789 P.2d 273 (Utah 1989), 21027, State v. Gardner

Docket Nº:21027.
Citation:789 P.2d 273
Opinion Judge:HOWE, Associate Chief Justice:
Party Name:STATE of Utah, Plaintiff and Appellee, v. Ronnie Lee GARDNER, Defendant and Appellant.
Attorney:Andrew A. Valdez, James A. Valdez, Joan C. Watt, Salt Lake City, for defendant and appellant. R. Paul Van Dam, Sandra L. Sjogren, Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.
Case Date:January 31, 1989
Court:Supreme Court of Utah

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789 P.2d 273 (Utah 1989)

STATE of Utah, Plaintiff and Appellee,


Ronnie Lee GARDNER, Defendant and Appellant.

No. 21027.

Supreme Court of Utah.

January 31, 1989

Rehearing Denied Nov. 15, 1989.

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Andrew A. Valdez, James A. Valdez, Joan C. Watt, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Sandra L. Sjogren, Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.

HOWE, Associate Chief Justice:

Defendant appeals his convictions of first degree murder, UTAH CODE ANN. § 76-5-202(1)(C), (E), & (H)1; attempted first degree murder, § 76-5-202(1)(e), (h), & (k); aggravated kidnapping, § 76-5-302(1)(a), (b); escape, § 76-8-309; and possession of a dangerous weapon by an incarcerated person, § 76-10-503(2).

The charges stem from an incident that occurred on April 2, 1985. Defendant was being transported from the maximum security unit of the Utah State Prison to the Metropolitan Hall of Justice in Salt Lake City to appear at a hearing on a second degree murder charge. As he entered the basement lobby of the Hall, he was handed a gun by a female accomplice. He fumbled with the unfamiliar weapon; his guards retreated to the parking lot. Gunfire was exchanged, and defendant was shot in the shoulder. He entered an archives room, looking for a way out of the building. There he encountered a court clerk, a prison officer, and three attorneys. Two of the attorneys sought refuge behind the office door. Defendant turned on them, pointed the gun at one and then the other, and fired, killing attorney Michael Burdell.

The prison officer, Richard Thomas, was forced to lead defendant out of the archives room to a stairwell leading to the second floor. As defendant crossed the lobby, Nick Kirk, a uniformed bailiff, came down the stairway to investigate the disturbance. Defendant shot and seriously wounded Kirk and then proceeded up the stairs. On the next floor, defendant encountered Wilburn Miller, a vending machine serviceman, and forced him to accompany defendant outside of the building. As defendant stepped outside, Miller broke free and dived through a teller's window inside the building. Once outside, defendant, wounded, shackled, and surrounded by police, threw down his gun and surrendered.

Defense counsel filed pretrial motions seeking a change of venue, recusal of the trial judge, and a prohibition on evidence of other crimes committed by defendant. The first two motions were denied. The third was granted with the understanding that some evidence of prior crimes was necessary to prove elements of the offenses charged and other evidence of defendant's past record would be admissible as impeachment if defendant took the stand.

At trial, the defense moved for a mistrial based on the amount of security in the courtroom. The motion was denied, and the four plainclothes guards and defendant were directed to remain seated until the jury left the courtroom. The prison officer who had led defendant to the stairwell had made a pretrial statement that defendant was "glassy-eyed." However, on direct testimony, he characterized defendant as "being all there." After the defense had brought out the previous statement on cross, the trial court stopped both counsel from going back over that aspect of the testimony on recross, stating, "I think it has been developed by both of you as to what was said."

On cross-examination, defendant denied having a conversation with Wayne Jorgensen, a prison officer assigned to guard him while he recovered at the hospital. On rebuttal, the prosecution called Jorgensen, who recounted the content of his conversation with defendant. While no objection was raised at trial, defendant now contends that the statements were taken without benefit of a Miranda warning and violated his fifth and sixth amendment rights.

During the penalty phase of the trial, defendant, in an attempt to give the jury a basis on which to assess the proportionality of the penalty which should be imposed,

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sought the admission of affidavits of attorneys who had been involved in other capital homicide cases. The court refused to admit the affidavits. It also declined to accept testimony by associates of the victim regarding their opposition to the death penalty.

