*1 right. The trial court obviated evidence was cumula- substantial erroneously admitted testimony it struck the testimony). error when of other tive Thus, jury disregard it. ordered the trial court did not abuse its discretion MISTRIAL III. refusing grant motion for a defendant’s argues trial Defendant trial. new when, granting a mistrial in not court erred Affirmed. trial, juror and an prior to morning one At him handcuffs. juror saw alternate transporting defendant time, guards were HALL, HOWE, C.J., C.J., Associate day’s pro for the courtroom jail to the
from ZIMMERMAN, JJ., DURHAM and concur. prior were removed handcuffs ceedings. The trial, at no time beginning to wear was defendant forced during the trial or shackles.
handcuffs shown that he suffered
Defendant has not
any prejudice a result of the encounter as by any way tainted was that the verdict “ seeing him in handcuffs. ‘[A] effect of Utah, Appellee, Plaintiff and STATE encounter of the defen brief and fortuitous re prejudicial is not dant handcuffs showing prejudice quires an affirmative ” Conway WOOD, Lance Defendant Montgomery, 728 Allen v. the defendant.’ Appellant. Cir.1984) (11th 1409, (quoting F.2d (5th 185, Texas, Cir. Wright 533 F.2d No. 900194. 1976)); Young, 853 P.2d see State v. (Utah 1993). jury’s inadvertent observa Supreme Court of Utah. courtroom,
tion of the defendant outside trial, presump Dec. 1993. prior [the] did not “dilute require as to a reversal tion of innocence” so prejudice. of actual United absent evidence Cir.1986), (1st Williams, 809 F.2d
States v. denied, 1030, 107 rt. 481 U.S. S.Ct.
ce (1987); United States v. 95 L.Ed.2d (4th Cir.1975).
Shaver, 511 F.2d
Finally, defendant claims that granting his motion
trial court erred prosecution
for a mistrial when a witness pur that he had
volunteered information marijuana Although
chased from defendant. mistrial, grant a
the trial court refused to
gave instruction and a curative 30(a) testimony.3 Rule of the
struck the Procedure states that
Utah Rules Criminal defect,
“[a]ny error, irregularity variance rights of
which does not affect the substantial party disregarded.” The testimo shall be
ny, certainly not to defen while beneficial
dant, prejudicial impair a was not so as to stated, striking you jury, And it. And are not court "Members of the I I am therefore 3. The trial response you you disregard last response.” will instruct that Mr. Wheeler’s are to his to— рrosecutor's] question unresponsive. [the *4 Dam, Gen., Atty. J. Frederic
R. Paul Van Voros, Jr., Gen., City, Atty. Lake Asst. Salt for the State. Metos, City, Lake for Lance Fred Salt
G. Conway Wood.
STEWART, Justice: Conway Lance A found defendant degree, guilty of murder the first assault, offense, aggravated sexual capital felony, aggravated kidnap- first degree felony. received a ping, a first life sentence for the murder conviction years to life consecutive sentences ten two aggra- assault and for the sexual kidnapping appeals He vated convictions. *5 murder and his convictions for sexual assault. Wood, 25,1988, newly released
On October Prison, moved into the from the Utah State City apartment of his two-bedroom Cedar girlfriend, Stapely, Brenda and her room- after, mate, Ar- Paula Jones. Soon Michael chuleta, just prison, from also released apartment to be with moved into the same and Ar- girlfriend, his Paula Jones. Wood prison. chuleta had known each other 21,1988, November Wood and Archule- On local purchased ta soft drinks at a conve- adding whiskey their nience store. After drinks, engaged in a the two men conversa- Church, who was seated in tion with Gordon nearby parking in a lot. Church his car up and Archuleta and down drove Wood up Canyon. and then Cedar Main Street City, returning to Cedar Church left After apartment their com- Wood and Archuleta at plex. apart-
Wood and Archuleta walked Sich, Anthony who lived above the ment Stapely and Jones. apartment rented going into told that he was Wood Sich mountains and asked if he could borrow to retrieve pair gloves. Sich sent Wood car, and wаs gloves from his while Wood outside, him returned and invited Church go for another drive. and Archuleta and Archuleta back to Church drove Wood road. Canyon pulled and off the Cedar car first and and Archuleta exited the Wood by injuries began path. Archuleta told testified that Church was killed to walk down Church, that he wanted to rob and the head and skull due to a Wood blunt force and acquiesced. injuries by Church overtook the two Wood internal caused the tire iron in- men, walking up the three continued serted into Church’s rectum. As the men started back down the trail. police told that he waited inside the car, grabbed Archuleta trail toward car killed while Archuleta Church. Evidence Al- put a knife to his neck. Church trial, however, adduced at showed that though attempted stop by Archuleta jacket pants splattered Wood’s were arm, grabbing his Archuleta made surface pattern indicating in a cast-off blood cut on Church’s neck. Church broke free during beating, Wood was within ran, Archuleta chased after and tack- Church, two three feet of and that Wood him, again putting led the knife to his neck facing was Church when the blows were threatening kill him. Archuleta cut appeared A spot struck. blood on the back again Church’s throat so that the two cuts jacket, of Archuleta’s and Wood’s shoes bore formed an “X” on the front of Church’s neck. by transfer contact blood stain caused Archuleta bent Church forward over the bloody object. Investigators contact with a and, hood of the car with the knife still at found strands of human hair consistent with throat, anal Church’s had intercourse with wrapрed Church’s hair around shoe- request, him. At Church’s Archuleta used a injuries jaw laces. The to Church’s lower Wood, condom. Archuleta then turned to being by were consistent with kicked some- car, by standing the trunk of the
