State v. Wood

ing circumstances I have no alternative Utah, STATE Plaintiff and according to legislature. The legisla- Respondent, ture set the penalty, the Court doesn’t set penalty. Under the law I required am and man- WOOD, Walter J. Defendant dated that I impose the sentence of death Appellant. and No. 16486. The trial court’s conclusion that the death Supreme Court of Utah. S'éntenceis mandated once the aggravating circumstances are found to preponderate Sept. 1981. over the mitigating circumstances is in er-

ror requires and that the sentence be vacat- ed and the case remanded for resentencing. MacDougall, Richard G. City, Salt Lake It is our conclusion that the appropriate for appellant. defendant and standard to be followed the sentencing Wilkinson, Gen., David L. Atty. Earl F. authority judge jury case — —in Dorius, Gen., Atty. Asst. City, Salt Lake for is the following: plaintiff respondent. and After considering the totality of the aggravating and mitigating circumstanc-

PER CURIAM: es, you must be persuaded beyond a rea- sonable doubt jury aggravation A that total found defendant guilty of first out- weighs mitigation, total degree murder. and jury having you must been further persuaded, beyond waived for penalty phase, reasona- the court doubt, ble the imposition heard evidence prosecution from the defense, justified appropriate then sentenced the defendant in the circumstances. to death. appeal This followed. The defendant’s conviction majority degree

A of the court of first holds: affirmed, murder is but his sentence of 1) degree conviction for first That death is vacated and the case is remanded áffirmed; murder should be to the trial court with instructions to resen- 2) That the sentence of death should be tence the defendant vpith accordance vacated and the case remanded to the dis- U.C.A., 1953, 76-3-207(3). trict court resentencing. So ordered. Opinions guilt on the penalty phases will be filed hereafter.

Speaking of legal governing standard

when the death sentence imposed should be

and when the life sentence should be im-

posed, the trial judge stated: firmly I ought beyond believe it to be Utah, STATE of Plaintiff and Supreme

reasonable doubt but the Court Respondent, has told me. It is a preponderance, greater weight of the evidence. WOOD, Walter J. Defendant deliberation, After further judge stat- Appellant. ed: No. 16486. specific ... I will make finding. I do doubt, not find that a reasonable Supreme Court of Utah. but I find aggravating prepon- that the May derates. The having found the de- guilty fendant murder in the

first and the preponderating facts

in favor of mitigat- over the

73 MacDougall,

Richard B. City, Salt Lake for appellant. defendant and Wilkinson, Gen., Atty. David L. Earl F. Dorius, Gen., Atty. Asst. City, Salt Lake plaintiff respondent.

STEWART, Justice: defendant, Wood, Walter J. was con- degree victed of first murder for a murder robbery committed the course of a pursuant sentenced to death to Utah Code Ann., 1953, 76-5-202(l)(d).1 east, farther ap On this where he had left his wife and peal contentions of error are as children. numerous Aasved sat the rear of the automobile, guilt phase pen serted in and the both and Wood sat in the passenger . alty phase of his trial. seat in Sep bifurcated On front with Johann. During ride, 21, 1981, per opinion tember curiam Aasved payment volunteered the in$7 order, single bills, this sustained Court the convic cash was taken by tion, sentence, vacated the death and re Johann. As they van, drew near Aasved’s Wood, manded to the court district to resentence who apparently had been dozing and imprisonment awake,” defendant to life as re “was half half asleep and abruptly 76-3-207(3). quired by opinion and, This ex turned around without speaking a word, plains the having Court’s reasons for af shot Aasved four or five times in the and having firmed the conviction set aside chest. driving Johann continued past the penalty. van and Knolls, drove off the Interstate at Utah. He dragged and Wood Aasved’s Initially, both the defendant Wood and body off the the frontage side of road and were Joseph charged one J. Johann with left it. Johann Wood then continued killing first murder for of David east on freeway. during Aasved of a robbery, commission Bears, Utah At Teddy offense under law. As a truck stop 1-80, on consequence bargain, they and, plea freeway Johann left according to Aasved, Johann, pleaded guilty robbery agreed away Wood drove alone and was Wood, testify against gone and received im- about one There hour. is no testimo- munity prosecution ny from for Aasved’s as mur- to what did during Wood that time. der. After the shooting stop at Teddy trial, Bears,

Both Wood and Johann testified at Johann proceeded and Wood on to each placing responsibility for the kill- Salt Lake City with Johann at the wheel. ing testimony, on the other. There they Johann’s cor- utilized Aasved’s credit cards to roborated in the essential respects by lodging, most obtain automobile, rent another confession, purchase binoculars, Wood’s was as follows: Shortly among other 10, 1978, after midnight things. 12, 1978, on June Johann On June Wood and Jo- traveling and Wood were in a rented hann Bay, Oregon, auto- drove to Coos and then Wendover, Utah, mobile from California via Washington the State of where Wood City to Salt Lake Highway gun on Interstate 80. sold the parted company with Jo- They stopped Johann was driving. pick hann. Wood was later arrested in Los An- up carrying geles, California, Aasved who agents container of by F.B.I. to whom van, gasoline back to some gave his seven miles he a confession. provides: robbery, robbery, rape, sodomy, full text Section 76-5-202 in forcible or assault, aggravated aggravated arson, sexual degree. (1) Murder in the first Criminal — arson, aggravated burglary, burglary, aggra- homicide gree murder in the first de- constitutes kidnapping kidnapping. vated or intentionally knowingly if the actor or (e) The homicide was committed for the any causes the death of another under purpose avoiding preventing or an arrest following circumstances: acting peace legal officer under color of (a) by pris- The homicide was committed authority escape purpose effecting or for the jail penal oner institution finement is who confined or other custody. from lawful regardless of whether such con- (f) pecu- The homicide was legal. committed for niary gain. personal or (b) other At the time the homicide was commit- (g) having previously After been convicted ted the actor also committed another homi- degree of first or second murder. cide. (h) (c) knowingly great The homicide was committed for the The actor created a purpose preventing person testify- a witness risk from of death to a other than the ing, evidence, person providing or a from victim and the or actor. person (d) participating legal pro- committed from in The homicide was while the of, ceedings investigation. engaged actor was or official in commission or commit, (2) attempt flight an ting or Murder in first after commit- is a commit, attempting aggravated offense. jail awaiting testified that he did not Wood while in

At trial Wood trial. The letter, 11, 1978, first dated story was that he and October con- Aasved. His kill tained a further acknowledgment of the through Wendover enroute passed Johann commission murder and demanded City they Lake where arrived at to Salt imposition penalty. m. on June 9. Johann then p. about 7:00 letter, 16, 1978, second dated October re- for several hours and the automobile took canted the statements made in the first midnight. until after Wood did not return letter, letter. In the second Wood claimed had confessed to F.B.I. that he admitted that he wrote the first letter because he Angeles, sought to ex- agents Los jail could not tolerate the conditions in the away ground on the plain the confession judge’s wanted to obtain the attention depression suffered from severe that he had hope might in the that he be moved to had, effect, trying been to commit jail. another suicide. mitigation Wood’s evidence showed no confession, his Wood stated that he prior criminal possibility record and some driving the car and was alone had been organic brain deterioration prolonged from picked up when he Aasved and thereafter and extensive alcohol abuse. An alcohol confession, point him. At one in the shot employed by abuse counselor Western Air- question as to he response why to a shot lines, employer, Wood’s former testified Aasved, figured he he stated: “I had more presentence hearing that Wood all had trial, that.” money. guess figured I I At the symptoms of alcoholism including men- acknowledged having he used Aasved’s blackouts, tal one of which he had suffered cards, credit but claimed that he had re- presence. Up the counselor’s until two City. ceived them from Johann in Salt Lake crime, years prior to the Wood had had a murder apparent He also identified record, stable having work worked for revolver, weapon, Ruger as one a .22 caliber Western years, part Airlines for thirteen gun he had owned. The had been recovered the time as a chief mechanic. His first it from person purchased from a who had marriage had years continued for seventeen Washington. him in divorce, and ended in apparently because of pathologist A testified at trial alcoholism. Wood is the father of three chest, Aasved suffered four shots to the one children from that marriage. head, shoulder, and three to the and right Wood waived his jury to have the by the that death was caused chest wounds. determine whether the sentence should be The wounds to the head were inflicted ei- imprisonment life or death. accept- Before immediately immediately ther before or af- waiver, ing the the trial judge, on his own ter the chest There was no testi- wounds. initiative, carefully outlined his own back- mony as to who the inflicted head wounds. ground and they beliefs to Wood insofar as experienced lawyer ap- An was might thought have been to bear on the pointed represent to The Wood. case was decision to be made. At the conclusion of jury tried before a in the district court for presentence the hearing, the trial judge County. charged jury Tooele The court the found one aggravating factor and three murder, degree on the crimes of first second mitigating premise factors. On the murder, degree manslaughter; and the “preponderance the the evidence” stan- degree returned a verdict of first murder. govern dard should aggravating whether presentence hearing, At the the State ad- outweigh factors, factors mitigating the significant aggravat- duced no evidence of judge ruled that the factor ing circumstances that adduced at preponderated factors, the mitigating over trial, and, urging penalty, the death re- accordingly imposed penalty, death solely lied almost on the circumstances of though even he indicated that there was a the crime as aggravating circumstances reasonable doubt as to whether the aggra- warranting the death penalty. The vating outweighed State factor placed also in evidence two letters written factors. pattern Wood asserts errors in result that a appeal, arbitrary

