State v. Honie, 990497.

• Decision Date: 11 January 2002
• Docket Number: No. 990497.,990497.
• Citation: 57 P.3d 977,2002 UT 4
• Parties: STATE of Utah, Plaintiff and Appellee, v. Taberone Dave HONIE, Defendant and Appellant.
• Court: Utah Supreme Court

57 P.3d 977

2002 UT 4

STATE of Utah, Plaintiff and Appellee, v. Taberone Dave HONIE, Defendant and Appellant.

No. 990497.

Supreme Court of Utah.

January 11, 2002.

Mark L. Shurtleff, Att'y. Gen., Kris C. Leonard, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Stephen R. McCaughey, Salt Lake City, for defendant.

WILKINS, Justice.

¶ 1 Defendant Taberone Dave Honie was convicted of aggravated murder, in violation of section 76-5-202 of the Utah Code, and sentenced to death. On appeal, he challenges the constitutionality of Utah's aggravated murder statute, the sufficiency of the evidence introduced at trial to support his conviction, and the trial judge's weighing of the aggravating and mitigating factors in sentencing him to death. Defendant also asks for a proportionality review and requests that a de novo standard of review be applied to all death penalty cases. We affirm the judgment and sentence of the district court.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 2 "In reviewing a jury verdict, we view the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict. We recite the facts accordingly." State v. Boyd, 2001 UT 30, ¶ 2, 25 P.3d 985 (internal quotations and citations omitted).

¶ 3 On July 9, 1998, defendant Taberone Dave Honie killed Claudia Benn. Between approximately 8:00 and 8:30 p.m. on July 9, defendant telephoned Carol Pikyavit—the mother of defendant's child, T.H., and the daughter of the victim, Claudia Benn. Defendant was intoxicated and asked Carol to join him at the home of his girlfriend at the time, Shilo John. Carol refused and told defendant she was going to work. Defendant responded by threatening to kill Carol's mother, Claudia, and the children of Carol's sister, Benita. He also threatened to take T.H. from Carol. Carol discounted defendant's threats because he had threatened her life before. Defendant called twice more before Carol left for work at 10:30 p.m., and the caller identification system recorded one more phone call from Shilo John's residence after Carol left for work. Carol left T.H., and Benita left her two children, D.R. and T.R., with Claudia that evening when they went to work. The children were dressed and ready for bed when they left.

¶ 4 Later that evening, around 11:20 p.m., a cab driver picked up defendant. Although defendant was intoxicated, he directed the cab driver to an apartment complex near the victim's neighborhood where he got out.

¶ 5 Later on, at approximately 12:20 a.m., several police officers arrived at the victim's home in response to a 911 call from a neighbor. Upon arrival, the officers discovered that a sliding glass door in the rear of the house had been broken by a rock, with the glass substantially removed to permit access to the house. The police ordered the occupants inside the house outside, and the defendant was encountered exiting the house through the garage. Defendant was covered in blood and stated to the officers that he killed the victim by stabbing her with a knife. Defendant was arrested, and the officers inspected the house.

¶ 6 Inside the house police officers discovered the victim's body partially nude, lying face down in the living room. A telephone was in her left hand and a large bloodstained kitchen knife was lying near her head. Blood had pooled on the carpeted floor underneath her neck, and blood was located on her exposed buttocks, on her lower body, and on the floor near her. One bite mark was identified on the victim's left arm. Drops of blood were found throughout the house: on the kitchen floor, on kitchen drawers, on the bathroom floor, in the bathroom sink, and on the walls near the bathroom and where the body was found. Blood was also smeared on closet doors.

¶ 7 One of the officers found the three children inside the house. Two of the three children had some blood on them, and the other child, D.R., was covered with blood. Further, D.R. was found wearing only a t-shirt; she was not wearing the panties she was wearing when her mother left for work. D.R.'s panties were recovered, and blood found on them was eventually determined to be D.R.'s. D.R. was given new panties the night of the murder, but she continued to bleed into the new panties. At trial, expert testimony indicated that the source of the bleeding, abrasions to her genital area, was consistent with rubbing or fondling, and not likely accidental. Following the trial, during the sentencing proceeding, defendant's expert witness, Dr. Nancy Cohn, testified that defendant admitted to her that he sexually molested D.R. by digitally penetrating her.

