*1 Utah, STATE of Plaintiff and
Respondent, SHAFFER,
Daniel Edward Defendant Appellant.
No. 18556.
Supreme Court Utah. 25, 1986.
June *2 Nesset, City, Salt Lake for de-
Curtis appellant. fendant Wilkinson, Gen., Atty. L. John P. David Soltis, Deputy Atty., City, Lake for Co. Salt plaintiff respondent.
DURHAM, Justice: Shaffer, defendant, Daniel Edward jury trial of first was convicted after a murder, degree capital offense in viola- 76-5-202; U.C.A., 1953, aggrava- tion of § degree felony in robbery, a first viola- ted 76-6-302; theft, U.C.A., 1953, tion of § felony in degree violation a second U.C.A., 1953, penalty 76-6-404. After a de- hearing, judge the trial sentenced the imprisonment life on to a term of fendant conviction, years a term of five the murder aggravated robbery, and a term to life for years of one to fifteen for theft. assigns errors for review: seven (1) cremation of the victim’s vio- process rights; the defendant’s due lated (2) of first circumstance personal gain” “other murder titled vagueness and therefore that is void charge have portion of the murder should dismissed; (3) trial court failed to been evidence of the defendant’s other exclude (4) acts; questioning bad The defendant August testified that on 15, 1980, he and Mr. Croasdale qualification” deprived venire for “death drove east 1-80 Croasdale’s van and arrived in jury; impartial the defendant of a fair City evening. Salt Lake After drink- (5) give the trial court failed a “reason- ing bar, several beers in a local they went hypothesis” able alternative instruction sleep in the back of Croasdale’s van. jury; improperly trial sen- court *3 The defendant testified that early the next degree tenced both the defendant for first morning he was awakened a homosexu- murder the included offenses of and lesser al attack Croasdale. The defendant theft; aggravated robbery and and the claims he stated he that wished to leave was for con- insufficient a murder picked up backpack, and then clothing, viction. We affirm conviction sen- the and sleeping bag. events, and In the course tence first murder and vacate over, backpack the fell and the defendant’s the of theft and convictions gun slipped loaded out of pack the and robbery. partially According out of the holster. to 23, 1980, naked, August partially the On defendant, the picked up Croasdale then decomposed body of was Jack Croasdale gun the and threatened the defendant. ensuing a brushy struggle, gun found in area 20-30 feet off the the the fired and the just right bullet struck Croasdale Canyon County. road in East in Salt Lake above the eyebrow. Although the defendant was un- autop- performed The medical examiner an the gun sure of exact distance between the sy body and concluded that the forehead, and the victim’s a courtroom single death to cause of was a bullet wound suggested demonstration that the defend- Approximately the forehead. four months required ant’s version of the events the later, on December the defendant to distance be about twelve inches. Portland, Oregon. was At the arrested arrest, driving defendant dumped time of the defendant was The admitted that he body Canyon Croasdale’s in East that using Mr. Croasdale’s van and was the night; took van Croasdale's and identifica- name of the and identification victim. tion; spent money Croasdale’s Lake Salt The defendant testified at trial he City; Vegas, to drove the van Las where Reno, met Mr. Mr. Croasdale Nevada. name, the iden- defendant used Croasdale’s stopped way Croasdale had in Reno on his card, checks; tity, later credit and and from San Francisco to his home in Ke- Portland, drove the as- to where defendant nosha, had Wisconsin. defendant Throughout identity. sumed Croasdale’s days hitchhiked Reno several earlier trial, the the insisted Croas- defendant Omaha, defendant, from Nebraska. The dale died of an and that the de- accident cents, only eighty arranged who had fendant made the decision to take Croas- drive the victim back to Omaha van dale’s after his death. search of better work to collect several presented testimony The State from sev- met, they minor At the debts. the time theory eral a witnesses substantiate using was defendant the identification per- murder. state medical examiner Lucero, Joseph a St. former roommate at autopsy carefully an examined formed Denver, Abbey in Andrews Colorado. The photographed the determine took defendant Lucero’s identification perpеndi- on cause death. Based abbey when left because entry trajectory cular downward police stop he feared him and