State v. Tuttle

Utah, Appellee, Plaintiff STATE TUTTLE,

Wesley Allen Defendant Appellant.

No. 20068.

Supreme Court Utah.

April 1989.

Rehearing Denied Oct. Brown, City, Lake for

Kenneth R. Salt appellant. defendant and Dam, L. Sjogren, R. Paul Van Sandra City, plaintiff appellee. for Salt Lake ZIMMERMAN, Justice: Wesley appeals Allen Tuttle Defendant degree first jury from conviction of his murder, received life sen- for which he 76-5-201, Ann. tence. Utah Code §§ (Supp.1988). -202(l)(q) Tuttle makes three appeal. claims on He contends that him erroneously trial court forced to waive jury penalty phase to right his to a in the being qualified” avoid tried a “death guilt phase; in that the court trial admitting erred hypnotically enhanced expert testimony excluding and in testimo- ny is hypnotically unreliable; 76-5-202(l)(q) and that section Code, knowing or classifies killing “espe- in an intentional committed heinous, atrocious, cruel, cially excep- depraved degree tionally manner” as first murder, reject is unconstitutional. We agree first claim. his Tuttle’s claim, second but find that error was claim, respect harmless. With third although agree we do that section 76- unconstitutional, 5-202(l)(q) facially when the statute construed be consti- tutional, apply it cannot to the facts of this However, case. we do find that all the degree second elements of murder were necessarily proven. We therefore reverse judgment entry of a remand degree fоr second murder and conviction appropriate of an sentence. imposition we find that the elements of Because proven and second murder were conclude that the errors which in the admission of occurred testimony and in the exclusion of harmless when were context, the evidence will be set viewed detail. out in some September On the afternoon of up Parley’s Sydney Ann Merrick traveled Canyon they general Datsun on an errand were consistent in their her white employer. body Her recollections. The husband testified for her was discover- day off-ramp he ed later that her car on the and his wife discussed their observa- way of the Summit Park exit. She had been tions on the to Salt Lake because it big towing stabbed several times. was odd to see such a truck small car. brought The State Tuttle to trial on degree murder, charges of first Another man testified that he driv- was penalty may imposed, ing past Parley’s the death his way Summit on guilt. Midway offered circumstantial evidence of his when he saw a flatbed truck parked Merrick’s father and her fiance both testi- in front of a economy small white fied, by stipulation, photographs that her Datsun car. was He said that of the truck prone overheating. driving appeared A mechanic testified Tuttle was to show the appeared that the Datsun to have overheat- truck he had seen. He testified that he September ed on 26th. He also testified saw a white woman and a white man with a mustache, hair, signs having collar-length that the car showed been days’ and four recently. growth standing towed The of the beard the car between truck; appeared medical examiner and of the witnesses who the tickling the man to be woman, legs protruding saw Merrick’s from her then became violent and placed Datsun the time of death at around shoved her backward into the car. This p.m. description 2:30 witness’s of the man he saw appearance matched Tuttle’s at the time of Tuttle, telephone Records of calls that a the murder. Another witness testified that driver, employer truck made to his from trying he saw a man to kiss a near woman stops along placed Interstate 15 him in the Parley’s off-ramp. Summit The wit- p.m. area of the murder at about 2:30 On car, seeing foreign ness recalled a compact question, returning the date Tuttle was seeing but did not remember a truck. Evanston, California, Wyoming, from delivery. where he had made presented expert a He was The State an witness driving a blаck Chevrolet one-ton truck who testified that a strand of hair found in pulling thirty-foot compatible without a bed that was a the victim’s car was with a sam- equipped ple flatbed trailer. The truck was hair. Tuttle’s The medical examiner bug bearing a with screen the word testified that a knife identified which was “Apache,” employer. by the name of Tuttle’s as either one Tuttle or as similar owned owned, by This was the such truck to one that he could owned have inflicted Apache. presented The truck carried a chain Merrick’s wounds. The State ev- towing. hooks that could be used for idence that Tuttle he had washed truck driving upon immediately returning been to. they Several witnesses testified had that Evanston. State also established that seen a truck similar to Tuttle’s in the can- apparent after it became that he was a yon on the afternoon of the A murder. suspect, Tuttle fled from Evanston and acquainted witness who was with the changed appearance by cutting his his hair Apache Company testified that while trav- shaving his mustache. eling through passenger the canyon as a p.m., sometime between 2:00 and Tuttle took the stand and offered his 3:00 he truck, day a dark thirty-foot saw one-ton with a version of the events on the bug stopped trailеr that said murder. He testified that he his screen “Apache,” towing light-colored off-ramp A truck on the side of the to take a car. couple' driving nap. awakening nap, who had been to Salt Lake After from the he lugnuts City they testified that reached Par- left the to check the before truck ley’s p.m., continuing journey. point, At he Summit 2:15 and 2:30 his between lifeless, they towing bloody body Merrick’s saw a truck with a trailer a discovered car, occupied by young parked white car woman with her which was behind he couple’s hair the color of the victim’s. The truck. He stated that he fled because descriptions diverged record and feared that he slightly, of the truck had a criminal a flatbed trailer. He rather than had a box The State elic- wrongly accused. would be reliability eye- on the expert testimony from several witnesses called an ited trip explained that his who told them either Tuttle had witness first from that he fled uneventful or of such was affect factors that from Evanston scene and later Long, the crime running a car suspected he because was He also nn. 487-95 & off the road. challenged the State’s expert who called an the scene hair found at that the presented to excul- chief evidence testifying compatible with Tuttle’s was testimony of a witness pate Tuttle inconclusive. comparison was Parley’s in the to have been who claimed cross-examination, however, it was During first scouting for elk when he area Summit off-ramp. member- alone on the claimed saw Tuttle’s truck revealed that later, minutes Approximately society fifteen that did ship professional in a off-ramp again and looked at among him its members.2 list ap- had like the victim’s saw that a car guilt on a verdict of jury The returned legs ex- he saw peared. He claimed that charge. Tuttle first murder Tuttle, he whom tending from the car and right jury a his to have had earlier waived in running, apparently recognized, later receive a death decide he should whether horror, light-colored vehicle. from the small impose death judge The did sentence. after the revealed that Cross-examination imprisonment. Tuttle to life sentenced but jail in spent weeks witness had two challenges the convic- appeal, Tuttle Tuttle, testimony to the On his he offered grounds. in his He first claims that exchange concessions tion on three for investigator for the motion denying case. An his own criminal the trial court erred attempted to had qualified.” testified that he not “death jury for a that was going to the story by verify the witness’s hypnotically enhanced He also claims claimed to spot from which the witness admitted, testimony should not have been found it the murder scene and have viewed was, expert testimony on that once it using binoc- impossible, the witness’s even not have been exclud- its should person at ulars, gender of a to discern the constitutionality Lastly, he attacks the ed. scene, person’s identity or let alone the degree murder statute. We of the first also estab- expressions. facial separately. claims treat each of these will restricted was a lished that partici- legally have person who could not he enti first claims that was Tuttle for which he claimed pated in the elk hunt non-death-qualified jury. Some to a tled preparing.1 to be required. Utah Rule background is 18(e)(10)provides that Procedure Criminal his proffered Tuttle wife’s charged jury and a murder is capital September 24th be- had shaved on that he court is to remove impaneled, the trial and therefore fore he left for California refuse to those who would from the venire by grown a noticeable beard could not have penalty rea impose death vote who saw 26th. Tuttle called witnesses generally State v. оf conscience.3 See truck that sons a van or with a a white car with 18(e)(10) provides Procedure a Rule of Criminal person or have not own 1. A restricted charged custody, offense dangerous weapon possession, part follows: "If the in his as death, entertaining [by] crimes of vio- of such punishable Individuals convicted of control. persons. See Utah Code penalty restricted opinions lence are the death about conscientious 76-10-503(1) (1978 Supp.1988). & voting §Ann. juror preclude the from as would impose following penalty conviction death up of the evidence described 2. None excluding regardless cause for [is of the facts point enhanced. was (codified 18(e)(10) juror].” R.Crim.P. Utah (1982)). 