State v. Brown, 15481
| Decision Date | 07 February 1980 |
| Docket Number | No. 15481,15481 |
| Citation | 607 P.2d 261 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Gerald Paul BROWN, Defendant and Appellant. |
| Court | Utah Supreme Court |
Gary D. Stott and Gary J. Anderson of Stott, Young & Wilson, Provo, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Salt Lake City, Noall T. Wootton, Utah County Atty., Provo, for plaintiff and respondent.
Defendant was charged with one count of first degree murder in violation of Section 76-5-202(1)(h), 1 the criminal information alleging defendant killed one Steven Losh on April 12, 1977, for the purpose of preventing the said Steven Losh from appearing as a witness against him in a pending trial in the District Court of Utah County in which defendant was charged with second degree murder. Defendant was tried on the first degree murder charge in a bifurcated hearing pursuant to Section 76-3-207 2 before the District Court, Duchesne County, sitting with a jury of twelve members, which returned a unanimous verdict of guilty of first degree murder, and, after the hearing on the penalty, returned a unanimous verdict of death. From judgment entered on the verdicts, and the Court's sentence of death by firing squad, defendant appeals.
The evidence at the guilt-determining phase of the trial showed that Steven Losh had been served a subpoena to appear as a witness on behalf of the State of Utah in a trial scheduled for April 13, 1977, in which, as noted, defendant had been charged with second degree murder in Utah County. One Lou Ann Ross was also named as a witness in the subpoena, but had not been served. To insure that Lou Ann Ross would not be served with the subpoena, defendant had taken her to a house trailer located in Red Creek, a wilderness area in Duchesne County, Utah. Steven Losh had also agreed not to testify, and to stay at the trailer until the trial in Utah County against defendant was over. On April 12, 1977, Buddy Kummer, a friend of defendant drove defendant and Steven Losh in Kummer's truck from American Fork, Utah, to the Red Creek area. According to Kummer's testimony, the three men consumed approximately two cases of beer along the way. In addition, defendant was taking Preludin, an amphetamine, or "upper," and was also drinking whiskey, and Steven Losh was taking Preludin and Valium, a tranquilizer, or "downer". At some point along the way, Losh asked defendant for more Valium which the defendant refused to give him, as, he said, he needed it for his trial the next day. This caused Losh to become angry, and to "rub the defendant, in a way". Specifically, Kummer testified that Losh had told defendant that he, Losh, could do six months in the county jail for contempt of court standing on his head, but that the defendant was going to spend ten years in the state prison. Losh asked defendant if he would be a "punk" for one of the inmates. When the truck arrived at the trailer in Red Creek where Lou Ann Ross and one Michael O'Neill were staying, the three men departed from the truck. Kummer testified that the events happened in the following manner:
Kummer went to the back of the trailer to empty his bladder, while Losh went to the front of the trailer, presumably for the same purpose. Kummer turned around, and bumped into defendant already coming out of the trailer. Defendant said something to Kummer about a hole. Defendant ran over to the truck and took Kummer's gun out of the "jockey box". Kummer thought he was coming at him, and ran into the trailer, telling O'Neill, who was just getting dressed, to stay in the trailer because, "something's coming down". He heard two shots, Losh yelling, "Don't, Paul, don't," and also heard Losh's footsteps as he ran around the trailer. Two more shots were fired, a pause, then another shot. Kummer looked out of the window and saw Losh lying on the ground, on his right side, and defendant bending over him with the gun in his hand. Defendant came into the trailer and said, "Come on, Bud, we've got a grave to dig." Kummer went with defendant to an area behind a sagebrush where the two of them began digging a hole. As they were digging, defendant asked, "How fast can Lou Ann run?" and "Are there any more shells?" When Kummer said there were no more shells for the gun, defendant said "It's just as well, then, this way." Before the grave was finished, defendant went back to the trailer, and O'Neill came out and helped Kummer finish digging the grave. Then all three men helped to carry and drag Losh's body to the grave and cover it with earth, rocks and dead wood. When they went back to the trailer, Lou Ann Ross was cooking hamburgers, and defendant sat down and ate.
