State v. Wetzel, 920466

• Decision Date: 30 December 1993
• Docket Number: No. 920466,920466
• Citation: 868 P.2d 64
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jon T. WETZEL, Defendant and Appellant.
• Court: Utah Supreme Court

Page 64

868 P.2d 64

STATE of Utah, Plaintiff and Appellee, v. Jon T. WETZEL, Defendant and Appellant.

No. 920466.

Supreme Court of Utah.

Dec. 30, 1993.

Rehearing Denied Jan. 25, 1994.

R. Paul Van Dam, Atty. Gen. and Charlene Barlow, Asst. Atty. Gen., Salt Lake City, for the State.

Martin V. Gravis, Ogden, for Jon T. Wetzel.

STEWART, Justice:

Jon T. Wetzel appeals from his conviction of first degree murder, a capital offense, for which he was sentenced to life in prison. We affirm.

The victim, Sharol Wetzel, and defendant were married December 17, 1976. They separated in 1985, and on November 5, 1985, Mrs. Wetzel contacted a lawyer to initiate divorce proceedings. Divorce papers were served on defendant on November 13, 1985. In her divorce complaint, Mrs. Wetzel sought, inter alia, an order restraining defendant from disposing of marital assets and pledging his retirement funds. At defendant's murder trial, Mrs. Wetzel's attorney testified that Mrs. Wetzel told him in a telephone conversation that "she was scared, that Jon was going to kill her because of--apparently papers had been served on him, he knew what she was requesting." Two days after this conversation with her attorney, Mrs. Wetzel was killed by a shot to the head.

Kitty Eakes met defendant and Mrs. Wetzel during a drug transaction. Subsequently, she and defendant began a sexual relationship. Through October and November of 1985, defendant began calling Eakes every day to ask her to kill his wife. During this time, defendant supplied Eakes with marijuana and hallucinogenic mushrooms. He also gave Eakes money to "think about" killing Mrs. Wetzel and later gave her more money to purchase a gun.

Eakes obtained a .22 caliber gun and tried to give it to defendant on November 19, 1985. The same day, defendant took Eakes to his house, where she spent that night and the next day. On November 20, 1985, defendant told Eakes that this was the day to kill his wife. He then explained how to carry out the murder and the story they would tell police if they were questioned.

That day, Eakes shot and killed Mrs. Wetzel. Eakes later confessed to the shooting but refused to implicate defendant. She pleaded guilty to the murder and was sentenced to prison in January of 1986. While in prison, Eakes began therapy and decided to tell about defendant's involvement in the murder. She subsequently gave a statement implicating Wetzel to an attorney she had met through Alcoholics Anonymous.

Defendant was convicted by a jury of first degree murder and sentenced to life in prison. Defendant appeals his conviction, arguing that the trial court erred by (1) failing to excuse four jurors for cause, (2) allowing certain testimony, and (3) denying defendant's motion for a mistrial when one juror and an alternate juror saw him in handcuffs one morning before trial began.

I. CHALLENGES FOR CAUSE

Defendant argues that his conviction must be overturned because the trial court did not grant his challenges for cause against four prospective jurors.

It is prejudicial error to compel a defendant to expend one of his peremptory challenges to remove a prospective juror who should have been removed for cause. State v. Bishop, 753 P.2d 439, 451 (Utah 1988); State v. Gotschall, 782 P.2d 459, 461 (Utah 1989); State v. Cobb, 774 P.2d 1123, 1125 (Utah 1989); State v. Moton, 749 P.2d 639, 642 (Utah 1988). This rule presupposes that the defendant used all his peremptory challenges; otherwise, the defendant will have suffered no prejudice. State v. Chealey, 116 P.2d 377, 379 (Utah 1941); see Bishop, 753 P.2d at 451.

The record in this case does not indicate how either party used its peremptory challenges. Thus, we have no way of knowing whether defendant exercised all his peremptory challenges or whether he used any of them to remove the jurors he now challenges. In the absence of an adequate record on appeal, this Court can only assume the regularity of the proceedings below. Jolivet v. Cook, 784 P.2d 1148, 1150 (Utah 1989), cert. denied, 493 U.S. 1033, 110 S.Ct. 751, 107 L.Ed.2d 767 (1990); State v. Miller, 718 P.2d 403, 405 (Utah 1986). Parties claiming error below and seeking appellate review have the duty and responsibility to support their allegations with an adequate record. " 'Absent that record defendant's assignment of error stands as a unilateral allegation which the review court has no power to determine. This Court simply cannot rule on a question which depends for its existence upon alleged facts unsupported by the record.' " State v. Barella, 714 P.2d 287, 288 (Utah 1986) (emphasis in original) (quoting State v. Wulffenstein, 657 P.2d 289, 293 (Utah 1982), cert. denied, 460 U.S. 1044, 103 S.Ct. 1443, 75 L.Ed.2d 799 (1983)). Because defendant has failed to demonstrate that he was compelled to use any of his peremptory challenges and that he used all of them, we affirm the trial court's denial of his challenges for cause.