On this and capri penalty phases of his guilt both the sentencing cious like that found unconstitu phase of penalty trial. first to the We turn tional in Furman could Gregg occur.” v. guilt below proceeding and then to n.46, Georgia, 195, 428 U.S. at 96 S.Ct. at phase. 2935, n.46. Standards intended to reduce arbitrariness not describe all murders I. OF REVIEW SCOPE they so fail provide to a rational basis cases, appeal On direct distinguishing between those cases in it is the rule that this will established Court which the death penalty appropriate error, though proper review an even no those in which it is Godfrey not. v. Geor objection made at even was trial and 420, 100 gia, 446 U.S. L.Ed.2d though appeal, was not the error raised on if the manifest prejudicial. error was Utah, Pierre, v. 572 P.2d State Eighth The requires Amendment Cobo, see 60 P.2d also State Utah state disregard that the not act in Stenback, Utah State humanity individual, every no matter phase, In the penalty P.2d 1050 that person may how far have fallen from duty is our determine whether the sen the norms of civilized conduct. Even error, preju tence of resulted from though homicide, one has committed a arbitrariness, or disproportion dice or requires law some deference individual Pierre, supra. ate. which produce characteristics differences in culpability. Although the II. PENALTY OF THE PHASE Eighth deprive Amendment does not THE TRIAL State, or people, agency, their Background A. Constitutional power impose penalty for those Eighth The and Fourteenth Amend murder, require who recog commit it does ments to the do United States Constitution among nition of fact that even murder permit imposition not of the death ers there are those culpable who are less arbitrary capricious in an manner. Fur than others and that death penalty Georgia, man v. U.S. Therefore, appropriate not in all cases. objective of 33 L.Ed.2d 346 guide standards which sentencing body law is require the discretion a must focus on the circumstances of the sentencing case careful body crime as well as background per ly designed ap channeled standards sonal characteristics of the defendant. The plied to there is insure a reasonable plurality opinion in Woodson North Caro distinction those cases in between murder lina, 304, 428 U.S. at 96 S.Ct. 2991stated: penalty imposed which the death is process significance A that accords no those it is Gregg Georgia, in which not. facets of relevant the character and rec 153, 2909, 428 96 S.Ct. 49 859 U.S. L.Ed.2d the ord of individual or the offender cir Florida, 242, (1976); Proffitt 428 96 U.S. particular cumstances of the offense ex 2960, (1976); L.Ed.2d 913 Jurek v. S.Ct. 49 from fixing cludes consideration the Texas, 262, 2950, 428 96 49 U.S. S.Ct. punishment possi ultimate of death the (1976); L.Ed.2d 929 Woodson v. Car North compassionate bility mitigating or fac olina, 280, 96 2978, 428 U.S. S.Ct. 49 L.Ed.2d stemming tors from the diverse frailties Louisiana, 944 and Roberts v. 428 persons of mankind. It treats all convict 325, 3001, 49 974 U.S. 96 S.Ct. L.Ed.2d designated a unique ed of not as offense the Gregg, plurality opinion In stat beings, but ly individual human as mem ed that penalty sentencing a death scheme faceless, a bers of undifferentiated mass vague they not “have standards so subjected to be adequately would fail to channel sen blind infliction of tencing patterns juries with the penalty decision of death. ing in Ed factors to create a substantial and rea- Court Supreme recently

More penalty the death is Oklahoma, - U.S. -, 102 S.Ct. sonable doubt dings v. (1982) appropriate. stated: 869, 874, 71 L.Ed.2d Furman, the Court has with Beginning judge explained length The at some trial a con- standards for attempted provide penalty he considered in the the factors would penalty that stitutional death phase persuaded and the reasons that him measured, consistent goals of serve both The trial to reach the conclusion he did. the accused. and fairness to application judge expressly following found the three Georgia, 428 Thus, U.S. Gregg (1) mitigating circumstances: the defend- (1976),the 2909, 49 L.Ed.2d S.Ct. 859] [96 “absolutely past history no criminal ant had of an arbi- danger that the held plurality record”; (2) “somewhat of a he was could penalty death capricious trary and depraved individual but not a indi- sickened statute “by carefully a drafted be met vidual”; murder, (3) “at the time of the sentencing authori- that the that ensures appreciate criminality capacity his adequate information ty given his or to conform (wrongfulness) of conduct guidance.” requirements of law was his conduct to the 586, Ohio, a of mental Accord, substantially impaired 438 U.S. as result Lockett disease, drugs.” fail- 2954, For intoxication or influence of 57 L.Ed.2d S.Ct. a prior activity, consideration to give individualized As to the absence of ure to case, plu- stated, very mitigat- murder trial “that is court defendant Supreme ing.” single aggravating Court The circumstance rality of the United States uncon- mandatory penalties judge has held the trial found was the “ruthlessness Carolina, murder,” v. North brutality Woodson and he ruled stitutional. 49 L.Ed.2d 944 mitigating outweighed S.Ct. factors.2 Louisiana, 428 U.S. (1976); Roberts v. determining penal- the death whether cf. 49 L.Ed.2d ty imposed, judge should be the trial stated Alabama, Beck v. U.S. that in his view the test should be whether 2382, 65 L.Ed.2d 392 beyond could a reasonable he conclude back- this constitutional against It outweighed aggravating doubt that the of wheth- we address the issue ground that Nevertheless, mitigating factors. he con- lawfully imposed penalty was er the death required prepon- law that a cluded in this case. applied. derance of the evidence test be He Hearing B. The Presentence then stated: finding. I will I specific make do not penalty the death Wood contends that for aggravating find that circumstances [the made imposed comparison must be to be outweigh mitigating circumstances] mitigat- aggravating between factors and doubt, I reasonable but find factors, must out- ing and that the former aggravating preponderates. that the The weigh the a reasonable “beyond latter having guilty found the defendant hearing, the trial penalty doubt.” In the murder in the first outweighed judge aggravating -found the preponderating facts favor of mitigating preponderance factors over the circum- evidence, imposed pen- according I have stances no alternative alty though he indicated substantial even legislature. legislature set the appropri- doubt that the death penalty, penalty. the court doesn’t set the issue, therefore, posed squarely ate. The required the law I man- Under am may whether a death sentence be sustained impose that I the sentence of sufficiently are dated mitigating when the factors strong compared aggravat- with the .... [Emphasis when added.] “ruthfullness,” language. transcript 2. The the trial court’s uses the term undoubtedly mistranscription but that is Statutory C. The Guidelines including the aggravating factor or factors under proved 76-5-202 § the trial of statutory provisions governing The Utah guilt. provide homicide cases that after a guilty trier of fact has found a defendant However, 76-3-207 § does not indicate crime, requires proof which be- weight what should be accorded individual yond a reasonable doubt of at least one of aggravating factors, and mitigating or factors,3 statutory aggravating another what govern standard should in reaching a hearing shall be held to take evidence of decision based on a comparison of the totali- any additional factors and mit- ty of the aggravating factors and the totali- igating factors the defendant may be able ty of the mitigating factors. The statute prove. 76-3-207(1) specifies to Section six does not even state that comparison must mitigating factors which relate either be made. The sentencing authority is sim- particular circumstances under which the ply by directed § 76-3-207 to “consider the crime was particular, committed or to the penalty.” Obviously, however, implicit personal circumstances of the defendant at in the statutory scheme that a comparison time provision of the crime. That also of aggravating “any states that factors mitigation” other fact must may proved.4 be be made and a decision reached based on the result of comparison. The sentenc- addition, 76-3-207(1) directs ing authority is not disregard entitled to sentencing authority to consider in the pre- either the aggravating factors or the miti- hearing sentence “the nature and circum- gating factors because personal of a belief crime, stances of the the defendant’s char- that all homicides acter, punishable should be background, history, mental death, or, condition, physical hand, on the other any other facts in aggravation mitigation or penalty,” of the penalty should never imposed. be supra (b) 3. See note 1. The murder was committed while the defendant was under the influence of ex- disturbance; treme mental or Paragraphs provide emotional 4. 1 and 2 of 76-3-207 (c) The defendant acted under extreme du- full text: ress or under substantial domination of an- Capital felony Hearing on sentence.— — person; other (1) guilty aWhen defendant has been found (d) murder, capacity At the time of the capital felony, there shall be further appreciate criminality of the defendant to proceedings jury before the court or on the (wrongfulness) of his conduct or to conform penalty. proceedings issue of The shall be requirement his conduct to the of law was jury conducted before the court or which substantially impaired as a result of mental guilty, provided found the defendant the de- disease, intoxication, drugs; or influence of may hearing jury, fendant waive before the (e) youth of the defendant at the time hearing in which event the shall be before the crime; of the proceedings, may court. In these evidence (f) accomplice The defendant was an in the presented any be as to matter the court person murder committed participation another and his sentence, including deems relevant to but not minor; relatively limited nature and circumstances of (g) any mitigation And other fact in crime, character, the ground, tion, the defendant’s back- penalty. history, physical mental and condi- (2) jury, be, may The court or as the case aggravation other facts in penalty. shall retire to consider the In all mitigation penalty. Any evidence the proceedings jury, section, before a under this probative court deems to have force be punishment it shall be instructed as to the regardless admissibility received of its under imposed upon a unanimous verdict for exclusionary rules of evidence. The imposed death and that to be if a unanimous attorney state’s permitted and the defendant shall be jury verdict for death is not found. If the present argument against for or reports agreement impose unanimous Aggravating sentence of death. circumstanc- death, discharge sentence of the court shall es shall include those as outlined in 76-5- jury impose and shall the sentence of Mitigating circumstances shall include jury death. If the is unable to reach a unani- following: death, imposing mous verdict the sentence of (a)The significant defendant has no histo- discharge impose the court shall ry prior activity; imprisonment. the sentence of life 80 by Wood in the had the precise proof issue raised this State “burden of neces- sary addressed before this for a verdict of death over impris-

