STATE of Utah, Plaintiff and Appellee, v. Fred W. STANDIFORD, Defendant and Appellant.
No. 20345.
Supreme Court of Utah.
Dec. 30, 1988.
767 P.2d 1358
The Commissioners make several arguments in response, the most prominent of which is that section 78-12-40 does not apply to this case because the investors failed to file the required notice of claim in the first suit and such a filing was necessary for them to “commence” the prior suit “within due time,” as section 78-12-40 requires. The Commissioners’ argument is without merit. In Utah, suits are commenced by the filing of a complaint or the service of a summons, not by the filing of a notice of claim, which is more properly classified as a precondition to suit than as the means of commencing a suit. See Foil v. Ballinger, 601 P.2d 149, 149-50 (Utah 1979);
The next question is whether section 78-12-40 actually extended the time for bringing this action. In making that determination, we need not decide which of the three statutes of limitation actually applies to this case because we conclude that under any of them, section 78-12-40 did extend the time for filing and that the investors commenced their action within the period of the extension. One purpose of section 78-12-40 is to assure that claimants are not deprived of potentially valid suits by appeals that are not resolved until after the applicable periods of limitation run. In accordance with that purpose, we have held that if dismissal of a first action is appealed, section 78-12-40‘s extension of time for filing a second action runs from the date of the dismissal‘s affirmance. See Guthiel v. Gilmer, 27 Utah 496, 508, 76 P. 628, 632 (1904) (decided under section 2893, Revised Statutes 1898, a predecessor to section 78-12-40).
For the purposes of this appeal, the investors concede that their cause of action accrued on June 18, 1980, the date of Grove Finance Company‘s closure by the State. The shortest period of limitations that could apply is the one-year period provided by
We have considered all of the Commissioners’ other arguments in support of the summary judgment and find them to be without merit. The judgment is reversed, and the case is remanded to the trial court.
HALL, C.J., HOWE, Associate C.J., and STEWART and DURHAM, JJ., concur.
David A. Hansen, Phil L. Hansen, Steven L. Hansen, Salt Lake City, for defendant and appellant.
STEWART, Justice:
Defendant Fred W. Standiford was convicted of second degree murder for the fatal stabbing of Hisae Wood. He appeals the conviction on a variety of grounds. We affirm.
I. THE FACTS
Sometime between 3:00 a.m. and 4:00 a.m. on April 27, 1984, Hisae Wood was
The next day, Standiford contacted Granato and asked if he had heard that Mrs. Wood had been murdered. Later that day, Standiford was questioned by the police. Afterwards, he told Granato that they were both in trouble and that if the police asked, Granato should tell the police that he and Standiford had not left the garage all night. Granato became concerned, contacted the police, and volunteered a statement about his and Standiford‘s whereabouts and their cocaine purchases. Based on Granato‘s statement, the police searched Standiford‘s house and garage and found incriminating evidence.
When confronted with Granato‘s statement, Standiford confessed to killing Mrs. Wood but claimed that he had acted in self-defense. He asserted that Mrs. Wood came after him with a gun, screaming in Japanese, and grabbed him. He seized the closest weapon, a kitchen knife, intending only to scare her, and since the threat of the knife did not stoр her, he just started swinging the knife. After he realized that Mrs. Wood was dead, Standiford went into the kitchen and washed his hands and the knife, wiped off his fingerprints with a kitchen towel, and turned off the lights in the house. He then took a bag of cocaine, the knife, and the gun allegedly brandished by Mrs. Wood and left. After disposing of the knife, he stopped at a convenience store and then returned home, where he changed his clothes and hid the evidence. The gun he said he took was not found.
Another of Standiford‘s friends, Don Bendixen, testified that several days prior to the incident, Standiford had mentioned to him that Mrs. Wood‘s husband was going to be out of town and that it would be easy to “knock her out and possibly kill her and take everything she has.” When Bendixen commented that that was “crazy thinking,” Standiford replied that he was only joking.
After Standiford was charged, defense counsel contacted Dr. Lincoln Clark, a psychiatrist, and asked him to evaluate Standiford‘s case to determine whether he could assist the defense. Counsel gave Dr. Clark defendant‘s file, which consisted of police reports and a transcript of Standiford‘s taped confession. Defendant asserts that it may have also contained a handwritten statement of facts prepared by Standiford for his attorney, although Dr. Clark testified that he did not remember reviewing any handwritten statement. The next day, Dr. Clark informed counsel that his opinion would not help the defense and that the file could be picked up. At trial, Dr. Clark testified on behalf of the prosecution and in rebuttal to defendant‘s expert that Standiford‘s drug abuse was not a significant factor in committing the homicide.
