State v. Cantu
| Decision Date | 12 January 1988 |
| Docket Number | No. 860052,860052 |
| Citation | 750 P.2d 591 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Juan Dios CANTU, Defendant and Appellant. |
| Court | Utah Supreme Court |
Jo Carol Nesset-Sale, Salt Lake City, for defendant and appellant.
David L. Wilkinson and David B. Thompson, Salt Lake City, for plaintiff and respondent.
Defendant appeals from convictions on charges of aggravated robbery, Utah Code Ann. § 76-6-302 (1978), aggravated burglary, § 76-6-203, and aggravated assault, § 76-5-103.
Defendant testified that on December 22, 1984, he pried open a window in the victim's house and entered with two companions. He admitted taking a warm coat, but claimed that he left the house when he heard someone snoring in the bedroom. The victim, a 68-year-old woman, testified that defendant pulled her up to his face, demanded that she tell him where she kept her silver and gold, and then struck her in the forehead with a club and stabbed her once in the chest and once in the shoulder. She waited until her assailant left and then went to a neighbor's home to call the police. Her TV, wallet, Christmas gifts, several coats, and various household items were missing.
The police found defendant's jacket in the victim's house. It had blood stains which were consistent with the victim's blood. The victim identified defendant from a photo array shown her by the police, but failed to positively identify him in a lineup held eight months after the break-in.
Defendant moved to quash the jury panel on the ground that the selection procedure used did not ensure a fair cross-section. 1 Following a hearing on that motion, the trial judge supplemented the panel with two venirepersons with Hispanic surnames. One was challenged by defendant for cause, and the other was removed by the prosecution on a peremptory challenge. Defendant objected to that use of the peremptory challenge, claiming it was predicated upon race (both defendant and the challenged juror were Hispanic), and sought to have the prosecutor explain under oath the reason for his challenge. The trial court refused, stating that no reason need be given for a peremptory strike. See Utah R.Crim.P. 18(d). Defendant's motion for a mistrial was denied.
The jury was given an instruction on accomplice liability. Defendant took exception to the instruction, but did not state a specific objection. The jury returned a guilty verdict on all charges. Prior to sentencing, defendant was evaluated by Dr. Breck Lebegue and was found to be suffering from an undetermined mental illness. However, despite defendant's illness, Dr. Lebegue found him competent to face sentencing and found that he had been able to comprehend the nature of the proceeding at trial and to assist his counsel in preparing his defense. Defendant's motion to arrest judgment or modify the verdict to guilty and mentally ill was denied.
Defendant contends that the evidence was insufficient to support the verdict. In reviewing the sufficiency of the evidence, we view the evidence in the light most favorable to the verdict and reverse for insufficient evidence "only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he was convicted." State v. Petree, 659 P.2d 443, 444 (Utah 1983).
Defendant testified that he entered the victim's house by prying open a window. In the house, the police found his jacket stained with the victim's blood. The victim identified defendant as her assailant. Thus, the evidence viewed most favorably to the verdict was not inconclusive, nor was it so inherently improbable that defendant committed the crimes that we must, as a matter of law, reverse the conviction for insufficient evidence. See State v. Howell, 649 P.2d 91, 97 (Utah 1982).
Defendant specifically attacks his conviction of aggravated robbery, claiming that there was no evidence that anything was taken from the "person, or immediate presence" of the victim. The robbery statute, Utah Code Ann. § 76-6-301 (1978), provides in part: "Robbery is the unlawful and intentional taking of personal property in the possession of another from his person, or immediate presence, against his will, accomplished by means of force or fear." (Emphasis added.) Defendant argues that the above-emphasized language makes a taking from the "person, or immediate presence" of the victim an element that must be proved to establish aggravated robbery. We do not agree. Aggravated robbery is defined in Utah Code Ann. § 76-6-302 (1978):
(1) A person commits aggravated robbery if in the course of committing robbery, he:
(a) Uses a firearm or a facsimile of a firearm, knife or a facsimile of a knife or a deadly weapon; or
(b) Causes serious bodily injury upon another.
....
