State v. Powell, 920206

Decision Date08 April 1994
Docket NumberNo. 920206,920206
Citation872 P.2d 1027
PartiesSTATE of Utah, Plaintiff and Appellee, v. Frank Gene POWELL, Defendant and Appellant.
CourtUtah Supreme Court

R. Paul Van Dam, Atty. Gen., Marian Decker, Asst. Atty. Gen., Salt Lake City, for plaintiff.

Michael D. Esplin, Provo, for defendant.

HOWE, Justice:

Defendant Frank Gene Powell appeals from a conviction of second degree murder under Utah Code Ann. § 76-5-203 (1990). 1 He contends that (1) the depraved indifference murder jury instruction was erroneous; (2) the trial court should not have mandated a particular order of deliberation by the jury; (3) his constitutional right to a unanimous verdict was violated; (4) there was insufficient evidence to convict him; and (5) he should have been given the statutory sentence for manslaughter, which is a lesser included offense.


We state the version of the facts most favorable to the jury's verdict. On the night of November 28, 1987, Powell went to a birthday/keg party at a residence in Pleasant Grove, Utah. The victim, Glen Candland, was also present, as were thirty or forty others. During the evening, Powell and Candland continued a previous dispute over who had the best pickup truck. The argument included minor bumps and brief name-calling, which may have escalated to the point where Candland struck Powell in the face. The two men also commented to others attending the party about a possible fight. The host of the party intervened in an attempt to keep the party peaceful. At one point, Powell engaged in a fist fight with Tracy Davis, a friend of Candland. One of Powell's friends, Shanna LeFevre, witnessed Powell pull the spark plugs from Candland's truck, which was parked in the driveway of the home.

Sometime after midnight, as Powell, LeFevre, and Tommy Kaufman were leaving the party, Powell and Candland had another brief confrontation outside the house. The two continued name-calling as Powell reached his truck, which he had parked across the street in a bank's parking lot. Candland picked up a jack from the back of his truck, and Kaufman picked up a shovel from the back of Powell's truck. Both weapons were eventually put aside without being used. Candland and Powell stared at one another as they stood in the parking lot. Powell, LeFevre, and Kaufman then climbed into Powell's pickup truck, with LeFevre sitting between the two men.

Todd Hamilton, a friend of Candland, was present and overheard something but was unable to determine exactly what was said. Apparently, Candland reacted to this statement and immediately approached the truck and began pounding on the driver's side window and yelling at Powell to come out. Candland pulled the antenna off the vehicle. Powell reacted by shifting into reverse and squealing his tires for approximately fifteen feet. As Candland began walking toward Powell's stopped vehicle, Powell pulled forward at approximately fifteen to twenty miles per hour and again squealed his tires. Candland and Hamilton then began to walk back to the party. Powell drove his truck into the street, circled around, and reentered the parking lot. Hamilton heard the squealing tires and yelled "look out" as he jumped into some nearby bushes. Powell's truck hit Candland and ran over him. The medical examiner estimated the truck's speed at twenty to thirty-five miles per hour.

Nickie Talbot, who had left the party shortly after Powell, was using an outdoor pay phone at a convenience store located north of the bank's parking lot. She heard an engine roar and looked south to see Powell's truck. As Talbot finished using the phone and began to walk away from the store, her boyfriend warned her to get out of the way and then pulled her out of the truck's path. Talbot testified that Powell had not turned on the truck's headlights and that he made no effort to slow down before striking Candland.

LeFevre, sitting next to Powell inside the cab of the truck, testified that just moments after Candland pounded on the truck, Powell stated that he was going to "get him." LeFevre estimated the truck's speed between twenty and twenty-five miles per hour. She recalled that she had no trouble seeing Candland or Hamilton as the truck reentered the parking lot. She added that Candland turned sideways in an attempt to escape and that Powell may have momentarily lifted his foot off the gas pedal after hitting Candland but that he made no attempt to brake or to swerve to avoid hitting him. After striking the victim, Powell continued through the parking lot and left by an east exit.

Powell was charged with criminal homicide, and a jury convicted him of second degree murder.