II. JURY UNANIMITY ON TYPE OF SECOND DEGREE MURDER
Defendant argues that the jury instructions on second degree murder violated his right to a unanimous jury verdict under article I, section 10 of the
III. JURY INSTRUCTIONS
A. Malice Aforethought: Second Degree Murder
Standiford asserts that the trial court erred in failing to instruct the jury that second degree murder required proof of “malice aforethought.” Prior to the adoption of Utah‘s current criminal code in 1973, murder was defined as “the unlawful killing of a human being with malice aforethought.”
For many years the definition of second degree murder has been the unlawful killing of a human being with malice aforethought, and . . . manslaughter was the unlawful killing of a human being without malice. In our opinion the new criminal code has not changed those definitions.
In at least one other case, this Court has also referred to “malice aforethought.” State v. Norman, 580 P.2d 237, 240 (Utah 1978).
The present criminal code abandoned the common law terminology of malice aforethought and adopted more descriptive and precise language describing the requisite culpable mental states in defining the various crimes. Since the term “malice afore-
Murder in the second degree—(1) Criminal homicide constitutes murder in the second degree if the actor:
(a) intentionally or knowingly causes the death of another;
(b) intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another;
(c) acting under circumstances evidencing a depraved indifference to human life, he engages in conduct which creates a grave risk of death to another and thereby causes the death of another; or
(d) while in the commission, attempted commission, or immediate flight from the commission or attempted commission of [certain enumerated felonies], [the actor] causes the death of another person other than a party. . . .
These terms are comparable to the old malice aforethought, but are much more precise and less confusing. The statute treats these forms of homicide as having similar culpability. Second degree murder is based on a very high degree of moral culpability. That culpability arises either from an actual intent to kill or from a mental state that is essentially equivalent thereto—such as intending grievous bodily injury and knowingly creating a very high risk of death. The risk of death in the latter two instances must be so great as to evidence such an indifference to life as to be tantamount to that evidenced by an intent to kill. In contrast, the felony-murder provision of the second degree murder statute is something of an exception to the above principle, as it does not require an intent to kill or any similar mental state.
The trial court framed its second degree murder and manslaughter instructions in the statutory language and correctly refused to give defendant‘s requested malice aforethought and absence of malice instructions. See Bolsinger, 699 P.2d 1214; Fontana, 680 P.2d 1042. To the extent that Farrow v. Smith, State v. Norman, and any other cases have perpetuated the use of malice afоrethought with respect to second degree murder, they are disapproved.
B. Manslaughter
Defendant also challenges the trial court‘s refusal to give his requested heat-of-passion manslaughter instruction. The common law, and our previous law, defined manslaughter, inter alia, as a killing committed without malice, and the term “without malice” meant a homicide committed either (1) in the “heat of passion” for which there was an adequate provocation, or (2) by an unduly dangerous or otherwise unlawful act. Instead of incorporating the “heat of passion” standard, the current criminal code redefined that type of manslaughter to describe the conduct of one who
causes the death of another under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse. . . .
Defendant also challenges a number of other instructions, contending that they were misleading or inconsistent.
C. Specific Intent
First, defendant argues that instruction No. 21, which defined second degree murder, was an erroneous statement of the law and was inconsistent with instruction No. 20, a general instruction requiring that a specific intent must be proved beyond a reasonable doubt. We disagree.
Instruction No. 21 stated:
Criminal homicide constitutes murder in the second degree if the actor: (a) intentionally or knowingly causes the death of another; or (b) intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another; or (c) acting under circumstаnces evidencing a depraved indifference to human life, he knowingly engaged in conduct which creates a grave risk of death to another and thereby causes the death of another.
Instruction No. 21 was taken verbatim from the statutory definition of second degree homicide in the criminal code, except for subparagraph (c) above, which was modified to conform to our opinion in Fontana, 680 P.2d at 1046-47, by adding the term “knowingly.” Instruction No. 21 was not erroneous as far as it went but, for reasons explained below, should have been amplified with respect to the magnitude of the risk of death required in depraved indifference murder.