who wearing paired one Three Wood’s shoes. any.” and asked if he “wanted Wood de- lesions on Church’s were caused back clined. Archuleta went to the trunk of the dull-tipped instrument such as some red-han- *6 opened and it. He that he ear told Wood pocket dled side cutters found looking something for was with which he jeans. Wood’s spare could bind Church. removed a Wood died, After Church Wood and Archuleta trunk, tire and a fan from the while Archule- trees, dragged body nearby his to some battery ta retrieved tire chains and cables. they They where covered with branches. ear, remained at rear of the while Wood swept path way their with branches on the front, Archuleta returned to the where he any footprints. back car conceal Ar- wrapped the tire chains around Church. wheel, pair again at the With Wood drove battery chuleta also fastened the cable They north on 1-15. abandoned Church’s clamps genitals. main- Church’s Wood City. car Lake Salt and at trial that tained before he removed clamps from Church as soon as he real- Christy called his friend Worsfold Wood ized what Archuleta had done. and if he and Archuleta could come to asked apartment her for a few minutes. When the Archuleta led Church to the rear of the car apartment, men arrived at the im- Worsfold and forced him into the trunk. Wood and mediately pants noticed that Archuleta’s replaced spare Archuleta tire and fan and explained were caked with blood. Wood City stop drove to a truck near Cedar where they hunting night had been rabbit be- they purchased gas. They continued north fore, down, they their ear had broken and they Dog on Interstate 15 until reached the had hitchhiked to Salt Lake. The two men Valley They parked along exit. a deserted store, then to a thrift Archuleta went where Wood, told “You dirt road where Archuleta bought pants repeated clean and some know have to kill him.” we story hunting rabbit to the store clerk. from the trunk Archuleta removed Church jeans attempted by breaking bloody to kill him Archuleta discarded his in a his failed, drainage on-ramp neck. suffered ditch near the 45th When Church South County. several blows to the head with a tire iron and to 1-15 in Salt Lake He and Wood restaurant, jack. nearby Denny’s The tire iron was then shoved and then went into a gloves far it where left he had borrowed kicked so into Church’s rectum Wood eating, pierced his liver. A state medical examiner from Sich. After the two hitchhiked (2) cause, denying defendant’s jurors for exit, where Archuleta Draper as far as after suppress statements he made motion to wallet, its con- scattered pulled out Church’s (3) counsel, imposing requested They tents, the wallet Wood. handed aggravated assault and for sexual sentences Salem, they visited where hitchhiked next they kidnapping because were there, they hitch- From father. Archuleta’s degree mur- included offenses first lesser arriving about 11:30 City, at hiked to Cedar the evidеnce also asserts der. Wood p.m. support insufficient to presented at trial was immediately upstairs Sich’s went Wood ag- degree murder and conviction of first the murder. him about apartment and told assault. gravated sexual police, him to contact the advised Sich When get “[MJaybe I could some responded, Wood I. POTENTIAL JURORS and Wood protection.” Sich kind of federal FOR CHALLENGED store, where convenience to a local walked CAUSE Stapely, Brenda who called Wood commit- that the trial court Wood contends Phoenix, had her that Archuleta and told by refusing to excuse prejudicial error ted John Stapely contacted killed someone. jurors expressed potential who cause two officer, told him to Graff, parole religious of “blood in the doctrine a belief called the store. Graff Wood call Wood voir dire. Wood exercised atonement”1 on convenience arranged to meet him at the challenges to remove peremptory his two of with the arrival store. Just before Graffs peremptory his chal- jurors and used all Church’s wallet. police, discarded during selection. lenges the course accompanied and a Graff Wood and Sich Utah, if a prejudicial it is error department corrections police officer to the chal peremptory all of his defendant uses office, the events of Wood recounted where was used to remove lenges and one of them police Ar- night. The arrested previous juror have been removed who should and, after several fоr the murder chuleta Wetzel, v. 66-67 cause. State Wood, charged also interviews with (Utah 1993); Chealey, State degree, aggravated in the first (Utah 1941); Bishop, see State assault, object rape, forcible sexual sexual Gotschall, 1988); 439, 451 *7 abuse, kidnapping, aggravated aggravated (Utah 1989); 459, v. 461 State 782 P.2d assault, possession of a stolen vehicle. and (Utah 799, 1977); Brooks, 802 563 P.2d motion stipulated to defendant’s The State 1091, Manning, 542 P.2d 1093 v. Crawford object rape, counts of forcible to sever the 1975). (Utah However, the we will reverse assault, abuse, posses- aggravated and sexual juror for of a motion to remove a denial by tried vehicle. Wood was sion of a stolen its discre only if the trial court abused cause murder, aggravated sex- jury degree first overruling challenge for cause. in the tion assault, aggravated kidnapping. The and ual Gotschall, 462; Bishop, 753 P.2d 782 P.2d at guilty all three counts. jury found him on 1123, 451; Cobb, 1125 774 at State not reach a unani- Because the could (Utah 1989). penalty, the as to the death mous verdict juror in this case com- prospective Each degree for first imposed a life sentence court thirty-two-page question- pleted a written mandatory mini- consecutive murder and two juror if the