wound, bullet, entry the clean ab- probation discover a an violation related to stippling deposits other sooty sence of or August Arizona conviction. On wound, around the medical examiner the defendant had Lucero’s identifica- used Jack was concluded death of Croasdale gun tion a permit, to obtain a .38 caliber a homicide as bullet fired the fatal was Omaha, handgun, and ammunition Ne- eighteen from a distance at least inches point braska. head from the and from outside the judge fin- previous trials. After the trial opinion victim. That was cor- reach of the by officers from the Salt questioning potential jurors, at trial ished he roborated office, County who com- Sheriff's Lake them not to discuss the admonished voir patterns from .38 test fire pared standard of the venire. At dire with other members police special with wound of caliber dire, of voir re- the conclusion that since The оfficers concluded victim. prospective jurors be ex- quested that two stippling scorching, powder no there was U.C.A., 1953, pursuant for cause cused gun fired not caused the wound was 77-35-18(e)(10) inability upon their based § range. at close request impose penalty. the death That proposed denied. The defendant was decomposition and the fact Because of prospective jurors excused for for one seven body remained unclaimed months, U.C.A., 1953, pursuant 77-35- it was released to the cause and one-half 18(e)(14) Medical for dis- University of Utah Center because of their inclination to au- 1, 1980, and subse- penalty. posal tomatically impose October the death *4 releasing Prior to quently cremated. persons pur- were excused for that Four examiner did not body, the state medical pose. hands of the victim to
perform tests on the chemical com- presence of determine the I. the hands of a commonly found on pounds argues first that the de- The defendant pistol. According fired a person who has prior body of the victim’s to the struction examiner, presence to the medical discovery violated defendant’s motion for affect- would not have gunpowder residue right a fair trial mandated the due caused opinion that the death was ed his fourteenth process clause of the fifth and light of all the circumstances homicide Constitu- amendments to United States testimony of Mr. Donald case. The tion, I, article section 7 of the Utah and Havekost, employee, supported the an FBI argues Constitution. opinion. He examiner’s noted medical (A) preserve failed to the State in this exposure decomposition and after exculpatory; have been which could case, powder “highly unlikely” is it (B) adequate failed to conduct an State have been found on the vic- residue would investigation proved to which could have testi- hands. Mr. Havekost further tim’s to the defendant. favorable positive finding would not be fied that a rendering opinion significant in an as to the victim’s hands were on whether A. gun it was fired. when de The defendant contends thаt the pretrial motion for The defendant made a body prior to his struction of the victim’s individual, sequestered death-qualification opportuni discovery request denied him the request of the venire. This voir dire pres hands for the ty to test the victim’s course of granted. Over the two gunpowder residue. The defendant ence of of the days, each member one-half exculpatory that such evidence was asserts brought judge’s cham- into the venire was material to his defense that Mr. Croas- the trial questioning. Typically, bers shooting. died in an accidental dale juror approxi-
judge prospective asked the of this and the Unit- The decisions Court covering about five mately questions ten Supreme Court have established ed States transcript; ques- typewritten pages applied the standards to be to determine tioning apparently lasted about five to ten disclosed evidence should be whether questioning by per person. After minutes gener- prosecution upon request. As a court, counsel for the defendant and rule, prosecutiоn a defend- al violates opportunity poten- to ask the State had the right to a fair trial ant’s constitutional things, such as own- jurors tial about other where, prosecution sup- request, the relationship after handguns, ership and use of to the defend- victims, presses evidence favorable experience other criminal
13Q5
guilt
punish
‘materiality’
material to
or to
establish
ant that is
the constitution-
83,
373
Brady Maryland,
ment.
U.S.
al sense.”
87,
215
83 S.Ct.
10 L.Ed.2d
(quoting
Id. at 106
Agurs,
United States v.
Jarell,
218,
(1963);
224
608 P.2d
97, 109-10,
2392,
2400-01,
U.S.