77-35-18(e)(10) Ann. § at Utah Code jurors prospective The removal for cause jury proper qualification is if the Death conscientious ob- that because of who indicate penalty. See Utah R.Crim.P. determine the will penalty they impose death jection will not (codified 18(e)(10) Ann. at Utah Code warranting imposition they its even if find facts (1982)). 77-35-18(e)(10) jury. qualifying” Utah "death is termed Schreuder, any sponte 726 P.2d court can raise sua at time. 1986); Moore, 697 P.2d 237-38 E.g., Society Journalists Professional (Utah 1985). selected, jury (Utah. Before a Bullock, 743 P.2d death-quali- Tuttle asked that the court not Restaurant Ass’n v. Davis Utah 18(e)(10).' fy jury required by rule Health, County Bd. of argued death-qualified juries He are (Utah 1985). standing, To have Tuttle they unconstitutional because are more pal- some distinct and must have “suffered prone during guilt phase to convict gives personal him pable injury that they represent the trial and because do not Swan, stake in the outcome.” Jenkins v. a fair population.4 cross-section of the (Utah 1983) (citations motion, When the trial court denied the omitted); Society accord Professional Tuttle informed the court that order to Journalists, 1170; Res- at Utah having guilt by avoid determined Ass’n, taurant 709 P.2d at 1162. Determi- death-qualified jury, he would waive his question require nation of the does not right jury penalty phase. to a in the See lengthy analysis. Tuttle was not tried 76-3-207(1) (Supp.1988). Utah Code Ann. § death-qualified jury “inju- and suffered no judge Because the would then determine ry” by reason of his forced choice because 18(e)(10) penalty, rule inapplica- became he the most received lenient sentence a impaneled ble and the trial court a non- jury could have recommended. He there- death-qualified jury guilt phase. for the standing fore lacks to raise the fair cross- guilt This returned a verdict of and section and prоpensity-to-convict issues. judge was excused. trial heard the Jenkins, 675 P.2d at 1151. For these presented during penalty reasons, we do not reach his claim.5 sentence, phase imposed and a life group Tuttle’s second of claims relates to possible more lenient of the two sentences hypnotically testimony6 enhanced for first murder. See Utah Code one He witness. contends that trial 76-3-206(1), 76-5-202(2) (1978 Ann. & §§ permitted court erred when it a witness to Supp.1988). Despite having received the testify to matters that the witness “remem- most lenient sentence allowed for first de- only undergoing hypnosis. bered” after gree murder, Tuttle claims that the trial He also claims that it error to exclude was “forcing” court him erred to waive his proffered expert testimony on the unrelia- right penalty to a in the phase by bility hypnotically testimony. enhanced denying non-death-quali- his motion for a jury. fied propriety first address the claim, admitting hypnotically enhanced testi Whatever merits of Tuttle’s standing mony. hypnotized, we will not consider it if he Before he was the wit lacks Standing question gave to raise it. is an issue that a a statement indicat- ness 6.Testimony post-hypnotic 4. Tuttle bases these claims on the federal consti- recall has been guarantees by jury, names, impartial tution’s notably of trial an referrеd to various most punishment, See, freedom from cruel and unusual testimony." e.g., "hypnotically refreshed Const, VI, process. and due VIII, Seé U.S. amends. National Institute of Justice Issues and Practic- I, 7, 9, XIV. He also cites article sections es, Hypnotically Testimony: Enhanced Refreshed and 12 of the Utah Constitution but has failed to Memory Tampering (January with Evidence? separately. brief the state constitutional issues 1985) National Institute [hereinafter Justice]. We therefore address his federal constitu- "hypnotically testimony" We find Lafferty, tional claims. State v. descriptive be a more accurate term (Utah 1988); Earl, 1247 n. 5 "augmented,” "enhanced” denotes while "re- (Utah 1986). freshed" denotes "revived." See Webster’sNew (2d Dictionary International ed. brief, 5. We note that since Tuttle filed his cases, suggests many Scientific research that in Supreme United States Court has considered hypnosis simply does not revive dormant mem- rejected and the same claims of federal constitu ories, augments a witness’s actual memories attempted has tional error that Tuttle to raise by adding pseudo false or memories them. regarding death-qualified juries. here See Lock 1-2, See, McCree, e.g., National Institute of Justice at hart v. 476 U.S. 9 5-11, 14-24, L.Ed.2d 137 (overruling (1984) 177, 179-88 flatbed S.E.2d glossy black had seen a ing that he Collins, Md. McQueen); State something on its doors written truck with (overruling Harding-), A.2d 1028 towing car with an uncomfortable- a small 382, 427 A.2d State, Md.App. Polk he He said that saw looking girl in it. also Harding). (1981) (modifying Park pulled at the Summit the truck off was a truck driver exit and that inadmissibility has This trend toward wearing a dark baseball “scroungy” man and now momentum gathered considerable shirt, clothing similar cap light blue undisputed direction represents the ar- wearing he to what Tuttle Prewitt v. e.g., in this area. law hypnosis, in Evanston. Under rived (Ala.Crim.App. 460 So.2d bug screen the truck’s stated that Ark. Rock it, gave a more “Apache” on the word had on other (1986), rev’d 708 S.W.2d Tuttle, description of the car complete 44, 107 S.Ct. grounds, many details that additional and “recalled” Atwood, L.Ed.2d internally conflicting inconsistent. were 258,262-64 Conn.Supp. (Conn. 479 A.2d trial, objected to the Tuttle’s counsel At Haislip, Super.Ct.1984); 237 Kan. any information “re- testifying to witness’s 461, 482-83, 701 909, 925(1985); People being hypno- the first time after called” for Gonzales, 615, 626, Mich. 329 N.W.2d tized; testi- sought he to limit the witness’s (1982), grounds, on other modified prehypnotic statements. mony to his Als 417 Mich. 336 N.W.2d 751 objection and ad- judge overruled this trial Bader, 823, 830(Mo.1985) bach v. 700 S.W.2d testi- testimony. The witness mitted the (en banc); People v. Hughes, N.Y.2d pre- post- fied to details from both 492, 495, N.E.2d The witness also hypnotic recollections. v. Peo N.Y.S.2d truck, as the driver оf the identified Tuttle 319 S.E.2d ples, 311 N.C. done so before though he had never even Hypno Note, Pretrial (1984) (citing the trial.7 Competency on its Witness sis and Effect pass had occasion We have never Trials, Neb.L.Rev. in Criminal admissibility decisions (1983)). Only few recent Ingersoll- See Mulherin en admission permit (Utah 1981) Co., 1301, 1302 Rand 628 P.2d case-by-case on a testimony, even hanced admissibility (declining to comment on Brown, 337 v. State basis. testimony). the course of the of such Over Wren, 425 v. State (N.D.1983); 138 N.W.2d so, across the twenty years courts last Hurd, v. (La.1983); 86 N.J. State 756 So.2d approaches to different nation have taken Arm State v. (1981); 525, A.2d 86 432 Initially, the at different times. this issue 386, 555, N.W.2d 329 strong, 110 Wis.2d tendency to admit such displayed courts 2125, denied, 946, 103 S.Ct. 461 U.S. cert. evidence, accepting it as “scientific” State, (1983); Chapman v. L.Ed.2d 1304 77 State, See, e.g., Harding v. 5 reliable. (Wyo.1982). 1280 638 P.2d 302, (1968), 230, 236, 306 Md.App. 246 A.2d feder- 2030, twenty-five states and one denied, 949, 23 At least 89 S.Ct. cert. 395 U.S. McQueen, hypnotically enhanced exclude v. (1969); 295 al circuit State L.Ed.2d 468 Valdez, 722 v. United States 414, testimony. 96, 119, 427 244 N.C. S.E.2d State, Cir.1984); Prewitt v. (5th trend F.2d 1196 However, period of time this after a (Ala.Crim.App.1984); Contr- carefully 460 So.2d 296 results of reversed as the State, (Alaska 1986); P.2d 129 eras v. 718 studies accumulated. scientific controlled Court, Superior ex rel. Collins v. tended to exclude such State The later decisions (1982); 180, State P.2d 1266 testify Ariz. 644 132 permit and to witnesses Mena, 226, See, P.2d 1274 e.g., v. 128 Ariz. 624 prehypnotic recall. only to their State, 566, Ark. 708 Rock v. 515, 518-33, (1981); 288 Peoples, 311 319 State v. N.C. Thus, we do know whether the wit- ever sion. the witness was It is not clear whether hypnotic have done so. identify ses- ness could Tuttle before the asked to

