*1 Utah, Appellee, v. Plaintiff and STATE PARSONS,
Joseph Mitchell Appellant.
No. 880102.
Supreme Court of Utah. 13, 1989.
Oct. 22, 1990.
Rehearing Denied Jan. *2 Shumate, City, L. for defen-
James Cedar appellant. dant and Dam, Larsen, R. R. Paul Van Dan Salt City, plaintiff appellee. Lake HOWE, Associate Justice: Chief Upon plea guilty, Joseph a defendant Parsons was convicted of murder Mitchell degree, first offense violation Utah Code Ann. 76-5-202 § (1978, Supp.1989). sentencing proceed- A ing was conducted under section 76-3-207 (1978, Supp.1989), jury unanimously and a imposed penalty. ap- peals his conviction sentence. August In the late afternoon of hitchhiking on Interstate-15 defendant Barstow, victim, near California. The Ernest, stopped L. and offered him Richard ultimate a ride. While defendant’s destina- Florida, agreed tion Ernest to take him Denver, far Colorado. Earlier that day, left home in Ernest had his Loma California, Linda, job opportunity to seek a environment in Denver. He and new personal carful of traveling alone with a carpentry belongings and tools. morning, approximately At 3:00 the next his car into the Lunt Park Ernest drove City, near rest on Interstate-15 Cedar area He said that he was too tired Utah. get driving, and he wanted continue sleep. in the driver’s some He remained himself with seat of the car and covered (1978, Supp.1988) (amended, sleeping bag, Supp.1989), while rested against passenger head operable window and theft an motor vehicle un- sleep. According attempt door der section 76-6-404 testimony, Ernest over reached *3 September plead- On defendant put thigh. and his hand his Defendant to all guilty Specifically, ed three counts. pushed away, the hand stated “that’s not degree to regard the first murder my style,” requested and leave Ernest pleaded charge, guilty he offense as him again alone. put When Ernest 76-5-202(l)(h) (having defined in section in- hand thigh, pushed on defendant’s he or tentionally knowingly caused the death away hand and reached for the when door having of another when previously been said, grabbed Ernest his left wrist and involving of a felony convicted the use or anywhere.” “You’re not going Defendant person). of violence He threat to a elected pulled then double-edged a five-inch knife sentence, to have a determine his and from his sock and stabbed Ernest in imposed. chest. a Allegedly, struggle ensued where- in Ernest received several knife more Eventually, wounds. defendant into moved I. away driver’s drove seat and from initially contends that rest area. degree first murder statute under which he mile, traveling After about a defendant charged and convicted unconstitu-
pulled high- the car to the shoulder of the part, 76-5-202(l)(h) pro- tional. section way, pushed car, body Ernest’s out of the vides: sleeping covered bag, it with a drove and (1) Criminal homicide constitutes mur- Beaver; Utah, another five miles where degree der in first if the actor inten- stopped he at a service station and conve- tionally knowingly causes death of There, nience store. he changed his under any following another of the cir- clothes and washed the from victim’s blood cumstances: car, himself emptied and from inside the personal belongings carpentry and assuming tools into dumpster, and (h) previously The actor was convicted identity Ernest, purchased gas food and a felony involving of ... the use or with Ernest’s card. He drove credit then person. threat of violence to a Richfield, Utah, again where he used First, argues defendant that the statute money stay victim’s credit in a cards to protections against constitutional violates motel, laundromat, cleaned his clothes at a jeopardy by previous utilizing double con- optometrist prescription visited an lens- noncap- viction as a circumstance to elevate es, attempted purchase several Second, to a ital murder offense. items, including carseat covers from a he that the statute him due denies store. process right to a fair Law enforcement officers had since dis- impartial by allowing highly preju- alongside body covered the victim’s dead felony prior dicial of his conviction the highway and had also been alerted to jury during guilt to come before the credit card transactions and unusual Const, V, phase trial. U.S. amends. Rich- activities of defendant Beaver and Const, I, XIV; art. §§ Au- approximately p.m. field. At 4:15 argument, jeopardy As to his double we 31, defendant, gust resting while in the Holland, recently held State victim’s car at the Red Creek rest area on 1019, 1023(Utah 1989), for the reasons Interstate-70, was arrested a Utah stated, 76-5-202(l)(h) section does Highway cus- Patrol Officer taken into jeopardy clause of not violate double tody. subsequently charged He to his second degree the federal constitution. As murder in the first under Utah (1978, Supreme argument, the Court Unit Supp.1989), Code Ann. 76-5-202 § aggravated robbery has ruled: under section 76-6-302 ed States (Colo.1984) (“Permitting represents a in the guilty plea break
[A]
plead guilty
preceded
has
it in
defendant
reserve
of events which
chain
constitutionality
test
of a
process. When a criminal
the criminal
solemnly
open
recognized by
is not
either rule
admitted
statute
statute,
disapprove
guilty
specifically
we
he is in fact
charged, may
procedure.”).
