State v. Cayer
| Decision Date | 25 June 1991 |
| Docket Number | No. 900297-CA,900297-CA |
| Citation | 814 P.2d 604 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Billy Donald CAYER, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Dale M. Dorius (argued), Dorius and Miller, Brigham City, for defendant and appellant.
R. Paul Van Dam, State Atty. Gen., Dan R. Larsen (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.
Before GREENWOOD, JACKSON and RUSSON, JJ.
Defendant, Billy Cayer, appeals his conviction of murder in the second degree, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1989), after a jury trial. We affirm.
Defendant was originally charged along with three others in the beating death of Mike Ramirez. The other three defendants were Donald Brown, Ray Cabututan, and William Cummins. The victim and all four defendants were employed by Western Brine Shrimp Company at the time of the murder.
Western Brine Shrimp Company collects brine shrimp eggs from the Great Salt Lake. The company operates a camp with several trailers for its employees to live in near the western shore of the Great Salt Lake in Box Elder County near Lakeside, Utah.
At the time of the murder, there were four trailers in the camp, in which several employees resided. The victim, Ramirez, resided in a trailer with Eddie Apodaca. Defendant resided with the other three defendants, Brown, Cabututan, and Cummins, in another trailer. Richard Anderson, Eric Tilley, and Sherman Gallardo occupied a third trailer. The fourth trailer was reserved for a foreman, who was absent from the campsite on the night of the murder.
On October 25, 1989, at approximately 9:45 p.m., Cummins went to the trailer occupied by Ramirez and Apodaca and asked Apodaca to come over to his trailer. When Apodaca arrived, the four occupants (defendant, Cabututan, Brown, and Cummins) accused him of lying and not doing his share of the work. All four occupants were intoxicated. A heated argument commenced between Cabututan and Apodaca. Cabututan attacked Apodaca, knocked him onto one of the bunks, and hit him on the head with a sharpening stone. Apodaca escaped to his trailer, told Ramirez what had happened and began changing his clothes in order to leave the camp. Before Apodaca could change, defendant, Brown, Cabututan, and Cummins barged into the trailer. Ramirez positioned himself between the four men and Apodaca. Both Brown and Ramirez drew knives. Brown convinced Ramirez to drop his knife. When he did, Brown, Cabututan, and Cummins forced Ramirez out of the trailer. Defendant remained inside with Apodaca.
From inside the trailer, Apodaca could hear Ramirez being beaten outside. Whenever Apodaca attempted to dress, defendant hit him. Defendant was heavily intoxicated. Apodaca testified that defendant hit him at least twice in the fifteen minutes to half an hour they were in the trailer together. During this time, Cabututan returned to the trailer and retrieved Ramirez's knife. Then Brown entered and instructed defendant to leave Apodaca alone. He told Apodaca to leave the camp. When Apodaca came out of the trailer, he saw Ramirez on the ground being kicked by Cabututan and Cummins. Both men again attacked Apodaca. Cummins hit him with his fist and Cabututan swung a crescent wrench at him. Apodaca ran from the camp and as he looked back, he could see the men kicking Ramirez.
Anderson, Tilley, and Gallardo, who were sleeping in their trailer, were awakened by the fighting. Tilley testified that he heard four different voices telling Ramirez they were going to kill him. When Anderson opened the trailer door, he saw defendant, Brown, Cabututan, and Cummins standing around Ramirez, kicking and hitting him. Defendant was positioned near Ramirez's legs and feet, kicking. Tilley testified that he could remember only three people standing around Ramirez, but stated that at one point he saw defendant kneeling beside the upper part of Ramirez's body. When Brown threatened Anderson with a crescent wrench, Anderson closed the trailer door. Anderson, Tilley, and Gallardo continued to hear and observe the beating for another forty-five minutes to an hour. They considered trying to break up the fight, but feared that defendant was outside their door. They observed Ramirez's attempts to get up and then saw Brown, Cabututan, and Cummins beat him back to the ground. Gallardo verbally attempted to prevent Cabututan from stabbing Ramirez. Anderson testified that Cabututan hit Ramirez several times with a crescent wrench, that Brown kicked Ramirez, and that Cummins choked him. Throughout the fight, Ramirez begged them to stop.
