State v. Sosa-Hurtado

This opinion is subject to revision before final
publication in the Pacific Reporter
2019 UT 65
IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
YELFRIS SOSA-HURTADO,
Petitioner.
No. 20180243
Heard November 16, 2018
Filed October 31, 2019
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable Denise P. Lindberg
No. 121902927
Attorneys:
Herschel Bullen, Salt Lake City, for petitioner
Sean D. Reyes, Att’y Gen., Karen A. Klucznik, Asst. Att’y Gen.,
Salt Lake City, for respondent
ASSOCIATE CHIEF JUSTICE LEE authored the opinion of the Court in
which CHIEF JUSTICE DURRANT and JUSTICE PETERSEN joined.
JUSTICE PEARCE authored an opinion dissenting in part in which
JUSTICE HIMONAS joined.
ASSOCIATE CHIEF JUSTICE LEE, opinion of the Court:
¶1 A jury convicted Yelfris Sosa-Hurtado of aggravated
murder. On appeal Sosa-Hurtado challenged his conviction on the
ground that there was insufficient evidence to sustain the charged
aggravator for his conviction—a determination under Utah Code
section 76-5-202(1)(c) that he placed another person at “great risk of
death” when he killed his victim. He also asserted that the district
court abused its discretion when it denied his motion for a new trial.
The court of appeals concluded that there was sufficient evidence to
STATE v. SOSA-HURTADO
Opinion of the Court
support the “great risk of death” aggravator. And it affirmed the
district court’s decision to deny the motion for a new trial.
¶2 Sosa-Hurtado raises the same arguments on certiorari in this
court. And we likewise reject them. We first affirm the aggravated
murder conviction. In so doing we reaffirm and clarify the standard
set forth in our case law for a determination that a murder was
committed under circumstances in which the defendant caused a
“great risk of death” to another person. We hold that the risk of
death need not result directly from the precise act that caused the
victim’s death. Clarifying and extending the standard set forth in
State v. Pierre, 572 P.2d 1338 (Utah 1977), and State v. Johnson, 740
P.2d 1264 (Utah 1987), we hold that Utah Code section 76-5-202(1)(c)
may be satisfied if the great risk of death was created within a “brief
span of time” of the act causing the murder and the acts together
“formed a concatenating series of events.” Pierre, 572 P.2d at 1355.
We identify factors of relevance to this inquiry, including (1) the
temporal relationship between the murderous act and any acts
endangering a third person; (2) the spatial relationship between the
third party, the murder victim, and the defendant at the time of the
acts constituting the murder; and (3) whether and to what extent the
third party was actually threatened by the assailant. See State v.
Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (identifying these
factors, which we endorse here). And we hold that there was a
reasonable basis for the jury in this case to conclude that Sosa-
Hurtado caused a great risk of death to another in the circumstances
of the murder at issue.
¶3 We also affirm the denial of the motion for a new trial. We
agree with the court of appeals that the district court acted well
within its discretion in declining Sosa-Hurtado’s request to submit
supplemental evidence in support of his motion for a new trial after
the ten-day time limit for filing such a motion under rule 24 of our
rules of criminal procedure. And we likewise conclude that the
district court did not err in its denial of the motion on its merits.
2
Cite as: 2019 UT 65
Opinion of the Court
I
¶4 Stephen Chavez and his father Isabel Chavez worked at a
small smoke shop in Salt Lake City.1 One day Isabel noticed a car
parked outside in a manner that could endanger patrons of the shop.
Isabel approached the driver of the car, Sosa-Hurtado, and twice
asked him to move his car. Sosa-Hurtado refused. Stephen then went
outside and asked Sosa-Hurtado to move the car. Sosa-Hurtado
again refused and punched Stephen. Stephen fought back and told
Sosa-Hurtado to leave. Sosa-Hurtado left.
¶5 Sosa-Hurtado then met with a friend, Vladimir
Suarez-Campos, and the two of them crafted a plan to return to the
smoke shop to fight Stephen. They returned to the shop and
Sosa-Hurtado went inside. Suarez-Campos stayed outside.
¶6 The smoke shop consisted of a single room that was
approximately fifteen feet wide and twenty-four feet long. A glass
counter extended across most of the north side of the shop. Another
stretched across the longer east side. The shop had one door along
the west wall that faced the counter along the east.
¶7 Sosa-Hurtado entered the smoke shop and pulled an assault
rifle from his jacket. According to Isabel’s testimony, when
Sosa-Hurtado entered the shop, Stephen and Isabel were standing
three to four feet apart from each other behind the counter. A
witness who was inside of the shop at the time of the shooting,
however, said that Isabel and Stephen were closer—perhaps only
two feet apart. Stephen stood at the cash register behind the north
counter while Isabel stood behind the east counter. Sosa-Hurtado
fired one shot at Isabel with his assault rifle, missing him but
shattering a glass case, which hurled glass and wood into Isabel’s
leg, causing him to fall to the ground.
