State v. Jarrell
| Decision Date | 19 February 1980 |
| Docket Number | No. 15829,15829 |
| Citation | 608 P.2d 218 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Daniel Craig JARRELL, Defendant and Appellant. |
| Court | Utah Supreme Court |
John D. O'Connell, Salt Lake City, for defendant and appellant.
Robert B. Hansen, Atty. Gen., Craig L. Barlow, Asst. Atty. Gen., Theodore L. Cannon, Salt Lake County Atty., Salt Lake City, for plaintiff and respondent.
Defendant, Daniel Craig Jarrell, was convicted by a jury of attempted criminal homicide pursuant to § 76-5-201 U.C.A. (1953), as amended, a felony in the first degree. On appeal the defendant contends that the prosecution illegally suppressed certain evidence, that the cross-examination of the defendant was unfair and prejudicial in that it permitted inquiry into certain violent activities committed by the defendant at an earlier time, and that defendant's cross-examination of an expert witness was improperly curtailed. We affirm.
This case involves an unusual set of facts, characterized by both the prosecution and the defense as bizarre. To properly understand the nature and resolution of the legal issues, it is necessary to recite the facts in some depth.
On July 19, 1977, Caprice Bernson, a freshman at the University of Utah, drove to the Z.C.M.I. shopping mall in downtown Salt Lake City. She arrived there and parked the car she was driving on the fourth level in the mall parking garage at about 3:30 p. m. She went into the mall to do some shopping and returned around 5:00 p. m. As she was pulling out of her parking stall and proceeding to leave the garage, a man she identified as the defendant called to her and pointed out that she had a flat tire.
The defendant, a commercial airline pilot, was in Salt Lake City on business and to attend to some horses belonging to him which were stabled there. At about 4:00 p. m. the defendant drove to the Z.C.M.I. mall in a car he had rented earlier in the day. He parked it on the fourth level of the parking terrace and went to a previously-arranged meeting with a bank vice-president. Finding that the gentleman was not there, the defendant went to one of the department stores in the mall and purchased some supplies for his horses.
He returned to his rented automobile, inspected his purchases and tossed them into the back seat. He then opened the trunk of his car to get some letters from his briefcase. The defendant testified that he laid the briefcase on the floor of the trunk, took the letters from it, and shut the trunk lid, inadvertently locking the keys in the trunk. He was attempting to open the trunk with another set of keys when Ms. Bernson drove by with her flat tire.
After the defendant pointed out to Ms. Bernson the fact that she had a flat tire, Ms. Bernson pulled into the stall next to the defendant's rented car and remarked that she did not know how to change a tire. Defendant told her that he had locked his keys in the trunk and asked if he could try her car keys in his trunk lock. Ms. Bernson's keys failed to open the lock.
The defendant then offered to change Ms. Bernson's tire. Ms. Bernson opened the trunk of her car and pulled the spare tire down into the bed of the trunk. She noticed nothing unusual about the spare at this time. The defendant removed the tire from the trunk and began the tire-changing process. Ms. Bernson offered to call the car rental company from whom defendant rented his car to see if she could obtain a key for him. She went into the mall to make the phone call and was informed by the car rental company representative that she needed to tell him the license number.
As she returned to her car, she observed that the trunk of the defendant's car had been pried open and that the defendant was jumping up and down on her spare tire. Ms. Bernson could hear air escaping rapidly from the tire as she approached it. At trial, expert testimony was admitted to the effect that both the left front tire and the spare tire of Ms. Bernson's car had been punctured by an object that pierced the tires and came back out. One expert witness opined that both the tires had been purposefully punctured with the same object.
The defendant tried the spare tire on the left front wheel, but it did not have enough air in it to function adequately. The spare tire from the defendant's rented car was also tried without success. During the course of these tire changes, Ms. Bernson and the defendant conversed about their respective occupations and backgrounds. Ms. Bernson testified that this conversation did not alarm her or make her suspicious of the defendant.
Because neither spare tire worked, Ms. Bernson decided to call her parents. The defendant told her that it was unwise to leave her car jacked up with no tire on the wheel, and he lifted the tire onto the car for her. She squatted down to place the lug nuts on, with defendant standing immediately behind her. It is at this point that the two versions of the events that took place diverge.
