State v. Bishop, No. 19907

CourtSupreme Court of Utah
Writing for the CourtHALL; Prior to defendant's confession, police officers were told that Graeme Cunningham had been planning to go with his friend; HOWE; STEWART; DURHAM; ZIMMERMAN
PartiesSTATE of Utah, Plaintiff and Respondent, v. Arthur Gary BISHOP, Defendant and Appellant.
Decision Date03 February 1988
Docket NumberNo. 19907

Page 439

753 P.2d 439
STATE of Utah, Plaintiff and Respondent,
v.
Arthur Gary BISHOP, Defendant and Appellant.
No. 19907.
Supreme Court of Utah.
Feb. 3, 1988.
Rehearing Denied Feb. 24, 1988.

Page 446

Jo Carol Nesset-Sale and Curtis Nesset, Salt Lake City, for defendant and appellant.

David L. Wilkinson and David B. Thompson, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

Defendant was convicted of five counts of first degree murder, Utah Code Ann. § 76-5-202 (1978 & Supp.1983) (amended 1984 & 1985); five counts of aggravated kidnapping, Utah Code Ann. § 76-5-302 (1978 & Supp.1987); and one count of aggravated sexual abuse of a child, Utah Code Ann. § 76-5-404.1 (Supp.1983) (amended 1984). After a penalty hearing, the jury returned verdicts of death on all of the murder convictions. The trial court also imposed five consecutive sentences of five years to life for each of the aggravated kidnapping convictions, two of which have ten-year minimum mandatory terms, and sentenced defendant to five years to life, with a six-year minimum mandatory term on the sexual abuse of a child conviction. Defendant's nineteen-point brief raises over forty arguments on appeal.

I. FACTS

Between October 16, 1979, and July 14, 1983, Alonzo Daniels (aged 14), Claude (Kim) Peterson (aged 11), Danny Davis (aged 4), Troy Ward (aged 6), and Graeme Cunningham (aged 13) disappeared and were never seen alive again. Prior to Cunningham's July 14, 1983 disappearance, he had been planning a trip to California with a friend, minor J.H., and defendant.

During the afternoon of July 24, 1983, J.H. and defendant stopped at Cunningham's home, and the police arrived shortly thereafter. A police officer drove J.H. to the police station; defendant followed in his car. At the station, the officers questioned defendant in a formal interview about Cunningham's whereabouts. For approximately the first hour of the interview, defendant gave no helpful information. Defendant then turned off a tape recorder being used to record the interview and stated that he did not want to talk anymore and that he wanted a lawyer. However, after going to the restroom and being told that he was going to jail, defendant indicated that he wished to continue. Shortly thereafter, defendant suggested that the officers accompany him to his house to find some items of interest. At his residence, defendant produced a revolver and over 400 photographs of nude boys.

Upon returning to the police station, defendant gave the officers a confession detailing the abduction and murder of the five missing youths. Defendant then directed the officers to locations in Big Cottonwood Canyon and Cedar Fort, Utah, where the boys' bodies were eventually recovered. Other pertinent facts are discussed in conjunction with the issues below.

II. VOIR DIRE

Defendant's first point is that the trial court erred during voir dire. Defendant's two-fold argument initially attacks the questioning of panel member Walker and then challenges the voir dire as a whole.

A

Defendant claims that the trial court interfered during questioning of Walker by unnecessarily limiting defense questions and by interrupting and allegedly "rehabilitating" Walker just as she "seemed" about to make biased statements. Defendant contends that this interference effectively foreclosed a challenge for cause and forced him to exercise a peremptory challenge to remove her from the jury panel. Defendant relies upon the following excerpts from the record to support his claim of interruptions and alleged rehabilitation:

Q [by defense counsel] Would you ever impose--vote to impose a death penalty if there were a conviction on capital

Page 447

homicide because you believed somebody expected it of you?

A No.

Q So it wouldn't matter if you believe the prosecutor expected you--

The Court: I won't let you go into that.

Q [by defense counsel] You have told Judge Banks that you believe in the death penalty. Why do you believe in it?

A I just do.

Q Can you--you must have some reasons, I assume, supporting that belief.

