STATE of Utah, Plaintiff and Respondent, v. David M. HANSEN, Defendant and Appellant.
No. 19894.
Supreme Court of Utah.
Nov. 5, 1986.
728 P.2d 421
Decree affirmed. Costs to defendant.
HALL, C.J., and DURHAM and ZIMMERMAN, JJ., concur.
STEWART, J., concurs in the result.
David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.
ZIMMERMAN, Justice:
Defendant David M. Hansen appeals from a conviction of murder in the first degree, a capital felony under
On February 1, 1983, defendant Hansen and his original co-defendant, Joseph Rocco,1 went to David Stewart‘s house, hog-tied Mr. Stewart, and stole a number of items of personal property. The house was then set on fire. Stewart died from burns and carbon monoxide poisoning. Following this incident, Rocco and Hansen immediately drove to Neil Shock‘s house, where they tied up Shock and stole personal property. This house also was set on fire. After Hansen and Rocco left in Shock‘s car, Shock untied himself and escaped from the burning house. The car was found later, destroyed by fire.
Hansen was charged with first degree murder under
At trial, the State presented evidence tending to prove that during the episode, Hansen committed robbery and burglary, as well as arson. Hansen testified in his own behalf and admitted that he held a gun on Stewart and that he tied him up. Hansen also admitted that he stole property from Stewart. However, Hansen claimed that Stewart was tied up only to permit the successful completion of the burglary/robbery and that while he was searching the house for property, he became aware that
At the conclusion of the evidence, the trial court instructed the jury on the charged offense of first degree murder—a knowing or intentional killing committed during the course of an aggravated arson. Consistent with Hansen‘s testimony about his participation in the crimes, the defense proposed a jury instructiоn on the lesser included offense of felony-murder, a second degree murder punishable by one to fifteen years in prison.
The proffered felony-murder instruction was refused on the grounds that Hansen was charged with an intentional killing in the course of an arson, not an unintentional killing in the course of a burglary or robbery, and that the requested instruction would add a new element—robbery or burglary—to the offense charged. Instead, the court gave two other lesser included оffense instructions, one that did cover felony-murder, but was premised on an unintentional killing occurring during the course of an aggravated arson, and another on manslaughter, premised on an unintentional killing occurring as a result of a recklessly set fire. The court also gave two instructions to which Hansen took exception. The first described the circumstances under which one could avoid being convicted of a crime by withdrawing from the criminal undertaking. The second instruction described the criteria for holding one responsible as an accomplice for crimes committed by the principal.
The jury returned a verdict of guilty of first degree murder. During the penalty phase, the jury was unable to reaсh a unanimous verdict on the death penalty and Hansen was given a life sentence. Hansen now appeals.
Hansen‘s principal contention is that the trial court erred in not giving his requested lesser included offense instruction on felony-murder, which would have permitted the jury to find him guilty of an unintentional killing that occurred in the commission of robbery, aggravated robbery, burglary or aggravated burglary. Instructions on lesser included offenses are specifically provided for in
(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or
an offense otherwise included therein; or (c) It is specifically designated by statute as a lesser included offense.
(4) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
In State v. Baker, 671 P.2d 152 (Utah 1983), this Court interpreted
In defending the trial court‘s refusal to give the lesser included instruction, the State contends that the first element of the Baker test is not satisfied: there are no overlapping elements between a charge of an intentional killing committed in the commission of an aggravated arson, on the one hand, and a charge of an unintentional killing committed in the commission of aggravated robbery or burglary, on the other. This argument is without merit. It is true that burglary and arson, standing alonе, may not have overlapping elements. It is also true that one charge involves an intentional killing, while the other, an unintentional killing. But the test is whether the elements overlap at all. Here, the killing itself is a common or overlapping element of each crime.
