State v. LanceState v. Lance
- Reporters:
- ,
- Before:
- Ellett
Dissenting Opinion
(dissenting).
The defendants were convicted of the crime of murder in thе first degree and were sentenced to death as prоvided by our statute. They appealed to this Court and the judgment was affirmed.1 Thereafter, they appealed to thе Supreme Court of the United States wherein the following ordеr was made:2
The judgment is vacated insofar as it leaves undisturbed the death penalty imposed, and the case is remаnded for further proceedings. See Stewart v. Massachusetts, 408 U.S. 845, 92 S.Ct. 2845, 33 L.Ed.2d 744 (1972).
The case of Stewart v. Massachusetts referred to is set out below:
Per Curiam.
The appellant in this case was sentenced to death. The imposition аnd carrying out of that death penalty constitutes cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Furman v. Georgia, 408 U.S. p. 238, 92 S.Ct. 2726, 33 L.Ed.2d p. 346 (1972). . . . The judgment is therefore vacated insofar as it leaves undisturbеd the death penalty imposed, and the case is remanded for further proceedings.
The numerous decisions in Furman v. Georgia are anything but enlightening. None of them support the Per Curiam opinion which simply held that the death penalty constituted cruel and unusual punishment.
Since that case was decided, the Supreme Court of the United States has held that the death penalty in and of itself is not cruel or unusual punishment.3
An analysis of the basis for the various opinions in the Furman case is set out in my *544concurring opinion in the case of State v. James.4
In Utah therе is no undue application of the death penalty to any minority group. Only one black man has been executed in Utah during statehood. Our statute permits the jury to temper justice with mercy, and where the jury recommends leniency the death penalty is not mandatory.
Both Lance and Kelbach hаve appeared on national television and аdmitted to the murder of many people. They asserted thаt they would do it again if they could get out of prison.
Since thе objections to the imposition of the death penаlty raised in the various opinions in the Furman case have no basis for application to Lance and Kelbach, it sеems that the proper procedure would be to remand this ease to the trial court with directions to fix a new dаte for the carrying out of the only penalty provided by оur statute.
If the United States Supreme Court would not be satisfied with that procedure, then perhaps the Court would give some guidelines as to what could be done. Would the justices permit a second trial with a new jury to determine the sole question of leniency?
In light of the circumstances of this case, this Court entered the following order:
Appellants’ request for а hearing having been heretofore considered, and the Court being sufficiently advised in the premises, it is ordered that the case be remanded to the District Court for further proceedings in accordance with the law.
If we have any doubts аs to the procedure to be followed, how in good сonscience can we abrogate our respоnsibility by simply remanding the case to the trial court with directions tо proceed according to law? We should tell the court what the law is. I, therefore, dissent from the order of remand as made.
Notes
. 23 Utah 2d 231, 461 P.2d 297 (1969).
. 408 U.S. 935, 33 L.Ed.2d 751, 92 S.Ct. 2858 (1972).
. Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976).
. 30 Utah 2d 32, 36, 512 P.2d 1031 (1973).
Lead Opinion
ORDER
Appellants’ request for a hearing having bеen heretofore considered, and the Court being sufficiently advised in the premises, it is ordered that the case be remanded to the District Court for further proceedings in accordance with the law.