*1 (b) been laid for the introduction breath- of the The source of the information from Furthermore, not alyzer evidence. it was which made and the method and cir- court, or upon incumbent statute cumstances of preparation their were otherwise, and findings, to make written as such to indicate their trustworthi- findings in even if he did not vocalize his ness. evi- of his support decision admit (3) judge If the finds that standards dence, it was incumbent (1) established under subsection and the thereto, exception to take if for no other provisions (2) of subsection have been dispel any reason than notion invited of met, there shall presumption be a that error. the test results are valid further reasoning I am to follow also unable for foundation introduction of evidence is of prof- that majority affidavits unnecessary. [Emphasis added.] fered in were since evidence inadmissible I affirm of the trial they were not made from the standpoint entirety. court in its personal knowledge. My reading of the affidavits they reveals were executed
by the three Patrol Highway troopers
performed testing breathalyzer they accuracy and were executed in
their capacity as “Breath test technicians.”
If did not they personally perform the test-
ing, their affidavits at least support
fact they personally per- observed the Utah, STATE Plaintiff formance of tests by' any others. Respondent, event, sufficiency of the affidavits not court, having challenged been in the trial issue is not before the Court.1 CASTONGUAY, William W. In regard majority to the assertion of the Appellant. Defendant requires documentary evi- 41-6-44.3 § No. 18000. prepared contemporaneously dence to be with testing the “breathalyzer,” Supreme of Utah. Court find no such provision therein. What 9,May in sub- by the statute is set forth (2) (3), sections which read as follows:
(2) In or which proceeding action prove
it is person material to that a
driving physical or in of a actual control alco-
vehicle while under influence of
hol or with a con- driving blood alcohol greater,
tent of of- .10% or documents acts,
fered as memoranda or records of
conditions or events to
analysis accuracy the instrument pursuant
were made estab- standards
lished subsection shall be admissible
if:
(a) judge finds that the in- regular
made in the course of
vestigation at about the time event; condition Associates, al, Utah, 1. Franklin Financial Ponderosa et *2 Wilkinson,
David L. Lake City, Salt plaintiff respondent.
HOWE, Justice: his appeals The defendant conviction of degree first murder on the ground that the evidence adduced at trial was insufficient to intent to peace kill a officer in order to avoid or prevent arrest. the relevant facts which
The version of finding supports entered in the court below discloses the following scenario: midnight after on December Shortly Trooper Mangelson High- of the Utah Deputy Patrol and Carter of the Juab County Department riding Sheriff’s together Mangelson’s patrol marked ear Nephi, They stopped Utah. to investi- gate the defendant’s activities near his camper parked truck on the street. him for identification and ob- They asked lying rifle on the magnum served a .338 camper clip bed with bullets in the but nothing They questioned in the chamber. registra- him and demanded to see his truck to their sat- papers produced tion which permission isfaction. Defendant asked for stay parked where he was as he had go a few beers and wanted to drunk objec- had no sleep. and the officers part- tions. The defendant friendly ed on terms. A little while later point approxi- the officers returned to a mately camper 1902 feet distant from the staying to observe the defendant while out of his view.
According of the two offi- cers, standing on the driver’s rear, camper, then walked to the side of the rapid and in succession pulled gun, out fired three shots in the direction then crawled officers’ car. camper, reemerged back into the officers toward some away walked rifle. The officers buildings, carrying his in their car. Carter then Provo, followed him R. for defendant Stanger, Ronald Ac- pursuit on foot. out and continued appellant. cording Mangelson reap- (e) The homicide was committed for peared between two buildings, raised the purpose of avoiding preventing as if to officers, aim at the but did not arrest by peace officer acting under shoot. testified that while he legal color of authority purpose for the was driving on alone over gravel, he heard effecting an escape from lawful custo- *3 the defendant fire another dy. shot in his di- [Emphasis added.] object rection and some hit his car. He lost U.C.A., 1953, 76-4-101 attempt defines § sight of the again he when as follows: him, next a caught glimpse of the defend- 1. For purposes part, of this a person ant packing was still Mangelson rifle. guilty of an attempt to commit a crime car, out, stopped took cover behind if, acting with the kind of culpability boxes, some and from a distance of 236 feet required otherwise for the commission of yelled the defendant “Stop. Throw offense, engages in conduct consti- the rifle down lay down on the [sic] tuting a step substantial toward commis- grass.” Mangelson testified that re- in sion of the offense. sponse the defendant fired another shot at purposes For part, this conduct him, but admitted under cross-examination does not constitute a substantial step un- that he did not see that shot being fired. less it is strongly corroborative of the