*1 exemption eligible for the land otherwise acreage that is not either devoted to area reason-
agriculture nonproductive or a maintaining for the of land
ably required devoted, precisely then we have created
so undertaking” the as- “staggering against by Jersey the New
sessor warned Township Kymer,
court Andover 404-05, N.J.Super. 356 A.2d say blithely It is no answer to applied
that the statute “need not be Persians.” That
law of the Medes and the hardly helpful guidance to the Com-
will apply The Commission must
mission. By as we construe it. our construc-
law Persians,
tion, we act as the Medes and the absurdly unadmin-
and we have created an
isterable law.
DURHAM, J., concurs with the dissenting
concurring opinion
ZIMMERMAN, J. Utah, Appellee, Plaintiff and
STATE of JAMES, Ray Defendant
Steven Appellant.
Nos.
Supreme Court Utah. 15, 1991.
Oct. *3 Barlow, Dam and
R. Paul Van Charlene City, appellee. plaintiff Lake Salt Gutke, Nathan D. Hult and W. Robert Logan, appellant. for defendant and HALL, Chief Justice: appeals his Ray Defendant Steven James of first murder for the conviction killing to life of his son and his sentence August imprisonment. Tuesday, On p.m., defen- approximately at 12:54 reported his infant son Steven dant grant upon defendant a new trial based missing parked from a car Roy James Drug newly of the Oseo discovered evidence. near the west entrance Logan, October parking lot in Utah. On remains hunters found the duck THE I. SUFFICIENCY OF EVIDENCE Roy as Steven
of an infant identified later known as the submerged an area James argues that the trial court Defendant County. Bear River Marina Cache judgment in denying erred his motions for notwithstanding the verdict and for record- arrested on October Defendant was ing category the next lower conviction of first mur- charged offense. These motions were based Roy James. der1 for the death Steven *4 alleged showing lack of an evidence aggravating circumstance which raised The knowing killing intentional and and were murder was de- charge degree to first sufficiency essentially challenges to the felony of a previous fendant’s conviction against They the evidence him. will there- to a involving the use or threat of violence of insufficient his con- fore be reviewed claims person, specifically, 1973 California imprisonment, reviewing for the crime of false evidence. a defendant’s claim viction felony. categorized there as a which is that he was convicted on insufficient evi- dence, of the this court must be mindful granted change of ven- Defendant was review, proper gives standard of publicity surround- ue due to the extensive great jury deference to verdicts. We have case, ing May through May previously stated: jury in he was tried before a proper ap- standard of review for District in Lake Third Judicial Court Salt sufficiency of County. peals He was convicted of murder in evi- life im- making the first and sentenced to dence is well established. prisonment. appeals Defendant his convic- as to whether there is suf- determination (1) following grounds: conviction, tion on the uphold ficient evidence to an process, right to coun- was denied due appellate does not sit as a second court sel, right impartial and the to a fair and fact finder. It is not the function of a jury by the and method of voir dire manner guilt reviewing court to determine or in- case; (2) jurors in prospective of the his judge credibility nocence or of wit- that the court should have sustained defen- nesses. The mere existence of conflict- objection dant’s to evidence of the 1973 evidence, therefore, ing does not warrant imprisonment of false California conviction Rather, the function of a re- reversal. aggravating enhancing as the circumstance viewing insuring is to court limited murder; his offense to that of first competent there is sufficient evidence as (3) granted that the court should have de- charge to each element of the enable judgment fendant’s motion for notwith- doubt, find, jury beyond a reasonable standing or motion to record the verdict defendant committed crime.2 category conviction for the next lower Therefore, reviewing a when claim due evidence offense to lack substantial evidence, insufficiency of the this court showing knowing killing; an intentional or the evidence and all reasonable infer views attorneys that the denial of access to his may ences that be drawn therefrom County jail while in the Lake violated Salt light jury It most favorable to the verdict. right right and his of access to counsel in this courts; (5) only is when the evidence as viewed that the court erred light sufficiently or inher inconclusive refusing give certain instructions evidence; (6) ently improbable that a must have regarding circumstantial refusing entertained a doubt as to the the trial court erred reasonable Warden, 1. Utah Code Ann. 76-5-202. Prior to the trial 2. State v. § case, stipulated 1991) (footnotes omitted). of this the State that it would James, penalty against not seek the death but imprisonment. would seek life him care of the proper questioned to over- she about his guilt that it is defendant’s in- that he told her after these the conviction.3 child and turn worried too much about stances that she following presented evidence was had ar- the child. She and defendant also trial. support of defendant’s conviction at guments police the course of the about mother, DeLeon, testi- The child’s Victoria investigation. angry He with her became morning the child’s fied that on the police she went to the station when early with her disappearance, James awoke questioning one afternoon. He also be- for her ride to work so that and watched baby’s angry provided she came when spend additional time with the she could baby’s footprints birth certificate with the baby. testified that he had never be- She it, baby’s Day a Father’s card with the helped baby her with the the morn- fore handprints, photographs baby arrived, ing. her ride she left the When help Defendant police find the child. in defendant’s care and went to work. child give things told her not to these ap- approximately p.m., she was At police. testified that defendant was She police proached at work officer jealous baby. Defendant’s unem- baby missing. The offi- that her told money prob- ployment and the attendant station, police where she cer took her to the her and lems caused dissension between *5 him defendant and asked approached expenses The associated with defendant. answered, baby was. Defendant where the money prob- baby compounded the these purpose.” sorry. “I I didn’t do it on am had lems. She also testified that defendant left the told her that he had Defendant drugs prior baby’s to the birth and used into Oseo baby in the car when he went drugs gone City Lake once in ten had Salt Drug and that when he returned birth, did not minutes, baby gone. baby’s the but that she was before drugs if used after the know defendant she had DeLeon testified that Victoria child born. was defendant’s care of concerned about been there were baby. Logan City She testified that Vaughan Mike of the Officer in- baby when the was concerning investigation several instances Police testified custody. The jured while defendant’s disappearance and the later of the child’s in the baby not hurt when he was leading was investigation of defendant as the babysitters. testified custody of other She Vaughan was suspect in the case. Officer baby gave the of instances when defendant respond scene of the the first bath, baby defendant took the a cold when arriving p.m. at 12:57 disappearance, child’s wrap, garage cold without a when into the Vaughan’s questioning, defen- At Officer upper a red mark on the child’s she found the doors of dant said that he had locked by the lip defendant said was caused were down the car but that the windows bottle, child fell from the baby’s when the point, defendant At that for ventilation. to the floor of the car while front seat through open of the reached window infant driving because the defendant was that door. door and unlocked passenger carrier, safety in his when was not dog, baby car seat on the Inside was the a he a on his head while child received bruise facing the driver’s of the car front seat defendant, being when she was carried side, After the door baby and a bottle. marks on the child’s neck which found red unlocked, opened it. The the officer was caused told her were defendant running dog, who had been around shirt, finger marks baby’s when she found car, immediately jumped out. Officer cage, told baby’s rib when defendant anything else defendant if Vaughan asked baby opening dropped the while her that he responded that missing; defendant was can, heating put the a and when defendant Vaughan nothing was. Defendant hot instead of warm. pad under the child on residence, which to the James then went locked, baby. They for the to look that de- was DeLeon further testified Victoria place did not find the around the but angry with her when looked fendant often became 3. Id. wide-ranging
