State v. Swapp

• Decision Date: 01 March 1991
• Docket Number: No. 890087-CA,890087-CA
• Citation: 808 P.2d 115
• Parties: STATE of Utah, Plaintiff and Appellee, v. Addam W. SWAPP, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 115

808 P.2d 115

STATE of Utah, Plaintiff and Appellee, v. Addam W. SWAPP, Defendant and Appellant.

No. 890087-CA.

Court of Appeals of Utah.

March 1, 1991.

John R. Bucher (argued), Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., Creighton C. Horton II (argued), Asst. Atty. Gen., Salt Lake City, for plaintiff and appellee.

Before BILLINGS, GARFF and ORME, JJ.

OPINION

BILLINGS, Judge:

Defendant Addam Swapp appeals from a jury verdict finding him guilty of manslaughter, a second degree felony, in violation of Utah Code Ann. § 76-5-205 (1988). Defendant claims the trial court erred in denying his motion for a bill of particulars and by sentencing him to a term consecutive to the sentence imposed upon him in federal court. We affirm.

On January 16, 1988, a bomb exploded in Marion, Utah, severely damaging a chapel owned by the Church of Jesus Christ of Latter-day Saints (the "Mormons"). Local police responding to the scene found a trail of footprints in the snow, leading to defendant's farm. ¹

Local police immediately contacted federal authorities, as defendant had fired warning shots at them when they had previously attempted to enter the property. An F.B.I. agent contacted defendant by telephone. The agent informed defendant that the property was surrounded and that law enforcement wanted a peaceful solution. Defendant told the agent he had expected the confrontation and that his family was prepared for a siege and could hold out for months.

A thirteen-day standoff followed. Throughout the standoff, defendant and his brother openly carried firearms on their property and fired at lights, generators and loudspeakers, which had been set up to assist in the effort to bring the standoff to an end. Finally, members of the F.B.I. Hostage Rescue Team and Utah State Corrections Department dog handlers were called in to help end the standoff.

Law enforcement officers believed defendant was the leader, and that if he were captured, other family members would surrender. Several F.B.I. agents and corrections officers were able to enter, unobserved, one of the houses on the property, where they waited for a chance to capture defendant and his brother. On the morning of January 28, 1988, defendant and his brother left the main house, heavily armed as usual. Correction officers released the dogs, and shortly thereafter gunfire erupted from the main house. During the exchange, corrections officer Fred House was killed and defendant was wounded. Shortly after defendant was wounded, he and his family surrendered.

After being taken into custody, John Timothy Singer, a member of defendant's family, gave a statement to officers wherein he admitted that he was seated in his wheelchair in his bedroom looking out his window in the main home when the dogs were released. While Singer denied firing at people, he admitted he fired at the dogs, which would have been in the general direction of Officer House.

Based upon these events, defendant was charged with criminal homicide, in violation of Utah Code Ann. §§ 76-5-203 (1990), ² and 76-2-202 (1990) which details accomplice liability. ³ An affidavit of probable cause describing the facts surrounding the bombing, subsequent standoff, and shooting was filed with the information.

Before trial, defendant filed a motion for a bill of particulars. The state responded with a memorandum in response to defendant's motion for a bill of particulars, and included a memorandum of authority delineating the state's legal theories and repeating the exhaustive recitation of facts from the affidavit of probable cause supporting those theories. The trial court denied defendant's motion for a bill of particulars.

A jury convicted defendant of the lesser included offense of manslaughter, a violation of Utah Code Ann. § 76-5-205 (1990). Defendant was sentenced on January 26, 1989, to a term of not less than one year nor more than fifteen years in the Utah State Prison, his term to run consecutively to and at the end of any and all determinate sentences imposed upon defendant in federal court, with the limitation that his combined state and federal sentences could not exceed thirty years. ⁴

BILL OF PARTICULARS

Initially, defendant claims the trial court erred in denying his motion for a bill of particulars. We will not reverse the trial court's decision to deny a bill of particulars unless the trial court has abused its discretion. State v. Riddle, 112 Utah 356, 188 P.2d 449 (1948). When dealing with a claim that a defendant was not given adequate notice of the charges against him, we focus on whether the error "impeded the accused's ability to prepare for trial and meet the state's case." State v. Bell, 770 P.2d 100, 106 (Utah 1988).

