*1 Utah, Plaintiff The STATE Respondent,
v. SCHREUDER, Defendant B.
Frances Appellant, 19588.
No.
Supreme Court of Utah.
Aug.
Rehearing Denied Oct. *2 Yengich, City, J. Salt Lake
Ronald appellant. defendant Wilkinson, Kurumada, J. David L. Kevin Gen., Atty. L. Atty. Sjogren, Asst. Sandra Gen., City, plaintiff and re- Salt Lake spondent.
HALL, Justice: Chief by a appeals her conviction Defendant murder, degree capital felo- of first U.C.A., (Repl. Vol. 8B 76-5-202 ny. § (current Supp.1986). ed.) version at imprison- life sentenced to Defendant was affirm. ment. We a.m., At about 7:30 July the warehouse of his parts automotive business, Franklin was Bradshaw shot and killed grandson, Marc Schreuder. Marc was degree convicted second mur- der for the homicide. Frances B. Schreu-. der, Marc’s mother and daugh- Bradshaw’s ter, charged was having knowingly intentionally caused Bradshaw’s death for pecuniary personal gain. other U.C.A., 1953, 76-5-202(l)(f) (Repl. Vol. 8B ed.) (amended 1983). Defendant and Bradshaw had often ar- gued time, money. over At one $3,000 receiving each month from Bradshaw, support but this gradually dwindled. Divorced from her second hus- unemployed, band and defendant had told killing Marc that Bradshaw way assuring there would funds to support family.
In the
summer of
Marc and his
Larry
brother
came to
City
Salt Lake
worked for Bradshaw at the automotive
parts business. Defendant instructed her
sons to kill
gave
Bradshaw and
them am-
phetamines
put
in Bradshaw’s food to
cause a heart attack. Defendant also made
plans
other
for her
Bradshaw,
sons to kill
including setting fire to his warehouse
while he was
throwing
inside and
an elec-
trical appliance in the bathtub while he was
taking his bath. None of the
plans
murder
attempted
were
that summer.
Defendant further instructed her sons to
money
steal
for her from Bradshaw. The
stocks,
and told
night, Marc called defendant
her
$200,000 in
around
stole
brothers
gun, but that
did not want to
it to defendant.
he had the
checks,
and sent
and cash
killing.
off
and cut
go through
the thefts
with the
discovered
Bradshaw
Marc,
you
defendant.
“If
financial assistance
and told
hysterical
all
became
it,
again.”
come home
don’t do
don’t
City-
York
New
Marc returned to
When
cry
he did not want
kill
began to
asked him
*3
defendant
September
in
Marc
and
ar-
grandfather.
his
Defendant
taken
had
give
photographs
some
her
telephone.
gued for
an hour on the
over
City
she could
so that
in Salt Lake
while
Manning, an individual
Myles
to
give them
morning, Marc went
At 7 a.m. the next
Bradshaw.
hired to kill
she had
warehouse,
.Defendant
hid behind a
Bradshaw’s
to
through Richard Beh-
Manning
had met
dock,
loading
drove
and waited. Bradshaw
rens,
lived near the
long-time friend who
a
the
Marc
up and entered
warehouse.
wait-
City. Defendant
in
York
New
Schreuders
minutes,
ed a few
and then went in and
$5,000
Manning
to commit
paid
had
grandfather
talked with his
for about twen-
after
February
March
murder.
ty minutes. When Bradshaw turned his
Manning
not
had
discovered that
defendant
counter,
back behind the sales
Marc shot
murder,
told
carried out
him twice. Defendant had told Marc to
man
going to
another hit
hire
Marc she
make the murder
robbery,
look like a
so
from out of state.
pulled
Marc
out
pockets,
Bradshaw’s
took
money
wallet,
from his
and scattered
Marc and Behrens
Defendant asked both
credit cards. Marc then took
to kill Brad-
a
gun
which
cab back to
to obtain a
with
hotel
and retrieved his
attempted
belongings.
to obtain
Defendant also
He
shaw.
to
airport
went
in New
and flew
gun, inquiring at a rifle store
home.
gun maga-
City
buying
York
and
stacks
shoot-
Marc told defendant about
When
arranged
buy a
Marc
to
Ultimately,
zines.
Bradshaw,
“Thank
ing
she said
God” and
a friend who
Cavenaugh,
Jon
gun from
gave
hugged
kissed him. Marc
and
Midland,
Defendant ob-
in
Texas.
lived
defendant,
who took
gun and shells
name,
address, father’s
Cavenaugh’s
tained
apartment. Defendant
to Behrens’
them
the informa-
gave
and
phone
and
number
its
gun
to Behrens
avoid
dis-
gave
July
early
Marc.
In late June or
tion to
covery
police
the event the
obtained a
Cavenaugh from
telephoned
Marc
apartment.
search warrant for her
about.getting a
City
asked
New York
and
defendant,
killed,
After Bradshaw was
Cavenaugh, de-
gun.
spoke
As
order,
temporary
fami-
court
received
legal pad
yellow
notes on a
fendant wrote
$3,000 per month
living
and
ly
allowance of
instructing
say.
Marc what
$5,000
from
per month
Bradshaw’s
later
ob-
gave
money
Marc some
Defendant
not inherit
under
estate.
Bradshaw,
from
defend-
tained
Berenice
Bradshaw’s will.
mother,
City to
York
fly
New
ant’s
Texas,
City,
New
Lake
and back to
to Salt
I.
TESTIMONY
ACCOMPLICE
suspicion, defend-
York. In order to divert
on
is that
point
appeal
first
Defendant’s
us-
the airline ticket reservations
ant made
Schreuder, an admit-
testimony of Marc
brother,
ing
Lorenzo
the name of Marc’s
defendant’s,
was uncor-
accomplice
ted
Lake
(Larry),
was then
Salt
Gentile
who
support
thus insufficient to
roborated
City.
conviction.
defendant’s
Mid-
July
Marc flew to
Around
mur-
Bradshaw’s
At the time
Franklin
land, Texas,
Cavenaugh.
stayed
23, 1978,
provided:
Utah law
July
on
der
bought
.357
Saturday, July Marc
On
be
on
had
A conviction shall
magnum
in Midland and
and some bullets
accomplice,
he is
testimony of an
unless
City.
took a taxi
flew
Lake
to Salt
which
other
cab
corroborated
hotel,
from the airport to a
the address
testimo-
the aid of the
and without
itself
provided
defendant had
him. That
ny of
accomplice
However,
tends to connect the
hibited.2
statutes which “alter
commission
defendant with the
of the
degree,
or lessen the
amount
mea-
offense; and the corroboration shall not
sure, of
proof
which was made neces-
sufficient,
merely
be
if it
shows the com-
sary
conviction when the crime was com-
mission of the offense or the circum-
post
mitted” are ex
applied
when
facto
stances thereof.
prosecuting
prior
crimes committed
passage.3
statute’s
U.C.A., 1953,
(Repl.
