State v. Dunn

perform these services himself have had to presumably billing Utah, rate. Tak- higher Appellee, STATE of Plaintiff and ing trial court’s substan- into account the requested,

tial reduction in amount es- DUNN, Robert Defendant W. costs, pecially paralegal in the area of Appellant. having the total concluded that award of reasonable, attorney fees we find that was No. 17571. proper it trial court to for the include provided by paralegal services in Supreme its Court of Utah. attorney award of fees. March short, this court finds that the trial in court did not abuse its discretion award-

ing attorney Baldwin fees. We reasonable

therefore do not disturb trial court’s

ruling.

UNAUTHORIZED PRACTICE OP LAW ap issue raised

While not an

peal, appropriate we deem it to address a

peripheral brought to matter our attention above,

during argument. oral As noted

Paul attorney Richins assisted Baldwin’s paralegal. After was entered Baldwin,

in assign favor of Richins took judgment. ap

ment of the Richins then court,

peared pro arguing se before this in

favor position uphold of Baldwin’s rulings.

trial court’s While Richins is free assignment judgment,

to take it appear statutorily preclud

would that he

ed from appearing his own behalf

represent his interests the matter.67

Rule 5.5 of the Utah Rules of Profession- prohibits lawyers

al Conduct engag- from

ing assisting others activities that practice

constitute the unauthorized of law. might very

While this well be an isolated

incident, might we are concerned that far-reaching inspiring

have the effect of

other similarly members of the bar to as-

sign judgments persons. lay light avoidable, easily

what we exhort all

members of the bar to refrain from enter-

ing into arrangements. such

HOWE, C.J., STEWART, Associate ZIMMERMAN,JJ.,

DURHAM and concur.

67. Utah Code § Ann. 78-51-25. Woodhead, Watkiss, Mary B. J.

David Moore, City, for defen- Salt Lake Debra J. appellant. dant and ZIMMERMAN, Justice: appeals his 1981 Robert W. murder, degree for second conviction (1978 Supp.1979) & Ann. 76-5-203 Code § (amended 1986), aggravated kidnap- (amended 1983). (1978) ping, id. 76-5-302 case come the third time his has This is initially affirmed his before this court. We opinion in per in a curiam conviction 1982). Dunn, April we reversed a trial court’s cor- petition of Dunn’s for habeas dismissal grounds sufficient pus because we found permit him to claim ineffective assistance corpus require a of counsel and to habeas that hearing though he had made even during appeal. Dunn v. the initial claim 1990) (Utah Cook, P.2d 1990, we reinstated (plurality). In June of directly to this right appeal Dunn’s appeal. now consider court. We (i) of error: insuf- raises six claims Dunn evidence; (ii) sup- failure to ficiency resulting from an unconsti- press evidence search; (iii) improper admission of tutional conviction; (iv)improper prior a evidence of (v) gruesome photograph; of a admission closing during ar- misconduct prosecutorial (vi) assistance gument; and ineffective conviction of We reverse counsel. entry of a and direct degree murder second manslaughter. We reckless judgment for aggravated kid- for his conviction affirm napping. verdict, reviewing jury we view reasonable inferences and all

evidence light in a most favorable therefrom drawn Andrews, 843 E.g., the verdict. State 1992); 1027, 1030(Utah v. Ham State P.2d ilton, 1989), (Utah Gardner,

cert. McClain, L.Ed.2d 965 Gen., Dam, Atty. Christine R. Paul Van 1985) Gen., City, Bolsinger, for Soltis, Lake Atty. Asst. Salt according- the facts We recite (plurality). appellee. plaintiff and Hamilton, not plan and that he did with Scott to ly, present 827 P.2d at testified Sprinkle hit and conflicting only to the extent nec- rob and Scott bound However, Sprinkle essary the issues on his own initiative. to understand raised jail inmate named Thomas Gleffe testified appeal.1 Dunn that while he and were incarcerated During met the summer of Dunn together, said that and were Dunn Scott hitchhiking in Howard Scott while Santa they “partners” had intended to and Barbara, They spent a few California. up him, him Sprinkle, tie rob and leave met days together, separated, again and somewhere. Barstow, Barstow, they California. In ob- continued, Sprinkle, journey ride Ernest As the Dunn and tained a from who Denver, driving stops. his motor home Scott made two more The first was they in a small unidentified where Colorado. three traveled Las Ve- town Nevada, gave Sprinkle purchased gas. The second was Rich- gas, where field, There, Utah, a few and left them so at a service station. and Scott dollars gamble. night, buy he could Later that both men left the motor home to a fuse jour- paid for its Sprinkle pair resumed their citizen-band radio. Scott miles, fuse, ney. Sprinkle, inspected After a few had the it. Dunn who while drinking, asked one of the others to went back inside the motor home. Before been point home, drive. Dunn from that on. Scott reentered the motor he waved drove standing over hitchhiker about five hun- Nevada, Mesquite, they stopped away. dred feet When the hitchhiker buy gas Again, gambling. continue home, reached him to the motor Scott told gave Sprinkle money. Dunn and Scott went wait minute and inside the motor began gambling Sprinkle, Scott with home. they to gamble continued until dawn. At point during night, point, one the Dunn became At that the hitchhiker heard and Sprinkle upset they Sprinkle pounding with and saw in the motor home Scott because losing money Sprinkle screaming help. the were and because on window and for becoming increasingly heard was drunk. The trio The service station attendant also a.m., Mesquite Sprinkle pounding left around 6 with Dunn the window. Scott home, driving. rushed the of motor to back the pulled while Dunn the vehicle out of the border, crossing Sprinkle After the Utah oncoming station in front of an semi-truck. lay on the rear down floor in the station, the home left the As motor the drove, home. motor While Dunn Scott Sprinkle service attendant still station saw went to the back of motor home and hit the pounding at the window. The semi-truck Sprinkle on the or both head. One help Sprinkle motioning driver for also saw Sprinkle’s togeth- men tied hands arms and up as he behind motor home. came the wrapped and a his er towel around mouth. pulled Someone then down the back win- hit Sprinkle Scott testified trial that he dow shade. Sprinkle Dunn him that because told “had later, [bjecause in getting Sprinkle to be killed ... he was locked himself Minutes aggravating try- nerves the and and motor home’s bathroom. Scott forced [Dunn’s] ing open tell him to how to drive.” Scott also the door and fired fatal shots at two Sprinkle gun. that he had testified and Dunn decided to from a hand .25-caliber Sprinkle rob and Dunn him the given that both them tied Scott testified that had Dunn, hand, Sprinkle up. gun Sprinkle on the other and that shot because Attorney only destroyed transcript, 1. The General’s office the record instructions, the trial contains original paginated instructions, indexed record and as a mat- proposed defendant’s passage ter of course due of time to the after the and docu- conviction. No other appeal. A initial record was reconstructed for ments for were available review. purposes appeal. the The reconstructed trial, prosecution’s pri- At Dunn’s the again Sprinkle him that had Dunn told mary theory that Dunn acted as a however, was Dunn, killed. testified be Sprinkle’s in principal kidnapping and as Scott’s, acting was gun was that Scott the Dunn, accomplice killing. rep- in Sprinkle’s own, Dunn unable to on his and that was by court-appointed attorney, a as- resented anything he feared for his own do because compul- the affirmative defense serted Gleffe, safety. jail the inmate who testi- Ann. Utah Code 76-2-302. sion. See Dunn, also about with fied his conversation jury that, among The court instructed the gun had told him testified that Scott things, it homi- other could convict Dunn of Scott’s. principal accomplice under cide either a station Alerted a call from service theory. The returned a verdict Richfield, Highway a attendant in guilty degree aggra- of second murder and home near stopped kidnapping, Patrolman motor for which received vated Dunn life Salina, years concurrent sentences of five Utah, finding Dunn in the driver’s imprisonment. and life After the convic- in the The officer seat Scott back. tion, an appeal his trial counsel filed brief looked and col- testified that Dunn “calm per- requested on Dunn’s behalf and then for his lected” when asked identification. mission to withdraw from case. This asked Dunn for the vehi- When officer granted request court and affirmed registration, replied Dunn cle’s Dunn, conviction. car” from motor home was “drive-out (Utah 1982) (per curiam). they added that were tak- California. Scott counsel subsequently Dunn obtained new re- ing it to Denver. When the officer petitioned the Third District Court authorizing pair quested papers, corpus, the court a writ of habeas through shuffled of a console contents denied. We reversed decision produce between the seats but failed (Utah 1990). Cook, Dunn v. them. court Four of this found members out officer ordered and Scott possi- Dunn had demonstrated sufficient vehicle, home, of the motor entered his ineffective bility that trial counsel was Sprinkle’s body found in the bathroom. during appeal him representing initial out, stepped When the he asked officer permit him raise an ineffectiveness body. corpus “I responded, Dunn about the for the time claim first habeas (Stewart, J., joined proceeding. at 878 lawyer. All I Id. want was told to do was Durham, (Zimmerman, J., J.); id. at 879 drive.” Dunn and Scott were arrested. result, Hall, joined concurring in the During search, police a later the found the C.J.). case for Although remanded the we gun killing in in used the under a mattress hearing, we reinstated direct later Dunn’s unspent the motor home and .25-caliber response in his mo- appeal to this court to cartridges Sprin- bag. in Dunn’s duffle tion, oppose. did not We which the State they kle’s wallet never was located. When appeal if it consider Dunn’s were now arrested, were had Dunn had $30 Scott and appeal his first to this court. less than a dollar. error, claims we Before we reach the first charged Scott Dunn were with In his address a crucial threshold issue. degree aggravated kidnapping, murder and brief, challenged convic- opening his time, capital sepa- both at the offenses aggra- degree for second murder and tions rate trials held in District were the Sixth grounds, that arguing vated assault six tried Court. Scott was first. The ground each reversal of each warranted aggravated kidnapping convicted him of that responded the convictions. The State but was to arrive at on the unable a verdict justified of these reversal of grounds none degree charge. first murder In return for aggravated kidnapping Dunn’s conviction. agreement Dunn, testify against However, respect with second de- pleaded guilty charge conviction, Scott to a reduced gree murder conceded State degree second plain murder. the trial had committed that court murder on which this instruction as to the ele- statute instructing error in based read: degree murder and ments of second murder degree convic- therefore second murder in Criminal homicide constitutes sug- The State be tion should reversed. if degree the actor: the second flawed gested place of the second (a) intentionally knowingly or causes conviction, degree murder we should enter another; the death of [or] manslaughter, as we judgment for reckless Bindrup, 655 did in State (c) acting under circumstances evi-

