mexico or southern Cali- appear ... to this Court that But it does he Pierpont further testified that fornia. effort, adequate from both there has been Lacayo, friend Perla a sides, people was unable to locate [appeal that those if] it would located, police that ef gave subject being a statement to this of the Tovars who are to made, substantially.19 fort has been investigation. in the 1985 throwing gun into the admitted to Basically, conversa- Tovar the Tovars described two Spanish River. just prior and one Fork one to tions with following immediately Oleson’s murder. Eva her husband's testi- Lucia Tovar corroborated conversations, that in these The Tovars testified got mony, describing down on the how Carter incriminating highly damaging and Carter made his back and made with his hands behind floor stabbing Epifanio claimed that Carter Tovar admissions. closed fist to in the air with a motions night home on the of the murder left the Tovar also testified the murder. Mrs. Tovar illustrate going go rape, saying break and that he "was to laughed” "laughed and about the that Carter that when Carter drive.” Mr. Tovar recounted murder. returned, killed a that he had he told the Tovars by stabbing knife eleven acknowledge her with a about woman that the trial court's While we shooting Mr. impermissibly in the head. and then her con- times indicate that it statement put determining a Carter said he had wheth- Tovar also related that Carter’s efforts when sidered burden, weapon unavailability pillow murder to the muzzle of the State had met its over er the likely. reading gunshot and that Carter is more that an alternate muffle the sound of think court meant that both physically he committed that the trial demonstrated how We believe adequate inde- encouraged "watch State had made the Tovars to Carter and the homicide pendent to locate Tovars. murder. Final- efforts information on the the news” for event, pragmatic in the prob- was correct the court ly, how Carter hid Mr. Tovar described had not been found the Tovars still whirlpool and sense that weapon portable in a able murder despite efforts made. all the dispose it. Mr. eventually to asked Tovar 646 avoiding expressly actively are both state not and his wife

Although the trial did had rule 804 or authorities. State’s state made a and federal whether determination, subpoena we be- an simply to out-of- Confrontation Clause task was parties’ fugitive given lieve the substance of the down a witness but to track state arguments, ruling addressed the trial court’s from the law. legal both standards.20 status, fugitive agree Tovars’ Given the explained, 76-3- As we have section practically impossible for the it was 207(4) comport to with the must be read Webb, produce in court. See them right-of-confrontation safeguards recognized at If the United 1112-13. States Again, party and federal law. Office, resources, all of its Marshall’s testimony show that proffering the must period over a could not locate the Tovars unavailable, demon witness years, we think it reasonable for the several prior witness’s strate that the unavailable they were un- trial court conclude testimony of reliabili bears sufficient indicia testify available to at the 1992 hear- ty the later permit its introduction at good faith ing. The State made a effort Brooks, proceeding. 638 at 539. We P.2d trial, presence and “[al- secure their under a trial court’s determination review might though retrospect efforts have other using stan test abuse-of-discretion made, the determination [trial court’s] been Chapman, P.2d dard. State v. 655 appear to us to be an abuse of does (Utah 1982); Turner, Gallegos 526 Brooks, P.2d at 540. discretion.” (Utah 1974).

