State v. Fontana, 17796
| Decision Date | 02 March 1984 |
| Docket Number | No. 17796,17796 |
| Citation | 680 P.2d 1042 |
| Parties | The STATE of Utah, Plaintiff and Respondent, v. Victor George FONTANA, Defendant and Appellant. |
| Court | Utah Supreme Court |
G. Fred Metos, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Robert M. Baxter was killed instantly by a .357 Magnum bullet that entered his head just ahead of his left ear as he sat in his car waiting for a traffic light. A jury convicted defendant of second degree murder in Baxter's death. The sole issue on this appeal is the validity of the jury instruction defining the variation of second degree murder involving "depraved indifference to human life." That issue requires a review of the evidence at the trial.
Defendant, an experienced marksman, admitted firing the shot that killed Baxter, but insisted that it was an accident. He testified that he was sitting in his pickup truck at the intersection "dry-firing" his .357 Magnum pistol, which he believed to be unloaded, when it unexpectedly discharged. He was not consciously aiming at anything. He did not know the victim and had no feelings of hostility toward anyone at that time. He was not aware of the presence of another car and did not know that his shot had struck anyone. However, he was so upset about the accidental discharge that he immediately drove to a nearby shopping center and discarded his pistol in a trash dumpster. It was never recovered. When defendant was arrested in his truck a short time later, he repeatedly denied any involvement in the incident and specifically denied having fired a gun that evening. At the trial, he admitted that these denials and others he made to the officers that evening were lies.
In contrast, the prosecution elicited ample evidence from which the jury could conclude that defendant deliberately shot Baxter. There were two eyewitnesses to the shooting. Defendant and Baxter and one of these witnesses had been driving northbound on 1300 East in Salt Lake City. The witness saw Baxter's Chevrolet Nova pull in front of defendant's pickup truck at a lane reduction. Thereafter, for several blocks prior to the intersection at 2700 South, the eyewitness watched defendant's truck "tailgating" the Nova in a threatening manner, "coming up and almost hitting the Nova, making very jerky motions." The truck, which had its bright lights on, was lunging forward with its engine revving heavily, coming within about two feet of the Nova, slowing abruptly, and then falling back. This was repeated about five times.
At 2700 South, all vehicles stopped for a red light. Defendant's pickup pulled up beside the Nova in the lane to its left. The eyewitness, from a position in the lane to the right of and slightly ahead of the Nova, saw defendant, with an angry expression on his face, staring down at the driver of the Nova. Defendant was bending forward and to his right with his arm extended, pointing down toward the Nova. After the witness observed this position for about three seconds, he heard a gunshot and saw the flash of the gun that was pointing directly at the man in the Nova. After the shot, the driver of the Nova immediately slumped to the right, and defendant's expression did not change.
The second eyewitness was southbound on 1300 East in the left-turn lane, facing the other vehicles as he waited for the light. There was a pickup truck in the inner lane facing him. He saw the driver, who was holding something in his hand, "reach across" with his arm extended. Then he saw a flash and heard a gunshot, and the truck "took off."
When defendant was arrested a short time later within a few blocks of the intersection, he had no weapon, but a spent cartridge from a .357 Magnum was in his pocket and a box of .357 Magnum shells was in his truck. There was no bullet hole or other damage to the passenger door or window of the truck. Defendant testified that the window had been rolled down prior to his driving up 1300 South, because he was too hot. (It was then about midnight on February 14, 1980.) The distance from the ground to the window was four feet on defendant's truck, but only three feet on Baxter's Nova. In view of this disparity in the height of the vehicles, a bullet passing through the open window of the pickup and entering the closed window of the Nova at the point of impact had to originate at about arm's length and shoulder height from the driver of the pickup. This fact corroborated the eyewitness accounts of the shooting.
Defendant argues that the trial court committed prejudicial error in its instruction No. 14, which defined "depraved indifference to human life." The State counters that even if this instruction was erroneous, the error was not reversible since even without the error there was no reasonable likelihood of a more favorable result for the defendant.