(Utah 1982). reply brief redirected Dunn’s dencing depraved indifference hu- sug- arguments the State’s against his six life, engaged man in conduct which gestion judgment reck- that we enter a for grave risk death to another creates a manslaughter. less of anoth- thereby causes the death agree Dunn’s If we with the State er.... murder degree for second should conviction 76-5-203(1) (1978 Ann. & Utah Code § aside, analyzing challenges his six be set (amended 1986) Supp.1979) (emphasis add- purpose. no that conviction would serve ed). Therefore, trial we first decide whether the plain instructing committed error court above-quot out points jury as to the elements of second de- degree language ed murder second gree we conclude that murder. Because as a statute does not include recklessness did, arguments given, next Dunn’s we address mental and that the instruction state recklessness, be entering for reckless mentions could easi against judgment ly described in manslaughter. opinion confused with offense The balance manslaughter Utah’s statute. 76-5-205.2 claims of error as addresses six concedes, Consequently, use they relate to a of reckless man- degree instruction in second murder aggravated slaughter and his conviction cluding “recklessly” amounts to the word kidnapping. suggests that plain error. The State we the trial To determine court whether plain review under the error the instruction plain instructing committed error counsel standard because Dunn’s trial ob degree jury on the elements of second mur- “only general jected to the instruction der, compare given the instruction with failing object evidentiary grounds,” thus statutory elements of the offense. The Emmett, adequately. See State v. jury was instructed that it could find Dunn El guilty degree pros- of second murder (Utah), dredge, 773 P.2d cert. following: ecution established the 1) intentionally That Robert L.Ed.2d 29 W. knowingly caused the death of Ernest general, to the establish exis or Sprinkle; appellate plain tence of error and obtain to 2) That Robert W. Dunn acted under alleged relief from an error that was not evidencing depraved circumstances in- to, properly objected appellant the must life, to human recklessly difference en- exists; (i) (ii) following: show error the An in

gaged grave conduct which created a the have to error should been obvious the thereby risk to another and caused the court; (iii) harmful, trial and is the error Sprinkle. death of Ernest i.e., error, the is a absent there reasonable added.) trial, of (Emphasis At the time the outcome likelihood of a more favorable for language degree appellant, phrased differently, of the second the or relevant our states, 2. Section 76-5-205 lessly “Criminal homicide causes the death of another....” (a) manslaughter constitutes if the actor: reck-

1209 76-1-402(5), 1973, enacted is undermined.3 Section in the verdict confidence (Utah Verde, 116, 122 part: P.2d in relevant v. 770 states See State Bell, 100, 1989); P.2d 105-06 770 State appellate appeal If an court on ... ... 913, Knight, 734 P.2d (Utah 1988); State v. determine that there is insufficient shall Fontana, (Utah 1987); State 919-20 for the support conviction see also El P.2d charged is offense but that there suffi- 35-36; dredge, P.2d Utah R.Evid. at cf. support cient evidence to a conviction for 19(c). 103(d); If R.Crim.P. one of Utah an and trier of included offense the fact met, plain requirements is not error these necessarily every required found fact for Hamilton, not established. Cf. offense, of conviction included Verde, (Utah 1992); 827 P.2d judgment may or conviction be verdict judgment set aside reversed and a entered for the included of- conviction agree with We fense, trial, necessity a new if without First, plain trial committed error. court sought by such relief the defendant. erroneous. See Fonta instruction was 76-1-402(5) (codifying Utah Code Ann. § na, 1046-47; Bindrup, State v. P.2d at 76-1-402). Laws ch. (Utah 1982). 655 P.2d Under the case, we not Dunn’s have reversed given, have mis instruction could degree for second murder conviction insuf reckless conduct takenly believed that has ficiency of evidence not prove aloné murder is sufficient sought entry judgment of which Second, degree. because the sec second —both 76-1-402(5), face, requires. on its section degree ond murder statute does not include While we be able force facts describing the word “recklessness” statute, here fit the have done on we manslaughter mental state and the actor’s occasions, see, Johnson, e.g., other does, we think the error should statute judge. obvious to the trial been Tuttle, 1989), Third, prejudi find that the error was we cert. U.S. cial we cannot be sure that because (1990); Bolsinger, 108 L.Ed.2d 498 Dunn on the basis of a did convict Bindrup, 1221; P.2d at Bindrup, P.2d at mental alone. reckless state Cf. Instead, no to do we Consequently, there is reason so. 655 P.2d at 676. we must general modify rely power our crimi degree for on reverse conviction second judgments appeal entry of nal to direct murder. manslaughter judgment for reckless Having held conviction for against Dunn. stand, degree murder cannot second courts have Numerous state federal suggestion that consider the State’s we di- a defendant is convict- concluded when rect the trial court to enter for occurred at ed of an offense but error manslaughter reckless rather than remand- trial, power judg- to enter a court has ing the case a new trial on the second for a lesser included offense rather degree ment charge. proposi- murder For this (i) tion, ordering a trier of fact Bindrup, than retrial the State relies necessarily to consti- found facts sufficient entry judg- in which we directed offense, (ii) tute lesser the error did by applying ment under similar facts sec- See, e.g., 76-1-402(5) State findings. tion of the Code. affect these 920, Archambeau, Ct.App. also P.2d 3. We note a claim error be 820 922 1991). However, contemporaneous exceptional despite cir lack of because the revived ill-defined, objection "exceptional exception if see Archam circumstances” exist. cumstances Cook, 1148, beau, 926, applies primarily v. P.2d and See Jolivet 784 1151 820 751, anomalies, 1033, 1989), procedural proceed U.S. 110 we under cert. 493 S.Ct. rare (1990); Gibbons, plain exception. 107 767 State v. error See L.Ed.2d 740 the better-established 1309, generally 1311 see also v. id. at 922-26. 1210 (Wat- 402(5), 248, (La.1980) implicitly by the Byrd,

v. relied on State to 385 So.2d 253 son, J., (listing twenty dissenting) entry judgment states in the instant case. seek result).4 1980, legislature repealed that allow this We conclude title 77 power. we have the same replaced and it with an the Utah Code entirely procedure. code of criminal new judgment for a lesser power The to enter 14, The new See 1980 Utah Laws chs. 15. offense derives from a number of included 77-35-28, designated code included section power in Many find this sources. courts by legislature as Rule of Pro- Criminal giving appellate statutory language provided part: 28. This cedure “modify” judg general power court (a) See, judgment If a e.g., Austin v. Unit of conviction is re- appeal. ment States, (D.C.Cir. versed, a new trial shall be held unless 129, ed F.2d 140-43 382 grounds by 1967), specified by appellate overruled on other otherwise Sherod, 1075, v. United States 960 F.2d court.... Alexander, v. People (D.C.Cir.1992); 1076 (b) Upon appellate affirmance 906, 647, Cal.Rptr. Cal.App.3d 140 189 918 court, or order affirmed or judgment State, 614, (1983); Ritchie 243 Ind. 189 shall be executed. modified Gunn, 575, (1963); N.E.2d 576-79 (1982) (empha- Ann. Utah Code 77-35-28 § 453, 212, (1931); 89 Mont. 300 P. 217 added) 1990) (now (repealed sis Utah Sorrentino, 129, 420, Wyo. 224 P. 31 28). R.Crim.P. Austin, generally (1924). See 426-27 382 cases). (collecting

F.2d at 140 n. 24 1989, January acting pursuant express authority our over the rules of statute, longer no has such a but Utah practice procedure granted us power “modify” of the substance VIII, 4 1984 amendment of article section judgments continues in our rules. From Constitution, adopted Utah 1980, days until statutes territorial text of section 77-35-28 as rule 28 of this “reverse, expressly authorized this court to court's Utah Rules of Criminal Procedure.5 modify judgment affirm or or order of rule 28 of the Utah Rules substance from, aside, appealed affirm or and ... set of Criminal Procedure is reflected rule modify any proceedings, or all the subse- 30(b) Appellate of the Utah Rules of Proce- quent dependent upon judgment to or such dure, adopted which were in 1984.6 Rule order, ..., proper, order a new 30(b) provides: judgment “If a of convic- (codified Comp.L.Utah trial.” 1888 5154 § reversed, (1978)) (re- tion is a new trial shall be held at Utah Code Ann. 77-42-3 § 1980). 1980, pealed specified by unless otherwise the court. If through From 1973 provision judgment this coexisted with section 76-1- of conviction or other order is 1075, (D.C.Cir.1992); twenty 4. In addition to the states listed in Jus F.2d Dickenson v. dissent, Alabama, 1223, Israel, (E.D.Wis.1980), tice Watson’s courts in Alas F.Supp. ka, Connecticut, Hawaii, Iowa, Kansas, Rhode (7th opinion adopted, & 644 F.2d 308 Cir. aff’d Island, Washington pow have exercised the 1981). modify appeal by er to a criminal entering judgment for conviction aof lesser 5. Most Utah Rules of Criminal Procedure See, Edwards, e.g., included offense. Ex Parte originally chapter were codified in 35 of title 77 508, (Ala.1984); 452 So.2d State, 509-10 Hatfield adopted the Utah Code. After we these statu- 987, (Alaska Ct.App.1983); 663 P.2d rules, tory legislature repealed rules as court Grant, 140, 917, State v. 177 Conn. 411 A.2d 1, superfluous provisions July effective 1990. Arlt, (1979); 920-21 State v. 833 P.2d Utah Laws ch. (Haw.Ct.App.1992); Lampman, State v. (Iowa Ct.App.1983); N.W.2d State v. Procedure, Appellate 6. The Utah Rules of Moss, 221 Kan. Eiseman, became effective in consolidated the Rules (R.I.1983); State v. 461 A.2d Liles, Supreme of the Utah Court and the Rules of the Wash.App. recognized Appeals, Federal Utah Court of both of which were courts also have See, States, power. e.g., adopted Austin v. United in 1984 and became effective in 1985. (D.C.Cir. 1967), 30(b) 382 F.2d overruled changed Rule has not since 1985. Sherod, grounds by on other United States v.

1211 (a) manslaughter or or- if reck- modified, judgment tutes the actor: affirmed or be execut- affirmed or shall lessly der causes death of another....” modified 30(b) (emphasis add- R.App.P. ed.” Utah 76-5-205(l)(a). Ann. Code “Reck- Utah § ed). Utah Rule of Criminal Proce- While turn, lessly,” in in 76-2- defined section Appellate Proce- 28 and Utah Rule of dure 103 as follows: 30(b) ex- provision do not a dure contain engages person A in conduct: authorizing court to pressly appellate they, like modify judgment appeal, a on them, acknowledge 77-42-3 before section (3) Recklessly, or re- maliciously, with pow- longstanding of

the continuation this surrounding spect to circumstances er. conduct or the result conduct when of his Thus, consciously disregards and courts like the federal courts he is aware of but states, authority many other we have unjustifiable a substantial and risk that appeal. modify judgments criminal on to the circumstances exist or the result will power, having other this And like courts The risk such a na- occur. must be of judgment a lesser includ- we enter degree disregard consti- ture its offense when an error has tainted ed gross the standard tutes a deviation from greater conviction for offense.7 ordinary person care that an would under all circumstances as exercise merits, Returning to we find standpoint. from the viewed actor’s appropriate is an case which that this 76-2-103. Id. First, § entry judgment. direct required necessarily every found fact for given jury for second The instruction manslaughter reasonable beyond reckless a return a ver- degree murder allowed it to returning guilty a verdict under doubt only proved guilty prosecution dict of degree murder instruction the second following: either of the given. We reach conclusion 1) intentionally Robert That W. required for reck comparing the elements Ernest knowingly caused the death of degree manslaughter less and the second Sprinkle; or murder instruction. 2) Dunn acted under That Robert W. manslaughter