P.2d 1129-30 Having determined that Tovars A witness is unavailable under Utah unavailable, were we now turn second good law faith effort to secure if a was made part of the Brooks Confrontation Clause test: trial,. presence State v. On witness’s testimony the Tovars’ bear suffi Did denied, iskor, (Utah), cert. reliability permit cient indicia admis 38 L.Ed.2d U.S. penalty hearing? We at the 1992 an sion (1973). recently una characterized swer the affirmative. vailability requirement “stringent” and as held “in order for witness to be consti preliminary hearing Carter admits that unavailable, practically tutionally it must be reliability testimony meets the standard for impossible produce in court.” the witness purposes introducing at the Webb, 779 P.2d at 1112-13. Brooks, trial, guilt phase of see P.2d at 540, he is but contends that same not the To- While the State’s efforts to locate phase testimony guilt sentencing for exhaustive,21 true vars cannot be described as argument He on proceedings. bases his find court’s to be the trial determination preliminary hearing that both distinction limits of its In reach- within the discretion. conclusion, guilt phase guilt deal with and the of a trial ing persuaded by the we are innocence, sentencing phase while the Epifanio To- outstanding federal warrant for proper merely imposing penalty lost concerned var’s arrest. The State had not by weighing aggravating mitigating time or fac- passage track the Tovars due to purposes like Because the or motives of the perhaps relocation. Nor is this a case tors. differ, Chapman, guilt phases continues where witness’s location 1985 of the To- simply failed to make cross-examination known but the State provide adequate opportunity an good effort to secure their attendance vars did faith appro- Epifanio question Tovar is or cross-examine issues at trial. 655 P.2d Therefore, drug sentencing. the Tovars’ priate wanted illegal an alien on federal every testimony bear that he trial did not sufficient charges. There is likelihood may illegal aliens have have 21. The Tovars' status as 20. We note that determination should pursuing Clause issue precluded been limited to Confrontation the State normal inves- apply avenues, Rules of Evidence do not tracing because the Utah tigative a driver's li- such as sentencing proceedings. Utah R.Evid. See security or a social card. cense 1101(b)(3). and United States Constitutions reliability permit its introduction Utah indicia of was not violated. penalty hearing. at the 1992 acknowledge and dismiss We Car enjoys in fact disagree. A defendant We defendants, capital argument that as a ter’s guilt phase procedural rights at the greater class, protection equal are denied of the law sentencing22 arid capital trial than at of a because, prosecutions, unlike other criminal essentially at stake.23 has the same interests employ the death scheme does not Thus, testimony offered we hold that sworn Rules of Evidence. classi “[W]hen capital during guilt phase of a its created, pertinent inquiry fications are reliability very nature bears indicia of which equal protection purposes is whether usually adequate pro- are sufficient to assure some reasonable nexus exists between the right of confronta- tection of a defendant’s govern implicated and a valid classification testimony (preliminary hearing tion. id.Cf. Bell, objective.” mental State v. reliability usually bears sufficient indicia (Utah 1989) (plurality opinion). If confrontation). safeguard right of decision, applied today’s accord with nexus between section 76- find a reasonable guaran Clause Confrontation 3-207(4)’s evidentiary standard and the valid only opportunity for effective cross- tees balancing governmental purpose of examination; guarantee cross- it does lawfully effectuating interest im State’s effective as the de examination that is as against posed sentences the defen death Seale, might fense wish. State ensuring dant’s interest that his or her (Utah) (citing United States v. Ow rights respected. are constitutional ens, 838, 843, 484 U.S. S.Ct. position, Contrary to Carter’s section 76- — denied, (1988)), L.Ed.2d 951 cert. U.S. 3-207(4)’s evidentiary “lax serve standards” (1993). —, 126 L.Ed.2d and the defen- the interests of both reveals that Our review of the record dant. it is true that the State While advantage opportunity to had and took aggravation introduce evidence under sec- There cross-examine the Tovars 1985.24 76-3-207(4) might well be excluded tion fore, of whether we need not reach issue Evidence, may so under the Utah Rules original counsel cross-examined ef mitigation introduce evidence in fectively present or whether his counsel the rules. might also be excluded under questions. might have asked different Moreover, ignores fact that sec- 76-3-207(4) hold that the trial court did not abuse precisely exists because tion by permitting transcript appealed. its discretion As in death cases must be case, may years to be admitted before that the Tovars’ the instant penalty hearing. run course. appeal procedure into evidence at the 1992 has 76-3-207(4)’s unavailable, evidentiary prior scheme also were and their section Tovars purpose preserving a testimony possessed legitimate indicia of reli- sufficient has the sum, sentencing that later record of information so ability to warrant its admission. perform their duties. by might better right guaranteed Carter authorities of confrontation 24.Indeed, gov- estab- example, guilt phase Carter's cross-examination the 1985 was 22. For Epifanio by the Utah Rules of raised inferences that Tovar erned Evidence, the strict standards of lished or (1) hearing investiga- police during while the 1992 the murder lied (3) tion, evidentiary (2) may by regularly marijuana, standards of controlled the lower used have legal 76-3-207. falsely implicated section his own Carter to solve difficulties, (4) delayed reporting his information (5) by the trial, police, and had been “coached” to guilt phase 23. At the of the 1985 Carter Tovar, respect With to Lucia State before trial: attempted doubt as to to establish reasonable or raised Carter's cross-examination established cross-examining discrediting guilt by and (1) poor she had a command inferences Although some of Carter's State's witnesses. inartful, English language misunder- and have the evi- questions were much of statements; (2) and Carter's stood Carter's by of the dence adduced his cross-examination laughter may a television mitiga- have been directed at in relevant as evidence Tovars was also hearing. than at the murder. show rather tion at the (1898). legislature express The made no constitutionality of 382 Carter next attacks respect by'the retroactivity with to article enactment Utah statement section 76-3-207’s Second, VIII, 4. 76-3- challenge rests two as- section subsections Legislature. His 207(2) (4) possibly arti- sumptions: 76-3-207 violates and cannot conflict with Section 804(b)(1) VIII, 4 'ofthe Constitution25 rule the Utah Rules of cle section Utah because than a two- passed apply sentencing proceed- it less Evidence do not because was vote; 1101(b)(3).29 majority the Utah Su- ings. thirds R.Evid. See Utah attempted prob- redress this preme Court Finally, arguments makes several and Evi- in In Rules Procedure lem re capital punishment toward Utah’s directed State, to be in the Courts dence Used general, claiming that the statute scheme 1985) (per Adv.Rep. (Sept. 18 Utah constitutionally it is more deficient because curiam), pursuant adopted, when the stringent provides process less due and/or VIII, existing statutory “all article section jurisdictions. than in other do statutes procedure rules of and evidence inconsis- merit, arguments and we These are without proce- by superseded or rules tent with reject them without further discussion. adopted by this heretofore dure Court.” B. the “Heinous” Nature Use of assumptions, preliminary Aggravating Based on these the Crime as an arguments. Sentencing two alternative Carter makes Circumstance at First, 76-3-207 is un- he claims section argues that the trial court enacted viola- constitutional because was permitting reversible error committed majority requirement tion of two-thirds allegedly consider the VIII, he of article section asserts aggrava as nature of the murder heinous Supreme Court could not law- Utah ting determining circumstance in his sen fully adopt of its section 76-3-207 because 5—202(l)(q)of tence. the Utah Section 76— Second, constitutionally deficient enactment. aggrava murder Code defines heinous argues Supreme that the Utah Court ting circumstance as follows: “The homicide lawfully adopt section 76-3-207 could heinous, especially in an atro was committed (2)26 (4)27 directly because subsections cious, cruel, depraved man exceptionally adopted” with “heretofore rule conflicted ner, any which must be demonstrated 804(b)(1)28 Utah Rules of of the Evidence. abuse, torture, physical physical serious bodily injury of the victim before serious arguments fail for two rea 76-5-202(l)(q) § Ann. First, death.” Utah Code legislature sons. enacted section (1990). request, Pursuant the State’s years before article 76-3-207 in twelve penalty jury VIII, trial court instructed the section 4 was added to the Utah Con otherwise, 76-5-202(l)(q). Car expressly stated accordance with section stitution. Unless operate ter contends that because CaHer I reversed amendments are to constitutional 76~5-202(l)(q) only. Milling Mercur & his conviction under section prospectively Gold and, faulty jury impliedly, Mining Spry, 16 52 P. due to instructions Co. v. 76-3-207(4) (1990) provision part: § Ann. states in relevant Utah Code 25. That states part, for new in relevant "In cases remand adopt pro- Supreme Court rules of shall sentencing proceedings, all exhibits and a tran- in the courts of cedure and evidence be used manage appel- script proper- the state and shall rule other of all process. Legislature may amend the late ly sentencing prior admitted in trial and adopted by Rules Procedure Evidence proceedings new sen- shall be admissible Supreme upon vote of two-thirds Court tencing proceedings....” Legisla- both of all members of houses ture. 804(b)(1) hearsay 28. Rule contains former Const, VIII, § art. 4. Utah testimony exception. 76-3-207(2) §Ann. states 26. Utah Code "Any court part, evidence the deems in relevant Also, today's we note that decision renders probative may regard- received to have force argument under section 76-3- moot Carter’s 207(4). admissibility exclusionary under the less of rules of evidence.” Menzies, evidence, Adv.Rep. penalty In State v. 235 Utah insufficiency of — --- (Utah 1994), lawfully aggrava- we overruled jury consider that could not stemming line of cases unpersuaded. are ting circumstance. We Crawford 1975). (Utah Manning, 542 P.2d 1091 Under Young, 853 P.2d State v. progeny, and its reversal was re Crawford 1993) (4-1 issue), supports this decision on quired party compelled whenever a was “to that no error occurred here. the conclusion peremptory challenge to remove a exercise Young, In the defendant claimed that panel member who should have been stricken by permitting trial court erred the State Bishop, for cause.” State v. present circumstance —sec- (Utah 1988); Crawford, see also phase 76-5-202(l')(q) penalty de- tion —at Menzies, In abandoned spite the fact that it had not been considered requirement reversal mechanical during guilt phase. response Id. rule, adopted majority upheld by the claim, “Nothing in the Young’s we held: Court, Supreme long that “[s]o United States requires that the death statutes Utah jury impartial, as the that sits is the fact that statutorily aggrava- present all defined State peremptory the defendant had to use a chal during guilt ting circumstances lenge to achieve that result does not mean Therefore, phase.... jury properly Menzies, was violated.” [Constitution] [aggravating] these factors consider —24, Adv.Rep. at P.2d at -. 235 Utah penalty phase even when the factors were rule, reversal “a Under the new to obtain during guilt phase introduced of the viz., prejudice, demonstrate defendant must trial.” Id. jury partial show that a member of the was incompetent.” Id. acknowledge that Carter’s case is dis- grounds tinguishable on the has neither asserted nor disputed aggravating factor at presented the jury partial that he faced a or biased shown appeal. guilt phase and we reversed on during penalty phase of trial. the second However, I holding our in Carter turned on mem Because he has failed to show 76-5-202(l)(q) faulty language in the section partial incompetent, ber of the was instruction, not on the issue of whether that even if the trial court erred we conclude presented evidence to the State sufficient jurors prospective failing to remove those giving of the instruction.30 warrant objectionable, that error whom Carter found Thus, Young authorizes the trial court’s deci- 30(a). harmless. See R.Crim.P. give 76-5-202(l)(q) in- sion to the section Nevertheless, opportunity to we take this struction. growing concern to this address an issue perplexed the trial courts’ court. We are Challenges C. Juror passing jurors for frequent insistence on legitimate when cause death cases Carter claims that the suitability have by refusing about their been discretion to remove concerns abused its during the abuse-of- jurors Accord- raised voir dire. While prospective three for cause.31 of review affords trial forced discretion standard ing to the trial court’s refusal making their for-cause peremptory challenges courts wide latitude him to waste three determinations, ten- are troubled their and amounted to reversible error. Carter edge envelope,” supply dency “push that he exhausted his also notes capital panels dire are especially when voir challenges. peremptory Further, reason, Carter was also convict- we note that Carter’s reliance on State v. 30. For this 76-5-202(l)(d) denied, aggravated Tuttle, (Utah 1989), ed under section P.2d 1203 cert. death-qualified un- burglary. he remained 108 L.Ed.2d 494 U.S. regardless 76-5-202 similari- der section Tuttle, (1990), misplaced. we reduced a thereof, ties, to Tuttle. or lack degree capital mur murder conviction to second that the evidence did not der because we found prospective jurors are Alan three at issue 31. The of heinous murder under warrant a conviction Fausett, Nancy Manwaring, Lynne Connie 76-5-202(l)(q). Id. at 1215-19. section Zabel. 650 Well, up point to that Kim Oleson’s [the issue. large

