State v. Russell

• Decision Date: 09 February 1987
• Docket Number: No. 18591,18591
• Citation: 733 P.2d 162
• Parties: STATE of Utah, Plaintiff and Respondent, v. Dick R. RUSSELL, Defendant and Appellant.
• Court: Utah Supreme Court

Page 162

733 P.2d 162

STATE of Utah, Plaintiff and Respondent, v. Dick R. RUSSELL, Defendant and Appellant.

No. 18591.

Supreme Court of Utah.

Feb. 9, 1987.

Phil L. Hansen, Salt Lake City, for defendant and appellant.

David L. Wilkinson, Atty. Gen., and Earl F. Dorius and David B. Thompson, Asst. Attys. Gen., Salt Lake City, for plaintiff and respondent.

HOWE, Justice:

Defendant appeals from his jury conviction of two counts of murder in the second degree, contending that he was not convicted by a unanimous jury verdict and that the evidence was insufficient to convict him as charged.

Defendant Russell and his family were neighbors to Floyd and LaRue Rowley whose son occasionally tended the Russell children. Floyd and LaRue were shot to death in their home by Russell during a discussion in which he charged that their son had taken indecent liberties with his five-year-old daughter.

At the close of defendant's case, the jury was given a general verdict form on both counts and instructed on murder in the second degree as follows:

Instruction No. 14

Before you can convict the defendant, Dick Roundy Russell, of the crime of Murder in the Second Degree, a lesser included offense of the crime charged in Count I, you must believe from all the evidence and beyond a reasonable doubt each and every one of the following elements of that offense.

1. That on or about the 16th day of May, 1981, in Salt Lake County, State of Utah, Floyd Rowley was killed; and

2. That defendant is the person who caused the death of Floyd Rowley and did so under one of the following circumstances:

a. Defendant intentionally or knowingly caused the death of Floyd Rowley; or

b. Defendant intended to cause serious bodily injury to Floyd Rowley and committed an act clearly dangerous to human life that caused the death of Floyd Rowley; or

c. Defendant acted under circumstance[s] which evidenced a depraved indifference to human life and engaged in conduct which created a grave risk of death to another and thereby caused the death of Floyd Rowley.

....

If on the other hand, you are convinced of the truth of element number 1 above and any one of the three circumstance[s] in element number 2 above beyond a reasonable doubt, then you must find the defendant guilty of Murder in the Second Degree a lesser included offense of the crime charged in Count I.

A similar instruction was given on Count II which charged the murder of LaRue Rowley.

Defendant requested that the jury be instructed that they had to choose which of the three alternatives (a, b, or c) listed under paragraph 2 of those instructions formed the basis for any verdict they might return. His requested instruction to that effect was rejected. He objected to Instruction No. 14 on the ground that it gave under paragraph 2 "three alternatives, without telling the jury that they must be unanimous in one or the other of those three alternatives." The jury returned a guilty verdict on both counts. Over the objection of the State, defendant then asked that the jury be polled as to which alternative they had chosen to convict defendant. This request was granted, and the jurors answered that they had chosen different alternatives in paragraph 2 to arrive at their guilty verdicts.

Before we address defendant's two contentions on appeal, we note the State's objection to the polling of the jury on which point it has briefed us. A defendant may poll the jury to determine whether the verdict is unanimous. U.C.A., 1953, § 77-35-21(f). The purpose of polling is to determine that the verdict signed by the foreman is that of the individual jurors and not one that has been coerced or caused by mistake. State v. Agtuca, 12 Wash.App. 402, 529 P.2d 1159 (1974). Evidence that the jury was confused or that it misunderstood or disregarded the facts or the applicable law is inadmissible as violative of the long-standing policy against attempts to undermine the integrity of the verdict. Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983). All inquiries into the mental processes of the jury are improper. See State v. Couch, 635 P.2d 89, 95 (Utah 1981). Defendant properly polled the individual jurors to determine if the verdict on each count was theirs. The court then continued: "It has also been requested that you be polled as to which subdivision under the section of criminal homicide, murder in the second degree, you found you reached your verdict at." Inasmuch as the jury had been instructed under a general verdict form and had been told that it could find defendant guilty of "any one of the three circumstances," the polling at that point became an attempt to reach their thought processes and was impermissible. Consequently, the result of the poll will play no part in our decision on the two issues before us.