baby anything unusual. Defendant did evidence showed baby by search for the en- anything missing or out intensive law not state that was forcement, Logan both area and na- home. place at the Investigation by tionwide. law enforce- 26, police evening August On the purchase ment disclosed that defendant’s concerning questioned defendant Drug completed p.m. at Oseo was at 12:46 day develop in an effort to events police and the call to was at received 12:54 disappearance. child’s leads p.m. police able to find witness- were gave police description of the He Drug es who had been in the area of Oseo baby day and described his activities during the relevant time frame. None of baby. morning with the On the anyone these witnesses saw take the child at disappearance, child’s defendant arose from defendant’s car. None of the wit- DeLeon before she left for 5:20 a.m. with car, nesses looked inside the and none no- got up Defendant stated that he work. baby Only ticed whether a was in the car. early to for her ride so that she could look anyone one witness saw near defendant’s spend baby. more time with the Defendant during car the relevant time frame. Mar- baby went back to bed with the after De- Ferguson driving Drug than near Oseo left for work and awoke about 8 or Leon p.m. August between 12:30and 12:45 a.m., put 8:30 a.m. At about 9 parked She saw defendant’s car at the curb baby on the couch and fixed some wa- stopped stop near the store. She was at a damage ter in the shower. When he ran North, sign, waiting to cross 500 when she putty, go DAP out of he decided girl long approach saw blond hair time, Logan. At store about 10:30 girl defendant’s car. The walked across a.m., baby asleep, so defendant left open the street and tried to the driver’s dog him and their at home while went to ap- door of defendant’s The door Cadillac. *6 the store. Defendant returned about fif- parently Ferguson was locked. Mrs. could baby teen minutes later and found the still poodle running see defendant’s back and asleep. Defendant showered and relaxed seat; forth across the front she assumed by listening to the stereo until about noon. girl trying dog the was to let the out be- He decided at this time to run other er- day. Ferguson of the heat cause Mrs. rands. baby did not see whether there in- was changed baby car; Defendant fed and however, and the side defendant’s if there was family baby, dog running started the Cadillac at 12:40-12:45 a the was over it. p.m. picked up baby He then the and the Witnesses also testified de- dog placed baby and the in his carrier in fendant’s in activities while he was the passenger the side of the car. He drove to Oseo store. One witness who was in the parking Drug lot of the Oseo but could not checkout line behind defendant testified shade, parking space in find a the so he appeared that defendant nervous as he pulled to the west side of the store under purchase. made his that her She testified trees, rolled the some windows down about husband, highway patrolman, a uniformed inches, Drug. six and went into Oseo De- in was with her the checkout line. Defen- fendant stated that he left the doors un- any attempt dant did not make to solicit the locked. He came out of store about help from the or her witness husband after five to ten minutes later. He walked to the store, although they he left the were trav- door, opened car and the driver’s at which eling patrol in a car. marked . baby gone. time he noticed that the was they witnesses testified Two saw pay phone Drug He ran the at Oseo and wrapped in marsh bundle several miles Logan City telephoned the Police. witness, hunter, Logan. outside One Vaughan Officer also testified about the opened the that it bundle discovered Logan efforts of the Police to locate the contained human remains. He contacted missing investigative child and police. body wrapped about The was in a cover, cord, findings eventually police which led the electrical mattress tied with suspect responsible party. weighted It defendant as with rocks. was identified hair overheard a conversation between James prints, footprints, and palm by the testimony Lippencott. those of His was as fol- similar to samples, which were son, clothing lows: defendant’s baby was what the
body was similar to Q. they talk- you Do recall what were this, From disappeared. he wearing when ing about? body that of that the was it was concluded baby, what A. About the death missing child. James going on in court. performed examiner who The medical Q. say regards Mr. in What did James decompo- the infant stated that autopsy on baby? death of the a cause of made it difficult to ascribe sition it, fact, A. he said he had done as a homi- The death was certified death. Jon. body due to the manner which cide Q. present during this you Were also — disposed The examin- wrapped and of. was there also a con- same conversation sharp or blunt er found no evidence of Ma- concerning the Bear River versation fractures of bones or injuries or of forced rina, Valley Ma- also known as the View not rule out skull. The examiner could rina, on the Bear River? suffocation, drowning, shaking, death He had out there A. Yes. said he been SIDS, any not ascribe of these as but could day before. the cause. Q. day before— crime lab Dr. Kent Glanville of Utah happened. A. The incident had tests on the performed the identification Q. baby disappeared? had the material of the infant and tests on A. Yes. the child was mattress cover contends that the above evi- Defendant already had determined wrapped. Police support his dence insufficient to convic- the mattress cover was similar Specifically, murder. Logan. tion for first used defendant to move to those landlord, Lawhan, prove argues that the evidence does not Don defendant’s former knowing as one he had the mattress cover the element of an intentional identified the move. Lawhan lent to defendant for of first de- killing required conviction from a hole identified the mattress cover Ann. 76-1-501 gree murder. Utah Code § paint splatters and from fabric a criminal requires that each element of *7 samples taken from this mattress it. Paint proven beyond a reasonable offense be walls paint taken from the cover matched case, requires In a homicide this doubt.4 in in which defendant had lived of the home occurred, that it oc- a death proof that Preston, Idaho, baby’s bed- and from the means, that the defen- by criminal curred Logan. After the apartment in room in the crime, and responsible for the dant was belonging cover was identified as mattress requisite acted with the that the defendant defendant, charged he was arrested he the crime with which criminal intent for the murder of his son. with require- of these charged. The first two ments, dead and proof that the victim is arrest, housed defendant was After by criminal the victim died proof that County jail pending trial. in the Cache corpus means, to as the are often referred there, cell Ronald he shared his with While case, proof of the vic- In this delicti. Peterson, Lippencott, and Travis Good- Jon child’s complete when the was tim’s death trial, Ronald Pe- the State called win. At being found body identified after was terson, the Utah State then an inmate at seri- does not Bear River. Defendant testified that sometime Prison. Peterson body found ously contest that December November and between (2) part "element used in this the words As Ann. 76-1-501 states: § 4. Utah Code mean: of the offense” proceeding is A defendant in a criminal circumstances, conduct, (a) attendant each element presumed to be innocent until proscribed, prohibited, of conduct or results charged against proved him is the offense offense; of the in the definition or forbidden beyond In absence of a reasonable doubt. required. (b) culpable mental state acquitted. proof, be the defendant shall such argues later, days river was that of his son. victim was found five badly He portion, by decomposed. autopsy An the second or death criminal revealed that the means, soft tissue proven. completely has not been over his face was
absent, as were most of the bones of the
proving
jaw.
