State v. Sherard

• Decision Date: 10 September 1991
• Docket Number: No. 890383-CA,890383-CA
• Citation: 818 P.2d 554
• Parties: STATE of Utah, Plaintiff and Appellee, v. Venus Ann SHERARD, Defendand and Appellant.
• Court: Utah Court of Appeals

Page 554

818 P.2d 554

STATE of Utah, Plaintiff and Appellee, v. Venus Ann SHERARD, Defendand and Appellant.

No. 890383-CA.

Court of Appeals of Utah.

Sept. 10, 1991.

James C. Bradshaw, Joan C. Watt and Elizabeth Holbrook (argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Atty. Gen., and Christine F. Soltis, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.

Before BILLINGS, ORME and RUSSON, JJ.

OPINION

RUSSON, Judge:

Venus Ann Sherard appeals her conviction of criminal homicide, murder in the second degree, a first degree felony in violation of Utah Code Ann. § 76-5-203 (1990). We affirm.

FACTS

We review the facts in the light most favorable to the jury's verdict. State v. Pascual, 804 P.2d 553, 554 (Utah App.1991).

At approximately 10:00 p.m. on March 7, 1987, Sherard, with friends, went to a party at Vikki Salazar's home. The party had started around 7:00 p.m. When Sherard arrived, about thirty to forty people were present, most of whom were drinking.

A short time after Sherard's arrival, Ruby Kelly, the victim in this case, arrived at the party with two friends, Kristi Bray and Tanya Benns. Sherard did not know Kelly, but did know Benns, who was a member of a rival gang. Benns began arguing with Sherard and others, and in response, Salazar asked Kelly and her friends to leave. Despite Salazar's protestations, Sherard offered to leave instead.

When Sherard reached the front yard of Salazar's house, she met one of her friends whose face was bloody. The friend said that Kelly had hit her. In response, Sherard said that she wanted to fight Kelly, and subsequently a fight broke out between the two women. Kelly had the better of the fight, and eventually Sherard conceded. As Sherard walked away, Benns taunted her to continue the fight. According to one witness, Eloy Esquibel, before resuming the fight, Sherard asked him for a knife, which he gave her. Additionally, at least two witnesses heard someone shout that Sherard had a knife; another testified that he actually saw the knife in Sherard's hand. Sherard testified that Esquibel put "something" into her hand, which she did not look at, but believed was a knife.

Sherard returned, and the fight resumed, moving into the street. According to several witnesses, Sherard delivered several uppercuts to Kelly's torso. Jeff Salazar, one witness to the fight, testified that he saw Sherard uppercut Kelly with the knife in her hand. Todd Kingston, another witness to the fight, testified that after the fight he took a knife from Sherard and threw it away; several other witnesses saw him do so. Additionally, Tommy Quintana, a friend of Sherard, testified that Sherard told him that she had stabbed Kelly. Kelly died from nine stab wounds.

Sherard was subsequently tried by a jury and convicted of murder in the second degree. Sherard appeals that conviction, raising the following four points: (1) Was there sufficient evidence presented at trial to sustain her conviction for murder in the second degree? (2) Did the trial court abuse its discretion in limiting the voir dire of the prospective jurors? (3) Did the trial court properly deny her request for a jury instruction on negligent homicide? (4) Did the trial court commit reversible error in its instructions to the jury on self-defense and mutual combat?

I. SUFFICIENCY OF THE EVIDENCE

Sherard argues that the evidence presented at trial was insufficient to sustain a conviction for murder in the second degree. ¹ On appeal, we review the evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict. State v. Harman, 767 P.2d 567, 568 (Utah App.1989) (citing State v. Petree, 659 P.2d 443, 444 (Utah 1983)). We do not weigh conflicting evidence, nor do we substitute our own judgment on the credibility of the witnesses for that of the jury. State v. Hopkins, 782 P.2d 475, 477 (Utah 1989); see also State v. Lactod, 761 P.2d 23, 28 (Utah App.1988). On appeal, we will reverse only if the evidence "is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt" that the defendant committed the crime of which she was convicted. State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989) (citations omitted); see also Petree, 659 P.2d at 444; State v. Jonas, 793 P.2d 902, 903-04 (Utah App.1990).

The jury was instructed on second degree murder as follows:

Before you can convict the defendant, Venus Ann Sherard, of the crime of Criminal Homicide--Murder in the Second Degree, as charged in the Information on file in this case, you must find from all of the evidence beyond a reasonable doubt, all of the following elements of that offense.

