State v. Standiford, 20345

Citation769 P.2d 254
Decision Date30 December 1988
Docket NumberNo. 20345,20345
PartiesSTATE of Utah, Plaintiff and Appellee, v. Fred W. STANDIFORD, Defendant and Appellant.
CourtSupreme Court of Utah

David L. Wilkinson, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

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

STEWART, Justice:

Defendant Fred W. Standiford was convicted of second degree murder for the fatal stabbing of Hisae Wood. He appeals the conviction on a variety of grounds. We affirm.

I. THE FACTS

Sometime between 3:00 a.m. and 4:00 a.m. on April 27, 1984, Hisae Wood was stabbed to death in an assault during which 107 stab wounds were inflicted on her body. Earlier that night, Standiford had been in his garage with his friend, Joey Granato, painting Granato's Jeep. Twice during the evening, Standiford and Granato went to Wood's residence to purchase cocaine. After each trip, Standiford and Granato freebased the cocaine and then resumed painting the Jeep. Around 4:00 a.m., Standiford told Granato that he was going to a convenience store to buy cigarettes. Although he was gone longer than necessary for that errand, his behavior was not unusual when he returned. When Standiford revealed that he had more cocaine, Granato asked if Standiford had returned to the Woods' residence. Standiford replied that he had not and indicated that he had merely saved the cocaine from one of their earlier purchases.

The next day, Standiford contacted Granato and asked if he had heard that Mrs. Wood had been murdered. Later that day, Standiford was questioned by the police. Afterwards, he told Granato that they were both in trouble and that if the police asked, Granato should tell the police that he and Standiford had not left the garage all night. Granato became concerned, contacted the police, and volunteered a statement about his and Standiford's whereabouts and their cocaine purchases. Based on Granato's statement, the police searched Standiford's house and garage and found incriminating evidence.

When confronted with Granato's statement, Standiford confessed to killing Mrs. Wood but claimed that he had acted in self-defense. He asserted that Mrs. Wood came after him with a gun, screaming in Japanese, and grabbed him. He seized the closest weapon, a kitchen knife, intending only to scare her, and since the threat of the knife did not stop her, he just started swinging the knife. After he realized that Mrs. Wood was dead, Standiford went into the kitchen and washed his hands and the knife, wiped off his fingerprints with a kitchen towel, and turned off the lights in the house. He then took a bag of cocaine, the knife, and the gun allegedly brandished by Mrs. Wood and left. After disposing of the knife, he stopped at a convenience store and then returned home, where he changed his clothes and hid the evidence. The gun he said he took was not found.

Another of Standiford's friends, Don Bendixen, testified that several days prior to the incident, Standiford had mentioned to him that Mrs. Wood's husband was going to be out of town and that it would be easy to "knock her out and possibly kill her and take everything she has." When Bendixen commented that that was "crazy thinking," Standiford replied that he was only joking.

After Standiford was charged, defense counsel contacted Dr. Lincoln Clark, a psychiatrist, and asked him to evaluate Standiford's case to determine whether he could assist the defense. Counsel gave Dr. Clark defendant's file, which consisted of police reports and a transcript of Standiford's taped confession. Defendant asserts that it may have also contained a handwritten statement of facts prepared by Standiford for his attorney, although Dr. Clark testified that he did not remember reviewing any handwritten statement. The next day, Dr. Clark informed counsel that his opinion would not help the defense and that the file could be picked up. At trial, Dr. Clark testified on behalf of the prosecution and in rebuttal to defendant's expert that Standiford's drug abuse was not a significant factor in committing the homicide.

II. JURY UNANIMITY ON TYPE OF SECOND DEGREE MURDER

Defendant argues that the jury instructions on second degree murder violated his right to a unanimous jury verdict under article I, section 10 of the Utah Constitution because they did not specifically require jury unanimity as to whether the mens rea found by the jury was intent to kill, intent to cause grievous bodily harm, or knowing conduct that created a grave risk of death with depraved indifference to human life. State v. Russell, 733 P.2d 162 (Utah 1987), held that a jury does not have to be unanimous in deciding which of the three culpable mental states it finds in convicting of second degree murder, as long as the jurors are unanimous that one or another form of second degree murder was committed. That holding was based on the historical development of the crime of murder with malice aforethought 1 and on the similarity of the culpability required by the three alternatives. Compare State v. Tillman, 750 P.2d 546, 577-80, 585-88 (Utah 1988) (Stewart, J., concurring and concurring in the result and Durham, J., concurring and dissenting), where a majority of the Court held that jury unanimity is necessary as to all other elements in criminal cases. See also State v. Rasmussen, 92 Utah 357, 68 P.2d 176 (1937).