so and death Moreover, extremely very good costly, teen-aged son] are had been a stu- capital cases school, very a money. young a man with Passing and dent terms of both time questionable jurors increases the drain on nice circle of friends. When no immediate crime, jeopardizes an in this I of suspect and oth- was found course state’s resources immediately prime suspect. erwise sentence. became valid conviction and/or talking snickering There were lot of and superviso Pursuant our inherent to young among people. And I think that powers, ry strongly advise trial courts to his, life impact had a on on his and severe in the future when be more conservative attitude, his his friends’ attitude. And his capital making for-cause determinations just right to turn around life’s seemed legitimate ques party cases.32 If a raises and, actually, point really never he beliefs, biases, juror’s potential tions as to recovered since. serve, potential physical ability or to cause, juror be struck for even where should appeal, Payne On relies on v. Ten- Carter 2597, to legally nessee, 808, it not be erroneous refuse. would 111 501 U.S. S.Ct. 115 today’s of emphasize (1991), exercise our rule L.Ed.2d 720 403 of the Utah supervisory power guilt to applies attempt Rules in an to demon- of Evidence33 sentencing phases of death cases probative that the value of the State’s strate only. impact outweighed by was victim evidence danger prejudice of him.34 unfair to He Impact D. Evidence Admission Victim impact asserts in his brief that the victim evidence at the 1992 admitted hear- argues that court Carter (and fundamentally ing different more objection it his erred when overruled prejudicial) by than that allowed Su- permitted the State to introduce victim im preme Payne: Court pact through the evidence live Specifically, complains Orla Oleson. case, [Unlike the admitted in this evidence impermissibly that Mr. allowed Oleson was Payne impact testimony victim t]he [in ] very, very particu “a his wife as describe laudatory personal did not deal with the mother, housekeeper, very good lar deceased, nor it characteristics of the did very graceful working, hard wife.” Carter go into the traumatic effect of the murders challenges referring to Eva also statements family surviving on members. other compassion and her care for a Oleson’s neighbor dying Finally, who was cancer. objects impact testimony in this [The case] to Mr. Oleson’s discussion re victim beyond impact death went far the victim testimo-