1209 grounds, rev’d on other (1986), Or, refreshing S.W.2d 78 they recollection. have 44, 2704, despite 483 U.S. 107 S.Ct. 97 L.Ed.2d 37 reasoned that the lack of scientific People Shirley, v. (1987); 18, 31 acceptance, Cal.3d 723 great danger there is a denied, cert. 1354, 243, Cal.Rptr. 181 jurors give will undue credence to such 860, 133, 459 U.S. 103 S.Ct. 74 L.Ed.2d 114 “scientifically enhanced” (1982); People Angelini, v. State, e.g., Prewitt v. 706 P.2d 2 296, 460 So.2d 301-04 Quintanar, People v. State, (Colo.Ct.App.1985); ‍​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​​​‌‌​​​​‌‌‌​​‌‌‌​‌‌‌​​‍(Ala.Crim.App.1984); Contreras v. v. State (Colo.Ct.App.1982); 659 P.2d 710 129, (Alaska 1986); State 718 P.2d 134-36 Atwood, 273, Conn.Supp. 39 Court, ex 479 A.2d 258 Superior rel. Collins v. 132 Davis, v. State (Conn.Super.Ct.1984); 490 180, 183-86, 195-99, 201, 208-09, Ariz. 644 State, Bundy v. (Del.1985); A.2d 601 471 1266, 1281-85, 1287, 1294-95 denied, cert. (Fla.1985), So.2d 9 479 U.S. State, v. Rock (1982); 566, 570-72, 288 Ark. 894, 295, (1986); 107 S.Ct. 93 L.Ed.2d 269 78, (1986), rev’d on other 708 S.W.2d 80 State, Walraven v. 276, 255 Ga. 336 S.E.2d grounds, 44, 2704, 483 U.S. 107 S.Ct. 97 State, v. Bobo (1985); 146, 798 254 Ga. 327 (1987); People Shirley, v. L.Ed.2d 37 31 State, Peterson v. (1985); S.E.2d 208 448 18, 40, 51-66, Cal.3d 723 P.2d State, Strong v. (Ind.1983); N.E.2d 673 Cal.Rptr. 243, 256, 263-72 v. Seager, State (Ind.1982); N.E.2d 969 Quintanar, People v. (1982); 710, Haislip, (Iowa 1983); State v. N.W.2d 420 711-12 (Colo.Ct.App.1982); State v. At 461, State v. wood, 39 Conn.Supp. 273, 479 (1985); 237 Kan. 701 P.2d 909 258, A.2d Collins, 670, (1983); 296 Md. 464 A.2d 1028 261, 262-64 (Conn.Super.Ct.1984); State Kater, Commonwealth v. 519, 388 Mass. Davis, A.2d (Del. 603-05 People v. Gon (1983); 447 N.E.2d 1985); Bundy State, So.2d zales, 415 Mich. 329 N.W.2d 743 denied, (Fla.1985), cert. 13-18 (1982), modified, 417 Mich. Wal (1986); 93 L.Ed.2d 269 Mack, (1983); N.W.2d 751 State, raven v. 276, 280-82, 255 Ga. Bader, Alsbach v. (Minn.1980); N.W.2d 764 State, (1985); Bobo v. S.E.2d 802-03 (Mo.1985) (en banc); 700 S.W.2d 823 146,148, (1985); Ga. S.E.2d Patterson, 213 Neb. 331 N.W.2d 500 State, Peterson v. 448 N.E.2d Palmer, (1983); Statе v. 210 Neb. Haislip, State v. (Ind.1983); 237 Kan. People Hughes, (1981); N.W.2d 648 478-79, 482, 909, 923-24, N.Y.2d 453 N.E.2d 466 N.Y.S.2d Collins, (1985); Md. 676- Peoples, State v. (1983); 311 N.C. 78, 701-03, 1028, 1032-34, 464 A.2d 1044- Harmon v. (1984); 319 S.E.2d 177 Kater, Commonwealth v. Robi (Okla.Crim.App.1985); 700 P.2d 212 519, 520, 524-28, 533-34, Mass. 447 N.E.2d son v. (Okla.Crim.App. 677 P.2d 1080 (1983); People 1190, 1193, 1195-97, Smoyer, Commonwealth v. 505 Pa. Gonzales, 615, 622-27, 415 Mich. Commonwealth 476 A.2d 1304 Mack, N.W.2d Nazarovitch, 496 Pa. 436 A.2d 170 Als (Minn.1980); 292 N.W.2d Commonwealth, v. (1981); 214 Bader, Greenfield bach v. 823, 824, 700 S.W.2d 828-29 710, State v. (1974); Va. 204 S.E.2d 414 Patterson, State v. (Mo.1985) (en banc); Coe, 832, (1988) 109 Wash.2d 750 P.2d 208 686, 690-91, 500, 213 Neb. 331 N.W.2d 503 Martin, v. (en banc); State 101 Wash.2d Palmer, State v. (1983); 206, 210 Neb. 713, v. (1984) (en banc); State 684 P.2d 651 648, (1981); 313 N.W.2d 654-55 Laureano, 745, 101 Wash.2d 682 P.2d 889 People Hughes, 523, 536-45, 59 N.Y.2d Coe, (en (1984) banc); 101 Wash.2d 484, 490-95, 255, 453 N.E.2d 466 N.Y.S.2d 772, (1984) (en banc). 684 P.2d 668 Peoples, (1983); 261-66 311 N.C. 515, 529, 531-33, 177, 185, 319 The courts that S.E.2d 187- have excluded admission State, Harmon v. (1984); 88 hypnotically testimony enhanced 700 have Robison grounds (Okla.Crim.App.1985); on 214 testimony done so that such (Okla.Crim.App. They unreliable. have 677 P.2d 1085 noted that the rele- denied, cert. 1246, 104 1984), community accept vant scientific does not S.Ct. Common (1984); hypnosis dependable forensic as a method 831 L.Ed.2d recognition of the this Court’s Natzarovich, 97, 101-11, with accord 496 Pa. wealth v. theory memory reconstructive (1981); modern 436 A.2d 172-78 Greenfield 483, 488-90, 494 n. Long, Commonwealth, Va. Martin, S.E.2d 713, 719-24, 101 Wash.2d have held Virtually all of the courts that 654-57 testimony inadmissi- ‍​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​​​‌‌​​​​‌‌‌​​‌‌‌​‌‌‌​​‍hypnotically enhanced decisions, rejec least community’s grounded current their at The scientific have ble testimony is satisfy hypnotically enhanced failure to a threshold part, on the rejection of the view scientific evi- apparently requirement proffered based on tape recorder camera or that the mind is a reliable dence must be shown before re can be which historical events from These courts have it can be admitted. accessi by simply pushing a button trieved requirement phrased threshold United hypnosis. ble under or another of terms of either one version (5th Valdez, 722 F.2d States acceptance test or some the Frye general and Misuse Cir.1984) Orne, The Use (citing analogous reliability test. Under other Court, Hypnosis in Int’l J. Clinical States, (D.C. Frye v. United 293 F. 1013 (1979) Hypnosis Experimental Cir.1923), testimony based on a novel scien- Putnam, Misuse]; Use [hereinafter only if the procedure is admissible tific Eyewitness Hypnosis and Distortions general- underlying principles scientific are Memory, 27 Int’l J. Clinical and Experimen ly accepted the relevant scientific within (1979) 439-40 Hypnosis tal [herein community. Shirley, People v. Putnam]); after agree majority of courts Cal.3d hyp- have considered the issue Reiser, (1982) (citing M. Cal.Rptr. notically should not be Hypnosis ch. Investigative Handbook of present evidence. At admitted into (1980); Reiser, Hypnosis as a Tool in time, unreliability of such tes- the inherent Chief, Investigation, The Criminal Police by the cases and timony is well established Hypnosis as (Nov.1986); Reiser, at by comprehensive articles cited above and Investigation, an Aid in a Homicide by the United study commissioned (1974)). Hypnosis Cur Am.J.Clinical Department of Justice. See Nation- States thought holds that rent scientific Practices, Issues and al Institute of Justice are memory and recall functions mind’s Testimony: En- Hypnotically Refreshed complex much less accu much more Tampering with Evi- Memory or hanced e.g., thought. previously rate than 1985) (“[T]he heavy (January dence? Bartlett, Valdez, (citing F. 722 F.2d at 1200 re- weight of scientific evidence disfavors 203-05, 309-13 Remembering [here eye- refreshed’ ‘hypnotically liance and Misuse at Bartlett]; Use F. inafter reported testimony.”). The studies 437); People Shirley, 321; Putnam at amply demonstrate that in the cited articles 31, 57-66, 1361, 1377- at 723 P.2d at Cal.3d Frye meet the test such cannot (citing, Cal.Rptr. at reliability test for any other threshold alia, F. Bartlett at 203-05, 213, 312; inter scientifically evidence. adduced Psychology Learning Hintzman, D. however, that nei- contends Loftus, Memory E. Frye any nor similar threshold ther the test 60, 70-74, 78, Testimony Eyewitness used to may properly be test 84-87, 90-94, 97-98, 101, 109, exclude the Perma Loftus, On & Loftus on the claim argument This is based in the Hu nence Stored Information expert testimo- apply to Brain, all such tests man Psychologist 35 Am. 409 testimony is ny hypnotically enhanced Loftus, Inter (1980); Hilgard & Effective lay expert but of a testimony of an Eyewitness, 27 not the rogation J. Clin Int’l See, v. e.g., United States 342, eyewitness. Experimental Hypnosis 346-51 ical & 1196, (5th Cir. Valdez, (1979)). F.2d skeptical approach The current to 722 1200-01. hypnotically fully enhanced evidence is