The second element of the Baker test also was satisfied: the evidence provided a rational basis for the jury to acquit on the first degree murder charge and convict on the requested second degree murder charge. On the facts before it, if the jury believed Hansen‘s testimony, it could rationally have found (i) that he was not guilty of arson and did not have the mental state required for first degree murder, but (ii) that Hansen did commit robbery or burglary, that Stewart was killed during the course of that crime, and that Hansen did not intend or know that Stewart‘s death would result. This would warrant a verdict of guilty on Hansen‘s requested felony-murder instruction. Since both elements of the Baker test were met, the lesser included offense instruction should have been given.
The requirements of Baker for the inclusion of a lesser included offense instruction requested by the defendant should be liberally construed. “Society has a legitimate interest in the jury‘s freedom to act according to the evidence.” People v. Chamblis, 395 Mich. 408, 426, 236 N.W.2d 473, 482 (1975), quoted in People v. Geiger, 35 Cal.3d 510, 523, 199 Cal.Rptr. 45, 52, 674 P.2d 1303, 1310 (1984). Where the defendant requests an instruction of a lesser included or a related offense and where there is some rational basis in the evidence on which the jury could find as the defendant requests, the instruction must be given. State v. Crick, 675 P.2d 527, 538 (Utah 1983) (Stewart, J., dissenting). The rule of Baker is not a mere technical rulе designed to trip up judges and prosecutors. It serves a fundamental policy of permitting the jury to find a defendant guilty of any offense that fits the facts, rather than forcing it to elect between the charges the prosecutor chooses to file and an acquittal. As we recognized in Baker, “[w]here one of the elements of the offense charged remains in doubt but the defendant is plainly guilty of some
As an alternative argument in support of the trial court‘s refusal to give Hansen‘s requested felony-murder instruction, the State contends that even if the Baker test is met, Hansen was not entitled to any felony-murder instruction because Hansen could not be cоnvicted of that crime. This argument is premised on the construction we gave
(1) Criminal homicide constitutes murder in the second degree if the actor:
. . . .
(d) While in the commission, attempted commission, or immediate flight from the commission or attempted commission of aggravated robbery, robbery, rape, forcible sodomy, or aggravated sexual assault, aggravated arson, arson, aggravated burglary, burglary, aggravated kidnapping, or kidnapping, causes the death of another person other than a party.
Although the propriety of the trial court‘s refusal to give the felony-murder instruction was not raised on appeal in Norton, this Court reached the issue, sua sponte, and affirmed the trial court‘s ruling. The Court noted that by its language, the second degree murder provision applies only “when the defendant, during the commission of one of the enumerated felonies, causes the death of ’another person other than a party.‘” 675 P.2d at 581, quoting
Relying on Norton, the State argues that Stewart, the victim of the arson and robbery, was a “party” within the meaning of the statute. Therefore, Hansen was not entitled to any felony-murder instruction—not the robbery or burglary-based instruction he asked for, and not the arson-based instruction given by the trial court.
Hansen contends that Norton‘s construction of
Some background is necessary. Under the early common law, when an actor caused the death of another during the commission or attempted commission of a felony, the actor was guilty of what we now term first degree or capital murder. This was true even if the felony was not of a dangerous nature and even if the killing was entirely unintended. W. LaFave & A. Scott, Criminal Law § 71, at 545-46 (1972). This doctrine was known as the felony-murder rule. The common law felony-murder rule also permitted an actor to be charged with murder even if the one killed during the felony was not a victim or a bystander, but a co-felon. For example, the common law provided that if two persons committed a felony and one was accidentally killed, perhaps by police, during the felons’ flight from the scene of the crime, the surviving defendant could be charged with murder. See, e.g., Commonwealth v. Thomas, 382 Pa. 639, 117 A.2d 204 (1955), overruled, Commonwealth v. Redline, 391 Pa. 486, 508-09, 137 A.2d 472, 482 (1958).