case has not been life Pierre, Utah, 572 P.2d onment and that the totality In State v. of evidence of Court. (1977), argued, relying aggravating on Mul it was circumstances must therefore 1338 Wilbur, 684, 1881, outweigh 95 laney totality mitigating 421 U.S. S.Ct. circum- (1975), Pierre, the Due 44 L.Ed.2d 508 Process stances.” 572 P.2d at 1347-48. Ac- cord, Brown, Utah, of the Fourteenth Amendment re State v. Clause 607 P.2d 261 (1980); Morris, Utah, quired “prove beyond to a reason Pierre v. State 607 P.2d 812 (1980). However, any mitigating able doubt the absence of the Court did not specify requisite factor which the defendant raises ...” what persuasion standard of added). 572 We (emphasis P.2d 1346. or certitude was to justify the determina- Mullaney applied only pros held that tion that aggravating outweighed mitigat- guilt phase Nevertheless, ecution’s burden in the ing circumstances. we did presentence hearing and not to the in a hold, trial independent on an review of the evi- reject case. Other courts have also dence of aggravating mitigating fac- argument the same and held that due ed tors, pursuant duty to our to make such a process require prosecution does not review, that “the circumstanc- prove beyond a reasonable the ab doubt es were overwhelmingly present against the mitigating sence of factors. State v. Wat defendant and the circumstances son, 441, (1978), 120 Ariz. 586 P.2d 1253 cert. favoring him most minimal —even from the denied, U.S. S.Ct. point Pierre, of view of inference.” State, L.Ed.2d 478 Tichnell v. 287 P.2d at 1348.6 Md. 415 A.2d 830 v. Bar D. Substantial Doubt as to the Appropri- field, 298 N.C. S.E.2d ateness of the Death Penalty Furthermore, whatever remote relevance reject We proposition Mullaney capital presentence has in a hear penalty may (cid:127)death imposed be when there ing has been further attenuated is substantial doubt whether it should be. more recent decision in Patterson v. New accept To proposition per would be to York, 197, 97 432 U.S. L.Ed.2d mit the sentencing authority to assume an almost casual in imposing capital attitude We also 76-3-207(2) held in Pierre that § punishment most solemn and final act —the require prosecution prove did not that the against state can take an individu beyond a reasonable doubt the absence of al. That the reprehen defendant acted in a mitigating factors. To have ruled other- sible and even vicious manner cannot justi wise, would have made the statute unwork- fy the departure state’s from strict adher able. A defendant have raised could principles justice. ence to basic For our mitigating factors, number of and made it system justice to command the respect of virtually impossible prosecution for the society, applied, law must be in all disprove all, especially most, them since if cases, judicious and even-handed man all, not statutory mitigating factors stated ner. We recognize that there is a diver 76-3-207(1) require judgments as to gence of views as to the reasons which exist, they to which and are not support the death penalty, regardless but simple propositions.5 “either/or” deterrence, whether the reason relied on is Although rejected position retribution, we urged reason, or some other by Pierre, defendant in we did hold that penalty may imposed only when consist- Paragraph (l)(a) speaks 5. participation supra 76-3-207 of “no minor” in the crime. See significant history prior activity”; note 4. (b) refers to “extreme mental or emotional dis- turbance”; (c) refers to “extreme duress or . . . Compare Florida, language in Proffitt v. (d) substantial domination of another ... 242, 249, 2960, 2965, capacity being to the defendant’s mental refers L.Ed.2d 913 “substantially impaired”; (f) “relatively

