State v. Dunn, No. 17571

• Court: Supreme Court of Utah
• Writing for the Court: ZIMMERMAN; HALL, C.J., HOWE, Associate C.J., and DURHAM; STEWART
• Citation: 850 P.2d 1201
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert W. DUNN, Defendant and Appellant.
• Decision Date: 18 March 1993
• Docket Number: No. 17571

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850 P.2d 1201 STATE of Utah, Plaintiff and Appellee,
v.
Robert W. DUNN, Defendant and Appellant. No. 17571. Supreme Court of Utah. March 18, 1993.

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R. Paul Van Dam, Atty. Gen., Christine Soltis, Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

David B. Watkiss, Mary J. Woodhead, Debra J. Moore, Salt Lake City, for defendant and appellant.

ZIMMERMAN, Justice:

Robert W. Dunn appeals his 1981 jury conviction for second degree murder, Utah Code Ann. § 76-5-203 (1978 & Supp.1979) (amended 1986), and aggravated kidnapping, id. § 76-5-302 (1978) (amended 1983). This is the third time his case has come before this court. We initially affirmed his conviction in a per curiam opinion in 1982. State v. Dunn, 646 P.2d 709 (Utah 1982). In April of 1990, we reversed a trial court's dismissal of Dunn's petition for habeas corpus because we found sufficient grounds to permit him to claim ineffective assistance of counsel and to require a habeas corpus hearing even though he had not made that claim during the initial appeal. Dunn v. Cook, 791 P.2d 873, 878-79 (Utah 1990) (plurality). In June of 1990, we reinstated Dunn's right to appeal directly to this court. We now consider that appeal.

Dunn raises six claims of error: (i) insufficiency of the evidence; (ii) failure to suppress evidence resulting from an unconstitutional search; (iii) improper admission of evidence of a prior conviction; (iv) improper admission of a gruesome photograph; (v) prosecutorial misconduct during closing argument; and (vi) ineffective assistance of counsel. We reverse Dunn's conviction of second degree murder and direct entry of a judgment for reckless manslaughter. We affirm his conviction for aggravated kidnapping.

In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. E.g., State v. Andrews, 843 P.2d 1027, 1030 (Utah 1992); State v. Hamilton, 827 P.2d 232, 233 (Utah 1992); State v. Gardner, 789 P.2d 273, 285 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990); State v. McClain, 706 P.2d 603, 605 (Utah 1985); State v. Bolsinger, 699 P.2d 1214, 1218 (Utah 1985) (plurality). We recite the facts accordingly,

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Hamilton, 827 P.2d at 234, and present conflicting evidence only to the extent necessary to understand the issues raised on appeal. ¹

During the summer of 1980, Dunn met Howard Scott while hitchhiking in Santa Barbara, California. They spent a few days together, separated, and met again in Barstow, California. In Barstow, they obtained a ride from Ernest Sprinkle, who was driving his motor home to Denver, Colorado. The three traveled to Las Vegas, Nevada, where Sprinkle gave Dunn and Scott a few dollars and left them so that he could gamble. Later that night, Sprinkle and the pair resumed their journey. After a few miles, Sprinkle, who had been drinking, asked one of the others to drive. Dunn drove from that point on.

In Mesquite, Nevada, they stopped to buy gas and continue gambling. Again, Sprinkle gave Dunn and Scott money. Scott began gambling with Sprinkle, and they continued to gamble until dawn. At one point during the night, Dunn became upset with Sprinkle and Scott because they were losing money and because Sprinkle was becoming increasingly drunk. The trio left Mesquite around 6 a.m., with Dunn driving.

After crossing the Utah border, Sprinkle lay down on the floor in the rear of the motor home. While Dunn drove, Scott went to the back of the motor home and hit Sprinkle on the head. One or both of the men tied Sprinkle's arms and hands together and wrapped a towel around his mouth. Scott testified at trial that he hit Sprinkle because Dunn told him that Sprinkle "had to be killed ... [b]ecause he was getting on [Dunn's] nerves and aggravating and trying to tell him how to drive." Scott also testified that he and Dunn had decided to rob Sprinkle and that both of them tied Sprinkle up. Dunn, on the other hand, testified that he did not plan with Scott to rob Sprinkle and that Scott hit and bound Sprinkle on his own initiative. However, a jail inmate named Thomas Gleffe testified that while he and Dunn were incarcerated together, Dunn said that he and Scott were "partners" and that they had intended to tie up Sprinkle, rob him, and leave him somewhere.