jaw
the cause
death
The upper
fragment-
lower
was
means,
accident,
by
by
ed,
criminal
was
not
the middle
right upper
half of the
cheek
may
missing,
fragments
State
use circumstantial evidence re was
found at-
lating
body
the condition
tached
of the
when it
cord strands to the rest of the
necessary
It is
pathologist
was found.
for the
facial bones. The
could not
determined,
give
specific
actual cause of death to
cause of death. He could
corpus
say
courts
held that
several
have
that the victim’s facial structure was
sufficiently proven
subjected
causing
delicti was
where no
to force. A blow
damage
of death
established. For exam
cause
was
found on the face would cause
Petree,5
ple, in State v.
the victim was last
death. There was evidence that the river
being dropped
body
seen with the defendant
off
in which the
of the victim was found
Later,
logs
at the defendant’s house.
when the
carried
and other debris within its
parents
victim’s
if
asked the defendant
she waters.10 The court held that there was
there,
was
he said that she had left with a
sufficient evidence of criminal means as
missing
blonde man. The victim remained
support
cause of the victim’s death to
half,
year
for a
body
corpus
and a
when her
was
delicti and admitted the out-of-
clearly
found
cellar in a
carrot
unnatu
court statements.11
position.
ral
Law enforcement officials
In addition to evidence from which
experts
corpse
who examined the
con
proof
corpus
may
of the
delicti
be made in
cluded that she must have been dead when
case,
the evidence is also sufficient to
placed there.6 The court held that there
support a finding that defendant bore re
was sufficient evidence to establish the cor
sponsibility for the death. The mattress
pus delicti and that the circumstantial evi
cover in which
body
the infant’s
relating
position
dence
and location
wrapped
positively
identified as an
body supported
an inference of crim
possession.
item that was in defendant’s
activity
inal
and an intent to hide the evi
Don Lawhan identified the mattress cover
dence of the crime.7
as one owned
him and loaned to defen
Factually
present
similar to the
case is
dant and Victoria DeLeon.
samples
Paint
Thomas,
Thomas.8
the defen- on the mattress
paint
cover matched
dant was convicted manslaughter.
She
Logan apartment.
defendant’s
Defendant
appealed, claiming
proof
that there was no
did not claim that this mattress cover was
corpus
support
delicti
entry
along
taken from the car
with the kid
into evidence of her admissions and
napped
gave
out-of-
child.
explanation
He
no
*8
court statements.9 The fact of
presence
the death of
of the mattress cover around
proven,
victim
body.
was
but the defendant
This mattress cover was in de
contested that
there v/as not sufficient
possession
fendant's
and control at
proof of
agency
criminal
in the death. The
time
baby’s disappearance
and is
by
victim was last seen
August
his wife on
inconsistent
kidnapping
with defendant’s
18, 1951, at
fishing
about noon. He
theory.
went
The
was entitled to determine
defendant,
husband,
with the
her
and her
that defendant used
wrap
the cover to
husband’s
brother.
victim had a
prior
half
child
to concealing the bundle in the
pint
whiskey
bottle
which was consumed marina waters. This evidence of conceal
by the four of them.
body
of the ment was
sufficient for the
to find
(Utah 1983).
5.
6. Id. at 444. 10. Id. at 724-26. 7. Id. Id. at 726. 484, (1952).
8. 222 S.C.
789
responsible
placing ply
guilt
flight
is
or
was
for
evidence of
conceal-
that defendant
However,
containing
into ment of
many
cover
the child
the crime.14
mattress
that
flight
and to infer
defendant was
cases hold that
water
well-reasoned
is
responsible
child’s
premeditation
for the
death.12
not evidence of
or intent.
Flight or
guilty
concealment shows the
con-
argues
if
Defendant next
that even
science of the accused as a result of the
prove
the evidence is sufficient
that
crime
It
committed.
does not
show
child,
disposed
there is
insufficient
prior
state mind
to the criminal act or
support
evidence of his intent
a convic
example,
event. For
while
court held
argues
tion of murder. Defendant
in State v. Bales15 that an
instruction
in this
circumstantial evidence
case does
flight
may
of a crime
concealment
intentionally
knowingly
show that he
given
guilt,
supply an inference
it also
son,
required
killed
for a
as
conviction
flight
held that an instruction that
consti-
degree
of first
murder.
