*1 Shumate, City, L. for de- James Cedar appellant. fendant and Utah, Appellee, Plaintiff and STATE of Wilkinson, Dorius, David L. Earl F. Salt City, plaintiff appellee. Lake GOODMAN, Bruce Dallas Defendant Appellant. DURHAM, Justice: ap- Bruce Dallas Defendant Goodman 860116. No. peals his in a bench trial of sec- conviction Supreme Court of Utah. ground degree ond murder on the there was insufficient evidence to convict 9, Sept. 1988. him. We affirm. 4, Rehearing Denied Nov. of the murder was convicted Williams, Sherry 21-year- Ann Fales
old woman. Ms. Williams’ 30, 1984, morning of near a freeway off-ramp at the Manderfield exit Utah. She had been bound at the knees and wrists and was waist, excep- unclothed below the with the pair autopsy An re- tion of socks. vealed that Ms. Williams had received at eight least severe blows to the head which her death. caused She also several lacerations, including contusions injury wounds to her hands and an anal was inflicted the introduction of a which object. body, In the snow near the blunt investigators partially found a cigarette by type had been smoked which Further, had had sexu- secretor.1 “A” secretor al intercourse with previous 24 to 36 hours. Evi- within suggested that dence at the scene also Williams had suffered extreme violence. in sever- Her skull was crushed and broken sprayed al locations. Blood had been onto blows, injuries the snow the and the very likely hands Williams’ were attempts result unsuccessful thwart her attacker.
When a bench trial for evidence, sufficiency of the we must sus tain the trial court’s unless it is “against ifor court otherwise reaches definite firm conviction that a mis Walker, take made.” has been State v. (Utah 1987); 743 P.2d According testimony per- person 1. A "A" secretor is a “A" fluids. antigens blood that secretes "A" into
787 doubt, but, 52(a).2 explained beyond appeal, reasonable on in Walk- a As we R.Civ.P. er, “appropriate rec- the of review aids the defendant standard accords standard this owed Al- ognition of relative deference in his to a reversal. the efforts obtain single- opposed close, to though as not panels multi-member this case is we do Walker, findings.” P.2d at 193. judge 743 a have definite and firm conviction that standard, the this less deferential made, Under do mistake and we not believe conviction will likelihood that a defendant’s against clear the is the op- as following be a bench reversed weight of the evidence. trial, is The posed jury to a increased.3 Ms. Williams met Defendant and weight of evidence standard does clear the fair, they the state where were Arizona not, dissenting opinion suggests, re- as the They be employed, both October present the the more quire that gan living together in an intimate relation Instead, this compelling evidence at trial. over, ship. After the fair was moved weight requires that the clear of Vegas, to the “Little Hotel” in Las Nevada. presented at trial not be con- the evidence there, employed as a While defendant was weight If the of trary to the verdict. the ranch, hired hand support not the ver- State’s evidence does Vegas. located of south Las dict, case, presents where 19, defendant his Even if On November asked the verdict still must be reversed. employer pickup if could truck weight supports he borrow the clear of verdict, however, personal belongings. in order move will re- his this Court pickup, did not but if it a definite and Defendant return verse otherwise reaches personal manager it The kept has for his use. firm conviction that a mistake been and made, an ad- of the hotel confirmed that defendant providing thus the defendant 19, Ms. moved on November opportunity to a reversal. Williams out ditional obtain it not clear next. is where went pre- approach This does not diminish claims that he abandoned the requirement sumption of innocence or the 19 pickup stolen behind a reason- guilt beyond be established locking keys stop, Blue truck Diamond review, defer- Upon able doubt. we accord This, however, not inside. is true. ability opportu- ence to the trial court’s responsible Vegas police for officer credibility nity evaluate and demeanor. parking lot where defendant patrolling the us, retrying cases before we can- Without left the testified that the truck was pickup of particular function trial not fulfill it at shortly found not there until has courts. After day Ms. 12:05 a.m. on November guilty reasonable doubt Indeed, eye- body was an Williams’ found. evidence, including the upon wit- based placed witness defendant and Williams credibility, we will demeanor and nesses’ together pickup in Nevada after weight the record to see review the 19th of November. evidence, including not demeanor Beatty, Ne- operator A credibility, contrary the verdict. service station is vada, Vegas, posi- sufficiency miles north of Las trial for bench Williams, evidence, tively require we identified