In modern times, this rule has been criticized as being overly harsh because many more crimes are now defined as felonies than when the doctrine was developed and because many modern felonies are relatively minor. In addition, the penalties for most felonies are now less severe than those imposed for murder. All of these developments have made dramatic the contrast between the punishment that would ordinarily be imposed for a felonious act and the punishment that might be imposed for the same act under the felony-murder rule, if even an accidental death occurs during the commission of the act. W. LaFave & A. Scott, Criminal Law at 546.
Until 1973, Utah had the common law felony-murder rule.
Second, the 1973 legislation limited the felony-murder doctrine to killings oсcurring during the course of only a few specified felonies. (At common law, a killing in the course of any felony fell within the rule, although the pre-1973 Utah codification of that common law had also limited the categories of eligible felonies. See
Finally, and of particular concern here, the 1973 Utah enactment did not permit the State to charge an actor with a felony-murder if the one killed during the commission of the felony is a co-felon. This is the real purpose of the “other than a party” language in
We are aware that prior precedents should not be overruled lightly. However, there are no compelling reasons for adhering to Norton‘s construction of the felony-murder statute. That case construed the statute incorrectly and without benefit of briefing by the parties. Moreover, the decision is a recent one, and the legislature has not relied upon it in enacting other statutes. Cf. Mountain States Telephone & Telegraph Co. v. Salt Lake County, 702 P.2d 113, 116 (Utah 1985). Perhaps most importantly, Norton‘s interpretation of the “other than a party” language to exclude the victim of the crime from the operation of the statute results in very poor public policy, policy the legislature could not have intended.8
For example, if the jury in Norton had accepted Norton‘s argument that the killings committed during the course of the robbery were not intentional because his diminished capacity made it impossible for him to form the mental state necessary for first degree murder, then the rationale adopted by this Court in Norton would have prevented him from being convicted of felony-murder under
Since Stewart was the victim of and not a party to the underlying felony,
The next question is whether this error was harmless. We do not reverse a conviction in the absence of error that is “substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a different
The problem with this reasoning is that it ignores the factual interconnection between the wrongful setting of the fire that was supposedly committed under all the given instructions and the killing that actually occurred. As a factual matter, there is no question that Stewart was tied up at the time the fire was set and that his death was caused by the fire, nor is there any real question that either Hansen or Rocco deliberately set the fire. Realistically speaking, then, under the facts presented to the jury, whoever was found responsible for setting the fire almost certainly would have to be found to have at least “knowingly” killed Stewart and, therefore, be convicted of an intentional killing committed during the course of a felony. Conversely, one found not responsible for the fire would have to be acquitted of all charges. The jury was never given the choice of finding that Hansen was not responsible for the fire, yet was still guilty of a felony during which an unintentional killing occurred. Its only choice was to find that he was responsible for the fire that caused the death or to acquit him altogether. This is exactly the sort of forced choice that lesser included offense instructions are designed to avoid, and exactly the choice that the jury would not have had to make if Hansen‘s burglary or robbery-based felony-murder instruction had been given. Therefore, we cannot find that the refusal to give the instruction was harmless. We must reverse and remand for a new trial.
Given our conclusion that defendant must be retried, it is not necessary for us to reach the other issues raised by Hansen. However, in an effort to guide the trial court, which may be faced with the same issues on remand, we make the following observations. Hansen contends that the trial court erred in instructing the jury, sua sponte and over defendant‘s objection, on withdrawal from the commission of a crime. Instruction No. 13 reads:
One who has aided and abetted the commission of a crime, with knowledge of the unlawful purpose of the perpetrator of a crime, may end his responsibility for the crime by notifying the other party or parties of whom he has knowledge of his intention to withdraw from the commission of the crime and by doing everything in his power to prevent its commission.
Hansen claims that this instruction is erroneous because it shifted the burden of proof to defendant to establish this affirmative defense.
