State v. Schreuder

Citation712 P.2d 264
Decision Date27 December 1985
Docket NumberNo. 18735,18735
PartiesSTATE of Utah, Plaintiff and Respondent, v. Marc Francis SCHREUDER, Defendant and Appellant.
CourtSupreme Court of Utah

Walter Bugden, Salt Lake City, R. Paul Van Dam, Robert B. Denton, Cahoon Mansion, Murray, for defendant and appellant.

David L. Wilkinson, Atty. Gen., Earl F. Dorius, Asst. Atty. Gen., Ernest W. Jones, Deputy Co. Atty., Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

The defendant was convicted of murder in the second degree for shooting and killing his grandfather, Franklin Bradshaw, on July 23, 1978, when the defendant was seventeen years old. The defendant was sentenced to a term of five years to life in the Utah State Prison and fined $10,000. The trial court applied U.C.A., 1953, § 76-3-203, the firearm enhancement statute, and sentenced the defendant to separate terms of one year and up to five years, each term to run consecutively with the other portions of the sentence. The defendant has raised ten separate issues for consideration on appeal. Those issues relate to the preliminary hearing, the pretrial stage of the prosecution, the errors alleged at trial, and the post-trial imposition of sentence. After summarizing the evidentiary and procedural facts, we will deal separately with the issues in each of the foregoing categories.

During the trial, the defendant admitted killing his grandfather. He maintained that he should be convicted only of manslaughter because he was under extreme mental and emotional disturbance due to his relationship with his mother and her pressure on him to commit the murder. The defendant testified that his mother, Frances Schreuder, feared that the victim, Franklin Bradshaw, would disinherit her and her family. The evidence showed that the defendant purchased a .357 magnum pistol in Midland, Texas, on July 22, 1978, flew to Salt Lake City the same day, and shot his grandfather on July 23, 1978, at 8:30 a.m.

Richard Behrens, a resident of New York and an acquaintance of the Schreuder family, testified that Frances Schreuder had asked him several times for the name of a person who would kill her father, Franklin Bradshaw, for a fee. Behrens also testified that the defendant had told him that he had killed his grandfather at Mrs. Schreuder's insistence and that the defendant had described the manner of the killing and told him that he had brought the gun back to his mother in New York. According to Behrens' testimony, Frances Schreuder gave the gun to him and he subsequently delivered it to Marilyn Reagan, Mrs. Schreuder's sister, who eventually delivered it to the New York City police.

The foregoing testimony was given by Behrens at the preliminary hearing and again at trial. In December of 1980, however, after the preliminary hearing and before trial, Behrens made two sworn statements that Marilyn Reagan had killed Bradshaw and that she had kept the gun all along. Behrens said at trial that these statements were untrue and that he had given them to the defendant's attorneys because he had been frightened by statements made to him by Frances Schreuder indicating that he was an accessory to murder because he had concealed the gun. After Utah prosecutors brought charges against Behrens for obstructing justice, Behrens returned to his original story as told at the preliminary hearing.

The New York City police delivered the gun to the police in Salt Lake City, who in turn delivered it, together with two bullets taken from Franklin Bradshaw's body, to a ballistics expert named Peterson in California. Peterson test-fired the gun and compared the markings on the test bullet with those on the bullets taken from the body. He testified at the preliminary hearing and at trial that the striations on one of the bullets taken from the body matched those on the test bullet. His testimony was inconclusive as to the other bullet.

I. ISSUES RELATING TO THE PRELIMINARY HEARING

The defendant has raised three issues relating to his preliminary hearing: (1) did the district court have jurisdiction to conduct the preliminary hearing? (2) were the defendant's due process and confrontation rights violated by the admission of the opinion testimony of the ballistic expert at the preliminary hearing? and (3) was the defendant deprived of equal protection of the law by virtue of being unable to seek review in a superior court of the bind-over ruling after the preliminary hearing in district court?

A. Jurisdiction of the district court to conduct a preliminary hearing. Because the defendant was seventeen years old at the time of the murder, a certification hearing was held in juvenile court to determine whether it should retain jurisdiction. The juvenile court ruled, pursuant to U.C.A., 1953, § 78-3a-25(1), that the defendant should be tried as an adult and certified the case to the district court. The statute provides that once a case is certified from juvenile court to district court, the child is to "be held for criminal proceedings ... with a hearing before a committing magistrate to be held as in other felony cases." U.C.A., 1953, § 78-3a-25(1). A preliminary hearing was held by a district court judge sitting as a committing magistrate in March of 1982.