77-81-18
Yol. 8C
ed.). Subsequent
to the murder but before
Here,
repeal
corroboration
defendant’s trial in late September 1983, the
subsequent
passage
stat-
statute
legislature
repealed this section and
had
providing
ute
that a conviction can be
enacted a new section 77-31-18 (Repl. Yol.
an ac-
on the uncorroborated
8C 1978 ed. Supp.1979), which provided that
complice
proof
reduced the amount of
neces-
conviction
“[a]
the uncorrob-
*4
sary for conviction. This Court consistent-
orated testimony
of an accomplice.”
This
ly
interpreting
held when
former section
section has been
U.C.A.,
recodified at
1953,
ed.)
1978
that a
(Repl. Vol. 8C
77-31-18
77-17-7 (Repl.
ed.).
Vol.
8C 1982
solely
could not be convicted
defendant
trial,
Before the
defendant made a
testimony of an accom-
the uncorroborated
require
motion to
accomplice
cor
accomplice testimo-
plice. If uncorroborated
roboration statute be
at
followed
defend
defendant,
against a
ny
the sole evidence
ant’s trial since it was the statute in effect
Thus,
acquitted.4
had to be
defendant
at
the time
the murder. The trial court
77-17-7,
section
which was
applying current
granted the motion
applica
and ruled that
committed,
passed
the crime was
after
tion of section 77-17-7 at defendant’s trial
proof
would lessen the amount of
neces-
post
ex
would be an
application
pro
facto
sary
thereby
to convict defendant and
de-
I,
by
hibited
article
9,
section
clause 3 of
prive
defendant of a substantial
the United
I,
States Constitution and article
gave
the law
her at the time of the murder.
section 18 of the Utah Constitution. We
Therefore, application of section 77-17-7
agree.
of changes
would fall within the classes
It
generally
has been
held and is well
post
ex
by the
prohibited
clause.5
facto
settled that:
any statute
punishes
which
as a crime an
Thus, we must determine whether
committed,
act previously
which was in-
testimony
there was
corroborating that of
done;
nocent when
which makes more
Schreuder,
an
accomplice
admitted
punishment
crime,
burdensome the
for a
defendant.
go
The corroboration
commission,
need not
after its
deprives
or which
to all the material
charged
facts as
one
testified to
with
of any
crime
defense
accomplice
or be sufficient
according
available
itself to
to law at
the time
support a conviction.6 It
when the act
must
committed,
connect
prohibit-
post
as ex
ed
defendant with the
commission of the
facto.1
offense and be consistent
his guilt
and
changes
Statutory
in the mode of
inconsistent with his innocence.7
trial or the rules of
operate
evidence which
only in a limited and insubstantial
manner
witnesses,
of four
to a defendant’s disadvantage
pro-
Schreuder,
are not
Behrens, Myles
Richard
Man-
Ohio,
167, 169-70,
132,
1.
v.
Somers,
Beazell
269 U.S.
46
E.g.,
134,
S.Ct.
4.
State v.
97 90 P.2d
68, 68,
273,
(1925).
(1939);
143, 146,
tablished evidence of all fall, Later that defendant asked Behrens degree of first murder. How- the crime get gun for her to kill be used to her ever, of former applicability Behrens inquiries father. made some but Marc’s testi- section 77-31-18 acquire gun attempt did not to pur- question mony must be corroborated. chase Behrens one. testified that was any then whether very easy procure gun in New York corroborated Marc’s other three witnesses City. and, so, if whether corrobo- 23, 1978, evening July On defend- rating accomplice of de- was an witness apartment ant arrived Behrens’ with a fendant. gun told Behrens Gentile, defendant’s former hus- Vittorio kill been used Marc to Bradshaw. De- *5 band, that told him dur- testified defendant get the gun. fendant told Behrens to rid of going ing spring the of 1978 that she was kept gun apartment at his Defendant put her life. to out a contract on father’s until at which time Behrens October Myles Manning that defendant testified gun Marilyn Reagan, to gave the defend- $5,000 in fall of 1977 to kill paid him Reagan gun ant’s sister. After turned was to purpose her father. Her stated gave police, over to Behrens a statement Manning did collect her inheritance. not police implicating Marc. Soon there- not carry assignment out the and had in- after, approached Behrens and defendant so. tended to do recant insisted that he that statement. help, With defendant’s Behrens fabricated Defendant admits that neither Gentile a story new implicating Reagan. Behrens Manning accomplice nor was an charged by County Lake was later Salt each testimony crime. The of of these men tampering with Attorney’s office with evi- tends to establish that defendant wanted justice. dence and obstruction After testimony Manning’s killed. her father es- grant immunity exchange receiving a actually planned to do tablishes that she so trial, charges testimony at for truthful purpose her benefit finan- and that dropped. were Thus, cially. testimony of Gentile both testimony clearly with the' corroborates Manning and connects defendant Behrens’ testimony is consistent is with defendant’s much of Marc’s and crime and consistent guilt and inconsistent with defendant’s guilt and inconsistent with her innocence. innocence. Behrens’ with her Behrens, friend of defendant Richard knowingly and established defendant approximately years prior to fifteen planned to father for intentionally kill her murder, in the testified that late summer of pecuniary gain and in executed that fact sup- told Behrens her 1977 defendant Defendant, however, argues that plan. had cut port and her inheritance been off adequately does not Behrens’ she to kill by her father wanted Marc’s because Beh- corroborate line repeated this him. Defendant accomplice. rens himself was an thought times to Behrens. Beh- several determining first The test for whether a rens that he did not at take testified Later, is seriously". person accomplice an to a crime wheth- how- these comments person charged er the could be with the ed Bradshaw’s murder until after the same offense as the defendant.8 Prior event. knowledge person not does make an ac- Thus, Behrens could not have been complice person when that does not have charged degree with first murder. While required mental state does not charged he could have been with some- command, solicit, request, encourage, or thing, including justice10 obstruction of intentionally perpetration aid tampering concealing with the evidence for crime.9 weapon,11 the murder there was insuffi- clearly Behrens told been cient evidence to establish that he inten- planning defendant that she was to murder tionally aided defendant the murder of However, her father. in Behrens not Franklin Bradshaw or had the mental state tentionally encourage aid or defendant in required to commit the crime. Since Beh- plans required her or have the mental state rens could be considered accomplice, fact, for the commission of murder. In his testimony was sufficient to corroborate Behrens testified that he did not de take Marc’s and connect defendant seriously fendant’s comments for some fact, the crime. Behrens’ testimo- becoming time because overexcited about ny independently established each of the part
