State v. Johnson

Decision Date19 May 1989
Docket NumberNo. 870041,870041
Citation774 P.2d 1141
PartiesSTATE of Utah, Plaintiff and Appellee, v. Richard S. JOHNSON, Defendant and Appellant.
CourtUtah Supreme Court

Ronald W. Perkins, Deirdre A. Gorman, Ogden, for defendant and appellant.

R. Paul Van Dam, Kimberly K. Hornak, Salt Lake City, for plaintiff and appellee.

HALL, Chief Justice:

Defendant was convicted of first degree murder in violation of Utah Code Ann. § 76-5-202 (Supp.1988) and was sentenced to life imprisonment. On appeal, defendant challenges the admissibility of evidence of criminal conspiracy, the denial of his motion to dismiss the aggravating circumstance of pecuniary gain, the propriety of the instructions to the jury, the sufficiency of the evidence to convict, and the propriety of a statement made by the prosecutor in closing argument to the jury.

The body of the victim, Piti Srisa-Ad, was found in Weber County on May 16, 1986. Police investigation resulted in the arrest of James Smith. Smith initially implicated himself, Brad Bromage, and Lloyd Averett in Srisa-Ad's death and identified Averett and Bromage as the persons directly responsible for the murder. Subsequently, Smith admitted, and so testified at trial, that he had acted alone in killing Srisa-Ad, having been hired for that purpose by defendant.

In support of its theory of the case and over the objection of defendant on grounds of hearsay and relevance, the State was permitted to introduce evidence of a criminal conspiracy to sell cocaine. Scott Taren, one of the co-conspirators, testified that in November 1985, he, defendant, defendant's brother (Randy Johnson), and Brook Evertsen met together at a hotel for the purpose of setting up a cocaine distribution business. Taren was to keep the records; Evertsen was to finance the business; the victim, Srisa-Ad, was to supply the cocaine; and defendant and Randy Johnson were to handle distribution and sales. Pursuant to this arrangement, Randy Johnson distributed cocaine for several months to various persons, including himself.

In January 1986, defendant purchased from Evertsen a $100,000 insurance policy on the victim's life, representing his insurable interest to be that of the victim's employer. Subsequently, the policy amount was increased to $200,000.

The victim became indebted to defendant in the amount of $30,000, that sum having been given to Srisa-Ad for the purchase of cocaine, which he subsequently failed to supply. Defendant became concerned that the victim intended to terminate his supply of cocaine. He also suspected that the victim had become a narcotics agent. Therefore, defendant offered Bromage $10,000, a quarter pound of cocaine, and employment in his business if Bromage would kill Srisa-Ad. He also offered Averett $6,000, a quarter pound of cocaine, and a Corvette automobile if Averett would kill Srisa-Ad. When neither Averett nor Bromage agreed to kill Srisa-Ad, defendant offered James Smith $3,000, a quarter pound of cocaine, a new house, a customized Corvette automobile, and a part of his business if Smith would commit the murder. This latter offer was coupled with defendant's threat to kill Smith's family if Smith refused to kill Srisa-Ad by May 16, 1986.

On the night of May 15, 1986, Smith, Srisa-Ad, and others were smoking marijuana at a private dwelling. On the pretext that he knew where cocaine could be purchased, Smith enticed Srisa-Ad to accompany him in Smith's automobile to make the purchase. While stopped at a stop sign and while Srisa-Ad was looking away, Smith shot Srisa-Ad in the head and killed him. He then dumped the victim's body.

I

Defendant presents a twofold challenge to the admissibility of the evidence of a criminal conspiracy to sell drugs. He contends that the evidence was irrelevant and that it was inadmissible hearsay in the absence of independent evidence of a criminal conspiracy. We are not persuaded.

