State v. Pearson, 950400

• Decision Date: 12 August 1997
• Docket Number: No. 950400,950400
• Parties: 323 Utah Adv. Rep. 17 STATE of Utah, Plaintiff and Appellee, v. Jason Scott PEARSON, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1347

943 P.2d 1347

323 Utah Adv. Rep. 17

STATE of Utah, Plaintiff and Appellee, v. Jason Scott PEARSON, Defendant and Appellant.

No. 950400.

Supreme Court of Utah.

Aug. 12, 1997.

Jan Graham, Atty. Gen., Creighton C. Horton II, Thomas Brunker, Asst. Attys. Gen., Salt Lake City, for plaintiff and appellee.

Kenneth R. Brown, Salt Lake City, for defendant and appellant.

DURHAM, Justice:

Defendant Jason Scott Pearson was convicted by a jury of aggravated murder and sentenced to a term of life imprisonment with the possibility of parole. He appealed, and we affirm the conviction.

In June 1993, Pearson and a companion named George Kennedy stole Kennedy's mother's car and drove west from Delphi, Indiana. When the two ran out of money, they began to steal gas. On June 16, 1993, a store clerk reported a gas theft in Utah to the Utah Highway Patrol. Shortly thereafter, a deputy sheriff spotted the car--described by the clerk--on I-70. He turned on his lights and attempted to pull the car over, but the vehicle, driven by defendant, sped up.

Testimony at trial indicated that Pearson and Kennedy decided to flee from the officer because of "trouble" in Indiana. Kennedy understood this trouble to refer to an incident where Pearson had been involved in a drug sale and had become an informant for the Indiana police rather than face charges. Pearson testified that Kennedy and he fled for multiple reasons, including the drug incident. A high speed chase involving six police officers followed Pearson and Kennedy's flight. During the pursuit, Pearson shot and killed Trooper Dee Lund. Pearson and Kennedy were eventually apprehended by the other officers, and Pearson was charged with aggravated murder.

Pearson made two pretrial motions relevant to this appeal. First, because of extensive publicity and the small size of the Emery County community, he moved to change venue. The court denied the motion but left open the possibility of reconsideration after voir dire. Pearson did not renew the motion. Second, Pearson challenged the constitutionality of section 76-5-203(1)(e) of the Utah Code, which makes a misdemeanor a predicate crime for felony murder. The court denied that motion as well.

Also during the pretrial period, defense counsel experienced difficulties in interviewing Kennedy. A stipulation was reached between counsel and confirmed by the court requiring that Kennedy's counsel be present at all interviews of Kennedy by the defense and that such interviews be recorded. No further complaints regarding this problem appear in the record.

At trial, Pearson preserved several claims of error. He objected to testimony regarding his prior involvement with the Indiana police, including references to a drug sale, on the grounds that it was improper character evidence and unduly prejudicial. The court allowed the testimony because it was connected to statements allegedly made by Pearson during the police pursuit and relevant to motive. Pearson did not request a limiting instruction regarding the testimony.

Pearson sought a mistrial because of comments made by the prosecutor to Kennedy during a pretrial interview, which surfaced during Kennedy's testimony for the prosecution. The prosecutor had warned Kennedy that if Kennedy changed the story he had previously told about the crime, the prosecutor would write to the parole board seeking to influence the period of time Kennedy would actually spend in prison. The mistrial motion was denied.

During Pearson's case, Pearson attempted to introduce evidence consisting of a simulation in which expert attempted to recreate the shooting, which had occurred while Pearson was firing at the pursuing police from a moving vehicle. Pearson's theory went to intent; Pearson claimed that the simulation would show that had he intended to kill any of the pursuing officers, his aim would have been more accurate than the evidence showed it was. Thus, the inaccurate nature of Pearson's shots prove that Pearson lacked the intent to kill the officers. An expert in "aerodynamics, general physics and math, general engineering and mathematics" designed and conducted the simulation. The expert had two people shoot from the passenger-side window of a moving truck at a target mounted on a trailer that was towed by a truck at an approximate speed of 45 miles per hour. The circumstances of the simulation differed in a number of ways from those of the crime: Defendant allegedly shot from the driver's side of his vehicle; his speeds and those of the pursuing officers were variable; the actual shooting took place on another road; and at least one of the simulation shooters, unlike defendant, was a relative novice with guns. The State objected to the evidence as lacking adequate foundation, and the court refused to admit it.

