State v. Howell

Decision Date30 June 1982
Docket NumberNo. 17407,17407
Citation649 P.2d 91
PartiesSTATE of Utah, Plaintiff and Respondent, v. Luckie John HOWELL, Defendant and Appellant.
CourtUtah Supreme Court

Gary L. Gale, Ogden, for defendant and appellant.

Robert B. Hansen, Atty. Gen., Robert H. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.

STEWART, Justice:

Defendant was charged with first and second degree murder and attempted murder. He was convicted of manslaughter and attempted manslaughter. On this appeal he contends: (1) there is no crime of attempted manslaughter; (2) the trial court should not have instructed the jury on the crimes of manslaughter and attempted manslaughter because they were not charged in the information; (3) the trial court erred in excluding evidence of the turbulent character of the deceased and the lack of veracity of one of the State's witnesses; and (4) the evidence was insufficient to support the convictions.

On conflicting evidence, we are obliged to accept that version of the facts which supports the verdict. State v. Coffey, Utah, 564 P.2d 777 (1977); State v. Howard, Utah, 544 P.2d 466 (1975). Although the defendant recites a version of the facts which, if believed, would support a defense of self-defense to the murder charges, the record also supports the following version, which the jury apparently believed: On June 28, 1980, defendant and his companion, David Johnson, went to Pineview Dam where they encountered Bill Pledger, a member of the Sundowners motorcycle club. Defendant behaved in a loud and belligerent manner, and appeared inebriated. Pledger walked away after defendant made disparaging remarks to him about the Sundowners, with specific reference to a stabbing he had previously suffered at the hands of the Sundowners. Later that day, defendant purchased beer and gathered with others at a house in Ogden for a party. Pledger was also present. He and the defendant became engaged in an altercation. Pledger hit defendant with his fists and kicked him several times with steel-toed boots. Defendant, upon leaving the party with Johnson, told Pledger "I will get you." Defendant then obtained a gun at his mother's home and told Johnson, "If they want a war, I will give them war." Later that evening, with his gun in his belt, defendant returned to the Ogden residence. He stated that his purpose was to retrieve a pair of sunglasses he had lost while fighting with Pledger.

In response to a warning from Johnson that defendant was coming back to the residence with a gun, at least four people left the house, and the remaining five turned off most of the lights and brought the only remaining vehicle, a motorcycle, into the house to make it appear that no one was home. Defendant entered the house without knocking and went directly to the dining room. Travis Powell, Bryan Wiltfang, and John Irwin followed him into that room. Bill Pledger was no longer present.

As defendant bent over to pick up his glasses from the dining room table, Powell, wearing heavy boots, attempted to kick defendant in the head. The evidence is conflicting as to exactly what occurred, but a scuffle ensued during which defendant killed Powell by firing a shot from his .357 magnum pistol into Powell's head. Some evidence indicated that Powell was facing defendant at the time of the shooting, but other evidence indicated that Powell was on defendant's back and that defendant reached back over his shoulder and fired the gun without aiming it. Immediately after Powell was shot, John Irwin swung his fist at defendant, and defendant then fired one additional shot, wounding Irwin in his hand and abdomen. Irwin survived the wounds. He testified that defendant had stated, "I should shoot all of you," and, "I will kill everybody."


The first issue is whether there is a crime of attempted manslaughter under Utah law. Utah Code Ann., 1953, § 76-5-205(1) defines manslaughter as follows:

(1) Criminal homicide constitutes manslaughter if the actor:

(a) Recklessly causes the death of another; or

(b) Causes the death of another under the influence of extreme mental or emotional disturbance for which there is a reasonable explanation or excuse;

(c) Causes the death of another under circumstances where the actor reasonably believes the circumstances provide a moral or legal justification or extenuation for his conduct although the conduct is not legally justifiable or excusable under the existing circumstances.

Utah Code Ann. § 76-4-101 defines an attempt as follows:

(1) For purposes of this part, a person is guilty of an attempt to commit a crime if, acting with the kind of culpability otherwise required for the commission of the offense, he engages in conduct constituting a substantial step toward commission of the offense.