A Well, I think if anybody has killed somebody and it's been proven, I just believe that--in the death penalty.

Q But you do understand that some offenses, some kinds of homicides, don't allow you to impose a death penalty?

A Well, yes.

Q Is that a conflict for you?

A Yes, in a way. Yes.

Q How is it a conflict?

A Oh, I don't know. In general.

Q Pardon.

A In general. I mean, just I have different feelings. I mean, like I say, I just believe it.

The Court: Let me put this question to you: If at the guilt phase, if it goes to that phase, you are not satisfied in your own mind the state has shown that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and further that you aren't convinced in your own mind that the death penalty was the only appropriate penalty for Mr. Bishop, would you vote for the life sentence and not the death penalty?

Ms. Walker: Life.

The Court: All right.

....

Q [by defense counsel] If it's proven to you that Mr. Bishop killed a child, does that then justify the death penalty?

A No. I mean--yes.

Q Okay.

The Court: You see, at the guilt phase, you had already determined that he did take the life of a child. Under some circumstances, can you see where a life sentence would be appropriate over death, under some circumstances?

Ms. Walker: Under some--if--yes, yes.

The Court: All right.

Q [by defense counsel] What are those kinds of circumstances?

A Well, if he was really sick or--well, you know, did have a mental problem and that or whatever, yes.

Briefed instances where the court limited questioning of Walker follow:

Q [by defense counsel] Do you believe there is any relationship between what a victim may have suffered and what the perpetrator of the crime should suffer?

The Court: I won't allow that question.

Q [by defense counsel] Do you believe that the most important thing you can teach your children is respect for law and order?

A Yes.

Q The most important thing?

A Well, yes.

Q Okay. In addition to that, what do you think the two or three most important aspects of being a parent are?

The Court: I'm not going to allow that to go in there.

Q [by defense counsel] If a person were to be convicted of first-degree murder, what kind of information would you like to know about him?

The Court: I won't allow that question in.

Q [by defense counsel] What would be your feelings about participating in a jury whose function is to try a capital homicide case where if the person is convicted you will have to consider imposition of the death sentence?

A My feeling?

Q Yes.

A I'm not very good.

Q Why not?

A I don't know; I don't know.

Q I mean, are these feelings of nervousness?

Page 448

A Yes, yes.

Q Because of the enormity of the responsibility?

A No, not that. I just think--that having a boy the same age and that, I mean, it just--I just have feelings.

Q You do have one son?

A Yes.

Q What are the feelings that you have because they were boys that were killed?

The Court: No. I am not going to allow any further probing into that.

....

Q [by defense counsel] Do you believe that people can become better persons over time and can change?

The Court: I don't think that's appropriate.

....

Q [by defense counsel] In your own mind, in any particular case, would you need to know in that case the purpose [of the death penalty]?

The Court: I don't think the purpose is appropriate. If they believe in it, yes. And when you are asking them about the legislature, that's what the legislature has done, so that has to be accepted as the law.

An accused has a right to a fair trial by an impartial jury. 1 The broad discretion afforded trial courts in seating fair, impartial jurors extends to the scope of voir dire questioning: 2

The court may permit counsel or the defendant to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court may permit counsel or the defendant to supplement the examination by such further inquiry as it deems proper, or may itself submit to the prospective jurors additional questions requested by counsel or the defendant. 3

Voir dire provides the means for detecting juror prejudice or bias, thereby enabling counsel to intelligently challenge such persons. 4 Accordingly, sufficient latitude in the questioning process must be given to preserve the right to a fair trial. 5 It follows that whether the trial court abused its discretion in conducting voir dire turns on whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors. 6

On appeal, an appellant has the burden of establishing that reversible error resulted from an abuse of discretion. Beyond unsupported claims, defendant has not begun to establish that the court's interruptions and questioning significantly deprived him of the opportunity to discover information relevant to Walker's fitness for jury service. The record reveals due diligence on the part of the trial court to secure an impartial jury.

