State of Utah v. Heaps

• Decision Date: 11 January 2000
• Docket Number: 980197
• Citation: 999 P.2d 565
• Parties: This opinion is subject to revision before final publication in the Pacific Reporter. State of Utah, Plaintiff and Appellee, v. Beau Heaps, Defendant and Appellant.2000 UT 5 IN THE SUPREME COURT OF THE STATE OF UTAH FILED:
• Court: U.S. Supreme Court

This opinion is subject to revision before final publication in the Pacific Reporter State of Utah, Plaintiff and Appellee, v. Beau Heaps, Defendant and Appellant No. 980197 2000 UT 5 IN THE SUPREME COURT OF THE STATE OF UTAH FILED: January 11, 2000

Fourth District, Provo Dep't

The Honorable Ray M. Harding, Sr.

Attorneys: Jan Graham, Att'y Gen., J. Frederic Voros, Jr., Asst. Att'y Gen.,

Salt Lake City, and James R. Taylor, John L. Allan, Provo, for plaintiff Jon D.

Williams, David C. Cundick, Salt Lake City, for defendant

HOWE, Chief Justice:

1 Defendant Beau Heaps appeals from a conviction for murder, a first degree felony, in violation of Utah Code Ann. 76-5-203 (Supp. 1996). He contends that the jury poll indicated a nonunanimous jury, and assigns as error the trial court's failure to either declare a mistrial or require further deliberations. He also argues that the evidence presented at trial was insufficient to support the verdict.

BACKGROUND

2 When reviewing a jury verdict, we examine the evidence and all reasonable inferences in a light most favorable to the verdict, reciting the facts accordingly. See State v. Gordon, 913 P.2d 350, 351 (Utah 1996). We present conflicting evidence only when necessary to understand issues raised on appeal. SeeState v. Dunn, 850 P.2d 1201, 1206 (Utah 1993).

3 On several occasions in the weeks preceding his murder, John Freitag, the victim in this case, and his family received threats of bodily harm from Heaps, including one left on Freitag's telephone answering machine. Heaps later admitted to friends that leaving the threat on an answering machine was "dumb." He excused his error in judgment by laughing and stating that he was drunk at a party when he left the message.

4 Heaps also told acquaintances that he was going to kill Freitag. On one occasion, after arguing with Freitag on the telephone, Heaps told a mutual friend, Tiana Heard, to "[t]ell John that he's dead. I'm going to blast him." Heard testified that Heaps told her that Freitag was a dead man and that Heaps was going to hurt and "take care of" Freitag. Heard further testified that for two weeks prior to the murder, every time she saw Heaps he was threatening Freitag, often saying, "He's a nark. Nobody narks on me. Nobody gets away with it."¹ Heaps also told Freitag's stepdaughter, Susan Rice,² on at least one occasion that he was going to "cap" Freitag.³

5 On the evening of the murder, Heaps attended a party at Heard's house in Provo, Utah, with six friends: Leikina Lavulavu, Anthony Tai, Tonga Mounga, David Niumeitolu, Bo Malupo, and Topouniua Unga. The group was apparently drinking heavily--some individuals drinking twelve-packs of beer. At one point during the evening, Heaps spoke to Freitag on the telephone. The telephone receiver was then passed in turn to Mounga, Niumeitolu, and Malupo, none of whom knew the person on the telephone, but each of whom exchanged angry words with him. After the telephone call, Niumeitolu, Malupo, and Mounga were "fired up" and "cussing at . . . whoever was on the phone," and Heaps said, "I know where he lives. Let's go get this guy." Heaps and his six friends then went to the car, filling the trunk with beer from the party.

6 Heaps, the only one in the car who knew where Freitag lived, directed Lavulavu where to drive, and told the group that Freitag was "psycho," "crazy," and "out of it." Upon reaching Freitag's home in Orem, Utah, at approximately 1 a.m., Lavulavu parked the car some distance away and refused Heaps' request for Lavulavu's gun. Heaps took a BB gun from the car instead and, still cursing and threatening Freitag, hid behind a nearby car. Niumeitolu, Malupo, and Mounga hid by the side of Freitag's house, while Lavulavu and Tai went to the front door. Unga remained near the car and did not approach the house. Tai rang the doorbell. When Freitag answered, Tai asked if Susan Rice was at home; Freitag responded that she was not there. Malupo, Niumeitolu, and Mounga then walked to the front porch from the side of the house. Through the front window, Malupo saw Freitag with what he thought was a gun and told the others in Tongan that Freitag had a gun. Tai, Niumeitolu, Malupo, and Mounga fled; Lavulavu pulled out his gun. Lavulavu, pointing his gun at Freitag, asked in Tongan, "Should I shoot him?" Lavulavu heard the response, "Shoot," and he pulled the trigger, fatally shooting Freitag in the abdomen.

