State v. Pendergrass

• Citation: 803 P.2d 1261
• Decision Date: 07 December 1990
• Docket Number: No. 900110-CA,900110-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. John Fletcher PENDERGRASS, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1261

803 P.2d 1261

STATE of Utah, Plaintiff and Appellee, v. John Fletcher PENDERGRASS, Defendant and Appellant.

No. 900110-CA.

Court of Appeals of Utah.

Dec. 7, 1990.

Dale M. Dorius (argued), Dorius and Miller, Brigham City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., Christine F. Soltis (argued), Asst. Atty. Gen., for plaintiff and appellee.

Before BENCH, GARFF and JACKSON, JJ.

OPINION

BENCH, Judge:

John F. Pendergrass appeals his conviction of murder in the second degree, a first-degree felony, in violation of Utah Code Ann. § 76-5-203 (1990). ¹ We affirm.

On May 27, 1987, defendant joined the victim, Ray Jenkins, on an overnight fishing trip to Willard Bay. Among the items Jenkins packed was a .22 caliber revolver. Defendant and Jenkins were traveling in Jenkins's truck. They stopped at the home of an acquaintance who testified at trial that defendant kept asking Jenkins if he could borrow his truck to go to California. The acquaintance testified that Jenkins repeatedly answered no, using an "upset" voice.

Defendant and the victim allegedly consumed a large amount of mixed drugs and alcohol that day. Defendant claims to have consumed beer, marijuana, crystal methane, cocaine, and crack. Defendant, however, could not remember at what times he consumed the various drugs or the quantities.

There were twelve or thirteen people camping in the general area where defendant and Jenkins camped that evening. The closest campers were the Garrett family. They testified that during the evening there was a van and a car parked near Jenkins's truck. The family went to sleep at approximately 9:00 or 9:30 p.m. but were awakened by music and one person yelling at another person to stop singing. The music and yelling stopped; then Mr. and Mrs. Garrett heard gunshots. The music later resumed without any singing for a short period and then ceased altogether.

On the morning after the shooting, defendant, driving Jenkins's truck, picked up several of his friends and drove to a reservoir where they drank beer and whiskey and stabbed fish with samurai swords belonging to Jenkins. When asked about the truck, defendant stated that he had acquired the truck by trading a stolen car for it. Defendant told his friends that he was going to California and three of his friends decided to go with him. They then drove to California in Jenkins's truck. Defendant was later arrested in California for having a loaded firearm in a vehicle. Because there was an outstanding arrest warrant for forgery in Utah, defendant was returned to Utah.

The police who transported defendant back to Utah knew of Jenkins's disappearance and asked defendant where Jenkins was. Defendant told the officers that Jenkins had gone to California with him and was living in Oceanside. Once back in Utah, defendant provided three taped interviews to the police concerning the whereabouts of Jenkins.

At the first interview, defendant told police that Jenkins had shot himself while playing Russian roulette, and that Jenkins had only fired one shot. Defendant then put Jenkins in one of the sleeping bags and dumped the body and their camping gear in an area west of the shooting. After giving the statement, defendant took police to the Willard Bay area where he claimed to have dumped the body, but no body was found.

At the second interview, defendant repeated the same story until two police officers the defendant knew came out from behind a screen, at which time defendant broke down crying. He told the police that they would find two bullet holes in the body and "indicated very quietly that it was an accident." He did not explain how it was an accident, but he drew a map of where the body could be found. Again, no body was found.

At the third interview, the police discussed the inconsistencies of defendant's prior statements, in particular the statements relating to the number of bullet holes they would find. Defendant then reiterated his prior statement that Jenkins had shot himself in the head playing Russian roulette while sitting on the back of the truck. During this interview, however, he added that Jenkins then called out his name so defendant climbed in the back of the truck and put him out of his misery by shooting him in the head with the same gun that Jenkins had used. This time defendant drew a map and took the police to a different area of Willard Bay and the police recovered the body.

