State v. Johnson, 11943
| Decision Date | 08 October 1970 |
| Docket Number | No. 11943,11943 |
| Citation | 25 Utah 2d 46,475 P.2d 543 |
| Parties | d 46 STATE of Utah, Plaintiff and Respondent, v. Douglas JOHNSON, Defendant and Appellant. |
| Court | Utah Supreme Court |
Ronald N. Boyce, Salt Lake City, for defendant and appellant.
Vernon B. Romney, Atty. Gen., Lauren N. Beasley, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Defendant Douglas Johnson was convicted by a jury of first-degree murder for the shooting of his former wife, Gwendolyn Johnson, on the street in Tooele, Utah, at noon on March 25, 1969. The jury recommended leniency and he was sentenced to life in the Utah State Prison. 1
In attempting to overturn his conviction, defendant complains of three matters which he contends deprived him of a fair trial: (a) that the jury selection procedure resulted in an exclusion of married women; (b) the admission of colored photographs; and (c) an instruction given concerning defendant's plea of insanity.
Defendant and the deceased had been married in Kentucky in 1959 when she was 14 and he was 23. As brought out in the trial there had been a great deal of strife and violence between them during their marriage. Among other things, he said that their difficulties and quarreling were such that his wife complained so much to his superior officers in the army that he was demoted from his rank; and he went A.W.O.L. in order to take her back to Kentucky. Consequently he was given an 'undesirable discharge.' As a result of quarreling over who should care for the couple's two children, during the year 1963 she had stabbed him with a knife so that he had to be hospitalized. He had filed for a divorce which was dropped. She left him in May 1968. When he tried to force her to return with the children, he was charged with an offense he called 'Detaining a Female Against Her Will.' He claims the charge was 'cooked up' by his wife and her grandmother; and that he pleaded guilty for the sake of the children. While he was in jail for that offense, he was served with divorce papers and an interlocutory decree was entered in July 1968. Gwendolyn Johnson came to Utah, where she went to stay with a half brother in Tooele. The defendant says that when he was released from prison in February 1969, he did not know there was a final divorce; that he contacted Gwendolyn by phone and urged her to come back to Kentucky. He avers that she said that she 'would think it over.'
The defendant bought a 38-caliber pistol and ammunition and came to Salt Lake City by bus, arriving in the early morning hours of March 25, 1969. He rented a car and drove to Tooele, where, after some preliminary inquiry, he decided to wait outside Darrell's Beauty College on Main Street, where his wife was working, for her to come out. About noon she came out, got in a car with two men and was hugging and kissing the man at the wheel. After a few minutes, when Gwendolyn got out of the car, defendant says he tried to approach and talk to her, but she began to run and scream. His story continues: that the next thing he remembers is that 'This pistol was in my hand and I was firing.' The evidence is that he chased her around the car, firing five shots, three of which struck her, resulting in her death. He ran and jumped in the rented car and drove toward Salt Lake City. He was apprehended and arrested enroute, with the reloaded gun in his possession.
The foregoing narrative, told largely by the defendant, when he knew the lips of his ex-wife were sealed, could have been regarded by the jury as having a hollow sound. They were not obliged to believe it whole-cloth. 2 There is a basis therein upon which they well could have thought that he was unjustly blaming his wife for their troubles; that he armed himself with a gun and came to Utah for the purpose of dealing with, and perhaps of killing her, which purpose he proceeded to carry out, except that after all of the blame put upon her in justification for what he would do, he contends that the final act was done in such a frenzy that he does not recall the detail thereof. Yet he seemed to have sufficient presence of mind to attempt to escape until apprehended by the officers.
Defendant's first argument is that he was in some manner prejudiced by an exclusion of married women from the jury because there were only six of them in the list of 50 jurors. The selection of juries is governed by statutes. The pertinent sections of our code (U.C.A.1953) are: Sec. 78--46--14 provides for a jury commission to select persons 'of good repute for intelligence and honesty' and to 'endeavor to promote only the impartial administration of justice,' and further, in Sec. 17, to select the names from 'legal voters on the assessment roll of the county.' Sec. 59--8--1 provides for the keeping of an 'assessment roll' which is the book in which the 'valuation of all property' is recorded. Sec. 59--3--1 states that 'property is to include personal property.' It is thus properly concluded that the selections should be from the assessment roll of both real and personal property owners. 3
The method of selection of juries as set forth in our statutes has from time immemorial provided a practical, convenient and satisfactory means of selecting jurors in accordance with the desideratum, and the mandate of our law, '* * * to promote only the impartial administration of justice'; 4 and certainly is neither designed nor has the effect of the exclusion of any particular class of eligible persons from being used as jurors. 5 We reject any argument as to impropriety in the procedure so prescribed.
Defendant postulates that only the real property assessment rolls were used; and that this minimized the number of married women, which for some reason, unstated by him, and inscrutable to us, resulted in a jury unfair to him in a trial for killing his ex-wife. On this point the record is somewhat sparse, but what there is indicates to the contrary. With respect to jurors from Dugway (a military installation) the County Recorder testified: 'We know everything in Dugway is personal property because no one is able to hold (real) property out there'; and further stated that the lists of both real and personal property owners were used in selecting prospective jurors. The strongest statement for defendant's position that the record would justify is made in his brief, that 'There is some confusion in the testimony * * * (as to whether both real and personal property assessment rolls were used) * * *' and further '* * * that the jury was probably selected from only the assessment roll of real property owners; at least, the State failed to show that both rolls were used * * *.'
Probabilities do not establish facts. 6 When one attacks his conviction of crime on the method of jury selection, the burden is upon him to show that there was some impropriety and that there is at least some likelihood that there was unfairness to him so that he was deprived of his right of trial by an impartial jury, 7 a burden which defendant has not met.
Defendant's complaint about admitting in evidence color photographs of the deceased after...
To continue reading
Request your trial
-
Leggroan v. Smith
...that prospective jurors were to be chosen from names appearing on both the real property and personal property lists. State v. Johnson, 25 Utah 2d 46, 475 P.2d 543 (1970); State v. Beasley, 22 Utah 2d 423, 454 P.2d 880 (1969). Such a selection method does not amount to a per se unconstituti......
-
State v. Gee
...Utah 592, 599, 126 P.2d 1047 (1942).6 People v. Miller, 71 Cal.2d 459, 78 Cal.Rptr. 449, 455 P.2d 377, 387 (1969).7 State v. Johnson, 25 Utah 2d 46, 50, 475 P.2d 543 (1970).8 See State v. Poe, 21 Utah 2d 113, 441 P.2d 512 (1968); State v. Jackson, 22 Utah 2d 408, 454 P.2d 290 (1969); State ......
-
State v. Codianna, 14248
...trials. . . ."1 State v. Woods, 62 Utah 397, 220 P.2d 215 (1923); State v. Renzo, 21 Utah 2d 205, 443 P.2d 392 (1968); State v. Johnson, 25 Utah 2d 46, 475 P.2d 543 (1970).2 21 Am.Jur.2d, Criminal Law, Sec. 590, p. 551, and Sec. 577, p. 542; 24B C.J.S. Criminal Law, Sec. ...