evidence, being his sta- discounting questions of cred- stolen as oper- demeanor, 22. The tion on around November ibility oppose not ver- his Hence, because of ator remembered defendant defendant’s conviction must dict. vest, guilt denim establishing distinctively decorated still based on evidence verdicts, reviewing jury accord general population we falls into 3. When cent of the greater opportunity twelve deference category. will and we individuals to evaluate the sustain the verdict there applies criminal actions under Utah 2. Rule 52 person would a reasonable substance that allow 77-35-26(7) (Supp.1988) and §Ann. Code Walker, guilty. P.2d to find the defendant 81(e). of Civil Procedure Rule at 192. Thus, “Hay signs pickup, on the and his defendant and Ms. Sale” Williams were (such attempt travelling certain as along to sell items north Interstate 15 toward chainsaw) positively that were in the back of the Utah and were twice in identified immediately preceding truck. the nine hours *3 discovery body. of Ms. Williams’ later, Approximately night one week stop, testimony clerk at the Blue Diamond truck locat- Defendant’s own revealed that Vegas leaving in ed south of on Interstate Ms. Williams was or- arguing estranged saw defendant and Ms. Williams der to return to her husband. him, angered between 12:00 a.m. and 12:20 a.m. on No- Defendant stated that this argued vember 30. The cashier remembered Ms. and he admitted that he with change concerning Williams because she asked for sev- Ms. Williams several times this Defendant, topic. evening. eral times that once again, in was clad his unusual denim vest put on alibi evidence heavily and was notable because of his claiming in that he was California at the
tattooed arms. time the murder. The trial how- ever, did not believe this defense evidence approximately
At the time defend- eyewitness and instead chose to believe the appeared ant and Ms. Williams at the Blue testimony placing defendant with stop, Diamond truck an officer for the Las relatively Williams a short distance and Vegas Metropolitan Department Police dis- time from the murder scene. From Mes- pickup the stolen in covered quite, defendant and Ms. Williams could parking the Blue Diamond lot. The offi- Vegas either return to Las or continue to cer’s meticulous records revealed that the on Interstate 15. There are few parked in was not the lot before places stop Mesquite between and Bea- that date and that it was discovered places ver and therefore few for Ms. 12:05 a.m. on opportunity Williams to have had the apparently Ms. Williams continued her persons. encounter defendant, journey arriving at with Mes- Finally, physical available al- Nevada, quite, between 2:00 a.m. and 4:00 limited, though is consistent with the trial eyewitness a.m. An identified judgment. court's had en- Williams vest, unkempt appear- based on his denim gaged in sexual intercourse with a ance, features, company and facial prior “A” secretor 24 to within 36 hours in Ms. Williams Casino Additionally, cigarette, par- her death. Mesquite. The witness worked casi- secretor, tially by type “A” was practice no as a keno runner. Her was to alongside body. Defendant was particular follow a route around the casino secretor, while the victim was a every collecting floor few minutes and re- secretor. “O” turning keno tickets. Defendant remained location, the same witness was question, Without this is a close case. thus to observe him numerous times able defendant’s alibi was disbelieved angles. and from several different Be- the trial court and so was found to be play any Eyewitness testimony cause of his failure to casino untruthful. showed unusually unkempt appear- arguing loudly games and his that defendant was ance, just stood out in the hours her death. witness's Ms. Williams before uniqueness by Upon giv- mind. His was underscored review of the entire record and regard opportunity fact that defendant and Ms. Williams “due ... to the judge credibility of the argument. became involved in a heated the trial court to witnesses,” 52(a), security are not The witness was about to ask Utah R.Civ.P. we dispute, argument ap- of and firm that a calm the when the a definite conviction Therefore, parently Defendant and Ms. mistake made. we find the subsided. support remained in the casino for a rela- evidence sufficient trial Williams Further, leaving judgment. re- tively lengthy period before some- court’s we have contentions on time 4:00 a.m. viewed defendant’s other on review will almost they are without mer- and hold that appeal Judgment in an always affirmed. result affirmance in a criminal it. appeal, matter how weak the