It is well estab
guilt
tuted an
admission
errone-
proven by
lished
intent can be
circum
ous.16
reasoned in
The court
Bales that
Indeed,
stantial evidence.
a confes
unless
just
flight
because
was a circumstance es-
is
by
sion made
the defendant
tablishing
guilt,
an inference of
that infer-
intent,
is
or unless the court
somehow able
equated
ence should not be
with an admis-
open
the mind of the defendant to exam
guilt.17 Similarly, although flight
sion of
motivations,
ine his
intent is
necessity
may give
or concealment
rise to an infer-
proven by circumstantial evidence.
ence of a guilty conscience and therefore
remains, however,
The question
whether
guilt,
an
may
inference of
inference
produced
circumstantial evidence
not be built
to create an inference of
the State is sufficient to establish that de-
the defendant’s intent before the act was
intentionally or knowingly
fendant
killed
committed.18
his son.
cases in
Several
Utah have re-
The case
argued
v. Foster19
illustra-
viewed claims where it was
State
tive of
flight
circumstantial evidence was
the distinction between
as
not sufficient
prove
guilt
flight
evidence of
the defendant’s intent.13 One of
evidence of
traditionally
sup-
prosecuted
circumstances
used to
intent to
Foster
kill.
573,
Bales,
Wilson,
66,
(evidence
(Utah
(Utah 1977)
12. See State v.
675 P.2d
574-75
565 P.2d
68
1983);
1030,
39,
Crawford,
State v.
59 Utah
201 P.
sufficient to sustain conviction for distribution
(1921);
Quila,
1033
see also State v.
heroin);
Wardle,
764,
108
v.
P.2d
State
525,
488,
Ariz.
P.2d
(Utah 1977) (evidence sufficient to sustain con-
murder);
degree
viction
Romero,
for second
State
See,
Pierce,
780,
e.g.,
State v.
722 P.2d
216,
(Utah 1976) (evi-
554 P.2d
(Utah
(evidence
1986)
sufficient to show intent
dence sufficient to sustain convictions for bur-
property);
to retain and receive stolen
State v.
glary
theft);
Kelsey,
State v.
532 P.2d
Dumas,
(Utah 1986) (evi-
721 P.2d
504-05
(Utah 1975) (evidence
1004-05
sufficient to sus-
prove
dence
tempted
intent
sufficient
to kill in at-
killing
tain
conviction
second
murder
case);
Isaacson,
murder
State
Schad,
child);
three-year-old
State v.
24 Utah
(Utah 1985) (sufficient
557-58
evi-
(evidence
2d
suffi-
uphold
aggravated
dence
conviction for
bur-
Nebeker,
murder).
glary);
support
cient to
second
and hid for about two
until he re-
ceived assurance from another
that he
malice,
being
pre-
There
no
evidence
if
would not be mobbed
he turned himself
meditation, deliberation,
kill,
intention to
in.20 Foster admitted at trial that he was
killing showing
an abandoned and ma-
murder,
guilty
making
of second
lignant heart, it was error to submit to
jury
question
the sole issue for the
jury
defining
instructions
murder
whether there was sufficient evidence to
whereby they
and forms of verdict
could
prove that the murder was committed with
guilty
find the defendant
of murder.23
aforethought.
malice
The court held that
jury
an instruction to the
it could
cases,
Consistent with these
we hold
flight
consider the
of Foster as evidence of
flight
that evidence of
or concealment of a
erroneous,
guilt
given
his
the facts of
support
crime does not
an inference of
the case. The court reasoned:
part
intentional conduct on the
of the ac
Therefore,
cused.
other evidence of the
entirely
why
are
unable to see
[W]e
present
defendant’s intent must be
jury
attention of the
should have been
support
jury’s
record to
verdict.
specially
prisoner’s flight
called to the
in
court,
charge
and told that this
cases,
majority
evidence of in-
they
was a circumstance that
must con-
generally supplied by
tent is
evidence of
sider, in connection with the other evi-
injury by
which the victim died or of
dence, making
up their verdict. We
the act which caused the death. The infer-
entirely fail to see how it shows or tend-
consequences
ence is made that the natural
prove
premedita-
ed to
deliberation and
of that act were intended to occur. These
part
prisoner,
tion on the
and that
types of cases turn on the nature of the
only
was the
matter the
had to
injury leading to death and the relative
consider, as it had been admitted that the
level of carelessness or intent that can be
prisoner
guilty
murder
inferred therefrom.
degree.21
second
example,
For
Bolsinger,24
Evidence of elaborate efforts to conceal defendant was convicted of murder as a
investigation
a crime and forestall
have
result of an incident which occurred while
also been held not to constitute evidence of
engaged
he and the
were
victim
in consen
intent to kill the
victim.
Stafford
sual sexual intercourse. The evidence indi
People,22
Supreme
the Colorado
re-
Court
cated that both the defendant
vic
versed a conviction for first
murder
drunk,
very
tim were
that the cord of the
an
given allowing
where
instruction was
placed
victim’s clock radio was
her
around
to infer an intent to kill based
neck,
pulled
and that
lightly
upon the defendant’s efforts to conceal his
the cord for “a few seconds.” The victim
subsequent
wife’s death and
died as
result
being placed
of the cord’s
flight.
court
That
stated:
around her neck. There was no evidence
The fact
struggle
defendant buried the
between the two or that defen
body, repeatedly
lied
angry
the dis- dant was
with the victim or intended
Id.