As the journey continued, Dunn and Scott made two more stops. The first was in a small unidentified town where they purchased gas. The second was in Richfield, Utah, at a service station. There, both men left the motor home to buy a fuse for its citizen-band radio. Scott paid for the fuse, while Dunn inspected it. Dunn went back inside the motor home. Before Scott reentered the motor home, he waved over a hitchhiker standing about five hundred feet away. When the hitchhiker reached the motor home, Scott told him to wait a minute and went inside the motor home.

At that point, the hitchhiker heard and saw Sprinkle in the motor home pounding on the window and screaming for help. The service station attendant also heard Sprinkle pounding on the window. Scott rushed to the back of the motor home, while Dunn pulled the vehicle out of the station in front of an oncoming semi-truck. As the motor home left the station, the service station attendant saw Sprinkle still pounding at the window. The semi-truck driver also saw Sprinkle motioning for help as he came up behind the motor home. Someone then pulled down the back window shade.

Minutes later, Sprinkle locked himself in the motor home's bathroom. Scott forced open the door and fired two fatal shots at Sprinkle from a .25-caliber hand gun. Scott testified that Dunn had given him the gun and that he shot Sprinkle because

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Dunn again told him that Sprinkle had to be killed. Dunn, however, testified that the gun was Scott's, that Scott was acting on his own, and that Dunn was unable to do anything because he feared for his own safety. Gleffe, the jail inmate who testified about his conversation with Dunn, also testified that Scott had told him the gun was Scott's.

Alerted by a call from the service station attendant in Richfield, a Utah Highway Patrolman stopped the motor home near Salina, Utah, finding Dunn in the driver's seat and Scott in the back. The officer testified that Dunn looked "calm and collected" when asked for his identification. When the officer asked Dunn for the vehicle's registration, Dunn replied that the motor home was a "drive-out car" from California. Scott added that they were taking it to Denver. When the officer requested the authorizing papers, the pair shuffled through the contents of a console between the seats but failed to produce them.

The officer ordered Dunn and Scott out of the motor home, entered the vehicle, and found Sprinkle's body in the bathroom. When the officer stepped out, he asked Dunn about the body. Dunn responded, "I want a lawyer. All I was told to do was drive." Dunn and Scott were arrested. During a later search, the police found the gun used in the killing under a mattress in the motor home and unspent .25-caliber cartridges in Dunn's duffle bag. Sprinkle's wallet was never located. When they were arrested, Scott had $30 and Dunn had less than a dollar.

Scott and Dunn were charged with first degree murder and aggravated kidnapping, both capital offenses at the time, and separate trials were held in the Sixth District Court. Scott was tried first. The jury convicted him of aggravated kidnapping but was unable to arrive at a verdict on the first degree murder charge. In return for his agreement to testify against Dunn, Scott pleaded guilty to a reduced charge of second degree murder.

At Dunn's trial, the prosecution's primary theory was that Dunn acted as a principal in Sprinkle's kidnapping and as an accomplice in Sprinkle's killing. Dunn, represented by a court-appointed attorney, asserted the affirmative defense of compulsion. See Utah Code Ann. § 76-2-302. The court instructed the jury that, among other things, it could convict Dunn of homicide under either a principal or accomplice theory. The jury returned a verdict of guilty of second degree murder and aggravated kidnapping, for which Dunn received concurrent sentences of five years to life and life imprisonment. After the conviction, his trial counsel filed an appeal brief on Dunn's behalf and then requested permission to withdraw from the case. This court granted the request and affirmed the conviction. State v. Dunn, 646 P.2d 709 (Utah 1982) (per curiam).

Dunn subsequently obtained new counsel and petitioned the Third District Court for a writ of habeas corpus, which the court denied. We reversed that decision in Dunn v. Cook, 791 P.2d 873 (Utah 1990). Four members of this court found that Dunn had demonstrated a sufficient possibility that his trial counsel was ineffective in representing him during his initial appeal to permit him to raise an ineffectiveness claim for the first time in a habeas corpus proceeding. Id. at 878 (Stewart, J., joined by Durham, J.); id. at 879 (Zimmerman, J., concurring in the result, joined by Hall, C.J.). Although we remanded the case for a hearing, we later reinstated Dunn's direct appeal to this court in response to his motion, which the State did not oppose. We now consider Dunn's appeal as if it were his first appeal to this court.

Before we reach the claims of error, we address a crucial threshold issue. In his opening brief, Dunn challenged his convictions for second degree murder and aggravated assault on six grounds, arguing that each ground warranted reversal of each of the convictions. The State responded that none of these grounds justified reversal of Dunn's aggravated kidnapping conviction. However, with respect to the second degree murder conviction, the State conceded that the trial court had committed plain

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error in instructing the jury as to the elements of second degree murder and that...