During closing arguments, the prosecutor related a personal experience about shooting rabbits from the back of a moving truck to suggest that Pearson's shots indicated intent to kill rather than recklessness. Pearson moved for a mistrial; the motion was denied. Pearson also requested a jury instruction on the lesser offense of manslaughter, which was refused. The jury convicted him of aggravated murder, a capital felony requiring intent or knowledge.

Pearson has raised numerous issues on appeal, which we treat as follows:

I. VENUE

This court reviews trial court venue rulings for abuse of discretion. See, e.g., State v. Lafferty, 749 P.2d 1239, 1250 (Utah 1988), habeas granted on other grounds, 949 F.2d 1546 (10th Cir.1991). In this case, defendant passed the jury panel for cause and never renewed his motion for change of venue based on excessive publicity. Furthermore, there is no evidence in the record of jury bias. The trial court did not abuse its discretion in denying the motion.

II. CONSTITUTIONALITY OF SECTION 76-5-203(1)(e)

We need not reach the merits of Pearson's claim regarding this statute because he was not convicted under it and therefore lacks standing to challenge its constitutionality. Pearson was convicted of aggravated murder, not felony murder, and so suffered no harm from the statute's alleged defects. Furthermore, the legislature has subsequently amended the section in a fashion that remedies defendant's complaint, thus diminishing the public importance of the question. Therefore, we decline to treat the constitutionality of former section 76-5-203(1)(e).

III. MANSLAUGHTER INSTRUCTION

We review a trial court's refusal to give a jury instruction for correctness. See State v. Hamilton, 827 P.2d 232, 238 (Utah 1992). The statute requires that a rational basis exist "for a verdict acquitting the defendant of the offense charged and convicting him of the included offense" and defines an included offense as one "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Utah Code Ann. § 76-1-402(3)(a), (4). Pearson argues that there was a rational basis for a finding that the killing was reckless, not intentional, and therefore an instruction on manslaughter was warranted. The State points out, however, that the reckless killing of a police officer is included in the definition of murder contained in section 76-5-203(1)(e). Pearson admitted killing the officer and thus, the State argues, no rational basis existed to instruct the jury on manslaughter.

We need not resolve the question of whether the trial court erred in refusing to give a manslaughter instruction, however, because of the nature of the jury verdict. Here, only Pearson's mental state was disputed at trial. The jury had the opportunity to convict Pearson of either aggravated murder, which requires knowing or intentional killing, or simple murder, which in the case of killing a peace officer requires only recklessness. Because the jury chose to convict for aggravated murder, the court's refusal to give an instruction on manslaughter, an offense requiring recklessness, constituted at most harmless error. See State v. Gotschall, 782 P.2d 459, 464 (Utah 1989) (holding that where jury had opportunity to convict defendant of manslaughter but convicted of greater offense of second degree murder, refusing to give instruction on negligent homicide was, if error, harmless). But see State v. Oldroyd, 685 P.2d 551, 555-56 (Utah 1984) (reversing conviction for assault with intent to commit serious bodily injury where defendant's request for instruction on lesser included offense of simple assault was refused and jury was thus forced to choose between conviction and acquittal). Here, the jury evidently was convinced beyond a reasonable doubt that the killing was intentional instead of reckless. Therefore, the inclusion of a manslaughter instruction would have served no purpose.

IV. EVIDENCE OF PRIOR CRIME

Pearson argues that the admission of testimony about his criminal activities in Indiana showed only bad character, had no probative value with respect to the crime charged, and created undue prejudice with the jury. This court reviews evidentiary rulings on prior crime testimony with limited deference, reviewing closely the trial court's exercise of its discretion. See State v. Doporto, 935 P.2d 484, 489 (Utah 1997).

The State may not introduce evidence of "other crimes, wrongs or acts ... to prove the character of a person in order to show action in conformity therewith." Utah R. Evid. 404(b). However, such evidence is admissible to prove "motive ..., intent ..., or absence of mistake or accident." Id. Before admitting such evidence, the trial court must find that it is a necessity, that it is highly probative regarding a material issue related to the crime charged, and that these two factors outweigh its prejudicial impact. Doporto, 935 P.2d at 490.

Pearson argues that the Indiana drug incident was a "closed chapter" because no charges were pending at the time of this crime. Thus, he argues, it could not have motivated him to flee the Utah...