The testimony of Lou Ann Ross and Michael O'Neill did not differ substantially from Kummer's. Lou Ann Ross also testified that she had heard Losh yell, while he was running around the trailer, "No, Paul, don't, I am with you," and that defendant had commented, during the time he was eating hamburgers, "He was a hard dying mother f ," and had asked Lou Ann Ross to go into the trailer with him because "nothing makes me hornier than killing a man."
The body of Steven Losh was not found by police for a month. On May 23, 1977, the State Medical Examiner, Doctor Serge Moore, performed an autopsy on the body. He testified that there were three gunshot wounds on the body, but because of the state of decay he could not tell at what range the shots were fired. One wound was in the base of the left thumb where a piece of schrapnel was found. The second bullet entered the decedent's body from the back, just above the collar bone, and was found lodged at the base of the skull. The third bullet, which the Doctor described as the cause of death, entered Losh's body through the left temple, just above and behind the ear, and was found in the right side of the decedent's brain.
The body was determined to be that of Steven Losh with the aid of his dental records.
Defendant testified in his own behalf. His testimony was that when he went into the trailer, he saw through the windows that Losh had picked up a piece of firewood, which defendant described as a club; that he was apprehensive that Losh would try to harm him; that he had taken the gun to defend himself; that when he accosted Losh with the weapon Losh took a step toward him but he did not raise the club; that defendant had then blacked out and remembered nothing until he was standing over Losh with the gun in his hand. Defendant also testified that he had been found guilty of the second degree murder in the previous trial, without the testimony of Losh and Ross.
Doctor Carl R. Peterson, a psychiatrist, testified that he had examined defendant and that he had formed an opinion, noted infra, which was based on the following elements: (1) that defendant had had no sleep for four or five days, during which time he had taken Preludin, Valium, and whiskey; (2) the great amount of whiskey, beer and Preludin alleged to have been consumed by defendant during the day of April 12, 1977; (3) defendant's history of stuttering as a child, and his inability to express his emotions adequately; and (4) the pressures of his upcoming trial for second degree murder. The doctor expressed an opinion that defendant was in what he termed "rage reaction" at the time of the killing and could not have formed the requisite intent to kill Losh for the purpose of preventing him from testifying.
During the penalty phase of the trial, the State introduced evidence that defendant had been convicted in the past of burglary, forgery and auto theft for which he had spent a total of ten of his adult years in prison, and had first been in trouble with the law at the age of fourteen. Wayne Watson, Utah County prosecutor, related the evidence presented in the Utah County trial of defendant on the charge of second degree murder. He testified that the testimony had shown the following facts:
That on August 27, 1976, Samuel Bingham had picked up Steven Losh and defendant in his car outside the Caravan Lounge in American Fork, Utah. Steven Losh was bleeding from his ear, and the three decided to find the "guys that had beat up on Steve." They eventually found a parked white pickup truck in which Sonny Cordova and Julian Cole were sitting. Bingham testified that he, Losh, and defendant got out of the car; that Bingham walked toward the driver's seat of the truck, but that he saw defendant behind him and saw that he had a gun. Bingham went back to his car. Defendant went up to the driver's seat of the truck and shot Sonny Cordova once through the head, and then shot Julian Cole, who had thrown up his arm to defend himself. Sonny Cordova died as a result of the gunshot wound; Julian Cole lived.
Janet Bezzant, Kummer's girlfriend, also testified during the penalty hearing that defendant had stated to her on the morning of April 13, 1977, that after Losh fell down, defendant had put the gun to his head and fired.
Defendant introduced the following evidence at the penalty hearing:
A written psychiatric evaluation by Doctor Carl R. Peterson, in essence paralleling his oral testimony, described ante ; testimony of Guy Moore, a friend of the defendant, who testified that he had never seen defendant commit an act of violence, and that it was his opinion that defendant was incapable of a premeditated murder; testimony of Phyllis Wilson Brown, defendant's ex-wife, who testified that defendant was a good influence on her two children of a previous marriage and on a child of their marriage; and defendant's testimony, asking for life imprisonment rather than death, so that he could visit his children, and raise them as best he could under the circumstances. Defendant was 34 years old at the time of this trial.
Defendant cites, as prejudicial error, the Court's failure to include in its voir dire of the jury panel, a question as to the veniremen's beliefs on the death penalty. ...
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