1. That on or about the 7th day of March, 1987, in Salt Lake County, State of Utah, the defendant, Venus Ann Sherard, caused the death of Ruby Kelly; and

2. That said defendant then and there did so: (a) intentionally or knowingly; or (b) intending to cause serious bodily injury to another, she committed an act clearly dangerous to human life; or (c) knowingly acting under circumstances evidencing a depraved indifference to human life, she engaged in conduct which created a grave risk [of] death to another;

3. That said defendant caused the death in an unlawful manner and without justification.

If you are convinced of the truth of each and every one of the foregoing elements beyond a reasonable doubt, then you must find the defendant guilty of the offense of Criminal Homicide, Murder in the Second Degree as charged in the Information.

If, on the other hand, you find that the State has failed to prove any of these elements beyond a reasonable doubt then you must find the defendant not guilty.

Viewing the evidence and inferences therefrom in the light most favorable to the jury's verdict, it is sufficiently conclusive to support the said verdict. As to the first element, all witnesses' accounts of the fight support the conclusion that Sherard caused the death of Kelly. As to the second element, Sherard's own testimony that Eloy Esquibel gave her something "heavy and ... real cold and real hard like metal or something," which she believed was a knife, and that she punched Kelly with it numerous times, evidences, at the very least, a depraved indifference to human life. This conclusion is further supported by the testimony of numerous witnesses who recounted Sherard's desire to fight Kelly, Eloy Esquibel's testimony that Sherard asked him for a knife before resuming the fight, and various witnesses' accounts of the second fight, including Jeff Salazar's testimony that he actually saw Sherard uppercut Kelly with a knife in her hand. As to the third element, although Sherard testified that she acted in self-defense, several witnesses testified that Sherard returned to Kelly and, without justification, resumed the fight. Given the amount of evidence which supports the State's case, we cannot say that reasonable minds must have entertained a reasonable doubt that Sherard was guilty of second degree murder, and therefore conclude that the evidence was sufficient to support the jury's verdict.

II. VOIR DIRE

Sherard next claims that the trial court erred in limiting the voir dire of the prospective jurors. Specifically, she objects to the extent of the trial court's inquiry as to: (1) the relationship or contact between prospective jurors and Ruby Kelly's family, (2) group affiliations, (3) experience with and attitude toward alcohol, (4) experience with and attitude toward violence, and (5) exposure to publicity.

Voir dire exists to detect bias justifying a challenge for cause and to assist counsel in the intelligent use of peremptory challenges. Doe v. Hafen, 772 P.2d 456, 457 (Utah App.) (citing State v. Worthen, 765 P.2d 839, 844 (Utah 1988) and Hornsby v. Corporation of the Presiding Bishop, 758 P.2d 929, 932 (Utah App.), cert. denied, 773 P.2d 45 (Utah 1988)), cert. granted 789 P.2d 33 (Utah 1989). The extent of voir dire is within the discretion of the trial judge, as long as counsel is given adequate information with which to evaluate prospective jurors. Id. Moreover, "whether the judge has abused that discretion is determined, not by considering isolated questions, but 'considering the totality of the questioning.' " Id. at 457-58 (quoting State v. Bishop, 753 P.2d 439, 448 (Utah 1988)).

Sherard's first voir dire issue, concerning the relationship or contact between prospective jurors and Ruby Kelly's family, was not properly preserved for appeal. When asked to pass the jury for cause, defense counsel objected to the omission of several requested areas of inquiry, including the other matters raised on appeal herein. However, defense counsel did not object to the lack of inquiry into the relationship or contact between prospective jurors and Ruby Kelly's family. Utah Rule of Criminal Procedure 20 provides that counsel "state his objections to the actions of the court and the reasons therefor." See also Doe v. Hafen, 772 P.2d at 458. Since defense counsel failed to do so as to this issue, it was not properly preserved for appeal.

Sherard's second claim of inadequate voir dire, group affiliations of the prospective jurors, also fails. The two requested questions in this area that were not asked by the trial court were:

Do you belong to any clubs or organizations? Which ones?

What kinds of hobbies and leisure time activities do you enjoy?

On appeal, Sherard claims that this area of inquiry would have revealed whether potential jurors could relate to the lifestyle of gang members or find such lifestyle opprobrious. However, she fails to support this blanket claim with any argument or analysis as to how either of the requested questions is probative of prospective jurors' opinions on the lifestyle of gang members. Moreover, this was never given as a reason for requesting these questions below. Since the trial courts have been instructed...