State v. Hansen
| Decision Date | 05 November 1986 |
| Docket Number | No. 19894,19894 |
| Citation | 734 P.2d 421 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. David M. HANSEN, Defendant and Appellant. |
| Court | Utah Supreme Court |
Martin W. Custen, Ogden, for defendant and appellant.
David L. Wilkinson, Atty. Gen., J. Stephen Mikita, Salt Lake City, for plaintiff and respondent.
Defendant David M. Hansen appeals from a conviction of murder in the first degree, a capital felony under section 76-5-202(1)(d) of the Utah Code. Hansen's principal claims of error are that the trial court improperly refused to give his proposed instruction on felony-murder, a second degree felony, and that the court erred in giving an instruction, sua sponte, on withdrawal from the commission of a crime and an instruction on accomplice liability. We hold that the failure to give defendant's requested instruction on felony-murder, a second degree felony, was prejudicial error and reverse and remand for a new trial.
On February 1, 1983, defendant Hansen and his original co-defendant, Joseph Rocco, 1 went to David Stewart's house, hog-tied Mr. Stewart, and stole a number of items of personal property. The house was then set on fire. Stewart died from burns and carbon monoxide poisoning. Following this incident, Rocco and Hansen immediately drove to Neil Shock's house, where they tied up Shock and stole personal property. This house also was set on fire. After Hansen and Rocco left in Shock's car, Shock untied himself and escaped from the burning house. The car was found later, destroyed by fire.
Hansen was charged with first degree murder under section 76-5-202(1)(d) of the Code, which is punishable by death or life imprisonment. 2 Specifically, the State contended that Hansen intentionally or knowingly killed Stewart during the commission of the felony of aggravated arson.
At trial, the State presented evidence tending to prove that during the episode, Hansen committed robbery and burglary, as well as arson. Hansen testified in his own behalf and admitted that he held a gun on Stewart and that he tied him up. Hansen also admitted that he stole property from Stewart. However, Hansen claimed that Stewart was tied up only to permit the successful completion of the burglary/robbery and that while he was searching the house for property, he became aware that Rocco had set it on fire, which led Hansen to panic and flee. He denied being an accomplice to the arson, being present when the fire was set, or sharing Rocco's intent or knowledge that Stewart would be killed as a result. His theory was that his intentional conduct only involved tying up Stewart during the course of the burglary/robbery and that the failure to untie Stewart, although the cause of Stewart's death, was a result of panic after discovery of the fire rather than an intent to kill Stewart.
At the conclusion of the evidence, the trial court instructed the jury on the charged offense of first degree murder--a knowing or intentional killing committed during the course of an aggravated arson. Consistent with Hansen's testimony about his participation in the crimes, the defense proposed a jury instruction on the lesser included offense of felony-murder, a second degree murder punishable by one to fifteen years in prison. U.C.A., 1953, § 76-3-203(2) (1978 ed., Supp.1986). 3 The proffered instruction laid out the statutory elements of felony-murder and wove these elements into Hansen's theory that he did not knowingly or intentionally kill Stewart, but was guilty only of an unintentional killing that occurred during the course of a robbery or burglary. 4
The proffered felony-murder instruction was refused on the grounds that Hansen was charged with an intentional killing in the course of an arson, not an unintentional killing in the course of a burglary or robbery, and that the requested instruction would add a new element--robbery or burglary--to the offense charged. Instead, the court gave two other lesser included offense instructions, one that did cover felony-murder, but was premised on an unintentional killing occurring during the course of an aggravated arson, and another on manslaughter, premised on an unintentional killing occurring as a result of a recklessly set fire. The court also gave two instructions to which Hansen took exception. The first described the circumstances under which one could avoid being convicted of a crime by withdrawing from the criminal undertaking. The second instruction described the criteria for holding one responsible as an accomplice for crimes committed by the principal.
The jury returned a verdict of guilty of first degree murder. During the penalty phase, the jury was unable to reach a unanimous verdict on the death penalty and Hansen was given a life sentence. Hansen now appeals.