81 respect violation “the fundamental for hu of that clause if a ent with defendant manity underlying Eighth basis, Amend sentenced to death on the part, in of Carolina, Woodson v. North 428 ment.” confidential information not to a disclosed 2978, 2991, 49 280, 304, 96 L.Ed.2d U.S. S.Ct. counsel, id.; defendant Spaziano or his v. (1976). 944 State, Fla., (1981); 393 1119 So.2d or when presentence a report was shown to counsel if only sentencing can be achieved That defendant, but not Raulerson v. Wain only permit imposition of the procedures wright, 508 381 F.Supp. (M.D.Fla.1980); or high of a penalty on the basis death when defense counsel was not ade given appropri- penalty of confidence that that quate time to a complicated presen review Woodson, in plurality opinion ate. The 428 2991, report, tence 305, Phelps, N.D., v. 297 at 96 at states: S.Ct. U.S. (1980). N.W.2d 769 Death sentences have finality, Death its differs from life 1) also been set because inadequate aside of hundred-year a imprisonment more than representation counsel, Zant, Young v. term one prison only differs from a F.Supp. (M.D.Ga.1980); 506 274 v. Voyles that year'or quantita- two. Because of Watkins, F.Supp. (N.D.Miss.1980); difference, 489 901 corresponding tive there is a Frierson, 142, see also People in the for reliability difference need 25 Cal.3d 158 ap- Cal.Rptr. 281, the determination that death is the 599 (1979); P.2d 587 La., propriate punishment Myles, 2) State v. 389 specific (1980); a So.2d 12 case. [Emphasis admission of evidence other for crimes added.] convicted, which defendant had not been Ohio, 586, 604, also Lockett v. 438 See U.S. 14, Presnell v. Georgia, 439 U.S. 2954, 2964, 98 57 L.Ed.2d 973 S.Ct. 235, 58 L.Ed.2d 207 State v. McCor the interplay Nowhere the law is mick, Ind., 3) 397 N.E.2d 276 procedural rules and standards substantive prosecution’s failure to disclose\the phase more critical than in the penalty name of a crucial witness so de capital case. The substantive standards fendant respond, was unable to Smith “objective guide, reg must standards Estelle, (5th 602 1979). F.2d 694 Cir. See ularize, rationally and make reviewable Patterson, 605, also Specht v. 386 87 U.S. process imposing a sentence of death.” 1209, 18 (1967) where, S.Ct. L.Ed.2d Woodson, 303, at U.S. S.Ct. noncapital case, the “full panoply”' of the however, difference, It no makes how ra relevant process guarantees due in state discriminating tional substantive criminal were proceedings held to a apply’in are, procedural standards if the rules which hearing punishment to determine under implement provide those do not standards state, sex authorizing offenders act en an effective mechanism for their faithful punishment hanced if judge the trial found implementation. Even if Solomon-like wis the defendant “would constitute framing objective were dom available in threat bodily harm to members of standards, their purpose whole could be public or that he-was an habitual governing procedural thwarted if the rules or mentally ill.” Id. at 87 S.Ct. at 1211. the sentencing body impose allowed proceeding, Court held in such a penalty in face evidence which the defendant “must be afforded all those creates reasonable or substantial doubt as rights are which fundamental appropriateness ^.safeguards that penalty. and essential fair trial.” 609- to a Id. at To assure that substantive stan 610, 87 S.Ct. at 1212. govern imposition dards of the death criminal, In all both litigation, civil and fairly, evenhandedly, are prop applied, always possibility there is erly require of error. procedural basic Speiser Randall, ments of the U.S. Due Process Clause of the S.Ct. cases, Fourteenth must be L.Ed.2d 1460 Amendment observed. civil Florida, disputes despite Gardner are resolved substantial Thus, 51 L.Ed.2d accuracy it is a doubt about of the factual Winship, underpinning judgment. But Justice Harlan conclusions stated that tradition, both in the United proof in our States standard of should “instruct the fact- Utah,7 law and in the of the criminal State finder concerning the of confidence deprivation liberty does not allow the of society our thinks he should have in the guilt doubt of is exclud- unless substantial correctness of factual par- conclusions for a ed. The doubt standard was reasonable type adjudication.” 370, ticular of Id. at 90 adopted by approxi- first the common law S.Ct. at 1076. McCormick, mately ago. C. two centuries Supreme The United States Court has not 1972); (2d Wigmore 9 J. Evidence 341 ed. § specific addressed the issue as to what stan- (Chadbourn 1981). Evidence 2497 rev. persuasion Eighth dard of the Amendment supporting The basic reasons that standard through the Due Process Clause of the were In Winship, enumerated in re 397 U.S. Amendment, Fourteenth or that by clause 358, 1068, (1970). 25 L.Ed.2d 368 itself, requires imposing in penal- “The plays reasonable-doubt standard a vi- ty.8 Because Winship dealt with fact find- tal role in the American scheme of criminal ing in delinquency is, proceeding, it procedure. prime It is a instrument for course, distinguishable. Whether the Unit- reducing resting the risk of convictions on ed Supreme States Court would hold that provides factual error. The standard con- the reasonable doubt standard ap- must be presumption crete substance for the of in- plied presentence in hearings in nocence—that bedrock and ele- ‘axiomatic cases as a requirement either of the Eighth mentary’ principle whose ‘enforcement lies Amendments, or the Fourteenth proble- is at the foundation of the administration of matic of the wide variety because of state ” 363, our criminal law.’ Id. at 90 statutory schemes that exist. The conclu- transcending 1072. The values at stake in any particular sion in might case well turn proceedings require a far more on the over-all effectiveness of the statuto- stringent standard than in civil cases. ry scheme in minimizing caprieiousness. reasonable-doubt standard is indis- “[T]he pensable, ‘impresses for it event, on trier of In we address neither fact the necessity reaching subjective the federal nor the state constitutional is ” state of certitude of the in facts issues.’ sues because the case can be on decided 364, Id. at only 90 S.Ct. 1072. It is not preferred grounds of statutory construction. stake, interest of the individual that is at It is a fundamental rule that we should is also integrity justice of the criminal avoid addressing a constitutional issue un system itself. The “use of the reasonable- required less Monson, to do so. Hoyle v. indispensable Utah, doubt standard is to command (1980). 606 P.2d 240 See also F.C.C. respect Foundation, and confidence of the communi- v. 726, Pacifica ty applications 3026, of the criminal law.” Id. S.Ct. (1978); L.Ed.2d 1073 Swensen Thus, Inc., critical that moral force Buildings, 466, v. “[i]t 93 Idaho 463 P.2d 932 criminal law not be diluted (1970). a stan- As a corollary principle, of that we proof dard of people statutes, leaves in doubt construe if possible, to avoid the whether being innocent men are con- risk of running afoul of pro constitutional demned.” Id. concurring opinion Utah, hibitions. In re Boyer, 636 P.2d 1085 jurisdictions, impos- vidual, 7. Unlike some involuntary other Utah proceed- as in commitment prosecution disprove es ings, on the preponderance the burden to the usual of the evidence Rather, the existence of apply. affirmative defenses standard does not the standard pro- persuasion reasonable doubt once the defendant convincing has is clear and evidence. 64-7-36(10). duced some evidence of the required defense. State v. The same standard Green, (1935); guardianship Utah, Utah Boyer, P.2d 961 State cases. In re Harris, (1921); 58 Utah 199 P. 145 State P.2d 1085 White, (1912); 40 Utah 121 P. 579 Vacos, 40 Utah 120 P. 497 See In the cases which have been before that also § 76-1-502. In civil Court, cases where there are apparently issue has not been ad- significant intrusions on the liberties of an indi- dressed. appropriateness, would create in some Department, Ellis Social Services possi- cases—as in this case—a Utah, substantial Gord v. P.2d Salt bility “arbitrary ... Utah, per- treatment” and City, Lake 20 Utah 2d 434 P.2d “penalties mit which are proportion- Legislature When the has not [not] ate,” Legis- a result that is forbidden specified requisite persua- standard of lature and that would raise issues of a necessary adjudica- sion or certitude in an possible magnitude.9 constitutional Fur- tion, it duty is the of the Court to fill such a thermore, view, in our the reasonable doubt gap by weighing the relative interests of standard also strikes best balance be- light State and defendant tween the interests of the state and of the potential constitutional considerations and individual for most of reasons stated in legislative intent to determine what In re Winship, 397 U.S. persuasion ought of In re be. 25 L.Ed.2d 368 Boyer, 636 P.2d at 1091. E. The Burden of Persuasion Legislature provided general has guidance construing standards for in the per In our curiam decision in this case 76-1-104(3) (4) 21, 1981, Wood, criminal code. and September Section decided provide provisions Utah, that the of the code are (1981),we held: 648 P.2d 71 “[prescribe penalties to be construed to appropriate It is our conclusionthat the proportionate which are to the seriousness sentencing standard to be followed the “[p]revent arbitrary of the offenses” and to capital or a authority judge —in — oppressive persons or treatment of accused following: case is the or convicted of offenses.” Section 76-1- considering totality After the of the by providing 106 reinforces 76-1-104 that § aggravating mitigating cureum- and provisions of this code and offenses “[a]11 stances, you persuaded beyond must be by the defined laws of this state shall be aggrava- a reasonable doubt that total objects construed ... to effect the of the outweighs mitigation, tion total and general law and purposes of 76-1-104” § you persuaded, beyond must further be (emphasis added). provisions apply These doubt, imposition a reasonable that the particular capital with force in cases be- penalty justified of the death is and gravity cause of the of the decision to be appropriate in the circumstances. made and the constitutional environment in that the require These standards which that decision must be made. sentencing body compare totality the of the