The elements for reckless in- evidencing depraved circumstances are derived from two statutes. Section 76- life, states, recklessly en- 5-205(1) to human “Criminal homicide consti- difference statutory authority provisions. See State constitutional Even in the absence statutes or 1, 467, (1960); modify judgments, many Braley, Or. 473 have found an v. 224 courts 76, judg power Sterling, Pa. 170 A. common to enter v. 314 inherent or law Commonwealth 258, (1934). The Dela have inferred ment for a lesser included offense. Some courts 259 power Supreme power federal ware Court has found the decisions of common law from Grant, See, modify e.g., constitu a conviction inherent in state courts. State v. and other state " 917, language authorizing 140, court to ‘receive tional 411 A.2d 920-21 177 Conn. 1980); appeals 248, (La. and to deter ... in criminal causes ... Byrd, Eiseman, So.2d v. 385 judg finally appeal 369, on the (R.I.1983). mine all matters of 461 A.2d 384 proceedings’ Superior Court.” ments and simply judgment lesser for have entered Others State, (Del. 1968) Porter v. 243 A.2d discussing the author offenses without included Const, IV, ll(l)(b)). (quoting Simi Del. State, art. See, ity e.g., action. Wills for such larly, granted “power all writs we are to issue State, (1936); Jones v. S.W.2d Ark. necessary the exercise and orders (Okla.Crim.App.1976); Forsha jurisdiction complete Supreme Court’s or the State, Tenn. S.W.2d Const, art. determination VIII, cause.” judgment Similarly, entered added). (emphasis § 3 citing our au lesser included offenses without thority so on three occasions. to do at least supreme two state courts have stated At least Bruce, power modify that the Suniville, 741 P.2d of an court- is in the function lower appellate inherent Lucero, court, though arguably 28 Utah 2d State v. (1972). these courts through modify judgments were authorized 1212 Furthermore,

gaged grave essentially conduct created a the State has thereby- forego retrying risk of death to another and decided for second Sprinkle. caused the death of Ernest degree asking entry murder in us to direct manslaughter for reckless jury given The an was also instruction de- against surprising. him. This is not Be- fining recklessness terms identical to cause held more his trial was than ten those included in section 76-2-103. years ago, the obstacles to retrial on the statutory The elements for reckless man degree charge likely second murder would slaughter incorporated in are the second sum, great. be neither Dunn nor the degree given murder instruction to the unfairly prejudiced State will be if we modi- jury. jurors guilty The found Dunn under fy Sprinkle’s Dunn’s conviction for homi- instruction, either the first branch of the Therefore, cide. we direct the trial court to intentionally knowingly that he or caused judgment against enter Dunn for reckless Sprinkle’s death, or the second branch of manslaughter. instruction, recklessly he caused We now consider Dunn’s other claims of Sprinkle’s finding death. A that Dunn in error. Anticipating entry an of a reckless tentionally knowingly Sprinkle's or caused manslaughter judgment, Dunn has redi- necessarily death finding includes a that he rected his challenge claims of error to Crick, recklessly. did so See State v. 675 judgment as ag- well as his conviction for 527, (Utah 1983); P.2d 529 Day, State v. gravated kidnapping. His first claim is a Ct.App.1991); general challenge sufficiency to the of evi- Pendergrass, State v. 803 P.2d dence. (Utah Ct.App.1990); see also Utah Code Therefore, Ann. 76-2-104. regardless of In considering insufficiency-of-evi an jury whether the found that Dunn caused claim, dence we review the evidence and all Sprinkle’s intentionally, death knowingly, may reasonable inferences that be drawn recklessly, or it necessarily every found light from init most favorable to the required fact to convict Dunn of reckless jury verdict. We reverse a only verdict manslaughter. evidence, viewed, when the so is sufficient ly inherently improbable inconclusive or Second, neither Dunn nor the State is such that reasonable minds must en unfairly prejudiced by our decision re- tertained a reasonable doubt that the de duce his manslaughter. conviction to fendant committed the crime for which he jury convicted Dunn of homicide. The er- Johnson, or she was convicted. State v. ror in the question instruction call into (Utah 1991); 821 P.2d verdict; degree the second murder howev- James, (Utah 1991); er, 819 P.2d question there is no jury that the found Eldredge, (Utah), State v. beyond a reasonable doubt all the facts 814, 110 cert. necessary to U.S. S.Ct. manslaugh- convict Dunn of trial, Verde, ter.8 L.Ed.2d 29 requested At and received Booker, manslaughter. Thus, an instruction on State v. (Utah 1985). willingness has indicated a to consider The trial court’s man- slaughter alternative to denial of Dunn’s motion to second de- dismiss on the gree murder. basis of Myers, insufficiency of the evidence after Cf. Wis.2d 461 N.W.2d prosecution’s the close of the case lends And we see no merit to the weight issues raised on further jury’s to the verdict. Cf. behalf Johnson, dissent. 821 P.2d at 1156. Supreme As noted deprive Louisiana right Court: the defendant of his to have judge procedure proof a trial or decide on the This does not constitute interfer- offense, judge ence with the elements of the lesser and function of the trial included trial, recognizes in a criminal but but rather rather constitutes the trier has of fact findings already action in accordance with the made that decision. Moreover, procedure trier of fact. Byrd, added). (emphasis does 385 So.2d at 252 plan. example, he sufficiency of evi- For Scott testified that

We first consider Sprin- originally and intended to rob aggravated kid- Dunn supporting dence Dunn’s together Dunn To Dunn of kle and that and bound napping conviction. convict prosecution Sprinkle. that aggravated kidnapping, Gleffe testified after arrest, prove beyond had reasonable doubt Dunn told that he Dunn’s Gleffe statutory element of the crime. tie Sprinkle, each See and intended to rob him Scott affirmative id. Because Dunn raised the up, leave him somewhere. and compulsion, prosecution also defense Dunn claims that minds could reasonable beyond doubt the prove had to a reasonable testimony rely on Scott’s and Gleffe’s Hill, compulsion. absence of v. State testimony patently is because their incredi- (Utah 1986); Starks, “inherently improbable.” thus ble and (Utah 1981); 627 P.2d pretrial points to the fact that Scott’s 1980). Torres, (Utah 619 P.2d testimony highly and in- statements were by considering begin We the elements of being and admitted to consistent that Scott aggravated aggravated kidnapping. The diagnosed pathological aas liar. Dunn at- kidnapping in effect at the time of statute tempts by pointing to discredit Gleffe out Sprinkle’s provided part: abduction testified, the time he himself Gleffe serving felony time for a conviction (1) aggravated kid- person A commits jail and had and that he Scott been mates. intentionally or napping when he she] [or deceit, force, threat, knowingly by de- or said, credibility As we often have against his tains or restrains another [or fact, in this is an for the trier of case issue with will intent: her] See, James, 784; P.2d at jury. e.g., (Utah 475, 477 Hopkins, 782 P.2d commission, (b) To facilitate at- Booker, 345; 709 P.2d at State v. commission, tempted flight after 1977). (Utah Wilson, 565 P.2d attempted commission or commission necessarily testimony jury accepts the felony[.] of a conflicting certain witnesses and discounts (amend- (1978) Ann. 76-5-302 Code § testimony. Fillmore Prods. Western 1983). ed Inc., Paving, 592 P.2d States Adjust Turner v. General supporting Dunn’s attack on the evidence Bureau, (Utah Inc., 832 P.2d ment aggravated kidnapping his conviction for is Moreover, rule, general as Ct.App.1992). essentially First, twofold. he claims that reviewing jury assume that verdict we Gleffe, testimony standing and Scott supporting believed the evidence apart evidence, from other is “suffi- Stewart, 729 P.2d the verdict. State v. inherently improba- ciently inconclusive or (Utah 1986), corpus grant habeas legally support ble” to be insufficient to grounds, ed Stewart v. State on other aggravated kidnapping conviction. Sec- DeLand, through and ond, remaining Dunn claims that evi- Ct.App.1992); Singer, compulsion dence is consistent with de- Booker, Ct.App.1991); see legally is also fense and therefore insuffi- Accordingly, 709 P.2d at we must cient. assume that the believed Scott’s and attacking and testimo- Scott’s Gleffe’s argument testimony. As Gleffe’s Dunn’s hopes ny, to undermine recognizes, testimony le implicitly that, believed, obviously would be suffi- sufficient, alone, gally standing support cient to establish that Dunn and Scott in- kidnapping for aggravated conviction Sprinkle by tended to detain or restrain compulsion. disprove claim of Dunn’s robbing him, force to which is a facilitate 76-6-301(2), degree felony, id. we have found that Scott’s and second Because alone, they through testimony, standing followed with their Gleffe’s suffi- support lessly compulsion. cient as a matter of law to and not under For ex- conviction, earlier, aggravated kidnapping ample, we as discussed Scott’s and argument testimony Gleffe’s no need to consider Dunn’s establishes that Dunn planned remaining legally Scott and carried out a violent evidence is insuffi- Therefore, against Sprinkle, during Sprin- reject cient. Dunn's claim crime Perhaps damaging Dunn, kle died. most supporting that the evidence his conviction Sprinkle Scott testified that after worked aggravated kidnapping legally for is insuf- free of his and bonds Scott went to the ficient. him, back of the motor home to subdue challenge We now consider Dunn’s to the Sprinkle. Dunn told him to kill As a mat- sufficiency supporting a evidence law, believed, testimony, ter of is manslaughter. for reckless prove sufficient to Dunn’s reckless state of essentially arguments. Dunn makes two disprove mind and compulsion. his claim of First, argues he legally that the evidence is For the same reasons support requisite insufficient discussed in our mental analysis state, supporting especially light compulsion evidence Dunn’s of his Second, aggravated kidnapping, conviction for argues defense. he that evi- challenge Dunn’s to Scott’s and requisite dence does not show the causal' Gleffe’s testimony must fail. link Under the standards Sprinkle’s between Dunn’s actions and discussion, articulated in that we death. have no choice but to assume that the believed We first sup consider the evidence Scott and Gleffe. Consequently, we con- porting the required mental state for reck testimony clude their legally that was suf- manslaughter disproving less Dunn’s ficient to establish that Dunn a reck- had compulsion prosecution defense. The must less state of mind and have no need to legally have adduced sufficient evidence remaining consider whether the evidence showing that Dunn was aware of but disre was compulsion consistent with his de- garded a unjustified substantial and risk fense. Sprinkle’s occur, that death would We note that much of remaining 76-2-103(3), Code Ann. and that he did § uncontested evidence corroborates Scott’s compulsion. not act under Dunn’s attack testimony, Gleffe’s at least to the ex- on the supporting finding of a tent it establishes Scott’s and Dunn’s intent essentially reckless mental state is Sprinkle to rob and bind and Dunn’s active same as his support attack on the evidence participation during shooting. Sprinkle ing his conviction manslaugh for reckless up long shot, was tied before he was ter. He claims that Scott’s and Gleffe’s his wallet Sprin- was never found. When testimony is “sufficiently inconclusive or kle worked free and yelling started for inherently improbable,” and therefore le help, quickly pulled Dunn the motor home insufficient, gally because Scott demon out of the station. Dunn' knew Scott had strated he pathological that was a liar and gun access to the before Scott went back because Gleffe was a felon and jail Scott’s Sprinkle, police subdue and the later found mate. Dunn further asserts that other gun bullets for that Dunn’s bag.9 duffle evidence is consistent compulsion with his Moreover, while Dunn driving, was defense and thus support finding cannot trying heard open Scott to force the bath- of a reckless state of mind. get Sprinkle. sum, room door to challenging Scott’s and Gleffe’s testi- ample think that there sup- evidence to mony, again seeks to invalidate evi- port finding was aware of but that, standing alone, dence legally suffi- disregarded a substantial Sprin- risk that cient to establish acting that he was reck- kle’s death would occur. challenges