1211 ford, reject argument. question State’s It is reliability is the inherent unrealistically reading based on an literal principles of the techniques scientific Frye analogous test and threshold upon proffered which the evidence is reliability requirements. Other courts Kofford, 1346; Phil based.8 744 P.2d at E.g., State ex lips, have been of the same view. present 615 P.2d at 1234. Because at Court, Superior rel. Collins 132 Ariz. showing reliability no can be made with 180, 197-98, 1266, (1982); 644 P.2d 1283-84 respect hypnotically to testimony, enhanced People v. 18, 53, Shirley, Cal.3d 723 we follow the clear trend and find it inad 1354, 1375, P.2d Cal.Rptr. Further, missible under rule 702.9 (1982); Kater, Commonwealth v. hypnosis subsequent makes all recollec 519, 525-28, Mass. 447 N.E.2d 1195- suspect, testimony regarding tions any Gonzales, People (1983); 415 Mich. thing first recalled from the time of the 615, 623, (1982) (en 329 N.W.2d hypnotic session forward is also inadmissi Bader, banc); Alsbach v. 700 S.W.2d See, e.g., People Quintanar, ble. Hurd, (Mo.1985); State v. 828-29 86 N.J. (Colo.Ct.App.1982). P.2d 525, 536-37, 432 A.2d argues adoption of a rule Martin, State v. 713, 726, 101 Wash.2d excluding hypnotically testimony enhanced (1984) (Brachtenbach, J., P.2d con- put will law enforcement on curring). policy the horns of a of these re- threshold liability applies tests dilemma. It claims that if hypnotically police to en- testimony just prosecution hanced applies as much as it thinks that some useful leads testimony to the experts may because even if developed by be hypnotizing a wit- actually the one testifying lay witness, is a ness, it will forced to choose between hypnotically testimony given enhanced pursuing calling those leads and the wit- by the product witness is the of scientific performs ness at trial. If it hypnosis, See, e.g., Polk v. intervention. it will ability lose the to call the witness at Md.App. 427 A.2d 1048 trial; hypnotize witness, if it does not Bader, Alsbach v. 700 S.W.2d may lose a valuable lead. (Mo.1985); People Hughes, 523, 543, 484, 494, N.Y.2d 453 N.E.2d The State an unnecessarily draws (1983). N.Y.S.2d picture. extreme A number of courts have problem considered this and have fashioned Utah, In admissibility testi compromise position hypnot under which mony and governed by scientific evidence is ically excluded, testimony yet Utah Rule of Evidence 702. See Kofford prosecution permitted to Flora, both follow (Utah 1987). 744 P.2d hypnosis previous leads via and to call the We have abandoned exclusive reliance on ly hypnotized witness at trial. We find this Frye Kofford, See test. 744 P.2d at 1346-48; adopt Phillips Jackson, previously best course and it. A hypnotized stand, 1980). However, take the still have a the witness’s reliability threshold test for the must be limited to of scientific prehypnotic evidence his or her offered for admission recall as it has been Phillips under rule 702. Under recorded e.g., hypnosis.10 before Kof Frye Although satisfying See U.S. standard V, VI, Const. amends. XIV. That nar ruling will meet our threshold satisfac- test, row has no to case such as application Frye is not to one, show where the witness is not only way question Flora, the State. the accused but a witness requisite reliability. Kofford Coe, (Utah 1987). State v. 1343, 1346-48 832, 838, 109 Wash.2d (1988). holding 9. This does not extend to the facts of Arkansas, Rock v. 10.The of admissible precise scope Rock, hearing L.Ed.2d 37 in limine the United States should be determined at a Court held that Arkansas's rule exclud whenever a witness has been Supreme hypnotized prior ing Haislip, to trial. 237 Kan. testimony, ap People Hughes, testifying an accused from plied prevent her own recall, violated her con 59 N.Y.2d 453 N.E.2d 484, 497, 466 post-hypnotic . right (1983) stitutional on her own behalf. N.Y.S.2d testify 1212 d e.g., Harmon v. Valdez, 1196, Tuttle, was error. v. F.2d

Unite States 722 State, 212, (Okla.Crim. State, 214-16 Cir.1984); Contreras (5th 700 1204 State, (reaffirming Robison v. 1986); State ex 129, (Alaska App.1985) 139 718 P.2d Court, cert. Superior de (Okla.Crim.App.), 132 Ariz. rel. Collins 677 P.2d 1080 (1982); 180, 209-10, 1266, 3524, nied, 1246, 82 644 104 S.Ct. 467 U.S. State, 575-78, 566, Ark. 708 Rock States v. (1984)); 288 United 831 L.Ed.2d cf. rev’d on other 78, (1986), Cir.1984) Valdez, 1196, (5th S.W.2d F.2d 1203 722 2704, 44, 107 S.Ct. grounds, 483 U.S. 97 exclusion of uncorroborated (requiring Quintanar, (1987); People L.Ed.2d 37 on hypnosis identifications made after (Colo.Ct.App.1982); Bun 710, 659 P.2d 713 trial, Rule of process, fair and Federal due 9, (Fla.1985), dy v. 471 So.2d grounds). Evidence denied, 295, cert. attacking In addition to the admis State, (1986); aven v. Walr L.Ed.2d 269 recollections, post-hypnotic sion of (1985); 276, 282, Ga. 336 S.E.2d that the trial court erroneous Tuttle claims (Iowa Seager, 341 N.W.2d proffer expert ly request tes denied Collins, Md. 701- timony unreliability hypnotically on the (1983); Common 464 A.2d testimony. Although trial Kater, 388 Mass. 519, 521, wealth v. 528- expressly deny permis Tuttle court did not 1190, 1193, 1197, 30, 534, 447 N.E.2d testimony, introduce this it did re sion to Mack, 292 N.W.2d (1983); State v. expert quire that he choose between testi Patterson, 213 Neb. (Minn.1980); State v. unreliability mony on the 686, 686, 692, 331 N.W.2d testimony expert testimony (1983); People Hughes, 59 N.Y.2d eyewitness testimony on the weaknesses of 484, 495-96, 466 N.Y. 453 N.E.2d judge this rul general. The trial based Peoples, (1983); State v. S.2d ing on Rule of Evidence Utah 515, 533-34, N.C. 319 S.E.2d permits the exclusion of relevant Harmon v. substantially probative “if value is out its Commonwealth (Okla.Crim.App.1985); of undue weighed ... considerations 83, 89-90, Smoyer, 505 Pa. 476 A.2d time, presenta delay, or needless waste Martin, State v. Wash.2d evidence.” Utah cumulative 713, 714, (1984). Should ruling, Tuttle 403. After R.Evid. previously hypnotized improperly witness testimony eye chose to introduce the about stray from the details of his or her record testimony generаl forego witness recall, judge may prehypnotic ed strike testimony hypnosis. about ap If testimony such from the record. it striking is not pears judge to the trial the trial agree with Tuttle that We improp the effect of the sufficient to erase ruling denying court’s had the effect prehypnot testimony, er the record of that right put testimony regard him the on testimony impeach used to ic can be ing hypnotically enhanced case, expert testimony In such a witness. find that Tuttle did not waive his ob also explain admitted to the wit could also be ruling by putting court’s jection to the im confidence in the ness’s unwarranted testimony eyewitness about tes unreliability proper testimony and the apparently timony. The trial court saw post-hypnotic “recollection.” topics being closely so related these two Kater, 388 Mass. Commonwealth v. duplica- about one would be Peo 447 N.E.2d testimony about the other. Al tive of 523, 548, 453 Hughes, 59 N.Y.2d ple v. appear topics that these are though may 484, 497, N.E.2d 466 N.Y.S.2d related, “[hjypnotically refreshed testimo (1983). quite simply, eye like normal ny is Peoples, testimony.” holding, court’s light of our the trial 319 S.E.2d beyond N.C. that went admission problems hypnotically enhanced prehypnotic re- The of the witness’s the record call, testimony dо not arise from a human including identification of wit the in-court

