STATE of Utah, Plaintiff and Respondent, v. Anne CLARK and Allan Savage, Defendants and Appellants.
No. 17739
Supreme Court of Utah.
Nov. 15, 1983
675 P.2d 557
The evidence might, however, have been admissible, in my view, on other theories, such as identity, intent, or to rebut a claim of accident. But the evidence of battered child syndrome had no probative value on any issue in this case, except that which was really not in controversy, since the defendant was not shown to have been the sole caretaker at the time of the abusive acts and of the homicide. The prosecution failed to prove that critical point in this case, and without that foundation the evidence should not have been admitted.
III.
I think this case should be remanded to the trial court for a hearing as to what evidence the prosecutors had which provoked them to file a second degree murder charge against Leland Foote. It is clear beyond question that he perjured himself during his testimony at the trial in this matter and that the testimony he gave which inculpated the defendant was exculpatory as to him. In fact, his testimony was so glaringly untrustworthy that the trial judge specifically admonished the defendant as to the potential consequences of perjury and discontinued taking evidence until Foote could be represented by independent counsel because of the risk he was running in telling different stories.
It may be true that both Foote and the defendant were mutually guilty in causing the death of the deceased, but there is nothing in this record which would support a conviction of Foote even as an accomplice. On the other hand, there was polygraph evidence submitted by the defendant, confirmed by a polygraph expert from the police department, and admitted by the trial court which indicated that the defendant was not guilty of the crime.
Given the highly unusual circumstances of this case, including Foote‘s plea bargain and perjurious testimony and the admission of the evidence of defendant‘s prior past wrongs and of the battered child syndrome evidence without a proper foundation, I cannot avoid the conclusion that the defendant did not receive a fair trial. I think the case should be reversed and retried.
David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
DURHAM, Justice:
The appellants and defendants, Anne Clark and Allan Savage, appeal their convictions for the offense of aggravated arson,
In this appeal, the defendants allege five points of error: (1) that they were improperly convicted of arson because the structure burned was the property of the defendant Clark; (2) that the prosecution failed to comply with an agreement not to prosecute if the defendants passed a polygraph examination; (3) that the court erroneously denied the defendants’ motion to voir dire the jury regarding potentially prejudicial trial publicity; (4) that the court failed to follow the requirements of
The defendants first argue that in order to be found guilty under
(1) A person is guilty of aggravated arson if by means of fire or explosives he intentionally and unlawfully damages:
(a) A habitable structure; or
(b) Any structure or vehicle when any person not a participant in the offense is in the structure or vehicle.
(2) Aggravated arson is a felony of the second degree.
The question of whether the statute excludes damage to one‘s own property was addressed in State v. Durant, Utah, 674 P.2d 638 (1983). In that decision we held that in order to protect lives, the Legislature intended to proscribe damage by fire or explosives to any habitable structure where persons may be found or any structure where persons actually are found, regardless of habitability. We observed that “property of another” was specified in two other arson statutes and concluded that if the Legislature had intended to exclude damage to one‘s own property from the offense, the statute would have contained that explicit exception. We therefore hold that in the instant case the defendants could be convicted of aggravated arson and that the trial court did not err in refusing to dismiss the charges against them.
Second, the defendants claim that the prosecution refused to comply with an agreement not to prosecute if the defendants passed a lie detector test. In a letter to Clark‘s attorney, the Summit County Attorney wrote that if either defendant “can successfully pass a polygraph examination,” he would not file criminal charges. Clark subsequently took a polygraph examination which was inconclusive. The examiner wrote:
Opinion analysis of the polygraph charts indicate[s] that the results numerically scored are inconclusive. Due to the fact that the polygraph examination came out in the inconclusive range, it is impossible for this examiner to render an opinion as to whether or not Mrs. Clark was involved in the fire as accused.
The rule in Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), states that “when a plea rests in any significant degree on a promise or agreement of the prosecutor so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.” Id. 404 U.S. at 262, 92 S.Ct. at 499. However, in State v. Bero, Utah, 645 P.2d 44 (1982), we ruled that when a prosecutor has made no promise or when the prosecutor and the defendant have not reached a clear agreement, the Santobello rule does not apply. In the instant case, the prosecu
The defendants next assert that the trial court erred in refusing to voir dire the jury regarding a newspaper article about the trial. It is well recognized that newspaper and other media accounts of a court proceeding may have an effect prejudicial to a defendant‘s constitutional right to a trial by an impartial jury. However, circumstances vary widely and it cannot be said that every news story endangers a defendant‘s rights. The defendants cite several cases in which the reviewing court reversed the lower court‘s refusal to conduct voir dire to ascertain the effects of news articles. See, e.g., United States v. Trapnell, 638 F.2d 1016 (7th Cir.1980); Crowe v. State, 84 Nev. 358, 441 P.2d 90 (1968); State v. Clay, 7 Wash.App. 631, 501 P.2d 603 (1972). Each of these cases dealt with the publication of material which was inherently prejudicial to the defendant, such as previous prosecutions, excluded evidence or the guilty pleas of codefendants. The present case does not involve inherently prejudicial publicity. The defendants characterize the newspaper article in question as potentially prejudicial. The State cites the rule that where publicity is not inherently prejudicial the burden is on the defendant to establish that the jurors were exposed to the publicity and that they were actually prejudiced by it in order to set aside a conviction. See, e.g., Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States v. Gigax, 605 F.2d 507 (10th Cir.1979). These cases, however, and others cited by the State, deal primarily with the effects of pretrial publicity and its impact on jurors and the jury selection process. In cases where pretrial publicity is in question, the defendant has the opportunity to voir dire the jurors in the process of empanelling the jury or to object to the manner in which the court does so. In these cases, where there is a record of the jurors’ responses, it is reasonable to require that the defendant must show actual exposure to the potentially prejudicial matter and an actual prejudicial effect. In cases such as the present one, however, where the publicity takes place during the trial, the defendant cannot ever show actual exposure or prejudicial effect unless the court allows the jury to be polled.
In Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), the Supreme Court stated:
Due process requires that the accused receive a trial by an impartial jury free from outside influences. Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused. And appellate tribunals have the duty to make an independent evaluation of the circumstances.
In Arndt v. State, 93 Nev. 671, 572 P.2d 538 (1977), the Supreme Court of Nevada pointed out that although the polling of a jury is within the sound discretion of the court, where a judge refuses to voir dire an empanelled jury regarding potentially prejudicial publicity during trial, it is appropriate for the appellate court to examine the facts to determine whether the rights of the accused have been prejudiced. Id. at 675-76, 572 P.2d at 541. We agree with this analysis. At the same time, we emphasize that many news items published about a trial are not even potentially prejudicial to the defendant. A trial judge is not required to poll the jury every day regarding all media treatment of the trial. Such a procedure could, in fact, work to a defendant‘s disadvantage by annoying the jurors and creating an atmosphere of suspicion and distrust. Therefore, we hold that when requested by counsel to poll the jury
In the instant case, at the close of the State‘s case the attorneys for the defendants presented a motion for dismissal due to insufficient evidence to the court outside of the presence of the jury. Subsequently, while the trial was continued during a juror‘s illness, a news article appeared in a local paper. The relevant portion of that article stated:
Judge Leary adjourned Friday after taking under advisement motions for dismissal made by the two defense attorneys ....
Attorneys ... contended that since the cause of the fire is not yet determined it must be assumed to be of accidental origin. They both contend in making their motions for dismissal that the mere presence of the defendants at the scene is not presumptive of guilt.
Because the trial did continue following the motions, the defendants claim that any juror who happened to read the article could have concluded that the motions were denied because the judge believed the defendants to be guilty. The article makes no mention, however, of a denial of the defendants’ motions or of sufficiency of the evidence. It expresses no opinion or conclusion but is a straightforward, dispassionate report of the proceedings. It would take very careful reading and a sophisticated knowledge of law and trial procedure for a juror to draw the inferences which the defendants suggest. If the article had stated that the judge denied a motion to dismiss because of insufficiency of evidence, there might be grounds for suspecting potential prejudice. As it is, we hold that the article was not even potentially prejudicial and that the trial court did not err in refusing to poll the jury.
In their fourth point, the defendants allege that the trial court failed to comply with Rule 17 of the Rules of Criminal Procedure. In pertinent part, the rule states:
(f) In all cases the prosecution and defense may, with the consent of the accused and the approval of the court, by stipulation in writing or made orally in open court, proceed to trial or complete a trial then in progress with any number of jurors less than otherwise required.
....
(h) If a juror becomes ill, disabled or disqualified during trial and an alternate juror has been selected, the case shall proceed using the alternate juror. If no alternate has been selected, the parties may stipulate to proceed with the number of jurors remaining. Otherwise, the jury shall be discharged and a new trial ordered.
Finally, the defendants complain that there was insufficient evidence to support their conviction of aggravated arson. They allege that their mere presence at the fire is not presumptive of guilt. On numerous occasions we have stated:
This Court will not lightly overturn the findings of a jury. We must view the evidence properly presented at trial in the light most favorable to the jury‘s verdict, and will only interfere when the evidence is so lacking and insubstantial that a reasonable man could not possibly have reached a verdict beyond a reasonable doubt.
State v. Asay, Utah, 631 P.2d 861 (1981); State v. Lamm, Utah, 606 P.2d 229 (1980); State v. Gorlick, Utah, 605 P.2d 761 (1979); State v. Logan, Utah, 563 P.2d 811 (1977). We also view in a light most favorable to the jury‘s verdict those facts which can be reasonably inferred from the evidence presented to it.
State v. McCardell, Utah, 652 P.2d 942, 945 (1982). The State presented uncontroverted evidence that accelerants had been used to create the explosion and fire, that Clark had recently had an engineer inspect her house because of some cracks in the foundation, and that the defendants were present and had been burned in the fire. The defendants’ contradictory and confusing accounts of their actions offer no reasonable explanation for the fire. We cannot say that the evidence is so lacking and insubstantial that a reasonable man could not possibly have reached a verdict beyond a reasonable doubt.
Therefore, judgment of the trial court is affirmed.
OAKS and HOWE, JJ., concur.
STEWART, Justice (dissenting):
I dissent for the same reasons stated in my dissent in State v. Durant, Utah, 674 P.2d 638 (1983). The trial court found that the setting of the fire was intentional. There is nothing to indicate, however, that the fire was set for an “unlawful” purpose as required by the aggravated arson statute,
HALL, C.J., concurs in the dissenting opinion of STEWART, J.