life’s per incidents was of defendant’s elements needed to convict Defendant, sonality. however, claims that degree first murder. because Behrens introduced her to Man ning attempted procure gun II. JURY INSTRUCTIONS intentionally her he aided her in her crime. next contends that argument Merely This is without merit. by giving trial court erred following introducing acquaintance another, one paragraph part of the instruction on more, without is not sufficient to constitute accomplice testimony: magnitude charge intentional aid a defendant degree with first Here, murder. Where corroborated Behrens did not participate in discussions other evidence the of an ac- with defendant and Manning and did not complice is entitled to the same consider- *6 know what arrangements, if any, were you give ation as any would to other made between any event, them. if in witness. The fact a person that is an fact a murder was arranged, it was not accomplice to a crime is no evidence that carried by out Manning. he is not a credible witness and is no rejecting reason for testimony. his Further, How- making attempts half-hearted to ever, you weigh should testimony his as procure gun doing a without so does not you weigh would the testimony any constitute intentional aid. Uneontradieted other witness and take into consid- extremely indicated that it was bias, interest, any eration any proba- or easy gun to obtain a in City. New York ble motive lack of truly testify Had motive to Behrens intended to obtain a fairly. weapon plans, to assist in her
surely could have done so. complains judge Defendant that
Finally, part Behrens had no in should not have the se- instructed the members of quence of finally jury events that they weigh culminated in that should the testi- Franklin mony accomplice just Bradshaw’s murder. Uncontra- of an they would dicted weigh any indicated that Behrens other witness. not particular know the plot argument that result- This is without merit. Smith, E.g., (Utah U.C.A., 1953, 8. State v. 706 P.2d 1055 (Repl. See 76-8-306 Vol. 8B § 10. 1985); (Utah Berg, State v. 613 P.2d ed.). . 1980). U.C.A., 1953, (Repl. See 76-8-510 Vol. 8B ed.). U.C.A., 1953, 9. See (Repl. § 76-2-202 Vol. 8B ed.). Kerekes, See also 622 P.2d at ary portion Only to instruc- of the instruction. In order determine whether an accomplice Schreuder was an proper, tion is the instruction must be read defend- fashion, previously, ant’s in crime. As discussed as a read that whole. When Thus, testimony was corroborated. improp- that was not section is clear the instruction 77-17-7(2) play.14 does not come into Fur- challenged paragraph points first er. The ther, immunity Marc had not received from out in such as the instant one that a case prosecution testifying against his moth- cor- accomplice where has been er. already He had been convicted of sec- by accomplice roborated other Finally, degree ond murder and sentenced. testimony may be as would that of viewed Manning nor ac- neither Behrens was an words, any other witness. In other degree Although complice to first murder. explains instruction that the fact that a prosecution each immunity received accomplice witness is an is not a reason for exchange for other crimes their testi- rejecting testimony. witness’s that mony, grant immunity for other crimes accomplice’s testimony should view require specific does not instruction that taking testimony, as it would other into the immunized witness’s should “bias, any probable interest account mo- suspicion. The be viewed with trial court fairly.” tive or lack motive to jurors properly weighing advised the that in If The intent of the instruction is clear: testimony, they should consider the fact jurors accomplice feel that an has a reason Marc, Manning that Behrens and had all lie, jurors should consider that promises exchange for their tes- received testimony, weighing his or her should but (See weighing testimony. timony reject accomplice testimony on the 12.) instruction, separate In a footnote ground of there its source alone where judge jurors also instructed the corroborating certainly This is evidence. bias, weigh interest, should and other fac- proper instruction under former section 77- tors in their evaluations of witness testimo- ed.) (repealed (Repl. 8C 1978 31-18 Vol. ny. the circumstances Under 1979). give requested defendant’s in- refusal argues the trial also was not error. struction give the last refusing erred court following instruction: sentence witnesses, III. EXPERT WITNESS three
You are instructed Schreuder, Behrens Richard appeal is that point on third Defendant’s granted been Manning have each Myles allowing Dr. Louis court erred the trial prosecution for various immunity from argues that testify. Defendant Moench their are view crimes. You placed testimony improperly Dr. Moench’s scrutiny and caution.12 with the utmost character before of defendant’s *7 404; proba- that the R.Evid. jury, Utah said Court has is that this it true While substantially testimony was tiveness of the testimony of an the uncorroborated that preju- of unfair danger outweighed by the suspi- should be viewed accomplice 403; testimony that dice, Utah R.Evid. his well within cion,13 judge trial was to Dr. regarding Marc’s statements caution- refusing give the in discretion 7(1) (Repl. ed.). Vol. previ 8C 1982 As given, discussed actually No. read: instruction 12. The 77-17-7(1) ously, section applicable was not Schreuder, Rich- are instructed You this trial post ap because it would be an ex Manning Myles have re- facto Behrens and ard plication. prosecutor promises from the certain ceived testimony. You exchange their 14.U.C.A.,1953,"§77-17-7(2) for (Repl. Vol. 8C 1982 credibility weighing ed.) this fact states: consider testimony. court, their instruction In the discretion an given jury may be the effect testimony such uncorroborated should be (Utah), Wood, 648 P.2d State v. 13. See caution, and such an instruction viewed with denied, 103 S.Ct. U.S. cert. given judge if the finds the shall trial (1982). testi uncorroborated L.Ed.2d testimony accomplice to of the be self-contra- accomplice basis for can be the mony of an U.C.A., 1953, dictory, improbable. or uncertain 77-17- under conviction hearsay, Moench was inadmissible unless a substantial party affected, R.Evid. 803. (1) Objection. ruling In case the is one requested originally Dr. Moench was admitting timely objection or defense counsel for Marc interview Marc appears record, motion strike stat- provide before his trial and defense ing specific ground of objection, if opinion an concerning counsel with Marc’s specific ground apparent was not state of mind at the time of the murder. from the context....