96 S.Ct.
(Utah 1980).
purpose
The intent or
(1976),
adding
and fourteenth amendments. We reject
argument
this
as well since the defendant
II.
did not receive the
See
penalty.
death
argues
The defendant next
that the
Bumper
Carolina,
v. North
391 U.S.
denying
trial court
erred
his motion to
88 S.Ct.
and 9 of the Utah Constitution. acts, evidence of the defendant’s other bad
There are aggravat- several alternative specifically, prior convictions, criminal for ing may geries, circumstances which be elements cards, unauthorized use of credit degree U.C.A., 1953, of first murder under appeal, and theft. On the defendant chal 76-5-202. aggravating lenges Those circum- pertaining admission of evidence stances include murder in thе course of possible prior three crimes: violation of aggravated robbery, pecuniary probation Arizona; murder for Joseph theft of Luce gain, and murder “for personal Denver, other ro’s wallet and identification in gain.” jury Colorado; in this case was instructed and theft of services for failure aggravated on robbery separate as a pay Omaha, of- for a hotel room Nebrask fense and found the guilty. a.2 jury’s R.Evid.,
Because of the aggrava- 9B, U.C.A., verdict on Rule Utah Vol. robbery, found, (1977), ted we know that the which was in effect at the time unanimously, trial, that the provides defendant committed that other crimes or bad that crime. Since that crime was one of acts be admitted “when relevant to prove circumstances on which the including some other material fact regarding murder, instructed accident, motive, first op- absence of mistake or intent, we know also jury properly portunity, relied preparation, plan, knowl- robbery convicting edge identity.” While evidence of other *7 defendant of first murder. This is gener- bad aсts is inadmissible to the show general defendant, not a case a disposition where verdict is chal- al such evi- lenged dence, in any the absence of competent, indication of when relevant and is ad- which of by prove several alternatives was used to missible a material fact. Tanner, support 539, the 1983). the verdict. Because 675 P.2d the aggra- convicted the defendant of The defendant in this case was tried on offense, murder, robbery separate charges: vated as a we three rob- uphold may jury’s the bery, prior verdict on first de- If and theft. evidence of bad gree alternative, robbery crimes, murder under the any acts was material to of these addressing without the constitutional ade- there was no error. challenges
2. The defendant’s motion in limine covered a
doned
to evidence of bad acts that
range
broader
of bad acts than the three acts
are not
his
mentioned in
brief.
argued
appeal.
on
We assume that he has aban-
proba
the
the victim. The defendant contends that
The evidence of
defendant’s
trial,
in Arizona
identity
during
tion
was relevant
issue
the
violation
was never at
possible
ag
of a
motive for the
proof
the
stipulated
identity.
but he
never
With-
gravated robbery and murder of Jack
stipulation,
out such
the State
a
must af-
Croasdale and for the theft of his van.
firmatively
proof
carry its burden of
trial,
During the
the defendant admitted
provide
connecting
the chain of evidence
identity
Joseph
the
of
Lucero
that he used
weapon
the murder
with the defendant.
because the defendant feared he would be
to jail
and returned
if he were
apprehended
possible
The evidence of a
theft of
recognized
police.
the
stopped and
services from an Omaha hotel came out
Likewise,
defendant testified on direct
the
during
testimony
manager.
the
of the hotel
kept
he obtained and
the
examination that
the
manager
testified that
defendant
to avoid
identification
Jack Croasdale
registered
signed
and
his name
“Joe
problems
pulled
if the defendant were
over
stayed
during
Lucero”
the hotel
the
Thus,
driving
one
while
Croasdale’s van.
period
weapon was pur
that the murder
aggrava
the murder
logical motive for
shop. The
pawn
chased at an Omaha
man
robbery is that the
ted
defendant wanted
ager
per
did not state whether or not the
prevent
that would
obtain identification
registered
paid
son who
as “Joe Lucero”
prosecution by authori
apprehension and
Rather,
manager
for the
hotel room.
probation
ties for the Arizona
violation.
