State v. Alvarez, 910019

CourtSupreme Court of Utah
Citation872 P.2d 450
Docket NumberNo. 910019,910019
PartiesSTATE of Utah, Plaintiff and Appellee, v. Fred A. ALVAREZ, Defendant and Appellant.
Decision Date31 March 1994

Page 450

872 P.2d 450
STATE of Utah, Plaintiff and Appellee,
Fred A. ALVAREZ, Defendant and Appellant.
No. 910019.
Supreme Court of Utah.
March 31, 1994.

Page 452

R. Paul Van Dam, Atty. Gen., Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

G. Fred Metos, Salt Lake City, for defendant and appellant.

HOWE, Justice:

Defendant Fred A. Alvarez was convicted of first degree murder as that offense is defined in section 76-5-202(1)(b) of the Utah Code (intentionally or knowingly causing the death of another when "[t]he homicide was committed incident to one act, scheme, course of conduct, or criminal episode during which two or more persons are killed"). The court sentenced him to life in prison and imposed a twenty-year minimum mandatory term pursuant to section 76-3-203.1 of the Utah Code. Defendant appeals.

On June 8, 1990, defendant and several juveniles and young adults were at the home of Kim and Richard Gabaldon. The group was "partying" and drinking beer and tequila. Guests arrived throughout the evening, and by 11 p.m., the party consisted of fifteen to twenty individuals. Between 8 p.m. and midnight, Richard Gabaldon and defendant together had consumed fifteen cans of beer and more than nine shots of straight tequila.

Around midnight, Don Newingham and his son, Shayne Newingham, arrived at the house with Paul Velasquez, Kenny Salas, and Robert Rivas. All five had been drinking, and the Newinghams and Salas had ingested cocaine. While their companions waited in the car, Don Newingham and Salas got out and walked toward the house. Defendant and Gabaldon, having seen the car arrive, met them before they reached the front door. Salas asked if his group could join the party, but Gabaldon refused because he did not know Don. When Don became angry and refused to leave, defendant pulled a large-bladed knife from his waistband and ordered Don to "just get out of here."

Don was still reluctant to leave the premises, but Salas took him by the arm and pulled him back to the car. Gabaldon and defendant followed them. The party guests had been watching the confrontation from inside the house, but as Gabaldon and defendant walked toward the street, fifteen to twenty of the guests came outside. As defendant approached the car, he recognized the driver, Velasquez, as one of his friends and jogged to the front of the car to talk to him. He told Velasquez that he was welcome to return to the party after he took the Newinghams, Salas, and Rivas home.

As Don was getting into the car, he muttered, "I'm not going to let no young punk pull no knife on me, because I'm going to stick him first." In response, Gabaldon hit

Page 453

Don in the face with his fist. Don wrestled Gabaldon to the ground and began to beat him with his fists. Defendant saw this altercation, ran around the car, jumped on Don's back, and stabbed him four times with a knife. Don threw him off, causing him to fall backward and stab himself in the leg. As Don lay face up in the street, Gabaldon stomped on his head, leaving the imprint of a tennis shoe on Don's forehead. Others joined in. Salas threw himself on top of Don to shield him from the blows.

When his father was attacked, Shayne Newingham bolted from the car yelling words to the effect, "Don't mess with my dad." He was confronted by Gabaldon, Manuel Alvarez, Manuel Martinez, Tony DeHerrera, and Fred Negrete, and he began fighting with all of them. The testimony concerning who stabbed Shayne is contradictory. Velasquez testified that he saw defendant run around the car and stab Shayne in the same way he had stabbed Don. However, both Gabaldon and Anthony Valerio testified that they observed DeHerrera repeatedly stab Shayne. In any event, within ten seconds Shayne fell to the ground, whereupon Gabaldon, DeHerrera, and Manuel Alvarez kicked him and stomped on his head. Salas attempted to shield Shayne from these assaults. The entire fight lasted about five minutes.

At some point during the melee, two women helped defendant into the house, where they attempted to stop his bleeding wound. With both Newinghams down, Gabaldon returned to the house saying, "[G]et those f__in' white boys out of here." DeHerrera went in the house carrying two bloody knives and instructed Shana Pina to hide them. Pina put one of the knives in the washer under some damp clothing, where detectives found it the next morning. Salas remained with the Newinghams outside while Velasquez and Rivas drove to a nearby store to call an ambulance. Accompanied by Manuel Alvarez and DeHerrera, Gabaldon drove defendant to LDS hospital for treatment.