was familiar naire which asked aggra- years to life for mum sentences of ten so, and, if atonement” with the term “blood kidnap- aggravated assault and vated sexual juror. The meant what term ping. juror then asked if the believed questionnaire appeal from his convictions or she had de- in atonement as he blood degree and act in accord with that in the first it and would scribed questiоn- The deciding trial in this case. asserts that the belief sexual assault court (1) juror believed that all potential naire also asked refusing to two erred exclude shedding forgiveness another's by for the obtain is a belief held some 1. "Blood atonement” shedding only by his or her own blood. Christ of Latter- blood members of the Church of Jesus Church) variations. (L.D.S. person has different can This belief several day that a Saints note, improper partiality. de- persons of murder the first tute Id. We and convicted emphasize, ju- that the test is whether the gree penalty. receive the death should prevent impair ror’s views would either Prospective jurors Blaine Perkins and performance of his or her duties as a Raymond ques- on the Homer both stated juror applying deciding and law they were familiar with the tionnaire words, facts. In other if there is reason to atonement and held a belief con- term blood juror’s personal might that a believe views cerning it. Homer also indicated on the judgment applying affect his or her questionnaire persons that all convicted of law, facts, deciding imposing penal- degree first murder should receive the death ty, juror then the should be excused. However, by penalty. after examination tendency is a There assume that a judge prosecuting trial and the and defense prospective juror qualified is to sit if the attorneys, Perkins and Homer both stated juror apply states that he or she will the law regarding that their beliefs blood atonement objectively deciding appropriate penal preclude imposing would not them frоm a life ty capital in a case. It is a serious oversim they sentence and that could do so if the plification ju prospective conclude that a prove beyond did not State reasonable qualified simply ror is to sit because the aggravating doubt circumstances juror weigh states that he or she can outweighed mitigating circumstances. mitigating aggravating circumstances jurors Wood moved to strike these result, proper arrive notwithstand ground they gave equivocal answers ing strongly pertaining held views or beliefs respect ability impose to their a life penalty. to the death As we made clear in sentence on a conviction for mur- first Holland, 1019, State v. 777 P.2d 1026-27 argues der. Wood now that Perkins’ and (Utah 1989), weighing mitigating aggra on Homer’s beliefs blood atonement were vating only part circumstances is of the anal strongly religious held beliefs that would juror ysis that a must make. It is not ability impose have biased their a life enough juror for a to state that he or she will sentence. weigh in deciding those factors the death penalty issue under the test laid down in Norton, In State v. 675 P.2d Wood, (Utah 1982). (Utah 1983), denied, cert. 466 U.S. weighing aggravating mitigating (1984), S.Ct. over L.Ed.2d circumstances not mathematical exercise Hansen, by grounds ruled on other State juror objectively up which a counts 1986), we held that aggravating mitigating circumstances to jurors prospective whose beliefs re would greater. determine which is There are no quire impose penalty them to the death on all specific stating any clear and instructions persons convicted of murder must excused *8 objective specifies weight formula that the to key for judge cause. The issue for the trial given be to each factor and how it should be juror to determine is whether the “can hear fact, weighed against other factors. In the apply legal the evidence and the law without deciding has broad discretion in partiality against capital punishment.” for or Thus, subjective ultimate issue. attitudes determining legal Id. partiality The test for necessarily play determining in a role how is “weight” much each factor should be accord juror’s capital pun- whether a about views predominate. ed and which factors should prevent substantially ishment im- would addition, applying part in the second of the pair conscientiously taking him or her from standard, is, beyond that determine juror’s performing oath and his or her penalty a reasonable doubt that the death is juror by following duties as the court’s justified circumstances, under all the includ capital punish- instructions on of the law to, ing, aggravating but not limited applying ment and them the facts of the circumstances, jurors mitigating again must particular case. weigh dispa a multitude of are factors which of, generalized approval opposition Id. A imprecise weight rate in nature and in to, penalty question, again the death alone does not consti- relevance to the ultimate Q. you subjective attitudes to affect And of course adhere to the doc-