Mangelson then returned fire twice. At actor’s intent to commit the offense. that point the defendant against backed [Emphasis added.] wall of á building, still holding his rifle. Carter arrived at the corner of that build- To sustain the accusing information ing, saw the defendant and told him to the defendant of attempted degree first throw down his rifle and raise his hands. murder, the had the burden to rifle, The defendant dropped his raised his beyond a (1) reasonable doubt that the de hands in the immediately air and started fendant, shot,” by firing the “Main Street walking towards offering no resist- engaged in constituting conduct a substan ance. Other officers summoned over the step causing tial toward the death of anoth dispatch converged radio on the scene and er; (2) he engaged in that conduct for placed was under arrest. purpose avoiding or preventing an by peace arrest officer acting under color After trial to sitting the court without a legal authority; (3) that he had the jury, the court found at the time the “[t]hat culpable mind to show intent or Mangelson, defendant shot at Officer across kill in knowledge pre order to avoid or Street, he, Main Street —to east of Main vent arrest. then, doing was so purpose for the of avoid- ing preventing by peace arrest pivotal questions Two must be answered officer acting legal charge under cover of in the affirmative before the defendant can IAnd find the defendant It guilty.” [sic]. found guilty attempted degree be first is this last “Main Street shot” that resulted murder: conviction, in the defendant’s we 1. Did the defendant’s conduct disclose therefore determine whether the evidence preparation conscious deliberate to kill guilty sufficient to find the defendant Mangelson, only through which was foiled attempted degree first murder. some extraneous interference and not U.C.A., 1953, provides: 76-5-202 § through volitional act or omission on the Murder in degree. the first Criminal part defendant? — homicide constitutes murder in the first manifest, 2. Did the defendant either degree if the actor intentionally or know- desire, voicing by divulging his conscious ingly causes the death of another under objec- by inference that this was his chosen any of the following circumstances: tive, in Mangelson intent to kill prevent or avoid arrest?
order question It is the of intent other mens Attempted rea. See proved may Murder, Annot., 612, must be before the conduct 54 A.L.R.3d et seq. culpable. said to be establishing certainty No such is revealed
nexus between intent and act it must be
Carter,
Both
record here.
attempt
borne in mind that an
transcends
defendant,
as well as the
testified that
intent,
their
yet fails to culminate in its planned
at the camper
friendly.
initial contact
accomplishment.
say
“When we
that a man
given wrong,
to do a
we mean Defendant
testified that he harbored no ill
it,
officer,
that he intended to do
specifically
against
will
either
and had never
proceeded
doing.
a certain
being.
shot at a human
He further
testi
full;
thing
intent in the
covers the
mind
anyone
fied that he did not hear
shout at
only
part.”
the act covers it
Thacker v.
drop
gun.
him until Carter told him to
Commonwealth,
134 Va.
114 S.E.
unmistakenly admitted under
*4
(1922).
506
The conduct of the defendant
that he did not see
cross-examination
case, though culpable,
in the instant
cannot
let alone see the
gun,
defendant’s
defendant
guilty
be taken alone to find the defendant
point
gun
alleged
at him at the time the
absent
concomitant
intent
to achieve
“Main
shot” was fired. Further
Street
objective.
pre
the conscious
“The law can
more, although Mangelson saw defendant
sume the intention so far as realized in the
area,
carry
through
grassy
his rifle
he did
beyond
but not an intention
what was
not at
time see a muzzle blast. Carter
presume,
so realized. The law does not
did not witness the “Main
shot.” An
Street
weapon
because an assault
was made with
expert
yards
witness testified that at 300
death,
likely
produce
to
it was an as
Magnum
a .388
would create a muzzle blast
sault with the intent
to murder. And
of an 18 inch diameter visible to a man
it
particular
where
takes a
intent to consti
fire;
in line of
that a cone
directly
shaped
crime,
tute a
particular
intent must be
muzzle blast
be visible if a
would
proved
either
direct or circumstantial
degree angle away
held at a 90
from a
evidence, which would warrant
the infer
target; Mangelson
away
was 236 feet
ence
the intent
of
with which the act was
alleged
the defendant when the
“Main
Thacker,
done.”
114
at 505.
supra,
S.E.
shot” was fired. Yet he did not see
past acknowledged
This Court has in the
a muzzle blast.
the fact
intent
criminal
seldom
The
was an expert
defendant
marksman
proved by direct evidence but must be in-
capable
hitting
on” at a distance
“dead
stead
inferred from
circumstances
yards.
of one hundred
Had he intended to
Nonetheless,
given
facts.
we have also
Mangelson
prevent
kill
to avoid or
his ar-
cautioned that
the act
in itself does not
rest, he
hit
tar-
likely
have
presumption
raise the
that it was done with
get or within inches thereof. No evidence
specific
intent
anywhere
of a bullet was found
near the
circumstances,
offense. All the
when taken
site from which
returned fire in
together,
admit of no other reasonable
spite
thorough
of a
search. All these voids
hypothesis than that of
warrant
guilt
highly questionable
in the evidence make it
Lamm, Utah,
conviction.
v.
