State v. Tillman

Citation750 P.2d 546
Decision Date22 December 1987
Docket NumberNo. 19000,19000
PartiesSTATE of Utah, Plaintiff and Respondent, v. Elroy TILLMAN, Defendant and Appellant.
CourtSupreme Court of Utah

Martin Verhoef, James N. Barber, David E. Yocom, Salt Lake City, for defendant and appellant.

David L. Wilkinson, David B. Thompson, Salt Lake City, for plaintiff and respondent.

HALL, Chief Justice:

After a trial before a jury, defendant was convicted of first degree murder in violation of Utah Code Ann. § 76-5-202 (1978) (amended 1983, 1984 & 1985) and sentenced to death. On appeal, he raises ten points of error.

I. FACTS

On May 26, 1982, Mark Schoenfeld was found dead in his smoke-filled apartment. He was lying on a smoldering bed, and his body was badly burned. Experts determined that the fire had been deliberately started and that its point of origin was the victim's mattress. Although the victim had received several severe blows to the head, the primary cause of death was asphyxiation. The evidence indicated, however, that the blows to the victim's head could have produced fatal brain damage independent of the fire.

Defendant's former girlfriend, Lori Groneman, had been dating the victim at the time of his death. Groneman had been with the victim earlier in the evening on the night he was killed. On the basis of information provided by Groneman, defendant was arrested by the police.

At trial, Groneman testified that she had known defendant for over five years and that after breaking off their relationship in January 1982, she had repeatedly received threatening phone calls from defendant and a female caller who did not identify herself. Groneman also said that defendant had followed her and the victim on at least three occasions and that defendant had further harassed and threatened her.

Carla Sagers, defendant's girlfriend at the time of the murder, was picked up by the police a few days after the murder. Although she originally confirmed the alibi defendant had given the police, 1 Sagers later recanted her statement and became the State's key witness, for which she was granted immunity from prosecution. Apparently, Sagers recanted her initial statement after the police confronted her with the fact that Groneman had identified Sagers' voice as that of the female who had made the threatening calls.

Sagers testified at trial that she had been romantically involved with defendant and that she had made the calls to Groneman at his request. Sagers also testified that in March 1982, defendant began to talk about killing Groneman, but later decided to kill the victim instead. Sagers described how, at various times before the murder, defendant discussed a number of alternative means of killing the victim, including poisoning him or using a bomb. At defendant's request, Sagers purchased two handguns. Sagers also helped locate the victim's address and learn the physical layout of the victim's home. In March 1982, defendant and Sagers went to the victim's house to shoot him, but did not commit the crime.

On the night of May 25, however, defendant and Sagers again went to the victim's home intending to kill him. Both defendant and Sagers entered the house and sat in the dark near the victim's front door. After waiting for what Sagers estimated to be about an hour, defendant crept to the victim's bedroom door, slowly opened it, and after finding that it was too dark to see, went to the kitchen and briefly turned on a light. Defendant then went back to the bedroom and crawled inside. Once in the bedroom, defendant whispered for Sagers to again turn on the kitchen light. Then defendant hit the victim several times in the head with an ax. While the victim was still alive and after Sagers suggested that they start a fire to cover up the homicide, defendant ignited the victim's mattress and scattered cigarette butts around the room to create the impression that the fire had been caused by a burning cigarette. Defendant and Sagers then left the house and disposed of the evidence used in the crime: a towel (which was used to wipe blood off the wall) and an article of clothing (which had been placed over the victim's head) were burned; the ax was thrown into a river; and defendant's gloves were discarded. The two then returned to defendant's apartment.

During the course of the homicide investigation, Sagers directed the police to the places where the evidence had been disposed of, and the police recovered the gloves, the burned towel, and the burned piece of clothing. The ax was never recovered.

Defendant was tried and convicted of first degree murder and sentenced to death.

II. SCOPE OF APPELLATE REVIEW IN DEATH PENALTY CASES

The State responds to a number of defendant's claims of reversible error by urging this Court not to consider or rule on such claims because they were inadequately preserved at trial. We decline to adopt that approach and instruct the State to hereafter brief all issues on their merits in death penalty cases.