Dr. Moench testified at Marc’s trial it Thus, in opinion preserve order to professional was his Mare was conten tion of error probably suffering any from admission of evidence mental for appeal, a defendant murder, illness or the time of the must defect at raise a timely objection to the trial court in clear and operating but that Marc was ex- under specific terms.15 Where there was no clear treme from influence his mother and suf- specific on objection the basis of charac Oedipus complex. fered from prejudice ter unfair and the trial, Prior to defendant’s defendant specific ground objection for was not clear made a motion in limine to exclude Dr. question the context of the or the testimony ground Moench’s on the that his testimony, theory cannot be raised on totally would be based on hear- appeal. In the instant defendant did say. The trial court ruled that Dr. Moench objection not raise any either time to the testify, could be called to but reserved Further, trial ground court. neither judgment admissibility on the partic- objection was clear from the context. testimony. trial, during ular At Marc’s certainly argued While it can be that Dr. testimony, questioned counsel for the State Moench’s prejudicial was to de Marc about Marc’s interviews with Dr. fendant because it tended to establish de During Moench. extensive cross-examina- guilt, fendant’s it apparent is not from the tion, questioned defendant’s counsel context of the that it was un concerning Dr. Moench and the reasons for prejudicial. fairly consulting Dr. Following Moench. Marc’s Further, Dr. Moench’s on testimony, Dr. Moench was called as a wit- history family clearly being Marc’s was stand, ness. When Dr. Moench took the used to establish Marc’s motivation to mur- qualified expert was as an witness without grandfather. der Although his the testimo- opposition. He then went on to ny implicated defendant, clear from family history about Marc’s part of the context of the pur- that its professional opinion foundation on pose to expressly was not establish trait Marc’s mental condition at the time of Thus, defendant’s character. we will Bradshaw’s murder. Counsel for defend- not address either of these contentions fur- objected ant during several times this testi- ther. mony. At no time did specif- counsel offer objections grounds ic on the that defend- did, however, object in a ant’s character improperly put into timely specific fashion that Dr. prejudice evidence or that the unfair based inadmis outweighed substantially Therefore, sible hearsay. we do address probativeness testimony. that contention. *8 103(a) Rule of the Utah Rules of Evi- Utah R.Evid. 802 the forbids admission provides: dence of hearsay except evidence16 as provided predicated upon Error not be rul- a or law the Rules of Evidence. Utah ing which admits or excludes evidence R.Evid. 803 and 804 provide exceptions 16. McCardell, 942, "Hearsay" 15. See v. State 652 P.2d 947 defined in Utah R. Evid. 801. (Utah 1982). Malmrose, See also State v. 649 56, (Utah 1982). P.2d 58
1223 by juries. The rule unlikely to made The claims that hearsay rule. State This accordingly rejects the limitation. admissible un- was Dr. position provision 803(4) is consistent with 803(4). states: Rule Rule der facts on ex- of Rule 703 which by the following are not excluded The pert testimony is need not be ad- based rule, though the declarant hearsay even if of a kind ordinari- missible as a witness: is available by experts in the field.18 ly upon relied adopted by Con- The verbatim rule of (4) purposes medical Statements gress.19 Statements treatment. diagnosis or diagnosis of medical purposes made for Thus, 803(4), Fed.R.Evid. as well as Utah describing medical his- and or treatment 803(4), R.Evid. specifically abolished the present symptoms, pain, or or tory, past distinction physician between the who is sensations, general or inception or consulted for the purpose of treatment and source the cause or external character of one who is only consulted in order to testi- reasonably pertinent insofar as thereof fy as a witness. Statements made to a diagnosis or treatment. physician specifically for the purpose of 803(4) adopted verba- Utah R.Evid. enabling him or her to at trial can Evidence, of from the Federal Rules tim be admissible under this rule.20 preliminary 803(4).17 noted in the As Rule Furthermore, 803(4) Fed.R.Evid. modify the Utah note of committee to 803(4) Utah specifically R.Evid. abolished Evidence, to the notes of “reference Rules physician repeat- distinction between a to the Federal Advisory Committee of ing a patient’s statement for the limited pertinent to the mean- Rules of Evidence rules_” purpose explaining opin- the basis of U.C.A., these ing and effect of repeating ion ed., prove the statement 9B 1977 (Repl. Yol. 1953, R.Evid. Utah the truth of the out-of-court declarations.21 Supp.1986). advisory proposed The on 803(4)adopts committee note position a Rule Finally, Utah 803(4) Federal Rule of Evidence states 703 R.Evid. 703. Rule Utah consistent with pertinent part: upon expert provides that the facts not be
Conventional doctrine has excluded is based need admissible upon by ordinarily if of kind relied ex- hearsay exception, from the as not within truthfulness, guarantee perts particular their field. Rule 703 its statements particular relied on physician for the assumes that the facts pur- consulted integrity enabling testify. him pose trustworthy While will be expert keep specialized admissible as skill of the will these statements were not basing opinion him his or her expert was al- or her from substantive opinion, upon questionable lowed to of his matter. state basis including expert this kind. The cross-examine the reinforces statements of Thus, test probability reliability.22 one distinction thus called for was most 803, Appeals Eighth 21. Court of in Iron See Committee Note to Rule Circuit 17. ed., 8, (Repl. Supp.1986). Shell, R.Evid. Vol. 9B 1977 F.2d at n. noted: 633 83 physician held that a Some courts also Advisory Proposed 18. Notes of Committee regarding repeat patient’s statement could Rules, (West 1984). Rule U.S.C.A. at 279 history symptoms past the lim- medical Note, See Rule 19. Historical U.S.C.A. purpose explaining of an ited basis (West 1984). prove opinion and not in order to the truth declarations. This distinction the out-of-court Shell, See v. 633 F.2d 20. United States Iron rejected by the federal rules. was likewise Bendix, (8th Cir.l980); 11 J. & H. Moore (Citation omitted.) Dobbs See also O’Gee v. 803(4)[7] (1985) Moore’s Federal Practice § (2d Houses, Inc., Cir.1978). 