State v. Redd
| Citation | 992 P.2d 986,1999 UT 108 |
| Decision Date | 28 December 1999 |
| Docket Number | No. 981747.,981747. |
| Parties | STATE of Utah, Plaintiff and Appellant, v. James and Jeanne REDD, Defendants and Appellees. |
| Court | Supreme Court of Utah |
Jan Graham, Att'y Gen., Joanne C. Slotnik, Asst. Att'y Gen., Salt Lake City, and William L. Benge, Moab, for plaintiff.
Walter F. Bugden, Jr., Salt Lake City, William L. Schultz, Moab, and Rod W. Snow, Denver, Colorado, for defendants.
¶ 1 The State of Utah appeals from a magistrate's dismissal of a charge against James and Jeanne Redd for violating section 76-9-704(1)(a) of the Code by the removal, concealment, or failure to report the finding of a dead body to a local law enforcement agency, or destruction of a dead body or any part of it.1 We agree with the State that the magistrate erred in his interpretation of the statute by concluding that the facts alleged did not constitute a violation, and in dismissing the charges. We reverse and remand for actions consistent with this opinion. ¶ 2 For clarity, we explain the entire history of this case. In January of 1996, Ben Naranjo of the San Juan County Sheriff's Department was contacted by Mike Pehrson, a resident of Bluff, Utah. Pehrson informed Naranjo that he had witnessed several people digging in an area known to have Anasazi ruins. Naranjo drove close to the dig site where he saw the Redds. They asked Naranjo what he was doing there. He responded that someone had observed them digging in the area.
¶ 3 James Redd ("James") stated that they were on Erv Guymon's property and that Guymon had given them permission to be there. Naranjo spoke with Guymon who said that the Redds did have permission to be on the property but not to dig. Guymon said that he would handle the problem with the Redds personally. Despite James' claim that he was on Guymon's property, Naranjo decided to verify ownership of the dig site. A survey was conducted and it was determined that the site was on state land. The San Juan County Sheriff then called in Dale Davidson, an archaeologist, to examine the site.
¶ 4 In October of 1996, the Redds were charged with abuse or desecration of a dead human body, in violation of 76-9-704(1)(b).2 A preliminary hearing was held in March of 1997. Davidson, the archaeologist, testified that the Redds had dug in an archaeological site, which included a kiva, a building, and a midden area. Davidson also testified that the site had been altered and damaged by recent digging. He stated that he found human bones in the wall of the excavated area, as well as in a pile of dirt discarded during the excavation. He also testified that it appeared that the persons digging had excavated a portion of the human remains and discarded them after screening the dirt in which they were buried.
¶ 5 The magistrate dismissed the charge of abuse or desecration of a dead human body. He made factual findings that the Redds did disinter remains. However, he was uncertain about whether disinterring remains which "presumably are a thousand years old" "constitutes a criminal offense of desecration of a corpse, or abuse or desecration of a dead human body."3 Therefore, he dismissed the charges, stating that the appellate court could clarify whether the law was meant to apply to these facts.
¶ 6 The State appealed the magistrate's decision to the Utah Court of Appeals. At oral argument before the court of appeals, the Redds' attorney conceded that the bones the Redds had removed constitute a "dead body" as defined by the statute. The court of appeals upheld the magistrate's dismissal on alternative grounds not addressed by the magistrate or briefed by the parties. It reasoned that the statute refers only to dead bodies "buried or otherwise interred" and that this meant that one element of the crime was proof that the body had been intentionally placed "into a place designated for its repose." State v. Redd, 954 P.2d 230, 234 (Utah Ct.App.1998). The court of appeals held that the State had failed to prove that element of the charged crime. The State petitioned for a rehearing, contending that the court should have taken judicial notice of the fact that midden areas were used as burial grounds by the Anasazi. The court of appeals refused to take judicial notice of this fact. It stated, however, "[n]o party to this action should construe our opinion or this order to preclude the State from refiling the charges under the same or a more appropriate subsection of the statute."
¶ 7 The State followed the suggestion of the court of appeals and refiled the charges against the Redds under section 76-9-704(1)(b). Additionally, it charged the Redds under section 76-9-704(1)(a). It alleged that the Redds "did intentionally and unlawfully remove, conceal, fail to report the finding of a dead body to a local law enforcement agency, or destroy a dead body or any part of it," and that they "did intentionally and unlawfully disinter a buried or otherwise interred dead body, without authority of a court order." The State offered new testimony from Davidson, the archaeologist, regarding burial practices of the Anasazi to support these refiled charges. The Redds moved to dismiss the refiled charges, asserting that their due process rights were being violated. They relied on State v. Brickey, 714 P.2d 644 (Utah 1986), arguing that the "good cause" showing Brickey requires as a precondition for the refiling of dismissed charges exists only when the State has new or previously-unavailable evidence. They asserted that no such evidence existed. Everything Davidson would say was known and available to the State when the first charges were filed. The State responded that it could not have foreseen the need for Davidson's additional testimony until the court of appeals, sua sponte, added an element to the crime. The parties stipulated that a ruling on the Brickey motion would be reserved until after the preliminary hearing.
¶ 8 A preliminary hearing was held at which Davidson explained that a midden area is The magistrate bound the defendants over on the refiled original charge, under section 76-9-704(1)(b), of disinterring a buried or otherwise interred dead body without authority of a court order. The magistrate specifically found that the State had shown probable cause to believe that the defendants disinterred human bones that had once been "buried or otherwise interred." However, the magistrate dismissed the second charge, based on section 76-9-704(1)(a) of the Code, of removing, concealing, or failing to report the finding of a dead body to local law enforcement, or destroying a dead body or any part of it. He stated that: (Emphasis added.)
¶ 9 The State sought permission to file an interlocutory appeal on the dismissal of the charge under section 76-9-704(1)(a). The Redds did not appeal the bindover on the refiled charge under section 76-9-704(1)(b). The court of appeals granted the State's petition and certified the case to this court. The court of appeals' certification order stated that the appeal involved two issues: the application and interpretation of Brickey, and the interpretation and effect of sections 76-9-704(1)(a) and (b) of the Code. However, as noted above, the petition for interlocutory appeal did not address either Brickey or 76-9-704(1)(b); rather it raised only the interpretation of 76-9-704(1)(a). Utah Rule of Appellate Procedure 43(a) provides that the court of appeals may "certify a case for immediate transfer to the Supreme Court." Utah R.App. P. 43(a) (emphasis added). It does not permit the court of appeals to add issues to the certification not present in the "case" before it. Here, the only issue appealed by the State is the dismissal of the section 76-9-704(1)(a) charge. This charge was not dismissed based on Brickey, but rather because the magistrate interpreted the statute as not being violated by the movement of human bones. Therefore, we conclude that there is neither a Brickey question nor a 76-9-704(1)(b) question before us. The only issue is the proper interpretation of section 76-9-704(1)(a) of the Code.
¶ 10 We begin with the standard of review. The proper interpretation of a statute is a question of law which we review for correctness, according no deference to the magistrate's legal conclusion. See Gutierrez v. Medley, 972 P.2d 913, 914-15 (Utah 1998)
; State v. Pena, 869 P.2d 932, 936 (Utah 1994). With this standard in mind, we address section 76-9-704(1)(a). It reads in pertinent part:
Utah Code Ann. § 76-9-704(1)(a) (1995).4
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