garding the effects of wife’s particular ny Payne, simply than family. excep their takes because rather victim, upon dealing impact following tion statement: relevant, states, "Although long power recognized 403 32. We have our inherent Rule See, supervise e.g., this the courts of state. probative excluded if its value is substan- 1256, (Utah Thurman, State P.2d v. outweighed danger tially preju- of unfair 1993) power (using supervisory to es inherent issues, dice, misleading confusion of the or review); appropriate standard State v. tablish jury, delay, considerations undue waste 1239, (Utah 1988) (using Lafferty, 749 P.2d time, presentation needless cumulative evidentiary supervisory powers to add inherent requirements evidence.” trials), penalty phase capital corpus granted grounds, Lafferty on other habeas Tennessee, Although Payne cited v. Cook, Cir.1992); (10th 949 F.2d Smith v. 2597, (Utah 1986) Smith, 115 L.Ed.2d 720 501 U.S. (impos 425-26 (1991), ing findings Young, requirement P.2d of detailed reasons in State v. Long, awarding custody); (Utah 1993), decree yet have determine whether 1986) require (imposing 492-93 impact evidence is admissible under the victim cautionary eyewitness regarding instruc ments tions); Young peti- Like Utah Constitution. Clatterbuck, In re challenged impact admission of victim tioner (Utah 1985) (imposing requirement of detailed only States under the United Constitu- certifying juveniles findings and reasons for tion. Id. adults). stand trial as “particular was described as a house- characteristics of Oleson personal described keeper” “good mother.” These are impact of her and the emotional the victim undeniably personal characteristics. And family members. upon other death regarding the effect Mr. Oleson’s statements nature only mischaracterizes the not unquestionably of the murder on his son falls in impact at issue the victim evidence category impact of emotional of the into the acceptable Payne,35 but also fails to cite the family. on the victim’s crime by evidentiary parameters established Payne expressly stated Court decision. Having that the victim im decided granted certiorari to determine it pact by the trial court falls evidence admitted prohibits a Eighth “the Amendment whether contemplated by parameters within the considering sentencing jury from ‘vic- capital Payne, turn to rule 403 we now personal impact’ relating to the tim noted, argument. previously the Utah As the emotion- of the victim and characteristics Evidence, terms, by their own do Rules family.” impact al of the crime on victim’s See sentencing proceedings. apply 817, 111 at 2604. at S.Ct. U.S. 1101(b)(3). Thus, reli Utah R.Evid. Instead, misplaced. on rule 403 is ance reviewing authorities After the relevant proper evidentiary standards are found with Payne considerations, Court policy 76-3-207(2) of the Utah Code. subsection Eighth that the Amendment does concluded pertinent part: That states subsection may prohibit evidence. “A State such sentencing proceedings, In evi- these conclude that evidence about legitimately any may presented as to matter dence be murder on impact of the victim about sentence, in- relevant to jury’s the court deems family the victim’s is relevant the nature and cluding but not limited to pen- whether or not the death decision as to crime, of the the defendant’s circumstances Id. at alty imposed.” be should character, history, background, mental and Further, at 2609. Justice O’Connor’s S.Ct. condition, any physical other facts jury might capital that a concurrence states mitigation penalty. of the aggravation or harm on “the full extent of the hear evidence Any the court deems to have crime, including impact on by the caused may regardless probative force be received family community. A State the victim’s exclusionary admissibility under the of its ‘a may also that the should see decide rules of evidence. quick glimpse petitioner of the life chose to 830, 111 Id. at extinguish,’_” S.Ct. 76-3-207(2). Thus, § Ann. Utah Code (citation (O’Connor, J., concurring) question the court is whether victim before omitted). under the stan- impact evidence is admissible 76-3-207(2). by dards established section factually the vic- Although not identical to impression. question of first This is Payne, impact tim evidence at issue 76-3-207(2) contains two admissi- case impact evidence the instant Section victim bility requirements: The evidence must within the federal constitutional falls well (2) have Payne the sentence and be relevant contemplated Court. standards impact hold that victim clearly probative force. We challenged The statements statutory requirements of the evidence fails both personal “the characteristics refer to 76-3-207(2) under section crime and is inadmissible impact emotional victim and the family.” example, Eva of the Utah Code.36 For on the victim’s attorney] you "[petitioner's want to think doesn't Payne's impact evidence did not While victim Christopher, laudatory people vic- characteristics of the who love Charisse address the about tim, impact certainly daddy did describe the her who loved her. her mother and members, Jo, family particularly grandpar- double murder on people Lacie who loved little grand- example, boy's the infant son. For here.” Id. ents who are still He cries for his mom. mother testified: "He explained death Lafferty, that "Utah's why she doesn't doesn’t seem to understand penalty phase in provides statute his sister Lade.” home. And he cries for come aggravating or relevant closing which evidence of 111 S.Ct. at 2603. 501 U.S. mitigating admitted.... jurors circumstances prosecution arguments, the reminded causing of A.2d at reiterating the Utah Rules 550 1202-03. Aside While that capital task, binding no force in sight have to lose of immediate Evidence turn rule 401 sentencing proceedings, we to suggests that victims more shift some are “ guidance. Evidence’ means ‘Relevant society sym- valuable to deserve more and/or tendency to make the having Further, evidence judge pathy than others. a or consequence of any fact that is existence of considering impact evidence more victim is prob the action more to determination of family’s likely empathize tragedy, to with the probable or than it would be with able less I, a perhaps asking, “What if or member of out the R.Evid. 401. evidence.” Utah family, my victim?” were murder Such (Utah Johns, 1260, v. 615 1263 State P.2d possibili- empathy dangerously increases 1980), relevancy explained that turns we ty improper passion prejudice. See of or proffered evidence would ren “whether the State, 286, v. 262 417 Sermons Ga. S.E.2d probable inference more der the desired (1992). 144, 146 be such it would without evidence.” [than] 76-3-207(2)’s probativeness forAs section capital sentencing pro of a context impact requirement, we find that victim evi- ceeding, question whether the State’s is simply probative no force in the dence has a proffer impact victim evidence renders sentencing Such evidence not context. does culpable deserving of the defendant more or likely make it less that a defendant more or is, penalty, impact does victim death n penalty. society, In our the death deserves evidence add to or subtract from a defen equal and be individuals are of value must find it has dant’s We blameworthiness? way. tempt We not sen- treated that will See, Atwood, e.g., 171 neither effect. tencing distinguish among to vic- authorities 655-57, 593, 576, Ariz. 672-74 person’s tims—-to one death more or less find (en banc) (holding impact victim evi deserving merely of retribution he because tend dence not to establish does higher regard by or she held or lower statute), circumstances enumerated cert. family — and peers. Such a scheme draws denied, 1058, -, 122 U.S. society lines in our think should not (1993); Williams, 113 L.Ed.2d 364 State v. human drawn. The worth of a life is be (1988) (observ 1172, N.J. 550 A.2d inestimable, we do not condemn those ing that evidence of victim’s character harshly take more or who life less because only as personality probative is certain perceived quality value or of the life pects of as trial such assertion self-defense Williams, In- taken. See 550 A.2d provocation). deed, society probably incapable of is even- sentencing pro- purpose capital The judgments. handedness in such ceeding is to determine whether a defendant impris- will receive a sentence of death life Moreover, note victim that such worth respect sentencing onment. With to “two-edged sword.” State v. function, primary goal capital] sen- [a “the Bernard, (La.1992). n. 7 608 So.2d tencing acquire thorough is to ac- phase allowed introduce If the State is history of quaintance with the character and great society, of the victim’s value Tay- person court.” State v. before the arguably permitted be to rebut defense must (Utah lor, 1991), cert. showing degrading evidence tend with — denied, -, U.S. S.Ct. lack ing to demonstrate of worth. Id. (1992). Permitting L.Ed.2d 219 the State resultant “trial” on victim’s character impact evidence shifts introduce victim provides guidance appropriate no as to the proceeding from the defendant focus sentence for the defendant. of the murder on to the victim and effect sentencing capital family Utah’s scheme community. This the victim’s guide analysis “imposes a number of restrictions nothing culpability adds shift Williams, sentencing authority’s fraught danger. See lines channel and is omitted). question such We need reach only restriction on the admission of requirements— unfairly prejudi- prejudice the threshold because evidence is that must not (citations relevancy probativeness met. cial to 749 P.2d at 1259 the accused.” —are imprisonment. There- capricious in a sentence of life and to avoid of discretion exercise Holland, fore, we hold that the court’s error was penalties.” State death 1989). add another harmless. impact today that victim guideline and hold 76- inadmissible under subsection evidence is Relating Rape E. Evidence 3-207(2) This censure of the Utah Code.37 penalty hearing, In the 1992 capital ap- in impact