Therefore, 76-3-207, construing which mitigating against totality ag § the of the sentencing capital cases, deals with in factors, in gravating not in terms of the rela light of the legislative purposes stated in aggravating tive numbers of the and the 76-1-104(3) (4) 76-1-106, factors, mitigating § we but in terms of their conclude objectives substantiality persuasive that stated cannot respective consistently capital sentencing be au Basically, achieved case ness. what unless the impose thority compelling decision to the death must decide is how or pen- alty persuasive totality mitigating of the made on the basis of the reasonable the to compared against are when impose pen- doubt standard. To the death factors alty, The sen- factors. notwithstanding aggravating its tality serious doubt as to 76-3-207, sentencing procedure clearly 9. Under Utah law in which is adversarial fundamentally capital adjudicatory cases is different from nature. The sentence must be in cases, and, procedure properly in other criminal based on the evidence before therefore, court, ruling is limited to of this case and the decision is a forced choice be- cases, capital noncapital only In cases. the trial tween one of two alternatives. The rea- judge selecting ap- properly has broad discretion in sonable doubt does not lend standard propriate punishment among reaching a from a number of itself a decision when choice alternatives, Utah, many Lipsky, among Fur- see State v. 608 P.2d must be made thermore, alternatives. (1980), jail imposed, it is and the sentence need not be once a sentence is subject continuing jurisdiction based on evidence in addition to that adduced cases, capital sepa- at trial. must be a of a sentence is not ir- there Board revocable, Pardons. Such Ann., 1953, evidentiary hearing, rate Utah Code as is a death sentence. penalty, fixing penalty and the is a tencing body, making judgment that penal judgment matter of about what con- “outweigh,” factors are aggravating sequences the commission should attach to than, compelling mitigating more fac- particular crime defend- tors, have no reasonable doubt as to must is, of The reasonable doubt standard ant.11 conclusion, and as to the additional course, employed as a standard also penalty justi- conclusion standard, factfinding; but which is appropriate considering fied and after all most basic interests of only used when the upon means that This the circumstances. stake, conveys the individual also are the circumstances all of consideration solemnity sense of the decision maker a this crime defendant relating to this necessity high degree the task and for a convinced authority must be sentencing certitude, nature of the values given doubt a reasonable weighed, imposing the death sen- to be imposed. should penalty tence. Although speak “weighing” we factors, we re The standards enunciated in this case are “weighing” alize that the term is often used precedent. not without Other states have determining falsity the truth or of factu adopted variety procedures propositions. al In the context of a employ cases which the reasonable doubt however, hearing, that term is akin to a penalty phase, standard often at mul- metaphor altogether which is not descrip tiple making points. decision In Arkansas process tive of the mental involved. The governs reasonable doubt standard purpose ultimate in the penalty phase is not three critical presentenee conclusions in the factfinding,10 one of but fixing hearing: all aggravating circumstances Clearly necessity 10. there speak be the mak- weighing the murder? To of those ing findings as to the factual basis of certain against aggravating factors circumstanc- mitigating aggravating circumstances which employ appealing meaningless es is to an but disputed. are This function is no different than metaphor gives which in fact the mind no finding the usual fact function. guidance in resolution of such an overwhelm- ingly important question. Stewart, J., concurring opinion in State “beyond The a reasonable doubt” standard Brown, Utah, (1980), 607 P.2d 275 stat- may, course, be considered similar in its ed: proof by preponderance function to of evi- aggravating Whether circumstances out- dence, i.e., both standards are used to resolve weigh mitigating circumstances cannot be disputes. However, factual yond the term “be- processes by determined the same mental something a reasonable doubt” is more which direct and circumstantial evidence are evaluating conflicting than a standard for determining questions evaluated for such as inferences; facts and in the context of a proc- who entered an intersection first. The penalty hearing, conveys jury it also weighing evaluating ess of determine and evidence to concept upon the criminal that the proposi- values which the the existence of a factual justice system process ordinary permit tion is activities of life. common to the is built do not points imposed The reference are the ultimate sanction to be the conclusion is free of substantial doubt unless facts; process facts and inferences from logic practical experience. is one of point ing The require .... That standard would more evaluating aggravating mitigat- determination; would, than a factual it as capital circumstances in a case is not to statute, contemplated by the take into prove proposition a factual but to determine account the tolerable ings. frailties human be- punishment. provides, a for and a lack of inal Section 76-3-207 is, all, It after in deference to those example, youth that the of the defendant jury required frailities that the to consider significant history prior crim- mitigating circumstances. activity mitigating are circumstances. Supreme The U.S. Court has stated that deci- youth defendant, or the lack of type penalty phase sions of the made in the are prior activity, “weighed” criminal cannot be not unknown in other areas of the law and that any meaningful against aggra- sense process mitigating weighing aggra- vating facts. How does one find that the vating factors is not unconstitutional on defendant, age “fact” that the whether grounds vague that the standards are so as to years, preponderate 18or 30 does or does not Florida, permit Proffitt arbitrariness. against aggravating circumstance? How 242, 257-258, 2960, 2969, U.S. does one make such a determination if the L.Ed.2d 913 shoplifting defendant had a conviction or em- years previous bezzlement conviction ten penalty.” Goodman, death proved beyond a must reasonable doubt; N.C. S.E.2d beyond it must be determined a reasonable aggravating doubt that the circumstances F. The Aggravating Factors “outweigh mitigating ... all circumstances In a penalty proceeding, it exist,” must be found to and it determined is essential that sentencing authority doubt beyond aggravat- a reasonable only consider weigh proper ing “justify a sentence circumstances aggravating case, factors. In this (1977).12 death.” 41-1302 Ark.Stat.Ann. only statutory aggravating proved factor Washington requires The State of that the was that the murder committed for the jury beyond be convinced a reasonable purpose of robbing Aasved—the factor that not doubt “there are sufficient miti- made the murder a crime. gating circumstances to merit leniency.” Wash.Rev.Code, 10.95.060 Under phase, In the the trial penalty judge statute, the Texas which was only circumstance, found aggravating one Texas, subject of Jurek v. gave weight. and he He decisive stated: (1976), L.Ed.2d only circumstance, “the aggravating I jury must find a reasonable doubt circumstance, do see is the [an] questions. affirmative answers to three brutality ruthlessness and of the murder ” One of the questions critical is “whether specifically . . .. He found that this sin- there is a probability the defendant gle outweighed factor the absence of would commit acts of criminal violence that prior activity, Wood’s his diminish- continuing would constitute a threat to soci- capacity, ed mental and a “sickened” but ety.” Tex.Code Crim.Proc.Ann. art. 37.071 “depraved” not condition. (Vernon 1981). answering question, Clearly, judge the trial was entitled to required to consider whatever rely on the statutory aggravating factor of prove. factors the defendant can the robbery, proved which was in the guilt Texas, 272, See Jurek v. at 428 U.S. 96 S.Ct. phase, in comparing aggravating and miti- law, at 2956. Under Florida a similar stan- gating Nevertheless, factors. he only found dard obtains when trial judge overrides above; one aggravating factor stated a jury leniency. recommendation of The he did not indicate that he in fact con- judge must “the suggesting find that facts robbery sidered in “weighing” process, a sentence of death be so clear should we, course, must take the record as convincing virtually per- that no reasonable it stands. State, Fla., son could differ.” Tedder v. 322 908, Godfrey Under the rule established in v. (1975) (quoted So.2d 910 in Proffitt v. 420, 1759, Georgia, 446 100 Florida, 249, U.S. S.Ct. 64 428 U.S. 242 at 96 S.Ct. 2960at (1980), 2965, L.Ed.2d 398 there was error in the (1976)). 49 L.Ed.2d 913 In North Car- weighing this process in case because the olina it necessary is to find a rea- aggravating trial court relied on 1) an circum- sonable there aggravat- doubt is an which, limitation, stance some without ing circumstance, 2) that the mitigating improper. Godfrey, the Supreme In Court circumstances are outweigh “insufficient to set aside a death based circumstances,” sentence on an aggravating 3) aggravating essentially the factor same as aggravating circumstance is sufficiently trial that relied on court in this case. imposition substantial to call for of the Despite suggestions contrary, Court reversed remanded for failure to grant change penalty The death destroy of venue. standards do set forth here not serve to again imposed instance, in penalty. was the trial court West the death For the Arkansas 736, State, Supreme brook v. 580 S.W.2d 702 imposition 265 Ark. Court affirmed (1979), Supreme State, 341, penalty but the Arkansas Court re death in v. 269 Miller Ark. grant hearing on a State, versed for failure to mo (1980). 605 In S.W.2d 430 Swindler v. judge, disqualify 107, tion to a failure to make (1979), 264 120 Ark. 569 S.W.2d and in findings State, 875, was fit to stand whether the defendant Ruiz v. 265 Ark. 582 S.W.2d 915 trial, grant a continuance (1979), imposed and a failure to also the trial court the death however, obtain of mental disease. penalty; evidence Supreme the Arkansas 86 yond which had been him question factor was afforded aggravating “outrageously prior or wan Because murder was to trial. Wood felt that