The defendant claims that the district court judge was without authority to act as a committing magistrate because such a procedure violates the requirement of the statute that the hearing be "held as in other felony cases." In other felony cases, preliminary hearings are conducted in circuit court. He also relies on the language of section 78-3a-25(9) (1977), which states that the juvenile court shall regain jurisdiction over a juvenile whose case is in the adult system when "[a] magistrate of the circuit court determines that there is insufficient probable cause for the juvenile to stand trial on the allegation or amended allegations...." The defendant claims that the reference to a circuit court judge makes it clear that the statute contemplates that preliminary hearings in certified cases must be conducted in the circuit court. While we agree that the language cited supports the defendant's position, we do not agree that this indirect statutory reference constitutes a jurisdictional mandate. The general provisions contained in section 77-35-7 governing proceedings before magistrates do not preclude district court judges from sitting as magistrates. There is only one phrase contained in section 77-35-7(d)(3) that even refers to any of the courts. It says, "If the magistrate orders the defendant bound over to the district court, the magistrate shall execute in writing a bind-over order and shall forthwith transmit to the clerk of the district court all pleadings in and records made of the proceedings before the magistrate...." Again, while the statute implies that magistrates will ordinarily sit in courts other than the district court, it does not contain any jurisdictional limitations.

Furthermore, we are not inclined to read into any of the above statutes a jurisdictional limitation that is not explicit. In the definitional section of the Utah Code of Criminal Procedure, U.C.A., 1953, § 77-1-3, "magistrate" is specifically defined as "a justice of the supreme court, a judge of the district courts, a judge of the juvenile courts, a judge of the circuit courts and a justice of the peace or a judge of any court created by law...." There is no indication that the use of the term "magistrate" in section 77-35-7 has a fundamental definition that is more narrow than that applicable in the rest of the Code. Section 78-4-5 (Supp.1985) refers to some of the powers of a magistrate. In specifying that circuit court judges may exercise those powers, section 78-4-5 provides:

The judge of the circuit court shall have and exercise the powers and jurisdiction of a magistrate, including proceedings for the preliminary examination to determine probable cause....

The foregoing language, in conjunction with the statutory definition of the term "magistrate," makes it clear that circuit court judges do not have exclusive jurisdiction to conduct preliminary examinations. Whether the statutes intended that preliminary examinations in cases involving juveniles certified for trial as adults be conducted in the circuit courts rather than in the district courts is uncertain, since the statutes contain several ambiguities. But there can be no uncertainty about the fundamental jurisdiction of a district court judge to sit as a magistrate and conduct a preliminary examination for purposes of determining probable cause for a bind-over for trial on felony charges. We believe that the language of U.C.A., 1953, § 78-3-4 is conclusive on that issue: "The district court shall have original jurisdiction in all matters civil and criminal, not excepted in the Constitution and not prohibited by law...." (Emphasis added.) Thus the circuit and district courts have concurrent jurisdiction to conduct preliminary hearings.

B. Admission of expert ballistics testimony at the preliminary hearing. The defendant objected at the preliminary hearing to the admission of the opinion testimony of the ballistics expert on the ground that there was inadequate foundation to permit proper cross-examination. Peterson, a ballistics expert with the Federal Bureau of Alcohol, Tobacco & Firearms, testified that he had compared a bullet fired from the alleged murder weapon with bullets taken from the body of Franklin Bradshaw, the victim. Peterson testified that his comparison showed that the test bullet and one of the other bullets matched in their caliber and in the striations created by the passage of the bullets through the gun barrel. Peterson then stated that in his opinion the match indicated that the two bullets were fired by the same gun. Peterson was, however, unable at the preliminary hearing to give an exact description of the striations, nor did he have photographs of them available with him in court.

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    ...“may be required” to call such a witness in order “to demonstrate [the witness'] unavailability.” Id.; see also State v. Schreuder,712 P.2d 264, 274 (Utah 1985)(explaining that it was not misconduct when an attorney “merely called [a witness] to testify under oath before the trial judge abo......
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1 books & journal articles
  • Letters to the Editor
    • United States
    • Utah State Bar Utah Bar Journal No. 11-6, January 1998
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