ease Furthermore, prosecution’s case. when the HOWE, HALL, C.J., and Associate trial, ap- defendant adduces no evidence at C.J., concur. plication clear-weight-of-the-evidence STEWART, (dissenting): Justice always in an test will result affirmance respectfully dissent. The evidence appeal a conviction on even if the evidence proving case far short of falls guilt Surely weak. it cannot be charged. the crime defendant committed prevail the case that the State should sim- *4 reviewing duty our in determin- As a ply the defendant adduced no evi- because sufficiency the a ing the of evidence in dence at trial.1 to criminal ease is determine whether the test, the prong The second of Court’s fact, acting person, trier of as a reasonable judgment the that stands unless the Court beyond a could have found reasonable and “reaches the definite firm conviction the doubt that the defendant committed made,” ig- a has that mistake also course, majority the I crime. Of both importance the primary nores of the be- credibility in all favor must resolve issues yond-a-reasonable-doubt in standard the de- the evidence in of the conviction view truth, cision-making process. In the sec- majority applies of the favor it. prong wholly subjective, submit, ond is and more- wrong standard, the for review- conviction, i.e., over, gives recognition para- the it no the whether “ ‘against of the evi- is importance burden-of-proof mount dence, or if the court reaches required by the standard Constitution. firm conviction that a mistake definite and employed The of review ” applying has been made.’ the “clear majority accept leads it to the flimsiest test, majority weight of the evidence” affirming in kind of evidence the conviction obviously weigh, weighed, must and has in this case. against side’s the evidence of one evidence majority’s The affirmance of the convic- appropriate test is in side. That entirely upon proposition rests that tion cases, not civil in criminal cases. but the defendant was seen with the victim “a view, my fundamentally it is errone- relatively from short distance time apply in a criminal case to a clear- ous supposedly had a mo- murder scene” in weight-of-the-evidence test to kill the victim she intended tive because sufficiency A evidence. estranged leave him to return to her produce any no evidence at has burden place The last defendant and husband. may acquitted trial and be even he ad- together was in the the victim were seen all. The State must duces evidence at Nevada, Mesquite, ap- Peppermill Casino doubt, prove its case reasonable proximately to seven-and-a- five-and-a-half does; irrespective of what the defendant hours the victim’s death. Mes- half put more simply con- the State cannot quite away some 180 miles from where vincing evidence than the defendant and found, the Man- the victim’s was at ground its out- on the evidence win turnoff, Utah. derfield than, persuasive or weighs, is more that, majority that the From concludes application It defendant’s. follows clear-weight-of-the-evidence is sufficient to sustain the convic- majority’s argues peo- majority clear-weight-of- quire an whether reasonable assessment of 1. The require ple sufficient to could find that the evidence was the-evidence test does not compelling prove Instead, beyond a doubt. present the crime reasonable the “more to trial," majority weighs simply or only requires balances the "evidence weight” is contrary to see if the "clear "con- presented not to the verdict.” the evidence trary at trial appropriate argument point. verdict." That is The standard The misses the case, majority simply not for criminal case. employed does not re- civil majority position tion.2 Critical to the is the implicit assumption that Goodman and the opinion majority is devoted almost Mesquite together. victim left But there is entirely discussing events that occurred they no evidence whatsoever that did so. 30, 1984; prior to November but the critical anyone Neither the keno waitress nor else early morning time this case is the saw them leave the casino. No one saw November 30. Between o’clock and Mesquite. them leave There is no evi- morning, o’clockon that the victim and the as to when either one dence left Mesquite. identified in the defendant were There is no evidence that left Mes- Mesquite, by Resort Hotel and Casino quite together. The inference that waitress, only person keno to see together only left can be made one as- place, them.3 From that time and there is sumes the fact in issue: that Good- absolutely concerning no evidence the man killed the victim. either whereabouts and activities Furthermore, there is no evidence at all the victim until Pepper- as to how either one traveled to the approximately victim’s Mesquite;4 mill Resort Hotel in there is no a.m., just 9:30 after death occurred. The evidence that the defendant threatened the *5 majority opinion purports bridge that victim, although the say keno waitress did glaring gap in the evidence with one quarreling; state- she saw them there is no evi- Mesquite, ment: “From defendant and Ms. Peppermill; dence as to when left the Vegas Williams could either return to Las there is no evidence that left