leaving room Thus, policies second trines and of the church? 83-85. Id. the decision. pre is even less standard part of the A. Yes. necessarily into calls than the first cise Q. you that Dо think the church has a attitudes about question jurors’ basic position the death penalty? on justice of criminal proper role and the A. as a The church whole? Holland, 83-84; State system. Id. at Q. Yes. 1989). 1019, 1027-28 I A. atonement Well blood recognize judge must that A trial think that comes to individu- down deciding life between legal requirements up al’s It doesn’t to me. choice. leave juror kind give same do not and death It upis to the individual who is involved clear, they that receive specific guidelines of in it. It phase. follows that deciding guilt Q. understanding then Your of that even subjective of the most attitudes person if has crime that committed a jurors given must be the clos conscientious murder or as mur- serious as serious those scrutiny respect to attitudes est person part der of a that as a [then] impartiality their in the that could affect Atoning process give his Blood could therefore, imperative, penalty phase. It is own life? judge especially alert to that a trial be excuse A. Yes. views, jurors personal prospective whose not Q. your understanding Does that state willingness withstanding apply stated principle? them, given they are such that are the law as way A. I That is understand it from personal likely tilt in of their favor biases. their choice not from from own mine but transcript juror Perkins’ The voir dire theirs. support contention that Per- does not Q. you concept But as understand that on atonement would cause kins’ views blood person forgiveness did that [if] a then personal with a him to act accordance bias would result? part penalty phase that re- A. By Blood Atonement. quirеs the exercise of some discretion. De- Q. that? You believe fense counsel asked Perkins: A. IYes do. your Q. general feelings are What Q. you Do believe that is church doc- penalty? beliefs on death trine? person I if A. Well believe is found is, yes, A. I my think it from understand- guilty of a without doubt crime of ing. penalty nature that the death could prosecution be. then asked Perkins: Q. you, juror, Would selected as a Q. philosophically opposed You are not guided able to be the instructions that? given by the court and the evi- assess A. No. presented regard your dence without Q. philosophically You are it? favor personal having belief to do with atone- *9 A. No. ment for murder? Q. you Have debated it with ever a friend A. Yes. family colleague
or a member dis- Q. you impartial And could be in the implications? cussed its moral your that belief not influ- sense would ability your ence to the law and probably I follow A. Well have entered into findings fact make of from the evidence? guess religious some discussions I on a more or less. A. Yes.
Q. You are active L.D.S.? questions by the The last two asked I prosecutor predictable A. Yes am. and the almost an- determining ing you in swers thereto add little that are familiar with that term Nevertheless, juror’s qualifications. you you Perkins have defined that as are disqualified by in saying you was not to sit on the be- familiar with it No. 51 if in spill your cause his belief blood atonement had no another’s blood blood must be discharge duty spilled. his as a relevance of fact,
juror. understanding Perkins’ Question you Then No. 52 state that atoning for mur- blood atonement was you apply you would the term аs believe der with one’s own blood was a matter of you it in this case what do mean when by guilty personal per- choice to be made you say that? son, jury. He also stated that he principle A. Just that the of Blood Atone- to, philosophically opposed was neither nor in person ment is that if a takes another of, penalty favor the death and that his belief person’s life then his life should be tak- regarding blood atonement would not influ- prove en. If the case to came the validi- ability apply ence his the law. There was ty of the contention that the defendant nothing equivocal Perkins’ answers that guilty then he would indicate there suggested prevent that his belief would him possibility that the that his life should be acting impartially juror. from as a The trial taken. refusing court did not abuse its discretion in Q. you The court has discussed with what to excuse Perkins for cause. happens person under Utah if Law a is Juror Homer’s voir dire raises a closer guilty capital found of a crime? question as to whether should have been A. Yes. disqualified. interrogated He was in the fol- Q. necessarily It doesn’t result lowing manner: penalty finding death if there is a Q. My question you [The Court] guilt which there not be if there this time then is where that kind of options is then two exist one for life and give you instruction which I would one for death. beginning more detail at the of the trial say my understanding A. I is again and at the end of the trial could you say Blood Atonement. I don’t follow that instruction as to is what the my opinion ought hard of how it sentencing, law is and have this be choice every you carried out in case. could do that? I
A. Yes believe so. Q. Okay you purge your could mind of any idea of Blood Atonement and follow Q. you very And would uncomfortable the law in the ease. you thought aggravating if that the cir- mitigating cumstances exceeded the A. Yes. point of where death would be ... Q. you If were selected as a member of appropriate you would be able to vote jury? penalty? for the death A. Yes. A. Yes. Q. nothing Because Blood Atonement has Q. you mitigating And felt like the with this do case? circumstances [were] sufficient to over- A. Yes. aggravating ride the circumstances could you imprisonment? vote for life
A. Yes. Q. Page on [Defense Counsel] Look down you Question
if would Mr. Homer at question you do believe Q. you [Defense Counsel] Let me have persons all convicted of Murder open your questionnaire Mr. Homer to *10 offense, Degree, capital First a page questions 6 and let’s look at three penalty you should receive the death page. Question that on 51 and answered, “yes”. questions those talk about Blood Atone- say- ment. You have answered No. 50 A. Yes. outweighed mitigating hearing Judge Park’s advice stances cir-
Q. After all, you you you concerning the law see cumstances could could would your comfortably change on that vote for life sentence and to answer need the death penalty? not question? mitigating if the circumstances