According to Ms. Bernson, during the following few minutes the defendant remained near her, and they continued to converse while she was working with the lug nuts. Then, without warning, Ms. Bernson was struck on her head and fell to the ground. She was knocked prone and remembered looking underneath her car. She also remembered that she lay there for a "few seconds" and then managed to raise herself to her hands and knees, looked over her shoulder, and observed the defendant with the tire iron cocked over his shoulder with "an evil look on his face . . . like he was out to kill." He swung the tire iron at her, but Ms. Bernson swayed out of its path. The blow missed her head, but struck her hand on the pavement, almost severing her middle finger. She scrambled to her feet and ran to the elevator. As she hid behind a wall near the elevator, she heard a car "screech" away. She then made her way to the mall and received medical attention there.
The defendant's version is that as Ms. Bernson began to replace the lug nuts, he walked towards the mall to make a phone call. After walking about 30 feet, he turned back to ask her if she needed any help when a tall, blonde man placed a gun at his back. At trial the defendant said that he could not observe the gunman or the gun clearly, although the prosecution introduced rebuttal testimony that at an earlier interview defendant had unhesitatingly identified the gun as a .38 snub-nosed revolver. Then the gunman allegedly ordered him back to his car. As they approached the space between the two vehicles, Ms. Bernson became visible. The distance between the two cars was about three and one-half feet, with defendant only about two feet from Ms. Bernson. Despite the close proximity, Ms. Bernson did not hear a third person or any of the commotion that allegedly ensued.
According to the defendant, the gunman pushed the defendant forward with his right hand, the same hand in which he was holding the gun, and apparently simultaneously struck Ms. Bernson with something in his left hand which the defendant thought could have been the tire iron they had been using to change the tires. As she attempted to get to her feet, the gunman again pushed the defendant with his right hand and simultaneously struck Ms. Bernson. Then she managed to get to her feet and run away.
The defendant testified that as Ms. Bernson ran from the area, the gunman ordered him to get in his car and drive away. Defendant got behind the wheel of his rented automobile, and the gunman allegedly got in the back seat. The defendant exited the mall parking terrace and drove east on South Temple Street. A prosecution rebuttal witness, Barbara Plewe, testified that her car was struck in the rear as she was leaving the parking terrace on the 19th of July between 5:30 and 6:00 p. m. She saw the car that hit her pull out and pass on her left just inside the exit of the parking terrace. As the car passed her, she observed its color, the license plate number, and that it had some damage to the trunk area. She followed that car onto South Temple Street for some distance in order to make sure that she had correctly observed the license number. From the time the car left the parking terrace until she was no longer able to follow it after it turned left on "A" Street, Ms. Plewe did not observe anyone in the car except the driver.
The defendant said he drove toward the northeast "avenues" area of Salt Lake City and then was ordered by the gunman to pull over. There, he allegedly stopped the car, jumped out and ran, leaving the car with its engine still running. The defendant then ran back to the mall and reported the incident. The gunman did not rob him despite the fact that defendant was carrying over a thousand dollars in cash. The vehicle was later found at the same location by the police. All of its windows were rolled up and its doors locked. The back seat area did not appear to have been disturbed. A "flat," "new" piece of paper was found on the rear floorboard where the gunman allegedly had entered.
After Ms. Bernson received first aid at the mall, she was taken to the emergency room at LDS Hospital where she was examined at about 6:10 p. m. The physician who treated her, Dr. Peter Midgley, testified that she had received two blows to the head one behind the left ear and one to the top of the head and one blow that almost severed the middle finger of the right hand. The blows to her head had been delivered with a great deal of force but were not fatal because they were glancing blows, striking her skull at an angle rather than perpendicularly. She was thoroughly examined and exhibited no signs of skull fracture or concussion. She appeared to Dr. Midgley as "well oriented," "alert," and "lucid."
At trial, during direct examination of the defendant, defense counsel (not the same lawyer who represented the defendant on appeal) asked several questions regarding the nature and extent of defendant's involvement in the ...
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