he is
We need not consider
offense with which
case, however,
independent
exception
raise
claims
in the instant
be
not thereafter
relating
deprivation
guilty plea
of constitu-
was uncondi
to the
cause defendant’s
rights
prior
tionally
to the
limitations. He
that occurred
entered without
tional
guilty
imprisonment
He
entry
plea.
moved for a sentence
life
*4
voluntary
intelligent
again
proceeding
and
char-
at the
and
af
attack
guilty plea....
ter the
verdict was returned on the
acter
ground
statute
unconstitution
Henderson,
267,
258,
Tollett v.
411 U.S.
93
al, but he failed to attack the constitution
235,
1602, 1608, 36 L.Ed.2d
243
S.Ct.
ality
prior
plea
to
the statute
to his
or
applicable in
general
The
rule
crimi
preserve
conditionally plea and
the issue
legion,
cases
is
proceedings,
nal
and the
are
appeal.
by pleading guilty,
the defendant
does
all of
essen
Defendant
not attack the
deemed to have admitted
intelligent
charged
voluntary
and
character of his
tial elements of
plea to
thereby
nonjurisdictional
guilty
all
de
unconditional
murder.
waives
fects,
great
including alleged pre-plea
It is clear from the record that
care
constitu
Lopez,
v.
was taken to ascertain the
tional violations. United States
voluntariness
Cir.),
cert.
1382,
(5th
plea.
recognize
his
now
F.2d
1385 n. 3
We cannot
his
704
denied,
935,
341,
104,
464
S.Ct.
78
efforts to vacate his conviction or sentence
U.S.
by raising independent
United States v. DePo
(1983);
attacking
issues
L.Ed.2d 309
li,
779,
(2d Cir.1980);
constitutionality
76-5-202(l)(h)
of section
628 F.2d
780-81
Doyle, 348
715,
he
v.
718
on
assertion that
United States
F.2d
would
denied,
(2d Cir.),
843,
cert.
by
impartial jury.
86 received a fair trial
an
382 U.S.
Yeck,
1248,
v. We stated
State v.