22. 154 Colo. P.2d 774 388
791
People
Drumheller,
v.
appeal,
court re
Drumheller.30
her.25 On
to harm
Supreme
the Illinois
Court stated:
to man
conviction from murder
duced his
the lack of evidence that
slaughter, due to
directly prove
necessary
It is
to
not
the cord
done with
pulling
his
act
kill,
had an intent to
that [the defendant]
for murder.26 The
requisite
intent
voluntarily
only
willingly
that
jury could not reason
court held that the
act,
tendency
committed an
the natural
ably
of an intentional
have found evidence
destroy
another’s
was to
life.
killing or that
the circum
knowing
In such
the intent can be im-
instances
depraved indifference
stances indicated a
plied
the character
or inferred from
merely pointed to a
killing. The evidence
Further,
the act.
the fact that defen-
disregard of the risk of the vic
reckless
dant,
occasions,
previous
three
inflict-
tim’s death.27
child,
injuries upon
ed
refutes the
suggestion
his actions were acciden-
upheld
v.
a
This court
State Watts28
tal or
His act formed sufficient
reckless.
degree murder of a
conviction for second
beyond
for
basis
to conclude
where the
14-month-old child
evidence
reasonable
the defendant
doubt
had
numer-
showed that the child
sustained
knew or
have known that his con-
should
side,
to
ous bruises to his left
three bruises
strong probabili-
duct ... would create
depressed
skull
scalp, a
fracture above
bodily harm.31
ty
great
of death or
left ear which resulted from
behind his
object
an
by
the corner of
consistent
blow
The above-cited cases based
infer-
to
with
head used
the shower
bathe
by
ence of intent
the acts committed
child,
perforation
and a
small intes-
very
From the
nature of
defendants.
resulting peritonitis
by
tine
acts,
caused
these
could deter-
a reasonable
object in
from an
the area of
severe blow
mine that
committed with the
the acts were
navel, again
near his
charged.
an external bruise
crime
requisite intent for the
the shower head.29 In rul-
cases and
consistent with
distinction
the above
between
ing
the evidence was sufficient
to
instant case
Defendant James has
is clear.
part
show
on the
defendant
confessed to
act which caused
death
an intent
no
son,
child,
quoted
injury causing
to
the court
from of his
and no act
kill the
Tanner,
539,
murder);
degree
P.2d
25.
v.
675
Id at 1215-17.
State
(Utah 1983) (evidence that child suffered
550-51
J.,
Durham,
(Howe,
syndrome
died of
joined by
from
child
sub-
26.
battered
Id. at 1219-21
J.,
J.),
to head
(Stewart,
dural
caused
blow
while
concurring
hematoma
at 1226
in the re-
support
sult).
she was in defendant's care sufficient
Maestas,
manslaughter);
v.
State
conviction for
903,
(Utah 1982) (evidence
J.,
Durham,
(Howe,
P.2d
joined
652
905-07
Id. at 1219-21
J.,
pointed gun
J.),
car window and
(Stewart,
out
shot
concurring
re-
at 1226
support
sult).
in direction
officer sufficient
con
murder);
degree
attempted
viction for
first
51,
79,
Mendell,
1983).
(Utah
Ariz.
523 P.2d
82-83
State
111
28.
death can be determined from
cases of child
such as the one
us,
medical examiner.
specific
before
evidence of
instances
of defendant’s treatment of the child is
However,
type of case arises
another
merely gener-
relevant to
establish
of the cause of
where there is no evidence
disposition
al
for violence or ill-will to-
no evidence of the victim’s
death
often
children,
wards all
but
to
establish
body.
infer intent from the
These cases
specific pattern
by
of behavior
the defen-
death,
includ-
overall circumstances
child,
particular
dant toward one
the vic-
ing
doing away
for
the defendant’s motive
pattern
by
tim .... This
of behavior
plan
the victim and evidence of a
to
with
establishing
defendant is relevant to
ab-
dispose
kill or
of the victim.32
..., oppor-
sence of accident or mistake
type
presented
case
Such is the
tunity, knowledge
identity
prosecution presented compe
here. The
person responsible
defendant as the
tent evidence from which the
could
charged.36
the crime
prosecution presented
infer intent. The
ev
past
Similarly,
idence of
abuse of the child at the
pri-
evidence was introduced of
defendant,
hands of
evidence of defen
injuries
Roy
to Steven
James while he
jealousy
dant’s
this,
of the child and the atten was in the
care
defendant. From
mother,
tion the child received from his
could infer that defendant was not
evidence of friction between defendant and
caring in his attitude toward the child and
by
the mother caused
the child and their
viewed the child as an
obstacle
opinions
different
of how he should be
happiness
Victoria DeLeon.
with
This
for,
prob
cared
and evidence of financial
reasonably
by
could
have been viewed
lems
were caused or contributed
to jury as sufficient evidence of a motive to
presence
the birth and
of the child.
away
do
with the child and used to infer
jealousy
past
Evidence of
of a child and of
defendant’s intent to do so.
proving
abuse is relevant in
a defendant’s
pattern of conduct toward the child and the
In addition to evidence of a motive
child,
absence of accident or mistake in the inci
kill
prosecution presented
dent which caused the child’s
day prior
death.33
evidence that on the
to the child’s
Tanner,34 testimony
disappearance,
State v.
included ex
defendant had been
pert opinion regarding evidence of
body
battered marina where the
was found. This
syndrome.
evidence,
child
The
objected
combined with defendant’s un
testimony, claiming
it
affording
was evi usual behavior in
DeLeon the
prior
dence of
opportunity
spend
bad acts
violation of for
additional time with
mer Utah Rule of Evidence 55. The court
her
morning
disappear
child on the
of his
ance,
held that
syn
gives
evidence of battered child
rise to the inference that defen
competent.
directly
drome is
It does not
plan
dispose
dant had formulated a
culpability
particu
indicate bad acts or
prior
child
the time
disap
the child
pattern
lar
peared.
defendant. The
apparent
abuse
care
which the
relevant to show the intent of the
body
disposed
act which
of and the elaborate
caused the death and is relevant
explanation
to show efforts to create an
for the
injured
intentionally
that someone
the child
contacting
police
child’s absence
accidentally.35
rather
than
setting up
kidnapping
The Tanner
story also aid in
supporting
court stated:
disappear-
an inference
32. People
frejcyzk,
252-53
L.Ed.2d 47
227,
New Zealand
v.
(1959),
953,
Rptr.
Scott,
98 S.Ct.
275,
(Ct.Crim.App.);
cert.
283-87
Q.B.