¶8 Sosa-Hurtado then turned towards Stephen. He fired a shot
at Stephen, which hit Stephen’s hand. Stephen fell on the floor
behind the counter. Isabel began to get up and move towards
Stephen. With his back to Isabel, Sosa-Hurtado leaned over the
counter, positioned the rifle only inches from Stephen’s chest, and
shot him twice more. These shots killed Stephen. Only a few feet
_____________________________________________________________
1 “On appeal, we construe the record facts in a light most
favorable to the jury’s verdict.” State v. Maestas, 2012 UT 46, ¶ 3, 299
P.3d 892 (internal quotation marks and citation omitted).
3
STATE v. SOSA-HURTADO
Opinion of the Court
away, Isabel felt the air displaced by the bullets. Sosa-Hurtado exited
the smoke shop and fired several shots into the air outside.
¶9 The State charged Sosa-Hurtado with aggravated murder,
discharge of a firearm with injury, and eight counts of discharge of a
firearm. The aggravated murder charge was based on the “great risk
of death” aggravator under Utah Code section 76-5-202(1)(c).
¶10 The State also charged Suarez-Campos with murder and
nine counts of discharge of a firearm. During trial, Suarez-Campos
testified for the State pursuant to a plea agreement that would
reduce his charges from murder and multiple counts of discharge of
a firearm to manslaughter. Suarez-Campos explained that, without
the plea agreement, he believed he could face twenty to twenty-five
years of imprisonment.
¶11 Sosa-Hurtado’s counsel asked Suarez-Campos about a
pending aggravated burglary charge against him and suggested that
the charge would also be dismissed as part of his plea deal. During a
side bar conversation, the prosecution stated that the State’s
agreement to dismiss the aggravated burglary charge required that
Suarez-Campos agree to testify against Sosa-Hurtado in that case as
well (Sosa-Hurtado had also been charged with the aggravated
burglary, among other charges, in a separate case). Sosa-Hurtado’s
counsel stated that Suarez-Campos’s counsel had informed him that
the aggravated burglary charge would be dismissed in exchange for
his testimony in the aggravated murder case alone. The State
reiterated that the plea deal with Suarez-Campos was predicated on
his agreement to testify in the aggravated burglary case.
¶12 Sosa-Hurtado’s counsel ceased questioning Suarez-Campos
on the issue to prevent the State from introducing evidence that
Sosa-Hurtado was charged with aggravated burglary in a separate
matter. Sosa-Hurtado’s counsel then apologized to the jury for his
error in raising the topic, and the district court instructed the jury to
disregard any reference or discussion relating to “any unrelated case
being dismissed.”
¶13 At the close of the State’s case, Sosa-Hurtado moved for a
directed verdict on the aggravated murder charge, arguing that there
was insufficient evidence to allow the jury to conclude that Sosa-
Hurtado knowingly placed someone other than Stephen at a great
risk of death when he murdered Stephen. The district court denied
the motion. The district court concluded that “there [was] an
adequate basis for maintaining the aggravator as it exists under the
law,” because of the “small area” inside the smoke shop where
4
Cite as: 2019 UT 65
Opinion of the Court
Stephen and Isabel were located and “the injury that resulted to
Isabel.”
¶14 At trial, Sosa-Hurtado admitted that he had, on one
occasion, purchased ammunition for an AK-74—the type of gun that
allegedly had been used to murder Stephen.2 On cross-examination,
the State sought to establish that Sosa-Hurtado had purchased
AK-74 ammunition on four separate occasions, which he denied. The
State then produced receipts of ammunition purchases in an attempt
to impeach his testimony, claiming that the receipts were discovered
in Sosa-Hurtado’s home. Sosa-Hurtado’s counsel objected to the
admission of the receipts, asserting that they had not been found in
Sosa-Hurtado’s home. The district court sustained the objection. The
State apologized to the jury, stating that it had been “incorrect” in
asserting that the ammunition receipts had been found in
Sosa-Hurtado’s home and conceding that the State “[could] not tie
those purchases to [the] defendant.”
¶15 During the jury’s deliberations, the judge met with the jury
without counsel present. The judge notified the jury that because it
was Election Day, she would need to recess the jury to give them
time to vote. The members of the jury indicated that they were close
to a verdict and that they would notify the judge if they needed to
reconvene the next day. Shortly thereafter, the jury informed the
judge that they had reached a verdict. When the court reconvened to
receive the jury’s verdict, the judge informed the parties of this
meeting and confirmed with the jury that she had fairly represented
their discussion.
¶16 The jury convicted Sosa-Hurtado of aggravated murder. It
also convicted him of felony discharge of a firearm with bodily
injury and seven counts of felony discharge of a firearm.
¶17 Sosa-Hurtado filed a timely motion for a new trial along
with a supporting memorandum. In the motion, Sosa-Hurtado
asserted that his right to a fair trial had been prejudiced by: (1) “The
State’s misrepresentation of the terms of [Suarez-Campos’s] plea
bargain”; (2) “Prosecutorial and police misconduct”; and (3) “The
_____________________________________________________________
2 The State could not identify precisely the type of rifle used in
the homicide, but it narrowed the field to three possibilities, one of
which was an AK-74. The State then attempted to connect Sosa-
Hurtado to that type of weapon.