570 F.2d Practice); (hereinafter Federal cited Moore’s Berger, J. & M. Weinstein’s Evi- 4 Weinstein Evidence, supra at 803- note Weinstein’s (herein- 803(4)[01] (1985) dence at 803-146 Evidence). after cited as Weinstein’s *9 However, admissibility made of statements event. defendant contends on diagnosis of purpose, medical under appeal that Dr. Moench’s should 803(4) Rule is the same as that for Rule not have come because it did not meet particular 703: this fact one that an Is reliability necessary of indicia to allow expert particular jus- in this field would be type of testimony. admission of relying upon rendering opin- tified in Dr. Moench’s came well within ion? exception provided by 803(4). Rule A 803(4) applies Rule to statements made psychiatrist perfectly aware of the fact psychiatrist psychologist to a or a for the any. history patient obtained from a purpose of or diagnosis medical treatment self-serving.25 be distorted and How: as well as made statements to other medi- ever, psychiatrist a specifically trained to Generally, cal doctors.23 all statements “assimilate information from a wide varie psychiatrists psychologists, made to re- ty sources, fact, to evaluate each to content, gardless diagno- are relevant to some, others, emphasize discount to and to experts sis or treatment since in the field ignore still others. He then makes his own everything relating view to patient personal patient, puts observations of his patient’s to the personality.24 relevant everything together, and arrives at a con judge In this the trial allowed Dr. pro clusion.” Both the standards upon Moench relate the bases which professional experi fession and clinician’s opinion formed his of Mare. Dr. Moench ence upon combine to form a basis which briefly family history related as told to the psychiatrist can determine clini him He Marc. also stated that he had cal partially opinion pertinent facts are professional based his to a observations tape provided of Marc and on a opinion. Any to him of a flaws or failures in ex conversation between defendant and her opinion amination or the bases of the can daughter judge tightly Lavinia. The trial pointed then be out incisive cross-exami testimony. controlled Dr. Moench’s Dr. gains nation. But the cross-examination Moench was not repeat allowed to state- pertinency incisiveness and proportionally ments by repeated defendant that Marc psychiatrist freedom accorded the Moench, Dr. with one minor exception, story. tell the whole divulge the tape. contents of the Dr. Finally, importantly, and most the fact simply Moench was allowed state the given opportunity finder must be expert opinion basis for his opin- and that judgment make an concerning informed cross-examination, ion. On Dr. Moench weight given expert opinion. Pre- incisively Among cross-examined. oth- venting psychiatrist from testifying things, er questioned defense counsel Dr. expert about the opinion bases of his vastly Moench as to Marc’s motivation for con- danger insulating increases the psy- sulting the psychiatrist, possibility chiatrist scrutiny and misleading lied in order to influence Dr. diagnosis conclusory Only and shift the statements.27 blame to defendant, psychiatric and the when capability of the bases for an expert’s opinion are diagnosing person years several after the stated can cross-examination be relied on to 84, Lechoco, Louisell, 23. United States v. Psychiatrist F.2d 89 n. 6 16, 25. Diamond & as an (D.C.Cir.1976). State, See Howe v. 611 P.2d Expert Witness: Some Specula- Ruminations & (Alaska 1980). 19-20 See also 1335, Moore’s Federal tions, (1965). 63 Mich.L.Rev. Practice, 20, VIII-108; supra note at Weinstein’s Evidence, Quinn, 803-150; supra note Id. Hearsay in Criminal Cases Under the Colorado Overview, Rules Evidence: An 50 U.Colo.L. Slobogin, 27. Bonnie & The Role Mental Annot., (1979); Rev. 55 A.L.R.Fed. Health in the Criminal Process: Professionals (1981). 699-700 Speculation, The Case 66 Va.L.Rev. for Informed Evidence, (1980). supra 24. Weinstein’s 511 n. 250 note at 803-
1225
expose any unreliability in such information
trial and knew the substance of Dr.
prospective testimony.
Moench’s
Finally,
bases.
806,
under Utah R.Evid.
defense counsel
psychiatrist
psychologist
A
or a
of course
could have recalled Marc to the stand and
testifying
made a conduit for
cannot be
concerning
cross-examined him
any state-
any
and all out-of-court state-
court as
ments he made to Dr. Moench.
As
admission of
ments made.28
with
evi-
kind,
any
great discretion is
dence of
ac-
Thus, since Marc was in court and sub-
judge in
corded the trial
the determination
cross-examination,
ject to
the essence of
must,
admissibility.
The trial court
right
appears
confrontation
to have
any
with
assess the inherent reli-
satisfied.
been
ability
testimony,
relevance
testimony,
balancing
and undertake a
IV. JURY SELECTION
test, particularly
prejudice
proba-
versus
point
appeal
Defendant’s next
is
Furthermore,
tiveness under Rule 403.
that the exclusion for cause of one venire-
trial court has discretion to admit
testi-
expressed
woman who
a conscientious ob
mony
purposes only. Only
for limited
jection
penalty
capital
death
in a
case
the trial court
that discretion
where
abuses
right
denied
impartial
defendant her
to an
step
will this Court
in. No such abuse
representative
jury on the issue of
present here.
Const,
VI,
guilt. U.S.
amend.
XIV.
Defendant, however,
contends that
also
U.C.A., 1953, 77-35-18(e)(10)(Repl. Vol.
allowing
repeat
Dr. Moench to
what Marc
Ed.) provides
8C 1982
jurors may
be
told him denied defendant her
to con-
challenged for cause as follows:
This
has
merit.
frontation.
contention
no
(e)
challenge
objec-
for
cause is
Supreme
The United States
Court has stat-
particular juror
may
tion to a
absent,
the declarant is
ed that “where
following
taken on one or more of the
present
testify
but is
and to
submit
grounds:
cross-examination ...
the admission of his
out-of-court statements does not create a
(10)
charged
punisha-
If
offense
problem”
confrontation
under the federal
death,
entertaining
of such
ble
constitution.29 The rule under the state
opinions about the death
conscientious
no
constitution is
different.30
preclude
juror
penalty as would
and,
fact,
testify
was available to
voting
impose
penalty fol-
the death
before Dr. Moench testified.
lowing
regardless of
conviction
substance,
repeated
on the stand all
facts....
family history
later
Dr.
related
A
if
venireman
be excused
cause
expert opinion.
Moench as the basis for his
scruples
juror
are such that as a
questioned by
Marc was
the State concern-
impose
penalty.31
could not
the death
Fur
ing
consulting
his reasons for
Moench
ther, as noted in
State v.
Moore32,
prac
the content of his
Dr.
discussions with
qualifying
of death
has been
tice
Moench. Counsel for defendant cross-ex-
Marc,
employed
and sustained
regarding
particularly
amined
However, in
v.
