State v. Kell, No. 960377.

• Court: Supreme Court of Utah
• Writing for the Court: DURHAM, Justice
• Citation: 61 P.3d 1019,2002 UT 106
• Parties: STATE of Utah, Plaintiff and Appellee, v. Troy Michael KELL, Defendant and Appellant.
• Decision Date: 01 November 2002
• Docket Number: No. 960377.

61 P.3d 1019
2002 UT 106

STATE of Utah, Plaintiff and Appellee,
v.
Troy Michael KELL, Defendant and Appellant

No. 960377.

Supreme Court of Utah.

November 1, 2002.

Rehearing Denied November 8, 2002.

61 P.3d 1024

Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix, Kirk Torgensen, Scott Reed, Asst. Attys Gen., Salt Lake City, Ross Blackham, Manti, for plaintiff

Stephen R. McCaughey, Salt Lake City, for defendant.

AMENDED OPINION

DURHAM, Justice:

¶ 1 Defendant Troy Michael Kell, an inmate at the Central Utah Correctional Facility (CUCF) in Gunnison, Utah, was charged with aggravated murder, a violation of section 76-5-202 of the Utah Code. After being tried in a courtroom located inside the prison facility, he was convicted and sentenced to death.

BACKGROUND

¶ 2 Defendant stabbed fellow inmate Lonnie Blackmon (Blackmon) to death on July 6, 1994. Prior to the attack, defendant, a white supremacist, had been involved in race-related altercations with several African-American inmates, including Blackmon.

¶ 3 On the day before the killing, defendant and two of his accomplices, Eric Daniels (Daniels) and Paul Payne (Payne), submitted medical request forms to visit the prison's medical facility. In addition, Daniels forged a medical request form in Blackmon's name so that Blackmon would be transported to the medical facility at the same time defendant and his accomplices were being transported.

¶ 4 Moments before the attack occurred, defendant and Blackmon were moved from the upper tier of the building at the CUCF where they were housed to the lower tier where they awaited transfer to the prison's medical facility. Both defendant and Blackmon were placed in double locked handcuffs fastened to a belt around the waist. Their feet were not placed in shackles so that they could safely descend the stairs from the top tier of the cell block. By this time, Daniels had also been moved to the lower tier to go to the medical facility. Payne's request to go to the medical facility had been denied because he was in punitive isolation on the top tier of the cell block. Nevertheless, at his insistence, Payne was permitted to shower on the lower tier of the cell block rather than in the showers located on the second tier of the cell block, where his cell was located.

¶ 5 While descending to the lower tier, defendant removed his handcuffs with a partial handcuff key that had been altered with

61 P.3d 1025

a homemade handle made from melted plastic utensils. Defendant also produced a shank.¹ Blackmon was standing with his back to defendant talking to other inmates, when defendant began to stab him repeatedly in the neck, eyes, face, back and chest. Defendant was free to use his unrestrained hands and arms during the attack, but Blackmon could only kick at his attackers to defend himself because he was still in handcuffs that were attached to his waist. Blackmon's efforts were futile in any event because Payne choked and punched him and Daniels held onto his legs during the attack

¶ 6 For over two and a half minutes, defendant slashed Blackmon with his shank, inflicting sixty-seven stab wounds, only two of which were described by the forensic examiner as being capable of inflicting death in the short term. Despite Blackmon's pleas to stop, defendant continued the assault and, in fact, after walking away, returned twice to inflict more wounds, until Blackmon lay motionless on the floor of the cell block. Blackmon bled to death and defendant was charged with aggravated murder. A more detailed account of the attack can be found in the companion case of State v. Daniels, 2002 UT 2, 40 P.3d 611.

¶ 7 Following two pretrial evidentiary hearings, the trial court determined to hold defendant's trial in a regular courtroom located inside the CUCF. This decision was based on security risks particular to defendant, including his criminal background, prison disciplinary record, and overall prison history. In addition, several logistical problems regarding security existed in trying defendant in either of the two courtrooms available outside the prison. Because most of the numerous witnesses in the case were either prison guards or high security inmates, the security risks and costs associated with transporting all of them to a courtroom located outside of the county would have been extremely high; thus, the trial court decided to hold the trial in the courtroom located within the confines of the prison.