5
STATE v. SOSA-HURTADO
Opinion of the Court
court’s ex parte communication with the jury.” For support, the
motion for new trial cited portions of the trial transcript.
¶18 The State opposed Sosa-Hurtado’s motion, asserting in part
that it lacked the evidentiary support required under Utah Rule of
Criminal Procedure 24. See UTAH R. CRIM. P. 24(b) (2007) (“A motion
for a new trial . . . shall be accompanied by affidavits or evidence of
the essential facts in support of the motion.”).
¶19 Sosa-Hurtado filed a reply. A month later, Sosa-Hurtado
filed an amended motion for a new trial. He also filed four affidavits
to support his motions. Sosa-Hurtado filed these documents six
weeks to four months after rule 24’s ten-day filing period had
passed. See id. 24(c).3 In response to these filings, the State filed two
additional affidavits and requested an evidentiary hearing.
¶20 The district court denied the State’s request for an
evidentiary hearing, reasoning that it did not need a hearing to
decide the motions. The district court denied Sosa-Hurtado’s
amended motion for a new trial because it was not filed within ten
days after entry of sentence as rule 24 required at the time. The
district court noted that Sosa-Hurtado did not request or receive an
extension of time to file the amended motion.
¶21 The district court also denied Sosa-Hurtado’s original
motion for a new trial. The court first concluded that “except for
references in the memorandum to the trial record, [Sosa-Hurtado]
did not provide the required evidence or affidavits in support of his
claims” as part of his motion for new trial as required by rule 24(b).
Therefore, the court did not consider any of the late-filed affidavits
or Sosa-Hurtado’s amended motion for new trial and “review[ed]
the only evidence available to it, i.e., the trial record, to determine
whether any error exist[ed] that substantially prejudiced
[Sosa-Hurtado’s] rights.” In other words, the district court
considered only the materials that had been filed within rule 24’s
ten-day period. The district court then concluded that there was “no
error or impropriety that could have had a substantial adverse effect
_____________________________________________________________
3 The rule was amended, effective November 1, 2015, to allow a
defendant to move for a new trial within fourteen days after
sentencing. UTAH R. CRIM. P. 24(c) (2015). We cite to the version of
the rule that applied at the time of Sosa-Hurtado’s trial.
6
Cite as: 2019 UT 65
Opinion of the Court
on” Sosa-Hurtado such that a more favorable outcome would have
resulted but for the errors.
¶22 Sosa-Hurtado appealed his convictions to the court of
appeals. The court of appeals affirmed, concluding that there was
sufficient evidence to support the jury’s verdict and that the trial
court did not abuse its discretion in denying Sosa-Hurtado’s
late-filed addenda to his motion for a new trial and in denying the
motion. State v. Sosa-Hurtado, 2018 UT App 35, ¶ 59, 424 P.3d 948. We
granted certiorari.
II
¶23 Sosa-Hurtado contends that the court of appeals erred in
affirming the trial court’s denial of a directed verdict and concluding
that the jury was presented with sufficient evidence to support the
finding that he “knowingly created a great risk of death to a person
other than the victim and the actor.” UTAH CODE § 76-5-202(1)(c)
(2013).4 He next asserts that the court of appeals erred in concluding
that the district court did not abuse its discretion when it declined to
consider late-filed documents and an amended motion for a new
trial and in affirming the district court’s denial of the motion for a
new trial.
¶24 We find each of these arguments unpersuasive. There was
sufficient evidence to sustain a verdict of aggravated murder. And
the district court acted within its discretion when it refused to
consider late-filed documents and when it denied Sosa-Hurtado’s
motion for a new trial.
A
¶25 A person commits “aggravated murder” under Utah law if
he “intentionally or knowingly causes the death of another” under
any of a range of “circumstances” described in our code. UTAH CODE
§ 76-5-202(1). One of the listed circumstances is where “the actor
knowingly created a great risk of death to a person other than the
victim and the actor.” Id. § 76-5-202(1)(c).
¶26 A key question in this case concerns the scope of the
“circumstances” that may be considered in deciding whether Sosa-
Hurtado “knowingly created a great risk of death to a person other
than the victim and the actor.” Id. Our cases have long held that the
_____________________________________________________________
4 Because the underlying trial occurred in 2014, we cite to the
version of the code in effect at that time.
7
STATE v. SOSA-HURTADO
Opinion of the Court
relevant circumstances extend beyond the precise act that caused the
death of the victim. See, e.g, State v. Pierre, 572 P.2d 1338, 1355 (Utah
1977). In Pierre we said that the statute may be satisfied if the risk
was created “within a brief span of time” of the act causing the
murder so long as the acts together “formed a concatenating series of
events.” Id. Later, in State v. Johnson, we noted that this standard
“require[d] clarification” and explained that the statute is met where
another person is placed “within the ‘zone of danger’ created by” the
conduct that caused the victim’s death. 740 P.2d 1264, 1266–67 (Utah
1987) (citation omitted). In so stating we indicated that the “zone of
danger” test may be satisfied even though “the endangered person is
physically removed from the defendant’s conduct” at the time of the
killing. Id. at 1267. Yet we emphasized that a determination of
whether the statutory standard is met “require[s] a careful
consideration of a defendant’s intent and knowledge of the risk and
the endangered person’s proximity in time and place to the murder.”
