Tillman v. Cook

• Decision Date: 31 March 1993
• Docket Number: No. 890322,890322
• Parties: ElRoy TILLMAN, Plaintiff and Appellant, v. Gerald R. COOK, Warden, Utah State Prison, Defendant and Appellee.
• Court: Utah Supreme Court

Page 211

855 P.2d 211

ElRoy TILLMAN, Plaintiff and Appellant, v. Gerald R. COOK, Warden, Utah State Prison, Defendant and Appellee.

No. 890322.

Supreme Court of Utah.

March 31, 1993.

Rehearing Denied June 25, 1993.

R. Paul Van Dam, Atty. Gen., Sandra L. Sjogren, Asst. Atty. Gen., Salt Lake City, for defendant and appellee.

Gilbert D. Atahy, Loni F. Deland, Andrew A. Valdez, Ronald J. Yengich, Salt Lake City, for plaintiff and appellant.

HALL, Chief Justice:

A jury convicted ElRoy Tillman of capital homicide and sentenced him to death. This court affirmed the conviction and sentence on direct appeal. ¹ Thereafter, Tillman filed a petition for a writ of habeas corpus in the third district court, challenging both his conviction and his sentence. The trial court addressed the issues on the merits and denied the petition, holding that no Tillman contends that the trial court erred in concluding that (1) the prosecutor did not make improper statements during closing argument at trial; (2) the information was not improperly amended after the preliminary hearing to include additional aggravating circumstances of capital homicide; (3) Tillman's constitutional right to a unanimous jury verdict on the charges against him was not violated by the instructions the trial court gave; (4) the aggravating circumstances of capital homicide, particularly the aggravated arson circumstance, were supported by sufficient evidence; (5) Utah capital homicide statute section 76-5-202(1)(d) was constitutional; and (6) Tillman's right to the effective assistance of counsel was not violated by the performance of his counsel during the trial and on direct appeal.

valid claim for relief was asserted. We affirm.

I. FACTS

Tillman was convicted of killing his former girlfriend's new boyfriend, Mark Schoenfeld, in Schoenfeld's apartment on the night of May 25, 1982. As Schoenfeld slept, Tillman struck him on the head several times with the blunt end of an ax. Tillman then set fire to Schoenfeld's bed. The primary cause of death was carbon monoxide poisoning caused by the burning mattress, but the evidence indicated that the blows to the head would have independently caused Schoenfeld's death. Carla Sagers, Tillman's girlfriend at the time of the murder, was with Tillman in Schoenfeld's apartment that night. She received immunity in exchange for her testimony against Tillman. Tillman was convicted of first degree murder and sentenced to death. On direct appeal, this court affirmed the conviction and sentence. ²

II. STANDARD OF REVIEW

On appeal from a denial of a petition for a writ of habeas corpus, we accord no deference to the trial court's conclusions of law, but instead review them for correctness. ³

III. PROSECUTORIAL MISCONDUCT

Tillman asserts that a comment made by the prosecutor during closing argument in the penalty phase of the trial was prejudicial and inflammatory. The prosecutor stated, "(Tillman) bludgeoned (Schoenfeld) to death with an ax and then to further disfigure him, set fire to him while he was still breathing." Tillman contends that the prosecutor's assertion that the fire was intended to disfigure the victim was unsupported by the evidence and that it raised an aggravating circumstance of the first degree murder statute, subsection (q), that had not been charged. ⁴

On direct appeal, this court addressed the issue of whether Tillman was denied a fair trial due to prosecutorial misconduct because of statements made by the prosecutor during closing argument in both the guilt and penalty phases. ⁵ Although Tillman's present claim implicates different prosecutorial statements, it is based on the same ground for relief. We therefore reject the argument as having been previously adjudicated.

