State v. James , 30 Utah 2d 32 ( 1973 )

CALLISTER, Chief Justice:

Defendant was convicted by a jury of the crime of murder in the first degree; he was sentenced to the Utah State Prison for the term provided by law.

In a hearing in chambers, immediately preceding the trial, the court ruled that in light of the decision of the United States Supreme Court outlawing the death penalty, the proceeding was no longer a capital case, and defendant was only entitled to an eight-man jury. Defendant appeals therefrom, contending that he was denied a twelve-man jury as guaranteed to him by Article I, Sec. 10, Constitution of Utah.

The specific issue of this case is what is the effect of Furman v. Georgia¹ on the procedural guarantees granted by statute and the Constitution to defendant in a capital case?

Article I, Section 10, Constitution of Utah, provides:

In capital cases the right of trial by jury shall remain inviolate. In courts of general jurisdiction, except in capital cases, a jury shall consist of eight jurors

Section 78-46-5, U.C.A.1953, provides:

A trial jury in capital cases shall consist of twelve jurors. A trial jury in other criminal cases ... in the district court shall consist of eight jurors

The precise holding as expressed in the per curiam opinion in Furman v. Georgia² was that the imposition and carrying out of the death penalty in the cases before the court constituted cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments. Each justice issued a separate opinion, expressing his individual interpretation of the constitutional issues.

Subsequent to the Furman decision, there have been a number of opinions regarding its effect on constitutional and statutory provisions concerning bail in “capital cases” or “capital offenses.” However, there are only two jurisdictions which have been reported so far that have determined the effect of Furman concerning specific procedures reserved exclusively for the conduct of a trial in a capital case.

In Donaldson v. Sack,³ the court reasoned that the death penalty must be a possible punishment in all “capital cases.” Since the death penalty had been eliminated by the ruling of the United States Supreme Court, the rules were no longer applicable, which required twelve persons to constitute a jury to try all capital cases. The court concluded that Florida no longer had what had been previously termed a “capital case.”

The court reached the opposite conclusion in State v. Holmes,⁴ wherein the court assessed the effect of Furman on a provision in the State Constitution that in cases in which the punishment may be capital, all of the jury of twelve must concur to render a verdict. The State urged that there were no more capital cases, since the only punishment available for the crime of murder was life imprisonment; therefore, the provisions concerning juries in non-capital cases were now applicable to those formerly designated “capital cases.”

The court responded that the severity of the offense was legislatively determined and depended upon the maximum penalty which could be imposed for the offense charged. The court explained that for three-fourths of a century, the legislature had made provisions for procedural matters in criminal cases which depended on the classification in the Louisiana Constitution. The court observed that if the legislature had eliminated capital punishment but remained silent with respect to procedural changes, the court might be justified in adopting the reasoning of the State — ■ that all statutory references to capital cas--es should be ignored. The court continued:

However, it was not the legislature, but the United States Supreme Court that has held the imposition and execution of the death sentence, as now applicable in our State, to be violative of the United States Constitution. No presumption arises that any other provision of Louisiana law has been affected by the United States Supreme Court, except those having to do with the imposition and execution of death sentences. Nor, indeed, has the United States Supreme Court eliminated the possibility that the Louisiana legislature might enact statutes which could constitutionally impose the death sentence, when the sentence is mandatory and cannot be applied in a discriminatory manner.

Although the hiatus is obvious and the situation undesirable, we conclude that we should (at least until the legislative process has reorganized the criminal law and procedure in view of Furman) interpret Article 7, Section 41 of the Louisiana Constitution as referring to classes of crimes, and that those which the legislature has classified as capital offenses shall be tried by a jury of twelve, all of whom must concur to render a verdict.

The cases, which have considered the impact of Furman, when the right to bail is contingent on whether the defendant is charged with a capital offense, indicate a split of authority. One group proceeds on the “penalty” theory, and the other follows the classification theory. The “penalty” theory is illustrated by Commonwealth v. Truesdale;⁵ wherein the court stated that a “capital offense” refers to the punishment or penalty which may be imposed upon the person found guilty of a crime, rather than a definition of a particular crime. The court reasoned that since, presently, there were no criminal offenses in the Commonwealth, for which the death penalty might be imposed, there were no “capital offenses.” ⁶

The “classification” theory is illustrated in People v. Anderson ⁷ wherein the court explained that the constitution and statutes refer to a category of offenses for which the punishment of death might be imposed. The' law determined the gravity of such offenses; those offenses remain the same, although punishment by death cannot constitutionally be exacted. Nevertheless, the gravity of those offenses endures.⁸

The “classification” theory appears preferable, particularly in light of the additional safeguards provided in the Constitution of Utah to a defendant, charged with a crime so distinct and grave in nature that the legislature has deemed death an appropriate penalty. There are three crimes designated in this'unique category: murder in the first degree (§ 76-30-4, U. C.A.1953), kidnaping in the first degree (§ 76-35-1, U.C.A.1953), and a particular type of assault by a convict (§ 76-7-12, U. C.A.19S3, as amended 1957). The Constitution of the state has provided a system of classifying certain serious offenses as capital cases and then mandated a specific procedural structure for the administration of justice based on that classification. Furman v. Georgia cannot be rationally construed as abrogating our fundamental law.

“Capital cases” as this term is used in Article I, § 10, refers to a category of criminal actions, including therein the entire prosecution and not merely the last stage, the penalty phase. Furman v. Georgia is limited to this final phase of the action, the imposition and execution of the death penalty. Murder in the first degree has been classified as a capital crime by the legislature; Furman affected only the punishment; the nature of the crime remains unchanged.

Defendant was entitled to be tried by a twelve-man jury; the trial court committed prejudicial error when it denied him this right. Defendant’s other points on appeal are without merit. This case is reversed and remanded to the district court for a new trial.

CROCKETT, and TUCKETT, JJ., concur. HENRIOD, J., concurs in the result.

1 . 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

2 . Note 1, supra.

3 . Fla., 265 So.2d 499, 503 (1972).

4 . 263 La. 685, 269 So.2d 207, 209 (1972).

5 . 449 Pa. 325, 296 A.2d 829, 832 (1972).

6 . Also see State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972); Ex Parte Contella, Tex.Cr.App., 485 S.W.2d 910 (1972).

7 . 6 Cal.3d 628, 100 Cal.Rptr. 152, 493 P.2d 880, 900, Footnote 45.

8 . Also see State v. Haga, 81 Wash.2d 704, 504 P.2d 787, 789 (1972); People ex rel. Dunbar v. District Court, Colo., 500 P.2d 358 (1972); State v. Flood, 263 La. 700, 269 So.2d 212 (1972).