In any event, instruction No. 21 was not inconsistent with instruction No. 20, which stated: “[W]ith respect to an offense such as charged in this case, specific intent must be proved beyond a reasonable doubt before there can be a conviction.” Instruction No. 21 did not use the term “specific intent“; nor did it have to.3 Rather, it specifically incorporated the culpable mental state requirements set out in the statute. Although the jury may have had some doubt about the meaning of the term “specific intent,” it was unambiguously instructed on the mental states it had to find to convict, and it was adequately instructed elsewhere on the necessity of proof beyond a reasonable doubt as to all elements.
In the future, trial courts should define the term “specific intent” for the jury, if that term is used; and if it is, it should be
Defendant also argues that Bolsinger, 699 P.2d 1214, requires an instruction that a specific intent to kill is necessary to convict of depraved indifference murder.4 Defendant‘s reading of Bolsinger is incorrect. Bolsinger did not hold that depraved indifference murder requires a specific intent to kill, by which defendant apparently means a purposeful killing. Rather, the Court stated that depraved murder requires “a knowing doing of an uncalled-for act . . . which is so heinous as to be equivalent to a ‘specific intent’ [or a purpose] to kill.” (Emphasis added.)5 Id. at 1220. This statement was part of the Court‘s explanation of the nature of the depravity necessary for depraved murder. We continue to adhere to that concept.
D. Second Degree Murder: Depraved Indifference
Defendant asserts that instruction Nos. 19 and 23 are inconsistent. Instruction No. 19 set forth the statutory definitions of intentional, knowing, and reckless conduct, which were taken essentially from
The term “depraved indifference” has been used previously in these instructions. The term is not specifically defined by statute. Thus, the phrase “depraved indifference” is a concept which must be left largely to the experience and common sense of the jury.
To engage in conduct with a “depraved indifference to human life,” a person must do more than act “recklessly,” but he need not have as his conscious objective or desire to cause the result; nor, need he be aware that his conduct is reasonably certain to cause the result.
Rather, the greatness of the risk which the defendant‘s actions create and the lack of justification for the creation of the risk is the test to be applied in determining whether the defendant‘s conduct evidences a “depraved indifference to human life.”
This instruction defines “depraved indifference” partially in terms of two different elements of depraved indifference murder, the requisite culpable mental state and the “depraved indifference to human life” element.
The term “depraved indifference to human life” does not refer to the mens rea, or subjective culpable mental state, of depraved murder,7 but rather to an objective reasonable person standard as to the value of human life. Thus, the element of depraved indifference must be based on an objective evaluation of the magnitude of the risk created and of all the circumstances surrounding the killing. Bolsinger, 699 P.2d at 1218-20; Fontana, 680 P.2d at 1044-48. See also People v. LeGrand, 61 A.D.2d 815, 402 N.Y.S.2d 209, cert. denied, 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130 (1978).
Paragraph one of instruction No. 23 told the jury that the term “depraved indifferencе” was to be defined according to the jury‘s “experience and common sense.” While experience and common sense no doubt influence every juror‘s judgment as a practical matter, the jury should be instructed as to the legal meaning of depraved indifference, and that meaning is to be derived from the purpose the term is intended to serve in the context of the homicide statutes. Clearly, depraved indifference is not proved by proof of a single, unanticipated tragic result. Bolsinger, 699 P.2d at 1220. Depraved indifference means an utter callousness toward the value of human life and a complete and total indifference as to whether one‘s conduct will create the requisite risk of death (discussed below) of another. See Bolsinger,
Defendant correctly points out that paragraph two of instruction No. 23 did not state that a defendant must consciously act and knowingly create a grave risk of death, as required by Fontana, 680 P.2d at 1044-48. However, the intended thrust of instruction No. 23 was to explain the degree of risk to human life that a defendant‘s conduct must create to be guilty of depraved murder and to differentiate the different degree of risk required for reckless manslaughter. Another instruction, set forth the requirement that the defendant act knowingly.
Paragraph two of instruction No. 23 states that depraved indifference does not mean either recklessness or a purpose or desire to kill or conduct that is reasonably certain to cause death. Insofar as the instruction focuses on the mental state, it is not incorrect to state that depraved indifference falls between purposeful or intentional conduct on the one hand and reckless conduсt on the other. While that is correct, depraved indifference focuses on the gravity of the risk to human life that is created and the callousness of attitude toward that risk. The deficiency in the instruction was not objected to and, in any event, could not have operated to the detriment of defendant.
The second paragraph of instruction No. 23 did not affirmatively describe the gravity or degree of risk to human life that the defendant‘s conduct must knowingly create; rather, the instruction stated what the risk need not be. Technically, the instruction was not incorrect. However, the instruction should define the term “grave risk of death.”