IV. AMENDMENT OF THE INFORMATION

Tillman contends for the first time that an amendment of the information prior Tillman now asserts that the amendment was erroneous because it broadened the elements of the offense charged. He contends that the amendment violated due process by depriving him of an adequate opportunity "to prepare and defend as to each element, fact or circumstance." Although we could decline to address the issue, given counsel's agreement to the amendment at the preliminary hearing and, more importantly, counsel's failure to raise the issue on direct appeal, we will nevertheless exercise our discretion to address the issue on the merits.

to trial resulted in an unfair conviction. Tillman was initially charged with first degree murder performed during the commission or attempted commission of burglary or aggravated burglary. At the conclusion of the preliminary hearing and before Tillman was bound over to the district court, the prosecutor moved to amend the information to conform with the evidence adduced at the preliminary hearing and to charge, in addition to the initial aggravating circumstances, that the murder took place during the commission or attempted commission of arson or aggravated arson. At that time, Tillman's attorney stated that he had no objection to the amendment. The circuit court judge granted the motion and ordered Tillman bound over to the district court on the amended information. No issue was raised on direct appeal as to the lawfulness of the amended information.

Utah Rule of Criminal Procedure 4(d) provides that an information may be amended as long as the amendment does not charge an additional or different offense or prejudice the defendant:

The court may permit an indictment or information to be amended at any time before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. After verdict, an indictment or information may be amended so as to state the offense with such particularity as to bar a subsequent prosecution for the same offense upon the same set of facts. ⁶

Whether an amendment charges an additional or different offense turns on whether different elements are required to prove the offense charged in the amended information or whether the offense charged in the amended information increased the potential punishment from that originally charged. ⁷

On direct appeal in this case, we held that the aggravating circumstances are elements of a capital murder offense and must be proved beyond a reasonable doubt. ⁸ The addition of aggravating circumstances in the first degree murder charge meant that additional variations of capital homicide were alleged. It is arguable, therefore, that additional offenses were charged.

Nevertheless, Tillman has shown no prejudice because of the amendment. ⁹ He was

bound over after the information was amended; therefore, the circuit court found probable cause in the evidence to support it. Moreover, the information was amended on August 18, 1982, and the trial did not begin until January 4, 1983. Thus, Tillman's attorneys had more than three months after the amendment to prepare a defense to the additional aggravating circumstances alleged. ¹⁰ In any event, aggravating circumstances added to the information at the preliminary hearing did not expose Tillman to a greater punishment. In sum, the amendment resulted in no prejudice to Tillman's defense and, considering all events, did not result in a fundamentally unfair trial.

V. JURY UNANIMITY

Tillman argues that the trial court erred in failing to require the jury to agree unanimously on which of the aggravating circumstances were proved beyond a reasonable doubt. The capital homicide charge was based on allegations of one or more of the four aggravating circumstances, i.e., burglary, aggravated burglary, arson, and aggravated arson.

Federal constitutional law does not require unanimity in state cases with respect to a particular aggravating circumstance to uphold a state's capital offense conviction. ¹¹ Notwithstanding federal law, the Utah Constitution does require jury unanimity on all elements of a crime.

On direct appeal, a majority of this court held that jurors are constitutionally required to agree unanimously on each element of a criminal offense, including at least one aggravating circumstance in a capital offense. ¹² This holding was based on the conclusion that aggravating circumstances are distinct factual and legal elements of the crime of first degree murder.

Justice Stewart, in his concurring opinion, expressed the view that the jurors had been sufficiently instructed to act with the requisite unanimity. ¹³ That opinion, which formed a majority for the result affirming Tillman's conviction and sentence, stated in part:

The jury was instructed that it had to find each element of the offense by proof beyond a reasonable doubt, and the instructions were pellucid that an aggravating circumstance was an element of the crime that had to be proved beyond a reasonable doubt.... [The instruction] did not reasonably lend itself to the interpretation that some jurors could find one aggravating circumstance or offense, while other jurors disagreed on the finding and found some other aggravating circumstance or offense.

....

The clear impact of the last quoted paragraph of the instruction, together with the general unanimity instruction given to the jury, is that the jury as a group had to find unanimously at least one aggravating circumstance. ¹⁴ Tillman argues that Mills v. Maryland, ¹⁵ which was decided after the opinion on his direct appeal was issued, requires reversal of his conviction based on the unanimity ground. Mills, however, is not dispositive of the issue presented. Mills dealt with jury unanimity in finding mitigating circumstances in the penalty phase of a capital case where the issues and determinations of law are different from those in the guilt phase. ¹⁶ In the instant case, by contrast, the issue is whether the jury instructions sufficiently informed the jury that it had to be unanimous with respect to each element of the crime for which it convicted.

Tillman argues that Mills requires this...