At the close of the penalty phase, defendant moved for a mistrial on the basis of prosecutorial misconduct. The motion was denied. The jury, which had previously returned a verdict of guilty on all counts, sentenced defendant to death. He appeals.

  1. Change of Venue

    Defendant contends that the trial court abused its discretion in denying him a change of venue. He maintains that due to extensive pretrial publicity and the fact that his trial was held in the county courthouse across the street from the Hall, it was impossible for him to receive a fair trial in Salt Lake County.

    Due process requires that the accused receive a trial before a fair and impartial jury, free from outside influences. State v. Pierre, 572 P.2d 1338, 1348 (Utah 1977), reh'g denied, 576 P.2d 857 (Utah 1978), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751, 755 (1961). The fact that a case is prominently reported in the news media, standing alone, does not presumptively deprive a defendant of due process. State v. Pierre, 572 P.2d at 1349. Defendant points to the fact that nearly all of the prospective jurors had been exposed to at least the fundamental facts of the incident. However, neither does that exposure presumptively deprive a defendant of due process. Murphy v. Florida, 421 U.S. 794, 799, 95 S.Ct. 2031, 2036, 44 L.Ed.2d 589, 594 (1975). In examining the news reports in evidence and more than 700 pages of transcript of the voir dire, it is apparent that the news reports did not infect the minds of jurors with any prejudice or bias against defendant. The following comment was made by a juror at voir dire: "I don't recall them [the media] giving any details involving the case that we haven't already discussed, that the judge didn't talk about on the initial day we came in." This is indicative of the impression the media reports made on the prospective jurors. They were aware of the basic circumstances, that is, someone had handed defendant a gun, one person was killed, and defendant and another person were injured. Such knowledge was not prejudicial in any way to defendant, however, because these basic facts were not disputed or placed at issue by defendant and were established through his own direct testimony.

    Defendant carries the argument one step further and argues that not only was knowledge of the incident widespread in the community, but there was a common belief that he was guilty, which precluded any possibility of his obtaining a fair trial in the jurisdiction. In support, defendant took a telephone poll of 400 registered voters in Salt Lake County. (Jury lists are drawn from registered voters.) He asserts that the poll showed that 78 percent thought that defendant was guilty and 12 percent thought that he was probably guilty. The results of the survey are misleading in several aspects. First, only 23 percent of those surveyed could identify defendant as the person involved in the incident. Second, when asked if he was "guilty," no explanation was given of the charges. Therefore, any lay opinion as to guilt was merely an affirmation that he was the person involved in the incident, a fact conceded by the defense. This is typified by the following comment from a potential juror on voir dire: "From the news accounts you just, you know, it kind of shows that he was there and he did it, but, you know, I don't know that I sat and thought 'He is guilty.' "

    We subscribe to the following:

    To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict

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    based on the evidence presented in court.

    Irvin v. Dowd, 366 U.S. at 723, 81 S.Ct. at 1642. Each one in the pool of prospective qualified jurors stated under oath and rather candidly that he or she could meet this standard.

    Defendant contends that the proximity of the trial to the scene of the crime also required a change of venue. However, he does not contend that there were any unauthorized jury views of the scene, nor does he identify any specific prejudice. The trial was moved from the Hall to a separate building and courtroom. The danger that any prejudice would result because the trial was held at that location was not so great that a change of venue was required. Having carefully reviewed the record, we cannot say that a change of venue was necessary to insure defendant a fair and impartial jury. Denial of a change of venue was not an abuse of discretion. See State v. Bishop, 753 P.2d 439, 459 (Utah 1988).

  2. Recusal

    Defendant filed an affidavit of bias and prejudice against the trial judge because he worked in the Hall. On appeal, defendant does not allege any actual bias but argues that a trial judge should recuse himself where there is an appearance of bias. We agree. The canons of judicial ethics state that a judge should disqualify himself where his impartiality might reasonably be questioned. Code of Judicial Conduct Canon 3(C)(1) (1972). If the allegations in the affidavit are true and they would give a reasonable person cause to doubt whether the judge could be impartial under the circumstances, he should recuse himself. Nothing is more damaging to the public confidence...

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