A short time later, Don and Shayne Newingham arrived by ambulance at LDS hospital, where both died of multiple stab wounds. Shayne had sustained four stab wounds--one near the armpit, another on the right side of the abdomen, and two in the back. The depth of these wounds ranged from eleven to fifteen centimeters, and one indicated that the knife had been partially withdrawn and then reinserted. Don had suffered three stab wounds of similar depth on his back. Again, one wound indicated near complete withdrawal and reinsertion of the knife. The medical examiner concluded that the wounds suffered by both men could have been inflicted with the knife police officers found in the washer at the Gabaldon residence.

Defendant was charged with two counts of first degree murder, as that offense is defined in section 76-5-202(1)(b). At trial, defendant maintained that when the fight began he ran toward the back of Velasquez's car where he saw the glare of a knife coming at him. He lifted his leg to protect himself and was stabbed. He then reached for his knife and "just started swinging it trying to keep whoever had [stabbed] me away from me." He admitted that it was "possible" that he stabbed someone but denied intent to kill anyone.

A death-qualified jury convicted defendant on count I (intentionally and knowingly causing the death of Don Newingham) but acquitted on count II (intentionally and knowingly causing the death of Shayne Newingham). Defendant waived a jury in the penalty phase. The court sentenced him to life imprisonment. It further imposed a twenty-year minimum mandatory sentence under section 76-3-203.1 of the Utah Code, finding:

[T]he offense was committed in concert with two or more persons, including but not limited to the criminal participation in the assaults causing the deaths of Donald and Shayne Newingham by Richard Gabaldon, Manuel Martinez, Manuel Alvarez, Tony DeHerrera and others unknown, each of which would be criminally liable as parties to the offense.

Defendant makes five assignments of error on appeal. He contends that (1) death qualification of the jury violated article I, sections 7, 9, 10, and 12 of the Utah Constitution; (2) the prosecution systematically excluded by peremptory challenge Hispanic jurors from the venire in violation of the Equal Protection

Page 454

Clause of the Fourteenth Amendment; (3) the evidence was insufficient to establish that the two homicides were committed "incident to a single act, scheme, course of conduct, or criminal episode" as required by section 76-5-202(1)(b) of the Utah Code; (4) the trial court erroneously instructed the jury to disregard an element of the offense of first degree murder; and (5) the trial court erred in imposing the twenty-year minimum mandatory sentence pursuant to section 76-3-203.1. We shall discuss each assignment of error in turn.

The Utah practice of death qualification excludes from the venire two classes of jurors: (1) those who entertain "such conscientious opinions about the death penalty as would preclude [them] from voting to impose the death penalty following conviction regardless of the facts," Utah R.Crim.P. 18(e)(10), and (2) those jurors "who would always vote to impose the death penalty upon a finding of first degree murder." State v. Young, 853 P.2d 327, 342 (Utah 1993) (plurality opinion) (citing State v. Schreuder, 726 P.2d 1215, 1225-26 (Utah 1986)). Defendant argues that this practice "creates a conviction-prone jury that is underrepresentative of the community" and therefore violates his state constitutional rights to an impartial jury and to due process. Utah Const. art. I, §§ 7, 12. 1

Defendant concedes that the United States Supreme Court has rejected this argument under the United States Constitution. Lockhart v. McCree, 476 U.S. 162, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986) (holding death qualification of jury prior to guilt phase of bifurcated capital trial did not violate defendant's Sixth Amendment right to "impartial jury" representative of "fair cross-section of the community"). However, he contends that a "state constitutional analysis warrants a different result." We disagree.

After defendant filed his brief, we rendered our decision in Young. Like Alvarez, the defendant in Young made a two-pronged "impartial jury" argument under article I, section 12. First, he contended that a death-qualified jury is "more likely to convict a person accused of a crime" and is therefore unconstitutionally partial. Young, 853 P.2d at 342. Second, he argued that his right to an "impartial jury" included the right to "a jury panel made up of a fair cross-section of the community." Id. In his view, a death-qualified jury violated the "fair cross-section" guarantee because it did not "represent the community at large." Id.

A majority rejected these state constitutional challenges to death qualification. In the lead opinion, Chief Justice Hall wrote, "[W]e cannot conclude that a jury of persons who may impose a death sentence, but are not committed in advance to do so, will be less than fair and impartial in determining guilt." Id. at 342 n. 37 (joined by Howe, Assoc. C.J.) (citing State v. Moore, 697 P.2d 233, 237 (Utah 1985)). He further explained:

The Utah practice of death qualification excludes not only those...

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