9. Dunn also the trial court’s admis- opinion search. We conclude later in this the bullets were sion of the bullets as fruit of an unconstitutional properly admitted. ably expected to follow the natural be second suffi attack Moreover, sequence of events. when supporting judg ciency of the evidence might differ as to reasonable minds manslaughter is that the ment reckless dan- whether it was the creation finding support a that he evidence does gerous prox- condition ... which does Sprinkle’s death. Code caused cause, or imate whether was some requirements for causation not indicate the ..., subsequent question act is for manslaughter the reckless statute. under fact trier of to determine. therefore, legislature conclude, We intended causation be deter must have regardless then Id. 339. We held common law.10 See Utah mined under negligently whether the defendant acted Code Ann. 68-3-1. intent,” with “malicious the evidence was find sufficient for the causation. require law Although the common Id. At least two of our other cases have ment for causation element reckless the analysis in ratified an similar to that used manslaughter developed in is not well Lawson, Hallett. See Utah, the our case law does indicate that & n. 3 linchpin is whether the su of causation 1983). Hamblin, reasonably party’s acts were perseding general cases track the common These example, For in v. Hal foreseeable. law, fol- has been characterized as which (Utah 1980), lett, the defen 619 P.2d 335 lows: stop sign at an dant vandalized a intersec decedent, seeing stop intervening, agency tion. not independent The An will sign, through the intersection with drove not exonerate accused for criminal [the] vehicle, stopping, collided another liability out with from victim’s death unless solely was to and was killed. defendant con death is attributable the second- ary and all negligent manslaughter ap agency, victed of and not at induced including qualify To as an interven- pealed grounds, primary lack one. several ing an must be unforesee- addressing In his cause event of causation. causation in does claim, able and one which accused we wrote: [the] intervening not cause participate; an wrongful [Wjhere party his [or her] extraordinary that so it is unfair must be peril, creates a condition of conduct responsible to for the hold accused [the] properly action can be found to [or her] death. proximate resulting be the cause of a (1991)(foot- injury, though events which at 363 even later Homicide C.J.S. § Torcia, omitted); injury Sprinkle, and that The facts relevant to Dunn’s Fourth to subdue the bathroom the having some sort Amendment claim are as follows: On Sprinkle and Scott were arrest, Dunn shooting. Viewing evening day of the of his told struggle of the before prescription light an officer that he needed some evidence in a most favorable light assumptions, challenged the search of his duffle of these well-founded 11. Dunn also provision bag illegal-search under the search and seizure of we decline to address Dunn’s I, Constitution. appel- article However, section 14 claim under the Utah Constitution. Utah below, for the reasons set forth we generally will not address a state late courts decline to address his state constitutional claim. argument the first time constitutional made for 1, record, supra see note The reconstructed appeal. Newspapers, West v. Thomson 835 constitution, indicate federal or does not state, 179, (Utah Ct.App.1992); n. State v. 184 5 making Dunn relied on at trial in his 65, Webb, (Utah Ct.App.1990); 790 P.2d 77 see challenge constitutional to the search of his Lee, appeals P.2d at 53. As the court of has 633 bag. We do not have benefit of duffle the proper recognized, in which to forum '“[T]he reviewing any written motions or memoranda analysis thoughtful probing commence that have been filed with the trial court. interpretation before the state constitutional Thus, transcript we cannot be sure that the court, not, typically happens ... for the trial scope the reconstructed record reflects the true ’’ West, appeal.’ P.2d at n. first time on arguments presented to the court. 1268, Bobo, (quoting State v. 803 P.2d However, 1981, trial well be Dunn's was in (Utah Ct.App.1990)). protections we the afforded fore extended Notwithstanding parties preference our that provision the search and seizure of the Utah raise state constitutional claims first in the trial court, beyond Constitution that afforded the analo ad we note that we have discretion to gous clause in the United States Constitution. exception not raised at trial under dress claims See, e.g., Sims v. Collection Div. the Utah State Cook, Jolivet v. 784 P.2d al circumstances. Comm’n, (Utah 1992); Tax 841 P.2d 6 State v. 1148, 1989), denied, (Utah cert. 493 U.S. 415, Thompson, 810 P.2d 416-18 751, (1990). 110 S.Ct. 107 L.Ed.2d 767 Larocco, Although present the case is unusual in the 1990). Consequently, it is reasonable to assume finding sense that we reinstated it after that argument that Dunn did not base his at trial on may have received ineffective assistance did, Even if he he most the Utah Constitution. likely Cook, during appeal, his first Dunn v. of counsel urged would not have that we undertake (Utah 1990) (plurality), and 791 P.2d 873 analysis independent developed from that record, relying we are on a reconstructed we do constitution, particularly under the federal presents necessary find that this case the light of a 1981 case in which we stated that the exceptional persuade circumstances to us to re provisions federal and state search and seizure Lee, Dunn’s state constitutional claim. We sim view were "identical.” See State v. (Utah), ply perceive any do not fundamental miscar cert. 454 U.S. 102 S.Ct. 50 606, declining riage justice to review this L.Ed.2d 595 claim. bag, which was To address Dunn’s Fourth Amendment from duffle medicine claim, consider asked two lines of search and motor home. The officer still in the jurisprudence, dealing exe- following one with wait seizure if he could until of search warrants and the other cution going to the day the officer would be when dealing consent to search. We officer, with first According motor home. principles in- governing these discuss that he that he could Dunn said wait law, apply terrelated areas and then we exactly medicine not know where the did principles to us. these the facts before Dunn, however, bag. contends was in the he told the officer the medicine was governing principles event, bag. the bottom of ground of a search are execution warrant telling the ended with Dunn conversation purpose As ed in the for such warrants. over, you “[b]ring bag the duffle officer to rule, without general searches conducted know, get can medicine out of and we per are se unreasonable under the warrant there.” Amendment, subject only to a few Fourth day, police executed The next specific exceptions. and well-defined See for the home and its search warrant motor States, Katz United hours, They contents. searched for six 507, 514, 88 S.Ct. 19 L.Ed.2d gun and the finding the .25-ealiber hand Arroyo, bag bag. searching Rather than 1990). po duffle A valid warrant authorizes the however, there, they police they took it to the other lice to search when and where they consequent An officer re- no right, station. testified would have wise bag right ly, terms of dictate they because had “a the warrant moved scope authority. of the officers’ See Bi go through it at time” and it was Agents, (around vens v. Six Unknown Named getting p.m.) late and because 388, 394 & n. U.S. & request.” after re- “Mr. Dunn’s Just (1971). A n. 29 L.Ed.2d 619 central station, police turning to the two officers warrant, requirement purpose of the county prosecutor searched the and the authority of a neutral issued under They bag. duffle first discovered a shav- protect “general, magistrate, against is to ing bag, bag. held a Inside smaller rummaging person’s in a be exploratory bag, they car- the smaller found .25-caliber longings.” Coolidge Hampshire, v. New tridges. They later Dunn’s medicine found 2022, 2038, 403 U.S. S.Ct. among his clothes. (1971), overruled on other L.Ed.2d alleges that the search warrant California, Horton v. U.S. grounds, gave authority officers to search the 136-37, S.Ct. bag only duffle within the confines of (1990). end, To this a warrant L.Ed.2d bag motor home. When the was removed nothing leave the discretion of should home, argues, motor the war- from the he executing the officer it. Marron United also rant was rendered ineffective.12 Dunn 74, 75, States, 192, 195, 275 U.S. 48 S.Ct. that his search the contends consent to L.Ed. 231 bag he was duffle was “coerced” because custody and condi- police “in had a medical principles governing prescription he medi- tion for which needed of search warrants also bear on execution Alternatively, argues that he cine.” he of searches that occur without the conduct limited his specifically magistrate. consent to a search prior approval of a One bag for in his exceptions of the duffle the medicine the warrant re the narrow presence cartridges brought and contends a de quirement play that the into when search, plain voluntarily have been in view if the to a would not fendant consents police waiving require- stayed thereby had within these limits. constitutional bag delayed Dunn’s briefs do not clear whether he removal of the and the search. We make bag objects solely to the of the from the removal assume that he relies on both bases. objects or whether to both the motor home he deed, given

ment of a warrant. See Schneckloth v. space the limited in the motor Bustamonte, camper home —a cab-over built on a van 93 S.Ct. the fact that it contained the chassis —and Ar 2041, 2043-44, (1973); 36 L.Ed.2d 854 persons, three luggage of would be un- royo, 796 P.2d at 687. “Generally, wheth presume magistrate reasonable to requisite de er the voluntariness exists authorizing imposed have the search would pends totality surrounding on ‘the of all the Furthermore, Dunn such a limitation. does circumstances —both the characteristics of explain how the removal of the duffle police the accused and the details of con more, any expecta- bag, without violated Arroyo, (quoting duct.” 796 P.2d at 689 privacy might tion of have had its Schneckloth, at U.S. contents. We conclude that the removal of Thurman, accord bag home, the duffle from the motor stand- (Utah 1993). Even when a con alone, ing police fails to establish that the stitutionally given, valid consent scope exceeded the of the warrant. scope ensuing of the must be limited search consent, scope police to the reject apparent We also activity scope that exceeds the of the con police contention that exceeded the sent violates the Fourth Amendment. See scope by waiting of the warrant until late — Jimeno, Florida v. U.S. -, -, evening day in the the motor home 1801, 1803-04, S.Ct. L.Ed.2d 297 (the day was searched after the arrest of Arroyo, 796 P.2d at 692. The terms Scott) bag. Dunn and to search the duffle police authority consent limit search in magis The facts do not indicate that the same fashion as the terms of a search imposed any significant trate would have warrant. limitation, time find no reason to delayed assume that the search would We now consider Dunn’s contention that the movement of the motor home so as to bag the search of his duffle was unconsti- infringe anyone’s, interests. The owner challenge tutional. does not the war- dead, of the motor home in pos those position rant or the State’s the war- jail charged session of it were in with his rant authorized the search of the motor murder, suggests and the record no other home and its relating contents for evidence parties position who were in a to assert an simply to the crime. He claims that once Moreover, interest it. under the circum they bag removed the duffle from the vehi- stances, we do not think it was unreason cle, station, police took it to the and delay able to the search a few hours. there, searched it the officers exceeded the intentionally delay The officers did not scope following of the warrant. For the rather, searching bag; they the duffle sim reasons, argument we find Dunn’s to be ply took it to the station the conclusion without merit. of their search of the motor home around 9 p.m. they so that could review its contents First, claim assumes that the requested there and because Dunn that the warrant authorized a search of the motor Cham bag brought duffle be there.14 Cf. only if home’s contents the contents re Maroney, bers v. 399 52 & n. U.S. Although mained within the motor home. S.Ct. 1982 & n. 26 L.Ed.2d 419 destroyed,13 the warrant has nothing been McKinnell, (1970); United States v. in suggests why the record the officers (10th Cir.1989), part rev’d in F.2d would have had to search the contents of (10th grounds, on other 931 F.2d 64 Cir. 1991). the motor home within its In- confines. supra 13. See bag place note that the search of Dunn's duffle took (on period 15th). night August within this the suggests

14. The reconstructed record that the suggests po- This that the warrant allowed the search of the motor home was conducted over lice to conduct the search at least over that days, beginning August two or three 15th period. 17th, ending possibly August and as late as ably expected police respond to to his the the giving even Dunn benefit Finally, request any way. surely did contents and in other Dunn as to warrant’s the doubt the police him to had exceeded the not think the would allow assuming that the search recognizance pick up to authorization in ei- leave his own scope the warrant’s arrange party for time, fact remains that the medicine or a third place or ther — Jimeno, bring pick up. officers U.S. at requested that the Dunn Cf. -, at 1803-04. station. This con- Nor could bag police to the duffle expect bring bag scope of the search initi- the officers his duffle expanded the sent jail hand it to first and forecloses him without under warrant ated through bag carefully looking the contents. removal of the objection either the was, all, delayed jailed He under arrest and motor or the search after from the home for the serious of crimes. Conse bag police at the station. most of the quently, hold that Dunn’s Fourth attempts ef- to avoid obvious rights Amendment were not violated when request by arguing that his fect of his police bag removed his duffle and sub bag from the consent to removal police it at station. sequently searched subsequent search at motor home and the court voluntary was because it Dunn next claims that the trial the station allowing error product free The committed reversible not a of his will. was question prior him upon prosecution he relies about his only fact trial, Before moved to custody he was in conviction. contention suppress of a California conviction prescription “needed” the medicine in his deadly weapon. The bag. argues He that these circum- for assault with a duffle hearing judge was trial held a on the motion stances indicate his consent coerced. contends and ruled from the bench. Dunn Dunn’s agree We with conten judge prosecution that the ruled that the prosecution’s "par burden tion that prior could not adduce evidence of heavy” ticularly the defendant’s con long when intro- conviction as Dunn did not so he or she sent was obtained while was own The duce evidence of his character. custody. States, State, hand, See Judd v. United that the on the other contends (D.C.Cir.1951); F.2d Guzman v. prior con- judge barred the evidence State, 283 Ark. S.W.2d prosecution’s case-in- only viction from the (1984); LaFave, Wayne R. see also 3 chief. 8.2(b), & at 182