1213 opposed simply amounting as only, rights, from the al fallibility ness’s also process hypnosis. law, see defects the of evidentiary inherent errors under state Id.; see, People e.g., Shirley, 31 Cal.3d Hackford, 737 P.2d State v. 204-05 1354, 1381-83, 62-66, 723 P.2d 181 Cal. (Utah 1987), because find that the er- (1982); Commonwealth Rptr. 270-72 harmless, judged by rors even were 83, 87, Smoyer, Pa. 505 476 A.2d the federal constitutional harmless error Martin, State 1306 Wash.2d 101 Bishop, State 753 standard.12 713, 727-29, 684 P.2d 658-59 (Utah J., 1988) (Zimmerman, P.2d (Braehtenbach, J., concurring). It is unrea concurring, Durham, joined by and Stewart explanation sonable to that an of assume JJ.); Hackford, State 737 P.2d at 205. potential problems eyewitness with tes amounting Errors to violations of the timony a will enable fact finder to under require federal constitution reversal unless problems stand in hypnotically inherent they beyond are harmless reasonable testimony adequately and to eval Supreme Under the doubt. current Court Therefore, uate such trial evidence. standard, of articulation an error is concluding court erred in testi overwhelming ‍​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​​​‌‌​​​​‌‌‌​​‌‌‌​‌‌‌​​‍if harmless evidence of mony topic sufficiently on either would be guilt unlikely beyond makes reasonable interchangeable testimony the oth on doubt that the result have been dif requiring by er to would warrаnt an election See, e.g., Dela permit accused. should Tuttle have been ferent absent the error. put Arsdall, testimony ted to on to both 673, 684, addressed ware v. Van U.S. topics. 1431, 1438, 89 L.Ed.2d 674 Bishop, 753 P.2d at 500-01 (Zimmerman, J., Tuttle claims that these errors —ad concurring, joined Durham, by Stewart mission of the enhanced testi JJ.); Hackford, State P.2d at 205 & mony expert testimony exclusion on Court, Supreme (citing n. 3 of that evidence —violated Cases, Leading 100 Harv.L.Rev. rights federal constitutional to confront the Term — (1986)). an 114-15 Whether error against witnesses him present and to evi testimony the admission of offered United dence on his own behalf. Valdez, (5th States v. testimony F.2d the exclusion of Cir.1984); Contreras v. 718 P.2d by the accused harmless fered under ex rel. (Alaska 1986); 138-39 depends many that standard factors. Court, Superior Collins v. 132 Ariz. importance Those factors include the of the 1266, 1269, 644 P.2d 1273-75 testimony, testimony witness’s whether Peterson v. N.E.2d cumulative, testimony whether Const, (Ind.1983); V, VI, U.S. amends. contradicted, was corroborated or and the XIV.11 He also contends that errors those strength Hack- overall of the case. State’s were harmful warrant reversal. ford, Van Ars P.2d (quoting at 205 dall, 684, 106 1438); U.S. at at need not determine these S.Ct. see whether Search Seizure: A LaFave, errors Tuttle’s violated federal constitution- W. Hackford, (Utah 11. Tuttle also сites the and due 204 n. 1 confrontation 737 P.2d constitution, process provisions 1987); Knight, of the state State v. P.2d Const, I, (Utah 1987); Rammel, Utah §§ art. but has failed to State v. 103; (Utah 1986); provisions sepa- brief his claims based on those Utah R.Evid. Utah R.Crim.P. reason, standard, rately. For that we address his federal 30. Under not as strict standard, only. e.g., constitutional claims State v. see the federal constitutional Bish- Lafferty, (Utah 1988); J., (Zimmerman, 749 P.2d 1247 n. op, P.2d at 500 concur- Earl, (Utah 1986). Hackford, State v. ring); 737 P.2d at an error re- quires reversal if there is "a reasonable Utah Rule of Evidence likelihood a more favorable result” for the 103 and Utah Rule of 12. E.g., Criminal 30 set had the occurred. Procedure the harmless error accused error not evidentiary Knight, standard for nonconstitutional er- 734 P.2d at A reasonable likeli- Eldredge, rors. See State hood more favorable outcome exists if our n. Bishop, in the result trial is confidence eroded. (Utah 1988) (Zimmerman, J., concurring); Id. at 920. description of Fourth matching Tuttle’s Treatise on the Amendment truck (2d ed.1987). small, light-colored car 11.7(e), towing a at prehypnot- hypnotized witness’s area. case, analysis these present paralleled ic the conclusion that factors leads to these witnesses. beyond a errors harmless reasonable were testimony, considered All of this when hypnotized doubt. The witness’s of the a strand hair important to the State’s case with evidence that was not when found in the light compatible the Tuttle’s considered in of other evidence. with was car, knife consist Except hypnotized in- victim’s that Tuttle had a for the witness’s the and chain court of Tuttle as the driver ent with victim’s wounds identification truck, could used to tow her car of the the was cumulative which have been produced marks placed and which have con because several other witnesses also would car, with found on the that he Apache vicinity truck in the of the sistent those Evanston, towing the fled both the crime scene and murder and saw it victim’s car. changed appearance, he indi and that of witness’s identification Tuttle as against cates that case Tuttle the State’s Apache ap- of the truck driver would very strong, albeit circumstantial. was pear glance at first to-be critical. How- Robison v. Maynard, 829 F.2d ever, acquaintance Tuttle and his who both (10th Cir.1987). that it We conclude is be purported the stand for to take the State yond that the result reasonable doubt testified that Tuttle was driver of the would have the same absent the been error Apache placed him at truck and the murder hypnotical that led to the admission of the scene. that he Tuttle contended did not see testimony. Compare Robison ly He claimed he victim alive. that was (Okla.Crim. asleep in his truck the murder oc- (erroneous App.) post-hypnotic of admission curred and that he was startled to discover identification harmless because the was body parked in a car later behind his evidence, circumstantial, although other Therefore, positive truck. identifica- denied, cert. overwhelming), U.S. as the driver of Tuttle the truck is 82 L.Ed.2d 831 S.Ct. importance of far than less would first Harmon appear. (erroneous (Okla.Crim.App.1985) ad As he for Tuttle’s claim that discovered post-hypnotic mission of identification was killing, body only after the the State’s beyond not harmless a reasonable doubt of evidence showed his version the events against only other because improbable to be For inconsistent. hair Harmon was inconclusive evidence and example, making claimed that Tuttle after admissions). reports damaging two of a call to his home base from American We now consider the harmfulness of the Fork, Parley’s Canyon, up parked, he drove proffered exclusion of the witness’s However, sleep. went the State testimony regarding unreliability of that Tuttle could demonstrated not have testimony. Again, the time arrived at the scene at he claimed appear to this evidence at first have unless he traveled from American Fork to fairly important been to Tuttle’s case be- Parley’s Canyon, the summit of a distance helped cause it would have discredit the of miles that forty-five over includes some hypnotized identification witness’s of the heavily freeway most traveled However, truck and of Tuttle. since we steep Utah more than ten miles of find the of that erroneous admission evi- grade, average ninety per at an miles harmless, dence the erroneous exclusion of addition, hour. one identified might evidence that have undermined it is photograph of Tuttle’s truck as the truck also harmless. matching he had seen when he saw man description push Tuttle’s a woman into a Tuttle’s third set of claims is directed at Code, 76-5-202(1)(q) small at the murder white car scene. And section stat yet testified another witness that he saw a ute establishes variant first