It is the duty of the judge to instruct the jury on relevant law. Accordingly, the judge may, over the objection of the defendant‘s counsel, give any instruction that is in proper form, states the law correctly, and does not prejudice the defendant. State v. Piper, 113 Ariz. 390, 393, 555 P.2d 636, 639 (1976). However, all instructions are subject to the general and overreaching rule that the judge must make it clear to the jury that the defendant has “no particular burden of proof but [is] entitled to an acquittal if there [is] any basis in the evidence from either side sufficient to create a reasonable doubt that the defendant [is] guilty of the offense.” State v. Torres, 619 P.2d 694, 695 (Utah 1980). The instruction objected to does not expressly shift the burden of proof to the defendant on the question of withdrawal. But an instruction
Hansen also сlaims error in the instruction (No. 12) addressing accomplice liability, which stated in part:
When two or more persons, acting with the same common mental state, jointly engage in an undertaking which amounts to an unlawful act, each is chargeable with liability and responsibility for the acts of the other, and each is guilty of the offense committed to which he has contributed just as if he were the sole offender.
Hansen claims that this instruction denied him due process because it suggested that even if the jury believed Rocco alone killed Stewart, it could still find Hansen guilty of capital murder simply because he engaged in an “undertaking” with Rocco. In other words, the instruction allowed the jury to convict Hansen of first degrеe murder even if it found that he did not have the required knowing or intentional state of mind respecting Stewart‘s killing. The State counters that the paragraph, when read in context, did not confuse the jury. Specifically, the State refers to the third paragraph of instruction No. 12, which states:
In other words, you should find the defendant guilty of the offense if you find, beyond a reasonable doubt, either (a) that he directly committed the offense, or (b) that he intentionally or knowingly solicited, requested, commanded, encouraged, or intentionally aid[ed] another person to commit the offense.
Read as a whole, the instruction clearly required the jury to find that Hansen intentionally or knowingly aided Rocco in the offense. The parties do not dispute that Hansen was an active participant in the activities of that evening. The conflict in the evidence relates to the extent of defendant‘s activities and the degree of his responsibility—whether he only participated in the robbery or whether he also participated in the arson and intentionally or knowingly caused Stewart‘s death as a result. Under such circumstances, the giving of instruction No. 12 does not constitute error. State v. Jeppson, 546 P.2d 894 (Utah 1976). However, a better instruction would make it clear to the jury that, while Hansen may be criminally responsible for an act committed by Rocco, the degree of Hansen‘s responsibility is determined by his own mental state, not by the mental state оf Rocco. State v. Crick, 675 P.2d 527, 534 (Utah 1983).
We need not reach defendant‘s other claims of error. The conviction for first degree murder is reversed.
DURHAM, J., concurs.
STEWART, J., concurs in the result.
HALL, Chief Justice (concurring and dissenting):
I concur with the majority in holding that the “other than a party” language contained in the second degree felony-murder statute1 does not preclude prosecution thereunder of one who unintentionally causes the death of an innocent person, whether victim or bystander. However, I do not agree that it was error to refuse to instruct the jury on the offense of second degree felony-murder because I find no rational basis in the evidence to support a
Dеfendant was charged with first degree felony-murder, intentionally causing the death of another during the commission of arson.3 In contrast, second degree felony-murder is the unintentional killing of another not a party to the underlying felony.4
The evidence adduced at trial was sufficient to prove that defendant hog-tied the victim and caused his death by setting the house on fire. The reasonable inference to be drawn therefrom was that defendant intended to destroy the victim and the house by fire for the purpose of covering up the crimes of burglary and robbery that had already been consummated.
Defendant offered a different factual scenario. He testified that he hog-tied the victim merely to fаcilitate the acts of burglary and robbery. He denied having committed arson or in any way having participated with Rocco in the commission of that offense which was the cause of death. Thus, under defendant‘s own theory of the case, there was no rational basis in the evidence to convict defendant of second degree felony-murder.5 Had the jury believed defendant‘s version of the facts, it reasonably could have acquitted him of the offense of murder as charged because the victim died, not from defendant‘s acts of burglary and robbery or flight from the crime scene, but from Rocco‘s commission of arson in which only Rocco participated. However, had the jury so acquittеd defendant, no rational basis remained in the evidence to convict him of an unintentional killing which he caused.