A. Yes yes. A. Oh warranted. Q. though Even he is convicted of the voting you Q. feel comfortable Could murder? aggravating versus death if the for life Yes I A. believe so. mitigating outweigh not factors did Q. looking question Then that at factors? you apрropri- do what feel should be I A. No don’t believe so. ate answer to that? my you Q. I am not sure understood it A. Well would be “no” then. give you again? me to question, let Q. you Do reservations about that? have aggravating I A. Well do understand Quite definitely not A. so there that all mitigating? persons of Murder convicted should re- that Q. Aggravating means those matters penalty. ceive the death So that is a against the unfavor- would be Mr. Wood pretty strong there. statement With things[J able explanation aggravating that of and miti- A. Yes. I gating I believe circumstances could Q. Mitigating means the circumstances comfortabl[y] change a that to “no”. things. favorable added.) (Emphasis necessarily what the victim A. Not then Although a Homer stated belief in the aggravate Mr. have done Wood atonement, of blood doctrine then ex angry make him or— plained that his opin belief was not “hard Q. aggravation No it is not is not used ought in. every ion of how it carried out to be no. that sense that case” and he would take into account Mitigating would A. Yes. circumstances background, participation actual defendant’s background then what his that [is] be mind, participation, any lack of his of state con- he had no control of has made him, pressure ability duress or on and his upon that clusion decisions based Furthermore, although rehabilitated. be Ho experience brought that him to the back questionnaire on the mer wrote he be is point where he at. penalty applied the death lieved should just Q. mitigating more than Yes means cases, capital all he stated homicide that he and it mattеrs that means changing was comfortable in his answer his would be to Mr. Wood favorable question explanation after an of the law background, youth, par- his actual his given Although judge was him. the trial ticipation participation, or lack his discretion, very limit we at the of his cannot mind, pressure on state duress refusing say that he it in abused remove ability him and his be rehabilitated to Homer for cause. productive become a citizen all those things mitigating into play come II. MOTION TO SUPPRESS any- aggravating ... side. On side cruel, senseless, torture, thing that is Graff, officer, parole John inter-
premeditation all those matters would approximately viewed Wood hour and aggravating come in on the side and so facility fifteen minutes at the correctional weigh you have to balance them and meeting after him at the convenience store. them. police told Graff and other officers who A. Yes. present were he had witnessed murder Q. my question night you And the State before. did not advise Graff prove beyond rights prior Miranda to this
of Utah did reason- of his interview. County aggravating Attorney that the circum- Burns able doubt Iron Scott arrived
81 returned, sug- the end of interview. At Graffs soon as he could. When Whatcott Graffs of his Mi- a Miranda gestion, gave Burns warning informed Wood and asked Wood randa taking rights before a statement. rights. Wood whether he understood his rights gave “Yea, a responded, Wood waived his statement Wood I understand. I’ve Burns, accompanied to Burns. then Wood heard them a thousand times.” then Wood Graff, County and the Iron Sheriff to the going asked what was on with his ease. Dog Valley. scene оf the homicide at When responded they probably Whatcott were the officers realized that the crime site was going capital homicide and that Wood was County, they in Millard and Wood met Mil- looking penalty. at the death told Wood County lard officials for breakfast at a Mil- get tape Whatcott recorder because he County repeated lard cafe. Wood his version Stewart, wanted to talk. Whatcott called police of the crime and led the to the homi- Wood another Miranda gave warning. who site, cide where he directed the officers to right gave Wood waived his to counsel and body. statement. scene, at While the homicide Wood was suppress Wood moved to all statements he permitted freely. point, to roam At one he made to law enforcement officials. trial The patrol was left unrestrained and alone court appeals denied the motion. Wood running. police ear the motor with The did only respect denial with to the Dekker inter- they suspected not indicate at that time that view and the third Stewart interview. murder, of the Wood and the trial court A Dekker Interview specifically point in found that at this investigation police considered Wood The Fifth Amendment Captain a witness. Robert Dekker drove guarantees United States Constitution that a place Wood from the homicide scene to a “compelled defendant shall not be freeway overpass. under a When Dekker against criminal case to be a witness him aWood Miranda gave warning, won- Wood Mi self.” right, To secure this fundamental dered aloud whether he should consult an Arizona, randa v. 86 U.S. S.Ct. attorney regarding protective custody. (1966), pro L.Ed.2d 694 established Dekker asked whether Wood’s reference to safeguards cedural to be followed in a custo attorney an questioning purposes was “for interrogation. prescribed dial proce The right “No,” replied, now.” Wood and said require warning dures that the defendant that he wanted to talk with Dekker. Wood right right has the to remain silent and the gave then another statement to Dekker. attorney present during question have an Id. at voluntarily spoke ing.-
Wood
with Millard
Coun-
erence
protection from Archuleta
to
United States Constitu-
obtain
Amendment
the
desire to
I,
present
request
counsel
It
Article
a
to have
tion.