89,
(1965);
State
Ct.App.1988); issues raised defen- denied, alleged defects in the cert. Ct.App.1988), dant concern sentenc- 2-3 (Utah 1989); also ing proceeding section 76- see United conducted under DePoli, (2d guilty plea subsequent 3-207 after the States 628 F.2d Pharr, requests People see Cir.1980). were entered. He But 696 convictions addition, that this Court his death vacate sentence in instructions 12 and 13. in- imprisonment. and order a life sentence of specifically aggravating struction listed mitigating could factors which be con- the jury asserts that was mis- jury. mitigating sidered The list of led to only ag- conclude that it could find directly factors gravating was taken from section and no 76- mitigating circumstances 3-207(2). determining circumstances in aggravating his sentence. factors were Specifically, argues that the lower court intentionally whether defendant or know- jury by giving special misled the verdict ingly caused the death of Richard Er- L. questions instructions and on aggravating (1) nest engaged while in the commission of only circumstances generally while in- commit, attempt flight or after structing circumstances, mitigating committing attempting aggra- commit being result that the could con- (2) robbery, vated for pecuniary and/or clude that factors which (3) gain, having previously and/or been specifically outweighed any were found involving felony convicted of a the use or mitigating further factors. He threat of person. violence to a Instruction special this Court prohibit should verdicts whether, 18 allowed the to determine or, in capital sentencing proceedings in the *5 aggravating as an in circumstance addition alternative, require special verdicts on both above, those per- listed defendant was a aggravating mitigating and circumstances. parole on knowingly possessed son who or appropriate The standard to be followed custody had a firearm in or under his authority the in sentencing capital gave The general control. court also other Wood, case explained was in State v. 648 concerning aggravating instructions and 71, (Utah), denied, P.2d 83-85 cert. 459 mitigating circumstances. 988, 341, U.S. 103 74 S.Ct. L.Ed.2d 383 (1982), requiring authority alleged the to find of the error be stems basis yond a aggra reasonable doubt that total There, from instruction 27. the court in- vation outweighs mitigation total and that jury structed the prepare that it would two imposition penalty justified of the death Special verdict forms and “three Verdict appropriate and in the circumstances: Questions, your aid in will delibera- require These standards that the sen- special questions, tions.” The verdict tencing body compare totality the of the jury which the court instructed the to an- mitigating against totality [factors] unanimously considering swer before factors, aggravating not in terms in sentencing, aggravating factors were for aggravat- relative numbers (whether circumstances defendant ing factors, mitigating and the but knowingly intentionally caused the death respective substantiality terms their aggravated victim in connection persuasiveness. Basically, and what the robbery, person or as a pecuniary gain, sentencing must authority decide is how parole possessed knowingly on who or had compelling persuasive totality custody). firearm under his control or mitigating are factors when com- “YES, jury returned we so answers pared against totality aggra- special unanimously” find three ver- all vating sentencing body, factors. The questions imposed penal- dict making judgment aggravating ty- “outweigh,” compel- factors or are more than, factors,
ling
mitigating
must
special
While defendant asserts
ver
have no
as to that con-
reasonable doubt
generally
dicts are
not favored
the law
clusion, and
additional
as to the
conclu-
cases,
special
in criminal
the use
verdicts
penalty
justified
sion that the death
usually upheld when the information
appropriate
considering
all
after
sought
is relevant to the sentence
be
circumstances.
Buishas,
imposed.
v.
791
United States
Wood,
In the
States
these standards were
(2d
denied,
845,
Cir.),
clearly
correctly
jury
to the
469 U.S.
enunciated
cert.
jury in meticulous
(1984);
instructed the
court
