State v. Tuttle

• Decision Date: 12 April 1989
• Docket Number: No. 20068,20068
• Citation: 780 P.2d 1203
• Parties: STATE of Utah, Plaintiff and Appellee, v. Wesley Allen TUTTLE, Defendant and Appellant.
• Court: Utah Supreme Court

Page 1203

780 P.2d 1203

STATE of Utah, Plaintiff and Appellee, v. Wesley Allen TUTTLE, Defendant and Appellant.

No. 20068.

Supreme Court of Utah.

April 12, 1989.

Rehearing Denied Oct. 24, 1989.

Kenneth R. Brown, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, Sandra L. Sjogren, Salt Lake City, for plaintiff and appellee.

ZIMMERMAN, Justice:

Defendant Wesley Allen Tuttle appeals from his jury conviction of first degree murder, for which he received a life sentence. See Utah Code Ann. §§ 76-5-201, -202(1)(q) (Supp.1988). Tuttle makes three claims on appeal. He contends that the trial court erroneously forced him to waive his right to a jury in the penalty phase to avoid being tried by a "death qualified" jury in the guilt phase; that the trial court erred in admitting hypnotically enhanced testimony and in excluding expert testimony that hypnotically enhanced testimony is unreliable; and that section 76-5-202(1)(q) of the Code, which classifies a knowing or intentional killing committed in an "especially heinous, atrocious, cruel, or exceptionally depraved manner" as first degree murder, is unconstitutional. We reject Tuttle's first claim. We agree with his second claim, but find that the error was harmless. With respect to his third claim, although we do not agree that section 76-5-202(1)(q) is facially unconstitutional, when the statute is construed to be constitutional, it cannot apply to the facts of this case. However, we do find that all the elements of second degree murder were necessarily proven. We therefore reverse and remand for entry of a judgment of conviction for second degree murder and the imposition of an appropriate sentence.

Because we find that the elements of second degree murder were proven and because we conclude that the errors which occurred in the admission of hypnotically enhanced testimony and in the exclusion of expert testimony were harmless when viewed in context, the evidence will be set out in some detail.

On the afternoon of September 26, 1983, Sydney Ann Merrick traveled up Parley's Canyon in her white Datsun on an errand for her employer. Her body was discovered later that day in her car on the off-ramp of the Summit Park exit. She had been stabbed several times.

The State brought Tuttle to trial on charges of first degree murder, for which the death penalty may be imposed, and offered circumstantial evidence of his guilt. Merrick's father and her fiance both testified, by stipulation, that her Datsun was prone to overheating. A mechanic testified that the Datsun appeared to have overheated on September 26th. He also testified that the car showed signs of having been towed recently. The testimony of the medical examiner and of the witnesses who saw Merrick's legs protruding from her Datsun placed the time of death at around 2:30 p.m.

Records of telephone calls that Tuttle, a truck driver, made to his employer from stops along Interstate 15 placed him in the area of the murder at about 2:30 p.m. On the date in question, Tuttle was returning to Evanston, Wyoming, from California, where he had made a delivery. He was driving a black Chevrolet one-ton truck without a bed that was pulling a thirty-foot flatbed trailer. The truck was equipped with a bug screen bearing the word "Apache," the name of Tuttle's employer. This was the only such truck owned by Apache. The truck carried a chain with hooks that could be used for towing.

Several witnesses testified that they had seen a truck similar to Tuttle's in the canyon on the afternoon of the murder. A witness who was acquainted with the Apache Company testified that while traveling through the canyon as a passenger sometime between 2:00 and 3:00 p.m., he saw a dark one-ton truck, with a thirty-foot trailer and a bug screen that said "Apache," towing a light-colored car. A couple who had been driving to Salt Lake City testified that when they reached Parley's Summit between 2:15 and 2:30 p.m., they saw a truck with a trailer towing a white car occupied by a young woman with hair the color of the victim's. The couple's descriptions of the truck diverged slightly, but they were consistent in their general recollections. The husband testified that he and his wife discussed their observations on the way to Salt Lake because it was odd to see such a big truck towing a small car.