Finally, when Ramirez could no longer move, the men stopped and returned to their trailer. Anderson, Tilley, and Gallardo observed Ramirez get up, walk to a water barrel, drink some water, and return to his trailer. At 5:00 a.m., Ramirez knocked on their door. He said he could not breathe and that he needed some water. He requested that someone call "911." After he drank the water, he fell backwards and died.
Anderson and Gallardo drove to Lakeside where they called the Box Elder County Sheriff and the owner of Western Brine Shrimp Company. Four officers arrived at the crime scene and arrested defendant, Cummins, Brown, and Cabututan. Standing outside the trailer occupied by defendant and the other three men, Deputy Yeates could see into the trailer and observed tennis shoes, hip waders, and a box, all of which appeared to have blood on them. When defendant requested that Yeates retrieve some hay fever medicine from his trailer, Yeates entered the trailer and saw a wet crescent wrench near the sink, and a knife. Additionally, Deputy Ward, upon entering the trailer to retrieve cigarettes at the request of the trailer occupants also observed the box, tennis shoes, and crescent wrench in plain view. Later, all these items were seized by the officers. Officer Ward also took photographs of the crime scene, including pictures of blood-stained clothing articles, bloody walls, tools and implements, and the victim's body.
The state's chief medical examiner performed an autopsy on Ramirez. He testified that an external examination of Ramirez's body showed large areas of scraping and bruising, open wounds, twenty individual rib fractures, scalp lacerations, and hemorrhages in the eyes. He concluded that Ramirez had died from the cumulative effect of multiple blunt force head injuries, causing a cerebral edema.
Each of the four men accused of killing Ramirez was tried separately. Defendant's first trial ended in a deadlocked jury. After a second trial, held February 26 through 28, 1990, he was convicted of second degree murder and sentenced to a term of five years to life.
Defendant appeals his conviction and sentence. He asserts that the trial court erred in the following respects: (1) by refusing a motion for a change of venue; (2) by denying a motion to suppress items of blood-stained evidence seized in a warrantless search; (3) by admitting certain prejudicial, inflammatory photographs and other evidence; (4) by having insufficient evidence to convict defendant of second degree murder; (5) by refusing to allow the jury to view the crime scene; and (6) by denying defendant the right to view the crime scene.
Defendant argues that the trial court erroneously denied his motion for a change of venue. He contends that he could not receive a fair trial because of extensive pretrial publicity and because the murder and trial took place in a small community.
The right of trial by an impartial jury is guaranteed by both the United States Constitution and the Utah Constitution. U.S. Const. amend. VI; Utah Const. art. I, § 12. Utah Code Ann. § 77-35-29(e) (Supp.1988) provided the mechanism for obtaining a change in venue:
(e)(i) If the prosecution or a defendant in a criminal action believes that a fair and impartial trial cannot be had in the jurisdiction where the action is pending, either may, by motion, supported by an affidavit setting forth facts, ask to have the trial of the case transferred to another jurisdiction.
(ii) If the court is satisfied that the representations made in the affidavit are true and justify transfer of the case, the court shall enter an order for the removal of the case to the court of another jurisdiction free from the objection and all records pertaining to the case shall be transferred forthwith to the court in the other county. If the court is not satisfied that the representations so made justify transfer of the case, the court shall either enter an order denying the transfer or order a formal hearing in court to resolve the matter and receive further evidence with respect to the alleged prejudice.
See Utah R.Crim.P. 29(e).
A decision to deny or grant a motion for a change of venue is within the discretion of the trial court and will not be reversed absent clear abuse of that discretion. State v. James, 767 P.2d 549, 551 (Utah 1989). See also State v. Bishop, 753 P.2d 439, 458 (Utah 1988). The ultimate test of whether a denial to change venue constitutes an abuse of discretion is whether a defendant was tried by a fair and impartial jury. Id.; State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988).
Defendant relies on James to support his argument that the small community and pretrial publicity in this case prejudiced his trial. In James, the defendant, charged with the first degree murder of his infant son, was granted a change of venue before his trial, after an interlocutory appeal to the Utah Supreme Court. The James court delineated four factors to be considered by a trial court in deciding whether to order a change of venue: "(1) the standing of the victim and the accused in the community; (2) the size of the community; (3) the nature and gravity of the offense; and (4) the nature and extent of publicity." James, 767 P.2d at 552. As in James, we will take into account the totality...
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