Jenkins's skeletonized body was found in his sleeping bag. Over it were placed large pieces of carpeting, wood, and foam which had been in the back of Jenkins's truck. Torn-off cattails were piled on top of the carpeting. Jenkins's pillow was found twelve to fifteen feet away. Jenkins had been shot twice in the head. It appeared that when Jenkins was shot he was in his sleeping bag with his head on his pillow. Two bullets were recovered from the pillow and two bullet holes were found in the sleeping bag. The two wounds were inflicted by two different small caliber guns, ² apparently held in parallel position approximately nine to eighteen inches above Jenkins's head and fired simultaneously or in close succession. ³

While being held in the Box Elder County Jail, awaiting trial, defendant told a fellow inmate that he shot Jenkins in the head twice and dragged him over to the weeds and covered him up with a sheet of plywood.

Defendant raises several issues on appeal: 1) the trial court erred in not instructing the jury on the lesser included offense of manslaughter; 2) the trial court erred in excluding expert testimony as to defendant's ability to form the requisite intent on the day of the murder; 3) the trial court erred in allowing an instruction to the jury concerning defendant's possible role as an accomplice or accessory; 4) the trial court erred in preventing the defendant from testifying as to which parts of his testimony had been refreshed by hypnosis; and 5) the State failed to carry its burden of proof beyond a reasonable doubt. We will address each issue in turn.

MANSLAUGHTER INSTRUCTION

Defendant claims that the trial court erred in not giving the jury an instruction on manslaughter as a lesser included offense. There is no question that manslaughter may be a lesser included offense of second-degree murder. State v. Crick, 675 P.2d 527, 529 (Utah 1983). There was no dispute on that issue below; rather, the issue was whether, based on the evidence, there was a rational basis on which the jury could acquit the defendant of the offense charged, second-degree murder, and convict him of a lesser offense, manslaughter.

Due process entitles a defendant to have the jury instructed on the theory of his case. Beck v. Alabama, 447 U.S. 625, 637, 100 S.Ct. 2382, 2389, 65 L.Ed.2d 392 (1980); State v. Oldroyd, 685 P.2d 551, 555 (Utah 1984). This right, however, is not absolute; it is limited by the evidence presented at trial. State v. Baker, 671 P.2d 152, 157 (Utah 1983). Therefore, when a defendant requests an instruction on a lesser included offense, the trial court is only obligated to give the requested instruction when the evidence warrants such an instruction. Id. at 158-59. In other words, a defendant is only entitled to a requested instruction on a lesser included offense when there is a "sufficient quantum" of evidence to create a "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." Id. at 159. It is not sufficient that the evidence merely provide a basis for acquittal of the greater offense, it must "simultaneously" provide a rational basis for the jury to convict of the lesser offense. State v. Larocco, 794 P.2d 460, 462 (Utah 1990); accord State v. Shabata, 678 P.2d 785, 790 (Utah 1984); Crick, 675 P.2d at 531. We conclude that the trial court correctly applied this standard in finding that there was no basis in the evidence for the instruction.

The trial court noted that to convict defendant of manslaughter, the jury would need to determine that defendant caused the death of Jenkins unlawfully and recklessly, and that he was aware of, but consciously disregarded, a substantial and unjustifiable risk with respect to the circumstances surrounding his conduct. The jury would also have to determine that defendant's disregard of the risk constituted a great deviation from the standard of care that an ordinary person would exercise under all the circumstances. State v. Bolsinger, 699 P.2d 1214, 1219-20 (Utah 1985); State v. Fontana, 680 P.2d 1042, 1045-46 (Utah 1984) (analyzing what constitutes depraved indifference for purposes of the second-degree murder statute as opposed to mere recklessness). The trial court asked defense counsel what evidence supported a theory that defendant acted recklessly. Defense counsel offered only defendant's statement to the police that it was an accident. The trial court correctly concluded that such a statement was legally insufficient to provide a basis for a manslaughter conviction because it did not, in any way, implicate defendant in the death of Jenkins. The mere statement that it was an accident does not show that defendant in any way caused Jenkins's death by accident. It only supports the theory that Jenkins died accidentally, whether by his own actions, by the acts of defendant, or by the acts of some third party.

Defendant himself testified that his defense was not that he acted recklessly, but that someone else shot Jenkins. ⁴ A manslaughter instruction was therefore precluded by defendant's own theory of the case. Shabata, 678 P.2d at 790 (manslaughter instruction is inappropriate where the defense is that the defendant did not kill the victim); Crick, 675 P.2d at 534 (if jury believed defendant's denial of any involvement in killing, conviction on either the greater or lesser offense would be precluded). We therefore conclude it was not error for the trial court to refuse to give the jury an instruction on the...