person
August
stated that on
motive is consistent with the defend
This
registered
who
as “Joe Lucero” “was
unidentified,
disposal of Croasdale’s
ant’s
gone,”
keys
left on the
and the
were
desk
body in
remote
it
nude
a
location where
in the room.
pro
readily
not be
discovered. The
While the trial court
have erred in
was therefore material to
bation violation
permitting
statement
the isolated
from
murder, ag
defendant’s motive for the
might
possible
of services
which
theft
gravated robbery, and theft. Accord State
inferred,
alleged
we cannot review
еr-
Neal,
100-02,
123 Utah
in
ror since
defendant’s motion
limine
(1953),
denied,
1056-58
cert.
348 U.S.
adequately
not
describe the criminal act
(evi did
75 S.Ct.
1309
942,
1982)
(Utah
fendant,
(contempora-
questions
P.2d
947
the
regarding
652
the death
objection
requires timely
penalty
ability
impose
neous
rule
and
and
that sanction
specific objection
required
prospective jurors
admission
the
a
assume
question
admissibility
guilty
in order for the
they
verdict before
express
could
appeal).
timely
be considered on
Without a
their
penalty
views of the death
and there-
defendant,
by
objection
predisposed
the
this Court can-
fore
them to find
at trial.
alleged
not review the
error
the trial
purpose
questioning jury
a
venire
court.
on attitudes
death penalty
toward the
is to
identify
persons
those
who would
un
be
suggests
The defendant also
that
willing to follow law and
impose
the
vote to
if
even
the evidence of other crimes was
regardless
the
penalty,
death
of the facts.
admissible, it should
been excluded
have
Norton,
See State v.
577,
589
R.Evid.,
45,
9B,
Rule
Vol.
under
Utah
(Utah 1983),
denied,
cert.
492,
466 U.S.
104
U.C.A.,
(1977).
45,
1953
Rule
Under
1923,
(1984).
S.Ct.
80
470
See also
L.Ed.2d
court has
to exclude
trial
discretion
evi
U.C.A., 1953, 77-35-18(e)(10).
1968,
In
probative
dence if the court finds that the
Supreme
United States
held that
Court
“substantially
of the evidence
value
out
venireperson
capital
in
case
weighed by the risk
its
that
admission
excluded for
if he or
unwilling
cause
she is
time,
unnecessary
consume
would
cause
consider
“to
penalties
provided
all the
unfairly
prejudice,
surprise
or
par
undue
Illinois,
Witherspoon
the state law.”
Tanner,
ty.” 539,
675
547
21,
510,
1770,
391 U.S.
n.
S.Ct.
1983).
say
We
cannot
trial
21,
(1968) (emphasis
n.
which followed general proposition IV. that a [establish] juror may challenged for not be cause The next issue we address is wheth capital based punish- on his views about trial deprived er the court the defendant of ment prevent unless those views would impartial questioning a fair substantially impair performance or venire on its views toward the death juror of his duties as a accordance penalty, violation of defendant’s with his and his oath. The instructions sixth, rights eighth, under the and four however, may insist, jurors teenth amendments to the United States impar- will consider and decide facts Constitution, I, and article sections tially conscientiously apply the law 12 of the Utah Constitution. We do charged by court. treat, raised, not because it was not Id. question of whether the exclusion of veni- at 2526. The S.Ct. Court repersons for an venirepersons cause creates unfair and went to hold that certain jury. Instead, partial focus on the had been improperly we de excluded because of possible imposition fendant’s contention that the voir dire statements that the questioning .may jurors penalty might itself death bias who “affect” eventually case, more, thereby violating hear the Without their deliberations. such a right the defendant’s sixth amendment statement did not “an demonstrate unwill- impartial According ingness inability jury. part an to the de- or an
1310
argues
many
The
social
court’s instructions and
jurors to follow the
50,
Witherspoon
at
100
at
since
demon-
obey their oaths.” Id.
S.Ct.
science studies
death-qualified jurors
2529.
strate that
are more
likely to convict a defendant and more in-
Witt,
412, 105
Wainwright v.