III. JURY INSTRUCTIONS
A. Malice Aforethought: Second Degree Murder

Standiford asserts that the trial court erred in failing to instruct the jury that second degree murder required proof of "malice aforethought." Prior to the adoption of Utah's current criminal code in 1973, murder was defined as "the unlawful killing of a human being with malice aforethought." Utah Code Ann. § 76-30-1 (1953) (repealed 1973). Defendant relies on Farrow v. Smith, 541 P.2d 1107, 1109 (Utah 1975), for the proposition that the trial court should have instructed on malice aforethought. In Farrow, the Court stated in dictum:

For many years the definition of second degree murder has been the unlawful killing of a human being with malice aforethought, and ... manslaughter was the unlawful killing of a human being without malice. In our opinion the new criminal code has not changed those definitions.

In at least one other case, this Court has also referred to "malice aforethought." State v. Norman, 580 P.2d 237, 240 (Utah 1978).

The present criminal code abandoned the common law terminology of malice aforethought and adopted more descriptive and precise language describing the requisite culpable mental states in defining the various crimes. Since the term "malice aforethought" is a confusing carry-over from prior law and can lead to confusion, if not error, it should no longer be used. The present second degree murder statute sets forth the necessary mental states required for each type of second degree murder, except as modified by case law. See State v. Bolsinger, 699 P.2d 1214 (Utah 1985); State v. Fontana, 680 P.2d 1042 (Utah 1984). The statute provides:

Murder in the second degree--(1) Criminal homicide constitutes murder in the second degree if the actor:

(a) intentionally or knowingly causes the death of another;

(b) intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another;

(c) acting under circumstances evidencing a depraved indifference to human life, he engages in conduct which creates a grave risk of death to another and thereby causes the death of another; or

(d) while in the commission, attempted commission, or immediate flight from the commission or attempted commission of [certain enumerated felonies], [the actor] causes the death of another person other than a party....

Utah Code Ann. § 76-5-203 (Supp.1988).

Thus, the culpable mental states included in the second degree murder statute are (1) an intent to kill, (2) an intent to inflict serious bodily harm, (3) conduct knowingly engaged in and evidencing a depraved indifference to human life, and (4) intent to commit a felony other than murder.

These terms are comparable to the old malice aforethought, but are much more precise and less confusing. The statute treats these forms of homicide as having similar culpability. Second degree murder is based on a very high degree of moral culpability. That culpability arises either from an actual intent to kill or from a mental state that is essentially equivalent thereto--such as intending grievous bodily injury and knowingly creating a very high risk of death. The risk of death in the latter two instances must be so great as to evidence such an indifference to life as to be tantamount to that evidenced by an intent to kill. In contrast, the felony-murder provision of the second degree murder statute is something of an exception to the above principle, as it does not require an intent to kill or any similar mental state.

The trial court framed its second degree murder and manslaughter instructions in the statutory language and correctly refused to give defendant's requested malice aforethought and absence of malice instructions. See Bolsinger, 699 P.2d 1214; Fontana, 680 P.2d 1042. To the extent that Farrow v. Smith, State v. Norman, and any other cases have perpetuated the use of malice aforethought with respect to second degree murder, they are disapproved.

B. Manslaughter

Defendant also challenges the trial court's refusal to give his requested heat-of-passion manslaughter instruction. The common law, and our previous law, defined manslaughter, inter alia, as a killing committed without malice, and the term "without malice" meant a homicide committed either (1) in the "heat of passion" for which there was an adequate provocation, or (2) by an unduly dangerous or otherwise unlawful act. Instead of incorporating the "heat of passion" standard, the current criminal code redefined that type of manslaughter to describe...

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