State v. Bisner
| Decision Date | 20 November 2001 |
| Docket Number | No. 20000026.,20000026. |
| Citation | 37 P.3d 1073,2001 UT 99 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Russell Eugene BISNER, Defendant and Appellant. |
| Court | Utah Supreme Court |
Mark L. Shurtleff, Att'y Gen., Jeffrey W. Gray, Asst. Att'y Gen., Robert L. Stott, Salt Lake City, Lana Taylor, Bountiful, for plaintiff.
Richard P. Mauro, Michael R. Sikora, Salt Lake City, for defendant.
¶ 1 Defendant Russell Eugene Bisner ("Bisner") appeals from convictions of murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (1999), and aggravated robbery, also a first degree felony, in violation of Utah Code Ann. § 76-6-302 (1999). We affirm.
¶ 2 On the night of January 5, 1999, sometime between 9:00 and 10:30, Bisner and his friend Derek Pearson ("Pearson") visited Christopher Lyman ("Lyman") at Lyman's apartment to purchase LSD. While at Lyman's apartment, Bisner told Lyman that he was going to meet somebody later that night who owed him "something in th[e] area" of $300. Then, as Bisner and Pearson left Lyman's apartment, Bisner declared, "Somebody is going to die tonight."
¶ 3 After leaving Lyman's residence, Bisner and Pearson proceeded to the home of Justin Koontz ("Koontz"), where they gathered with several other friends to "hang[] out" and "party[]." At the party, the friends consumed alcohol and used various illegal drugs, including marijuana and LSD. During one of the conversations at the party, Bisner mentioned to his friends that he was owed a $350 drug debt by Darby Golub ("Golub"). Shortly thereafter, Bisner telephoned Golub and left him a message that the drug debt was supposed to have been paid that day. Subsequently, at approximately 2:00 on the morning of January 6, Golub called Koontz's house. Golub first spoke with Koontz, and after an angry exchange then spoke with Dustin Symes ("Symes"), another of Bisner's friends attending the party. Golub and Symes also engaged in a vehement argument about the late nature of the calls to the respective residences. This conversation ended with the parties agreeing to meet at a nearby strip mall to settle the dispute.
¶ 4 Following his conversation with Golub, Symes informed Bisner, Koontz, and Pearson of the result of the discussion. Anticipating a fight, the four considered but eventually decided against taking guns with them to the strip mall. Instead, they quickly left in Symes's truck to meet Golub.
¶ 5 When the friends arrived at the strip mall, Golub was not there. Symes therefore drove his truck to a neighboring convenience store where Koontz's mother was working and from which the strip mall could be seen. Approximately five minutes later, Golub arrived and parked his own truck in the parking lot of the strip mall. Upon seeing this, Symes called, "There he is." The four friends waiting at the convenience store then reentered Symes's truck and drove together to the strip mall.
¶ 6 At the strip mall, Symes parked his truck approximately twenty feet from Golub's truck. After Symes parked, Golub stepped just outside of his truck and stood alone with an assault rifle cradled in his arms. Bisner and his friends then exited Symes's truck and advanced on Golub. As the group approached, Golub backed away, neither firing his rifle nor threatening to do so. Then, Symes, who was carrying an aluminum baseball bat, thrust the bat at Golub, cutting his head, knocking him down, and causing him to drop the assault rifle. Koontz followed Symes's lead by punching Golub in the leg. Golub responded to this attack with confusion, asking, "Why are you doing this?"
¶ 7 Having disarmed Golub, Koontz and Symes retreated to Symes's vehicle. Meanwhile, Bisner and Pearson remained at Golub's truck, forcing him to the ground and beating on him for approximately thirty to forty-five seconds. At that point, Symes yelled for his friends to return to the vehicle. Pearson complied with Symes's request, and just as he, Koontz, and Symes were climbing into their vehicle, Golub lifted himself from the ground and began speeding away in his truck. As Golub began to flee, Bisner took the assault rifle from the ground, cocked it, and fired three times at Golub. Bisner's shots missed, but as Golub continued to speed away through the parking lot, Bisner fired the rifle three additional times. One of those rounds struck Golub in the back of the head and killed him.