7 Lavulavu testified under oath that he could not remember whether the response was in English or in Tongan, but on cross-examination said he thought it was probably in English. He testified that when faced with a frightening or exciting circumstance, he expected his Tongan friends to speak in Tongan. On the other hand, Heaps apparently does not speak Tongan well, nor would he understand a complicated question such as Lavulavu asked. Of the five other Tongans, Niumeitolu, Mounga, and Malupo all denied having told Lavulavu to shoot; Tai did not hear a response to Lavulavu's question, and Unga was still back at the car.

8 Immediately following the shooting, the group returned to the car and left the scene, but were stopped by police officers. While still in the car, Heaps told the others "[j]ust to blame it on him, that he was the one who did it." As the officers were bringing the seven out of the car, Heaps was heard to say, in essence, not to say anything to the police. The officers transported the group to the Orem jail facility. Samples taken at the jail facility showed only two particles of gunshot residue on Heaps' hands and two particles on Lavulavu's clothing.⁴ None of the other suspects' samples showed any gunshot residue.

9 At the conclusion of a four-day trial, the jury found Heaps guilty of murder, a first degree felony, in violation of Utah Code Ann. 76-5-203. Heaps then accepted the trial court's offer to poll the jury, as allowed by Utah Rule of Criminal Procedure 21(f). The court clerk asked each of the jurors, in succession, "Was this and is this your verdict?" The first five jurors polled answered with "Yes." The sixth juror answered, "No," paused, and then said, "I conceded." The trial court responded: "Well, it's necessary, as indicated, that all of your decisions in order to be binding[,] be unanimous, and therefore, if this is not your verdict, then we need to have you continue to deliberate until you can reach a verdict." The juror ("Juror Six") then said "Yes," to which the trial court asked, "It is your verdict?" Juror Six nodded her head in response. The court clerk then continued polling the remaining jury members. Following the jury polling, the trial court asked counsel if there was anything further, to which Heaps' attorney responded, "Nothing at this time." Heaps now appeals, urging this court to reverse his conviction.

ANALYSIS

10 Heaps assigns as error the trial court's failure following the jury polling to either send the jury back for further deliberations or declare a mistrial as required by Utah Rule of Criminal Procedure 21(f). He contends the trial court thereby violated his right to a unanimous jury verdict in a criminal trial guaranteed under article I, section 10 of the Utah Constitution⁵ and Utah Rule of Criminal Procedure 21(b).⁶ He also asserts that the evidence presented by the State was insufficient to establish guilt beyond a reasonable doubt.

I. JURY POLLING

11 Utah Rule of Criminal Procedure 21(f) reads:

When a verdict is returned and before it is recorded, the jury shall be polled at the request of any party or may be polled at the court's own instance. If, upon the poll, there is no unanimous concurrence, the jury may be directed to retire for further deliberations or may be discharged. If the verdict is unanimous, it shall be recorded.

This court has addressed the procedural aspects of jury polling once before, but only cursorily. See State v. Russell, 733 P.2d 162 (Utah 1987). Our analysis, therefore, relies on other jurisdictions for guidance.

12 The purpose of jury polling is to "determine that the verdict signed by the foreman is that of the individual jurors and not one that has been coerced or caused by mistake." Russell, 733 P.2d at 164 (citing State v. Agtuca, 12 Wash. App. 402, 529 P.2d 1159 (1974)); accord 21A Am. Jur. 2d Criminal Law 1294 (1998). Appellate review of a trial court's actions in polling a jury is a two-fold process, involving both a question of fact and of law. First, we review as a factual question the trial court's determination concerning unanimity on a clearly erroneous standard, granting some deference to the trial judge, because a "trial judge, in determining whether a juror has freely assented to the verdict, not only hears the juror's response, but observes the juror's demeanor and tone of voice during the course of the polling of the jury." People v. Cabrera, 508 N.E.2d 708, 714 (Ill. 1987); see also United States v. Luciano, 734 F.2d 68, 70 (1st Cir. 1984) (holding that deference is due trial court's determination regarding juror's ultimate assent to the verdict because of trial judge's nearness to the proceedings (citing Amos v. United States, 496 F.2d 1269, 1273 (1st Cir. 1974))); Sincox v. United States, 571 F.2d 876, 879 (5th Cir. 1978) (stating that the trial judge "is in the best position to be aware of whatever happens" during jury poll); Amos v. United States, 496 F.2d 1269, 1272 (8th Cir. 1974) (holding that Federal Rule of Criminal Procedure 31(d), "grants the trial judge a measure of discretion in determining either to require the jury to deliberate further or to grant a mistrial if it appears that the verdict was not unanimous");⁷ M.J. Greene, Annotation, Juror's Reluctant, Equivocal, or Conditional Assent to Verdict, on Polling, as Ground for Mistrial or New Trial in Criminal Case, 25 A.L.R.3d 1149, 1151-52 (1969) (noting that juror's attitude toward verdict "must be determined by the trial judge not only from the exact words used...