State v. Pierre

• Decision Date: 25 November 1977
• Docket Number: No. 13903,13903
• Parties: STATE of Utah, Plaintiff and Respondent, v. Dale S. PIERRE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1338

572 P.2d 1338

STATE of Utah, Plaintiff and Respondent, v. Dale S. PIERRE, Defendant and Appellant.

No. 13903.

Supreme Court of Utah.

Nov. 25, 1977.

D. Gilbert Athay, Robert Van Sciver and Randall Todd Gaither, of Athay, Bown & Van Sciver, Salt Lake City, for defendant and appellant.

Robert B. Hansen, Atty. Gen., Earl F. Dorius, Robert R. Wallace, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.

WILKINS, Justice:

The Defendant Dale S. Pierre was charged with three counts of murder in the first degree (a capital offense) in violation of Utah Code Annotated, 1953, Section 76-5-202, as enacted 1973, ¹ for the murders of Carol Naisbitt, Michelle Ansley, and Stanley Walker; additionally he was charged with two counts of aggravated robbery in violation of Utah Code Annotated, 1953, Section 76-6-302, as enacted 1973, ² for the robbery of Orren W. Walker, Jr. and Stanley Walker. The acts forming the bases of these crimes occurred at the Hi-Fi Shop, a business selling stereo and allied equipment, located in Ogden, Weber County, Utah, on April 22, 1974 during the robbery thereof. All statutory references herein refer to Utah Code Annotated, 1953, as enacted in 1973, Title 76, Utah Criminal Code unless otherwise indicated.

The defendant was tried jointly with William Andrews and Keith Roberts (who were charged with the same five counts as defendant and who are the subjects of companion cases decided this date) before a jury in the District Court of Davis County, State of Utah, and the defendant was found guilty on all five counts on November 15, 1974 (the trial having commenced on October 15, 1974). On November 20, 1974, after a hearing to determine sentences on the murder convictions, ³ this same jury returned a unanimous verdict of the death penalty against the defendant on each of the murder counts. The District Judge then on November 27, 1974, sentenced the defendant to death by shooting at the Utah State Prison on all counts of first degree murder, and he also sentenced the defendant to an indeterminate term of five years to life at said prison on the two counts of aggravated robbery. ⁴

The evidence at the guilt or innocence stage of the trial (herein "guilt phase") established that the defendant, Andrews, and Roberts were airmen stationed at Hill Air Force Base, Utah. Stanley Walker, Michelle Ansley, Carol Naisbitt, Cortney Naisbitt (son of Carol Naisbitt), and Orren W. Walker, Jr. (father of Stanley Walker) were tied up, made to lie on the floor, and forced to drink liquid Drano on the evening of April 22, 1974, in the basement of the Hi-Fi Shop in Ogden, Utah, by the defendant in company with Andrews, who aided the defendant by pouring the caustic substance into a plastic cup for accomplishment of these violent acts. The defendant and Andrews both had hand guns and defendant finally shot all of the victims in the head with either a .25 caliber or .38 caliber handgun, which caused the deaths, within a brief period of time during that April evening, of Stanley Walker, Michelle Ansley (who had also been raped by the defendant just before he shot her) and Carol Naisbitt. Cortney Naisbitt and Orren W. Walker, Jr. survived but obviously sustained injuries, with Cortney suffering particularly serious ones.

Evidence further established that Orren and Stanley Walker were robbed in an aggravated manner of personal property in their possession (equipment from the Hi-Fi Shop being taken from Stanley and a watch and wallet being taken from Orren) on April 22nd at the Hi-Fi Shop by the defendant, Andrews, and Roberts. The defendant and Andrews were identified inside of said shop during the robbery and Roberts was identified walking in front of it.