Another man testified that he was driving past Parley's Summit on his way to Midway when he saw a flatbed truck parked in front of a small white economy car. He said that photographs of the truck Tuttle was driving appeared to show the truck he had seen. He testified that he saw a white woman and a white man with a mustache, collar-length hair, and four days' beard growth standing between the car and the truck; the man appeared to be tickling the woman, but then became violent and shoved her backward into the car. This witness's description of the man he saw matched Tuttle's appearance at the time of the murder. Another witness testified that he saw a man trying to kiss a woman near the Parley's Summit off-ramp. The witness recalled seeing a compact foreign car, but did not remember seeing a truck.

The State presented an expert witness who testified that a strand of hair found in the victim's car was compatible with a sample of Tuttle's hair. The medical examiner testified that a knife which was identified as either one owned by Tuttle or as similar to one that he owned, could have inflicted Merrick's wounds. The State presented evidence that Tuttle washed the truck he had been driving immediately upon returning to Evanston. The State also established that after it became apparent that he was a suspect, Tuttle fled from Evanston and changed his appearance by cutting his hair and shaving his mustache.

Tuttle took the stand and offered his version of the events on the day of the murder. He testified that he stopped his truck on the side of the off-ramp to take a nap. After awakening from the nap, he left the truck to check the lugnuts before continuing his journey. At that point, he discovered Merrick's lifeless, bloody body in her car, which was parked behind his truck. He stated that he fled because he had a criminal record and feared that he would be wrongly accused. The State elicited testimony from several witnesses that Tuttle had told them either that his trip was uneventful or that he fled first from the crime scene and later from Evanston because he was suspected of running a car off the road.

The chief evidence presented to exculpate Tuttle was the testimony of a witness who claimed to have been in the Parley's Summit area scouting for elk when he first saw Tuttle's truck alone on the off-ramp. Approximately fifteen minutes later, the witness looked at the off-ramp again and saw that a car like the victim's had appeared. He claimed that he saw legs extending from the car and Tuttle, whom he later recognized, running, apparently in horror, from the small light-colored vehicle. Cross-examination revealed that after the witness had spent two weeks in jail with Tuttle, he offered his testimony to the State in exchange for concessions in his own criminal case. An investigator for the State testified that he had attempted to verify the witness's story by going to the spot from which the witness claimed to have viewed the murder scene and found it impossible, even using the witness's binoculars, to discern the gender of a person at the scene, let alone the person's identity or facial expressions. The State also established that the witness was a restricted person who could not legally have participated in the elk hunt for which he claimed to be preparing. ¹

Tuttle proffered his wife's testimony that he had shaved on September 24th before he left for California and therefore could not have grown a noticeable beard by the 26th. Tuttle called witnesses who saw a white car with a van or with a truck that had a box rather than a flatbed trailer. He called an expert on the reliability of eyewitness testimony who explained the factors that affect the reliability of such testimony. See State v. Long, 721 P.2d 483, 487-95 & nn. 7, 8 (Utah 1986). He also called an expert who challenged the State's evidence that the hair found at the scene was compatible with Tuttle's by testifying that the comparison was inconclusive. During cross-examination, however, it was revealed that the expert claimed membership in a professional society that did not list him among its members. ²

The jury returned a verdict of guilt on the first degree murder charge. Tuttle had earlier waived his right to have a jury decide whether he should receive a death sentence. The judge did not impose death but sentenced Tuttle to life imprisonment.

On appeal, Tuttle challenges the conviction on three grounds. He first claims that the trial court erred in denying his motion for a jury that was not "death qualified." He also claims that hypnotically enhanced testimony should not have been admitted, but that once it was, expert testimony on its reliability should not have been excluded. Lastly, he attacks the constitutionality of the first degree murder statute. We will treat each of these claims separately.

Tuttle first claims that he was entitled to a non-death-qualified jury. Some background is required. Utah Rule of Criminal Procedure 18(e)(10) provides that when capital murder is charged and a jury is impaneled, the trial court is to remove from the venire those who would refuse to vote to impose the death penalty for reasons of conscience. ³ See generally State v Schreuder, 726 P.2d 1215, 1225-26 (Utah 1986); State v. Moore, 697 P.2d 233, 237-38 (Utah 1985). Before a jury was selected, Tuttle asked that the court not death-qualify the jury as required by rule 18(e)(10). He argued that death-qualified juries are unconstitutional because they are more prone to convict during the guilt phase of the trial and because they do not represent a fair cross-section of the...