In light of the less than pellucid treatment of the elements of depraved murder reflected above, we once again address the elements of depraved indifference murder. The statutory definition of depraved murder under
To understand the legal elements of depraved murder, it is necessary to trace briefly the development of the law under
The criminal code defines the term “reckless” to mean a mental state in which one “is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or that the result will occur.”
To abolish the overlap between manslaughter and depraved murder, the Legislature deleted the word “recklessly” from
Even after Fontana, however, depraved murder and reckless manslaughter had so much overlap that they both would have applied to the same conduct. See Recent Developments in Utah Law, 1985 Utah L.Rev. 131, 150-56; Note, Statе v. Fontana; An Illusory Solution to Utah‘s Depraved Indifference Murder Mens Rea Problem, 12 J.Contemp.L. 177, 186-87 (1986). That is so because the term “reckless” requires a “conscious awareness of a risk,” and conscious awareness of a risk (manslaughter) is the same as “knowing” that a risk exists (depraved murder). Furthermore, there is no meaningful difference between a “substantial and unjustifiable risk” of death (manslaughter) and a “grave risk of death” (depraved murder). Whatever slight degree of difference does exist is, as a practical matter, essentially wiped out by the horror of the irreversible actuality, the death of a person.9 Certainly the difference in law between a substantial risk of death and a grave risk of death should be explained to a jury in meaningful and understandable terms.
Furthermore, the difference between the crimes of manslaughter and depraved murder must be intelligible to avoid capriciousness in the prosecution of the crimes. Depraved murder requires greater culpability than recklеss manslaughter. People v. Register, 90 A.D.2d 972, 456 N.Y.S.2d 562 (1982), aff‘d, 60 N.Y.2d 270, 457 N.E.2d 704, 469 N.Y.S.2d 599 (1983), cert. denied, 466 U.S. 953, 104 S.Ct. 2159, 80 L.Ed.2d 544 (1984). See also Bindrup, 655 P.2d at 676. It would be wholly out of harmony with the basic structure, and the moral and penal premises, of the criminal code to impose liability for a form of second degree murder that has no greater moral culpability than is required for reckless manslaughter.10 The instructions should, therefore,
In sum, the jury should be instructed that to convict of depraved murder it must find (1) that the defendant acted knowingly (2) in creating a grave risk of death, (3) that the defendant knew the risk of death was grave, (4) which means a highly likely probability of death, and (5) that the conduct evidenced an utter callousness and indifference toward human life.
Contrary to defendant‘s contention, the trial court made clear that defendant had to act knowingly in creating a grave risk of death. And while the gravity of the risk of death was not explained with quite the precision set out here, the instructions, nevertheless, were not essentially wrong, and we do not believe the jury was misled. In any event, 107 stab wounds is sufficient evidence that defendant created a highly likely probability of death. Any error in the instructions was harmless.
E. Instructions Regarding Self-defense, Robbery, and Burglary
Defendant next argues that the trial judge erred in giving instruction No. 32 on self-defense, which stated in part:
A person is not justified in using force under the circumstances specified . . . [above] if he:
(a) initially provokes the use of force against himself with the intent to use force as an excuse to inflict bodily harm upon the assailant; or
(b) is attempting to commit, committing or fleeing after commission or attempted commission of a felony; or
(c) was the aggressor or was engаged in combat by agreement unless he withdraws from the encounter and effectively communicates to such other person his intent to do so and the other notwithstanding continues or threatens to continue the use of unlawful force.
See
It is error to give an instruction if there is no evidence to support it and if it could be misleading. See State v. McCardell, 652 P.2d 942, 945 (Utah 1982); State v. Pacheco, 27 Utah 2d 281, 495 P.2d 808 (1972). This instruction was not misleading, and it was pertinent to the facts. The jury heard evidence that defendant went to the victim‘s home to rob and kill her. Under the circumstances, it was appropriate to instruct the jury that defendant could not claim self-defense if he provoked the use of force, was committing or fleeing after committing a crime, or was the aggressor. Just as a defendant is entitled to have his theory presented to the jury if there is evidence to support it, so is the State entitled to have its theory presented if there is evidence to support it. There was such evidence here.