Search Seizure § clar Ramirez, case went to trial without cf. Hall, ruling. During the de ification of the United States (5th ease-in-chief, Cir.1978). However, tes fense’s several witnesses F.2d No custody Dunn took the stand. fact that defendant was is not tified before alone, enough, After standing to demonstrate the character evidence adduced. Thurman, testifying, prosecutor lack of P.2d Dunn finished voluntariness. 1273; Whittenback, judge allow the state to State v. 621 P.2d asked that (Utah 103, 1980) cross-examining him (citing impeach n. 14 106 v. Dunn State (Utah White, 552, 1978)); P.2d conviction. Dunn’s trial prior 577 554 see about the Watson, 411, arguing pretrial 423 counsel that the objected, States v. U.S. United 424-25, 820, 828, ruling precluded the evidence. 96 S.Ct. 46 L.Ed.2d 598 admission of (1976). Nothing police gave judge, relying statutory did and case rise to requested authority apparently he he not the fact that needed and law that was ruling, Lewis, pretrial v. time of the medicine.15 See States aware of at the United 1294, (D.C.Cir.1990). objection F.2d defense 921 1302 We overruled the counsel’s that to be also note Dunn could not have reason and allowed Dunn cross-examined important bag it for him 15. Dunn has not informed us and the record his duffle or how does indicate what kind of medicine was in to receive it. 1220 principal purposes. Ct.App.1991), has two prior conviction.16

about First, long-established policy it fortifies our court, argues Before our that the trial court should have first committed reversible that the trial court opportunity to the claim of error. address pretrial ruling it reversed its error when See, Emmett, 839 P.2d 781, e.g., State v. prior his questioning about and allowed 1992); Eldredge, v. (Utah 773 State 785 that if he had conviction. He maintains denied, cert. 29, (Utah), P.2d 35-36 493 going prior that the conviction was known 814, 62, 110 107 L.Ed.2d 29 U.S. S.Ct. admissible, taken to be he would not have 79, Lesley, v. (1989); State 672 P.2d 82 least, or, very the stand at the would McCardell, 1983); v. (Utah P.2d State 652 impact prior con have deflected Peterson, v. 942, (Utah 1982); State 947 disclosing during it his case-in-c viction 229, 236, 504, 121 240 P.2d 507 Utah hief.17 Second, discourages parties it from inten pretrial ruling tionally misleading read the court’s court We have the trial so as purposes of ambiguous. and find it For preserve ground a hidden for reversal on assume, contends, appeal, we as Dunn Bullock, See, e.g., v. 791 State appeal. ruling pretrial that the did exclude evidence denied, 155, (Utah 1989), cert. P.2d 158-59 However, prior conviction. of Dunn’s 1024, 3270, 110 111 L.Ed.2d 497 U.S. S.Ct. below, we conclude the reasons set forth Butterfield, (1990); v. P.2d State 780 784 precluded raising from a claim Medina, v. 153, (Utah 1989); State 157 738 pre- reliance on that of error based on his (Utah 1987); Perdue, 813 1021, P.2d 1023 ruling. trial Morgan, 1205; State P.2d at 813 P.2d 1207, (Utah course, Ct.App.1991). 1211 Of repeatedly held We have leading if counsel’s decision in the court advantage appeal, party cannot take into error falls below the standard of rea at trial of an error committed when practice, professional sonable find party committing led the trial court into See, e.g., that counsel was ineffective.19 rule, error.18 This which is known as the Bullock, 791 P.2d at 158-59. doctrine, see State v. Till “invited error” case, Dunn’s trial counsel

man, 546, (Utah 1987); In the instant 750 P.2d 560-61 Perdue, 1201, (Utah State v. prior P.2d the evidence of his moved to exclude pri- grounds in a written motion that was 16. The cross-examination of Dunn about his these proceeded 1, or conviction as follows: destroyed, supra see we would consider note you felony Q. tion, convic- Is true that they were not raised in his them waived because felony prior conviction? 24(a)(9). R.App.P. briefs to this court. See A. Yes. Q. What is that conviction? 155, See, Bullock, e.g., P.2d deadly weapon. A. Assault with a 1024, (Utah), cert. deadly weapon Q. Did that assault with a 3270, Tillman, (1989); 111 L.Ed.2d 780 State v. pertain girl to abduction of a in California? (Utah 1987); State v. Medi 750 P.2d 560-61 Yes, A. it did. na, 1987); Morgan v. 738 P.2d place? Q. When did take Co., Objection, Quailbrook Condominium 704 P.2d Defense counsel: Your Honor. objection’s Devs., The court: Your overruled. Associated Indus. Inc. v. A. 1973. Jewkes, 701 P.2d Fair, 242, 244, Utah 2d argument, 17. At oral Dunn claimed that 289, 291, Stone, (1972); State v. Utah 2d judge’s prior decision to admit evidence of the Gleason, (1967); conviction after he testified violated his Fifth 17 Utah right against Amendment self-incrimination and 2d right Fourteenth Amendment to fair trial. 113, 130-31, Thompson, 110 Utah Because there is no indication in the record that (1946). 162 trial, these constitutional bases were raised at we See, e.g., them waived. v. consider State asserted that his trial counsel 19. Dunn has not Johnson, 1141, (Utah 1989); P.2d 774 1144-45 ruling requesting pretrial was ineffective in 29, (Utah), Eldredge, P.2d State denied, 773 35 cert. admissibility prior evidence of his on the 814, 62, 107 L.Ed.2d 942, undertaking any (1989); McCardell, conviction or actions follow- State v. P.2d 947 (Utah 1982). ing pretrial ruling. Even if Dunn’s trial counsel raised from that danger prejudice of unfair apparently provided the trial ... or need- conviction and presentation authority less of cumulative evidence.” court with citations to ruling.20 reviewing R.Evid. 403. In trial pretrial which the court based its Utah a However, ruling admissibility contrary position to Dunn’s be court’s of evi- 403, at the time dence under rule we will not judge, fore the trial the law overturn clearly prior evidence of convic the court’s determination unless it was an allowed Hamilton, State v. impeachment pur of discretion.” tions to be admitted for “abuse 232, (Utah 1992); see See poses without restriction. Utah 827 P.2d 239-40 Verde, 116, 770 P.2d Code Ann. 78-24-9 Utah R.Evid. § Cloud, 1983); 750, State v. Ben State v. (1977) (superseded nett, 1029, 1986). precisely, 2d 517 P.2d To state the matter more (1973), cert. 94 we determine whether the trial U.S. court’s find- gen See ing S.Ct. 40 L.Ed.2d 771 the evidence was admissible was Banner, erally “beyond reasonability.” 717 P.2d limits of Hamilton, (Utah 1986).21 Dunn’s counsel’s 827 P.2d at if 240. Even we find making actions in the motion limine with that the trial court’s decision to admit informing judge “beyond reasonability,” out the trial of the control was the limits of ling only error. if law led the trial court into we will reverse the error was harm- Therefore, ful, i.e., precluded Dunn is from assert if absent the error there a rea- is ing pretrial ruling that the him misled into sonable likelihood of outcome more fa- Id.; Verde, taking the stand. vorable to the defendant. P.2d at 121. argues

Dunn next the trial judge admitting photograph applying erred in When rule it is body necessary the decedent’s in the bathroom of the to determine first whether admitting photograph, proffered propen motor home. evidence has an unusual inflame, judge sity unfairly prejudice, trial relied on Utah Rule of Evi or mis Dibello, provides, “Although jury. dence rele lead the 780 P.2d vant, Lafferty, may if proba be excluded its 1239, 1256 (Utah 1988). not, substantially outweighed by tive If value Bennett, 20. The reconstructed record 2d Section does not include a 30 Utah prior written motion to exclude the conviction. 78-24-9 read: However, supra transcript See note 1. the trial legal questions A witness must answer suggests that there was a written motion that issue, although pertinent to the matter in his authority judge cited to the on which the relied. himself; against answer establish claim transcript pretrial indicates that for the give will but he need not an answer which ruling, judge relied on rule 55 of the Utah tendency subject punishment him to (since revised) Rules Evidence and unidenti- felony; give for a nor need he an answer fied "United cases.” Rule at that States time tendency degrade which will have a direct pertinent part: read in character, very fact in his unless it is to the person that a committed a crime [E]vidence issue issue or to a fact from which fact in occasion, wrong specified or civil on a presumed. would be But a witness must an- prove disposition inadmissible to his to com- previous conviction swer as to the his fact of wrong mit crime or civil as the basis for an felony. inference another crime or committed (1977) (emphasis Utah Code Ann. 78-24-9 wrong specified civil on another occasion but stated, added). Rule 21 "Evidence of the con- ... such evidence is admissible when relevant involving a crime not viction of a witness for prove including some other material fact dishonesty shall be inadmissi- or false statement motive, accident, op- absence of mistake or credibility, purpose impairing ble for the intent, portunity, preparation, plan, knowl- provided by except statute." Utah as otherwise edge identity. (1977) added) (superseded (emphasis R.Evid. 21 (1977) 1983). (superseded Utah R.Evid. 55 Bennett, 1983). "a defendant we held that voluntarily trial, takes the witness stand must during who ruling judge 21. For his made prior felony (since conviction answer to relied on section 78-24-9 Code of 517 fact of (also superseded), 2d at such is the case." 30 Utah Utah Rule of Evidence 21 added). superseded), opinion (emphasis since and this court's at 1031 uniquely subject being used to distort in favor of admissi indulge presumption process and a trial’s Dibello, the the deliberative skew bility. 780 P.2d at 1229. On Dibello, 780 P.2d at 1229. hand, outcome. other if the evidence does have an unfairly prejudice, propensity unusual photo find that the Because we mislead,