469 U.S.
In
impose
penalty.
clined to
the death
Ac-
(1985),
844,
841
the Su
83 L.Ed.2d
S.Ct.
defendant,
cording
death-qualified
to the
the sixth
preme
explained that
Court
right
impar-
to a fair and
jury violates
guarantee
impartial jury
of an
amendment
representative
from a
tial
selected
to a selection
does not entitle the defendant
community.
cross-section of the
likely result
the seat
standard that will
ing
jurors in the defendant’s favor:
of
argument
flatly reject-
Defendant’s
nothing
juror
talismanic about
is
[T]here
Supreme Court in
ed
the United States
merely
—
Witherspoon
under
be
exclusion
-,
McCree,
U.S.
106
Lockhart v.
sentencing
capital
ju
cause it involves
(1986).
1758,
teration
beyond a reasonable doubt.” Id. at 183.
juror’s
death-quali-
the
observations of
explained
Instruction No. 10 in this case
venireper-
fication of his or her fellow
proof placed
the burden of
on the State and
exactly
of
how exten-
sons is “a function
explained
meaning
the
of “reasonable
questioning
the
becomes. The more
sive
Therefore,
doubt.”
there was no error.
you
questioning,
extensive the
the more
expect
important
find
differ-
jurors
ences
the state of mind of
between
VI.
through
process
who have been
one
pred
The next issue is whether the
compared
to those who have been
underlying felony
felony
of
murder
icate or
through
proposition
This
im-
other.”
barring
thereby
is a lesser included offense
plies
corollary:
“the extent to which
degree
conviction of both first
murder and
are minimal
a func-
will be
[these effects]
predicate felony.
The defendant con
question-
tion of the extent to which the
separate
felony
tends that
sentences for
ing is minimized.”
“underlying
offenses” of
murder and
79-80,
aggravated robbery
at
13|3 first, is two-fold: question attempt The threshold commission оf or an to commit flight committing or is a lesser included offense after or attempting whether theft and, second, aggravated robbery Aggravated Robbery commit Robbery wheth- or or robbery, predicate the homicide felony pecuniary er was committed for murder, personal degree gain.” prosecution is a other for first lesser included introduced evidence to find the degree murder. offense of first guilty 1983), of first murder Hill, under each of P.2d 96 Court possible the three aggravating circum- held under the facts that case that the stances charged aggravated robbery, pe- crime of lesser included theft is a offense — cuniary gain, personal gain. and other aggravated robbery of the crime verdict forms returned did not not that the defendant could be sentenced aggravating indicate which circumstance In defining included both offenses. they upon relied to find the defendant offenses, the Court stated that “where the *12 guilty. The fact that the also found greater two crimes ‘such that the can- are aggravated defendant guilty of rob- necessаrily not be committed without hav- however, bery, assume, us to allows lesser,’ ing Baker, committed the earlier, aggravated discussed robbery 1983), ([Utah] 671 P.2d then as a aggravating served as an circumstance. they relationship matter of in the law stand offenses, greater of and lesser punished convicted or defendant cannot be case, Under the therefore, facts of this Hill, for P.2d at 97. both.” Our hold- proof aggravated robbery of was a neces-
ing in
dispositive
Hill
is
this issue.
sary element
proof
degree
of first
felony
taking
Since the same
act of
criminal
that,
murder. There can
no
doubt
personal property
Croasdale’s
was neces-
alone,
standing
aggravated
the crimes of
aggravated
sary
robbery
to the theft and
robbery
degree
sepa-
and first
murder are
charges, theft is a lesser included offense
rate offenses. The offenses are found in
aggravated robbery.
