State v. Gillian, 11314
| Decision Date | 08 January 1970 |
| Docket Number | No. 11314,11314 |
| Citation | 463 P.2d 811,23 Utah 2d 372 |
| Parties | d 372 STATE of Utah, Plaintiff and Respondent, v. Iva Lee GILLIAN, Defendant and Appellant. |
| Court | Utah Supreme Court |
Stewart M. Hanson, Jr., John D. O'Connell, Salt Lake City, for defendant-appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, David S. Young, Asst. Attys. Gen., Salt Lake City, for plaintiff-respondent.
The defendant, Iva Lee Gillian was convicted of murder in the first degree for the shooting of Jesse A. Melton in an apartment at 21 West 1700 South in Salt Lake City, in the early morning hours of November 4, 1967. The jury included with its verdict a recommendation of leniency, and accordingly, the defendant was sentenced to life imprisonment. 1 On appeal the defendant contends that the trial court erred in refusing her requests to instruct on the lesser offenses of second-degree murder, voluntary and involuntary manslaughter; and in admitting evidence concerning a prior offense.
The question presented here is not whether under some view of the evidence the submission of the issue of first-degree murder was justified. Neither is this a case where the defendant has made a deliberate choice of the two extremes, either guilty of first-degree murder, or not guilty, and therefore failed to request included offenses, in which event she would be precluded from complaining about it. 2 The argument for the defendant's position is that this crime may have been so repulsive to the jury's sensibilities that they were extremely reluctant to acquit the defendant outright, but to avoid that result the only alternative given by the court was to return the first-degree murder verdict, when in fact some verdict as to a lesser offense, between those two extremes, may have better suited their judgment as the proper disposition of the case.
One of the foundational principles in regard to the submission of issues to juries is that where the parties so request they are entitled to have instructions given upon their theory of the case; and this includes on lesser offenses if any reasonable view of the evidence would support such a verdict. This is in accord with the authorities generally, 3 and with the adjudications of this court, as stated in a number of cases dealing with instructing on lesser offenses: In the case of State v. Johnson 4 it is said:
That the defendant is entitled to have the jury instructed on his theory of the case if there is any substantial evidence to justify giving such an instruction.
Of similar import is State v. Newton: 5
We have held that each party is entitled to have his theory of the case which is supported by competent evidence submitted to the jury by appropriate instructions; and the failure to present for the jury's consideration a party's theory by appropriate instructions constitutes reversible error. (Cases cited.)
A sound reason for this rule is well stated by Justice Straup in his concurring opinion in State v. Ferguson: 6
If in a case of different degrees of the charged greater offense there is sufficient evidence to submit the case to the jury of the charged greater offense, I do not see wherein it is the prerogative of the court to direct the jury of what degree only the jury may find the defendant guilty, or to direct them that, if they do not find him guilty of the charged greater offense they must acquit him. To permit the court to do that is to permit it to be the judge of the facts.
Whether the refusal to give defendant's requested instructions on lesser offenses than first-degree murder is violative of the principles just set forth requires a survey of the facts.
The deceased, Jesse A. Melton, had been staying with one William Miller in an apartment at 21 West 1700 South in Salt Lake City, Utah, for about a week. The apartment was small. It had a kitchen, bathroom, and a combination living and bedroom. Melton slept on the floor alongside of Miller's bed. During the afternoon and evening of November 3, 1967, the deceased and Miller had passed their time drinking an unspecified quantity of whiskey and beer. Late that night one Bernice Simmons, a friend, came to the apartment. The three of them--the deceased, Miller, and Mrs. Simmons--had what was described as a 'little party'. At some late hour, they bedded down--Melton on the floor and Miller and Mrs. Simmons occupying Miller's bed. There is some conflict in the evidence as to whether the latter two were dressed or undressed and whether one or the other or both were on top of the covers of the bed. Just what their situation and preoccupation may have been is not set forth in the record, nor is the detail thereof of any significance here except as background to the tragic drama which was shortly to occur, and the effect it may have had upon the defendant's condition of mind.