victim evidence cases evidence related to Carter’s State introduced character, plies of the victim’s to evidence alleged attempted sexual sexual assault or the crime on the evidence of the effects of of Eva Oleson. The evidence was assault family, evi- surviving members of the primarily through the 1985 testi introduced opinions of surviving of the members’ dence mony Epifanio Tovar and was submitted conclusion, reaching crime. jury in the form of a written both in in- acknowledge that the trial court transcript by being read Abstract —and —the objec- overruling Carter’s stant case erred taken into the record. The Abstract was also impact proffered tion to the victim State’s jury diming room deliberation. into However, requires error reversal evidence. challenges the fol- only prejudicial “An the admission of prejudicial. if error is error, lowing portions testimony: that Mr. Tovar’s only if we conclude absent a more a reasonable likelihood of there is What, anything, if did [Carter] The State: for the defendant.” State favorable outcome you going tell he was to do (Utah 1988), 1239, Lafferty, v. 749 P.2d 1255 time? when he left first grounds, corpus granted on other habeas going rape, Mr. Tovar: He was break (10th Cook, Lafferty F.2d 1546 Cir. v. 949 and drive. 1992). of the conclude that the exclusion impact at the 1992 victim What, any, questions if Mr. did State: hearing produced a more would not have Tovar ask the defendant for Carter. favorable outcome regard that time with for two reasons. We reach this conclusion not Ms. whether or Oleson First, impact victim testi- the nature of the raped? been had mony relatively refer- was mild. Statements very, very particu- ring “a to Mrs. Oleson as .raped (interpreter) If he had Mr. Tovar: mother, very good and a housekeeper, lar her. very working, graceful wife” and to her hard difficulty following murder school son’s say? did [Carter] The State: What unduly in- being prejudicial fall or short (interpreter) That “I had not.” Mr. Tovar: Indeed, probable that the flammatory. it is What, any, if reason did he The State: imaginations contemplated the jurors’ own you why he had give as to scope than impact of the murder broader raped her? not question. by the that articulated (interpreter) Because she was Mr. Tovar: Second, weight aggravating given the of the period. in her including against evidence amassed exactly did he What words State: murder, confes- of the the circumstances state? sion, testimony, there is not and the Tovars’ on the (interpreter) “She was Mr. Tovar: likelihood that exclusion of a reasonable rag.” have resulted impact victim evidence would trial, acteristics, however, espe- note, may inevitably come out today’s does that decision 37. We "probative cially of criti- introducing where evidence is such preclude the State from example, the defen- aspects purposes dem- cal of the trial—for other than admissible for provocation.” Id. or claim of self-defense onstrating impact that evidence also dant’s victim when 147; Williams, 113 N.J. v. 417 S.E.2d at State incidentally conveys the defendant’s crime 1172, (1988). Such evidence consequences. A.2d impact See Ser- victim has had State, guilt phase the trial at the remains admissible 417 S.E.2d 146- v. 262 Ga. mons victim, jury (1992). at the be considered includ- Some facts about phase. personal ing pertaining her char- to his or those deny introduction, Because trial court’s decision to Prior the trial court to its interpreta- was on its regarding previ- Carter’s motion based arguments heard 76-3-207(2), appropriate tion of section prevent ously motion limine filed correction of error. standard of review is aspects presenting State from sexual James, State evidence. claimed because 1991). Accordingly, grant particular no findings guilt made phase had no ruling. the trial deference to court’s State regard rape attempted rape or as (Utah 1993). Deli, circumstance,38 the conclude that the court “must argument double-jeopardy boils beyond a convinced reasonable doubt complaint intro- down during was committed an at- this homicide which to es- duced same evidence failed tempt rape attempted or a commission of rape rape attempted in 1985 as tablish allowing rape.” Carter concludes that aggravation at the 1992 evidence rape-related evidence the State to introduce hearing. to fail see how the Double We subjected hearing him to at the 1992 Jeopardy implicated. The State Clause jeopardy. counters that double The State prove attempted rape or rape did not seek to poor the evidence demonstrated Carter’s aggravating as an circumstance under section 76-5-202(2). as to penalty jury character as well his intent torture Nor was the 1992 Indeed, given par- victim and commit an awful crime. the such an instruction. stipulated jury that was ties before the there The trial court found the evidence admissi- indicating rape no medical evidence that a 76-3-207(2) ble under section and denied occurred. it motion. The court stated that complaint ignores point the basic permit the read would State to the may relevant evidence be several purpose any showing “not for the of but example, For evidence different contexts. committed, attempt rape any was nor rape attempted rape charge to or relevant a made, you argue do I to was nor want relevant, guilt phase hearing may also at a be point, only to the but demonstrate what 76-3-207(2), ag- under as evidence in section character and state mind of the defendant na- gravation demonstrating evidence the or may have been.” The court further stated: ture and circumstances of the crime. any [rape “There isn’t or at- evidence correctly We find that the trial court ruled tempted Jury I told rape], think the can be rape-related was admissible no and should be indicated that there was 76-3-207(2). aggrava- “[A]ll under section purely But evidence of that. it’s the state ting unfairly prejudicial evidence not position mind and the and character of presented during accused is at accord with defendant that issue.” capital proceeding.” v. phase a statements, parties stipu- court’s (4-1 (Utah 1993) Young, P.2d 352 objec- jury lated before the that there was no issue) (citing decision on this State v. Laffer- rape that a occurred. tive or clinical evidence 1988), habeas ty, appeal, again raises the same On corpus granted grounds, Lafferty v. on other regard rape-related evi- (10th concerns with Cook, Cir.1992)). Simply 949 F.2d 1546 the trial court’s deci- dence. He asserts that put, penalty jury was entitled prejudicial error it constituted because sion ail relevant facts and circumstances know the rape retry Carter for or allowed the State surrounding Eva murder. The Oleson’s double attempted rape rape-related part violation a those evidence was circumstances, jeopardy guarantees of the United States relevant and Carter facts unfairly prejudiced disagree. admission. and Utah Constitutions. heinous, cruel, especially exceptionally jury wheth- or de- was asked to determine form, Using praved special the homicide in connection er Carter committed a verdict fashion. (1) aggravating following factors: aggravated burglary checked (3) (2) burglary, rape robbery, aggravated or heinous boxes left the others blank. murder but gain, attempted pecuniary rape, Cook, Lafferty F.2d 1546 grounds, evidence is example, rape-related For (10th Cir.1992), remedy the he asks that we and circumstances to the nature relevant sentencing type by adopting a death situation crime in that demonstrates Oleson, require the as which would suffered Eva scheme degree of abuse find, beyond unanimously specially a rea- crime type or nature of well as the doubt, upon Similarly, factor commit. each may have intended to sonable poor imposing its sentence. to show Carter’s which it relies also tends im- depraved mental condition character and correctly re a trial court Whether Thus, we mediately murder.39 prior to the give particular jury instruction is fused to that the court’s determination affirm the trial grant no Accordingly, law. question of rape-related evidence was relevant State’s rul to the trial court’s particular deference 76-3-207(2). and admissible under section James, (citing Ramon ing. 819 P.2d at 798 (Utah 1989)). Farr, As Aggravating F. Circumstances in James: we stated Unanimity Jury purpose giving instructions to challenges the trial next understanding jurors them in is to assist jury with his present court’s refusal in the they have to decide issues which spe proffered supplemental instruction judge’s duty to in- Included in a case. required verdict form. The instruction cial applicable to the jury on the law struct the unanimously find jury specially and the right to have is “the of the defendant case imposing aggravating factor relied on each jury theory presented to the his of the case special form verdict a death sentence. way.” How- in a clear and understandable expressing its provided mechanism for a ever, required give trial court is not the findings. if any jury instruction it does requested proffer on The trial court refused Carter’s not comport with the facts or does instruction nor ground that neither the the accurately applicable the law. state required ap- form .was special the verdict Potter, v. (quoting at 798-99 State 819 P.2d right preserved then propriate. Carter (Utah 1981)). a matter of As 627 P.2d by specifically excepting to the appeal law, correctly the trial court we find decision. court’s proffered instruction and refused Carter’s the trial appeal, Carter asserts On accu- because neither special verdict form provide the with his court’s failure to rately applicable the law. stated prevent- form special and verdict instruction essence, and argues that Wood40 hearing in In receiving a fair 1992. him from ed (Utah Wood, a burden Lafferty41 have established definite Relying v. on State structure, analytic there- proof and a clear 1982), Lafferty, 749 P.2d 1239 and State guide, “objective (Utah 1988), by providing standards corpus granted on other habeas First, cases, (5-0 sentencing jury be injury must the Young, decision on 853 P.2d at 353 39. See (i) issue) may legitimately (penalty jury consider the elements of the other as to this instructed character, dangerousness, defendant's future ad- regarding a the evidence was crime which remorse, retribution). (ii) and lack evi- not to consider duced and that it is aggravating factor that crime as dence of Wood, we held: 40. In prosecution has finds that the unless it first aggra- considering totality "After beyond a of the crime proven all the elements circumstances, mitigating vating [the sen- and Second, to assure that doubt. reasonable beyond persuaded tencing authority] be must factor treatment of sentencer’s aggravation total out- doubt that reasonable distinguished appeal treat- from the can be sentencing weighs mitigation, [the and total aggravating circumstances with other ment of beyond persuaded, authority] must further preliminary respect bur- to which no similar doubt, imposition of the that the reasonable prosecution, the sen- proof rests on the den of justified appropriate in and death is tencing body specifically find whether the must the circumstances.” beyond proven a reasonable crime was other Wood, (quoting 648 P.2d at 83 doubt. 1981) curiam)). (per 749 P.2d at 1260. Lafferty, we held: 41. However, rationally procedure. tion Id. our regularize, make reviewable and process imposing greatly the sentence Parsons was influenced for decision However, preju- fact was not by Carter reasons that the defendant death.” Indeed, if a Wood-Lafferty by procedure. special clarification is useless diced to determine reviewing court unable form and instructions acted as an verdict within the stan- whether the sentencer acted safeguard for the defendant. Id. additional cases, by the need imposed dards hence point, distinguishing how- The crucial and spe- requiring the for a scheme to find ever, safeguard enjoyed any is that additional beyond a cially unanimously, reasonable required by the defendant was Parsons doubt, upon in aggravating factor relied each while Parsons tolerated Utah law. imposing its sentence. special verdict forms and the use such Holland, particular facts P.2d 1019 instructions under the (Utah 1989), case, evidence, we dealt with the issue absent or secret “the withheld required sentencing authority adequate appellate require whether review does not law sentencing authority specify on the specific imposing forth to set reasons Holland, upon imposing penalty.” record reasons relied death 111 P.2d at giv at 1025. After death sentence. Id. ing full consideration to fundamental find We likewise no merit Carter’s underlying goals death scheme—(cid:127) protection equal claim he was denied sentencing authority’s exer channelling the imposition proportional the law and of sen arbitrary avoiding cise of discretion tence because the Parsons defendant had capricious imposition penal of the death special verdict form instruc benefit ty that absent secret or withheld held —we requiring jury specificity and unanimi tions evidence, ty. equal protection claim fails be required [g]iven procedures at trial statutory judi all cause he afforded appellate given and the careful review safeguards required by cial Utah law. The penalty this to death cases over Court enjoyed Parsons an fact defendant years, by specification a of reasons additional, unrequired safeguard is irrele sentencing authority im- record for vant. posing penalty, the death even if it were necessary prevent practicable, is not proportionality argument capricious In- arbitrary and sentences. essence, asks also fails. us to deed, procedure a would such be extraordi- his sentence proportionality address narily cumbersome, especially jury when a by comparing his conviction and sentence agree unanimously on a