Id. We explained, in other words, that “[a] proper reading of the
statute requires an examination of the manner in which the killing
occurred and consideration of whether the knowing and intentional
killing took place under circumstances in which the actor knowingly
exposed someone other than himself and his victim to a great risk of
death because of his knowing or intentional murder of his victim.”
Id. at 1266.
¶27 We uphold the verdict in this case under the standard set
forth in Pierre and Johnson. In so doing we reject an alternative
standard proposed by Sosa-Hurtado and endorsed by the dissent—a
standard holding that the requirements of Utah Code section
76-5-202(1)(c) are met only where the murderous act itself creates a
“great risk of death to a third party.”5 Infra ¶ 111. This standard is
_____________________________________________________________
5 The dissent seeks to distance itself from the “murderous act”
standard advanced by Sosa-Hurtado. Justice Pearce says that he
would require only a showing that the great risk of death resulted
from specific “acts that were directed at the victim who was killed.”
Infra ¶ 111 n.31. But this still narrows the temporal focus of the
statutory inquiry substantially. And it leaves unanswered the
question of which acts count as acts “directed at the victim who was
killed.”
For reasons explained below we conclude that the shots fired at
Isabel were connected temporally, spatially, and causally to the
murderous acts directed at Stephen. See infra ¶¶ 50–52. And on that
(continued . . .)
8
Cite as: 2019 UT 65
Opinion of the Court
incompatible with the structure of the statute and has been squarely
rejected by our precedent. Consequently, we hold that a person may
be guilty of knowingly creating a “great risk of death to a person
other than the victim and the actor” if he did so “within a brief span
of time” of the act causing the murder and the acts together “formed
a concatenating series of events.” Pierre, 572 P.2d at 1355.
¶28 We also identify considerations that may inform the
decision whether a “series of events” is sufficiently connected or
related to meet the standard set forth in our cases. Echoing the court
of appeals’ excellent opinion on this point, we identify a few factors
of relevance to the inquiry into whether the acts causing a great risk
of death are sufficiently connected to the act of murder. The factors
include “(1) the temporal . . . relationship between any actions the
defendant may have taken towards the third party and the acts
constituting the murder; (2) the spatial relationship . . . between the
third party, the murder victim, and the defendant at the time of the
acts constituting the murder; and (3) whether and to what extent the
third party was actually threatened by the assailant, either by direct
threats or by indirect means such as the risk of stray or ricocheting
bullets.” State v. Sosa-Hurtado, 2018 UT App. 35, ¶ 31, 424 P.3d 948.
¶29 Applying these factors, we hold that there was sufficient
evidence in this case to sustain a verdict of aggravated murder. The
knowing risk was created most obviously when Sosa-Hurtado fired
his assault rifle directly at Isabel. That shot created a great risk of
death to Isabel. And a reasonable jury could conclude that such a
shot was an element of the “circumstances” of the murder of
Stephen. Here we have temporal and spatial proximity and an actual
threat against Isabel. Sosa-Hurtado fired at Isabel seconds before he
shot at Stephen, he shot at Stephen when Isabel was close by, and
_____________________________________________________________
basis we conclude that Sosa-Hurtado created a great risk of death in
the acts he directed at Isabel. In opposing that conclusion, the dissent
claims not to be focusing only on the “murderous act itself.” But its
ultimate conclusion highlights the fact that the only acts that count in
the dissent’s view are the acts that were directed at Stephen—the
murderous acts. There is little, if any, daylight between Sosa-
Hurtado’s proposed standard and that advanced by the dissent. And
neither of them is compatible with the governing statutory scheme
as interpreted in our precedent.
9
STATE v. SOSA-HURTADO
Opinion of the Court
there was both an intent to harm or kill Isabel and an act specifically
directed at Isabel. We affirm the jury verdict on that basis.
¶30 In the sections below we first assess the language and
structure of the operative statute, demonstrating that it is consistent
with the standard that we apply and incompatible with the contrary
approach proposed by the dissent. Second, we describe and clarify
our case law in this field, explaining how it sustains our approach
and undermines the standard proposed by the dissent. Third, we
conclude by applying the governing legal standard to the facts of
this case and explaining the basis for our conclusion that there is
sufficient evidence to sustain the jury verdict on the charge of
aggravated murder.