I.

Defendant first contends that the second degree murder statute, U.C.A., 1953, § 76-5-203, defines three separate and distinct theories upon which the jury could have convicted him. Consequently, he argues, he was deprived of his right to a unanimous jury verdict, Utah Const., art. I, § 10, when the trial court refused to give his requested instruction that the jury had to unanimously agree upon one of the three theories as the basis for its verdict. He refers to three Utah cases where we were faced with, but did not decide, a similar question. In State v. Rasmussen, 92 Utah 357, 68 P.2d 176 (1937), the defendant was charged with involuntary manslaughter, consisting of either an unlawful act not amounting to a felony, on the one hand, or a lawful act performed in an unlawful manner, on the other. A plurality of this Court found any error harmless. In State v. Roedl, 107 Utah 538, 155 P.2d 741 (1945), the error assigned dealt with an instruction on murder in the first degree. Again, this Court found any error in the instruction harmless. In State v. Thompson, 110 Utah 113, 170 P.2d 153 (1946), a unanimous jury verdict on a first degree murder charge based either on a "depraved mind regardless of human life" or "malice aforethought" theory was attacked on appeal as containing two different theories precluding unanimity. The Thompson Court found it unnecessary to address the issue as the disputed instruction to the jury had contained the limiting language that "all of the jurors must concur as to either one or the other of the kinds of murder above referred to...." (Emphasis added.) Thus, the question presented by defendant in the instant case has never been squarely decided by this Court.

Many jurisdictions have considered the scope of the constitutional requirement of a unanimous jury verdict in criminal cases. The decisions are virtually unanimous that a defendant is not entitled to a unanimous verdict on the precise manner in which the crime was committed, or by which of several alternative methods or modes, or under which interpretation of the evidence so long as there is substantial evidence to support each of the methods, modes, or manners charged. One of the earliest cases is a decision of the Court of Appeals of New York in 1903, People v. Sullivan, 173 N.Y. 122, 65 N.E. 989. In that case, the defendant was charged with premeditated murder or murder committed during the commission of a felony. In answer to the defendant's contention that the jury had to be unanimous upon which theory it convicted him, the court stated the following, which has been quoted and relied upon by many subsequent cases:

There was but a single crime charged in the indictment against the defendant,--that of murder in the first degree; and the only issue to be determined by the jury was whether the defendant had been guilty of that crime. Under our statute (section 183, Pen.Code), so far as applicable to the case before us, proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony, or an attempt to commit a felony, though without any design to take life, established his guilt of the crime charged. "It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other."

65 N.E. at 989-90 (citation omitted). Other cases which are in accord that the jury does not have to be unanimous as to whether the defendant committed premeditated murder or felony murder are Newsted v. State, 720 P.2d 734 (Okla.Crim.App.1986); State v. Ellison, 36 Wash.App. 564, 676 P.2d 531 (1984); State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982); State v. Williams, 285 N.W.2d 248 (Iowa 1979) (dicta), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980); People v. Fullwood, 51 Mich.App. 476, 215 N.W.2d 594 (1974); People v. Milan, 9 Cal.3d 185, 107 Cal.Rptr. 68, 507 P.2d 956 (1973); State v. Reyes, 209 Or. 595, 308 P.2d 182 (1957).

The rule of People v. Sullivan, supra, has also been employed in cases where the defendant was convicted of assault. In State v. James, 698 P.2d 1161 (Alaska 1985), the jury was instructed that it could find the defendant guilty if it unanimously agreed that he had committed first degree assault as described in either of two subsections of the statute. One subsection required an intent to cause serious physical injury to another person. The other subsection required the intentional performing of an act that results in serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. Similarly, in Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978), the court relying upon People v. Sullivan, supra, held that the jury in convicting the defendant of assault did not have to be unanimous as to whether he (1) intended to cause serious physical injury, or (...