During the course of voir dire, the trial court explained to counsel that the purpose of its conduct was two-fold: First, it explained that the interruptions and clarifications were necessary so the jury could understand the import of counsel's questions. The judge said: "But you see, it's unfair on some of these [questions] because they don't understand it because they haven't been instructed as to what they are going to have to consider on these things. We have touched on it, but we haven't clearly instructed them on it. And that's the difficulties we're having." At another point, the trial judge stated, "The difficulty is, you see, they haven't received the benefit of all the instructions as to the law of the

Page 449

case." 7 The court was simply trying to assist juror...

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209 practice notes
  • State v. Hodge, (SC 15266)
    • United States
    • Supreme Court of Connecticut
    • April 6, 1999
    ...Webster's Third New International Dictionary. In support of his claim, the defendant relies on two out-of-state cases, State v. Bishop, 753 P.2d 439 (Utah 1988), and State v. Ott, 297 Or. 375, 686 P.2d 1001 (1984). Neither case constitutes persuasive precedent for the defendant's contention......
  • State v. Calliham, No. 20000169.
    • United States
    • Utah Supreme Court
    • August 16, 2002
    ...of a `light impression' and not one that would `close the mind against the testimony that may be offered in opposition.'" State v. Bishop, 753 P.2d 439, 451 (Utah 1988) (quoting State v. Bailey, 605 P.2d 765, 768 (Utah 1980)). A juror's subsequent statements that she can be impartial will n......
  • State v. Sessions, No. 20110046–CA.
    • United States
    • Utah Court of Appeals
    • September 27, 2012
    ...as ‘a mental attitude of appropriate indifference.’ ” See State v. Olsen, 860 P.2d 332, 334 (Utah 1993) (quoting State v. Bishop, 753 P.2d 439, 451 (Utah 1988), overruled on other grounds by State v. Menzies, 889 P.2d 393 (Utah 1994)). Juror 23's response suggests that she is not indifferen......
  • State v. Thurman, No. 910494
    • United States
    • Supreme Court of Utah
    • January 7, 1993
    ...(Utah 1989); State v. James, 767 P.2d 549, 557 (Utah 1989); In re Criminal Investigation, 754 P.2d 633, 653 (Utah 1988); State v. Bishop, 753 P.2d 439, 499 (Utah 1988) (Zimmerman, J., concurring in the result); In re Clatterbuck, 700 P.2d 1076, 1081 (Utah 1985). Unless constrained by a cons......
  • Request a trial to view additional results
209 cases
  • State v. Hodge, (SC 15266)
    • United States
    • Supreme Court of Connecticut
    • April 6, 1999
    ...Webster's Third New International Dictionary. In support of his claim, the defendant relies on two out-of-state cases, State v. Bishop, 753 P.2d 439 (Utah 1988), and State v. Ott, 297 Or. 375, 686 P.2d 1001 (1984). Neither case constitutes persuasive precedent for the defendant's contention......
  • State v. Calliham, No. 20000169.
    • United States
    • Utah Supreme Court
    • August 16, 2002
    ...of a `light impression' and not one that would `close the mind against the testimony that may be offered in opposition.'" State v. Bishop, 753 P.2d 439, 451 (Utah 1988) (quoting State v. Bailey, 605 P.2d 765, 768 (Utah 1980)). A juror's subsequent statements that she can be impartial will n......
  • State v. Sessions, No. 20110046–CA.
    • United States
    • Utah Court of Appeals
    • September 27, 2012
    ...as ‘a mental attitude of appropriate indifference.’ ” See State v. Olsen, 860 P.2d 332, 334 (Utah 1993) (quoting State v. Bishop, 753 P.2d 439, 451 (Utah 1988), overruled on other grounds by State v. Menzies, 889 P.2d 393 (Utah 1994)). Juror 23's response suggests that she is not indifferen......
  • State v. Thurman, No. 910494
    • United States
    • Supreme Court of Utah
    • January 7, 1993
    ...(Utah 1989); State v. James, 767 P.2d 549, 557 (Utah 1989); In re Criminal Investigation, 754 P.2d 633, 653 (Utah 1988); State v. Bishop, 753 P.2d 439, 499 (Utah 1988) (Zimmerman, J., concurring in the result); In re Clatterbuck, 700 P.2d 1076, 1081 (Utah 1985). Unless constrained by a cons......
  • Request a trial to view additional results

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