State v. Clayton, 17518
| Citation | 646 P.2d 723 |
| Decision Date | 06 May 1982 |
| Docket Number | No. 17518,17518 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. William Harrison CLAYTON, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Shelton R. Carter, Provo, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.
The appellant/defendant appeals from a conviction of criminal homicide under the provisions of § 76-5-203(1)(b), U.C.A., 1977, which states:
Murder in the second degree -(1) Criminal homicide constitutes murder in the second degree if the actor:
(b) Intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another ....
The defendant was charged with the beating death of John Linde, a 91-year-old man living alone at the time of the crime. A neighbor found him badly injured and semi-conscious on the evening of November 14, 1980. His home had been ransacked and splattered with blood. He died 25 days later while under professional care. The defendant was convicted on the basis of circumstantial evidence: a yellow baseball cap, found at the scene of the crime, was identified as having been seen on the defendant earlier on the day of the killing; hairs from the cap were analyzed and compared with hairs from the defendant; a witness testified that the defendant had left credit cards with the name "John Linde" at her home shortly after the crime was committed.
On appeal, the defendant complains that the trial court improperly instructed the jury on the weight to be given circumstantial evidence, specifically that the instruction given did not state that circumstantial evidence should be treated with "caution." The given instruction stated:
Circumstantial evidence is competent, and is to be regarded by the jury in all cases. It should have its just and fair weight with you; you are not to fancy situations or circumstances which do not appear in the evidence but you are to make those just and reasonable inferences from the circumstances proven which the guarded judgment of a reasonable man would ordinarily make under like circumstances; and if in connection with the other evidence before you, you then have no reasonable doubt as to the defendant's guilt, you should convict him but if you then entertain such doubt, you should acquit him. To warrant a conviction on circumstantial evidence, each fact necessary to establish the guilt of the accused must be proven by competent evidence beyond a reasonable doubt and the facts and circumstances proven should not only be consistent with the guilt of the accused but must be inconsistent with any other reasonable hypothesis or conclusion than that of guilt.
The defendant cites no cases which require the use of particular words in instructing a jury regarding circumstantial evidence. The defendant apparently bases his contention on State v. Schad, 24 Utah 2d 255, 257, 470 P.2d 246, 247 (1970), which states that "... where a conviction is based on circumstantial evidence, the evidence should be looked upon with caution ...." However, this language appears in the context of a longer discussion regarding the sufficiency of evidence to sustain a verdict and is clearly not intended as a mandate for the exact wording of instructions. A survey of Utah cases indicates that the only clear requirement for jury instructions regarding circumstantial evidence (or direct evidence) is for the jury to be instructed regarding the prosecution's burden of proof. This requirement may be met by using a "reasonable doubt" instruction or a "reasonable alternative hypothesis" instruction. See, e.g., State v. Eagle, Utah, 611 P.2d 1211 (1980); State v. King, Utah, 604 P.2d 923 (1979); State v. John, Utah, 586 P.2d 410 (1978); State v. Schad, supra. Even these instructions need not be given with any particular words or phrases. Rather, this Court has warned that care must be taken "... to use language which the jury would understand ...." State v. Garcia, 11 Utah 2d 67, 71, 355 P.2d 57, 60 (1960).
The record reveals no reason to suppose that the jury misunderstood or gave undue weight to the evidence by being instructed to view the circumstantial evidence with "the guarded judgment" of a reasonable man. The stock phrases and "magic words" beloved by lawyers carry no talismanic assurance of comprehension by jurors untrained in the law. The concept of care or caution in the consideration of circumstantial evidence was adequately conveyed by the instruction given.
The defendant also complains that the trial court erred in failing to give a separate "reasonable alternative hypothesis" instruction, in spite of the clear coverage of this point in the instruction quoted above. There was no need to repeat the same instruction twice. The overemphasis of a point may be as misleading to a jury as the omission of a point. In addition, the defendant alleges error in the court's rejection of his proposed jury instruction No. 1 which stated in part: "You are instructed that circumstantial evidence is necessarily less convincing and of less value than direct evidence." This is a misstatement of the law. In Utah, as elsewhere, circumstantial evidence alone may be competent to establish the guilt of the accused. 30 Am.Jur.2d Evidence §§ 1125, 1126 (1967). The decisions of the trial court regarding jury instructions are affirmed.
The defendant's second point on appeal alleges error in the trial court's admission of probability testimony regarding the matching of hair samples and claims that (a) there was a lack of foundation for the probability evidence, and (b) such probability evidence had a disproportionate and prejudicial impact on the jury. Specifically, the defendant objects to the expert witness' reference to "the studies of others" in assigning a statistical probability to the matching of two hair samples.
Rule 56(2)(b) of Utah R.Evid. provides that if the witness is an expert, the testimony is limited to "such opinions as the judge finds are ... within the scope of the special knowledge, skill, experience or training possessed by the witness." While this language does not exclude the testimony in question, it gives the trial court little guidance in the face of the traditional inclusion of "the studies of others" within the hearsay prohibition. The traditional rule has limited an expert's opinion testimony to personal experience and observation. Learned treatises, reports or observations of others could be admitted separately, but were subject to objection under the rationale that the original writer or observer could not be cross-examined. More recently, Fed.R.Evid. 703 has broadened the basis for an expert's testimony by specifying that facts or data used in forming an opinion or inference need not be admissible if of the type reasonably relied on by experts in the witness' field of expertise. This approach may be seen in other jurisdictions. In Goodner v. Chicago, Milwaukee, St. Paul and Pacific Railroad Co., 61 Wash.2d 12, 377 P.2d 231 (1962), the court ruled that there was no error in a doctor's reference to a medical publication for statistics because the opinion he gave was based upon his own knowledge and experience which included his knowledge of the pertinent statistics. The California Supreme Court ruled in Brown v. Colm, 11 Cal.3d 639, 114 Cal.Rptr. 128, 522 P.2d 688 (1974), that while a layman may not base an opinion on a medical text, it is proper for a professional physician to do so. The court cited Wigmore's reasoning that a professional has the experience necessary to evaluate the trustworthiness of the source and plausibility of the views expressed. The court stated:
... if the threshold test of general testimonial qualification is found to be met and the witness is permitted to testify on direct examination, he is subject to as penetrating a cross-examination as the ingenuity and intellect of opposing counsel can devise. This...
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