rative and is not Defendant asserts that the trial court constitutions, required by statutes, our improperly by assisting intervened case law. State when it moved for a mistrial. On the day fourth sentencing proceeding, argued to the lower court that prosecutor made motion based on order to make a determination as to “[i]n alleged misrepresentation by defense penalty being whether not the death concerning counsel appearance and tes- equally applied in this it will be neces- witness, timony of a Dr. Robert Howell: sary for the Court to pres- determine the THE right. COURT: All The members ence of a clear and intentional discrimina- have now left the room. Mr. presence tion.” To establish the of such Burns. seeking discrimination in applying Yes, MR BURNS: Your Honor. The penalty, argued death State at this time would like to move for necessary upon— mistrial based present evidence to the regard- Court Burns, THE COURT: Mr. you you are — ing persons situations where other sim- want to move for a mistrial? ilarly situated subjected have not been to MR BURNS: want to move a mis- penalty ... offer evidence of following trial on the basis. similar cases wherein the death [Utah] THE May COURT: I speak you at the penalty imposed was never ... as well as minute, please. bench a other cases in the Southern Utah area (Whereupon, a discussion was had wherein the death was never among bench, Court and counsel at the sought, though the matters initially were reported follows:) which was charged degree as first murder cases. THE says COURT: The law you that if Clearly, this request comparative- is a for a mistrial, move for a that that invokes the type hearing standard, within the reach of our jeopardy deci- double and he can’t sions in be retried. Gardner and Tillman: Well, MR. BURNS: if I move for a mis- Focus on the individual defendant and trial—I to move for a mis- *7 76-1-104, his acts is called for section if I trial want to if defense counsel misre- comparison not with other criminals and presents something. have the to their crimes. Each defendant is an indi- psychologist have present, a here and I vidual, unique and each case is in its don’t because— Any attempt facts. to draw broad com- Well, THE you COURT: should have parisons between defendants or crimes raised it before now. You should have speculation calls for why particu- as to a your psychologist had here. lar defendant or crime was dealt with MR: BURNS: I have it. I’ll raised make judge prosecutor] in that [or my record. particular many fashion. The factors THE COURT: I wouldn’t move for a may jury’s judge’s influence a [or mistrial. prosecutor’s] easily decision cannot be (Whereupon, following proceedings the identified, quantified. let alone court, in open had outside the .were Rep. at Gardner, 101 Adv. Utah hearing presence and the jury:) We hold that under the facts of this upon MR. Based BURNS: Court’s properly charge State could feeling respect with to the bodies of law moving with murder and seek in the state Utah and the State mistrial, I’ll penalty. turn, for a withdraw that. aggravat- In the facts and ing circumstances allowed the im- that he is entitled to a pose the sentence of death. There was no proceeding prosecutor where is not error in the denial of court’s “coached” the trial court and asserts motion. prejudice grounds that a sentence of life
1282
of the instant
if the
the time of
commission
have resulted
imprisonment would
crimes,
felony
parole for a
and had
was on
granted.
mistrial had been
motion for
possession or
his control or
in his
validi-
the merits or
We
not address
need
custody
a firearm violation Utah Code
on dou-
trial court’s remarks
ty of
76-10-503(2) (1978, Supp.1989).
Ann. §
Further,
spec-
we cannot
jeopardy.
ble
jury of the ele-
The court instructed the
by assuming that
prejudice
ulate as to
find,
it
crime and that must
ments
if it
granted
motion
court would
verdict,
by special
proved
granting of a
not withdrawn.
were
every
beyond
a reason-
each
element
discre-
mistrial is in
sound
motion for
consider the evi-
able doubt before
could
court,
which in the
tion of the trial
crime
dence of the
as
obligation
grant
motion.
case
no
had
factor.
592
Whiteley,
& Faber
See Watkins
agree
appeals
a
with federal court
1979).
(Utah
613,
P.2d
616
sentencing
aim the
[t]he
[trial]
court,
its inherent
The trial
with
acquire
thorough acquaintance
with
authority
charge
powers as the
history
man
the character
trial,
broad latitude
control
synopsis
Its
should include the
before it.
proceedings
preserve
manage the
favorable,
unfavorable, as
well as
process.
integrity of
data,
things
so
and few
could be
relevant
1980);
721,
722
Sanchez, 611 P.2d
activity of
as other criminal
the defen-
261,
Hreinson, 17
2d
Utah
Robinson
dant,
closely
particularly activity
related
266,
121,
(1965);
124
Hanks v.
suggests
to the
Counsel
hand.
Christensen,
2d
354 P.2d
although
record”
“criminal
role,
564,
(1960).
fulfilling
considered,
passed
by a
crimes not
“responsible
carrying
for
trial court
[the
pale,
but we see
are
efficiently
expedi
as
forward
trial]
nothing to warrant this distinction.
tiously
possible consistent
fairness
715,
Doyle,
F.2d
States v.
United
thoroughness
administering justice.”
Cir.),
denied,
(2d
cert.