(1961);
Cal.App.2d
denied,
Manson,
1582,
L.Rep.
tion was deny found a motion for a trial a could not have to new focuses reasonable guilty beyond a reasonable whether that denial constitutes an defendant presented Trial prosecution judges giv- evidence abuse discretion.37 are doubt. The range a possible a motive of defendant for dis- en wide discretion determin- plan by ing newly whether posing of the child and of a defen- discovered evidence or carry The evi- trial dant to out his intentions. errors occurred within a merit plan dispose grant the child was a dence of a to of new trial. We assume that person proper trial court exercised
sufficient to enable a reasonable discretion killed intentionally clearly unless the record conclude defendant shows con- grant trary.38 Additionally, The refusal to the child. trial court’s order constitute trial, judgment notwithstanding grounds the verdict for a new evidence must was therefore not in error. meet three criteria:
(1) It not must be such could with diligence have reasonable been discover- II. MOTION FOR NEW TRIAL trial; (2) produced ed and it at must two for a new Defendant made motions cumulative; merely not be it must be newly trial on the basis of discovered evi- result prob- such as to render a different motion, In his ob- dence. first defendant able on the retrial of the case.39 pictures tained of the driver’s side door judge The trial ruled that evidence position. the door in the unlocked De- position the car lock would have pictures fendant claimed that the constitut- prior been available defendant trial newly ed discovered evidence because the through diligent investigation. reasonably kid- automobile from which the child was Therefore, found judge first napped was sold to another individual who Additionally, criterion had not met. been The was not located before trial. car was judge the trial found that the evidence of trial, pictures after and the ob- located insignificant the car door locks was tained from the new owner confirmed de- outcome of the trial and that third testimony fendant’s door un- not met. criterion had been court posi- locked unless the lock was in a lever denying not its de did abuse discretion tion level with the car door. grounds. motion on those fendant’s piece second of evidence was ob- Lisner, judge at tained from Kenneth an inmate The trial denied defendant’s Prison, on his the Utah State who stated that second motion a new trial based Peterson, key findings for the that none the three criteria for Ronald witness However, prosecution, him had new trial had met. told that Peterson been testimony perjury his at- stands fabricated at trial in an evidence of Peterson’s footing presented tempt get than that better treatment from different not evidence was rea State at his own criminal trial. Peterson first motion. This sonably Peterson testified at trial that overheard defen- discoverable before trial. prisoner, Lip- spoke Lisner apparently dant to another John to Kenneth con confess cerning police pencott, Lippencott that he killed his son. his fabrications about He brought found not be weeks before trial. then told Lis- was not and could two go through state Mo- that he would not with the into the for defendant’s trial. ner brought only new lie at trial. Lisner discovered that tions for trial were based Williams, Gellatly, Utah 37. State v. 39. State v. 2d 1985). Carlsen, Id.; Logan City v. (Utah Ct.App.1990). perjury by in fact
Peterson had committed elusion trial meets the first criterion newly watching accounts of the trial after discovered evidence. news already Peterson had testified. Lisner did The evidence also meets the contact attempt *13 criterion newly second for discovered evi attorneys the conversation until judge dence. The trial found that Lisner’s 1989, trial, June the sometime in after testimony would merely be cumulative of placed when in the same cell defendant testimony James’s that he had never had a Therefore, block with Lisner. Lisner was Lippencott. conversation with The trial perjury unaware Peterson’s until near of judge based also his denial the motion trial, the conclusion testimony fact the the to be knowledge was not aware Lisner’s until presented by merely Lisner went the well after trial. the credibility of present Peterson and did not Although judge the trial that this found new evidence of defendant’s innocence. prior evidence could have been discovered is true grant While it that the refusal to through diligence, to trial reasonable coun- merely new trial based on evidence of cred represented hearing sel at the the mo- ibility generally on will not be overturned on during period tion appeal,40 of his incarcera- the credibility evidence went be tion, placed yond refuting Peterson was cell testimony the same of Peterson fifty or in direct contact with between and and independent established evidence that prisoners, plus one hundred deliberately perjury numerous he had committed in an guards prison and other Accord- attempt process officials. subvert the trial to his affidavit, ing to Lisner’s the conversations own ends. This not merely evidence was place took credibility Peterson in the middle of merely evidence and not cu April 1989, approximately testimony two weeks be- of James’s mulative that he had Therefore, fore trial of defendant’s case. Lippencott. not confessed to Lisner’s testi counsel, in defense order to this acquire mony disputed concerned a fact that arose trial, prior James’s, information have had testimony would between Peterson’s to obtain the names of and be- testimony interview whether not Peterson’s con fifty prisoners tween and one hundred dur- cerning the overheard confession was ing period prior two-week trial. The testimony truthful. of Lisner would obtaining Given the difficulties inherent in provide that of corroborate James and inde visitation interview privileges pendent at the evidence of his version of the Prison, Utah State this be an seems to facts. Evidence from party a neutral third task. It merely insurmountable is unreasonable to is not a criminal cumulative of de expect diligence require that due testimony.41 would fendant’s It is of a different many persons defendant to interview so kind and nature than defendant’s state ments, evidence of Peterson’s conversations with it certainly have a could differ period them in such a short There- quality eyes jurors time. ent who fore, produced by we hold that the credibility evidence assess the witnesses. Lisner which was discovered after the con- merely This evidence was not cumulative Worthen, 839, result, granted. State v. 765 P.2d a new trial should be While 1988). granting refusing of the motion lies in court, the sound discretion where there See, 182, e.g., Templin, State v. 805 P.2d grave suspicion justice may is a have (Utah 1990); Duncan, 449, 102 Utah enlighten- miscarried because of the lack (1942); Ames, P.2d State v. 112 Idaho point on a ment vital which new evidence will (App.1986); apparently supply, and the other elements at- Chavez, 87 N.M. obtaining on tendant a new trial on the Duncan, court this stated: ground newly discovered evidence are testimony "Where disinterested vital present, it would be an abuse of sound discre- scant, point very newly in a case discovered grant tion same.” testimony point appearing from affi- Duncan, (quoting 132 P.2d at Jensen v. Lo- support of davits in the motion new trial for a gan (1936)). City, 89 Utah reliable, apparently appears to be likely ... and it change that such evidence would III. MAY OTHER ISSUES WHICH independent