I. Jury Instructions

Powell did not object to three jury instructions that he now assigns as being erroneous. We may review jury instructions or the lack thereof for error in the absence of an objection only "to avoid a manifest injustice." Utah R.Crim.P. 19(c). See State v. Verde, 770 P.2d 116, 121-22 (Utah 1989), where we considered the meaning of "manifest injustice" and concluded that "in most circumstances, the term 'manifest injustice' is synonymous with the 'plain error' standard expressly provided in Utah Rule of Evidence 103(d) and elaborated upon in [State v. Eldredge, 773 P.2d 29 (Utah 1989) ]." But see State v. Medina, 738 P.2d 1021, 1023 (Utah 1987), where this court declined to review an instruction where defense counsel did not remain silent but actively represented that she had read it and had no objection.

A. Instruction on Depraved Indifference Murder

Jury instruction 5 was an elements instruction on second degree murder. That instruction states in part:

The essential elements of the crime of Criminal Homicide, Murder in the Second Degree, as charged in the Information are as follows:

1. That the defendant, Frank Gene Powell, caused the death of Glen Harry Candland.

2. That he did so knowingly or intentionally, or,

3. That he did so while knowingly engaged in conduct which created a grave risk of death to another (Glen Harry Candland) and acted under circumstances that evidenced a depraved indifference to human life.

This instruction is pursuant to Utah Code Ann. § 76-5-203(1)(a) and (c).

Powell first attacks instruction 8, which defined the term "depraved indifference." This instruction states:

The term "depraved indifference" is not specifically defined by statute. Thus, the phrase "depraved indifference" is a concept which must be left largely to the experience and common sense of the jury.

To engage in conduct with a "depraved indifference to human life," a person must do more than act "recklessly," but he need not have as his conscious objective or desire to cause the result; nor, need he be aware that his conduct is reasonably certain to cause the result.

Rather, the greatness of the risk which the defendant's actions create and the lack of justification for the creation of the risk is the test to be applied in determining whether the defendant's conduct evidences a "depraved indifference to human life."

In determining whether any defendant acted with depraved indifference, the circumstances under which the defendant acted are to be viewed objectively from the standpoint of a reasonable person and not subjectively from the state of such defendant's mind.

(Emphasis added.) Powell contends that this instruction erroneously included the emphasized phrase that he need not be aware that his conduct was reasonably certain to cause the result. He argues that this language is contrary to this court's prior decisions concerning the term "depraved indifference to human life."

In State v. Standiford, 769 P.2d 254 (Utah 1988), we reviewed a very similar depraved indifference jury instruction. We disapproved of the first paragraph of the instruction because common experience and common sense do not convey the statutory sense of the term "depraved indifference" nor "would [the jury] impart a reasonable uniform meaning to that term." Id. at 261-62. Additionally, we were critical of paragraph 2 of the instruction because it did not state the gravity or degree of risk to human life that the defendant's conduct must knowingly create.

We set out five factors to be included in jury instructions concerning depraved indifference murder:

In sum, the jury should be instructed that to convict of depraved murder it must find (1) that the defendant acted knowingly (2) in creating a grave risk of death, (3) that the defendant knew the risk of death was grave, (4) which means a highly likely probability of death, and (5) that the conduct evidenced an utter callousness and indifference toward human life.

Id. at 264.

We concluded that the trial court had made clear in its instructions that the defendant had to act knowingly in creating a grave risk of death. We further held that "while the gravity of the risk of death was not explained with quite the precision set out here, the instructions, nevertheless, were not essentially wrong, and we do not believe the jury was misled." Id. We affirmed the defendant's conviction of second degree murder.

Instruction 8 in the instant case is nearly identical to the instruction given in Standiford that we disapproved in part and found wanting in another part. The trial court did not follow our direction in Standiford to instruct the jury that to convict of depraved murder, it must find the five elements enumerated above.

Defendant's counsel made no objection to instruction 8, nor did he submit to the trial court a requested instruction which would have remedied any confusion or incompleteness in the instructions that were given. The question then arises whether there is here a "manifest injustice," Utah R.Crim.P. 19(c), or "plain error," Utah R.Evid. 103(d). In State v. Dunn, 850 P.2d 1201, 1208 (Utah 1993), we reiterated [T]o establish the existence of plain error and to obtain appellate relief from an alleged error that was not properly objected to, the appellant must...

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