The evidence at this stage of the proceedings was extensive, there being thereat sixty-six witnesses and more than 300 exhibits of physical evidence. In addition to matters mentioned above, the evidence, in summary, established that Andrews had purchased a blue 1970 Chevrolet van in November, 1973, which was used in the robbery of the Hi-Fi Shop on the evening in question; that Andrews had stated in February, 1974, that he would like to rob a hi-fi shop and would kill anyone who got in his way; the defendant saw in April, 1974 the movie "Magnum Force" in which someone was murdered by being forced to drink Drano; defendant and Andrews priced stereo items at the Hi-Fi Shop two days before the fatal day of April 22nd; defendant rented a storage unit on April 22, 1974, signing a lease agreement thereon which agreement was discovered in defendant's room after the crimes; the storage unit contained a bottle labeled "Drano" and a plastic cup as well as a large quantity of stereo equipment taken from the Hi-Fi Shop, and fingerprints of defendant and Andrews were on some of this equipment; in the afternoon of April 22nd, defendant and Andrews were identified in the blue Chevrolet van as it was at or near the Hi-Fi Shop and Roberts was driving said vehicle near the shop; wallets, purses, and other personal items of identification belonging to the victims were found next to defendant's barracks as well as Hi-Fi Shop labels in Andrews' room and in a garbage can in the latrine of defendant's barracks; and the .25 caliber pistol used to shoot some of the victims was owned by a roommate of Roberts, who had borrowed it from this roommate shortly before April 22nd.

Orren W. Walker, Jr., an eye witness victim to events inside the Hi-Fi Shop on that April 22nd also testified that Michelle, Cortney, and Stanley pled for their lives before the defendant and Andrews; and after shooting him (Orren), the defendant vehemently kicked a ball point pen into one of his ears and attempted to strangle him with a cord. ⁵

At the penalty or sentencing phase of the trial (herein "penalty phase") which took place before the same jury as heard and participated in the guilt phase, the defendant and Andrews were parties thereto but Roberts was not as he had not been convicted of a capital offense. Defendant did not give testimony at this latter phase though Andrews did.

The State presented as witnesses a psychiatrist, a clinical psychologist and a United States Air Force Lieutenant; and defendant called a Protestant Chaplain and a criminologist as witnesses.

Evidence about defendant adduced at this phase demonstrated that while in the Air Force, he failed to report to places of duty, wrote two bad checks (for nominal amounts), and unlawfully took another's auto. Also, defendant's Commander initiated a separation action from the Air Force against him which was not consummated, on the basis that Pierre was "minimal productive, and a limited potential airman," though that same Commander recommended honorable discharge for him.

Further evidence showed that the defendant did not suffer from extreme mental or emotional disturbance, and the clinical psychologist testified that he believed capital punishment had a deterrent effect.

The witnesses for the defendant presented evidence about the propriety, history and effects of capital punishment, ⁶ and they generally testified adversely concerning the imposition of the death penalty.

Defendant urges error in that Sections 76-3-206 ⁷ and 76-3-207, at note no. 11 infra, do not meet the constitutional requirements established in landmark cases decided by the United States Supreme Court. ⁸

Furman did not hold that capital punishment per se violates the constitutional law on cruel and unusual punishment, but did mandate, as a minimum requirement by a majority of the Court, that:

(T)he Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be so wantonly and so freakishly imposed. At 408 U.S. 310, 92 S.Ct. 2763.

Mr. Justice Stewart in Gregg stated:

Furman mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action. At 428 U.S. 189, 96 S.Ct. 2932.

He further wrote therein:

We hold that the death penalty is not a form of punishment that may never be imposed, regardless of the circumstances of the offense, regardless of the character of the offender, and regardless of the procedure followed in reaching the decision to impose it. At 428 U.S. 187, 96 S.Ct. 2932.

Utah's death penalty statutes, just noted, provide for a bifurcated proceeding, consisting of a guilt phase and a penalty phase heretofore mentioned. At the penalty phase, aggravating and mitigating circumstances authorized, respectively, by Sections 76-5-202 (see note no. 1 supra) and 76-3-207 (see note no. 11 infra) are weighed by the jury. We believe under these procedures our statutes are not constitutionally vulnerable.

But defendant believes the failure of Utah's statutes under which he was tried to provide for automatic appellate review (though Section 76-3-206(2), at note no. 7 supra, presently provides for it) rendered them constitutionally infirm. We disagree.

Article I, Section 12, Constitution of Utah and Utah Code Annotated, Section 77-1-8, 1953, extend to a defendant the right of appeal in all cases. And, when an appeal is taken, as in this matter, Section 76-3-207(3), at note no. 11 infra, and State v. Stenback, 78 Utah 350, 2 P.2d 1050 (1931) ⁹ provide for a comprehensive review of the entire case, including a review of a sentence of death to determine if that sentence resulted from prejudice or arbitrary action or was disproportionate to the penalty. Thus we believe that our review function ". . . substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury," Gregg at428 U.S. 206, 96 S.Ct. 2940, and "affords additional assurance that the concerns that prompted our decision in Furman are not present to any...