State
Norton33,
reasons Marc consulted Dr. Moench. De-
Court.
held that the trial
must
fense counsel also had
the tran- Court
court
also
available
script
prospective jurors
of Dr.
ask the
if
would
at Marc’s
233,
Kallas,
(Utah
Moore,
(Utah 1985).
28. See
v.
P.2d
State v.
P.2d
237
Kallas
614
644
31.
697
1980).
Id.
149, 162,
Green,
v.
399 U.S.
California
1930, 1937,
(1970).
S.Ct.
cases, regardless facts, and that he had already opinion formed an as to de- (f) for pe- The homicide was committed guilt. motion, fendant’s On defendant’s cuniary personal gain. or other the judge excused that for venireman A conviction be for insuffi- will reversed cause. ciency of “only the evidence when the evi- Moore, rejected the Court a claim of dence, viewed, sufficiently so is inconclu- error similar defendant’s in the instant improbable inherently or that reason- sive case. The Court in any Moore said that minds must have entertained a reason- able prejudice arising from the of po- exclusion doubt that defendant committed able jurors tential who impose would never the crime of which he was convicted.”34 penalty death counterbalanced clearly this The evidence in case is suffi- requirement that the trial court also excuse degree cient to sustain a conviction of first any for prospective juror cause who would and all of the infer- murder. evidence automatically vote for the death penalty reasonably ences that can be drawn from upon a conviction of degree first murder. it, light viewed in the most favorable when Since the trial court there individually verdict, jury beyond a to the establish rea- juror asked questions each both and no had her sonable doubt that defendant fa- appeared evidence from the record of bias purpose gaining ther murdered for in favor of either party, this Court found Schreuder, financially. Richard Beh- no error. rens, Manning testified Myles all that Moore controls in the instant case. The her murdered defendant wanted father be- trial court asked juror each possible about cut cause Franklin Bradshaw had defend- Prospective biases. jurors from both ends get off and she financially, ant wanted spectrum were dismissed for cause. her inheritance. Further, nothing in the record indicates that members of the final jury panel however, Defendant, argues that be- were prosecution biased favor of the or actually did not cause defendant inherit against Rather, the defendant. the evi- under terms Franklin Bradshaw’s dence indicates selection of deter- will, the murder could not have been com- mined to fair impartial with no pecuniary gain. or personal mitted predilection imposition pen- of the death This contention is without merit. clear alty. The defendant’s contention of error language of the statute indicates that on point, therefore, has no merit. degree order be convicted of first mur- (l)(f), under a defendant
der subsection intentionally knowingly must cause the V. INSUFFICIENCY OF person death another the intent THE EVIDENCE gain personally pecuniarily. The fact point gain does appeal Defendant’s next that not so is irrele- It evidence adduced the State at vant. is the intent and which belief trial was insufficient to establish de- controls. Petree, (Utah E.g., 1983) (citation omitted). State v. P.2d Yes, A. he did.
In the instant the evidence indicates that she would in- that defendant believed Q. You don’t consider that some sort of Bradshaw’s will and herit under Franklin promise? get murdered to that she had Bradshaw I don’t A. know what to consider it. The fact that defendant that inheritance. Q. promise you Did he to communicate will, the terms of the misapprehended parole board? gave everything to Berenice Brad- Yes, A. he did. shaw, change defendant’s intent. does Q. sir, you today, you As sit here do Therefore, the was sufficient to expectation maybe have an degree defendant of first murder. convict *12 prosecutor’s communication to the parole get you of jail board will out PROSECUTOR MISCONDUCT VI. going little earlier than are point appeal Defendant’s final on you let out? prosecutor misconduct de is that due to Perhaps. A. process denied due fendant was law. redirect, On Marc testified as follows: three Defendant cites instances which she misconduct. Defendant claims constitute Q. [by question, Mr. One last Jones] argues prosecutor knowingly that the first Marc. You were asked on cross-ex- perjured testimony when he elic introduced any promises amination about testimony promises ited from Marc that no exchange your deals for testimo- exchange him in had been made to for his ny. when, fact, prosecutor: (1) promises except you A. No kind of that agreed report parole to the board had appear parole at the will board. it
that Marc had testified at trial and that Q. anyone promise you And did ever prosecutor’s opinion was the that he had you your that if testified sentence (2) truthfully; agreed testified had would be reduced? to use Marc’s at defendant’s trial A. No. him if against at his retrial his conviction Q. you if anyone promised Has ever appeal. was reversed on testify, you’re going to released pertinent The facts that are to this con- prison early? tention are as follows: On direct examina- A. No. Marc, tion, prosecutor asked “Has Q. exchange appearance for the you in any promises there been made to representation to the board what exchange your testimony?” Marc an- you expected to do? are swered, “No, there haven’t.” On cross-ex- amination, following exchange took
place: Well, expected A. I am to tell the truth prosecu-
Q. [by Mr. Hasn’t the today, Rosen] in court to tell the truth here promised tor to communicate on happened it about this whole board, parole your sir? behalf thing. Yes, they A. have. doing Q. you Are that? Jones,
Q. prosecutor, And Mr. has Yes, A. I am. you through are you told that after exchanges is clear from the It above against go- testifying here Mom he’s prosecutor and the considered both Marc parole ing send a letter to the promises original answer that no Marc’s you, That’s about isn’t he? board exchange him in had made to his been you? promised what he testimony to been a truthful answer. have No, A. it’s not. Thus, testimony could not have been perjured Q. knowing use the State of testi- say he he would communicate Didn’t parole you? mony; board about day The after the truth and above in fact did truth- attorney given, telephoned fully. his George, investigator Mike for the Salt During closing argument, prosecutor office, County Attorney’s Lake and asked pointed again out the omissions in Marc’s if agree- there hadn’t been both a second examination, arguing on direct urging ment at made of Marc’s attor- promises insignifi- that the so made were ney immediately before Marc went cant as to be irrelevant to Marc’s decision forgotten said he had stand. Marc about testify. Thus, all had attorney’s because he not shared before fully capable facts it and was concern but was concerned that his omis- weighing both those facts and credibili- misinterpreted. agree- sion would be ty of the witness.38 ment was not to use prose- Defendant also contends gave against trial defendant’s Marc at a repeated cutor made efforts to introduce subsequent trial if conviction Marc’s disregard inadmissible of trial appeal. reversed on The trial court was rulings court deeming the inad- immediately contacted and the situation ex- missible. This contention has no merit. plained. upon stipulation judge, The trial court ruled that evidence of state- *13 defendant, counsel for both the State and by ments made Franklin con- Bradshaw the informed of the omission. cerning proposed changes in his will would This said Court has that the State’s be inadmissible unless the es- State could knowing perjured testimony use of would proper tablish a foundation that defendant process violate defendant’s to due proposed changes. was aware of the any “if there is reasonable likelihood that prosecutor attempted to lay that founda- the false could have affected the tion. The trial court sustained defendant’s judgment jury.”35 of the This is even true objections questioning to the State’s line of the not intentionally when State does solicit objections whenever those proper. were merely the false but it to allows prosecutor While the attempted to the lay go appears.36 uncorrected it when witnesses, foundation with several he Felony perjury by is committed a witness any overstep not in fashion the bounds on the stand when he makes false materi- proper conduct.39 al statement under oath or affirmation and finally contends that the cu- does not believe the statement to true.37 be mulative effect of all the errors that took It is be thus to seen that Marc’s place at trial mandate that con- defendant’s he testify by that was not induced to rea- viction be As reversed. discussed hereto- promises son of made does constitute fore, we do not note error. The convic- perjury, it nor could have affected the judgment tion and are therefore affirmed.