inflame, presumption shifts. or the graph gruesome, Dunn must over is case, potential for In such a the evidence’s presumption come rule 403’s in favor of outweigh prejudice presumed unfair is admitting proffered the We evidence. is on the probativeness, its and the burden agree probative the with Dunn that value the evidence has proponent to show that photograph is not obvious from the Id.; Lafferty, probative unusual value. However, record. he has not shown presump the 749 P.2d at 1256. We reverse photograph’s probativeness, mini albeit admissibility because these tion favor of best, “substantially” outweighed at is mal “uniquely categories evidence are sub by danger prejudice. of unfair ject being used to distort deliberative Therefore, R.Evid. 403. we find that outcome.” Di process and skew a trial’s court did not exceed the of reasona- bounds bello, 1229; Lafferty, at accord bility finding photograph’s po that the reasons, 749 P.2d at 1256. For obvious prejudice tential for unfair did not out gruesome photographs vic of a homicide Hamilton, weigh probativeness. its See unfairly prejudice and in corpse tim’s will P.2d at 240. require the flame the and therefore they unusual proponent to show that We now turn to Dunn’s assertion Dibello, probative 780 P.2d at value.22 See improper prosecutor made com 1230; 1256; Cloud, Lafferty, 749 P.2d at during closing argument ments to the 753; Garcia, 722 P.2d at cf. specific jury. Dunn identifies two com (Utah 1983). improper. ments as The first occurred prosecutor challenged when the Dunn’s photograph find that We compulsion by claim that he acted under gruesome. only the issue is not It reveals quoting request lawyer for a when part decedent’s back of his left arm in by arresting officer: confronted doorway A of the bathroom. substan part tial decedent’s back covered testify did Larsen What Officer about placard placed an identification that was up He demeanor? came to the [Dunn’s] top body photograph of his when the vehicle and Mr. Dunn told him this was a photograph was taken. The shows blood drive out unit from California. How did clothing, stained but not the decedent’s Calm, appear? very calm. Then deformity or wounds mutilation or happened? what Larsen found Officer short, shooting. said, caused the re body up and walked to him and body greatly stricted view of the you body minimizes “What can tell me about the photograph’s impact. say? visual There is back there?” What does Mr. Dunn photograph lawyer. lawyer.” little here that makes this “I want a I want a Is Valdez, (Utah 1987), actually 22. In State v. 748 P.2d 1050 of that case amination reveals that we appeared apply analysis grue- we that first de- reviewed the trial court’s determination of proffered photograph termined whether the someness for correctness. The stan- correctness gruesome "negligibly gruesome." applied grue- Id. at 1055. dard of review should be to the admissibility appellate This mischaracterizes the test for someness determination because an photographs good position under rule 403. The threshold court is in as as the trial court text, Thurman, question, photograph. as discussed in the is whether the to view the See State v. (Utah 1993). photograph "gruesome” gruesome"; impor- or “not More Also, tant, ground. "gruesome” there intermediate is no in Val- the characterization as is less dez, appeared question question legal to consider the factual than a one because it is a fact, gruesomeness stating, predicate shifting presumption as one of “The reso- of admis- sibility normally lution of such issues is one within the discretion obtains under rule 403. (citation Dibello, 1229; Thurman, judge." of the trial Id. at 1054 omit- See 780 P.2d at cf. ted). statement, Notwithstanding this close ex- P.2d at A. Yes. man that’s Is that a man? that a scared that he Howard Scott frightened of

so Dunn, fact, Q. that’s what Mr. And get to to do or how know what doesn’t that occasion? said on lawyer.” away? “I want a A. Yes. the ob- objected, counsel Dunn’s trial evidence, counsel Dunn’s At the close Dunn now renews jection was overruled. testimony sup- argued jury to the claim, prosecutor’s arguing that his compulsion defense. In re- ported Dunn’s imper- request lawyer for a reference to his prosecutor argued to the sponse, the compromised his Fifth and Sixth missibly attorney request for an that Dunn’s rights. Amendment he was calm and collected when showed The context of confronted the officer. merit. without We find this claim be and the comment prosecutor’s comment Dunn’s trial counsel The record shows that prosecutor that the meant itself indicate arresting officer’s purposely elicited the incon- emphasize that Dunn’s behavior was his conversation with testimony about compulsion theory. sistent with his The ex- during cross-examination. short, attempted to bolster his de- change place as follows: took prose- adducing evidence that the fense walked Q. trial You counsel] [Dunn’s legitimately then used for rebuttal cutor you asked the motor home out of Tillman, 750 point. the same See question, didn’t Mr. Dunn another 546, (Utah 1987); v. Ea- 560-61 you? (Utah 1980). 1211, 1214 gle, 611 P.2d A. Yes. [officer] repeatedly that coun- haveWe observed Q. question? What was that latitude sel for each side has considerable said, you can tell me about A. I “What viewpoint fully his or her discuss guy in motor home?” arising and the deductions of the evidence See, Tillman, P.2d at e.g., therefrom. 45; Creviston, 560, 561 n. Q. responded your Mr. Dunn And Valdez, question; didn’t he? (1973). 54, 60, 2d A. Yes. assuming Therefore, conclude that even Q. you recall the exact words that Do an request for counsel was that Dunn’s he said? rights,23 he his constitutional exercise of said, A. near as I can remember he As prevent prosecu- right to forfeited his lawyer. All I “I want a was told do commenting request for from tor was drive.” relied on he adduced and counsel because Larsen, Q. you say, Mr. your report, compulsion de- part of his the evidence attorney. All I was told 560-61; “I want Tillman, 750 P.2d at fense.24 See to drive.” 1214; P.2d at Carillo v. Eagle, 611 cf. Cir.1986). (1st Brown, 807 F.2d Right. A. prosecutorial Q. today Dunn’s second assertion you’re telling us So what prosecutor’s from the your report? misconduct arises the same as (D.S.D.1977), Solem, F.Supp. argument 465-66 parties devoted considerable 23. The Cir.1978); (8th People aff'd, Meredith, 219-20, 573 F.2d 1027 Fifth or Sixth to the issue of whether Dunn’s Ill.App.3d 40 Ill.Dec. rights had attached when made Amendment N.E.2d 1311-12 request for counsel. Because we hold that request prosecutor’s comment on Dunn’s prosecutor noting came that the It is worth rebuttal, legitimate we do counsel constitutes unfairly mischaracterizing the evidence close to by failing however, recognize, this issue. We not reach complete repeat to the prosecu- have found similar that several courts statement, i.e., lawyer. I was told "I want a All See, torial comment to be constitutional error. However, light of the discus- was to drive.” Yeager, e.g., text, Macon v. say prosecu- United States ex rel. we cannot that the sion in the Cir.), (3d request cert.. for counsel F.2d to Dunn’s tor’s reference improper comment. Zemina the line into 38 L.Ed.2d 104 crossed to the prosecutor’s reference mind- it should be jury that to the comment not rise to obligation does jury’s societal deciding in society obligation to ful of its error. constitutional the level of federal guilty verdict: to return whether 183, Stead, F.2d 422 v. United States See Ernest importantly than more [E]ven denied, 1080, Cir.), U.S. (8th 397 cert. 184 Howard Scott Dunn and Sprinkle, Robert 1534, L.Ed.2d 816 cert. 25 90 S.Ct. every impact anyone else is or 2181, 966, L.Ed.2d 551 26 system criminal has on the jury decision 455, Solem, F.Supp. (1970); v. 438 Zemina you factor important that’s the most (8th 1027 (D.S.D.1977),aff'd, 573 F.2d 465 reaching just in need to consider law, Therefore, Cir.1978). applying state today here because decision honest whether, only absent need consider we so with it and going to have to live you’re comment, like be a reasonable there would you are all aware society and outcome more favorable lihood of an case, that surrounds this publicity that words, determine Dunn; in we need other case Degree Murder any First surrounds confidence in the verdict only our whether it impact that has when and the 123; Verde, 770 P.2d at is undermined. See way or another. the verdict one reaches (Utah 100, Bell, 106 770 P.2d v. State you determine Make sure before 1988); P.2d 919- Knight, 734 State v. doubt, make sure a reasonable there is (Utah 1987). explained For the reasons 20 of the con- you below, elevate some prosecutor’s that before that the we conclude obligation jury’s a reasonable doubt point cerns to the to the societal reference in im- our confidence being fair to the most does not undermine you are aggravated kidnap conviction for Dunn’s society large.... at portant segment of man judgment of reckless ping or in the object to this state- Although Dunn did not against him. slaughter we have directed ment, the remark con- he now claims that con explained, the record As we have improperly plain stitutes error because guilt of Dunn’s evidence tains substantial jury, weighing in the evi- implies that the Smith, aggravated kidnapping. See dence, obliged judg- to consider supporting The evidence P.2d at 1112. 700 society of the case. ment of on the merits simply not as kidnapping conviction is have twice held that similar We re in cases we weak as that where prosecutor constitut by remarks the same improp on the basis of a conviction versed Andreason, error. v. 718 ed State See, e.g., An prosecutorial er comment. (Utah 1986) curiam); (per State 403; dreason, Troy, P.2d at 1985). Smith, (Utah (Utah 1984). As we said 688 P.2d difference in Because there is no material Andreason, in the in “When the evidence complained sufficiently of here and those the comments or con record is circumstantial Smith, likely influenced flicting, jurors in we conclude that are more Andreason improper argument. In such instanc in the instant prosecutor’s remarks sug es, they susceptible more to the However, are our case also constitute error. gestions that factors other than evi plain end To find analysis does not here. a de dence before them should determine error, must determine that the error we guilt innocence.” 718 P.2d at fendant’s prejudicial. and that it was was obvious 1112; 403; Smith, P.2d at accord (Utah), Eldredge, 773 P.2d light Troy, 688 P.2d at 486-87. 814, 110 denied, 493 S.Ct. cert. U.S. aggra supporting the substantial evidence Verde, L.Ed.2d 29 State v. 770 P.2d kidnapping charge, we think there is vated 1989). (Utah We turn first to the jurors fur possibility little that the were prejudice. preju If there is element of no prosecutor’s ther re influenced dice, we have no reason to reach the other marks. analysis. elements of the See State v. Hamilton, 827 P.2d n. 4 regard guilt & of reckless 1992). manslaughter, acknowledge that the we ev- Tillman, 555; Smith, However, making 750 P.2d at our idenee is weaker. Tucker, determination, 1112; need harmlessness (Utah 1985), grounds, abandoned on other supporting that solely on the rely Long, determining the likelihood 721 P.2d 483 offense Tillman, 555; Creviston, 754; Valdez, prejudice. 750 P.2d at See 646 P.2d at Andreason, Here, after 718 P.2d at 403. In light Utah 2d at 513 P.2d at 426. regard- prosecutor that, made the comment foregoing, we conclude on bal- obligation and fin- ing jury’s ance, societal the error the instant case was closing argument, Dunn’s ished his initial harmless. responded by arguing to the

trial counsel Dunn next that he jurors duty society that their to must be asserts counsel, by being fair to defendant: denied effective assistance of as offset guaranteed the Sixth Amendment. To me [Sprinkle’s killing] is as to abhorrent counsel, show ineffective assistance of you, suggest, I would as is to but (i) identify specific must acts or defendant jury, it’s a much members of the that that omissions counsel fall below the graver injustice that a man’s life be ... professional standard of reasonable assis for a crime of forfeited to the State at the time of the tance when considered duty he’s innocent. Your is to be act or omission and under all the attendant society fair and to render a verdict to circumstances, (ii) demonstrate that accordingly you duty also have the but defendant, prejudiced counsel’s error sitting that over there. be fair to man i.e., error, for the there is a rea that but people duty solely doesn’t run to the probability sonable the verdict would duty You have a of the State Utah. more favorable to the defendant. have been equally your fair to him fairness be Washington, v. See Strickland 466 U.S. ought to be. State 2052, 2066, 2068, 668, 690-91, 694, 104 S.Ct. completed his After Dunn’s trial counsel Verde, v. (1984); State 770 80 L.Ed.2d 674 statement, closing prosecutor restricted 116, 119, (Utah 1989); State 124 n. 15 P.2d his surrebuttal comments to Lovell, 909, (Utah 1988); v. 758 P.2d and made no further mention of societal Frame, 401, State v. 723 P.2d obligations. We think that defense coun- Geary, 1986) curiam); (per helped sel’s remark to ameliorate the harm- (Utah 1985). prejudice This P.2d prosecutor’s improper ful effect of the com- test equivalent to the harmfulness test ment. error, Verde, apply determining plain we error, addition, 124 n. or reversible 770 P.2d at judge’s In the trial instructions (Utah), Eldredge, 773 P.2d jury any improper to the further weakened 62, 107 denied, cert. 493 U.S. S.Ct. impact prosecutor’s comment. The to L.Ed.2d jury you was told that law forbids “[t]he sentiment, governed by conjecture, mere