¶ 8 Less than an hour later, at approximately 2:40 a.m., Sandy City Police Officer Greg Severson ("Officer Severson") arrived at the strip mall in response to the shooting. At the scene, Officer Severson learned from Koontz's mother, who remained at the convenience store, that Bisner, Koontz, Pearson, and Symes had been involved in a confrontation that ultimately led to the shooting. Accordingly, Officer Severson proceeded to Koontz's home, where Koontz and Pearson were taken into custody. While at the Koontz residence, Officer Severson further learned that Bisner had just telephoned Koontz. Using the number that Bisner had called from, which was recorded on the Koontzes' caller identification service, Officer Severson obtained Bisner's address and traveled there with another Sandy City officer and three sheriff's deputies.
¶ 9 The police arrived at Bisner's home at approximately 5:00 a.m. They then secured the premises, called Bisner on the telephone, and took him into custody at gunpoint after he exited the house. With Bisner safely in custody, Officer Severson and the Sandy City officer accompanying him holstered their weapons and approached the house to speak with Bisner's mother. The two officers explained that they were still looking for one suspect involved in the shooting and asked Bisner's mother for permission to search her home. Bisner's mother gave her permission for the search, telling the two officers to "go ahead."
¶ 10 Beginning their search, the two officers moved to the basement of the house, where, Bisner's mother had informed them, Bisner lived. Bisner's room had been created at the end of a hallway in the basement, and was separated from the adjoining room by a cloth that had been draped from the ceiling and hung the length of the wall. As the officers descended the stairway into the basement, Officer Severson observed through an opening in this draped entry to Bisner's bedroom a shotgun and an assault rifle resting in a gun rack on the floor of the room. In the basement, Officer Severson also examined, but did not enter, a doorless closet leading out of the hallway adjacent to Bisner's room. However, seeing "just clothing" inside the closet, the officers proceeded to search the house for Symes.
¶ 11 Having cleared the house for any possible suspects, Officer Severson determined an additional search would be necessary due to his discovery of the two weapons in Bisner's room. Officer Severson therefore contacted his commanding officer and requested that a detective be sent to assist him in the search. While Officer Severson was waiting for the detective to arrive, he obtained a "permission to search" form from his patrol car and requested that Bisner's mother sign it so that he could again search her home. The form stated in pertinent part:
Knowing of my . . . CONSTITUTIONAL RIGHT not to have a search made of the premises and property owned by me [without a search warrant] . . . , I willingly give my permission to the above named officer(s) to conduct a complete search of the premises and property, including all buildings and vehicles, both inside and outside of the property [referred to herein].
Bisner's mother read the permission form and signed it at approximately 5:30 a.m. Bisner's sister, who had been present throughout both the search and her mother's conversations with Officer Severson, also signed the form as a witness thereto.
¶ 12 When Detective Mark Soper ("Detective Soper") arrived at approximately 5:35 a.m., Officer Severson advised him of the progress of the search. Detective Soper then asked to speak privately with Bisner's mother. During their conversation, Detective Soper reviewed the permission to search form that she had signed. Bisner's mother reaffirmed that she had read and signed the form, and indicated that she did not have any questions about its meaning. Detective Soper then verbally requested permission to search her home, and Bisner's mother again consented to the search. However, Bisner's mother further advised Detective Soper that Bisner was "supposed to pay rent" for his room but had not done so for "the last two months because he was unemployed."
¶ 13 Upon learning of Bisner's arrangement to pay rent to his mother for use of his room, Detective Soper determined that he would search the house without entering the areas occupied exclusively by Bisner until he could obtain a search warrant allowing him to do so. Commencing his search, Detective Soper, like Officer Severson, was able to view through an opening in the draped entry to Bisner's room the shotgun and assault rifle discovered there in the earlier search. Detective Soper also examined, but did not enter, the doorless closet near Bisner's room. Looking into the closet, Detective Soper saw various clothing that matched a description of Bisner's attire from the day of the shooting. Partially underneath some of the clothing, Detective Soper observed the "black stock" of what "appeared to be [the mid-section of] an assault-type rifle."
¶ 14 Subsequently, at approximately 10:30 that morning, Detective Soper obtained a duly executed search warrant commanding a daytime search of Bisner's residence for, among other things, "[a]ny firearms," "[a]ny ammunition," "[a]ny spent shell casings," the clothes Bisner was described to have been wearing just prior to the shooting, and "[a]ny other fruits or instrumentalities that are evidence of the crime of criminal homicide." Using this search warrant, Detective Soper returned to...
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