606
State
P.2d
to kill Man-
attempted
defendant
(1980),
229
and cases cited therein.
v.
State
avoid arrest. The defendant’s
gelson to
Manus,
(1979).
93 N.M.
what then occurred? A At that point Castonguay just Mr. up against
A backed the wall like this —had gave my I location on the radio to right against back the wall and he and I told the other offi- dispatcher, just stayed didn’t move. He there. was, cers on the radio where I and where got my patrol he was. And I out of car. I got back on radio. I told the I knelt down behind some boxes and stuff other officers where he was and that he there, my that was and I drew service just up against backed there just revolver. And as he to the rail- wall. here, I hollered at him to
ing right stop— Q Okay. And were those other offi- lay throw the rifle down and down on the cers in this area that time? lawn there off the sidewalk. Yes, were. A Q you your recall exact Can words Q you what Describe observed you yelled at him? on? point Well, said, A pretty close. Okay. A He was—he had his back “Stop. Throw the rifle down lay here, just couple to the wall right grass.” down on the Deputy feet back from the sidewalk. Q response? City Epperson And what was his Police Officer that hit. where that round hit? you shoulder added.] THE COURT: And A I observed him A That A I did not observe where that round THE WITNESS: Q (BY A A He fired Q Q *6 Q And what were located? road from And what did Did Yes, I you MR. distance did. observe him another EYRE) shot where he was to where is the distance across is 236 feet. Yes. you go put shot me. he Did observe? off. the rifle to his firing missed you [Emphasis observe it? you? other side the the wall here. And front down, and at that time he did. into at this time. house, A Yes. A Yes. Q Q He I told them he was backed n : street, they had him handcuffed. custody right dropped And Deputy And coming up here, n : of Main you you he was down on the they were about to the front When I started down across told him to throw the rifle the Carter came around the They observed the arrest? were still located on I remained where I was. : n this side of the court- rifle, there. Street? had a walkie-talkie. n [*] up against took him ground, n the ing? rounds at him. wall here. A He was A I returned two Q (BY Q (BY *: court round, [*] MR. where, exactly, MR. what then occurred? standing right against EYRE) EYRE) : n rounds. After he had fired [*] Could he was stand- [*] I shot two you show n this gelson prior pounded stand en. weapon Subsequently, on (Whereupon, You THE COURT: Q testified: to And what that better to the witness was read back you shots night, read that didn’t see the defendant’s the last question cross-examination, being Now, that back, taken? do is? question time, Mrs. Worth- you under- did Man- you, pro- reporter.) you THE Could understand colloquy. COURT: Then defense counsel com- question? question by (the pounded apparently unclear) is you drawing Mangelson’s THE Are if record asking WITNESS: me at- weapon I saw him with the he to exhibit, before tention an unidentified drawing shot? or sketch. A further colloquy then ensued
Q (BY ANGER) place MR. as to the time ST At time the event to that he was at defense Chapman’s question store the which counsel’s was direct- courthouse, right on this corner. ed. you A Are about talking across this might weight Whatever be said of the to way, or across this way? to given Mangelson’s response that “I Q Right about Chapman’s store. didn’t see the his to weapon,” answer Well, no, A the answer to that is very question propounded next to him
didn’t see the weapon. appear to neutralize his preceding Q What did you see? answer: A I Catsonguay coming saw Mr. [sic] Q What did see? you up through here, out grassy area A I saw Catsonguay coming Mr. [sic] packing was still the rifle. there, up through grassy area out Q all you Is that observed? packing [Emphasis he was still his rifle. A Well—is that all I observed? added.] Q Yes. fairness, respect all all due A I think so. [Emphasis added.] witness, question, when asked the broad foregoing cross-examination did little observed,” you responded all “Is that and he enlighten clarify to further the court affirmative, said it not to be the testimony given on direct. Further- response amounted a contradiction of more, only interpretation under a strained saw on direct that he it thereof can be said cross-exami- put the rifle his shoulder and nation either detracts from or contradicts fire the “Main shot” at him. Street testimony. earlier This to be seen I would affirm the and sen- evolved the re- question which the trial tence of court. sponse that “I didn’t see not weapon” confusing, if obviously wholly question in- misunderstood. The de-
quired not whether saw the
fendant aim and fire “Main
shot,” weapon but whether defendant’s *7 being
seen taken.” This “prior to shots interject
prompted court to itself into