would have to that of the We with Parsons defendant. process of reasons under the statement repeatedly rejected requests, have such in Wood. outlined again today. v. we do so See State Archule (citation omitted). ta, 1232, (Utah), reaffirm Hol- cert. de Id. We 850 P.2d 1248-49 - U.S. -, nied, 476, argu- holding and 114 S.Ct. 126 land’s dismiss Gardner, (1993); 427 on the L.Ed.2d State v. 789 ments. To avoid future confusion (Utah denied, 273, 1989), issue, emphasize applies cert. that Holland P.2d 286-87 we 1837, 1090, imposed by judge 110 108 L.Ed.2d equally death sentences 494 U.S. S.Ct. Holland, 1026; (1990); 777 jury. State 965 (Utah 1987) Tillman, 546, 750 P.2d 562 v. Parsons, erroneously cites State v. opinion). in Gardner: (plurality As we stated 1989) (Utah (plurality opinion), P.2d 1275 781 individual, case, each position. Each defendant is support of his Any attempt unique is in its proffered, gave, case facts. and the comparisons re- between defen- special questions and instructions draw broad verdict unanimously speculation calls as to specially dants or crimes quiring jury to particular why defendant or crime was upon factor aggravating find each relied particular jury in that at 1279. dealt imposing the death sentence. Id. many which in- factors appeal, found error the instruc- fashion. On no