be determining coun In whether sympathy, passion, prejudice, public opin- constitutionally defi performance is sel’s public feeling,” “you ion or will consci- cient, presume that counsel has ren we entiously dispassionately consider and Strickland, adequate assistance. dered weigh apply the law of the evidence Thus, 104 S.Ct. at 2066. 466 U.S. case, just you and that will reach a might challenged act or omission be regardless of what the conse- verdict strategy, sound trial we will considered quences may of such verdict be.” The inadequacy of find that it demonstrates judge jury further instructed the not to Bullock, counsel. See State v. the statements of counsel as evi- consider 155, 160 (Utah), cert. cases, past found simi- dence. we have 111 L.Ed.2d 780 cautionary helpful in neu- lar instructions Carter, error. See State tralizing the harmfulness of Julian, strong, not as other circumstances lead us error was Medina, to conclude that the assumed 1063-64 that offense. Moreover, harmless as it relates to (Utah 1987). First, testimony jury heard from a claim of ineffective when confronted with promised county attorney that Scott had assistance, not to consider choose testify against exchange Dunn in for a performance if adequacy of counsel’s charge from first to second reduction claimed error was we determine degree Consequently, jury murder. 893; Carter, 776 P.2d at not harmful. motive to tailor was aware that Scott had a 119; Verde, Lovell, P.2d at P.2d at testimony prosecution. to favor the addition, was instructed to take argues his trial counsel Dunn first bias, interest, into account or motive by failing assistance rendered ineffective assessing credibility. un request cautionary instruction on Second, Scott admitted before accomplice testimony. Dunn corroborated liar, pathological that he was a he was claims section 77-17-7 of the Code repeatedly impeached, parties and both em- him to an instruction. Section entitled such argument jury phasized in to the that as- cautionary instruction 77-17-7 states that a pects testimony of his were to be be- accomplice testimony if given must be After testified that he and lieved. Scott judge is “uncorroborated” and “the trial planned to drive to Denver and lure accomplice to testimony finds the be home, the Sprinkle’s wife into the motor improba contradictory, self uncertain or following exchange place: took 77-17-7; Ann. see ble.” Utah Code (Utah), Q. Neeley, [prosecutor] Then what? denied, 487 cert. U.S. So, there, got in I A. after she [Scott] argues 101 L.Ed.2d 911 that, going guess would do he was testimony Scott’s is uncorrob because kill home her and take motor self-contradictory, patently orated and Louisiana, Mississippi, down to cautionary was entitled to the instruction. dump everything that motor home and prejudiced by Dunn concludes that he was quick in some sand down there. testimony provid this error Scott’s because that; Q. object you? You didn’t did only supporting ed the direct evidence Yes, I A. did. prosecution’s claim that and Dunn Scott accomplices. were Oh, Howard, Q. you did not. Oh, yes. A. error, assuming Even we find that Q. You’ve told a lot of stories different prejudiced by Dunn has not been his trial one; you? than that haven’t request counsel’s failure to the uncorrob accomplice A. I’ve told testimony orated instruction. thousands. opin

As we have discussed earlier Q. You what? ion, supporting the evidence Dunn’s convic A. Yes. aggravated kidnapping tion for is substan Q. you telling today? Are the truth tial, sufficiency hinge and its does not on testimony. Consequently, Scott’s there is A. Yes.

no reasonable likelihood that [prosecutor] questions. I no further have aggra would have found Dunn innocent of Q. many How times [defense counsel] kidnapping given vated if the had been this, you lied Mr. about Scott? accomplice testimony in uncorroborated A. I don’t count them. struction. Q. times; Many you? haven’t

Although supporting guilt manslaughter guess of reckless A. I so. I don’t count them. Q. you enforce- But said law Right you after were arrested on Q. August? the 14th of August, down ment officers on you 14th of were taken City Hall and interviewed to the Salina you I lie. A. I told officers; you? police weren’t by some you lie? Q. How much do guess A. I so. A. How much? Well, know? Q. you don’t Q. Yes. (No answer). A. A. I don’t even know. know, Q. you Mr. Scott? Do redirect, prosecutor continued to On you say If so. A. credibility: lack of emphasize Scott’s Q. say? you What do Q. only time we [prosecutor] About guess I I don’t know. A. I was. is when there’s some- you can believe up; thing writing you there in to back Q. you don’t were taken You know it? City Hall interviewed? isn’t the Salina (No answer). guess. I A. A. you

Q. Q. quite And told a few who everything You’ve seen doctors lie; was a wasn’t gave diagnosis you pathologi- at that time officers liar; they? it? cal haven’t depends you how see it. A. It all Yes. A. did them a lot of lies

Q. with; You tell Q. argue hard isn’t it? It’s to You them on though; you? didn’t told A. It sure don’t. day you shoot Salina didn’t Q. Maybe you could hold to Sprinkle; you? didn’t Mr. times, one these Mr. Scott. truth of (No answer). A. might. A. You loud, Q. Mr. Scott. Answer out obviously alerted exchanges These I don’t if I did or not. A. know pro- jury propensity to lie. This to Scott’s closing ar- during was

pensity underscored Sprin- Q. you You shot Mr. by prosecutor admit that both the and gument kle; you? example, prosecutor don’t For trial counsel. too to Scott as “man who’s referred only I did it Dunn said so. A. because good lie on the up to make even dumb Q. you always people Do shoot because at counsel commented stand.” Dunn’s trial says so? someone else credibility: length about Scott’s A. I’m a sick man. credibility Now, Mr. Scott I realize the Q. You’re a man? sick inconsistency, his big. lying, It is his in the I’m a sick man head. A. stand, he denies gets he on the when prosecu- to

having made statement earlier, having only days ten denies tion Q. you saying to enforce- Do recall law testify [arrangement into to entered an that, August 14th ment officials on reduced Dunn in return for a against and [Sprinkle] “The Old Man laid down incredible, incredible, charge], very very I did driv- sleep to a little went credibility you judges of that but are the ing?” going have shrewd you’re to to be A. No. evidence, enough weigh shift Q. you driving little after Didn’t do a will, but, you you can see evidence the Old laid down and went Man something emerging from Scott. Mr. sleep? emerging can things you see One on his fairly plan little A. No. was shrewd and because the crux of such an instruction It didn’t given his state of mind. part, claim, he compulsion successful, his defense was long but and it wasn’t last prejudiced. has been up there on trying. It was a cover part. his by citing the rule responds The State there’s no He has been convicted evaluat- must be read and that instructions anything but him lie about reason for Johnson, 774 ed as a whole. See State did, over and over and 1989) the stand he (opinion again. Howe, C.J.). over Hall, C.J., Assoc. It joined other instructions suf- argues that several remarks, the weight Adding to counsels’ jury that Dunn bore ficiently informed the it could en- judge instructed example, one in- proof. For no burden any testimony if it found disregard tirely convict, that to informed the struction you any “If believe portion of it incredible: every reason- must “exclude falsely, as to wilfully testified has witness guilt that of the hypothesis other than able case, you are fact in the material Moreover, the of the Defendant.” of the testi- liberty disregard the whole require a burden argues, Hansen does witness, except as he mony of such proof for an affirmative de- instruction credible other have been corroborated fense. have evidence.” We witnesses or credible pro- arguments of both Dunn and error to refuse held that it “is not no au properly miss the mark. Dunn cites point if the posed instruction of his trial that thority in effect at the time instructions.” in the other covered 1992) entitled him to the burden-of- Hamilton, would To establish a claim of Sessions, 643, proof instruction. (quoting oversight based on ineffectiveness (Utah 1982)). Although not need we do law, misreading a defendant bears the issue be- apply this rule to resolve why, on the basis of demonstrating burden us, our reliance on the supports fore trial, the time of effect at law credibility given to the general instruction performance was defi or her trial counsel’s jury to find no harm. 159; Bullock, 791 P.2d at Car cient. See accomplished factors Together, these 894; Lovell, ter, 758 P.2d at 776 P.2d at have whatever benefit would 913; 118; Verde, v. Iaco 770 P.2d at State from uncorroborated accom achieved 1986) no, 1375, (per 1378 725 P.2d plice testimony instruction. State v. Cf. 56, Malmrose, curiam); P.2d v. 649 State 200, (Utah 1987). Hackford, 737 P.2d 206 (Utah 1982). support position, of 60 Therefore, any error of we conclude Hansen, decid only Dunn cites which was failing request in that instruc counsel to Dunn does years ed five his trial. after prejudice not Dunn. tion did argue applies retroactive not Hansen ly, any why it should. nor do we see reason claims that his trial Dunn also Norton, 577, P.2d 584 v. 675 See State failing request in counsel ineffective (Utah 1983), grounds, overruled on other prosecution’s an instruction on the burden Hansen, 427 v. 734 P.2d State compulsion. of Al proof of on his defense Chappell, 818 P.2d Dyke v. Van cf. explaining the com though an instruction (Utah 1991). Because Dunn has 1025 given jury, to the the pulsion defense was that the law at the failed to demonstrate did not mention the burden of instruction time of his trial entitled him to an instruc Hansen, proof. Dunn cites State v. 734 prove prosecution’s tion on the burden (Utah 1986), proposi P.2d for the defense, his absence of his affirmative jury tion that failure to instruct ineffectiveness claim fails. proof on an affir prosecution’s burden Torres, Therefore, in is error. note that v. mative defense We State (Utah 1980) pres- cited Dunn’s argues, requesting his counsel erred in not —not ping should affirmed but submit said that defen- be ent counsel—this court entitled to a self-defense instruction entering dant is man- instead of had informing the “that defendant slaughter, the Court should reverse proof but was enti- particular burden of no re- degree second murder conviction and any acquittal if there was basis tled to an mand for a new trial. either side sufficient evidence from result-driven, opinion clearly In an that is doubt that defen- to create a reasonable legal maxim to majority adds new guilty at of the offense.” Id. dant was However, statutory impossi- language if this construction: When it’s even 695. enough facts, trial clear establish statute to fit the ble stretch a fell below the standard reason- counsel ignore it on an amor- and decide case by failing to professional assistance able phous “general power.” The result is an instruction, request the contested we can- example flouting a statute that extreme error, there is a say that but for govern this case. More on its should face probability that verdict reasonable importantly, it is a violation of defendant’s to him. have been more favorable would right by jury, to trial Sixth Amendment Strickland, at S.Ct. See 466 U.S. very of the statute itself. See basis Verde, 2068; 770 P.2d at (10th 820 F.2d Alford, Franks Finally, Dunn invokes the cumula Cir.1987); Clark, Rose v. arguing that doctrine even tive error 3101, 3106, L.Ed.2d during the the errors committed course individually, they his trial were harmless initially This Dunn’s con- Court affirmed cumulatively Under the cu were harmful. Dunn, P.2d 709 victions in doctrine, error we will reverse mulative (Utah 1982). subsequently held We effect of the only if “the cumulative sever proceeding that Dunn was corpus habeas al undermines our confidence ... errors assistance of counsel denied the effective trial that a fair was had.” Whitehead v. rights under appeal in of his violation Corp., Motors American Sales the Sixth Amendment the United States (Utah 1990); accord State John Cook, P.2d 873 Constitution. Dunn v. 1135, 1146(Utah 1989); son, 784 P.2d (Utah 1990). Accordingly, majority ad- Ellis, if this now before it as dresses the issues Rammel, appeal from Dunn’s 1981 were a direct (Utah 1986). assessing a claim of cumu conviction. error, we consider all the identified lative errors, well as errors we assume concedes, must, as indeed it performed occurred. We have indif depraved that the instruction this review the instant case and conclude degree was errone ference second murder that the cumulative effect identified reason, a of law. For that ous as matter and assumed errors does not undermine must degree murder conviction the second our confidence the essential fairness of remedy The for an erroneous be set aside. the trial. People jury is a new trial. See instruction aggravated kidnap- Dunn’s conviction for Evans, Ill.App.3d Ill.Dec. remand the ping is affirmed. We case 351, 354, (1989), 538 N.E.2d aff'd to set the trial court with directions aside Shields, People v. 143 Ill.2d sub nom. verdict, degree murder enter the second 40, 47, 575 159 Ill.Dec. N.E.2d manslaughter, judgment for reckless and a Stark, 56- 363 N.W.2d accordingly. to sentence Allen, (Minn.1985); Or. HALL, C.J., HOWE, C.J., Associate Nevertheless, (1986). DURHAM, J., concur. own, judgment enters majority, the on its STEWART, (Concurring Justice: in Part manslaugh against for defendant reckless Part). Dissenting in manslaughter is a theory ter on the that degree offense of second lesser included agree majority I with that the defen- and, therefore, neces- jury the aggravated kidnap- dant’s conviction for murder been, difficulty retry- has never of sarily every required for a con- and found fact passage ing the defendant due to the manslaughter. I submit that this viction of authority time. to enter Court does not have manslaughter against Dunn judgment for authority majority asserts to enter a major- and that the on the facts of this case judgment manslaughter of conviction for ity blatantly Sixth Amendment violates his Rule 28 of the Utah Rules of under Crimi-