judgment
jury.
of the
contrary, by
To the
virtue of the cross-examination and redirect
DURHAM,
(concurring
Justice
separate-
by
examination Marc and
judge’s
ly)-
admonition,
specific
the jury
fully ap-
was
prised
promises
of all
made. Notwith-
I respectfully submit that Justice Stew-
standing
promises made,
Marc further
concurring opinion
art’s
and to some extent
testified
he
expected
that
was
to
majority opinion
tell the
had misdirected their
Shabata,
(Utah
35. State v.
678 P.2d
implies
789
38. Defendant
also
that some
1984) (citations omitted);
State,
prior
Walker v.
State’s contacts with Marc
to
624
trial were
and, indeed,
(Utah 1981).
improper
project
the conduct does
P.2d
690
However,
appearance
impropriety.
Shabata,
789; Walker,
678
P.2d
624 P.2d at
point
appeal.
issue was not raised as a
on
Sullivan,
110, 115,
39. See State v.
6 Utah 2d
U.C.A., 1953,
37. See
(Repl.
§§ 76-8-501 to -502.
212, 216,
denied,
P.2d
74,
cert.
355 U.S.
78 S.Ct.
ed.).
Vol. 8B (1957).
2 L.Ed.2d admissibility of Dr.
ces and Lavinia would starve or that the
analysis of
family would
disowned.
testimony.
It is clear that
they
merely
prove
offered
were
correctly concludes
majority opinion
they
made. Just as Marc
were
could testi-
object
failed to
the defendant
fy
any hearsay problem, for
without
exam-
of the
on the basis of
admission
ple, that his mother raised her voice or
preclud-
is therefore
Rules 403 and
window,
opened
may testify
as to
theory
appeal.
arguing that
ed from
say
he heard her
if
what
However,
Dr. Moench’s
since I believe
tes:
not offered to show that what she said was
hearsay, given the
timony did not contain
true.
offered, I
think
purpose
which was
by
analysis
question
of that
both
statements,
Marc’s out-of-court
as distin-
superflu-
majority
Frances’,
and Justice Stewart
guished hearsay
were not
Moreover,
confusing
opinions
are
ous.
pursuant
were offered
failing
identify precisely the content
801(d)(1)(B)
implications
Rule
to rebut
majority
purpose
by
raised
defense
Marc’s trial tes-
objec-
finds
approves and Justice Stewart
timony
improperly
influenced or moti-
tionable.
by
opin-
As
the majority
vated.
indicated
ion, Marc
at the
testified
trial about his
testimony repeats
Dr. Moench’s
state-
family history
relationship
and his
with his
by
him
ments made to
Schreuder
subject
mother. His
Frances Schreuder and events
about
cross-examination, and a strenuous attack
family history. Dr. Moench referred
their
credibility.
was made on his
The state-
statements made
Frances
indi-
ments made Marc to'Dr. Moench corrob-
example:
rectly,
following
as in the
consistency
orated
Marc’s version of
everything
please
didn’t do
[I]f [Marc]
time, tending to
im-
events over
rebut the
[Frances], she
threaten to lock him
would
*14
plication
his
that he
fabricated
testimo-
out,
threaten to disown him and re-
improper
giving
had an
ny or
motive for
it
they
peatedly told him that
would be
Frances’
That Marc’s
at
trial.1
disowned,
they
would
thrown out'
unreliable,
inherently
the dissent
seems
as
apartment,
they
of their
would wind
asserts,
grounds
would be
for the
gutter.
up
living
in Harlem
in the
That
it,
grounds in this
but not
con-
disbelieve
she
Lavinia
starve if Marc
would
reject
it.
text for the trial court
See
everything
didn’t do
she said to.
(Utah 1986).
Speer,
P.2d 383
State v.
types
There are thus
of statements at
two
analysis
accurate,
by
foregoing
If the
issue here:
those made out of court
Frances,
no need to address the admissibili-
repeated by Marc to Dr. Moench there is
trial,
ty
out
of Dr. Moench’s
under the
and described at
and those made
opinion
all.
by
repeated by
hearsay/expert
of court
Marc and
Dr.
rule at
The
out-
type
Moench at trial.
I
that neither
defendant’s brief focuses
on the
submit
Frances,
hearsay
our rules.
of-court statements of Marc and
of statement was
under
expert opinion
not
not on the
Dr. Moench of-
Frances’ out-of-court statements were
hearsay.
hearsay
they
not “offered in
fered. Those statements were not
were
prove
only possible exception to that conclu-
evidence to
the truth of the matter The
801(c).
is,
possibility
scope of
That
sion is the
that the
Dr.
asserted.”
R.Evid.
prove
subject
exceeded the
were not offered to
that Fran- Moench’s
subjected
regard-
Although
part
Dr. Moench testified as
to extensive cross-examination
case-in-chief,
testimony,
ing
ence,
improper
State’s
that
was not offered to rebut a
that fact does not mean
fabrication of
influ-
testimony regarding
Marc’s statements
offering
improper
By
motive.
Dr.
charge
improper
Marc's,
testimony immediately
Moench’s
after
influence or motive. Direct
can func-
was able to rebut inferences from
the State
response
when it
in
tion as rebuttal
is offered
thereby strengthen
cross-examination and
its
Here,
attacks made on cross-examination.