which cor- evidence but was ARISE ON REMAND statements. roborated defendant’s determined that the judge also fully appeal that are briefed on Issues if not have been different result would likely presented on remand and are presented been testimony had Lisner’s Be- should be this court.42 addressed denying defen jury. decision case in disposition cause of our trial, judge for new dant’s motion trial, remanding for new we will address criterion had not been that the third stated by defendant which are those issues raised “overwhelming evidence of met due likely upon retrial this matter. to recur re guilt.” disagree. Our defendant’s We *14 presented in the case view of the evidence A. Prior as an Conviction an intentional or Defendant’s that evidence of shows Increasing Aggravating Factor Con- sufficient, is not killing, knowing while Degree Murder viction to First overwhelming compelling. or the Without kill which plan a the child evidence of is Defendant’s second contention that testimony, Peterson’s can be derived from 76-5-202(l)(h) Utah Ann. was incor- Code § knowing of an intentional or the evidence the rectly applied to his case and that sub- susceptible differing killing is scant a vagueness section void viola- is for testimony interpretations. went Peterson’s protection right equal tion against defen to the of the evidence heart for first de- laws. Defendant’s conviction at that defendant was the dant. Evidence gree upon aggravat- murder was based baby’s disappearance prior to his marina (h) ing forth in circumstance set subsection to kill plan had a and therefore formulated That homicide statute.43 subsec- Utah’s finding defen crucial to that child was possible aggra- tion lists as one of several requisite intent to be convict dant had the vating factors testimo ed of murder. Without Peterson’s (h) previously the actor was convicted evidence, ny, established this it is or of a first or second murder a have probable that reasonable would involving use or threat of vio- felony a as to whether de had reasonable doubt person. purpose For to a lence requisite had the intent to commit fendant in offense committed paragraph an murder. jurisdiction, which if committed another its of a The trial court based denial new punishable first or in would be as Utah the three upon his determination that murder, is deemed first or second Gellatly in had criteria outlined degree murder.44 second met. Our review of these criteria not been in apply- relied prior conviction they been met and that indicates that have (h) a ing to defendant is trial. There- subsection is entitled to new in for fore, the state California discretion in conviction the trial court abused its This conviction is a imprisonment. false denying defendant’s motion based evi- under section 236 of falsely. felony in California dence Peterson testified We that Code.45 Defendant Penal reverse and remand this case for California therefore originally kidnapping newly charged include the a new trial which will and, plead- plea bargain, the result of evidence. discovered liberty Ryder, personal of another." Section 237 Hiltsley J., 1987) (Zimmerman, concurring); penalty provides for Anderson the California Code Comm’rs, County County imprisonment v. Utah Bd. imprisonment: "False is false (Utah 1979); R.App. P. Utah by exceeding punishable one thousand fine not ($1,000), by imprisonment or dollars Ann. 76-5-202. § 43. Utah Code by year, jail one county not more than both. imprisonment If false be effected vio- such Id. menace, deceit, lence, pun- shall be fraud or it California Penal Code 45. Section prison.” by imprisonment state ishable DEFINED. states: "FALSE IMPRISONMENT imprisonment is the violation of False unlawful Therefore, guilty charge imprison- of false ed murder in Utah. statute charge spe- vagueness.48 ment. The to which defendant not void for cifically pleaded stated “wilful- had also claims Defendant feloniously ly, unlawfully and violate[d] right equal is a statute violation of his Cates, liberty personal of Sharon Elizabeth protection of the applica laws because its violence, effected menace and force.” depends tion on what classification another year Defendant received a sentence one may give state within crimes committed suspended, prison, which was and he jurisdiction. Equal protection their re probation years. placed three crimes, quires classifying legis argues charge impris- He false lature create classifications which bear onment, felony in which was a California relationship govern reasonable valid committed, only would where it was objective reasonably mental and which fur detention, B classified as unlawful a class “ objective.49 ther that ‘A classification misdemeanor, in Utah.46 having some reasonable basis does not of against merely fend that clause it because judge’s The trial denial of defen nicety, is not made with mathematical dant’s motion exclude evidence of the inequality.’ *15 practice because in it in results some prior California for purposes conviction of 0 ”5 enhancing to his conviction one of first (h) designing In of subsection the first degree upon murder was judge’s based the statute, degree legislature murder the has interpretation degree of Utah’s first mur met this burden. The statute as allows appropriate der statute. The standard of aggravating all felony circumstances con- interpretation for a review trial court’s of crimes, victions for violent whether com- statutory law is of correction error.47 in or in mitted Utah another The state. application ag The the purpose of statute’s aggravating behind the circum- gravating clearly applies circumstances to requirement degree stances in Utah’s first felony all convictions a distinguish where defendant murder is to statute between charged using has been with types violence or legisla- those of murders the which face, portion threat. On its the the punished of ture feels should be more severe- charge statute that deals with a ly (h) whether than other murders. Subsection dis- differently is equivalent which named is tinguishes persons between those with a only a applies history similar conviction Utah of violence and those without such or charges. first second murder All history. Punishing murderers awith past violent felonies committed other history states of violence severely more than qualify aggravating would therefore rationally cir other murderers is the related to cumstances under the read objectives punishing statute. This state’s of ac- criminals ing of the is cording statute clear and understanda of their seriousness acts and ordinary person provides ble protecting its citizens from vio- criminal prohibited of notice what as first lence.51 390, 46. Unlawful detention is defined in Bell, (Utah 1989); 76- section 49. v. 785 P.2d 398 261, of Code 5-304 Utah Annotated: (Utah 1986); Bishop, State v. 717 P.2d 266 person 420, 425-26, Maryland, A commits unlawful if detention McGowan v. 366 U.S. 81 knowingly unlawfully 1101, 1104-05, restrains another so (1961). S.Ct. 6 393 L.Ed.2d substantially liberty. as to interfere with his (2) Unlawful detention ais class B misde- Utah, 50. Utah Public Employees’ v. 610 Ass'n meanor. (Utah 1980) (quoting Lindsley P.2d 1274 Co., Resort, Natural Carbonic Gas 220 U.S. Clover v. 31 Snowbird Ski 808 P.2d 337, 340, (Utah 1991); (1911)); 1040 Division S.Ct. 55 L.Ed. also Consumer Protec- see of Oil, Ltd., Bell, tion Rio Vista State v. P.2d at (Utah 1990); County, Kelson v. Lake Salt (Utah 1989). Ashe, Pennsylvania See ex rel. Sullivan v. 51, 55, 59, 60-61, U.S. 58 S.Ct. L.Ed. Pilcher,
48. 1981).