1
¶31 The governing statutory scheme is straightforward. It
provides that “[c]riminal homicide constitutes aggravated murder if
the actor intentionally or knowingly causes the death of another
under any of the circumstances” enumerated by statute. UTAH CODE
§ 76-5-202(1). The listed circumstances include the following: “(a) the
homicide was committed by a person who is confined in a jail or
other correctional institution”; “(b) the homicide was committed
incident to one act, scheme, course of conduct, or criminal episode
during which two or more persons were killed, or during which the
actor attempted to kill one or more persons in addition to the victim
who was killed”; “(c) the actor knowingly created a great risk of
death to a person other than the victim and the actor”; “(d) the
homicide was committed incident to an act, scheme, course of
conduct, or criminal episode during which the actor committed or
attempted to commit aggravated robbery, robbery, rape, rape of a
child, object rape, object rape of a child, forcible sodomy, sodomy
upon a child, forcible sexual abuse, sexual abuse of a child,” or other
listed crimes; “(e) the homicide was committed incident to one act,
scheme, course of conduct, or criminal episode during which the
actor committed the crime of abuse or desecration of a dead human
body”; “(f) the homicide was committed for the purpose of avoiding
or preventing an arrest of the defendant or another by a peace officer
acting under color of legal authority or for the purpose of effecting
the defendant’s or another’s escape from lawful custody”; and
“(g) the homicide was committed for pecuniary gain.” Id.
¶32 A key question presented is the timeframe in which the
“circumstances . . . creat[ing] a great risk of death to a person other
than the victim and the actor” must arise. Id. Sosa-Hurtado has asked
10
Cite as: 2019 UT 65
Opinion of the Court
us to interpret the statute to limit the relevant “circumstances” to the
specific act that caused the victim’s death.
¶33 This limitation does not follow from the structure of the
statute. Given differences in statutory language, we agree that the
relevant timeframe for assessing the “great risk of death” aggravator
is narrower than the timeframe for assessing other statutory
aggravators.6 But it does not follow that the relevant timeframe is the
narrowest one imaginable—the murderous act itself.
¶34 In fact, the statute’s use of the word “circumstances”
strongly suggests that such a limitation is inappropriate. Under the
statute, a “[c]riminal homicide constitutes aggravated murder if the
actor intentionally or knowingly causes the death of another under
. . . circumstances” in which “the actor knowingly created a great risk
of death” to another person. Id. (emphasis added). The circumstances
of a murder are not limited to the final act that specifically causes the
victim’s death.7 When we speak of the “circumstances” of an event
_____________________________________________________________
6 Compare UTAH CODE § 76-5-202(1)(b) (using the modifier “act,
scheme, course of conduct, or criminal episode”), with id.
§ 76-5-202(1)(c) (omitting the modifier “act, scheme, course of
conduct, or criminal episode” from the “great risk of death”
aggravator).
7 The dissent claims that we are mischaracterizing its position.
The “great risk of death” aggravator, it says, is not limited to the
“final act that specifically causes the victim’s death.” Rather, it is
limited to the “‘manner’ by which the defendant kills the victim.”
Infra ¶ 111 n.31. But this is problematic on two levels.
First, by inviting courts to consider the “manner” by which the
defendant kills the victim, the dissent introduces the very problem it
seeks to address. What constitutes the “manner” of the killing? The
dissent says that it is “limited to those acts that were directed at the
victim who was killed.” Infra ¶ 111 n. 31. But the dissent stops short
of defining what it means for acts to be “directed at the victim.” Acts
may be directed at both the victim and a third party. And regardless,
a factfinder will have to decide how broadly the relevant “acts” are
allowed to sweep. In this sense the standard proffered by the dissent
is not much different from the one we endorse. Either one will
require some difficult line-drawing.
Perhaps the standard the dissent has in mind is narrower. After
all, the dissent vacillates on the relevant conduct to consider, stating
(continued . . .)
11
STATE v. SOSA-HURTADO
Opinion of the Court
we are talking about “a specific part, phase, or attribute of the
surroundings or background of an event.” See Circumstance,
WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY (2002). And when
we speak of the “circumstances” of a “murder” or “homicide,” in
particular, we are referring to any of various conditions or factors in
the setting or surroundings of the criminal act.8
_____________________________________________________________
at one point that we look solely to “the action that constituted the
homicide.” Infra ¶ 101. But if that’s the case, then the distinction it
draws seems like a distinction without a difference. Regardless of
whether we frame the relevant analysis in terms of an examination
of the final act that caused the victim’s death or of the manner by
which the victim was killed, our review would be limited to the
action that resulted in the death of the victim. For reasons detailed in
this opinion, this framework is incompatible with precedent and
with Utah Code section 76-5-202.
8 The word “circumstances” in section 76-5-202 could also fairly
be read to refer to the list of twenty aggravators mentioned in the
statute. This is the reading advanced by the dissent. Infra ¶ 82 n.18.
While this may be a permissible reading of the statute, it’s not the
only one. The statutory language also supports our reading, which
requires an analysis of the circumstances surrounding the homicide.
