State v. Johnson
| Decision Date | 01 November 1991 |
| Docket Number | No. 900088,900088 |
| Citation | 821 P.2d 1150 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Peggy B. JOHNSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
R. Paul Van Dam, Charlene Barlow, Salt Lake City, for the State.
Ronald J. Yengich, Salt Lake City, for Johnson.
Defendant Peggy B. Johnson was charged with three separate counts of attempted first degree murder of her husband, Danny Johnson, and one count of distribution of a controlled substance for value. With respect to the attempted murder charges, count I charged an attempt to use heroin to cause her husband's death, and counts II and III charged attempts to use, respectively, amphetamines and oxalic acid to achieve the same end. Johnson was found guilty on all three counts and was also found guilty of distribution of a controlled substance for value. She was sentenced to three concurrent prison terms of five years to life. Johnson appeals from the three attempted murder convictions but does not appeal from the distribution conviction. We affirm the attempted first degree murder conviction on count I, based on the administration of heroin. We reverse the conviction on count III, based on the administration of oxalic acid, but find sufficient evidence to support a conviction of attempted second degree murder on that count. We reverse the conviction on count II, which is grounded on the administration of amphetamines.
On appeal, we view the record facts in a light most favorable to the jury's verdict, see, e.g., State v. Verde, 770 P.2d 116, 117 (Utah 1989); State v. Booker, 709 P.2d 342, 345 (Utah 1985), and we recite the facts accordingly.
Prior to her convictions, Peggy Johnson owned The Shack, a bar in Willard, Utah. She also worked as a bail bondswoman and a constable. In approximately 1982, Johnson met Cindy Orozco when she bailed Orozco out of the Box Elder County jail. Johnson and Orozco had various other contacts, at least one of which involved Johnson's bailing Orozco out of jail a second time. Orozco apparently never fully paid Johnson for her bail bond services.
In December 1987, Johnson contacted Orozco to talk about how Orozco could recover a guitar and stereo that Orozco's husband Richard (nicknamed Penny), had given Johnson as collateral for a bail bond. Later in December, Johnson met with Cindy and Penny Orozco. At trial, Cindy Orozco testified that during this meeting Johnson indicated a desire to "get rid of her husband" because they were having problems. Johnson asked the Orozcos if they knew of a drug on which a person could overdose.
Johnson again met with Cindy and Penny Orozco in early January 1988. Johnson told Cindy that Danny had been beating her, that he had a girlfriend, and that she was under a lot of stress. Johnson further explained that she did not want to divorce her husband because he would get half of her inheritance. Cindy testified that Johnson had concluded that the easiest way to get rid of Danny was to "overdose him." To that end, Johnson wanted the Orozcos to provide her with heroin. Cindy Orozco told Johnson that it would cost $300 to purchase enough heroin to cause an overdose. The Orozcos and Johnson then went to procure the drug. After dropping Penny and Johnson off at a bar, Cindy Orozco attempted to buy the heroin, but was unable to do so at the time. The Orozcos eventually used the $300 to purchase cocaine for their own use.
During the following week, after Cindy Orozco admitted to Johnson that she had used the $300 to purchase drugs for herself and Penny, Johnson continued to seek Cindy's assistance in obtaining drugs to administer to Danny Johnson. Although Cindy was somewhat hesitant, she agreed to provide Johnson with drugs after Johnson brought her daughter to the Orozcos' house and had her describe her father's abuse of her mother.
On or about January 21, 1988, Johnson gave Orozco an additional $450 to buy heroin. Orozco purchased the heroin and gave it to Johnson. Three days later, Orozco went to Johnson's house to borrow some money to purchase drugs for Penny. Johnson told Orozco that she could not lend her any money because Danny would get upset. During this conversation, Orozco testified that Johnson then told her that the "stuff [indicating the heroin] didn't work."
On January 27, 1988, Orozco met with Officer Marci Vaughn of the Ogden Police Department and offered to help "make a drug bust" in return for leniency on a theft charge. Officer Vaughn confronted Orozco with information she had learned from Orozco's parole officer concerning statements Orozco had made about Johnson's apparent attempt to kill her husband. Orozco then agreed to cooperate with Officer Steve Vojtecky of the Utah Division of Investigations in his investigation of the allegations against Johnson.
On January 28, 1988, at Officer Vojtecky's direction, Orozco telephoned Johnson at The Shack. Officers recorded the conversation. Johnson told Orozco that she had a "new idea" but she could not talk about it in her husband's presence. Later the same day, Orozco called Johnson at her home, but Johnson refused to talk about the "new idea" over the phone.