right by jury doing so. The to trial Procedure, indicates nal and remand for proper remedy is to reverse may modify judgment appeal. Court degree murder a new trial on the second Citing to other courts that have relied on a charge. modify judgments, general power to “may enter appellate authority majority An court’s to enter concludes that we also judgment judgment for a lesser included offense is on a lesser included offense spelled out in Utah 76-1- when an error has tainted the conviction Code Ann. § 402(5). appel- greater pre- for the offense.” But That section authorizes an 76-1-402(5) entry judgment cisely late what addresses and court to direct for § lesser included offense if a conviction is disallows in the circumstances of this case. (1) majority reversed because the court found insuf- Not one of the cases cited support authority gives contrary ficient evidence to a conviction for a court to act to a (2) charged; 76-1-402(5). governing the offense there is sufficient statute such as § Furthermore, support a conviction for a less- none of those cases holds offense; (3) judgment er fact included the trier of that a court can enter a of con- necessarily every required found fact viction on facts similar to facts of the offense; case, irrespective conviction of that lesser included of a statute. (4) entry judg- defendant seeks A charged defendant with a serious ment on the lesser included offense. right jury crime has the to have a deter- undisputed statutory guilt It is re- mine his or innocence. Duncan v. quirements First, Louisiana, are not met in this case. majority require- reverses Dunn’s second de- L.Ed.2d 491 The essential

gree conviction, 76-1-402(5) murder of in- because ments of are mandated § specified sufficient right by jury. evidence as the stat- the Sixth Amendment to trial ute, jury majority but because the instruction on The maintains that it is irrelevant depraved degree indifference second mur- whether Dunn’s conviction for second de- Second, faulty. jury gree der was did not murder was reversed because the evi- necessarily every insufficient, required required by find fact for the dence was Third, manslaughter. statute, conviction of er- because instruction was sought entry distinction, however, has not of a for a roneous. That is es- lesser offense. right sential if a defendant’s trial is to be maintained. aWhen has been stunning disregard principles of basic erroneously instructed on the mens rea judicial responsibility, majority sim- necessary to convict a defendant of second ply requirements abandons the 76-1- murder, degree the defendant is entitled to 402(5) and “general power relies on a jury guilt have a determine his or inno- modify judgments appeal,” though even legal cence under the correct standard. modify judgment, it does not in fact a but majority jury enters a new one. The seeks to The in this case was instructed that justify position its plainly expedient on the it degree could convict Dunn of second (1) reason that “the intentionally obstacles to retrial on the murder if knowingly or degree charge (2) second murder Sprinkle would be caused the death of acted great,” impossible, if not years. evidencing after ten under depraved circumstances The determining standard for indifference whether to human life. The instruction not, defendant is entitled to a new trial is an knowing killing intentional or was prior of our cases state that correct; respect to dant. Some incorrect with it was general manslaughter is a. lesser included offense indifference. Because depraved murder, degree and in some returned, cannot of second this Court was verdict Crick, E.g., it jury cases can be. whether convicted possibly know (Utah 1983); State v. Bind intentionally killing Sprinkle or of Dunn of by depraved rup, indif- see causing Sprinkle’s death jury Day, convicted Dunn also State v. ference. If the murder, Nevertheless, appears Ct.App.1991). it in cases which intentional evidence, it need not degree from the the mens rea of second mur have done where find, found, that probably did not der is intent and the mens rea of man Therefore, the ma- recklessly. recklessness, manslaughter slaughter Dunn acted is is that the wrong saying jority simply right If not a lesser included offense. elements of jury necessarily found all the jury preserved, it cannot to trial is to be manslaughter. reckless automatically manslaugh be assumed is a lesser included offense of second ter intend- that Dunn There is clear evidence degree simply murder because it is a less did, jury If he as the Sprinkle. to kill ed serious crime. found, guilty inten- apparently Dunn is degree murder. Whether the tional second (10th 820 F.2d Alford, Franks v. guilty Dunn of sec- jury could have found Cir.1987), applies on its facts and is similar “depraved degree murder based on ond majority ought the rule of law that the highly conduct is at best indifference” Franks, the Tenth Circuit apply here. have re- problematical, because would appellate an court vio- held that Oklahoma con- quired finding type of a of reckless right to trial lated the defendant’s present Dunn duct. It is clear that was it reduced his conviction from first to when Sprinkle killed in the back of when Scott juryA had degree murder. Id. second camper driving because was murder, felony convicted the defendant If for Dunn’s convic- the time. the basis state of mind which made the defendant’s victim, telling kill the tion was his Scott to irrelevant. respect to the homicide with intentionally, and Dunn that act was done Appeals The Oklahoma Court Criminal degree murder. guilty of second reversed, holding facts did not Thus, recklessly Dunn’s acts did not create felony murder. support a conviction of death, required by the man- a risk of sup- held that the evidence The court then slaughter holding statute. liable degree mur- ported a conviction of second recklessly causing Sprinkle’s death on crime. entered for that der and killing, intentional the basis of Scott’s held that the The Tenth Circuit Oklahoma only Court not assumes the role of “depraved erroneously assumed that court jury, also distorts the definition of but degree [i.e., second murder mind” reckless] reckless conduct and makes Dunn vicari- degree included offense of first is a lesser guilty manslaughter for another’s ously murder, required intent. Id. felony killing, entirely new and ex- intentional The court stated: tremely troubling concept. When a convicts a defendant charged, necessarily thus finds majority erroneously offense The asserts of a true lesser included jury necessarily every found element all the elements circumstances, a those of reckless man- offense. Under required for a conviction appeal the lesser included majority’s is that reduction on slaughter. theory of the Sixth always offense does not run afoul manslaughter reckless a lesser found Amendment has degree included offense of second murder because in- the elements of the lesser offense. degree that a conviction of second all Mathews, See, 475 U.S. necessarily e.g., homicide means that a Morris tentional 1032, 1037-38, [244-46], 106 reckless conduct the defen- S.Ct. jury found case, (1986). L.Ed.2d 187 murder is contrary, “depraved mind” Utah, Appellee, Plaintiff and STATE felony lesser included offense requires proof

murder because ARCHULETA, Anthony murder does Michael felony state that mental Appellant. not. Defendant added). part of The italicized (emphasis Id. No. 900041. applies four-square to the quotation Supreme instant case. Court of Utah. Clark, 478 U.S. Rose March 1993. (1986), 92 L.Ed.2d S.Ct. Rehearing May Denied Supreme made clear Court United States Amend- a trial violates the Sixth court prosecu- a verdict for the ment it directs

tion, “overwhelmingly the no matter how point guilty verdict. may

evidence”

The Court stated: judge “a trial have stated that

We entering

prohibited from directing the to come

conviction or regard- such a verdict ...

forward with overwhelmingly

less how point in direction.” United Co., 430 Supply Linen

States v. Martin 1349, 51 L.Ed.2d

U.S. 564 S.Ct. 642] [97 (citations Accord,

(1977) omitted). Car- States,

penters v. United (1947). This S.Ct. 91 L.Ed.

[67 973]

rule stems from the Sixth Amendment’s jury trials in

clear command to afford

serious criminal cases. See Duncan

Louisiana, 391 S.Ct. U.S. [88 right Where that L.Ed.2d 491] altogether the State cannot deprivation

contend that the was harm-

less the evidence established because guilt; the error in such a

defendant's wrong entity judged the

case is that the guilty.

defendant

Id. right to

Dunn has a Sixth Amendment Court, jury,

demand that a not this make to his innocence or

the determination as

guilt. majority right. denies him that vicariously makes him

It also liable

manslaughter based on another’s intention- killing. ought remanded

al This case to be

for a new trial. cause also be notes 1 Charles E. combined to accord (1978); negligent, long Law 26 so as the Criminal classified Wharton’s § Scott, Jr., Wayne W. can R. LaFave & Austin something later act is which reason- Much the Utah Code is based Criminal ("MPC”), upon Penal (b) the Model Code kind actual involves the same result provision. does contain a causation Section probable injury harm result and as the states: 2.03 the MPC in its remote or accidental occurrence not too (1) (a) is the cause of a result when: Conduct liability [just] bearing the actor’s to have a an antecedent but for which the it is gravity offense. or on the of his occurred; question result in would not 2.03, § 1 Model Penal Code and Commentaries and (Amer.L.Inst.1985) (brackets origi- at 253-54 in (b) relationship between conduct nal). commentary provision to The MPC satisfies additional causal re- and result quirements imposed by "but (i.e., be con- indicates that for” causation Code.... loosely causation can be fair- strued actual attenuated). ly Id. at We note 257-60. (3) recklessly causing particu- When ... causation, the MPC formulation of under offense, of an lar result is element support a before us is sufficient to is not established if the actual result element is finding against Dunn. of causation not the risk of which the actor is within aware unless ... say “rea- prosecution, we cannot Law Criminal Melvin F. § on the Law Wingersky, A Treatise entertained a rea- sonable minds must have Marshall) (Clark regarding & the causal rela- Crimes sonable doubt 10.01 Hallett, law, tionship question.” 619 P.2d at short, if the inter- common under (Hall, J., dissenting). The reason- reasonably fore- vening party’s acts were acts, concluded that but ably could have of the defendant’s seeable as a result planning carrying liability. Dunn’s actions escape cannot the defendant robbery Sprinkle’s kidnapping and out find that foregoing, we light leading up participating in the events to establish the evidence is sufficient Sprinkle's shooting, Sprinkle would not reason- “intervening” conduct was Scott’s killed. have been and therefore suffi- ably foreseeable to break the causal ciently independent spe Dunn’s more We now turn to him that Dunn told chain. testified Scott manslaughter cific attacks on the reckless testified that Sprinkle, shoot and Gleffe aggravated kidnapping and his intended him that he and Scott told We first address his claim that conviction. him Sprinkle and abandon to bind rob bag the search of his duffle violated the Furthermore, himself somewhere. to the United Fourth Amendment States he knew Scott had access testified that Constitution.11 trying get into gun, that Scott

Case Details

Case Name: State v. Dunn

Court Name: Utah Supreme Court

Date Published: Mar 18, 1993

Citation: 850 P.2d 1201

Docket Number: 17571

Court Abbreviation: Utah