State v. Rivenburgh, 9089
| Decision Date | 07 September 1960 |
| Docket Number | No. 9089,9089 |
| Citation | 355 P.2d 689,11 Utah 2d 95 |
| Parties | d 95 STATE of Utah, Plaintiff and Respondent, v. Mack Merrill RIVENBURGH, Jr., and Leonard Warner Bowne, Defendants and Appellants. |
| Court | Utah Supreme Court |
Willard R. Huntsman, West Jordan, Hansen & Miller, Salt Lake City, for appellants.
Walter L. Budge, Atty. Gen., Vernon B. Romney, Asst. Atty. Gen., for respondent.
Defendants were jointly charged, tried and convicted of murder in the First Degree. The jury returned a verdict without recommendation as to defendant Rivenburgh and with recommendation as to defendant Bowne. Subsequently, Rivenburgh was given a death sentence and Bowne was granted a life sentence. Defendants were represented by different counsel and prosecute separate appeals.
Defendants were inmates of the Utah State Prison and on August 24, 1958, LeRoy Joseph Verner, also an inmate, was killed in the attic to Cell Block A of the prison. Another inmate, Jesse M. Garcia, Jr., was also involved in this homicide but was separately charged and convicted. His appeal is pending.
August 24, 1958, was a Sunday and the killing took place at approximately 8:05 p. m. Between 7 and 9 p. m. the prison conducted a movie for the inmates but the defendants and victim did not attend as well as a few other inmates in Block A who testified for the state at the trial. Defendant Rivenburgh induced the decedent to go to the attic for the purpose of an act of sodomy. Bowne and Garcia agreed to go to the attic on this occasion at the request of Rivenburgh and did so without the knowledge of Verner, preceding Rivenburgh and decedent by 10 or 15 minutes. The attic was quite dark and Bowne and Garcia went to a position in the attic where they hoped Verner would not see them. Bowne claimed at the trial that he was in the attic at the request of Rivenburgh to stand point (lookout) for him while he, Rivenburgh, accomplished the immoral act with Verner, and that he, Bowne, did not aid or abet in the killing as contended by the state. Bowne, however, told other inmates the following day that he had a scissor's hold on Verner's head. Bowne admitted making this statement but denied it was a true fact. Entrance could be gained into the attic at the north and south end of Block A from the fourth or top tier of cells, by removing an unfastened grating in the ceiling and crawling through the hole. On this occasion the defendants entered through the south attic hole and made their exit through the north attic hole. Rivenburgh arranged for an inmate to stand point below each attic hole at the north and south end of Block A.
Each defendant had a knife in his possession when he entered the attic, although the knife Bowne had was not used in the killing. The other two knives were used, a blade type knife and a pick type Knife. When Rivenburgh and Verner arrived in the attic Verner removed his clothing and readied himself, apparently, for the immoral act, when Rivenburgh commenced cutting. Verner was severely cut in the back, arms and chest area many times with the blade type knife and the back of his neck was cut to the spinal cord. Decedent was also stabbed with an ice pick type of knife, in the back once and into the chest cavity piercing the aorta which was fatal. Defendant Rivenburgh admitted the cutting and slashing with the blade knife. Decedent was dead when he was discovered by the guards at 9:15 p. m. after it was determined that he was not in his cell at 9 p. m. ring-in. The attic was out of bounds for the prisoners but they went there from time to time for various reasons. Other facts will appear later.
We shall consider the appeal of defendant Rivenburgh first. Rivenburgh first contends that the verdict of murder in the first degree was not supported by the evidence, 1 and that the most he should have been convicted of was murder in the second degree. This reasoning is based upon Rivenburgh's claim that he had taken large dosages of amphetamine pills, and the effect they had upon his mental and physical condition. This constituted his defense at the trial. There was evidence in this case which showed that defendant Rivenburgh, as well as the several convict witnesses for the state, had access to, and had been using amphetamine pills (the name Drinalpha is used by the Squibb Pharmaceutical Company), from time to time. This drug had been smuggled into the prison for at least several weeks before this homicide. How and in what manner is not shown by the record, neither is it material. Rivenburgh had been taking them at various times since the middle of June, a little more than two months prior to the killing. The only evidence as to how many pills this defendant had taken on the Sunday of the murder and the few days preceding is his own uncorroborated testimony. He testified he had been taking them in large dosages since Wednesday. On the Sunday in question Rivenburgh testified he had taken between 55 and 60 up to 7 or 7:30 p. m., and from Wednesday to Saturday about half that amount, or a little more. Each tablet contained 5 milligrams of the drug, therefore 60 tablets contained 300 milligrams, the amount he claims he had taken on the fatal Sunday prior to the killing.
