State v. Belwood , 27 Utah 2d 214 ( 1972 )

TUCKETT, Justice:

The defendant was charged in the district court of Tooele County with the crime of murder in the first degree. Later, on motion of the defendant, a change of venue was granted and a trial upon the charge was conducted in Salt Lake County. The defendant was found guilty and the defendant was sentenced to suffer death.

The defendant is here seeking a reversal of his conviction and in the alternative for a new trial.

On July 9, 1970, in an area known as Big Hollow Canyon in Tooele County, a body was discovered by two men who were cutting cedar trees. The body was later identified as that of Ronald Paul Smith. During the evening of July 8, the defendant and Ronald Paul Smith were together in Tooele City, Utah, where they were drinking beer and driving about the streets. At about 1:30 A.M. of the following day the defendant and Smith went to the home of the co-defendant Ruth Breece where the defendant obtained a small caliber pistol. Thereafter the defendant, Smith, and Ruth Breece set out for Dugway Proving Grounds, an Army installation located in Tooele County. The defendant’s purpose in going to the military post was to present a claim to the authorities there. At the .gate to the post the trio were turned away due to the early hour. They then drove to the vicinity of Big Hollow Canyon where they parked the automobile and the two men left afoot for the purpose of doing some shooting and hunting. Defendant shot Smith twice in the head and returned to the automobile.

A complaint was filed in the Tooele City Court charging the defendant with the crime of murder and subsequently the defendant was arrested at Dutch John, Utah, and returned to Tooele County to face the charge. Prior to the defendant’s appearance in the Tooele City Court for the preliminary hearing, he made a full and complete confession of his participation in the crime charged against him to the sheriff and his deputy. The defendant’s statement was taken in shorthand and thereafter transcribed by a secretary who worked in the sheriff’s office. The defendant’s statement related in detail his participation in the crime as well as the events preceding the occurrence.

After the defendant had been held to answer to the charge of murder in the first degree in the district court of Tooele County, he entered a plea of not guilty, and also a plea of not guilty by reason of his insanity.

During the course of the trial and after the state' had rested its case, the defendant took the stand and then testified as to certain matters for the purpose of laying a foundation for the introduction of expert testimony bearing upon his defense of insanity. He was asked by defense counsel as to the amount of a drug known as Valium which the defendant had taken on the day and evening preceding the killing. The drug, a tranquilizer, was one which had been prescribed by a physician for the defendant two or three years prior. The defendant was also questioned as to his consumption of beer on the evening prior to the defendant and the victim going to Dug-way. The defendant testified as to the effect of the beer and the drug upon his mental processes during the period we are here concerned with. The defendant also answered as to his being a patient in a mental institution in the state of Oregon and the Utah State Mental Hospital at Provo. The district attorney was permitted, over the objection of the defendant, to cross-examine him concerning conviction for prior felonies ¹ and the diagnosis of the defendant resulting from evaluation made by the mental hospitals in which the defendant was a patient. The district attorney was also permitted to cross-examine the defendant in great detail as to the events which transpired during the evening and the night leading up to the killing of Smith.

The defendant strongly urges that it was prejudicial error for the Court to permit the district attorney to go beyond the scope of the direct examination to such great breadth. With this claim we are inclined to agree. In this state the penalty for murder in the first degree is that the defendant shall suffer death, or upon recommendation of the jury the defendant may be imprisoned for life in the discretion of the court. In this type of case the jury had two functions to perform, namely, the finding of guilt or innocence, and if the finding is guilty, whether the defendant should suffer death or his punishment be left to the mercy of the court. In this case the confession of the defendant had been admitted in evidence and was before the jury for consideration. The confession taken together with the evidence presented by the state is more than ample to establish the guilt of the defendant beyond a reasonable doubt. It should be noted that the defendant, during his direct examination, did not deny that he had killed Smith.

The cross-examination of the defendant in the criminal proceeding is governed by the provisions of Sec. 77-44-5, U. C.A.1953, which provide as follows:

If a defendant offers himself as a witness, he may be cross-examined by the counsel for the state the same as any other witness. . .

The scope of the cross-examination of a defendant by the prosecutor is largely within the discretion of the trial court and unless there is an abuse of discretion this court will not ordinarily interfere. However, in this case, it would seem to us that the court did abuse its discretion in permitting the prosecutor to go far beyond the scope of direct examination. It would seem that the purpose of the cross-examination did not go to the issue of the guilt or innocence of the defendant, but rather to his punishment.²

In view of the fact that this matter must be returned to the district court for a new trial, we feel it necessary to comment upon one other aspect of the case. During the voir dire examination of the prospective jurors one of the jurors indicated that she had qualms about the death penalty. The district attorney proceeded to question her at length about her mental attitude concerning capital punishment and whether or not she would return a recommendation of leniency even though she believed the defendant to be guilty of murder in the first degree. After further questioning, of which it would appear from the record tended to confuse the prospective juror, she was excused for cause. The matter of challenge for implied bias is governed by the provisions of Sec. 77-30-19 and the matter we are here concerned with is dealt with in subsection 9 of that section which reads as follows:

If the offense charged is punishable with death, the entertaining of such conscientious opinions as would preclude his finding of the defendant guilty; in which case he must neither be permitted nor compelled to serve as a juror.

It would seem that the statute would only permit a challenge for cause in the case of a prospective juror whose conscientious opinions are such as would preclude his finding the defendant guilty. The state is not entitled to have a panel of jurors comprised of only those members of the community who are in favor of the death penalty in capital cases.³

The defendant contends that he is entitled to a reversal on a number of other grounds, namely, that the court admitted evidence which he claimed was obtained as a result of an illegal arrest and an illegal search and seizure of the defendant’s automobile. He also claims that the court erred in admitting his confession in evidence. We have carefully considered these claimed errors and find that they are without merit.

We are of the opinion that this matter should be remanded for a new trial and such is the order.

HENRIOD, J., concurs.

1 . Section 78-24-9, U.C.A. 1953.

2 . State v. Shockley, 29 Utah 25, 80 P. 865; State v. Vance, 38 Utah 1, 110 P. 434; Wharton’s Criminal Evidence, 12th Ed., Vol. 3, p. 294, Sec. 889; Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314.

3 . Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776.