657 (10th Shulsen, Cir.1986), easily aff'g Andrews v. 600 jury’s cannot be fluence a decision (D.Utah 1984), denied, identified, F.Supp. cert. 485 quantified. let alone 1491, U.S. 99 L.Ed.2d 718 persuaded P.2d at 287. We are still Shulsen, (1988); Pierre v. 802 F.2d case-by- reasoning. reiterate that a this (10th Cir.1986), aff'g Shelby & n. 2 1282-83 proportionality review comparison or a case (D.Utah Shulsen, 1984), F.Supp. 432 cert. jury’s to invoke the judge’s of a decision denied, U.S. S.Ct. required under state or penalty death is not (2) (1987); appellate lack of L.Ed.2d 536 Tillman, P.2d at 562. federal law. Holland, review, proportionality see argu- proportionality we find Carter’s 1025; Tillman, 561-62; Wood, 750 P.2d at hold, without merit and as a ment Pierre, 77; 648 P.2d at State v. law, matter of that under the facts denied, 1338, 1345 1977),cert. 439 U.S. case, legitimately im- penalty the death was (1978); 882, 99 S.Ct. 58 L.Ed.2d 194 posed on him. (3) specify aggravating circum failure to imposition warrant stances found to Constitutionality Capital Utah’s G. Holland, 1025; penalty, see 777 P.2d at death Sentencing Statutes Shulsen, 1261; 802 F.2d at see Andrews arguments By casting several of his earlier Pierre, Brown, 268; also 607 P.2d at terms, challenges the in constitutional P.2d at 1348. constitutionality penalty of the Utah death respect fifth With to Carter’s fourth and and United scheme under both Utah challenges, today’s ad- we note that decision He asserts Utah’s States Constitutions. First, disposes dresses and of them. be- death scheme is unconstitutional reiterate that neither the federal nor (1) given too much discre- cause is requires case-by-case or Utah Constitution might impose the death tion and comparison proportionality review. We also (2) arbitrarily; required law, that, reiterate as matter of under find, unanimously specificity, and with proportionality individual crime-to-sentence imposing relied on in factors law, required by pen- the death review sentencing penalty; capital death imposed alty legitimately on Carter. provide an effective means of statutes do not review; case-by-case proportionality Second, as Jeopardy af- Double Clause “[t]he capital sentencing stat- applied to separate protec- fords three constitutional dispropor- clause, permit acquittal that is utes death either an tions. Under the dispro- charge tionate to the crime committed and particular a bars or a conviction on capital portionate charge. in other Utah to sentences the same prosecution another on cases; sentencing capital the statutes multiple punishments The clause also bars Holland, because Jeopardy violate the Double Clause 777 at offense.” P.2d for the same they permit capital defendant to be twice a hear- purpose of the 1992 subjected imposition the death sen- ing whether Carter would was to determine imprison- tence. or life receive a sentence death already guilt been estab- ment. His had claims, three respect to Carter’s first With reprosecuted being lished. Carter was have been raised we note that these issues he receive mul- charge, nor did for the same contrary position disposed of to Carter’s tiple punishments for the same offense. Specifically, following previous the cases. Jeopar- Again, how the Double we fail to see rejected: issues have been addressed argu- find the dy implicated is Clause penal unconstitutionality of Utah’s death the merit. ment to be without it allows either too much ty scheme because Bulling reliance on impo in the We note unguided or discretion discretion 1852, Missouri, Holland, v. 451 U.S. penalty, 777 ton of the death see sition (1981), Tillman, 572; misplaced. Bull- 1024; L.Ed.2d 270 is 750 P.2d at 68 P.2d at Brown, Supreme Court Wood, 81-83; ington, States the United P.2d at 648 (Utah capital pro 1980); penalty phase of a held that the see also P.2d 268-71 essentially the issue of Shulsen, a trial on ceeding is F.2d 1260-62 Andrews v. aggravating factor stated in Utah punishment jeopardy consid under the and that double i.e., 76-5-202(l)(q) (Supp.1994), § Id. Code Ann. apply. erations S.Ct. espe- Therefore, Court, was committed jury’s that “the homicide explained the a im heinous, atrocious, cruel, exception- cially first position a life in the trial sentence manner, ally depraved of which must be subsequent imposition a precluded the torture, id. by physical serious penalty following retrial. See demonstrated death abuse, physical bodily injury the or serious Bullington does not apply to for I victim before death.” The Court First, his conviction two reasons. not meet consti- held that instruction did a trial. reversed and remanded for new Sec- Nevertheless, tutional standards. the Court ond, death, he a not life received sentence grounds on but affirmed conviction other imprisonment, following his first trial. and remanded for vacated sentence Moreover, prohibits impo- section T6—8—40542 hearing. new sition of a new sentence that is more severe Cook, remand, On court instructed sentence. Dunn v. the prior than 1990). penalty proceeding in the under con- § language 5—202(l)(q)to underlying Bullington are inapposite. the effect cerns 76— into could take account Nevertheless, argues evi- deciding heinousness of the murder in wheth- penalty hearing at the 1985 dence submitted er the should be life or death. The as matter of to warrant was insufficient law Court now that an holds instruction based Therefore, penalty. death reasons Car- 76-5-202(l)(q) giv- § language ter, Bullington applicable he is because penalty phase, though en in even no imprison- should have been sentenced to life has addressed the issue of whether the facts reaching ment 1985. Without merits requirements of the case meet constitutional claim, find of Carter’s rather dubious I type given. for an instruction of to be timely has not been asserted fashion. think that is indefensible. challenge sufficiency proper time occasions, recognized On several we have underlying of the evidence death “heinous, atrocious, that all murders are cru appeal. sentence was on his first el, 26(9). exceptionally depraved” as those terms R.Crim.P. generally aggravating