Importantly, this appears to be the reading endorsed by this court
in Pierre and Johnson. Each case emphasized the importance of
considering the “circumstances” surrounding the homicide when
interpreting section 76-5-202. See State v. Johnson, 740 P.2d 1264, 1266
(Utah 1987) (“Section 76-5-202(1)(c) states that an actor commits first
degree murder if he ‘knowingly or intentionally causes the death of
another’ under circumstances in which he ‘knowingly created a great
risk of death to a person other than the victim or the actor.’ A proper
reading of the statute requires . . . consideration of whether the
knowing and intentional killing took place under circumstances in
which the actor knowingly exposed someone other than himself and
his victim to a great risk of death . . . .” (emphasis added)); State v.
Pierre, 572 P.2d 1338, 1355 (Utah 1977) (“We believe a careful reading
of . . . Section 76-5-202(1)(c) requires . . . an intentional and knowing
killing of one in circumstances where the defendant creates a great
risk of death to another other than the victim and the
defendant . . . .” (emphasis added)). Thus, the word “circumstances”
both provides a strong textual clue about the scope of the aggravator
at issue and plays an important role as a matter of stare decisis.
(continued . . .)
12
Cite as: 2019 UT 65
Opinion of the Court
¶35 For these reasons we find no basis for the conclusion that
the statute requires proof that the defendant knowingly caused a
“great risk of death” to another person at the precise moment of his
murderous act. In fact, the term “circumstances” cuts against this
reading.
2
¶36 The statute itself may not prescribe a precise timeframe for
the assessment of whether the defendant “knowingly caused a great
risk of death” under the “circumstances” of the homicide. Indeed the
relevant timeframe may be a matter that eludes a clear, bright line.
But our cases have foreclosed the standard advocated by Sosa-
Hurtado. We have held that it is enough that the act that caused the
great risk of death be one in a “concatenating series of events,” State
v. Pierre, 572 P.2d 1338, 1355 (Utah 1977), leading to the murder. In
other words, the act must merely be connected to the murderous act
in a way that places the third person within the “zone of danger” at
the time of the murder. State v. Johnson, 740 P.2d 1264, 1267 (Utah
1987). And we have identified relevant factors for determining
whether the “events” are so connected to the murder that they
should count as an element of the relevant “circumstances”—factors
such as the defendant’s intent and the spatial and temporal
proximity between the murder and the act causing a great risk of
death. Id.
¶37 We first announced a standard for the governing timeframe
under Utah Code section 76-5-202(1)(c) in Pierre. In that case we said
_____________________________________________________________
The dissent seeks to avoid this latter concern by suggesting that
Johnson overruled Pierre sub silentio. We disagree with this conclusion
for reasons discussed below, see infra ¶ 41—the most relevant being
that Johnson itself encourages courts applying the “great risk of
death” aggravator to consider whether the killing “took place under
circumstances in which the actor knowingly exposed someone other
than himself and his victim to a great risk of death.” Johnson, 740
P.2d at 1266 (emphasis added). The dissent seeks to avoid this
quoted language by fixating on the first part of the Johnson standard,
which “requires an examination of the manner in which the killing
occurred.” Id. But when read in full, it is clear that Johnson merely
clarified what we said in Pierre—it did not overturn Pierre sub
silentio. And that clarified standard comports with the language of
section 76-5-202.
13
STATE v. SOSA-HURTADO
Opinion of the Court
that the “great risk of death” aggravator is triggered where the
events causing such a risk occurred “within a brief span of time in
which were formed a concatenating series of events” surrounding
the murder. Pierre, 572 P.2d at 1355. In so stating we clearly indicated
that the act causing the great risk of death did not have to be the
murderous act itself. See infra ¶ 90 (conceding that under Pierre “the
great risk of death to another did not need to be the same act that
killed the victims for the aggravator to apply”). Our Johnson opinion
embraced and extended the underspecified Pierre standard. In
Johnson we noted that we had “previously interpreted” section
76-5-202(1)(c) “to apply when the defendant created a setting in
which he placed persons other than the victims at great risk of death
‘within a brief span of time in which were formed a concatenating
series of events.’” 740 P.2d at 1266 (citing Pierre, 572 P.2d at 1355).
Yet we acknowledged that “[t]hat standard require[d] clarification to
permit a meaningful application of the language of section
76-5-202(1)(c).” Id. And we provided clarification.
¶38 In clarifying the standard, we held that “the statute
requires an examination of the manner in which the killing occurred
and consideration of whether the knowing and intentional killing
took place under circumstances in which the actor knowingly
exposed someone other than himself and his victim to a great risk of
death because of his knowing or intentional murder of his victim.”
Id. We further indicated our agreement with the explanation set forth
in State v. Price, which provides that the relevant “facts” to be
considered “must include a knowing or purposeful state of mind vis-
a-vis the creation of a great risk of death, that there be a likelihood or
high probability of great risk of death created, not just a mere
possibility . . . and that there be at least another person within the
‘zone of danger’ created by defendant’s conduct.” Johnson, 740 P.2d
at 1267 (quoting State v. Price, 478 A.2d 1249, 1260 (N.J. Super. Ct.