was decided under
section
rather than
Constitution,
argues
provides
that the
the Utah
which
during questioning. Wood
12 of
concluding
he
compelled
in
was
trial court erred
that an “accused
not be
to
shall
the
of the
custody at
time
interview give
against
not in
evidence
himself.” Because
attorney
regarding
gives
and that his statement
to a
protection
broader
defen-
Camer
counsel, barring
request
self-incrimination,
for
to a
right against
amounted
dant’s
we are
prevail
can
questioning. Wood
further
required
apply
adopted by
to
test
the
not
the
custody
only
if he
the
on this issue
was
Supreme
Court Beheler and
United States
make
interview and did not
time of the
Berkemer.2
voluntary
knowing, intelligent,
waiver of
and
right to counsel.
his
The State criticizes Corner’s four-
weight
part
giving
as
to the inter
test
undue
whether
Four factors determine
rogation
opposed
site as
to other
im
more
formally
has
arrest
an accused who
not been
factors,
the
portant
such as whether
defen
custody”
purposes:
“in
for Miranda
ed is
dant’s freedom of movement has been re
(2)
“(1)
interrogation;
whether
site of
strained,
has
whether the defendant
come to
(3)
accused;
investigation focused on the
freely
willingly, or
the site
and
whether the
objective indicia of arrest were
whether the
was
to leave after the
defendant
free
interro
(4)
present;
length
and form of
gation.
ignore these
Camer does not
factors
Carner,
City
interrogation.” Salt Lake
v.
place
site
emphasis
undue
on the
of the
(Utah
1168, 1171
1983); see State v.
664 P.2d
interrogation.
interrogation
site
The
is
(Utah
1988);
Bishop, 753 P.2d
465
State
that, depending
of
one factor
four
1986).
(Utah
Kelly,
v.
718 P.2d
391
The
circumstances,
may
given
may or
not be
sub
strategy
compulsive
of “coercive or
absence
weight.
stantial
The factors
State em
part”
a noncustodi
on the officer’s
evidences
phasizes
being
important
as
more
are not
suggest
interrogation
al
“does
Camer,
precluded from
under
consideration
pre
type
abuse Miranda is intended
of
but fall within
of the Camer
two
factors:
Kelly,
vent.”
We
at a
post-arraignment
ambiguous
equivocal request
interrogation
an
custodial
makes
stems from both the Fifth
attorney, questioning
respect
right
Amendment
against compelled
subject
self-incrimination and the
investigation
matter of the
must im
guarantee
Sixth Amendment
of the assis-
mediately stop,
questioning
further
Jackson,
Michigan
tance of counsel.
clarifying
request.
limited to
If
must be
625, 629,
1404, 1407,
U.S.
106 S.Ct.
the defendant then makes clear that he or
(1986).
L.Ed.2d 631
Because Wood does not
present,
she desires to have counsel
further
specify
right
the source of his
to counsel at
questioning
prohibited.
Sеe also State v.
interview,
the third Stewart
we will deter-
Sampson,
Ct.App.
right
mine whether he waived his
to counsel
1991);
Griffin,
under both amendments.
(Utah Ct.App.1988).
clearly
invoked his Fifth
case,
In the instant
Officer Dekker
right
during
Amendment
to counsel
the sec
*15
complied with this rule. When Wood men
required by
ond Stewart
As
interview.
Mi
consulting
attorney
purposes
tioned
an
Edwards,
police immediately
randa and
protective custody, Dekker asked what he
terminated
attempt
the interview and did not
meant.