either Peppermill Mesquite Resort Hotel or or continue to Utah on Interstate 15. time; the same there is no as to stop places There are few between Mes- how or with whom the victim traveled from quite places and Beaver and therefore few Beaver; Mesquite off-ramp to the opportuni- for Ms. Williams to have had the there is all no evidence at that the defend- ty any persons.” to encounter other ant traveled north to Utah rather than back hardly Mesquite That is itself case. Vegas, toward where he had left the busy stop gamblers is a and and a pickup. fact, stop. well-used truck and bus In probative There is no evidence at all while Goodman and Williams were Mes- that the defendant was at the scene of the quite, both northbound and a southbound crime, only and the that even stopped interstate bus partially bears on that issue is the smoked stop. Clearly, Casino for a rest cigarette found near the victim’s Williams could have hitched a at Mes- ride by type had “A” which been smoked quite passenger with trucker or car. secretor and the fact that defendant is a Indeed, Ms. Williams could have taken the “A” type secretor. that evidence George. certainly could bus to St. She point does not to the defendant. The brand persons have encountered other at a num- cigarette found at the site was not the places along other ber of the interstate: by and since brand Verkin, George, Bloomington, St. La Cedar general population almost one-third of the Parowan, City, among others. secretors, by “A” are as testified places, these At one or more of analyst, state crime lab classifi- Goodman’s hitched with truck- victim could have rides group begin in that cation does not even others, car, driving ers and she was prove, by preponderance not even of evi- dence, picked up could have a hitchhiker. much less a reasonable by majority truck the defend- 2. Other evidence relied on con- 4.The cerning travelling the tissue of the defendant is whol- in was ant and the victim had been ly nonprobative, as is shown below. by Vegas police shortly after a Las officer midnight, November hours before the two by appellate procedure, required I 3. As Mesquite. were seen in light take the evidence in the most favorable to reason, is no the conviction. For that there the defendant’s alibi evidence. need to discuss fight girl gotten into a with a doubt, was at the scene that gotten his fact, on the statis- in Utah where he had blood on In based the crime. analyst, anything af- lab shirt and could not remember given the state crime tics people, hundred randomly selected one terward. This Court concluded one secretors, light most favor- thirty-two would be viewed thirty-two conviction, committed the if one of was insufficient to able crime, probability statistical that one of a crime. convict defendant identify guilty person choos- could Clearly, prove the State should have to per3 cent. thirty-two one of the than could more the fact that short, misleading that evidence is so crime he was have committed the because not even have non-probative it would six her death with victim hours before case to determine admissible a civil argued and had her. with Flora, 744 P.2d paternity. See Kofford I believe that this conviction should be 1987). (Utah reversed. Furthermore, no evidence tied the scene of crime. ZIMMERMAN, (dissenting): Justice fact, exculpatory to the other evidence was Stewart, join opinion of Justice probative it was of the issue at the extent exception paragraphs, first three hairs from the all. Human taken the standard which criticize of review. body, all came from the victim’s the victim one, either from except which did not come victim, and was un-
the defendant or the rope used to tie victim
identified. *6 grisly act was committed was
before general type found on farms and often
ranches, its dissimilar to the but weave was truck that
rope found BRADFORD, Craig Plaintiff A. left earlier in had a few hours Appellant, Vegas. v. sum, there is no testimonial infer- physical that ties the de- ential NAGLE, Nagle, Gary La M. Michael F. for fendant to crime. The foundation Homes, Inc., Nagle, Mar Artistic majority’s opinion, like the foundation Company, Ap Defendants and Gramco of the trial is sim- pellees. speculation. ply guesswork and No. 20374. (Utah Petree, P.2d 443 State Supreme Court Utah. 1983), similar, we held somewhat more uphold probative, insufficient Sept. degree In Pe- murder conviction. second tree, the defendant had convicted (1) per- the last
upon evidence he was victim, schoolmate, seen with the
son (2) disappeared; depart- city following the victim’s day
ed (3) statements
disappearance; he had made referring interpreted as
which could to three or to actual occurrences
dream walking girl with a
family members about being girl and his slapped by the
and then her; her or killed
having possibly hurt girl another
(4) made he had statements disappearance years after the victim’s
two