that the vile, appointed Ac psychiatrist horrible and inhuman.”13 was to be used to tonly Dixon, Fla., 1 cord, theory 283 So.2d establish his defense counsel’s of de- State 943, denied, fense, 416 94 S.Ct. was his own (1973), cert. U.S. which inconsistent with (1974); (see 1950, theory L.Ed.2d 295 Os III-E of this 40 State defense Section 405, (1981); infra), 187 born, opinion, appears Idaho 631 P.2d it there was 102 Simants, 549, N.W.2d complete prior 197 Neb. 250 not a full and examination 878, denied, 98 881, psychiatric cert. 434 U.S. to trial. Indeed no evidence (1977), 231, 54 L.Ed.2d 158 was offered at trial. S.Ct.

Godfrey held that such an case, right In a capital defendant has to meet constitu- had to be narrowed factor sentencing authority to have the consider because, it was applied, as tional standards relating evidence to his character and back - murders, all as describe so broad Oklahoma, ground. Eddings v. U.S. murders, it it described all allowed because -, 869, 71 102 S.Ct. L.Ed.2d 1 imposing unlimited discretion in Ohio, 2954, 586, 98 Lockett v. 438 U.S. S.Ct. Thus, penalty. “[tjhere is no 57 973 v. North L.Ed.2d Woodson case, way distinguish this principled Carolina, 280, 2978, 428 U.S. S.Ct. from imposed” which the L.Ed.2d “What is essential it those in which would not be. Id. U.S. [sentencing authority] that the have before Therefore, at at 1767. as to S.Ct. possible it all relevant about information Utah any class murders under defendant individual whose fate must law, as an brutality,” ag- “ruthlessness and Texas, Jurek determine.” factor, gravating must be limited to those 2950, 2958, L.Ed.2d involving battery aggravated murders Lockett, at U.S. torture.14 the Court stated: Eighth .. . the Amend- Fourteenth sentencing We conclude that sentencer, require that ments all aggravat process was flawed because the case, but the rarest kind of not be ing constitutionally relied on was factor precluded mitigat- from considering, as a case, impermissible this since it describes factor, ing any aspect of a defendant’s provide all and therefore murders fails character or record and the cir- any of any guideline channeling discretion. cumstances offense that the de- proffers fendant as a basis for a sentence Psychiatric G. Evaluation less added; than [Emphasis death. foot- Wood, indigent, asserts error in Q. say Did he it on that occasion? ture and of effects the alcoholism. text, prior right 16. psychiatric As noted in the we are aware that waived his to obtain a exami- psychiatric Nonetheless, capital to trial Wood was afforded assist- nation. trial court just ance. The does designed record not disclose how case need not countenance tactics to disruptive protract much of an examination was made. Notwith- to a trial or without a standing subsequent request expert Wood’s for valid reason. help, nothing designed we see in his actions disrupt unduly prolong the trial. Because appears objection It that both the and the psychiatric might evidence have been ruling crucial improper. were Under the standards of think, penalty phase, given we the nature of clearly Utah statute that evidence was ad- proceeding, unduly that would be harsh Watkins, Washington missible. See v. hold, case, on the of facts this that Wood (5th 1981). F.2d 1346 Cir. III. capacity mitigat- mental is a THE GUILT Diminished PHASE OF 76-3-207(d).18 law ing factor under The § THE TRIAL conformity with the state- in this state is Wood raises several claims of error in the La., English, ment in State So.2d guilt phase relating of the trial to eviden- (1979): tiary rulings and the instructions. legislature to us that the is obvious [I]t Change A. of Venue permit intended to to take into consideration, deciding impose not to argues that the trial court Wood penalty, the death an abnormal mental denying erred in his for a change motion legal insanity. may condition short of It venue which asserted that a fair trial could be a mental disease or defect which di- County. not be had in Tooele The conten capacity minishes the offender’s for self- tion is without merit. forming control and for specific A defendant proving has the burden of killing deliberate intention to cause the that a impartial “fair and trial cannot be charged, might or it be such other mental county had in the pend- where the action is affecting disease or defect the act as the ing.” 77-26-1.20 Wood’s motion for a jury might feel was of nature that change supported of venue was only by his penalty indicated that the ultimate counsel’s affidavit to which was attached a [Emphasis imposed. death should not be single newspaper reporting article the vic- added]. tim’s father’s gratitude for the manner in grant indigent The refusal family which Aasved’s had been taken care timely psychiatric defendant’s motion for local authorities. The article also assistance in a case is an abuse of reported a short and accurate account aof discretion, whether the motion is based few of the basic facts the crime and the ground. on 76-3-40419 or some other It persons names of the two who had been is also a process. denial of due United charged, Johann and Wood. Pate, (7th 1965); States v. 345 F.2d 691 Cir. Zant, (S.D.Ga. F.Supp. Blake newspaper affidavit and the article 1981); Brady Maryland, Cf. demonstrating fell far short of that there Al L.Ed.2d 215 community was such a tainted attitude that though open it is not our intention to a fair impartial likely. trial was not door to abuse permitting defendants suc substance, nothing Wood offered more than assistance, cessive demands for psychiatric allegation a bare prejudice county. in the we think the request in this case should allegation patently A mere adequate not granted. have been justify change of venue. Gellatly, 22 Utah 2d 449 P.2d 993 H. Conclusion case, theOn facts of this the three argues Wood possibility also that the above, 1) application errors discussed of an prejudice small, existed because of the erroneous persuasion standard of in the close-knit religious County nature of Tooele penalty phase; 2) weighing of an im and because the victim was a minister. factor, proper aggravating 3) the fail Even if those were allegations taken as ure psychiatric to order a examination true, they nothing add of substance use in the penalty phase, prejudicial were compel us to set claim. The voir dire examination aside. prospective jurors morning on the of trial partial Gerrard, Utah, guilt generally 18.It also be defense in the 19. See State v. phase that, case in the if it sense P.2d 885 negates intent, necessary specific a the crime degree degree would be reduced in to second provision 20. This is now found Utah Code opinion, Ann., 1953, murder. See Part II-C of this infra. 77-35-29(c).