Defendant also attacks the trial court‘s instructions giving the elements of robbery and burglary. Ordinarily, the jury should not be instructed about crimes not charged in the information. State v. Booker, 197 Kan. 13, 415 P.2d 411 (1966). The delivery of the robbery and burglary in-
Defendant also argues that the prosecutor made improper references in his closing argument to burglary and robbery. The prosecutor referred to burglary and robbery as evidence that defendant was thinking rationally during the crime, was not under the influence of drugs, and was not entitled to the defense of self-defense. We do not believe that the references constituted error on the facts of this case since the prosecution was entitled to argue that defendant‘s motivation was to steal drugs.
F. Instructions on Voluntary Intoxication
Defendant argues that instruction Nos. 28, 28a and 28b, which dealt with the defense of intoxication, are inconsistent. Instruction No. 28 states:
Voluntary intoxication is not a defense to a criminal charge unless such intoxication negates the existence of the mental state which is an element of the offense; however, if recklessness or criminal negligence establishes an element of an offense and the actor is unaware of the risk because of voluntary intoxication, his unawareness is not a defense.
Instruction No. 28a states:
Voluntary intoxication as used in these instructions may include being under the influence of cocaine and/or marijuana. If the degree of intoxication is great enough it may negate the mental elements required for proof of Murder in the Second Degree, in which case you must acquit the defendant of that charge.
Instruction No. 28b states:
In the State of Utah the statute relative to mental illness and the influence of controlled substances is as follows:
It is a defense to a prosecution under any statute or ordinance that the defendant, as a result of mental illness, lacked the mental state required as an element of the offense charged. Mental illness shall not otherwise constitute a defense.
A person who is under the influence of voluntarily consumed or injected alcohol, controlled substances, or volatile substances at the time of the alleged offense shall not thereby be deemed to be excused from criminal responsibility.
Mental illness means a mental disease or defect. Mental defect may be a congenital condition or one the result of injury or a residual effect of physical or mental disease.
Defendant argues that paragraph 2 of instruction No. 28b, which states that a person who is intoxicated by alcohol or other substances is not “excused from criminal responsibility,” is inconsistent with instruction Nos. 28 and 28a and that it is incorrect.
We disagree. Instructions 28 and 28a were based on
Instruction 28b simply reiterated the statutory language of
Defendant also argues that instruction No. 28b should not have been given because he did not claim to be not guilty by reason of insanity. However, defendant placed his mental state in issue by presenting evidence of toxic cocaine psychosis, apparently to support the partial defense of diminished capacity. For that reason, the instruction on mental illness was appropriate.
G. Defendant‘s Proposed “Theory of the Case” Instruction
Defendant also attacks the trial court‘s refusal to give an instruction explaining defendant‘s “theory of the case.” Instructions generally ought to be drafted with a view to assisting the jury to understand the issues they have to decide. Too often instructions simply repeat arid, dense statutory language that the trial judge does not relate concretely to the issues in a case. Nevertheless, the framing of instructions lies in the trial judge‘s discretion. Here, the trial judge was asked to give highly tendentious and argumentative “contention” instructions. He did not err in refusing to do so. The court‘s instructions on manslaughter, self-defense, and voluntary intoxication gave defendant the legal framework for his theory of the case, and counsel‘s arguments to the jury clearly elucidated the factual and legal issues from defendant‘s point of view. See State v. Torres, 619 P.2d 694, 695 (Utah 1980).
H. Instruction on Lesser Included Offense of Negligent Homicide
Finally, defendant attacks the trial judge‘s refusal to give defendant‘s requested instruction on the lesser included offense of negligent homicide. State v. Baker, 671 P.2d 152, 157-59 (Utah 1983), held that a defendant‘s requested lesser included offense instruction must be given when there is some evidence which supports the theory asserted by defendant. The requirement is more than a procedural nicety; it is rooted in defendant‘s constitutional right to a jury trial. A dеfendant is entitled to have his legal theory of the case placed before the jury if it would not be superfluous to do so because of an absence of any evidence to support the theory. Sometimes prosecutors overcharge, and sometimes expected evidence just does not
Negligent homicide is conceptually related to reckless manslaughter. Reckless manslaughter requires that a defendant be aware of the risk of death. Negligent homicide requires only that a defendant “ought to be aware of a substantial and unjustifiable” risk of death.
Here, 107 stab wounds bespeak at least a knowledge of the risk of death, if not an actual intent to kill. Although the line between the risks that a person is in fact aware of and the risks that he ought to be aware of may well be imprecise in some cases, that is not so here. Even if the jury had believed that defendant did not know of the great risk of death because of drug intoxication, that would not have relieved him of liability for manslaughter. In short, on the facts of this case, there was no evidence that would support defendant‘s theory of negligent homicide. Furthermore, since the jury convicted of second degree murder despite the fact that an instruction was given on the lesser included offense of manslaughter, failure to give a negligent homicide instruction was, at the very best, harmless error.