Defendant Rivenburgh argues that the large dosages of amphetamine that he indulged in would produce a pronounced effect upon his brain, causing such symptoms as tenseness, tremor, irritability, confusion and delirium, which would preclude him from being able to form the requisite intent, ability to deliberate, and premeditate the killing with malice aforethought as required to warrant conviction of first degree murder. 2
The amphetamine drug is a stimulant and not a narcotic. It destroys appetite, prevents sleep and has a tendency to give one a 'lift' or 'pick up' from physical tiredness. Defendant Rivenburgh testified that 8 pills 'would make you feel real sharp--after that you just get a coasting feeling--relieves you of worry and punishment--keep increasing pills as you go along--retake them after you feel you are running down to get that charge back.' Defendant claimed he took 4 or 5 at a time every hour or so. He further testified that he took them at night but couldn't sleep as a result and that he had no appetite when taking the pills.
The convict witnesses for the state, as well as the defendant, described the effects of amphetamine as a drug which had a tendency to sharpen one, cause wakefulness, and they used such terms as 'coasting,' 'high on pills' and 'causing confusion' when used in large quantities.
In furtherance of defendant Rivenburgh's claim that the evidence does not warrant a conviction of murder in the first degree because of his excessive use of the drugs but rather than the evidence conforms more properly to murder in the second degree, counsel for Rivenburgh cites excerpts from a work called 'The Pharmacological Basis of Therapeutics' 2nd Ed. by Goodman and Gilman, and also a text entitled 'The Amphetamines, Their Actions and Uses,' by Leake, to show the effects of overdosage of the drug which cause, according to the texts, restlessness, dizziness talkativeness, tremor, tenseness and irritability, among other symptoms; and there may be confusion, delirium, anxiety and hallucination. Neither text was introduced in evidence but were referred to on cross-examination of the state's expert witness, Dr. Leonard Clarke, who testified on the effect of the amphetamines. The reference to these texts and their application to the case at bar is academic and in the abstract since it is not known how many pills Rivenburgh took, except by his own testimony and, of course, the jury would not have to believe him, but more particularly because Rivenburgh's tolerance for this drug as a habitual user is not known, and the tolerance will vary with different individuals. Dr. Clarke testified that some cases show a remarkable tolerance in the use of these drugs. The best test, therefore, to determine what effect the pills had on this defendant, is not the amount he took, even if known, but his behavior before and after the killing in question. As stated by Dr. Clarke, 'The behavior is all that we have to judge by, and it would be more important than knowing the precise dose, in that there is evidence, for example, that even a very massive amount could have been taken, and no delirium occur, which we cited cases on.' To the hypothetical question put to Dr. Clarke embodying Rivenburgh's behavior pattern before and after the killing, the doctor answered that he 'would not regard this individual as suffering from a delirious state.' Defendant did not offer an expert witness in answer to Dr. Clarke.
The testimony of Rivenburgh's activities on this Sunday was given by the convict witnesses for the state who were associated with him during the time in question, and also the defendants themselves, and there is not any evidence in the record which would lend any credence that Rivenburgh was in a confused state of mind or suffering from any toxic delirium because of the usage of said pills regardless of how many he had taken.
Rivenburgh's own testimony as to the events which occurred on the day of the homicide are clear as to details and when the district attorney asked him on cross-examination as to the effect of the pills, Rivenburgh made the following answers to the prosecutor's question, line 17, on page 634 of the transcript:
'Q. But it was the pills causing your action Sunday? A. Pardon me, sir?
'Q. That it was the pills causing your action on Sunday? A. I just got mad, sir.
'
We cannot help but conclude from the testimony of the witnesses for the state as well as the defendant's testimony, that Rivenburgh's preparation for the killing by sharpening or...
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