case
juror
voir dire in a
case also deals
meeting
objective, the statute con-
this
publicity
of
and controvers
involving
the status
extensive
requirements,
two
tains
Mu’Min,
require-
felony
Supreme
held
y.53
Court
conviction as
prior
felony
covering possible
involve violence or
bias
questions
ment
that
that while
legislature’s
involved,54
re-
subject
of violence.
jurors
threat
must cover the
of
statutory classifi-
states’
liance
other
questions
jurors
asked of
do not need
is a rational method for
of crimes
cations
any specific
pass
formula to
con
to follow
are more seri-
distinguishing which crimes
Specifically,
muster.55
stitutional
The combination
another
ous.
that
the constitution does
Court held
the crime should be a
decision that
state’s
require
prospective
panel
be
requirement
felony with the statute’s
questioned during
dire as
the con
voir
felony
violence is sufficient
involve
they
publicity
tent or source
are convicted
ensure that those who
exposed.56 Following
logic
have been
the stat-
aggravating circumstances under
Mu’Min,
specific
questioning
no
form
previously
have
committed serious
ute
dire
need be followed in order for the voir
crimes.
her
due
give
rights
defendant his or
constitution. The constitution
under
Due
Trial
B. Denial
Process
require
jurors
questioned
does not
Dire
Limitation
Voir
Court’s
case,58
individually,57
counsel
the trial court’s
Defendant asserts
arrangement.
any
particular
other
prospective
limitation
voir dire
dire
manner
method of voir
lies within
right
pro-
his
to due
panel denied him
discretion of the trial court.59
sound
right
to effective as-
cess
violated
*16
Specifically,
of
sistance
counsel.
duty to
this
In addition to
court’s
judge
trial
should have al-
claims that the
appellate cases
arise
hear and decide
prospective jurors by
questioning of
lowed
state,
supervisory
have a
in this
we also
counsel,
questioned jurors
should have
this
role over
the lower courts within
thoroughly concerning
expo-
media
more
fulfilling
supervi
role
state.60 In
as
therefrom,
resulting
possible
sure and
bias
sor,
emphasize
impor
like
would
we
individual or
and should have allowed
ensuring
has in
jury
tant
voir dire
role
small-group questioning
jurors
of
deter-
receive
fair and
litigants
a case
a
all
possible
mine
bias.
pro
impartial
The modern voir dire
jury.
merely
determine
cess is not
conducted
commenting on the effec
Without
jurors
called to service
who have been
process
of
or the wisdom of
tiveness
jury
serve
a
legally qualified to
below,
are
dire
used in the trial
voir
which was
process
evolved into
panel. The
has
to address these issues
this court wishes
and,
detecting
possible,
so far as
Supreme means of
light
United
recent
States
opinion from the court-
Virginia.52
v.
eliminating bias and
Mu’Min
case of
That
Court
1274,
State,
—
See,
U.S.-,
1899,
e.g.,
v.
1275
57.
Akins
502 P.2d
79g given adequately However, not sonable doubt instruction the court is trial way.”66 hypothe- any need for a reasonable give any requested instruc- covered required to comport instruction, deny giving the facts the with and to fur- if it does not sis tion accurately the state or not presented requested does was not errone- ther instructions Further, the trial court applicable law.67 ous. requested a refusing give in not err does case, disposition of the we In view of our point properly if is covered instruction issues raised decline to address other presented in other instructions appeal. in his We here- brief
jury.68 trial denial of defen- by reverse the court’s at issue are sim The instructions trial motion new based dant’s in hypotheses ilar to the two reasonable remand newly discovered evidence and this requested by defendant in structions proceedings for further consistent case addressing the ne v. Parsons.69 opinion. with on two rea cessity giving an instruction this court stated: hypotheses, sonable ZIMMERMAN, (concurring): Justice held, Larocco, “An instruction we trial, I hypothesis join grant is in of a new alternative I on reasonable Justice, evidence is required, opinion even when the of the concur Chief Thus, choosing solely circumstantial.” except portion discusses the suffi- squarely is give instruction not to ciency support evidence to a verdict court. within discretion guilty first murder. case, only I evidence that As see the proof prosecution’s burden knowing support finding of a or could case, criminal whether evidence any killing, the essential element of intentional circumstantial, combina- be direct charge, first murder is testi- both, beyond is that of a reason- tion of Peterson, an inmate at mony of Ronald doubt. The use of reasonable able Prison, that defen- to the effect Utah State is instruction hypothesis alternative and had said he had killed son dant expressing merely way of that neces- one day before the gone out to the marina proof is no sary burden of and there trip to the site killing. an advance Absent one, apparent reason mandate corpse, all the disposition one, only particular instruction be an equally un- is consistent evidence conveying to the judges used killing, finding and a planned, accidental meaning phrase, elusive
jury the
nothing more than
killing
intentional
an
“proof beyond
doubt.” ...
a reasonable
speculation.
*18
in-
event,
any
In
the “reasonable doubt”
clearly
given in the
case
struction
instant
trial
a new
so
Although we have ordered
jury
the
of
appropriately informed
and
jury
place before the
defendant can
applied.70
legal
the
standard
his
fabricated
testi-
that Peterson
evidence
treatment
mony in
to receive better
order
case,
requested in-
the
In the instant
State,
majority
the
seems to inti-
from the
hy-
on reasonable alternative
structions
decisions, a first
prior
our
mate that under
specific
merely a
state-
potheses were
more
upheld if
could be
degree murder verdict
requirement
of the traditional
ment
testimony,
jury
Peterson’s
doubt. The rea-
the
disbelieved
proof beyond a reasonable
(Utah 1989).
Potter,
fendant; (3) anger ques- defendant’s when