A general rule of appellate review in criminal cases in Utah is that a contemporaneous objection or some form of specific preservation of claims of error must be made a part of the trial court record before an appellate court will review such claim on appeal. 2 As early as 1931, however, this Court recognized an exception to the general rule governing the scope of appellate review in criminal cases where the death penalty was imposed. In State v. Stenback, 3 this Court reviewed errors not objected to at trial but complained of on appeal. 4 Similarly, in State v. Cobo, 5 this Court noticed an error assigned on appeal which counsel for the defendant had failed to take exception to at trial. 6 While this Court continues to review such cases pursuant to Utah Code Ann. § 76-3-206(2) (1978) 7 and § 76-3-207(4) (Supp.1987), 8 we do not abrogate a defendant's obligation or assume the role of an advocate by researching all applicable law and searching the entire record for each and every indication of possible or potential error. To do so would result in an impossible and inappropriate burden on this Court. Nevertheless, because of the serious and permanent nature of the penalty imposed in such cases, there needs to continue to be a death penalty exception to the contemporaneous objection rule. 9 Accordingly, this Court has customarily considered assignments of error which were not preserved at trial but were raised and briefed for the first time on appeal.

In this regard, we have in the last several years discussed the death penalty appellate scope of review in four decisions: State v. Pierre, 10 State v. Codianna, 11 State v. Wood, 12 and State v. Norton, 13 Therein, while this Court did not assume the responsibility of reviewing the entire record searching for nonassigned error, we considered, reviewed, and analyzed arguments raised for the first time on appeal. 14

Also, in Wood, this Court stated: "On direct appeal in capital cases, it is the established rule that this Court will review an error, even though no proper objection was made at trial and even though the error was not raised on appeal, if the error was manifest and prejudicial." 15 Neither Wood nor its progenitors support the contention that this Court will review the entire record for error, whether or not preserved at trial or assigned on appeal. 16 Rather, they uphold the correct and well-established proposition that, notwithstanding our rule in death penalty cases that we review all errors raised on appeal (whether or not objected to at trial or initially assigned as error), 17 we have the sua sponte prerogative in such cases to notice, consider, and correct manifest and prejudicial error which is not objected to at trial or assigned on appeal, but is palpably apparent on the face of the record. 18 Not only is such standard in keeping with controlling statutory and case law, but it also furthers the policy of safeguarding a defendant's right to a fair trial in a death penalty case by permitting review of the proceedings below even in the absence of compliance with procedural technicalities.

Therefore, pursuant to the above analysis and rationale, this Court continues to uphold the established rule in death penalty cases as follows: This Court will review errors raised and briefed on appeal in death penalty cases, even though no proper objection was made at trial, but will reverse a conviction based upon such errors only if they meet the manifest and prejudicial error standard. 19 In addition, this Court has the power to notice manifest ("palpable") error apparent in the record and correct a conviction based upon the same if the error is prejudicial, even though such error is not objected to at trial or assigned on appeal. 20 This formulation best supports the past practices of this Court, as well as our continuing responsibility to insure that the sentence of death meets the concerns of Furman v. Georgia. 21

III. PROSECUTOR'S COMMENTS

During both the guilt and penalty phases of the trial, the prosecutor made comments which defendant claims deprived him of a fair trial. Although defendant failed to make contemporaneous objections to the prosecutor's allegedly improper comments, we have reviewed the record and determined that the comments do not warrant reversal of defendant's conviction and sentence.

A. Comment on Defendant's Failure to Testify

Defendant claims the prosecutor indirectly commented on his failure to testify at trial and suggested to the jury that defendant's silence implied guilt. First, defendant relies on comments made by the prosecutor in his summation to the jury during the guilt phase of trial. In discussing Sagers' credibility and the defense theory that she was responsible for the murder, the prosecutor stated:

Now, you saw Carla Sagers sit on the stand. Did you see anything about her or any evidence revealed about her that could show you that Carla Sagers, on her own, could take an ax or a hatchet ......

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