State v. Norton
| Decision Date | 29 December 1983 |
| Docket Number | No. 16911,16911 |
| Citation | 675 P.2d 577 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Heber James NORTON, Defendant and Appellant. |
| Court | Utah Supreme Court |
Marlynn Bennett Lema, Price, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Earl Dorius, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
Two tellers were killed during the robbery of a bank in Huntington, Utah. A jury convicted defendant of first degree murder in those killings and sentenced him to death. He was also convicted of aggravated robbery and sentenced to five years to life, with an additional term not to exceed five years for the use of a firearm in that felony. On this appeal, defendant seeks to set aside the death penalty for alleged errors in the procedure used to impose it. He also seeks reversal of his conviction on the basis of various alleged errors, including denial of an instruction on the lesser included offense of second degree murder, refusal of a second change of venue, denial of mistrial due to a spectator's comment to a juror, and ineffective assistance of counsel.
The facts are undisputed. On February 22 and 23, 1979, defendant and an accomplice drove through several towns in southern Utah looking for a small trailer-type bank suitable for a one-man robbery. On the afternoon of the 23rd, defendant decided to rob the Huntington, Utah branch of Zion's Bank. He entered the bank, pointed a gun at one of the two tellers, and told her to fill his bag with money. When she took too much time, he shot her in the head. Then he ordered the second teller to fill the bag. When she spilled money on the floor, he ordered her around to the front of the counter to pick it up. While she knelt in front of him, he shot her also.
Several people witnessed defendant's escape from the bank. One witness followed him to a waiting car and memorized the car's description and license number. Approximately one hour after the crime, police spotted the car containing defendant and his accomplice and "herded" it into a roadblock. The officers obtained a warrant and searched the car. In the trunk, they found a bag of money and distinctive clothing matching the description of clothing worn by the bank robber. Witnesses identified defendant as the man they saw leaving the bank. While in custody, defendant signed a sworn confession, admitting that he committed the robbery and the murders. According to that confession, defendant decided to shoot the first teller because he had not worn a mask, and then, because he had shot the first teller, he decided he might as well shoot the second one.
Defendant contends that the trial court committed prejudicial error by refusing his request to have the jury instructed on the lesser included offense of second degree murder. The defense presented the testimony of a doctor who had examined defendant for a little over an hour on the day of trial. He testified that defendant exhibited symptoms of organic brain syndrome and that this condition caused defendant to "have [a] marked reduction in his ability to understand, to form intent, to plan, to reason." Characterizing this as evidence of "diminished capacity" to form the intent necessary for first degree murder, defendant argues that he was entitled to have the jury instructed on the lesser included offense of second degree murder.
At trial, the defense proffered a jury instruction that was apparently based on U.C.A., 1953, § 76-5-203(1)(d), the second degree felony murder provision. 1 However, that provision only applies when the defendant, during the commission of one of the enumerated felonies, causes the death of "another person other than a party." (Emphasis added.) The purpose of the emphasized language was apparently to distinguish second degree felony murder from the first degree felony murder a defendant commits when he kills someone while he is engaged in one of the enumerated felonies. § 76-5-202(1)(d). For purposes of that distinction, a "party" is a person who is a victim of the enumerated felony. Here, as the district court concluded, the murdered employees were both immediate victims of the enumerated felony of aggravated robbery. As such, each was clearly a "party" within the meaning of § 76-5-203(1)(d). As a result, that provision is inapplicable, and the court was correct in refusing a defense instruction that invited the jury to convict defendant of second degree felony murder.
On appeal, defendant does not renew his insistence on the felony murder variation, but in his argument that the jury should have been instructed on second degree murder cites only § 76-5-203(1)(c), the so-called "depraved indifference" section. Under normal circumstances, defendant could not assign error in the omission of an instruction he failed to request at trial. State v. Valdez, 19 Utah 2d 426, 427-28, 432 P.2d 53, 54 (1967). However, on direct appeal in a capital case we will review the record for "manifest and prejudicial" error, even though no proper objection was made at trial. State v. Wood, Utah, 648 P.2d 71, 77 (1982); State v. Cobo, 90 Utah 89, 101-02, 60 P.2d 952, 958 (1936). Under the circumstances of this case, we find no such error.
The omission of a depraved indifference instruction was not error because the evidence in this case, including the evidence of diminished mental capacity, did not "provide a rational basis for both acquitting of the charged offense and convicting of the lesser included offense." State v. Crick, Utah, 675 P.2d 527 (1983); State v. Baker, Utah, 671 P.2d 152, 159 (1983); § 76-1-402(4).
If the jury believed the medical testimony, they could have acquitted defendant of the charged offense. They were instructed to acquit if they found that defendant, as a result of mental disease or defect, lacked substantial capacity either to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of the law. But the evidence provided no basis for the jury to convict defendant of the depraved indifference variation of second degree murder. At the time of this shooting, that crime required proof that the accused had "recklessly" caused the death of another, 2 whereas this defendant admitted that he had deliberately shot the tellers. Thus, the evidence did not provide a basis to find that defendant's mental state was "reckless," as would be necessary to convict him of the proposed lesser included offense.
This circumstance is precisely like State v. Dalglish, 131 Ariz. 133, 639 P.2d 323 (1982), a first degree murder conviction in which a defendant urged error in the court's refusal to give an instruction on the variation of second degree murder involving reckless conduct under circumstances manifesting "extreme indifference to human life." The court rejected that contention for a reason that applies equally to this case: Id. at 139, 639 P.2d at 329.
Nor did the evidence of diminished mental capacity provide the jury a rational basis to convict defendant of either of the two other variations of second degree murder, since each of these requires proof of intent. § 76-5-203(1)(a) (); § 76-5-203(1)(b) (). There was no error in omitting an instruction on second degree murder.
On defendant's motion, the court granted a change of venue from Emery County to Carbon County. Defendant's second motion for a change of venue, to move the trial from Carbon County, was denied. After closely reviewing the record, we find no abuse of discretion in the court's denying this second motion. The relevant circumstances of this case are essentially identical to those in State v. Pierre, Utah, 572 P.2d 1338, 1348-50 (1977), where we found no error in the denial of a second motion for a change of venue. See also State v. Wood, Utah, 648 P.2d 71, 88-89 (1981).
During a recess in the trial, an elderly man approached a member of the jury and said in a loud voice, "I made up my mind a long time ago; any time a guy walks in a bank and shoots two people, he deserves to die." The incident was immediately brought to the attention of the trial court. The court conducted a voir dire of the jury and determined that only one juror had heard this statement and that it had not affected that juror's ability to perform his function in an impartial manner. After reviewing the record, we are convinced that this event caused no prejudice to the defendant and that the court handled the matter appropriately. There was no error in denying defendant's motion for a mistrial. State v. Andrews, Utah, 576 P.2d 857, 858-59 (1978).
Finally, defendant contends that he was denied the effective assistance of counsel for his defense because of "the uncertainty of funds available to defense counsel for trial preparation." Several aspects of defense preparation are said to have been affected by this uncertainty, but the record shows no instance in which the defense asked for and failed to receive any resource that was shown to be important in the preparation or presentation of the defense. Measuring this contention against the rigorous standard of effective assistance of counsel we articulated in Codianna v. Morris, Utah, 660 P.2d 1101, 1109 (1983), we find no error.
Finding no error in the guilt phase of the trial, we affirm defendant's convictions for murder and aggravated robbery.
Defendant's principal argument is that the death penalty should be set aside because the jury used the...
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