Law Div. 1984)). We also noted that “there may be circumstances in
which a defendant may be guilty although the endangered person is
physically removed from the defendant’s conduct” while
emphasizing “that such cases require a careful consideration of a
defendant’s intent and knowledge of the risk and the endangered
person’s proximity in time and place to the murder.” Id.
¶39 The standard developed in our case law is in line with that
applied by the court of appeals in its decision in this case. In the
decision before us on review on certiorari, the court of appeals stated
that the applicability of the aggravator under section 76-5-202(1)(c) is
“often influenced by three main factors: (1) the temporal . . .
14
Cite as: 2019 UT 65
Opinion of the Court
relationship between any actions the defendant may have taken
towards the third party and the acts constituting the murder; (2) the
spatial relationship . . . between the third party, the murder victim,
and the defendant at the time of the acts constituting the murder;
and (3) whether and to what extent the third party was actually
threatened by the assailant, either by direct threats or by indirect
means such as the risk of stray or ricocheting bullets.” State v.
Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (citations omitted).
The court emphasized that these factors are not exhaustive. Id. ¶ 32.
And it explained that the ultimate inquiry is whether there was a
“great risk of death” to a third person resulting from an act of
homicide and “not just a mere possibility.”9 Id. ¶ 28 (citation
omitted).
_____________________________________________________________
9 The dissent raises three objections to our endorsement of these
factors. Infra ¶¶ 108–110. The first objection stems from the dissent’s
doubts about the continuing viability of the Pierre standard. Pierre,
however, remains good law. Johnson admittedly clarified Pierre. But
it did not overrule it. The dissent’s second concern is that our
endorsement of these factors “risks leaving behind the question of
whether the defendant ‘knowingly created’ the great risk of death.”
Infra ¶ 109. We see no basis for this concern. We are not establishing
a multifactor balancing test. We are simply identifying a range of
factors of possible relevance to the statutory inquiry as elaborated in
our case law. The ultimate test is the statutory test. And we
emphasize that the statutory test requires that the defendant
“knowingly create[]” the great risk of death. UTAH CODE § 76-5-
202(1)(c) (2013).
The dissent’s final concern is targeted at “multifactor tests”
generally—a judicial formulation that has been criticized in a series
of our recent opinions. See, e.g., Met v. State, 2016 UT 51, ¶¶ 89–90,
388 P.3d 447. We accept and agree with the dissent’s concerns on this
score. Multifactor tests have the potential “to corrode into a checklist
divorced from the legal question at issue.” Infra ¶ 110. And they can
undermine the role of determinacy in the name of flexibility. But we
are not here establishing a multifactor test. We are simply
identifying considerations of possible relevance to the legal inquiry
required by statute and elaborated in our case law. These
considerations are non-exhaustive. And they are not the test. Such
considerations are important, moreover, as applied to a legal
question that does not lend itself easily to a single bright-line rule.
See State v. Rushton, 2017 UT 21, ¶ 71, 395 P.3d 92 (Lee, A.C.J.,
(continued . . .)
15
STATE v. SOSA-HURTADO
Opinion of the Court
¶40 The court of appeals had it exactly right. The scope of the
“great risk of death” timeframe has not been pinpointed in our case
law. But we have stated clearly that the risk need not be linked solely
to the precise act that caused the murder. And we have identified
factors relevant to the inquiry into whether there was a “great risk of
death” (and not just a possibility) imposed as a result of the
circumstances of the murder. Here, a reasonable jury could easily
find that those factors support the conclusion that Sosa-Hurtado
caused a great risk of death to Isabel during the murder of Stephen:
Sosa-Hurtado fired at Isabel seconds before shooting Stephen, he
shot at Stephen when Isabel was close by, and he specifically acted
with the intent to harm or kill Isabel. There is sufficient evidence to
support the jury’s conclusion that Sosa-Hurtado knowingly created a
great risk of death to Isabel in the circumstances of the homicide. We
affirm the jury verdict on that basis.
¶41 The dissent disagrees based on the conclusion that the
“great risk of death” must result from the “action that constituted
the homicide”—here, the two deadly shots fired at Stephen. Infra
¶ 101. That conclusion is premised on the notion that the standard
announced in Pierre was overruled “sub silentio” in Johnson—
specifically, that Johnson implicitly held that an act in a “series of
events was not sufficient . . . to satisfy the section 76-5-202(1)(c)
aggravator,” but instead required that the precise act that caused the
victim’s death also caused the great risk of death to another person.
_____________________________________________________________
concurring in the judgment) (noting that multifactor tests “may have
a place in the law—in a field, for example, where precision is
untenable (or unimportant) and flexibility is at a premium”); id. ¶ 71
n.11 (noting that “[t]here is a rich literature on the virtues and vices
of objective rules and subjective standards,” that “[n]early everyone
agrees that there is a place in the law for both,” and that “balancing
tests” are most “problematic in fields in which predictability is at a
premium”). The governing statute at issue does not prescribe a clear
standard. It leaves undefined the relevant “circumstances” courts
should consider when applying the “great risk of death” aggravator.