382 U.S.
Hanks,
at 566.
peal aggra- from the treatment of other
vating respect circumstances with VII. preliminary which no similar burden of proof prosecution, During closing rests on the argument, the sen- tencing body specifically attempted must to refute find defendant’s as proven provoked whether the other sertion that crime was be- he was the vic yond a reasonable tim’s placing doubt. homosexual advances of thigh. hand on defendant’s referring After Lafferty, 749 P.2d at n. 16. In 1260 & testimony victim not homo court, the trial in instruction inclined, sexual and would be so requirements precise these followed prosecutor argued: verdict, By special detail. unani- just mously say argu- And let’s for the found defendant committed sake uncharged say ment—let’s throw all that Let’s beyond a out. reasonable that, you doubt. did. I think Lafferty, Under was no don’t believe error that, you’ll and I allowing don’t think but consider evi- find just say— let’s dence as an circumstance. MR. SHUMATE Your [defense counsel]: VI. honor, object point. must Coun- sel referring opinion to his own happened what he presence thinks the matter. improperly influenced improper It’s under Rule 3.4 of the Rules Judge Burns, courtroom J. Harlan of— judge County the former district for Iron prosecutor and the father of the in this drawing THE I think COURT: he was day ease. On the fourth permissible deduction from the evidence.
trial, Judge proceed Burns attended the saying don’t think he was what he ings public as a member of the and ob believed, I he saying think was what he served the State’s cross-examination of de they thinks find the evi- would from briefly fendant. The trial court acknowl going I’m dence. And to overrule the edged presence Judge among the Burns objection on that. based spectators the and on the record welcomed you, I will caution Counsel—and I’m him. you’re you’re sure not al- aware—that give opinion Defendant on specific your makes no claim of lowed to own mat- prejudice by but this occurrence asserts ters. in its the would believe future prosecutor]: Thank what BURNS MR. [the deliberations, unlikely very think it “we Honor.
you, Your state- juror consider these that a would you. All Thank right. THE COURT: testimony from the ments to be factual added.) now (Emphasis Defendant asserts guarded prosecutor evil to be —the prosecutor ground on the error the argument for against a mere than —rather personal knowledge of improperly implied based imposition the personal opinion expressed facts the presented.” Lafferty, evidence the on the evidence. at 1256. P.2d by the standard recently articulated We addition, specifically In the trial court alleged prosecutorial we measure jury, the in instruction instructed “[Y]ou misconduct: consider evidence statements of not if the or look see actions remarks We attorneys any the or hint or intimation of to the attention the call of counsel falsity the truth or fact or justified not be jury a matter would attorneys.” therefore made determining its considering verdict prosecutor’s argument, find no error and, so, the circumstances of the if certainly prejudicial manifest and no “the error is particular whether error. prejudicial such that substantial and likelihoodthat in its there is a reasonable VIII. absence, would been a more for next contends that man favorable result the defendant.” Defendant jurors one ifest error occurred when Id.; Gardner, State State briefly for conversed with witness princi- these Application P.2d at during a in the break course comments convinces ples prosecutor’s thus, sentencing proceeding, denying him a no error. us that there was impartial jury. fair trial The trial day court notified that on the third was for “con Counsel both sides have sentencing proceeding, between 8:30- closing siderably argu freedom in more a.m., Poulson, Mr. a member of the 9:00' fully “a from ment” and discuss Slater, jury, conversing seen with Mr. in standpoints the evidence their owner of the laundromat and witness arising deductions there ferences and who testified later that morn the State (quoting Lafferty, from.” P.2d at juror ing. into the called Valdez, 30 Utah 2d pres questioned him in the courtroom agree (1973)). We that a defendant and both counsel. The ence of engages prosecutor misconduct when juror having a conversa admitted to brief knowledge personal she asserts lasted one He tion that about minute. did expresses personal opin facts issue at the know time Mr. Slater would ion, unsworn, being “a form of unchecked witness, exchange had no be a and their exploit in testimony [which] tendfs] trial. Defense coun relation to case or prosecutor’s office and un fluence questioned juror. sel also objective detachment dermine specifically any preju- waived lawyer separate a from cause should resulting from the conversation be- dice being argued.” Lafferty, light juror the witness. tween the 1255-56; ABA Standards for Criminal Jus jury, by the death verdict returned However, tice, (2d ed.1980). as the 3-5.8 § however, now contends that the ruled, prosecutor merely juror prejudicial. After contact was drawing a permissible deduction from counsel, by the court and questioned stating predicted the what he evidence and following occurred record: from the evidence. The jury would find *10 Before prosecutor]: per MR. BURNS properly remarks understood be are [the position you briefly the State’s Further, do—and because the missible inferences. caution, of in an overabundance predictions of is that logically mere comments are removed, affirmatively, knowingly, and ror which was I’d ask that Mr. Poulson be jurors put in intentionally of the alternate one waived at the place. rule proceeding. per- To otherwise would Well, THE what the in a COURT: let’s see mit a defendant criminal case to “in- say. defense has to prejudicial error and implant it vite” appellate record as a of MR. SHUMATE I’m form insurance [defense counsel]: point. against not sure at that we’re an adverse sentence. you. Thank
MR. BURNS: analyzing Even the facts under the stan- (Discussion the record de- off [between Pike, provided dards State v. P.2d counsel].) fendant and defense 1985), we could find no Honor, MR. SHUMATE: Your it’s the error. position prej- that we see no by problem udice the conversation—no IX. with it. indicated,
As the it’s Court been a Finally, defendant that the testimony fact that Mr. is not in Slater’s in refusing erred to instruct the dispute, and the conversation is harm- jury hypotheses” on the “two reasonable less. theory. Defendant submitted to the court We do intend requested to move a mis- instruction that if the trial, request nor would we intend to susceptible evidence were of two reason Court that Mr. Poulson be removed from interpretations, able constructions “one panel. appears which aggrava of be favor of it, then, THE you’re COURT: I take that appearing tion and the other to be favor waiving any possible prejudice resulting mitigation, jury’s] duty it [the from this conversation? adopt interpretation the law to that which Yes, are, favoring mitigation MR SHUMATE: we Your will admit of the view Hon- correct, Is reject points or. Mr. which aggrava Parsons? tion.” The refused Yes, the instruction MR. sir. PARSONS: unduly confusing “as proof as to burden And, right. THE COURT: All Mr. Par- Larocco, in light of State v. sons, you’ve your discussed this with (Utah 1983).” counsel, you feel with satisfied decision? Larocco, held, we “An instruction on Yes, MR. I do. PARSONS: hypothesis reasonable alternative is not re- you any ques- THE COURT: Do quired, solely even when the evidence is you regard- tions want address to me Larocco, circumstantial.” at ing that? Thus, choosing give not to the in- MR. No. PARSONS: squarely struction is within the discretion Okay. argues, however, of the court. Defendant posi- THE COURT: Given that defendant, tion and the fact cases the cir- where they’ve prejudice, waived claim of cumstances of the are essential to a position still the State’s that Mr. Poul- determination of the character ought son to be removed? sentencing, accused instruc- BURNS:, give tion should mandated “in Based be order to MR. on those state- ments, Honor, interpretation guidance Your I’ll that. withdraw physical evidence can (if hold “invited error” disagree: deemed as circumstantial.” We any) procedurally unjustified “is were prosecution’s proof burden in any disfavor, especially where am- viewed criminal whether the evidence be ple opportunity has been afforded to avoid circumstantial, direct or or a combination a result.” such 560- both, facts, we is that a reasonable 61. Based on the above cannot seek to his sen- doubt. The use the reasonable alter- allow vacate by alleging appeal prejudicial hypothesis merely er- tence native instruction *11 1286 her 202(l)(h) guilt have his or necessary is entitled to expressing that way
one
of
settled before
apparent
is
the intentional homicide
and
no
proof
burden
one,
any prior
informed of
convic-
and
to mandate that
reason
by
raising
basis for
provide the
one,
be used
tions that
particular
instruction
to first
from second
intentional homicide
conveying
in
judges
trial
Florez, 777 P.2d
v.