I would affirm the conviction and judgment.
HOWE, Justice (concurring and dissenting):
I, too, concur with the majority in holding that the “other than a party” language contained in
In the first place, the defendant‘s requested instruction was incomplete and the court could have refused to have given it for that reason alone. Although it authorized the jury to find the defendant guilty of murder in the second degree if they found that Stewart‘s death resulted directly from the defendant‘s commission of aggravated robbery, robbery, aggravated burglary, or burglary, the instruction contained no definition or listing of the elements of those crimes. Nor did the defendant submit any other requested instruction which would have filled that void. Since the requested instruction was inadequate and the jury would have been left unguided as to what constituted the elements of those crimes, the trial court did not err in refusing it.
Secondly, an instruction was given on second degree murder and manslaughter arising out of arson. Therefore, the argument fails that the jury was nоt given alternatives and that they were “forced” to find the defendant guilty of first degree murder arising out of an arson.
Thirdly, and more basically, the defendant was not entitled to any instruction on second degree murder arising out of the commission of burglary or robbery. The latter crimes are completely unrelated in their elements to arson. I do not believe that State v. Baker, 671 P.2d 152 (Utah 1983), should be stretched so far as to make murder arising out of burglary or robbery, an included offense of murder arising out of arson. It is true, as pointed
In State v. Crick, 675 P.2d 527 (Utah 1983), we properly held that second degree murder and manslaughter were included offenses of first degree murder. The defendant here received instructions on those included offenses. However, I would not extend the rule of State v. Baker so far as to make killings committed under all other possible circumstances included offenses. A lesser included offense should be closely related to the crime charged as exemplified by State v. Baker, supra, where we held that criminal trespass was an included offense of burglary because only the mens rea differed.
The strongest reason advanced by the defendant as to why he should have been entitled tо his requested instruction is that it was his theory of the case. Our cases have uniformly held that a defendant is entitled to an instruction on his theory of the case, and trial courts have been admonished to accord defendants that right. Here, the defendant‘s basic theory was that he did not in any way participate in the arson. The jury was instructed that if they so found, they should acquit him. Additionally, while the prosecution charged the defendant with first degree murder, the trial court properly gave instructions on the included offenses of second degree murder and manslaughter arising out of an arson. Thus, the jury was given four choices. Neither State v. Baker, supra, dealing with lesser included offenses, nor the law affording criminal defendants an instruction on their theory of the case go so far as to give the defendant the right to an instruction on another possible crime which might have been charged, but which was not, and which is only tenuously related to the crime charged. Particularly is this true when the other possible crime is of the same degree as those on which instructions are given.
I cannot accept the defendant‘s argument that the jury was disposed to find him guilty of some crime because of his misconduct, and thus he was entitled to an instruction on second degree murder arising out of burglary or robbery simply to satisfy that disposition of the jury. The jury had wide discretion with the four options given them. Had the defendant‘s requested instruction been given, his counsel could well have arguеd to the jury that the prosecution presented insufficient evidence of burglary and robbery since the prosecution made no attempt to prove all the elements of those crimes, and therefore he was entitled to an acquittal. Or would the defendant have urged the jury to find him guilty of second degree murder under his requested instruction? If so, he could have accomplished that objective under the second degree murder instruction which was given.
UTAH DEPARTMENT OF BUSINESS REGULATION, DIVISION OF PUBLIC UTILITIES, Plaintiff, v. PUBLIC SERVICE COMMISSION OF UTAH; Brent H. Cameron, Chairman; James M. Byrne, Commissioner; Brian T. Stewart, Commissioner, Defendants.
No. 20824.
Supreme Court of Utah.
Nov. 6, 1986.