89 jury The was unquestionably such make juror no bias as would entitled to disclosed believe Wood’s confession that he both killed and counsel for unlikely, fair trial a Although for his money. Aasved there is passed jury for cause. sides some circumstantial evidence which also motive, concluding supports There is no basis for that as well as some evi- it, dence inconsistent with receive a trial the statements in that Wood did not before were, themselves, the confession suffi- impartial and free from outside “fair cient the necessary finding. to sustain Pierre, Utah, v. 572 P.2d influences.” State 1338, 1348 (1977). general “The mere show jurisdiction The rule in this appel- as to ing thought of to be to a publicity adverse late review of sufficiency of the evi- change require is not to party sufficient dence ain criminal case is that when the except extraordinary of venue in the most jury acting fairly reasonably and could find situation, In movant guilty beyond cases. the usual defendant a reasonable doubt on basis of the evidence showing least that and the must make logical therefrom, arising inferences allegedly prejudicial material reached verdict will not be disturbed. State v. veniremen, so a foundation for is laid Ward, 34, Utah (1959); 10 2d 347 P.2d 865 possibility actual bias.” Northern of Sullivan, 110, State v. 6 Utah 2d 307 P.2d Pharmaceutical Association v. California Shonka, 212 124, State v. 3 Utah 2d States, 379, (9th 306 F.2d 383 Cir. United (1955). 279 711 P.2d 1962).21 jury’s The verdict guilt amply of was No case. showing such was made in this supported by the evidence. B. of Sufficiency the Evidence Rulings C. on Intoxication Wood asserts there is insuffi defendant asserts error the trial support a cient evidence to conviction court’s restriction of intoxication evidence degree first murder. The attack is not on days of the crime a few day prior homicide; evidence of rather it on the is thereto, give the court’s refusal to an supporting the kill evidence intent intoxication instruction. money Aasved for his element neces —an se is per Intoxication not a de sary to make the murder a offense fense charge. Section 76-2- rather than second murder.22 provides “[vjoluntary 306 intoxication Essentially, argument that Wood’s shall be a not defense to a criminal charge confession, in he which stated he had killed negates unless such intoxication the exist money, Aasved for his is not sufficient ence of the mental state which is an ele support robbery. the motive of ar- Wood ment of the offense.” is it a Nor defense to gues produced by that his admission was a crime that a defendant is an alcoholic. overreaching impropriety part on the Shelton, 838, State v. 71 Wash.2d 431 P.2d interrogators. argues also that his He may 201 An alcoholic at different purpose killing as to the admission varying degrees, times be intoxicated to afterthought, not to be relied on. was at times Evidence be sober. does not the confession He contend must intoxication have relevance the de coerced, there or that was a violation mental state at the time of the fendant’s rule, unequivo- the Miranda record Ariz. Durgin, crime. 517 State cally there is no Corley, demonstrates that founda- P.2d 108 Ariz. tion such claim. 495 P.2d with, (1946) Pamplin Mason, significant e.g. It that Northern California P.2d (5th 1966) Superi to “the Cir. Maine v. Pharmaceutical refers usual situation.” F.2d years County, recent courts have more become or Court Mendocino Cal.2d community Cal.Rptr. on the sensitive to the effect bias 438 P.2d 372 trial, especially fairness of a cases. unusual BeBee, Compare State 110 Utah supra note 1. 22. See ease, drinking or he was drunk at the time prosecution instant In the crime. at the time of the shoot of the prove that had to purpose to the intent or ing, Wood had in confining There was no error great If intoxication is so robbery. commit drinking nine-day the evidence of to the necessary negate the existence as to We period prior recognize to the crime. murder, the degree for first specific intent long may pro continued intoxication degree second murder. is reduced to crime physical duce a deterioration or disease of Pickett, Pa.Super. v. Commonwealth person to that a the brain such extent 433, (1976). generally, 368 A.2d 799 See may particular not be held to have a crimi Norman, Utah, 580 P.2d 237 v. State form, nal state of mind. In a severe as successful, However, Wood to have been II-G, supra, the condi discussed Section much more than he had prove he had to produced may insanity tion to be similar necessary to show drinking. It was been produced by People other causes. v. to such an that his mind had been affected 621, Griggs, (1941); 17 Cal.2d 110 P.2d 1031 capacity that he did not have the extent Perkins, (2d 1969). R. Law 906 ed. Criminal requisite specific pur intent or form the possibility A that Wood suffered from some murder, to the to commit robb pose, prior degree pathological of an abnormal or men Hartley, v. 16 Utah 2d ery.23 See State tal suggested by state was the evidence in Turner, 123, (1964); v. 396 P.2d 749 State However, penalty phase of the trial. (1955); 2d 282 P.2d 1045 State Utah proved for Wood to have he suffered Stenback, (1931); 2 P.2d 1050 Utah pathological from a mental state relevant in Diaz, P. 727 76 Utah State guilt phase, produce expert he had to (1930); 2 Law 108 Wharton’s Criminal testimony to establish such condition. (14th 1979). ed. counsel, trial, prior Trial arranged to the attempt The trial Wood’s court ruled that for an by prominent examination forensic consump- his alcohol to adduce evidence of psychiatrist, but cooperate Wood refused to during prior tion the nine months evidence, therefore, with him. expert No crime, was not relevant and therefore inad- produced trial, was and there was no consumption Testimony missible. as to his reason for the trial court to have allowed nine-day peri- of alcohol was limited to the drinking evidence of Wood’s habits preceding as od the crime. evidence to what was allowed. consumption during his alcohol that time altogether

was not consistent. Wood testi- Wood was entitled to an instruction fied that he consumed “moderate amounts” on intoxication if there evidence to vodka, pint pint day, support McCumber, Utah, one-half to a each it. State v. “spread morning night. (1980); Castillo, Jo- thinly” from P.2d 353 State v. 23 Utah 70, 457 Newton, hann testified that defendant drank as 2d P.2d 618 much get, day, as he could about a fifth a 105 Utah 144 P.2d 290 Al crime, night alcohol, and that on the Wood though Wood had imbibed some Wendover, had had two drinks a town there is no evidence he was so intoxicated place not far from the of the crime. Nei- at the time of the crime that he was unable (who ther Johann nor Wood testified he to form specific necessary intent crime) was not at the prove scene testified the crime robbery.24 The trial impaired that Wood’s faculties were give court’s refusal an intoxication in- absent, gree 23. Wood asserts that the evidence was relevant but is not a defense that capacity. liability. to a defense of diminished See State absolves one of all criminal Sessions, 645 P.2d 643 State v. Green, 78 Utah 6 P.2d 177 As case, that, necessary In this it was at the Sessions, capacity noted in the diminished de- murder, purpose time of the had the Wood essentially fense is a defense which reduce specific mind to rob the victim and also the category of a crime within a because intent to rob. requisite higher mental element for the de- struction, all, points and other if error at was harmless er- of conflict arose during the ror.25 the course of trial as to the examination and calling certain witnesses. Wood also Accomplice

D. Instruction refused a cooperate psychiatrist to with be- thought cause he the psychiatric evidence contends the also that trial Wood would be used to assist counsel in his tactics refusing give court cautionary erred to a and therefore would be inconsistent with on accomplice testimony. instruction Cer Wood’s claim of innocence. tainly, testimony persons of one of two jointly charged with first murder Trial lie within preroga tactics plea bargains charge who out give of the to tive of by counsel and not be dictated other, critical testimony against the ought his client. as to what Decisions witnesses to be great suspicion. viewed with How call, make, and, to objections what to ever, in this case Wood was not convicted interpose, large, what to are defenses solely testimony. on Johann’s Wood’s con generally professional judgment left fession all admitted the elements of the Utah, o Gray, counsel. See f State given crime. Even if the had been a Pierren, Utah, (1979); P.2d 918 State instruction, cautionary there is no reasona McNicol,Utah, P.2d State ble likelihood that would have had Ames, P.2d 203 Kan. State confession, effect. In his Wood corrobo 563 P.2d 1034 aspects rated the most essential of Johann’s testimony. give The refusal to the instruc Nevertheless, attorney an acts as tion was prejudicial. not client, assistant for an his and not as attorney An who master. refuses Representation E. Ineffective of Counsel present such a basic claim as that inno Wood further contends that he was de- attorney, cence acts outside duties nied effective assistance of counsel.26 even if claim of innocence detracts from argument is that defense counsel re- presented by other defenses counsel. In innocence, present fused to the defense of California, Faretta v. they not that to perform profes- failed their (1975), Supreme 45 L.Ed.2d 562 sional competent duties manner with that a right Court held a defendant has respect presented. to the other defenses represent under the Sixth Amendment to counsel, judgment of trial the best himself prosecution right —a available defenses were that the murder Constitution, explicit Ar made Utah was not a offense because it was not Faretta, 820, 95 ticle 12. In atU.S. and, felony, committed the course of a the Court stated: fail, should that that there were sufficient provision supplements The counsel this provable circumstances in the design. speaks It the “assistance” penalty phase to avoid a sentence of death. assistant, counsel, expert, and an however in hindsight, judgment Even cannot be language is still an assistant. The faulted. spirit of the Amendment contem- Sixth was, however,