¶ 8 The postmortem examination of the victim's body revealed that defendant brutally slit the victim's throat. Defendant had cut the victim's neck from ear to ear. Four "start marks" on her neck ran together into a deep cut from the front of the neck through to the backbone in the back of the neck. Three deep cuts into the backbone were identified.

¶ 9 Defendant also mutilated the victim's lower body, stabbing and cutting her multiple times both in and around the vagina and anus. Defendant stabbed the victim in the vagina at least three times. The external surfaces of the anus were cut, but the deeper penetrating injuries were in the vagina, including two wounds that went through the vagina and into the pelvic cavity in her abdomen. Defendant also severed the perineum, the band of tissue between the back wall of the vagina and the front wall of the anus. The medical examiner who performed the autopsy testified that the victim could have been sexually violated prior to death, but she could not testify for certain, however, whether the injuries to the victim's vagina and anus were inflicted before or after the injuries to the neck, or whether the vaginal and anal injuries occurred prior to or after death. While minimal compared to the above injuries, the victim's scalp, mouth, and buttocks were also bruised.

¶ 10 Over the course of three interviews with law enforcement officers on the morning of July 10, defendant admitted he had argued with the victim, yelling through the sliding glass door. Defendant confessed to using a rock to break the door and enter the house. Further, defendant told officers that he attempted to penetrate the victim's anus with his penis.

¶ 11 Defendant was charged with aggravated murder, in violation of section 76-5-202 of the Utah Code,¹ and convicted of the same by a jury. Defendant waived his right to a jury at the sentencing phase and was sentenced to death by the trial judge.

¶ 12 During the sentencing phase, both the defendant and the State presented testimony. Evidence was presented regarding, among other things, the crime itself, defendant's character, background, history, mental and physical condition, the victim, and the impact on the victim's family and community. The trial judge entered a written Statement of Conviction and Judgment of Death, outlining the evidence he received and weighed.

ANALYSIS

I. STANDARD OF REVIEW

¶ 13 Defendant proposes that all issues on appeal in death penalty cases be reviewed de novo, particularly the sufficiency of the evidence issue. The State argues that because none of the issues raised by defendant on appeal were adequately raised before the district court and preserved for appeal, they are subject to review under the manifest and prejudicial error standard.

¶ 14 We decline to adopt defendant's suggestion to review all issues in death penalty cases de novo simply because the sentence is death. Our judicial system is structured so that appellate courts review decisions of lower courts; it is not geared toward appellate review as a second trial. Appellate courts are not suited to reviewing particular issues de novo. See, e.g., State v. Peña, 869 P.2d 932, 935-40 (Utah 1994) (discussing why factual issues require the deferential clearly erroneous standard of review and why some mixed questions of law and fact require that some measure of deference be given to the trial court).

¶ 15 Only one of the issues raised on appeal was properly presented to the trial court and thereby preserved for appeal.² As a general rule, in order for an appellate court to review contentions of error on appeal, the errors must be objected to or be preserved in the trial court record. In death penalty cases, however, due to the nature of the penalty, we have recognized an exception to the general rule. In State v. Wood, this Court articulated the exception as follows: "On direct appeal in capital cases, it is the established rule that this Court will review an error, even though no proper objection was made at trial and even though the error was not raised on appeal, if the error was manifest and prejudicial." 648 P.2d 71, 77 (Utah 1982). Since Wood we have continued to adhere to this rule. See, e.g., State v. Lafferty, 2001 UT 19, ¶ 96, 20 P.3d 342; State v. Tillman, 750 P.2d 546, 552 (Utah 1987) ("Tillman I"). Because this is a death penalty case, we review the issues not raised below for manifest and prejudicial error.

¶ 16 We further note, however, that while we review under this manifest and prejudicial error standard, we do not abrogate defendant's obligation or assume the role of an advocate by searching the entire record for each and every indication of possible or potential error. Lafferty, 2001 UT at ¶ 96, 20 P.3d 342 (citing Tillman I, 750 P.2d at 552). To do so would result in an impossible and inappropriate burden on this Court. Id. Indeed, "neither Wood nor its progenitors support the contention that this Court will review the entire record for error, whether or not preserved at trial or assigned on appeal." Rather, our precedent upholds the well-established proposition that "we have the sua sponte prerogative in [death penalty] cases to notice, consider, and correct manifest and prejudicial error which is not objected to at trial or assigned on appeal, but is palpably apparent on the face of the...