II. ADMISSION OF TESTIMONY

Defendant asserts that the trial court erroneously admitted testimony concerning the life history of Kitty Eakes. Eakes testified to a past of physical and sexual abuse, both as a child and as an adult. Her mother abandoned her when she was a child, and despite hating her mother for this, she moved to Utah to be with her. After living a short time with her mother and stepsister, Eakes was thrown out of the house. Eakes hitchhiked to Ogden and lived on the streets.

Defendant argues that this evidence is irrelevant and was presented only to establish sympathy for Eakes, the actual killer, and to lay a foundation for the testimony of Dr. Harvey Wheelwright, a psychiatrist who testified that Eakes was susceptible to manipulation because of her prior abusive relationships.

Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Utah R.Evid. 401. Deciding whether evidence is relevant ordinarily requires a balancing of factors, and we will reverse a determination of relevancy only if the trial court abused its discretion. Bambrough v. Bethers, 552 P.2d 1286, 1290 (Utah 1976).

Defendant was charged under Utah Code Ann. § 76-2-202 (1990), Utah's complicity statute. That provision states:

Every person, acting with the mental state required for the commission of an offense who directly commits the offense, who solicits, requests, commands, encourages, or intentionally aids another person to engage in conduct which constitutes an offense shall be criminally liable as a party for such conduct.

Eakes' testimony was intended to establish the elements of accomplice liability. Evidence at trial revealed that defendant repeatedly asked Eakes to kill his wife and gave her money to "think about it." Moreover, defendant knew that Eakes hated her mother, and he used this knowledge to his advantage, saying, "[W]hy don't you just [act] like she's your mother, you know, act like she's your mother." On the basis of that evidence, a jury could find it likely that Eakes could be manipulated by defendant if she had suffered long-term abuse. Evidence of Eakes' history helped explain her motivation to kill the victim, her initial refusal to implicate defendant, and most important, defendant's role in encouraging Eakes to commit the crime. The evidence, therefore, was highly probative on the issue of whether defendant influenced Eakes to murder his wife.

Defendant argues that since the State presented no evidence that he personally physically or sexually abused Eakes or that he knew of her prior life, evidence of Eakes' prior abuse was irrelevant. To support this argument, defendant points to our decision in State v. Schreuder, 726 P.2d 1215, 1222 (Utah 1986), where evidence that the defendant abused the witness was admitted to lay a foundation for expert testimony that the defendant manipulated the witness. However, that case does not stand for the proposition that evidence of an accomplice's susceptibility to manipulation is not relevant unless the defendant actually inflicted the abuse. Accordingly, the trial court did not abuse its discretion in ruling that the testimony was relevant.

Defendant next asserts that the testimony of Dr. Harvey Wheelwright constituted improper evidence of Eakes' character for truth and honesty in violation of Rule 608(a) of the Utah Rules of Evidence. ¹ See State v. Rimmasch, 775 P.2d 388 (Utah 1988). Defendant also challenges the relevance of the evidence.

Dr. Wheelwright testified that he interviewed Eakes three times and learned about her past history. He stated that in his opinion, her upbringing and history of abuse would make her more vulnerable "to act in accordance with the desires of an individual man that she might be involved with." Dr. Wheelwright also testified that Eakes would become enraged at a person who was cast in the role of her mother.

In Rimmasch, this Court held that an expert may not give a direct opinion of a witness's truthfulness. 775 P.2d at 392. Nevertheless, a psychologist, a psychiatrist, or a similar expert may render an opinion of a diagnostic or evaluative nature (other than as to veracity) based on statements made during an interview if the opinion "does not cross the line from being a statement of the basis of an expert opinion ... to being a comment on truthfulness on a particular occasion." Id. at 393. Dr. Wheelwright's opinion did not directly or indirectly comment on Eakes' veracity; rather, it only tended to establish a psychological basis for the conclusion that Eakes was especially vulnerable to the influence of another. Unlike the expert testimony in Rimmasch, Dr. Wheelwright's testimony did not cross the line and comment on the witness's truthfulness with respect to specific acts at issue in the case. The trial court did not err in admitting the evidence.

Defendant next argues that the trial court committed...