There counsel, tension even defense plate like other Amendment, conflict between Wood his chief guaranteed by trial tools counsel over Wood’s demand that to willing de- shall be an aid defendant— having fense based on his not organ interposed killed not an be- disagreement, Aasved. Because of unwilling de- and his tween an defendant statement, fense counsel no opening right personally. made to defend himself caution, Apparently, specify argument of an 26. He does not whether out abundance prosecution proposed it was the the intoxi- made the Unit- under Sixth Amendment I, cation instruction. The trial refusal ed States or Article court’s Constitution give the instruction was defendant’s ob- over Utah Constitution. jection. his against moment that counsel advised have stood on Although Wood could acceded to taking the stand. Counsel rely on the represent himself right give Wood able to Wood’s request, innocence, likely would most he defense of testimony. his Indeed, himself. severely prejudiced have always likely is almost self-representation inno- investígate fail to Nor did counsel defendant, no matter to be detrimental to a Wood asserts a failure as a defense. cence may he be. educated intelligent witness, Boskey, how or well an one Charles to call alibi Alabama, Wood, testi- who, have according Powell v. to could approxi- him at the fied that Wood called 77 L.Ed. the mat- the murder. When mate time of when rare occasions There trial, stated defense counsel up ter came at by person, trapped perjury, an innocent judge: the trial unlikely web of testimony, or an mistaken I MR. have interviewed VAN SCIVER: circumstances, in asserting on what insists an witness, charged is also in that he of but truth is a valid defense innocence His is matter. name Charles ancillary evidence, which, high on the basis of the is Boskey, Mr. Boskey. I have talked Mr. forcing To avoid a ly unlikely. tenuous phone from Mr. Boskey says got he call self-representation to defendant to resort to Wood, 1:00 approximately he thinks innocence, attorney an assert a defense of time, he a.m. He was intoxicated at that when present should such a defense insisted long it dis- didn’t know whether was a client, against upon though even the by judg- call. phone my tance In or local attorney, long as as judgment better ment, does not constitute that witness it is done the ethical and lawful within alibi and .. . attorneys. imposed upon constraints No, THE that wouldn’t .. . COURT: We to the rule “to com adhere during point At the course another charged one crime to un pel grievous with trial, ask counsel Wood insisted trial of dergo a trial with the assistance an attor acquired he had Aasved’s Johann where whom become in ney with he has embroiled cards, though informed credit even counsel deprive of irreconcilable conflict is to him knew the answer Wood that counsel what any the effective of counsel assistance would be that it would be unfavorable. Craven, whatsoever." Brown v. 424 F.2d insistence, question was Upon Wood’s 1970). However, (9th Cir. asked, damaging answer elicited. complete harmony attainment of in this day It was of not until fourth only accomplished by case could have been trial, prosecution’s case near the close of profession with his noncompliance counsel’s chief, ap- in that Wood asked the court to responsibilities, al probability point represent him. other counsel on on appeal incompe later attack based point request was denied at because tence of counsel. judge too trial came late and because the adequate was that an defense convinced Nevertheless, was Wood not de being offered. prived of his defense of innocence. Counsel attempted suggest ruling. to contact the witnesses We error in the find no Wood,27 placed and Wood was ed on the III. CONCLUSION witness stand story present to tell his defense, Sep- his judgment with defense counsel conduct our We reiterate the curiam “The ing per his direct examination. It is of no tember decision: ever, they manner 27. The results with even if had testified in the of the interview Charles witnesses, indicated, unlikely Boskey, extremely one of the Wood it is related in addition, (es- suggested testimony text. of several Wood names their would have been of value cooperate pecially light suppos- in who Wood’s failure to witnesses California counsel). edly depression. arranged psychiatrist would have his for testified to claimed suicidal with the There would have had testimony think that their Counsel made an effort to reach no basis to witnesses, those effect on trial. but was How- unsuccessful. judge defendant’s mur- trial conviction first erred refusing apply the affirmed, der is but his sentence of death is proof standard of reasonable vacated and the case is remanded doubt determining to be sentence trial court to resentence the defendant in imposed I upon defendant. therefore U.C.A., 1953, accordance with 76-3- concur in the result reached by majority 207(3),” requires imposition which of a of the Court which remands this case to the life prejudicial sentence because of error judge trial the purpose of resentencing committed sentencing phase. in the U.C.A., accordance the provisions with 1953, 76-3-207(3). DURHAM, JJ.,

OAKS and and ALLAN CROCKETT, Justice, Retired concur. HOWE, J., participate does not herein. HALL, (concurring Chief Justice in the result):

I affirming concur in the defendant’s con-

viction.

In regard to the appeal issues raised on

pertaining to the sentencing phase of the

trial, I dispositive view as the fact that the notes original and emphasis omitted.] psychiat the trial court’s refusal to a order 76-3-207(1) ric evaluation the Division Corrections provides of Section a defendant pursuant pre- 76-3-404 in the capital for use case the right § broad to adduce hearing. appoint “character, sentence Whether background, evidence as to his an alienist is history, ment of made under 76-3- physical § mental and condi- [and] manner, in agree Furthermore, or another we that psychiatric tion.” testimo- entitled to or psychiatric psycho ny particularly Wood was may be relevant to two of logical phase assistance in the be- penalty specified circumstances scheme, statutory Georgia Codianna, Utah, 13.Unlike the Utah In State v. 573 P.2d 343 require any aggravating (1977), does not cir- law cumstance that the trial court relied on ruthlessness proved phase guilt brutality be aggravating in the of a as an on facts factor law, aggravat- capital murder trial. Under that supported that a conclusion was an that there ing presentence hearing. only circumstances are considered battery. aggravated In Utah “ruthlessness brutality” not one of the supra 15. See note 4. that would a factors make a murder supra offense. See note 1. (b) 76-3-207(1). Yes, of A. Subparagraph he did. section states that one factor to be con- An alcohol abuse counselor for Wood’s mitigation mur- sidered whether “[t]he employer, Airlines, former Western testi- der while was committed the defendant was presentence fied at the hearing: under the influence of extreme mental or Q. In the history that he related to (d) Subparagraph emotional disturbance.” did he you relate other symptoms of provides that evidence of the defendant’s problem? his alcohol his inability conform conduct the law Patrick, [By A. Miles drug alcohol he impaired by because was substantially abuse He had counselor] [defendant] intoxication, disease, or “mental influence all them as I recall. drugs” mitigation. of shall be considered Q. What are of them? all found, judge As the trial blackouts, this was not A. He indicated my was penalty. opinion clear-cut case for that while he inwas the office periodic that he was “background, suffering Wood’s history mental black- outs— physical condition” were factors to considered. With reference to those factors MR. object again WATSON: I will Your Honor. and the mitigating factors stated in 76- 3-207, court, the trial on the basis of THE COURT: That will be sustained ... testimony adduced, found Wood “somewhat “depraved of a sick individual” but not The extended of abuse alcohol need individual,” who suffered from some degree produce outright insanity not before it is capacity, diminished and had been a law- relevant in the phase abiding person relatively per- with stable Long offense trial. may term alcoholism history prior sonal to the crime. produce pathological conditions short of le gal insanity. There is evidence those professional A phys- evaluation of Wood’s conditions include cerebral lesions or atro may ical and mental have been partic- state phies epileptic crises, which cause brain ularly long relevant.16 He had a history trauma, temporal dysfunctions leading lobe possibility alcoholism with the it had to an increased probability of violent behav produced some brain damage. According to ior, states, acute confusional in and the testimony, Johann’s Wood exhibited some R.E.M.-sleep ducement deprivation bizarre behavior at about the time of the which psychotic leads to near reactions and murder: Pernanen, violence. Alcohol Crimes Q. What coming is this rockets out Violence, in Aspects Social Alcoholism moon, say sun did he that? Yes, A. he did. alcoholism, In addition to evidence of Q. say immediately And did he there was some evidence that suf- Wood afterwards? from depression. fered severe He claimed right A. I don’t know if it was imme- depressed that he was so to be as suicidal. diately afterwards. It was —he said onit Expert testimony necessary make occasion, yes. proper evaluation of this na- claim

Case Details

Case Name: State v. Wood

Court Name: Utah Supreme Court

Date Published: May 13, 1982

Citation: 648 P.2d 71

Docket Number: 16486

Court Abbreviation: Utah