The jury was instructed in accordance with U.C.A., 1953, § 76-5-203(1) that they could convict defendant of second degree murder if they found beyond a reasonable doubt that he had caused Baxter's death under one of the three "alternative forms of conduct." These were (a) intentionally or knowingly, (b) while intending to cause serious bodily injury and committing an act clearly dangerous to human life, or (c) "acting under circumstances evidencing a depraved indifference to a human life, [defendant] engaged in conduct which created a grave risk of death to Robert M. Baxter." (The instructions provided detailed definitions of the meanings of these terms. 1 ) The general verdict gave no indication of which variation the jury relied upon in its finding of guilt.
Defendant argues that the court's definition of "depraved indifference," quoted hereafter, erroneously created a new mental state somewhere between "recklessly" and "knowingly." This argument and others related to it require a detailed examination of various terms of our Criminal Code.
To be guilty of a crime, a defendant must have acted "intentionally, knowingly, recklessly or with criminal negligence with respect to each element of the offense ...." § 76-2-101. This general principle of criminal responsibility is specifically applied to criminal homicide by the definition in § 76-5-201: "A person commits criminal homicide if he intentionally, knowingly, recklessly, or with criminal negligence unlawfully causes the death of another." 2
Second degree murder is a "criminal homicide" in which the actor causes a death by one of four alternative forms of conduct. Section 76-5-203(1)(c), the depraved indifference provision, reads as follows:
(1) Criminal homicide constitutes murder in the second degree if the actor:
....
(c) Acting under circumstances evidencing a depraved indifference to human life, he engaged in conduct which creates a grave risk of death to another and thereby causes the death of another;
....
The general principles of criminal responsibility and the specific definition of second degree murder in this statute make clear that in order to be guilty of second degree murder a party must have acted with a particular mental state.
In contrast to the specific references to "intent" in subsections (a) and (b), § 76-5-203(1)(c), quoted above, does not specify a particular mental state. Its reference to "depraved indifference" does not denote a subjective mental state. By their terms and their placement, the words "depraved indifference" refer to the objective circumstances under which the conduct causing the death occurred.
Thus, the Supreme Judicial Court of Maine, in an opinion by Chief Justice McKusick, held that similar language in Maine's Criminal Code referred to "the presence of some objectively measured standard of criminal culpability derived from the circumstances surrounding the victim's death." State v. Crocker, Me., 435 A.2d 58, 63 (1981). In an earlier case, that same court had approved a jury instruction that this statutory language "did not require the State to prove that [the defendant] was subjectively indifferent to the value of human life; it merely required that the jury find [defendant's] conduct, objectively viewed by a reasonable man, manifested a depraved indifference towards human life." State v. Woodbury, Me., 403 A.2d 1166, 1171 (1979).
Similarly, a New York court has given this construction to a comparable provision in that state's definition of second degree murder: People v. Register, 90 A.D.2d 972, 456 N.Y.S.2d 562, 564 (1982), following People v. LeGrand, 61 A.D.2d 815, 402 N.Y.S.2d 209, cert. denied, 439 U.S. 835, 99 S.Ct. 117, 58 L.Ed.2d 130 (1978). This interpretation is consistent with our own case law, which has referred to second degree murder as being indicated "when the circumstances attending the killing show an abandoned and malignant heart." State v. Wardle, Utah, 564 P.2d 764, 765 n. 1 (1977) (emphasis added).
Since depraved indifference second degree murder does not expressly specify a particular mental state, the culpable mental state required by the statute must be as provided in § 76-2-102: "Every offense not involving strict liability shall require a culpable mental state, and when the definition of the offense does not specify a culpable mental state, intent, knowledge, or recklessness shall suffice to establish criminal responsibility." We must therefore determine which of these three mental states is superimposed on the depraved indifference provision by § 76-2-102. This effort is prescribed by our statutory duty to construe the provisions of the Criminal Code "according to the fair import of their terms to promote justice and...
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