Wood said
he was concerned
any further communications with Wood. Mi
safety
ought
about his
and wondered
he
Arizona,
436, 473-74,
randa v.
384 U.S.
attorney
protective custody
talk to an
about
1602, 1627-28,
(1966);
S.Ct.
Wood asserts that murder, threatening. predicate capital are The blow offenses of less- blow was not life threatening. It is er included of first did have to be life offenses 76-1-402(3) enough jaw § he kicked Church and that Utah Ann. Code I, of Article cooperating jeopardy Archuleta the double clauses sec- otherwise *18 viciously beating tion 12 of and while Church the Utah Constitution the Archuleta was jack fatal Fifth tire iron and the Amendment the United States Con- jury Clearly, prohibit imposition separate the find that encounter. could stitution the did, knowingly what did and with sentences lesser included offenses. Wood killed, if that be even intent Church degree A conviction of first murder re- secondary to of Ar- Wood’s role was that quires proof statutorily aggrava- of a defined chuleta. ting to an circumstance addition intention- killing. knowing was аlso sufficient to al and Utah Code Ann. The evidence § aggravated 76-5-202(l)(a)-(q). aggravating The support conviction of sex cir- aggravated charge alleged ual sexual cumstances in this case were that the assault. The possible during homicide was assault on three factual committed commis- was based (1) of, from, battery grounds: attaching clamps flight sion or several enumerated (2) crimes, including aggravated sexual genitals, forcible anal inter assault Church’s course, (3) aggravated kidnapping. object rape with tire iron. Utah Code 76-5-202(l)(d). argues § support There a conclu Ann. that was no evidence jury aggravated anal since the that sion that had intercourse found sexual either kidnapping battery aggravated ag- assault and were with Church or that he attached the circumstances, they clamps genitals. gravating were elements to Church’s Wood’s testi degree mony, prior all of the crime of first murder as well as statements Nevertheless, convictions of the two lesser crimes stated that a differ- Shaffer merge might therefore into the murder conviction. ent result if obtain it was clear that jury specifically relied on more than one 76-1-402(3) § provides Utah Code Ann. aggravating circumstance: may that a defendant not be convicted of If aggravating predi- charged circumstance or both the offense and a lesser includ- felony degree cate An for first ed offense. offense is included when murder is dif- “[i]t by proof ferent from an charged, is established of the same or less additional offense required adequate independent than all the facts there establish the grounds § charged.” commission of the offense 76- to convict the both defendant of l-402(3)(a). words, In though they other the two crimes even arise out offenses “ greater single must be ‘such that the cannot be episode. example, criminal For necessarily having committed without special com- verdict forms in this case had indi- ” Hill, mitted the lesser.’ State 674 P.2d jury cated that the “pecuni- relied on the (Utah 1983) Baker, (quoting State v. ary” personal gain” aggravating or “other 1983)). 671 P.2d circumstances, the defendant could have degree been convicted of both first murder Hill, In we held that whether an offense is aggravated robbery. Under that cir- a lesser included offense of another offense is cumstance, aggravated robbery would not “by comparing statutory determined ele- be a jury lesser included offense since the ments of the two crimes as a theoretical rely would not on the same facts to estab- and, necessary, by matter where reference to lish the elements of each crime. 97; proved the facts at trial.” 674 P.2d at McCovey, see also State v. 803 P.2d added). Id. (emphasis at 1314 n. 3 (Utah 1990); Branch, jury Shaffer, jury Unlike the in this (Utah 1987). applied 1191-92 We specifically case aggravating found three cir- Shaffer, test in State 1312- aggravated assault, ag- sexual cumstances — (Utah 1986), predi- and concluded that the gravated kidnapping, and that “the homicide aggravating felony or cate a homi- made heinous, especially was committed atro- degree capital cide first murder was a cious, exceptionally depraved cruel оr man- degree lesser included offense of first mur- 76-5-202(l)(q). § ner.” Utah Code Ann. der. State, relying language The on the above Shaffer, prosecution presented evi- Shaffer, argues jury that because the ex- guilty dence the defendant was of first pressly aggravating found as an circum- degree possible ag- murder based on three stance that the homicide was committed in an gravating aggravated rob- circumstances — especially manner, depraved heinous and bery, pecuniary gain, personal and other jury did not have to find that Wood also gain. convicted the defendant of ag- committed sexual assault or degree specify first did not which gravated kidnapping guilty him find aggravating circumstance circumstances it murder, therefore, ag- first *19 relied on guilty. to find the defendant Be- gravated aggravated sexual assault and kid- jury specifically cause the found the defen- napping merged convictions should not be guilty aggravated dant of robbery, the Court capital into the murder conviction. aggravated