are But cir used. set out in the criminal must cumstances code IV. CONCLUSION distinguish mur serve those intentional foregoing analysis, Based on defen- qualify capital punishment ders that dant’s conviction and sentence are affirmed. Simply put, that do not all inten those not. give tional murders can rise to a death sen ZIMMERMAN, HOWE, J., C.J., and An circumstance that de tence. concur. all murders does not discriminate scribes Justice, STEWART, rationally Associate Chief between murders and therefore Georgia, Godfrey dissenting: unconstitutional. 420, 431-33, 1759, 1766-67, U.S. homicide, capital To a convict defendant Wood, (1980); State v. L.Ed.2d 398 jury a find that the defendant commit- must denied, 71, 1981), 988, cert. 459 U.S. an intentional homicide under least ted (1982); 341, State v. 74 L.Ed.2d 383 S.Ct. aggravating one of a number of circum- Tuttle, (Utah 1989). case, appeal in this this stances. On first view, my in giving court In it is a circumvention and sub- Court held that trial erred jury spirit underlying princi- of the of the an instruction to the effect version Wood, ple Godfrey, and Tuttle capital homicide in a could convict defendant provides: § conduct which is Ann. 76-3-405 offense based on same 42. Utah Code prior sentence more severe than less the or a sentence has been Where a conviction portion prior previously sentence satis- set attack, on direct review or on collateral aside impose court a new sen- shall fied. or for a different tence for same offense jury penalty to instruct heinousness, may OQUIRRH phase ASSOCIATES, that it consider the a limited atrociousness, cruelty of the homicide as partnership, Plaintiff-Appellant, justifying a factor death sentence instead guilt on life sentence when was established the basis of different circum- COMPANY, FIRST NATIONAL LEASING stances. INC., corporation; Roger a Utah Loi selle; Margaret Loiselle; Frank P. Ber short, im- is told that it nard; Cumming; Forthcoming Ian M. pose the death on the basis Investments, partnership; a Utah limited understanding cruelty of the heinousness and Stephen Swindle; D. Annette P. Cum § language 76-5-202(l)(q) likely that will ming; Bernard, and Frank P. Defen requirement.1 not meet the constitutional Appellees. dants and given That the instruction is phase make the I does not error harmless. No. 930553-CA. recognize Young, (Utah 1993), contrary, states the I do Appeals but Court of of Utah. possible square not think Dec. ruling Young rulings Godfrey, Wood, and Tuttle. short, there no for the trial reason

judge weight position to throw the of his prosecution argument

behind a in the

phase instructing language statutory provision that was intended to entirely purpose.

serve different

I would vacate the sentence and remand penalty hearing.

for a new J.,

HALL, prior acted on this case to his participate in

retirement but did not opinion.

amended Legislature physical § 1. In modified 76-5- "serious abuse” had to reflect "a con- "heinous, try materially 'depraved' 202(l)(q) atrocious, cruel, than that to define the terms sciousness more exceptionally persons] guilty depraved” [other of murder." Id. at pointed by adding meet the constitutional standard 100 S.Ct. at 1767. As this Court out in Tuttle, 1989), requirement that those factors "must be demon- State v. torture, heinous, atrocious, by physical physical defining the terms and cruel strated serious abuse, bodily injury great difficulty. Legisla- of the victim be- was a matter of or serious language physical abuse” fore death.” I think it doubtful ture’s use of terms "serious fully bodily Legislature complies injury victim added with the or "serious before requirements Godfrey significant death” as to whether constitutional set out raise issues Georgia, they 446 U.S. are sufficient to meet the constitutional stan- (1980). Godfrey made clear that dard. L.Ed.2d 398

Case Details

Case Name: State v. Carter

Court Name: Utah Supreme Court

Date Published: Jan 18, 1995

Citation: 888 P.2d 629

Docket Number: 920110

Court Abbreviation: Utah