(2) For purposes of this part, conduct does not constitute a substantial step unless it is strongly corroborative of the actor's intent to commit the offense.

This Court has not previously addressed the precise issue of whether there is a crime of attempted manslaughter based on § 76-5-205(1)(c), although we have addressed that issue under subparagraph (b) of § 76-5-205(1). In State v. Norman, Utah, 580 P.2d 237 (1978), we held that because intent is the necessary mens rea under subparagraph (b), an attempt to commit a killing under the circumstances described in that paragraph constituted a crime. The conduct proscribed in subparagraph (c) of § 76-5-205(1) is also intentional, even though a defendant may reasonably believe that there is a moral or legal justification for the killing. Thus, both subparagraphs (b) and (c) define crimes which require intentional conduct, unlike subparagraph (a), which requires only recklessness. The ruling in Norman therefore necessarily applies to subparagraph (c), even though that type of manslaughter requires that the killing be based on the defendant's belief of a moral or legal justification. Accordingly, we reject defendant's contention that there is no crime of attempted manslaughter under § 76-5-205(1)(c). 1


Defendant contends that the trial court erred in instructing, over his objection, that the jury could return verdicts on the lesser included offenses of manslaughter and attempted manslaughter. The argument is that the State must stand on the formal charges alleged in the information and that a defendant may only be tried on those crimes formally charged if the defendant wishes to hold the State to those charges-in this case first and second degree murder and attempted murder. Believing that he had a valid defense of self-defense to those charges, defendant objected to the giving of the lesser included offense instructions.

Usually issues concerning lesser included offenses arise by way of a defendant's contention that the trial court erred in not giving him the benefit of an instruction on a crime claimed to be a lesser included offense. However, on occasion, an accused may choose not to request instructions on lesser included offenses as a matter of trial strategy, usually in the belief that he can defeat the greater charge, but might not be able to defeat a lesser included offense. See State v. Mora, Utah, 558 P.2d 1335 (1977); State v. Gellatly, 22 Utah 2d 149, 449 P.2d 993 (1969). Indeed, a defendant for that reason may even oppose instructions on lesser included offenses, as in the case here, in the hope of escaping all criminal liability.

If one were to view a trial as a strictly adversarial contest or combat between two parties, one could argue that a defendant should have the right to win or lose solely on the basis of what the prosecution has charged. However, a criminal trial is much more than just a contest between the State and an individual which is determined by strategies appropriate to determining the outcome of a game. A primary purpose of a criminal trial is the vindication of the laws of a civilized society against those who are guilty of transgressing those laws. The process, however, must be based on procedures which are consonant with fairness both to the defendant and the State.

It is at best hazardous to predict just what the evidence at a trial will be. Every judge and every lawyer knows that witnesses' testimony may, for a variety of reasons, be different than expected, or partially or even wholly undermined on cross-examination or indeed not admitted at all for a variety of reasons.

However, when evidence of a defendant's criminal conduct has been placed before a court of justice, even though that conduct has not been specifically charged, it would be a mockery of our criminal laws for a court to ignore a proved crime and acquit on the charged crime, when the defendant is not prejudiced in presenting a full and complete defense to the proved crime. Thus, if the state fails to make out every single element of the crime charged, but nonetheless proves a lesser included crime, every element of which defendant necessarily had to defend against anyway, it would be a travesty to acquit the defendant because the lesser included crime was not charged in the information.

We are not unmindful that there is a direct and significant relationship between the crimes the State charges and the ability of the defendant to defend himself. Due process requires that a defendant have adequate notice of the charges against him and sufficient time to prepare his defenses. Necessarily, the defendant gears his defenses to the allegations of the information and the bill of particulars. It is obviously impossible to defend adequately against charges which are not specified until the moment of instructing the jury, unless the charge is a lesser and clearly included offense. Under the Utah definition of a lesser included offense, 2 there can be no unfairness to the defendant in giving a lesser included offense instruction because of lack of notice or preparation since no element may be included in the lesser offense that is not included in the...

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