¶ 8 At trial, defendant testified that he killed Blackmon because Blackmon had overtly threatened him. According to defendant, Blackmon wanted to make an example of him to the other inmates to demonstrate Blackmon's power in the prison. Defendant stated he believed Blackmon was making a threat when he overheard Blackmon say to another inmate on the day of the killing, "Yeah man ... it's on. You know it," even though Blackmon made no threatening gestures toward defendant. Defendant claimed that due to conditions in the prison and circumstances surrounding Blackmon's threats, he was suffering from "extreme emotional disturbance" at the time of the homicide. One eyewitness testified, however, that during the attack defendant's demeanor was "very business like, as cold as cold gets. It was like he was doing a job."

¶ 9 Based on his testimony, defendant asked the court to instruct the jury on the defense of imperfect self-defense manslaughter, but the court declined his request. The trial court did, however, instruct the jury on the lesser included offense of murder, as well as aggravated murder. The jury unanimously found the defendant guilty of aggravated murder and sentenced him to death.

¶ 10 On appeal defendant raises twelve claims of error, as follows: (1) the trial court erred by denying him his constitutional rights to a public trial, to the presumption of innocence, to a fair trial, and to equal protection of the law, by trying him in a courtroom located inside a prison; (2) the trial court violated his constitutional right to a fair trial by denying him an impartial jury in its rulings on voir dire; (3) the trial court erred by failing to instruct the jury on the theory of imperfect self-defense manslaughter; (4) the trial court erred by requiring jurors to view a videotape of the homicide; (5) multiple evidentiary errors individually and cumulatively deprived him of a fair trial; (6) the prosecutors violated his rights to due process of law and protection under the Eighth and Fourteenth Amendments of the United States Constitution by making improper arguments to the jury; (7) the trial court erred during the penalty phase by forbidding the jury to consider mercy and sympathy as mitigating factors; (8) the victim impact evidence

61 P.3d 1026

admitted in the penalty phase and the Utah statute that allows it, are unconstitutional; (9) Section 76-5-202 of the Utah Code, which describes the aggravating factors necessary for capital murder, is unconstitutionally vague on its face; (10) the Utah death penalty statutes are unconstitutional because they do not narrow the class of death-eligible murders, thus encouraging the arbitrary and capricious application of the death penalty; (11) the capital sentencing proceedings were flawed; and, (12) because defendant had already been disciplined through the prison's disciplinary proceedings, the subsequent trial violated state and federal constitutional double jeopardy provisions. Because defendant raises numerous issues involving different standards of review, we set forth the proper standard as we address each issue

ANALYSIS

I. WHETHER THE LOCATION OF THE TRIAL PREJUDICED THE DEFENDANT

¶ 11 Defendant argues that holding the trial in a courtroom inside the prison denied him his constitutional rights to a fair trial, the presumption of innocence, equal protection under the law, and a public trial. We reviewed some of these issues in State v. Daniels, where we applied close judicial scrutiny and reviewed the trial court's decision for correctness. 2002 UT 2 at ¶¶ 15-19, 40 P.3d 611.

¶ 12 In Daniels, this court concluded that holding the trial at the prison did not constitute a violation of the defendant's constitutional rights to a fair trial or to the presumption of innocence, because "try[ing] an inmate in a prison courtroom for a violent crime alleged to have been committed inside a prison by a person incarcerated for a previous conviction does not per se present an unacceptable risk of bringing into play impermissible factors which might erode the presumption of innocence." 2002 UT 2 at ¶ 26, 40 P.3d 611. Nevertheless, we concluded that "a case-by-case evaluation is necessary" to make the determination whether to hold a trial in a prison. Id.

¶ 13 Here, in addition to alleging the lack of a fair trial or presumption of innocence, defendant also raises a claim regarding his right to equal protection. The latter claim warrants identical treatment as the previous ones; we hold that no constitutional violations have occurred because the actions taken by the trial court were not inherently prejudicial. See id. at ¶ 20 (citing Holbrook v. Flynn, 475 U.S. 560, 567, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)).

¶ 14 This ruling is supported by responses to the questionnaires filled out by each potential juror in this case. For example, the juror questionnaire asked, "Does the fact that this trial is being held at the Central Utah Correctional Facility affect your ability to sit as a juror in this case?" Of the one hundred and thirteen potential jurors who filled out questionnaires, only ten answered the question affirmatively, and of those ten, only two potential jurors explained that it was because they did not feel comfortable with the courtroom location itself. Neither of the jurors who expressed reservations about the prison were selected to sit on the jury. Accordingly, we conclude that the location of the trial did not prejudice the outcome of this case.

¶ 15 Finally, defendant...