State
phrase, “proof
degree murder.
meaning
that elusive
James,
v.
452,
1989);
State
(Utah
767
a reasonable doubt.”
...
(Utah
549,
1989). This
in-
event,
doubt”
the “reasonable
in
clearly
procedure
have mandated
other
in
same
we
given
case
struction
prior
of a
unrelated
jury of
evidence
appropriately informed the
cases where
and
a current
applied.
made
element of
legal
to be
crime is
standard
increasing
charge
purpose
sole
1211,
(Utah
Eagle,
v.
State
Wareham,
State v.
punishment.
See
1980).
(Utah 1989);
State
772 P.2d
part
opinion,
II of
As discussed
this
1988)
(Zim-
Bishop, 753 P.2d
clearly
in-
appropriately
result,
merman, J.,
joined
concurring
legal
on the
standard and burden
structed
Stewart, JJ.) (requiring
by Durham and
applied in a
sentenc-
proof
to be
procedure for
of ev-
introduction
bifurcated
Wood,
ing proceeding. 648 P.2d
prior child
convic-
idence of
sexual abuse
(Utah 1982).
find no error in
tions).
followed,
procedure
If this
give
defendant’s
the trial court’s refusal
by
constitutional claim raised
the defendant
on the two reason-
requested instruction
here
never
reached.
need
theory.
hypotheses
able
and sentence are
Defendant’s conviction
DURHAM,
(Concurring
Justice:
affirmed.
Result)
Separately in the
opinion
join
majority
I
the result of the
HALL, C.J., concurs.
agree
with
comments
Justice
STEWART, J.,
concurs
the result.
separately
I
opinion.
Zimmerman’s
write
ZIMMERMAN,
(Concurring)
Justice:
problem
majori-
in the
to call attention to a
opinion
merges
analysis
ty
without
opinion
Howe.
join
I
Justice
ques-
constitutional
However,
defen-
the federal
state
I
to comment on
write
“proportionality
76-5-202(l)(h) de-
tions of
review.”
claim that section
dant’s
a fair
process
him
nies
due
Supreme
It is
that the United States
true
highly prejudicial
trial
it allows
because
comparative pro-
no
Court has decided that
felony
prior
conviction
evidence
required under the
portionality review is
phase
jury during
guilt
come before the
Harris,
Pulley v.
federal constitution.
defect,
this
of a
absent
al and state constitutional analysis, I do not fashion. advo-
out answering question state
cate in this ease principles be-
constitutional appellant rely did not cite on
cause in his brief. Utah Constitution We however, scrupulous, about lan-
should be federal and
guage which confuses state reasons, many principles, for
constitutional opinion’s majority I take issue with the language here.
use of such Gurmankin, City, for
Jay D. Salt Lake appellant. Dam, Sjogren,
R. Paul Sandra L. Van respondent. City, Lake Salt M.S., interest of of Utah in the STATE BENCH, Before DAVIDSON and Eighteen A Person Under Years. JACKSON, (On Motion). Law and JJ. No. 880702-CA. PER CURIAM: of Utah. Appeals Court pursuant This matter is before court' 10(e) on its motion Ct.App. to R. Utah own 23, 1989.
Feb. jurisdiction to dismiss for lack of based untimely appeal. appeal The notice judgment from a Fourth District County filed on Juvenile Court for This November 1988. court received copy appeal of the notice of certified accompanied December appellant’s ad- by a letter from counsel Fourth District dressed the Clerk dated Juvenile Court and December appeal stamped notice of Court, “Filed Juvenile December stamped The letter Fourth District.” December as “Received” on the Fourth District Juvenile Court. Sponte a Notice of This court served Sua Summary by the Court for Consideration filed Disposition parties. Appellant on the Summary Opposition a Memorandum Appeal. state filed Dismissal of sug- in which it responsive memorandum be remanded to gests that the case Court for determi- Fourth District Juvenile should entered nation whether an order 4(e) extending Ct.App. pursuant to R. Utah appeal. remand filing time for