Defendant claims the information was insufficient to put him on notice of the charges against him. Specifically, defendant maintains that because he was charged in the alternative with three possible theories of murder, Utah Code Ann. § 76-5-203(1)(a), (b), and (c), and also with committing the crime "on or about January 28, 1988" including all possible facts involved in the thirteen-day siege, and all possible combinations with the other two defendants, he had to guess "which facts would be used to support which theories and which combination of factors" would be used.

The state argues defendant was put on notice of the charges against him, as well as the factual basis for those charges, by the information, affidavit in support of probable cause and other pretrial memoranda. The state contends defendant knew the state's theory was that defendant put the events into action which ultimately resulted in the death of Officer House.

Article I, section 12 of the Utah Constitution guarantees that the accused in a criminal prosecution "shall have the right ... to demand the nature and cause of the accusation against him [and] to have a copy thereof." In State v. Fulton, 742 P.2d 1208 (Utah 1987), cert. denied, 484 U.S. 1044, 108 S.Ct. 777, 98 L.Ed.2d 864 (1988), the Utah Supreme Court, in interpreting this provision stated "that the accused [must] be given sufficient information 'so that he can know the particulars of the alleged wrongful conduct and can adequately prepare his defense.' " Id. at 1214 (citing State v. Burnett, 712 P.2d 260, 262 (Utah 1985)).

Normally this constitutional right to notice is implemented through Rule 4(b) of the Utah Rules of Criminal Procedure. ⁵ See, e.g., State v. Bell, 770 P.2d at 106. However, if the information or indictment fail to provide the accused with sufficient information to enable him to prepare a defense, he may request a bill of particulars. See id. at 104; Fulton, 742 P.2d at 1214. Rule 4(e) states:

When facts not set out in an information or indictment are required to inform a defendant of the nature and cause of the offense charged, so as to enable him to prepare his defense, the defendant may file a written motion for a bill of particulars.... The request for and contents of a bill of particulars shall be limited to a statement of factual information needed to set forth the essential elements of the particular offense charged.

Utah R.Crim.P. 4(e).

Recently, the Utah Supreme Court stated that an "information or indictment is legally sufficient even if it consists of nothing more than an extremely summary statement of the charge," provided the accused has sufficient information to prepare a defense. Bell, 770 P.2d at 104. Furthermore, the information can be supplemented with "a fact statement" detailing the facts which support the charge. Id. at 104. A fact statement, however, is not necessary in every case.

We note that a bill of particulars is not a device to enable the defendant to obtain a preview of the prosecution's evidence, State v. Robbins, 709 P.2d 771, 773 (Utah 1985) (citing State v. Lack, 118 Utah 128, 221 P.2d 852, 855 (1950)); State v. Moraine, 475 P.2d 831, 833 (Utah 1970). The accused is, however, entitled to whatever information the prosecutor has that may be useful in helping to fix the date, time and place of the offense. Robbins, 709 P.2d at 773.

Defendant relies principally on Bell to support his claim that the trial court abused its discretion when it failed to grant his motion for a bill of particulars. In Bell, the Utah Supreme Court reversed a conviction for racketeering, by means of drug trafficking, finding neither the indictment nor the bill of particulars gave the defendant sufficient notice of the charges against him to enable him to prepare a defense. The court concluded that the indictment, which merely repeated verbatim the broad, vague language of the racketeering statute without describing any factual circumstances constituting the crime charged, and stated that the crime had been committed during a ten-month period, failed to provide the defendant with sufficient notice of the facts underlying the charges. Id. at 105. Similarly, the bill of particulars the prosecution was ordered to provide failed to cure the problem as it did not articulate the factual basis of what "enterprise" was allegedly involved, an element of the offense. Id.

With this Utah authority before us, we review the information and supporting factual affidavit to determine if defendant was provided with adequate information to prepare his defense. The information filed in this case specifically stated that the defendant, his brother and Singer

on or about January 28, 1988 ... intentionally or knowingly caused the death of Fred House; and/or intending to cause serious bodily injury to another, said defendants committed an act clearly dangerous to human life that caused the death of Fred House; and/or acting under circumstances evidencing a depraved indifference to human life, said defendants knowingly engaged in conduct which created a grave risk of death to another and thereby caused the death of Fred House.

The information also charged defendant with violating Utah Code...