Meanwhile that same evening the defendant had been making plans to go hunting with a friend. The plans fell apart and she was disappointed and upset. She had a bad time trying to sleep and took a number of phenobarbital tablets which she had under a prescription for a heart condition. Early in the morning of November 4, about 5:30 or 6:00 a.m., she started to drive to American Fork to visit a relative. But feeling she was not well enough to drive on the freeway, she changed her mind and decided to visit her 'friend' William Miller. They had previously 'lived together' for several years and since breaking up had seen each other from time to time.
When the defendant knocked on the door, Miller opened it and she walked in. There she saw Mrs. Simmons with the bedding held up to cover her and with no clothing on her shoulders. The latter remarked 'I got drunk last night.' Defendant asked Miller what was going on. He replied: 'None of your business.' She then asked Miller how he could sleep with her when 'Speedy' (Mrs. Simmons' husband) was one of his best friends. Tempers flared which brought about profanity and physical violence. The aspect of this occurrence which is material here is that it culminated in Miller slapping the defendant to the floor, kicking her repeatedly and forcing her out of the door. Whereupon she went to her car, and got a .22 pistol, and returned to the window of the apartment. There is testimony that the window was draped and that the apartment was dark. She fired several shots into the room, intending, she says, to scare Miller for what he had done. But unfortunately one of the shots struck and killed Mr. Melton.
The usual rule on an appeal in which the challenge is to the sufficiency of the evidence to support the verdict, is that we review the record in the light favorable to the jury's verdict. However, in this situation where the question raised relates to the refusal to submit included offenses, it is our duty to survey the whole evidence and the inferences naturally to be deduced therefrom to see whether there is any reasonable basis therein which would support a conviction of the lesser offenses. Looked at in that light, the jury may have seen the situation here somewhat in this manner: that inasmuch as the defendant had previously 'lived' with Miller, apparently in a common-law relationship, it would not be unnatural to suppose that she still had some strong feelings about and possibly felt somewhat of a possessory interest in Miller; that when she found him practically in flagrante delictu with the wife of a friend, that because of the mental state she was in, and because of anger and jealousy provoked by rejection for another woman, she may have become extremely upset. While one would not want to justify her actions, nevertheless it is not uncommon to manifest some degree of understanding for violent reactions of men provoked by jealous resentment of intrusion upon such interests, 7 there is no good reason why there should be any less indulgency for women.
If the jury accepted her version of the occurrence, that it was in such a state of emotional upset that she got the pistol and fired it into the room several times intending only to scare Miller, her offense could be found to be involuntary manslaughter in that it was a killing which resulted 'in the commission of an unlawful act not amounting to a felony'; or upon a different view of the facts could be found to be voluntary manslaughter as a killing 'upon a sudden quarrel or in the heat of passion,' 8 and the fact that another man accidentally became the victim would not necessarily make the crime one of a higher degree. Without further extenuation, it is also true that if the jury believed that there was an intent to kill, it may not have believed beyond a reasonable doubt some other element required to make the crime murder in the first degree, in which event it would be murder in the second degree. 9
From what we have just stated above it will be seen that we do not analyze this as a case where under any reasonable view of the evidence the defendant must be found either guilty of the greater offense, or not guilty, 10 and we therefore conclude that the instructions on the lesser offenses should have been given.
Defendant's assignment of error in the admission of evidence relates to an altercation which supposedly occurred several years previously between her and Miller. The prosecution was allowed, over defense counsel's objection, to ask Mr. Miller if he had ever been threatened by the defendant, to which he answered:
'Yes, * * * with a knife.'
Later when Miller was asked if he had been cut in this knife incident, and in connection with the objection it was pointed out that whatever happened it was seven or eight years earlier, the court sustained the objection. However, when the defendant took the stand, the trial court allowed the prosecution, over objection, to cross-examine her as to whether she had threatened Miller with a knife. After the objection was overruled, she stated:
A If I had threatened him with a knife, it would have been in...
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