The next day, Orozco went to Johnson's house wearing a body microphone. Officer Vojtecky recorded the conversation from outside the house. During this conversation, Johnson asked if Orozco knew where to get some "crank"--a street name for methamphetamine. Johnson explained that she had seen a television program that indicated that a person could be killed by taking too much crank. Johnson then told Orozco that she had administered various other substances to her husband, all of which had failed to kill him. 1
After Orozco left the house, Vojtecky requested that she go back and ask Johnson for money to buy the crank and to explain how she intended to administer the drug. In response to Orozco's inquiry, Johnson replied that she planned to put it in capsules. In a telephone conversation the same day, Johnson agreed to meet Orozco at Orozco's house and to bring money for the crank. On January 30, 1988, Johnson arrived at the house and spoke with Orozco, who was once again wearing a body microphone, and Vojtecky, who was acting as Orozco's boyfriend. During this conversation, Johnson asked how she should administer the crank and inquired whether she could put it in her husband's coffee. Johnson explained that she planned to administer it to him in this manner one night when he came home. Vojtecky informed her that the crank would kill him and asked if that's what she wanted. Johnson replied, "This sounds horrible, but yes." Johnson then gave Vojtecky $500 to purchase the crank.
Also during this conversation, Johnson discussed her prior attempts to poison her husband. She told Vojtecky that she had already used most of a bottle of oxalic acid in her husband's capsules over the previous month and that he was still taking capsules containing oxalic acid everyday. She stated that she gave her husband an entire box of Decon in capsules which he had taken over a one-month period. She further explained how she had put the heroin in a capsule on January 21 and given it to her husband personally. She explained that none of these attempts had worked.
Later that evening, Vojtecky and Orozco met Johnson in Willard, Utah, and gave her some counterfeit crank made of brown sugar and flour. Vojtecky testified that Johnson appeared to put the counterfeit crank under her dashboard. When other officers stopped Johnson's car a short time later, however, they were unable to find any of the substance.
At trial, the State produced evidence that supported this version of the facts. Specifically, subsequent tests performed on the capsules that Danny ingested showed that they contained the same substance as the bottle in the Johnson home labeled "oxalic acid." Danny Johnson testified at trial that he had been taking the capsules for a month and that he had noticed stomach cramps, weakness, and a burning sensation in his throat on at least one occasion after taking a pill. Danny also testified that his wife had given him a capsule before he went to bed on the night of January 21, the same night, according to his wife's statement to the undercover officer, that she had put heroin in his capsules. He testified that he awoke at approximately 6 a.m. with stomach discomfort and dizziness. He also testified that he broke out in a cold sweat and that he vomited the morning after taking the capsules.
The jury returned a verdict of guilty on all three counts of attempted first degree murder. Each count alleged that Johnson attempted to cause the death of her husband through the administration of poison or a lethal substance or a substance in a lethal amount for the purpose of pecuniary or other personal gain. The jury also convicted Johnson on a fourth count, distribution of a controlled substance for value. After trial, Johnson retained new counsel, who immediately filed a motion for a new trial. The court denied the motion, and this appeal followed.
Johnson challenges her conviction on all three counts of attempted first degree murder, relying on two grounds. First, she contends that the evidence is insufficient to support a verdict of guilty. Second, she claims that statements she made to the Orozcos and the undercover investigators concerning the alleged crimes were admitted improperly because the State had failed first to show independent evidence of a corpus delicti. See State v. Weldon, 6 Utah 2d 372, 314 P.2d 353 (1957).
We first consider the insufficiency of the evidence claims as to each count. The appropriate standard of review is as follows:
In considering a claim of insufficiency of the evidence, ...
To continue reading
Request your trial
-
State v. Gardner
...murder, which also requires an intent to kill or a knowledge that one's acts would result in death if carried out, State v. Johnson, 821 P.2d 1150, 1156-57 (Utah 1991), arguably displays a more depraved mind and greater disposition toward violence than aggravated assault with the intentiona......
-
State v. Dunn
...While we may be able to force the facts here to fit the statute, as we have done on other occasions, see, e.g., State v. Johnson, 821 P.2d 1150, 1159-60 (Utah 1991); State v. Tuttle, 780 P.2d 1203, 1219 (Utah 1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990); Bolsin......
-
Tillman v. Cook
...of the evidence as to those offenses. 26. Neither side has cited to Griffin on this issue. Further, since Griffin is after State v. Johnson, 821 P.2d 1150 (Utah 1991) where the Utah court applied a somewhat different standard, and in Tillman I the Utah Supreme Court did not have the advanta......
-
People v. Chan
...of the inherent weaknesses of admissions made after the fact.' (29A Am.Jur.2d (1994) Evidence, § 764, p. 130; see also State v. Johnson (Utah 1991) 821 P.2d 1150, 1162, and cases cited therein.) The same rationale, and thus the same rule, applies to statements made during the commission of ......
-
Utah Standards of Appellate Review
...motion for new trial resuscitated defendant's right to assert issue on appeal), cert, denied, 114 S. Ct. 186 (1993); State v. Johnson, 821 P.2d 1150, 1161 (Utah 1991); State v. Matsamas, 808 P.2d 1048, 1053 (Utah 1991). Further, issues raised for the first time on appeal will be addressed i......
-
A critical analysis of objectivity in the legal sphere.
...State v. Jameson, 800 P.2d 798 (1990). State v. Jarrell, 608 P.2d 218 (1980). State v. Johns, 615 P.2d 1260 (1980). State v. Johnson, 821 P.2d 1150 (1991). State v. Jones, 823 P.2d 1059 (1991). State v. McCovey, 803 P.2d 1234 (1990). State v. Myers, 606 P.2d 250 (1980). State v. Pierre, 572......