degree murder of which he was challenges convicted. Tuttle also section 76-5- Utah Code 76-5-202(1)(q) (Supp. 202(l)(q) process Ann. grounds. due He wording He contends claims subpart (q) that it runs afoul of that the impermissibly vague guaranteеs permits federal constitution’s vir- tually any equal protection Const, killing charged intentional process. and due to be See U.S. degree capital a first V, murder. Tuttle amends. XIV. argues capital murder must defined be consider equal protec first more narrowly so that penalty the death tion 76-5-202(1)(q) claim. Section provides imposed can for commission of a knowing that a killing intentional category discrete of intentional murders. first murder and is consequently He contends subpart (q)’s requirement punishable by penalty, the death if physical “serious abuse” or “[t]he “serious homicide was committed in an especially bodily injury of the victim before death” heinous, atrocious, cruel, or exceptionally significantly does not limit the number of depraved manner, any of which must be charged murders that can capital. be as by physical torture, demonstrated Any serious intentional killer who inflicts a severe physical abuse, bodily injury or serious or blow wound before the victim dies could

of the victim before death.” Utah prosecuted Code be subpart (q), under even if Ann. 76-5-202(1)(q) (Supp.1988). Tuttle one § blow or wound is inflicted and is claims provision that this equal denies him the cause of death. Conceivably, only a protection it prosecutor allоws a killing by single committed a blow or overly broad pick pool discretion to from a wound that causes instantaneous death similarly persons situated qualify who have would not prosecution under comparable committed crimes those subpart. read, whom this So argues, Tuttle sub- he or she charge wishes to part (q) with first de makes any charge- almost murder gree murder, capital or opposed as capital to sec able as a murder. degree ond murder. He claims that he was Because Tuttle was sentenced to arbitrarily capital chosen for prosecut imprisonment life rather than the death

ion.14 penalty, he standing lacks to claim that The mere fact episode that one criminal subpart (q) eighth violates the amend may arguably violate several prohibition criminal stat ment’s of cruel and unusual utes, giving thus prosecutor punishment. discretion generally Society of to choose which of the violations prose to Bullock, Journalists v. Professional cute, does deny equal pro (Utah accused 1987); Utah Restau tection of the laws under the federal consti County Health, rant Ass’n v. Davis Bd. of tution prosecutor unless the (Utah can be shown 709 P.2d Jenkins to have impermissibly Swan, (Utah discriminated v. against particular 1983). However, class of scheme, defendants. statutory in our Batchelder, United States v. subpart U.S. (q) constitutes both an element of 2198, 2204-05, 99 S.Ct. degree L.Ed.2d first imprison murder for which life (1979). showing Tuttle makes may no of ment imposed statutory ag and a such discrimination. We therefore gravating find no factor justifying imposition of equal protection federal violation penalty. Tillman, death See State v. prosecution of Tuttle (Utah 1987); under section 76-5- 750 P.2d Utah 202(1)(q). (2) 76-5-202(1)(q), Code Ann. (Supp. §§ bodily injury” by 13. "Serious alleged any defined section 14. Tuttle has not that the State used 76-1-601(9) classification, impermissible "bodily injury of the Code as such as race or gender, choosing charge to him with first permanent disfigure- creates or causes serious ment, rather than second murder. See Cle protracted impairment loss or of the func- Center, Living burne v. Cleburne any bodily organ member or or creates a 3249, 3254-55, 87 L.Ed.2d 313 substantial risk of death.” Utah Code Ann. City Supply Mountain Fuel v. Salt Lake 76-1-601(9) (1978). § Corp., 752 P.2d 888 n. 3 Thus, praised the Utah commentator has 1988), 76-3-206(1) the lan One among twenty-four sim one statute as the subpart (q) must serve two dis guage of country that is best ilar statutes in the Although argue may functions. some tinct stan satisfy Godfrey-Wood tailored to accomplished placing that this could be Rosen, “Especially Heinous” dard.- interpretations on the same different two Capital Aggravating Circumstance practical it more language, seems a far Standard, Cases—The Standardless approach con statute’s reasonable n. 943 & N.C.L.Rev. single interpretation struction seek all, Most, if not [hereinafter Rosen]. perform functions constitu that can both merely provide a mur those statutes reason, tionally. appro find it For that heinous, especially in an der committed process vague priate to treat Tuttle’s due cruel, atrocious, depraved or manner challenge language subpart ness to the capital. be classified as See Rosen at turning analyze (q) by authorities Subpart (q) contains lan n. 7. additional grounds challenges provisions to similar guage intended to define this apparently punishment and of both cruel and unusual must “any factor: of which be demonstrat process. due torture, by physical physical ed serious existed A review the situation abuse, bodily injury serious victim prior to the of section 76-5- enactment Ann. before death.” Utah Code determining 202(l)(q) will assist (Supp.1988). 76-5-202(1)(q) Neverthe meaning accorded the lan proper to be less, the Godfrey-Wood standard is a diffi subpart (q). Before guage of section 76-5- express, despite the concept cult to and enacted, 202(1)(q) this Court was decided efforts, legislature’s correct best Tuttle is (Utah 1981), Wood, 71 v. subpart observing (q) interpret in if is that 988, denied, 103 S.Ct. 74 cert. 459 U.S. literally, ed too it murders would include all Wood, (1982). In L.Ed.2d 383 the trial resulting not in instantaneous death. See imposed penalty had the death court be Maynard Cartwright, 108 v. 486 U.S. brutality of the and cause “ruthlessness S.Ct. 100 L.Ed.2d 372 murder.” P.2d at 85. re the 428-29, Godfrey Georgia, 446 U.S. at versed, holding penalty the death that was interpreta 100 S.Ct. at 1764-65. Such an imposed improperly under the circumstanc subpart only (q) tion would make not an the that if es of case. We held a factor vague unconstitutionally for the standard “brutality” as the or such “ruthlessness” imposition penalty death under God- pur for of a murder were to be used the Wood, and also an frey unconstitution pose identifying a class murders for ally vague definition of an element of the punishment death, which the could be that See, e.g., crime of first murder. class would to limited to those have “be (La. Payton, So.2d involving aggravated battery murders an 1978). or torture.” at 86. We based our Id. Godfrey is one of the more recent United Georgia, on Godfrey decision 446 U.S. Supreme States Court cases which state (1980), 100 S.Ct. 64 L.Ed.2d 398 eighth the that and fourteenth amendments aggravating “held that such an require every to the federal constitution factor had to be narrowed to meet constitu apply state and in a man “to tailor its law because, applied, tional it standards was arbitrary capricious ner that avoids murders, as to so broad describe all penalty” infliction the death and “to murders, it it all allowed described define crimes for which death in imposing unlimited discretion way in that sentence a obviates ‘stan- Wood, penalty.” the death at 86. P.2d ” Godfrey dardless ... discretion.’ decided, years the Georgia, Two after Wood 446 U.S. at 100 S.Ct. at 1764 legislature 76-5-202(1)(q). (quoting Georgia, enacted section Gregg v. 428 U.S. Its language 1983 Utah ch. 93. 196 n. See Laws 96 S.Ct. 2936 n. (White, codify J., concurring)); a to L.Ed.2d reflects careful effort the stan 188-89, at at Godfrey Gregg, dard articulated in see 428 U.S. S.Ct. Wood. Wood, Court, 2932; Georgia Supreme 85-86. held that 648 P.2d at accomplished affirming a murder sentence of by providing This defendant’s must be “ death, limiting ‘meaningful distinguishing apply failed to construc basis (b)(7) penalty] Georgia death few cases in which tion section that Su [the many it is imposed developed cases in which earlier deci preme Court had from ” Georgia, 431-33, at Gregg not.’ Godfrey, U.S. at sions. 446 U.S. v. Geor (quoting Furman decision, reaching S.Ct. at 2932 1766-67. In S.Ct. at gia, 408 U.S. S.Ct. previous court’s apparently approved it (1972) (White, J., conсur L.Ed.2d 346 limiting requir ly articulated construction ring)). step determining The first ing aggravating circumstance that language subpart (q) meets whether the specified that section could not be found requirements interpret ‍​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​​​‌‌​​​​‌‌‌​​‌‌‌​‌‌‌​​‍pro these is to aggravated absent “torture ... or an bat vision. If we can construe it in a manner tery” amounting physical to “serious abuse consistent federal constitution’s Godfrey, the victim before death.” requirements doing violence without 431-32, 100 U.S. at S.Ct. at 1766-67. More intent, legislature’s we will do so avoid over, physical the “serious abuse” was re Bos, e.g., Carlson striking it down. quired to a consciousness materi “[reflect] In re (Utah 1987); ‘depraved’ ally more than that of [other Investigation, Criminal Ct. 7th Dist. No. guilty of murder.”16 Godfrey, persons] CS-1, (Utah re Thus, at at U.S. S.Ct. Clatterbuck, Supreme apparently requires Court language (q) If of subpart physical death, serious before abuse susceptible reasonably to a construction any but also such evidence a abuse provides meaningful distinction be materially depraved state mental more murders, capital noncapital tween culpable than that of other most murder does not offend federal constitution. Godfrey,. ers. at Maynard Cartwright, 1766-67; Comment, Godfrey at S.Ct. 1859; Godfrey, 446 U.S. at at Virginia’s Possible Georgia: Effects 1762, 1766-67; Woоd, S.Ct. at Law, Penalty Death U.Rich.L.Rev. at 86. Moreover, physical the qualitatively quantita must be and Godfrey, Supreme

