State v. Dunn, 17571

• Decision Date: 03 May 1982
• Docket Number: No. 17571,17571
• Citation: 646 P.2d 709
• Parties: STATE of Utah, Plaintiff and Respondent, v. Robert W. DUNN, Defendant and Appellant.
• Court: Utah Supreme Court

Page 709

646 P.2d 709

STATE of Utah, Plaintiff and Respondent, v. Robert W. DUNN, Defendant and Appellant.

No. 17571.

Supreme Court of Utah.

May 3, 1982.

Marcus Taylor, Labrum & Taylor, Richfield, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Salt Lake City, for plaintiff and respondent.

PER CURIAM:

Following his conviction of aggravated kidnapping ¹ and second degree murder, ² defendant filed a timely notice of appeal. Defense counsel has filed an "Anders" brief, ³ seeking now to withdraw.

The facts leading up to defendant's conviction, briefly stated, are as follows. Defendant and one Howard Scott were hitchhiking in Barstow, California, when they obtained a ride in a motorhome driven by Ernest Sprinkle. Together, they proceeded in the motorhome to Las Vegas and then to Mesquite, Nevada. In Mesquite, Mr. Sprinkle apparently became somewhat intoxicated, and the trio left with defendant driving the motorhome. Sometime after leaving Mesquite, Sprinkle was struck on the head with a pistol, bound, and placed in the bathroom at the rear of the motorhome. There is considerable dispute as to how this occurred. The prosecution contended that defendant and Scott acted together in assaulting Sprinkle and that the pistol was defendant's. Defendant contends that Scott spontaneously assaulted and bound Sprinkle and that the pistol was produced by Scott. Defendant claims that he was fearful for his own safety and that he was an innocent participant in the assault and in the events that followed.

As the journey continued, stops were made for the purpose of purchasing gasoline. Then in Richfield, Utah, a stop was made at a service station in order to purchase a fuse for a CB radio in the motorhome. At this point, Sprinkle apparently gained consciousness and, with his hands still bound, began to pound on the rear window of the motorhome. Defendant and Scott quickly got in the motorhome and left the station, the former doing the driving while the latter went to the rear to again subdue Sprinkle. Much of this was observed by the station attendant, who reported his observations to the police.

As the motorhome left Richfield and proceeded some 20 miles to Salina, it was followed by a semi-tractor trailer. The driver of that vehicle observed a man through the rear window of the motorhome, who was apparently calling to him and waiving for some unknown reason. ⁴ Thereafter, the blind was pulled down so as to completely cover the window.

Having been alerted by the call from the service station attendant, a Utah Highway Patrolman observed the motorhome in Salina. After following it for one or two miles, the patrolman stopped the vehicle and subsequently arrested both Scott and defendant. Sprinkle's body was found in the motorhome as was a .25 caliber pistol. Tests indicated that Sprinkle had died as the result of two gunshot wounds inflicted by the weapon, and that Scott had fired it.

At trial, Scott testified that he and defendant had become alarmed at Sprinkle's activity at the Richfield service station and that defendant had suggested and encouraged the shooting of Sprinkle. As indicated supra, defendant claimed that he was an unwilling participant in the crime and that he was greatly relieved when stopped by the patrolman. Nevertheless, the jury convicted defendant and he was sentenced by the court to two concurrent prison terms of five years to life.

In his request to withdraw, defense counsel represents that he has carefully researched the record and the law and that he is unable to find any arguable issues on appeal. He indicates that he has communicated with ...