Marc testified
version of events.
prior
to Dr. Moench and
by
testimony.
matter
Marc’s trial
evidence that is
as
exception
covered
admissible
an
hearsay
If
was contained in Marc’s
rule
still
new evidence
violate the
Moench,
clause,
diffi-
statements to Dr.
would be
confrontation
as the United States
position Supreme
recently
cult
to sustain the
Court has
for the State
reiterated.
—
Illinois,
—,
simply
that Dr. Moench’s
Lee v.
U.S.
106 S.Ct.
However,
(U.S.1986).
rebuttal.
the defense
made
ring opinion of Justice DURHAM. 803(4) ception found in Rule of the Utah STEWART, (concurring Justice re- Evidence, pur- Rules “Statements for sult). poses diagnosis treatment,” of medical authority admitting Dr. Moench’s Although I concur much of ma- testimony of Marc Schreuder’s assertions reached, jority opinion I and with the result of his mother’s out-of-court statements. disagree majority’s position with the majority upon also relies Rule the out-of-court statements that Frances permits expert to a allegedly Schreuder made to her son Marc part conclusion based in whole or in on a Schreuder, who related them to Dr. Louis hearsay foundation if hearsay is “of a during pri- Moench psychiatric evaluation type reasonably upon by relied experts in murder, or to Marc’s earlier trial for were particular forming opinions field in against through admissible Dr. Moench upon inferences the subject.” Mrs. submit Schreuder. I those statements violate the rule. hearsay held, Court This has even before the *15 adoption of our present evidence, rules of
I. CONFRONTATION
that out-of-court statements made to psy
a
exceptions
The
hearsay
chologist
psychiatrist
numerous
to the
or
were admissible to
rule, and sometimes even out-of-court
the
opinion
establish
foundation for an
as
statements
non-hearsay,
defined to be
to an examinee’s
state.
mental
Kallas v.
in
Kallas,
641,
(Utah
stand
tension
1980)
inherent
with the constitu-
614 P.2d
644-45
See,
right
(statements
tional
e.g.,
of confrontation.
psychologist);
made to a
Lem
Roberts,
56,
9,
Ohio v.
448 U.S.
66 n.
100 mon v. Denver & Rio Grande Western
2531,
9,
(1980).
195, 200-01,
S.Ct.
2539 n.
Assuming applies my Rule in the the admission of Dr. case, psychiatrist psychologist instant a or which referred to what should be allowed to statements Mrs. Schreuder told Schreuder by patient, 803(4) made to him a not within or but fall Rule Rule 703. Nevertheless, patient’s character, personali- regard establish the errors traits, mind, ty not state to establish were harmless because evidence of the truth proposition of a factual about Frances Schreuder’s declarations that bore person. potential important another for unrelia- on the issues in the trial was patient supported by evidence; evidence is incalculable when other ble a cumulative reports however, psychiatrist psychologist recognized to a the error should be as person declarations of third those if no such and dealt with as error had declarations are then used to occurred.1 establish asserted matter to incriminate
.truth analysis Justice Finally, Durham’s party. the third In this Dr. Moench’s nonhearsay requires Marc’s beyond “history”; went She it was comment. asserts that nonhear- included statements made say impli- “to rebut because was adduced pertained Mrs. Schreuder Marc that di- cations raised the defense that Marc’s rectly guilt. to Mrs. Schreuder’s improperly trial influenced evidentiary analysis pro- Whether rule or motivated.” There is no that ad- 803(4) ceeds under Rule or Rule the mits would be what otherwise inadmissible same, although hearsay purposes generally. result should there rebuttal *16 applying Certainly, is difference in the effect of the statements not were admissi- hearsay rules. un- prior two When is admitted ble as consistent statements to rebut fact, Rule not In der it is admitted for the an attack “recent fabrication.” asserted, of the truth matter but as a the evidence was not admitted rebuttal all; expert’s opinion. part prosecu- foundation for It is came in of the as a generally, likely not although always, less tion’s case chief. Justice Durham also — —, Illinois, evidentiary 1. The issue involves what dou- U.S. 106 S.Ct. 90 L.Ed.2d was Furthermore, hearsay prior adoption present (U.S.1986). ble our confrontation though hearsay issue, rules of evidence. Even is admissible if both double in a extent it exist cannot aspects qualify under an by hearsay be resolved the mere redefinition of rule, exception hearsay to the the confrontation nonhearsay. See id. issue that is involved still exists. Lee v. Cf. asserts that Mrs. Schreuder’s out-of-court hearsay statements were Utah, The STATE of Plaintiff for the
were not offered truth of mat- Respondent, and asserted, “merely prove they ter but disagree. were made.” I Dr. Moench was v. testify, for example, allowed to that Marc SMITH, Tyrone David Texas, Midland, purchased left where he Appellant. and weapon, plans murder because of and that Marc and Mrs. Schreu- conversations No. 19283. der had entered into. That and other state- ments, by one of was excluded Supreme of Utah. Court court, plainly trial based on state- were Sept. ments Mrs. Schreuder made to Marc. Rehearing Oct. Denied
III. PROSECUTOR MISCONDUCT I record discloses what think was clearly improper part conduct on the
prosecutor. Marc When Schreuder was on witness, prosecution stand as a he testi- prosecution
fied that made no had him;
promises prosecution and the al- fact, In
lowed that statement to stand.
that testimony prosecutor was false. The promised appear with Marc at his
first appearance. Board of Pardons Marc promised prosecu- immunity also from
tion for crimes which he admitted. conduct,
Notwithstanding prosecutor’s
Marc’s perjurious statements even- were
tually up cleared cross-examination counsel, and form therefore no defense However, prosecu-
basis for reversal.
tor’s appears conduct to have Dis- violated 7-102(A)(4)
ciplinary Rule of Rule IY of the
Revised Rules of Professional Conduct Whiteside, Bar. State Nix v. Cf
—
—,
U.S.
106 S.Ct.
(U.S.1986). addition, prior investigator to trial an
from County Attorney’s the Salt Lake of-
fice had Marc released prison
took him to a hotel to visit his father girlfriend
also took Marc and his ato movie University of Utah where she
was to be into society. inducted an honor I
submit that the extraordinary treatment
afforded prosecution
wrong, prosecution’s as was the failure to
disclose to the court Schreuder’s false
testimony.
HOWE, J., concurring concurs in
opinion of Justice STEWART.