In the United abuse States Georgia statutory provi culpable tively Court considered a different and more than sion, (b)(7), analogous necessary accomplish section that to the murder. 76-5-202(1)(q).15 Utah’s section The Court Comment at 961. “Heinous, Georgia provides part: Aggravating

15. The statute in relevant Atrocious or Cruel” Cir- Narrowing Death-Eligi- (b) cumstance: the Class In of other for which all cases offenses authorized, Smaller, may penalty Making the death be the Without ble Cases it Stetson consider, judge shall or he shall include in his L.Rev. 7-8; Rosen at 943 & nn. consider, any the Note, instructions to mitigating for it to Godfrey Criminal Procedure: v. Geor- aggravating circumstances or cir- Heinous, Atrocious, gia "Especially or and by law cumstances otherwise authorized Murder, 34 OklaX.Rev. 337-40 & nn. Cruel” 9-10, any following statutory aggravating cir- of the Wood, 648 P.2d at cf. may supported by cumstances which (equating Georgia statute and the non- 85-86 statutory aggravating evidence: factor, "ruthlessness and However, brutality”). previously, as noted sub- murder, rape, armed rob- offense language part (q) includes additional that was kidnapping outrageously bery, or was or wan- certainly aрplication intended to its narrow vile, tonly that it in- horrible inhuman in bring conformity Godfrey into torture, mind, depravity ag- or an volved Wood. battery gravated to the victim. 27-2534.1(b)(7) (1978). Ga.Code This statute Supreme apparently United States Court 16. The similarly widely worded and other statutes are Georgia approved Supreme Court's construc- essentially regarded identical in as substance "depravity of mind" as mental state phrased statutes that are in terms of heinous- inflicting physical serious abuse before for ness, atrocity, cruelty, depravity, such as Godfrey, 446 U.S. at S.Ct. at death. 76-5-202(l)(q). May- Utah's section 1766-67. Cartwright, U.S. nard v. Mello, Florida's 100 L.Ed.2d no other evidence There was concept that wound. previously, noted As killing. great pre- heinousness of to define with the relative difficult somewhat cases bet- to actual cision.17 Citation evidence no other The State claims that physical type of illustrate both the ter killing is that a position Its is needed. the interconnection between abuse and multiple stabbings by means of committed state that is depraved and a mental abuse can immediate death not cause that do Court cited required. Godfrey, In grounds capital on as be classified properly State, 233 Ga. McCorquodale v. proposi of this support of heinousness. (1974), type “horrify- as the S.E.2d 577 tion, murders cites cases which the State properly classifiable ing torture-murder” stabbing and by means of committed were heinousness. 446 capital of its Morgan upheld. See sentences were death 1765-66. In 100 S.Ct. at U.S. at State, (Fla.1982); Breedlove 415 So.2d Hi-Fi jurisdiction, the infamous our own (Fla.1982) State, (per cu So.2d are such cases. See Andrews murders (Fla. riam); 369 So.2d Foster 1983); (Utah Moms, 677 P.2d State 1979); Washington v. 362 So.2d (Utah Andrews, 574 P.2d Pierre, (Fla.1978); Taylor, So.2d and the McCorquodale Moore, Both (La.1982); 414 So.2d 340 physical murders terrible Hi-Fi involved support do not (La.1982). These citations intent that evidenced an death abuse before case, the facts position. In each the State’s unnecessary suffering wholly to cause aggravating circumstances included other cases, the form of In both the victims. imposi independently supported the primarily demonstrably chosen abuse penalty. And each tion of the death than or maim the victims rather to torture case, aggravating circum the additional These cases illustrate simply to kill them. independent provide bases stances would de- convergence physical abuse and seeking penalty under for death required. mental state that is praved they fall within one Utah statute because illhstrated the Having described and 76-5-202(1) other subparts of section standard, de- we must now Godfrey-Wood (q). the State has subpart than Because application of section termine whether the involving multiple only a stab cited no case 76-5-202(l)(q) to this case meets stan- purposes are bing, analytical for thrown require lengthy analy- This does not dard. conceptual the narrow basis back on of heinousness sis. constitutionally permissible scope of following: presented at. trial was classification that was de the heinousness wounds, deep stab received four victim Godfrey and Wood. scribed fatal in and potentially three which were no evidence that The record contains themselves; of those of two wounds any did intended to do or fact Tuttle multiple thrusts of the evidence of showed by stabbing her. thing kill his victim knife, indicating that the victim was gory though this method is and dist Even times; she also a total of seven stabbed asteful,18 absolutely no evideneé there is cuts, relatively superficial some suffered painful quicker or less Tuttle had a that bruises; may scratches, scrapes, and she to him or that he was method available or four min- conscious for three been have intentionally such matters and expert at deеp the first stab after infliction of utes administering one wound refrained from wound; her ten or and it have taken caused instantaneous following that would have infliction fifteen minutes to die Death, Amendment, Evolving defining and the Law difficulty this that the 17. We note precisely careful and Cath.U.L.Rev. indicates that standard jury are essential to detailed instructions grue- Godfrey, proper the element the Court noted that the determination of whether 18. In entirely proven subpart (q) been be- of the murder scene is irrele- has someness described Godfrey, its heinousness. See yond vant to a determination of reasonable doubt. See a 1765; Donohue, Godfrey, Godfrey U.S. at 433 n. 100 S.Ct. at 1767 100 S.Ct. at at Federalism, Eighth Georgia: The n. Creative 1988) 76-5-202(1) (1978 Supp. that with id. & death in favor of a number wounds § circumstances, prolong the victim’s life and suffer con would Under these we facts, nothing ing. there is that On the purpose clude that no would served a finding killing support could that this degree retrial on either a first or a second Godfrey-Wood cate falls into the narrow charge. simply murder We therefore re distinguishable gory sufficiently sentence for verse Tuttle’s conviction and killings from other intentional to make its degree first murder and remand this case eligible penalty. perpetrator death tо the trial court with instructions to enter reasons, application find the For these de a conviction and sentence for second 76-5-202(l)(q) to the facts of this of section gree Bolsinger, 699 murder. See State v. contrary to the intention of the stat case (Utah 1985); ute, light Godfrey construe it as we (Utah 1982); Bindrup, and Wood.19 76-1-402(5) (1978).20 Utah Code Ann. § Subpart (q) only aggravating was the argu- considered Tuttle’s other We have charge supporting factor of first de- ments and find them to be without merit. Tuttle, gree against and it an murder reversed, The conviction is and the case is element of the crime. Our conclu- essential to the instruc- remanded trial court with support sion that the evidence cannot to enter a conviction and sentence for tions finding of this factor undermines Tuttle’s degree second murder. degree conviction of first murder. More- over, apparent it is from the record that HALL, C.J., HOWE, C.J., Associate prove did all it could to facts that STEWART, J., concur. support finding subpart (q) would carry The State failed to this element. DURHAM, (concurring Justice burden, amply and the record demonstrates dissenting): so that it could not do at a new trial. majority opinion except I concur in the did, however, prove The State all portion excluding hypnotically en- fоr the the elements of the lesser included offense I such hanced believe that murder, i.e., degree of second an intention unnecessary and wholesale exclusion is killing. knowing al or See Utah Code Ann. approach logical compromise that a has 76-5-203(1)(a) (1978 Supp.1988). & The § Furthermore, advantages. procedural I jury, trial court instructed the at Tuttle’s majority opinion ap- errs in think that request, guilty it find him could analysis problem. plying a rule 702 to the degree second murder if it found that the majority opinion correctly summa- proven had those elements but had in other rizes the current status of the law prove element contained in failed to view, subject. my this jurisdictions on Although jury did not subpart (q). however, analytic it fails to fashion an necessarily option, choose this found the is consistent framework degree murder elements of second approach to other similar evidentia- Court’s they to the elements of are identical basic says murder, ry problems. majority first the crime of which the “[t]he skeptical approach current guilty. Compare find Tuttle Utah did 76-5-203(l)(a) (1978 fully in accord with Supp. enhanced evidence is Code Ann. & death, Godfrey-Wood aggravat- finding 76-5-202(l)(q) inapplica- of the crux the 19. In section case, ing the facts of this we do not mean to ble to circumstance. nothing imply that there is about this murder makes it somehow worse than other mur- 76-1-402(5) section of the Code 20. We note that fact, recognize In we that this murder is ders. especially troubling granted remedy present provides the in the for the for the same reason that sought by is the defendant.” case "if such relief must have found that mur- trial court in Wood 76-1-402(5) (1978). Ann. We find Utah Code disturbing: exceptionally were com- der both request requirement for a met Tuttle’s "good by predatory on de- Samaritans" mitted jury lesser included offense instruction on the motorists with car trouble. That cir- fenseless cumstance, however, degree murder. of second nothing has whatsoever to physical before do with the infliction of abuse history of purpose and ly account for the re- recognition of the modern this Court’s rule 702. theory memory in of constructive experts. agree Testimony by I en- op. 1210. Rule 702. Long.” Majority at recogni- why tirely, scientific, technical, special- fail to understand but or other If in unlimited ad- trier of theory knowledge results assist the ized "will to testimony and missibility eyewitness to understand for fact issue, quali- en- a fact in a witness hypnotically determine exclusion blanket skill, knowledge, expert by an fied as had the testimony. Long, we hаnced may training or education experience, identifi- following say eyewitness to about opinion in the form of an testify thereto testimony: cation or otherwise. high- circumstances this case] [in [T]he Utah R.Evid. of allow- light questionable wisdom tes- dem- Scrutiny language identification of the rule ing the uncorroborated designed to explicitly eyewitness to serve as onstrates that was timony of one testimony. case, address prosecution’s at linchpin of the to proper of an instruction one least the absence Whether the situation is to focusing expert testimony on the use of its attention for the assisting the determined on the basis of that affect the factors well-documented test for “There is no more certain trier. eyewitness identifications. determining experts be used may empirical replete The literature inquiry than the common sense whether unreliability documenting studies qualified layman would be the untrained There is eyewitness identification. intelligently and to the best to determine significant opinion on the no division particular possible degree the issue with- inexorably The studies all lead issue. enlightenment having from those out perception is the conclusion that human understanding the sub- specialized memory inеxact and that human is both Ladd, dispute.” ject involved in the limited and fallible. Testimony, 5 Expert Vand.L.Rev. (Utah 1986) Long, 721 P.2d at 488 added). (1952) (emphasis added). (citations omitted) (emphasis broadly phrased. The The rule' is opinion goes Long on to summarize knowledge be drawn fields of memory theory research and on current merely “scien- upon are not limited to the documenting problems in process, inherent extend to all tific” and “technical” but retention, retrieval, and confi- perception, knowledge. Similarly, “specialized” accuracy in human recollec- dence about viewed, sense, in a narrow expert is outright tion. I that the case for submit “knowledge, person qualified by but as a eyewitness testi- exclusion of identification skill, experience, training or education.” mony grounds of inherent unreliabil- scope of the rule are not Thus within the ity strong as it is for is as experts in strictest sense of the I further submit word, e.g. physicists, and ar- physicians, that, ameliorative as we have undertaken chitects, large group some- also the protective impact efforts to limit the witnesses, such as times called “skilled” former, might logically, also testifying to land or landowners bankers consistently, more do the same with values.