First, as to the hearsay issue, as was explained in State v. Gray, 1 Utah Rule of Evidence 801(d)(2)(E) defines out-of-court statements of a co-conspirator as nonhearsay if the statements are offered against a party to the conspiracy and if the statements were made during the course of and in furtherance of the conspiracy. 2 However, the criminal conspiracy and the defendant's participation therein need be established by independent proof and by a preponderance of the evidence. 3

Evidence of a criminal conspiracy which consists of the testimony of witnesses who recount their own personal observations and experiences in relation thereto is of course admissible as the required independent proof of a conspiracy. 4 Also admissible are the defendant's own statements of his involvement in the conspiracy, as well as his actions relating thereto. 5

In this case, there was substantial admissible evidence of a conspiracy to sell drugs. The testimony of several witnesses recounted their personal observations and experiences pertaining to the drug-selling operation. Scott Taren, one of the co-conspirators, testified about the meeting during which he participated with defendant, Randy Johnson, and Evertsen in setting up the drug business. John Montoya testified about the deliveries of cocaine he received from defendant, Randy Johnson, Srisa-Ad, and Scott Taren. Randy Johnson testified that he and Srisa-Ad persuaded defendant to give them money to start the drug business and that defendant gave Randy Johnson $5,000 to buy cocaine. In addition, defendant himself testified about his involvement in the conspiracy to sell cocaine. Such evidence, together with the fact that in claiming prejudice, defendant does not contest on appeal the admission of any specific statements of an "out-of-court nature," 6 supports the determination that defendant's claim is without merit.

As to defendant's challenge to the evidence on the grounds of relevancy, we likewise conclude that the evidence of the drug-selling conspiracy was indeed relevant and therefore admissible as such to establish defendant's motive for murder. Srisa-Ad was the conspirator who had the necessary drug connection to supply the cocaine, his co-conspirators furnished him the money with which to purchase the same, and he became indebted to defendant for a large sum of money given to him for the purchase of cocaine, which he subsequently failed to deliver. Defendant suspected that Srisa-Ad intended to cut off the supply of cocaine to him and that Srisa-Ad might have become a narcotics agent. Defendant also purchased a double-indemnity insurance policy on the life of Srisa-Ad, which policy listed defendant as the beneficiary. Inasmuch as evidence of the conspiracy was relevant to support the above, defendant's claim is without merit.

II

The information charged defendant with first degree murder in the manner following:

Said defendant intentionally or knowingly caused the death of Piti Srisa-Ad under the following circumstances:

(a) The defendant committed, or engaged or employed another person to commit the homicide pursuant to an agreement or contract for remuneration or the promise of remuneration for commission of the homicide. [Utah Code Ann. § 76-5-202(1)(g) (Supp.1988).]

(b) The homicide was committed for pecuniary or other personal gain. [Utah Code Ann. § 76-5-202(1)(f) (Supp.1988).]

At the close of the State's case, defendant moved to dismiss the allegation that the homicide was committed under subsection (b) above. As the basis for his motion, defendant asserted that the State had not made a showing that he had in fact intentionally or knowingly caused the death of Srisa-Ad for pecuniary or other personal gain. The trial court denied the motion, stating, "The evidence at this point would support a finding that the defendant hired somebody to cause the death of the victim for pecuniary gain, being to collect the insurance."

On appeal, defendant claims that the court erred in not dismissing the charged "personal gain" circumstance since his mens rea in committing the crime was different from that of James Smith and because a determination of guilt based thereon could only be accomplished under an accomplice theory, upon which theory the State never requested the jury to be instructed. We disagree.

First, as we have repeatedly stated, "A general rule of appellate review in criminal cases in Utah is that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal." 7 Importantly, the grounds for the objection must be distinctly and specifically stated. 8 Here, although defendant made a general motion to the trial court to dismiss the "personal gain" circumstance charged, the grounds he now raises on appeal were not specifically or distinctly stated to the court below. Thus, under the standard noted, they were not preserved for our review.

Second, we likewise need not address defendant's claims of error in this regard since the jury unanimously found that defendant was guilty of Srisa-Ad's murder under an additional charged circumstance which defendant has not challenged on appeal.

Indeed, in addition to finding defendant guilty of first degree murder committed for defendant's pecuniary or other personal gain, 9 the jury based its finding of guilt on a determination that "defendant engaged or employed another person to commit the homicide pursuant to an agreement or contract for remuneration or the promise of remuneration for commission of the homicide." 10 The record supports this determination and upholds defendant's conviction on appeal.

Finally, under Utah Code Ann. § 76-5-202 (Supp.1988), criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another for the defendant's pecuniary or other personal gain. Utah Code Ann. § 76-2-103 (1978) states in pertinent part that a person engages in conduct:

(1) Intentionally, or with intent...

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