robbery assumed that served as aggravating capital language clearly the circumstance for in the does not Shaffer ag- compel argued by murder conviction. The that Court held the result for the State. gravated robbery predicate felony aggravating the stated that if the circum- Shaffer degree first supporting degree murder and a lesser included stance a conviction of first sep- offense because additional facts or “[n]o murder is different from an additional of- required prove arate aggra- predicate elements are to fense that could also serve as a robbery degree felony murder, vated capital after first murder for a defendant predicate aggravated based on the offense of be convicted the other offense there are if robbery.” “adequate independent grounds Id. at 1313. to convict killing Shaffer, aggravated the as was the sexual both offenses.” the defendant of Branch, 1187, added). See v. assault. State other (emphasis In P.2d at 1314 n. 3 (Utah 1987). words, not be would the additional offense as de- a lesser included offense held to be noted, argues that be As the State 76-1^102(3) by § if it not have fined did sup cause the murder conviction was also capital predicate serve as the offense by finding ported that the murder was Here, sexual as- aggravated both murder. depraved, aggrava separate heinous found aggravated kidnapping were sault and homicide, ting capital circumstance neither capital offenses homi- predicate of the be aggra aggravated sexual assault nor the the sepa- charge, the also cide defendant was kidnapping should vated convictions be predicate As rately convicted of each crime. the Howev merged with murder conviction. offenses, of- was also a lesser included each er, depravity the heinousness and arose di Nevertheless, charge. of the homicide fense aggravated rectly out of the sexual assault. sense, however, merge it both makes no appropriate not think it in this case We do only requires the one convictiоns when law capital hold that the homicide conviction predicate offense. solely supported be deemed to should be aggravating the circumstance of the heinous aggravated that hold We depravity of murder when ness and the the merge kidnapping conviction with does iron, rape significant a tire factor not as the murder conviction because is death, contributing primarily to Church’s is causally killing closely to the as the related supported depravi the what heinousness and assault, aggravated ag finding. essence, that the ty sexual heinousness of object rape and the gravated the crime were same assault conviction does sexual factually legally and should treated be merge. People, See Callis purposes merger aggravating as one circum (Colo.1984). supporting The facts stance. of first murder are Wood’s conviction aided and abetted Archuleta di necessary It is not under Double rectly killing by kicking him in the in Church Jeopardy Clause of Fifth Amendment4
jaw
inflicting
during
him
wounds on-
aggravated
merge
kidnapping
conviction
beating and
assault that took his life.
sexual
with the
conviction. Under
Fifth
proved
support
aggravat
in
The facts
of the
Amendment,
applied
“the test to
to deter
kidnapping charge
closely
ed
were not as
mine whether there are two offenses or
causally
killing, although
related
one,
provision requires proof
whether each
kidnap
victim was killed
the course of the
fact
of an additional
which the other does
ping.
kidnap
of the aggravated
The facts
States,
Blоckburger
not.”
United
U.S.
Ar-
ping are that
and abetted
Wood aided
299, 304,
180, 182,
52 S.Ct.
93
intent,
proved,
felony
legislative
not “estab-
sence of such a form or
the additional
by
all
proof
principled
lished
of the same or less than
upon
there is no
basis
which we
required to
first de-
[the
the facts
establish
can
multiple
determine which one of
felonies
§
gree
Ann.
76-1-
murder].” Utah Code
necessary
constitutes
element of first
402(3)(a).
felony
But which
should we
degree murder.
areWe
thus left with the
majority adopts
rule that
choose? The
only nonarbitrary
merge
predi-
rule —to
all
felony
closely
causally to
“most
related
degree
cate felonies with a first
murder con-
felony
killing”
predicate
constitutes the
viction. All of them meet the definition of an
degree
merges
to first
murder and therefore
included
offense under
section
76-1-
explanation
It
no
with that crime.
offers
as
402(3)(a).
why
this should be the standard. Other
McCovey,
It is
that in
true
State v.
rules,
adopted
have
courts
different
each as
1234, 1239
1990),
P.2d
we
held
majori-
arbitrary
by
as the one embraced
predicate felony
degree felony
to second
ty today.
People,
Callis v.
(Colo.1984) (“When
murder was not a
a defendant is con-
lesser included offense of
felonies,
multiple
degree
victed of
all of which are
second
murder.
did so in
We
alleged
legal predicates
as the
for the com-
prior holding
Shaffer,
face of our
murder,
felony
felony
mission
which
1313-14,
predicate felony
that the
to first
directly
most
contributes to the death of the
degree murder was a lesser included offense
victim should serve as the essential element
merged
degree
and therefore
with a first
conviction.”);
felony
of the
murder
v.
Small
result,
murder conviction. To reach that
we
State,
(Fla.Dist.Ct.App.1984)
conviction Sivak,
Thus, essence, being punished