The lesser offense
different sections of the code. First de-
merges
greater
of theft
into the
therefore
gree
against
per-
murder is an offense
thus,
aggravatеd robbery;
offense of
son,
aggravated robbery
whereas
is an of-
improperly
trial court
convicted and sen-
However,
against
fense
property.
under
for
tenced the defendant
theft.
separateness
the test for
found in section
76-1-402(3), aggravated robbery becomes a
determining
aggrava
In
whether
degree
lesser
of first
included offense
felo-
robbery
ted
is a lesser included offense of
where,
ny murder
in the situation such as
murder, we
degree
analysis
first
follow the
bar,
predicate felony
case at
suggested
Hill,
opinion
our
State
degree
aggravated
first
robbery.
murder is
thus some reference to the defendant contends tory involved in elements the offenses that the evidence was insufficient to con given facts order to determine whether vict him of criminal homicide. The defend “required to the commis- are establish prove contends ant that the State failed to charged.” This re- sion of the offense requisite that the defendant had the intent overlap quirement that there exist some necessary support a conviction for first allegedly statutory in the elements of degree murder. claim is entirely That prevent “included” offenses would requisite without merit. The mental state argument totally unrelated offenses degree “intentionally for first murder is simply could be deemed included because U.C.A., 1953, 76-5-202(1). knowingly.” necessary prove some of the evidence “may Intent be inferred from the actions of necessary prove crime one was also surrounding the defendant or from circum example, prov-. the other. For Murphy, stances.” State v. ing involving only trial theft (Utah 1983). charge of first homicidе would *13 Despite testimony the defendant’s that offense not make theft a lesser included shooting Croasdale died an accidental 76-l-402(3)(a) none of under because § during struggle, ample a there is evidence statutory the of theft and homi- elements support jury’s in the record to the verdict. overlap. cide presented by The evidence the State’s ex- (emphasis original). Id. 158-59 The pert regarding the of witnesses distance argues relationship that the between weapon the murder from the victim’s fore- degree theft and first murder discussed theory head substantiated the State’s that relationship is the same as the' Baker be- of gun the was outside the reach the vic- aggravated robbery degree tween and first addition, jury could in- tim. the have problem analysis, murder. The with this intentionally that the defendant however, theft, ferred is that unlike killed Croasdale based on the defendant’s robbery, aggravating is not an circum- area, disposing of the in a remote degree stance under the first murder stat- ute, U.C.A., 1953, 76-5-202(l)(d). property, taking Croasdale’s van and other Be- depend assuming identity in Las cause we are constrained to on the Croasdale’s murder, felony predicate holding carefully must be tions of based on the 3. We note that aggravating predi- felony aggravated kidnap- or kidnapping, read. If the circumstance of felony degree cate for first murder is different proof ping required since each crime of at least charged, there from an additional offense element). separate one distinct and independent grounds adequate to convict the though they of both offenses even defendant parenthetically pecu- 4. We note that under the single episode. For arise out of a example, criminal of theft liar circumstances this case and first special forms in this case if verdict degree totally murder are not unrelated offenses "pecu- jury indicated that the relied on the had niary” case, taking suggested by Baker. In this the personal gain" aggravating cir- or "other personal property Croasdale’s established the cumstances, the defendant cоuld have been con- provided ag- of theft and an element of crime degree aggrava- victed of both first murder and, gravated robbery aggra- extent that to the circumstance, aggrava- robbery. that ted Under robbery aggravating vated served as the circum- robbery included ted would not be a lesser stance, Thus, degree first murder. under the rely jury since the would not offense case, statutory taking facts of this the element of elements of each same facts to establish the personal property is common to both theft and Coleman, See, e.g., crime. 