State v. Redford, 12480
| Decision Date | 03 May 1972 |
| Docket Number | No. 12480,12480 |
| Citation | 27 Utah 2d 379,496 P.2d 884 |
| Parties | d 379 The STATE of Utah, Plaintiff and Respondent, v. Clark James REDFORD, Defendant and Appellant. |
| Court | Utah Supreme Court |
Robert Van Sciver, Salt Lake City, for appellant.
Vernon B. Romney, Atty. Gen., David S. Young, Chief Asst. Atty. Gen., Salt Lake City, for respondent.
The defendant was convicted by a jury of the crime of murder in the first degree without any recommendation of leniency and was sentenced to death. He appeals, claiming the trial court committed reversible error in four particulars, to wit:
I. By admitting evidence of a prior assault by appellant upon a person other than the victim herein.
II. In permitting the district attorney to exceed the bounds of permissible cross-examination.
III. In admitting into evidence items seized from appellant's automobile.
IV. In dismissing a juror upon the court's own motion for a cause not found in the Utah statutes and thus wrongfully excluding a juror from the panel.
The evidence presented to the jury would warrant a finding of the following facts:
The victim's automobile was stalled upon a freeway. The defendant was seen talking to her while his own automobile was parked immediately behind her car. Soon thereafter the victim's car was empty, and 16 days later her body was found near the only standing house in an old abandoned mining town about 40 or 50 miles away. Her shoes were found in another area nearby, and other personal items were found in still another area nearby. This house had belonged to the defendant's grandmother, and defendant was acquainted with it. Entrance to the house had to be made through a window, and fibers from defendant's sweater were found on the windowsill. The victim had been raped and apparently choked to death by means of a tourniquet made from a part of a pair of pantyhose and a sleeve of her sweater with a stick inserted therein. Strands of hair microscopically identical in all characteristics to hairs from the head of the victim were found on the plastic and cloth seat covers and floor mats of defendant's car.
The defendant and another man had planned to go to Ely, Nevada that day to marry two girls, but the defendant did not show up to get his bride-to-be until about 9:45 p.m., and when he arrived, he had mud on his shoes and a bruise under one of his eyes.
While in Ely the defendant bought a new pair of shoes and shortly after leaving Ely on the return trip to Utah threw the muddy shoes away.
The defendant's mother, as his agent, agreed to sell his car to a service station operator, not knowing the buyer was a part-time deputy sheriff. After the car and title to it were transferred to the buyer, a search was made which revealed the incriminating evidence against the defendant.
With this background in mind, we will now examine the assignments of error.
Several witnesses testified that they drove past the stalled car with a young woman in it and saw a man whom they believed to be the defendant standing beside it.
A passing motorist driving on a freeway does not have much opportunity to examine carefully the identifying features of a person standing beside a stalled car. Therefore, the testimony of these witnesses regarding the identification of the defendant might not convince the jury beyond a reasonable doubt that it was he who stood beside the victim's car. However, the automobile parked behind the stalled car was of such a vintage and color that one could hardly fail to identify it whatever the speed of the witness in passing it might be. The man beside the car wore a distinctively-colored sweater which each witness noticed.
In order to demonstrate that the defendant was the one beside the victim's car, the district attorney offered evidence which would ustify a finding that the defendant was the man beside the stalled car.
A witness was called to the stand who testified that she was in a laundromat the night before the victim disappeared and that she was confronted by the defendant in this case, who was wearing a sweater as described by those witnesses who saw him talking to the victim. The witness further testified that the defendant placed an open knife against her person and ordered her to leave the laundromat quietly with him and to get into his automobile, which was like the one seen by the other witnesses behind the stalled car. This witness had an excellent opportunity to identify the defendant and just cause to remember him. Therefore, her testimony was extremely valuable in enabling the jury to determine that it was the defendant, or one wearing his sweater and using his automobile who was last seen with the victim.
The court properly told the jury that the evidence could only be considered by them in connection with identification of the defendant and with his method of operation.
We find no error in the admission of this evidence for consideration by the jury.
The defendant testified in his own defense and thereby made himself subject to cross-examination the same as any other witness. He objects because the prosecuting attorney asked questions which tended to emphasize the theory of the State's case. One would hardly expect a prosecutor to emphasize the theory which had been the basis for defendant's direct examination. We see no error in asking a witness on cross-examination if certain matters were not true when they relate to factual matters which might be true, and especially is this so when the witness is the only one who knows what the truth is and had testified to facts which were favorable to himself.
We cannot agree with the claim of appellant that the evidence found in the car should have been suppressed. The State had a search warrant for the car but did not use it because the appellant willingly sold his car through the agency of his mothe...
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