(3) For the purposes of this part, an act shall be deemed to be "in the course of committing a robbery" if it occurs in an attempt to commit, during the commission of, or in the immediate flight after the attempt or commission of a robbery.
(Emphasis added.) Our statutory scheme does not require proof of all elements necessary to prove a robbery, specifically, a taking from the "person, or immediate presence," to establish the "in the course of committing a robbery" requirement of aggravated robbery. So long as there is an attempt, coupled with the use of a firearm, knife, facsimile thereof, or another deadly weapon, or the accused causes serious bodily injury, the elements of aggravated robbery are satisfied. When defendant accosted the victim with a knife and club and demanded to know where she kept her silver and gold, that constituted an attempt since it was a "substantial step toward commission of the offense." Utah Code Ann. § 76-4-101 (1978). The attempt was sufficient to bring defendant's actions within the "in the course of committing a robbery" language of section 76-6-302. The use of a knife satisfies the additional element; therefore, there was sufficient evidence on the elements of aggravated robbery to support the conviction.
Defendant next assails the giving of jury instruction No. 28, regarding accomplice liability. The instruction read:
You are instructed that not only every person who directly commits the criminal act, but also any person, acting with the mental state required for the commission of the offense, who solicits, requests, commands, encourages or intentionally aids another person to engage in the conduct which constitutes an offense, shall be criminally liable as a party for such conduct.
At trial, upon reviewing the instructions, defendant's counsel stated: "Your Honor, the defense would take exception only to those given which are parties instructions, including elements of each of the offenses as well as the separate culpability definition of parties."
Rule 19(c) of the Utah Rules of Criminal Procedure states:
No party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the grounds of his objection. Notwithstanding a party's failure to object, error may be assigned to instructions in order to avoid a manifest injustice.
(Emphasis added.) Defendant now argues that the evidence did not support the giving of instruction No. 28. However, at trial, no specific grounds for the exception taken to that instruction were stated. Rule 19(c) requires more than a general exception to the instructions. It requires that the matter excepted to and the ground therefor be distinctly stated. See State v. McCardell, 652 P.2d 942 (Utah 1982); cf. State v. Schoenfeld, 545 P.2d 193 (Utah 1976) (). When the defendant's counsel does not give a basis for objecting to the instruction, the trial court does not have the benefit of having the issue clearly framed and argued by counsel before ruling. Unless the error must be recognized to avoid a manifest injustice, this Court will not review an instruction unless a timely, specific objection to it was made at trial. State v. Kazda, 545 P.2d 190 (Utah 1976); see Redevelopment Agency of Salt Lake City v. Barrutia, 526 P.2d 47 (Utah 1974). Under the above-stated standard, defendant has not properly preserved the issue for appeal.
Defendant also contends that the trial court erred in failing to grant his motion to arrest judgment. Rule 23 of the Utah Rules of Criminal Procedure provides in part:
At any time prior to the imposition of sentence, the court upon its own initiative may, or upon motion of a defendant shall, arrest judgment if the facts proved or admitted do not constitute a public offense, or the defendant is mentally ill, or there is other good cause for the arrest of judgment....
(Emphasis added.) Upon motion by defendant's counsel, the court appointed Dr. Breck Lebegue to determine if defendant was presently mentally ill, whether he was competent to proceed to sentencing, and whether he had been competent during trial. Dr. Lebegue found that defendant appeared to be suffering from an undetermined type of mental illness but that he had a full appreciation of the nature and consequences of the sentencing process and punishment specified for the offenses for which he was convicted and was competent to proceed to sentencing. The doctor also found that he had been able to comprehend the nature of the proceedings at trial and had been able to assist his attorney in preparing his defense.
The trial court ruled that defendant The trial court's view of "mental illness" as a matter of degree is consistent with how mental illness is dealt with in other statutes. Utah Code Ann. § 77-16-2 (1982)...
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Case Summaries
...peremptory challenges harm the defendant and affront the legal system. The Utah Supreme Court amplified its decisions in State v. Cantu, 750 P.2d 591 (Utah 1988) and 778 P.2d 517 (Utah 1989). Defendant's objection to a prospective juror challenge is not conditioned upon defendant belonging ......