299, 310-13, 185 Mont. murder, degree making theft a lesser in- first (1979) (no 1008-10 offense of first murder. cluded degree statutory or violations for convic- constitutional guilt Similarly, Portland. the sciousness of Vegas and consciousness —but reasonably that the could have inferred any consistent of several other knowingly killed intentionally or degrees argue of homicide. To the that acquire and to property his Croasdale prove requisite State could intent of the avoiding the identity, thereby assume charged beyond crime a reasonable doubt being and re- possibility apprehended on this evidence and whatever other evi- probation Arizona to face revoca- turned to (which dence there is the record virtu- is proceedings. tion none) ally a mockery principle makes of the sentence The defendant’s conviction and that each of a element crime must be degree for first murder are affirmed. proved beyond a reasonable doubt. aggravated rob- for theft and convictions only shooting direct evidence of the bery set aside. are came from the defendant who testified that discharged gun while he and the victim C.J., HALL, and HOWE and ZIMMER- it struggled for after the victim attacked JJ., MAN, concur. course, the defendant. Of could STEWART, (dissenting). Justice part of testimony. believe all or that How- that a Clearly evidence establishes ever, part the defendant’s testimo- occurred, is not homicide but homicide ny simply most favorable to the verdict first murder unless the defendant gun beyond just established that was killing victim with the shot the intention grasp immediаte at the it victim’s time wholly I him. submit evidence discharged, fact consistent with testi- insufficient to establish that the defendant mony of the medical examiner. The medi- victim with that The Court shot the intent. was gun cal examiner testified that the de- against summarizes the evidence eighteen inches more from the defend- following paragraph: fendant in ant fired. To conclude when it presented by The evidence the State’s kill from defendant intended to the victim expert regarding witnesses distance Fur- speculation. is sheer weapon murder victim’s of the from the thermore, angle entry bullet’s theory substantiated the forehead State’s nonprobative inten- altogether of an *14 gun was of the that the outside the reach killing. tional addition, In infer jury victim. could argument jury could reach intentionally killed that the defendant killing of an an inference intentional based based on the dis- Croasdale defendant’s subsequent acts of the defendant’s area, in posing body of the a remote area, 1) in disposing body of the a remote proper- taking Croasdale’s van and other 2) рroper- victim’s and taking the van other assuming identity in ty, and Croasdale’s 3) Las ty, assuming identity his and Vegas on all Las and Portland. Based Portland, an Vegas and is not inference evidence, reason- could have logic speculation. One founded in but inten- ably inferred that the defendant manslaughter, well who has committed knowingly killed tionally Croasdale his acquire property his his as one who has violated the terms of and to assume thereby avoiding identity, possibility parole, highly likely to act in such being apprehended and returned person sim- manner. I submit reasonable probation pro- Arizona face revocation beyond find ply could not a reasonable ceedings. rather doubt that homicide was murder manslaughter. case, In such a our than evidence, only From this could finding mandates a criminal code speculate defendant intended U.C.A., 1953, 77-17-1. lesser offense. showing kill the victim. The evidence 121, Golladay, 78 Wash.2d See State disposed a remote defendant 129-30, (1970), area, overruled property, the van and and took other Arndt, 87 identity, grounds, assumed the viсtim’s shows con- on other 1330-31 Wash.2d
(1976). court
Finally, I the trial submit prior in the of some of the
erred admission and that that
criminal acts of the defendant may have
erroneously admitted evidence finding it did. jury make the
induced the view, proof requirement of my re- doubt has been
beyond a reasonable case. formality
duced to a mere committed first de-
Perhaps the defendant speculate. so But
gree murder —one requisite not meet the
the evidence does
legal prove it. standards Harmon, Utah, Nephi, for defendant Milton T. Plaintiff STATE Respondent, appellant. Wilkinson, Gen., Atty. Salt Lake David L. respondent. City, plaintiff WADE,
Johnny Defendant Owen Appellant. PER CURIAM: 860248. No. sexually defendant In November Supreme Court of Utah. acquaintance and at- a female assaulted her. Mo- intercourse with tempted sexual
Aug. 1986. blanket, earlier, draped only in a ments body to several exposed had Still dressed people at a local cafe. blanket, he then walked the victim’s home, aggravated assault oc- where the charged curred. Defendant *15 assault. sexual convicted 76-5-405, U.C.A., as amended § charged (Supp.1986). Defendant was also acquitted attempted first de- gree homicide. filed an appeal, defendant’s counsel
On that, in advising Anders brief this Court appealable no errors opinion, there were right of any affect substantial below that Clayton, defendant. See State 1981); U.C.A., 77-35-30 supple- (1982 ed.). brief was Defendant’s pro se brief and a letter mented with a