Hansen's principal contention is that the trial court erred in not giving his requested lesser included offense instruction on felony-murder, which would have permitted the jury to find him guilty of an unintentional killing that occurred in the commission of robbery, aggravated robbery, burglary or aggravated burglary. Instructions on lesser included offenses are specifically provided for in section 76-1-402 of the Code:
(3) A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense. An offense is so included when:
(a) It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
(b) It constitutes an attempt, solicitation, conspiracy, or form of preparation to commit the offense charged or an offense otherwise included therein; or
(c) It is specifically designated by statute as a lesser included offense.
(4) The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
U.C.A., 1953, § 76-1-402 (1978 ed.).
In State v. Baker, 671 P.2d 152 (Utah 1983), this Court interpreted section 76-1-402(3), (4) and spelled out the standard for determining whether to instruct a jury on a lesser included offense. Baker requires that when a defendant requests such an instruction, it must be given if (i) the statutory elements of greater and lesser included offenses overlap to some degree, and (ii) the evidence provides a "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." 671 P.2d at 159, quoting § 76-1-402(4). 5
In defending the trial court's refusal to give the lesser included instruction, the State contends that the first element of the Baker test is not satisfied: there are no overlapping elements between a charge of an intentional killing committed in the commission of an aggravated arson, on the one hand, and a charge of an unintentional killing committed in the commission of aggravated robbery or burglary, on the other. This argument is without merit. It is true that burglary and arson, standing alone, may not have overlapping elements. It is also true that one charge involves an intentional killing, while the other, an unintentional killing. But the test is whether the elements overlap at all. Here, the killing itself is a common or overlapping element of each crime.
The second element of the Baker test also was satisfied: the evidence provided a rational basis for the jury to acquit on the first degree murder charge and convict on the requested second degree murder charge. On the facts before it, if the jury believed Hansen's testimony, it could rationally have found (i) that he was not guilty of arson and did not have the mental state required for first degree murder, but (ii) that Hansen did commit robbery or burglary, that Stewart was killed during the course of that crime, and that Hansen did not intend or know that Stewart's death would result. This would warrant a verdict of guilty on Hansen's requested felony-murder instruction. Since both elements of the Baker test were met, the lesser included offense instruction should have been given.
The requirements of Baker for the inclusion of a lesser included offense instruction requested by the defendant should be liberally construed. "Society has a legitimate interest in the jury's freedom to act according to the evidence." People v. Chamblis, 395 Mich. 408, 426, 236 N.W.2d 473, 482 (1975), quoted in People v. Geiger, 35 Cal.3d 510, 523, 199 Cal.Rptr. 45, 52, 674 P.2d 1303, 1310 (1984). Where the defendant requests an instruction of a lesser included or a related offense and where there is some rational basis in the evidence on which the jury could find as the defendant requests, the instruction must be given. State v. Crick, 675 P.2d 527, 538 (Utah 1983) (Stewart, J., dissenting). The rule of Baker is not a mere technical rule designed to trip up judges and prosecutors. It serves a fundamental policy of permitting the jury to find a defendant guilty of any offense that fits the facts, rather than forcing it to elect between the charges the prosecutor chooses to file and an acquittal. As we recognized in Baker, "[w]here one of the elements of the offense charged remains in doubt but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction." 671 P.2d at 157, quoting Keeble v. United States, 412 U.S. 205, 212-13, 93 S.Ct. 1993, 1994, 36 L.Ed.2d 844 (1973) (emphasis in original).
As an alternative argument in support of the trial court's refusal to give Hansen's requested felony-murder instruction, the State contends that even if the Baker test is met, Hansen was not entitled to any felony-murder instruction because Hansen could not be convicted of that crime. This argument is premised on the construction we gave section 76-5-203(1)(d) in State v. Norton, 675 P.2d 577 (Utah 1983).
Section 76-5-203 pro...
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