latter. advisory note. committеe’s Fed.R.Evid. majority adopts straightforward testifying It is that a witness obvious problem, analysis rule 702 of this describ- the recall of which has been enhanced facts ing hypnotically any “special- by hypnosis is not sense meaning product “expert” “the of scientific intervention” ized” or within the equivalent “expert testimony” Consequently, therefore the focus of the rule’s rule. (i.e., meaning impact on the trier of fact of the rule. This is an concern within “scientific,” “expert” “specialized,” or oversimplification adequate- which does not lems, knowledge opinion) and is not relevant at makes it easier for the courts to determining admissibility. threshold of eyewitness monitor its effects on testimony inquiry admissibility relevant for safeguard against and to its misuse than is purposes should focus on witness’s tes- happenstance phenomena true for the more timony itself. which distort nonhypnotically enhanced memory. hyp- We can at least control the Rules 601 and 602 of the Utah Rules of nosis strictly monitoring situation general compe- Evidence establish a rule of qualifications of examiners and the content tency long “personal so as a witness has hypnotic intervention knowledge of as a condition pro- a matter.” Rule 402 admissibility. vides for the This admission of all “relevant would be the result evidence,” permits rule balancing probative exclusion of value of the “probative of relevant evidence whose val- against potential evidence prejudice its substantially outweighed by ue is the dan- under rule 403. ger prejudice, misleading of u'nfair ... or conclusion, I acknowledge that jury....” majority opinion, I think the majority opinion’s approach reflects a rea- by applying analysis “person- a rule 702 to probably compromise sonable and workable knowledge” witness, al testimony by laya admissibility question. However, has distorted the function of that rule and conceptual problems there are in address- 402, 403, 601, of rules and 602. What ing framework, this issue in a rule 702 prejudice-balancing should analysis be we would be better off to focus on reliabili- under rule 403 has (by been transformed ty part as analysis. of a rule 403 Rule 403

treating hypnotically permits straightforward, case-specific “expert” testimony) competency into a balancing probative prejudicial value and evaluation, contrary with a result that is potential. is, view, approach my That language spirit of rule 601. more consistent with language and in- If is so tent of the Utah Rules of Evidence ‍​‌​‌‌​​‌​‌‌​‌​‌​​​​​​‌‌‌‌​​​‌‌​​​​‌‌‌​​‌‌‌​‌‌‌​​‍and inherently permit unreliable as to its out- disrupt does not the coherence of this right exclusion, eye- and wholesale then approach Court’s to the issue of witness testimony requires identification scientific evidence under rule 702. the same treatment.1 The fact that a wit- subjected ness’s recall has been to “scien-

tific intervention” change does not its na-

ture as firsthand testimony personal about Eyewitness

recollection. testimony may “tampered with,”

also have been scien- tifically or haphazardly, by suggestive in- Utah, Appellee, STATE Plaintiff and vestigatory interviewing techniques, im- proper line-ups, exposure to other witness- es, and so on. There is no more assurance Jerry DIBELLO, J. Defendant nonhypnotized the case of the Appellant. that the “memories” testified are not the No. 860220. product superimpositions of inaccurate not, defect-producing phenomena. doWe Supreme Court of Utah. (at yet), least as however exclude it entire- Aug. 1989. instead, ly; steps all we take we can to Rehearing Denied Oct. ensure that the fact-finder understands its problems. scientific limitations and inherent me, appears fact,

It that the “scien- hypnosis, despite prob-

tific” nature of its n proper- only permissible 1. It should be noted that rule 702 would witness identification is not ly applied admissibility judicially acknowledged to determine the but has also been expert testimony hypnosis, reliability, incorporated by cautionary jury about its this Court in general acceptance Long, and its in the scientific com- instructions. See State v. 721 P.2d at munity. eye- Such connection with 492-95.

Case Details

Case Name: State v. Tuttle

Court Name: Utah Supreme Court

Date Published: Apr 12, 1989

Citation: 780 P.2d 1203

Docket Number: 20068

Court Abbreviation: Utah