IV. EFFECTIVE ASSISTANCE OF COUNSEL
Standiford also argues that his right to effective assistance of counsel was violated when the trial court allowed Dr. Lincoln Clark, a psychiatrist who had briefly consulted with defense counsel, to testify for the prosecution. The right to effective assistance of counsel may be infringed when an expert witness is consulted by a defendant or by his attorney for assistance in preparing a defense and communications made to that expert are used against the defendant. See United States v. Alvarez, 519 F.2d 1036 (3rd Cir.1975); United States v. Layton, 90 F.R.D. 520 (N.D.Cal. 1981); Pouncy v. State, 353 So.2d 640 (Fla. Ct.App.1977). But see Noggle v. Marshall, 706 F.2d 1408 (6th Cir.), cert. denied, 464 U.S. 1010, 104 S.Ct. 530, 78 L.Ed.2d 712 (1983); United States ex rel. Edney v. Smith, 425 F.Supp. 1038 (E.D.N.Y.1976), aff‘d, 556 F.2d 556 (2d Cir.), cert. denied, 431 U.S. 958, 97 S.Ct. 2683, 53 L.Ed.2d 276 (1977). We believe that the same principle covers confidential information given an expert for the purpose of initially determining whether the expert can assist in the defense of a case.
Early in the defense preparation of the case, Dr. Clark was given defendant‘s file to review to determine whether he could provide helpful testimony for defendant. The file contained police reports and a transcribed typewritten confession defendant had given to the police. Neither the confession nor the other documents were privileged or confidential. Nor were they elicited in reliance on the attorney-client privilege. Defendant believes that his handwritten version of the facts, which had been prepared for his first attorney, Mr. McCaughey, might also have been in the file. Dr. Clark testified that he remembered reviewing only typewritten fact statements and police reports and that he did not review defendant‘s handwritten statement or any other handwritten statements. The trial court apparently concluded that Dr. Clark reviewed no confidential communications.
There is nothing in the conversations between defendant‘s attorney and Dr. Clark that could have influenced Dr. Clark‘s testimony for the prosecution. Clearly, it would have been preferable for Dr. Clark not to have testified at all, once he consulted with defendant‘s attorney. However, we cannot say that the trial court erred in allowing Dr. Clark to testify. For all that appears, Dr. Clark based his testimony solely on evidence that was adduced at trial by others. In sum, Dr. Clark‘s testimony did not affect defendant‘s right to the effective assistance of counsel. See Weatherford v. Bursey, 429 U.S. 545, 557-58, 97 S.Ct. 837, 844-45, 51 L.Ed.2d 30 (1977); State v. Romero, 624 P.2d 699, 704 (Utah 1981). Defendant‘s intent to rely on the defense of self-defense was evident from his initial statement to police. The conversation between Dr. Clark and attorney Hansen gave the prosecution no insight into the trial tactics of the defense that was not obvious from the police reports and the confession given to the police. Defendant was not entitled to a mistrial, a dismissal of the case because of Dr. Clark‘s conduct, or an order suppressing his testimony.
V. OTHER CONTENTIONS
Finally, defendant argues that the evidence is insufficient to support a conviction for second degree murder. He relies upon his testimony that he was attacked by Mrs. Wood and the brutality of the killing as evidence that the crime was committed in the heat of passion and did not therefore constitute second degree murder. The contention is without merit.
Defendant also refers to a host of other claimed errors as a ground for reversal. In most cases, he has not indicated that a proper objection was made at trial. In numerous instances, he simply states that various errors were made, without attempting to demonstrate the error by argument or by authority. The claims that might properly be bеfore this Court and are not addressed above have been reviewed and found to be without merit. The others are deemed waived.
AFFIRMED.
DURHAM and ZIMMERMAN, JJ., concur.
HALL, Chief Justice: (concurring specially).
I concur in all portions of the majority opinion except to any extent that it implies in section IIIB that Utah‘s manslaughter statute contemplates that emotional disturbances may be triggered by internal stimuli or that a defendant‘s subjective state is relevant in determining whether the explanation or excuse for the disturbance is reasonable.1
HOWE, Associate C.J., concurs in the concurring opinion of HALL, C.J.