And our case law has liquidated this ambiguity by articulating
certain factors that courts may consider. These factors are
well-established in our law, are compatible with the statutory text,
and are sufficiently workable in practice. We thus see no reason to
call them into question.
16
Cite as: 2019 UT 65
Opinion of the Court
Infra ¶ 100. The dissent reaches this conclusion despite some
undeniable features of the Johnson opinion: (a) the Johnson opinion
expressly states that it is only clarifying the standard in Pierre,
Johnson, 740 P.2d at 1266; (b) in Johnson we never came close to
stating that a “series of events” is insufficient, and in fact restated the
“concatenating series of events” standard favorably, id.; (c) Johnson
emphasized the need to consider the “circumstances” surrounding
the murderous act, id.; and (d) Johnson never says that the
“murderous act itself” must create the great risk of death.
¶42 Despite these problems, the dissent insists on a reading of
the Johnson opinion that attributes to that court an intent to take a
180-degree turn in our law. It bases this reading on inferences it
draws from the facts of Johnson. Specifically, the dissent notes that in
Johnson the court’s focus was on “whether the act that killed the
victim—in that case, the battery [of the husband]—placed the third
party [the wife] in a great risk of death.” Infra ¶ 97. Because our
analysis in Johnson inquired into whether the battery of the husband
(the act that caused his death) created a great risk of death to the
wife (who was at the time of the murder physically removed from
her husband—in a different part of a building where the two were
being held), the dissent insists that Johnson was really rejecting the
“concatenating series of events” standard and replacing it with a
“great risk of harm” from the murderous act itself standard. See infra
¶¶ 99–101.
¶43 This is a misread of Johnson. The Johnson court didn’t come
close to abandoning the notion that a connected “series of events”
could be sufficient to trigger the section 76-5-202(1)(c) aggravator. To
the contrary, the Johnson court recited and endorsed the “series of
events” standard—restating it and expressly clarifying it by
identifying factors of relevance to whether acts in a series might
trigger the aggravator (despite not being the precise act that caused
death). Johnson, 740 P.2d at 1267. The Johnson court’s focus on
“whether the ‘manner’ by which the defendant killed the victim”
created a great risk of harm, infra ¶ 97, is not an indication of a
changed standard. It is merely an application and clarification of the
Pierre standard to the facts of the case.
¶44 In Johnson the court focused on whether the battery of the
husband created a great risk of death to the wife not because the
murderous act is the only relevant factor under section
17
STATE v. SOSA-HURTADO
Opinion of the Court
76-5-202(1)(c), but because this was the defendant’s only act that
created a great risk of death to another person.10 In Johnson there
were no gunshots fired at another immediately before the killing (as
in this case). So the court in Johnson had no occasion to decide the
question we are presented with here—as to whether such gun shots
could count as a step in a connected “series.” It was only deciding
whether the murderous act (the battery of the husband) was an act
that created a great risk of death to another. And the standard the
court expressly announced is one that both restates the connected
“series” holding from Pierre and that expressly clarifies it by
announcing factors that help tell us when acts in a series are
sufficiently connected.
¶45 The Johnson opinion indicates that the factors of relevance
to the Pierre inquiry include the “defendant’s intent and knowledge
of the risk and the endangered person’s proximity in time and place
to the murder.” Johnson, 740 P.2d at 1267. And the ultimate question
is whether there was “at least another person within the ‘zone of
danger’ created by [the] defendant’s conduct.” Id. (quoting Price, 478
A.2d at 1260). The dissent infers that the relevant “conduct” must be
limited to the “action that constituted the homicide.” See infra ¶¶ 96–
_____________________________________________________________
10 Admittedly, in Johnson there were other acts directed at the
wife that may arguably have been connected to the killing, and that
may have caused her great risk of death—the fact that the defendant
“attempted to choke her,” for example, after he sexually assaulted
her (acts that were perpetrated after the defendant had completed
his murder of the husband). 740 P.2d at 1266. It does not follow,
however, that the Johnson court held that these other acts did not
count as part of the relevant circumstances of the murder, or that it
effectively “narrowed the test . . . announced in Pierre.” Infra ¶ 99
n.25. We interpret the Johnson opinion based on the analysis in the
Johnson opinion. And nothing on the face of the opinion states that
these other acts were irrelevant. Clearly Johnson does not adopt a
new test, or limit the “great risk of death” inquiry to the acts causing
a victim’s death.
The dissent notes that the above acts were apparently raised in
the briefing before this court. Infra ¶ 99 n.25. But the Johnson opinion
nowhere addresses these additional acts. And we therefore see no
basis for a reading of Johnson that would treat it as having adopted a
revised test that focuses only on the defendant’s murderous act.
18
Cite as: 2019 UT 65
Opinion of the Court
101. But the reference to “conduct” does not answer the question
whether it is the murderous act alone that counts or whether other
acts in a connected “series” should also count. The term “conduct” is
at worst ambiguous as to whether it sweeps to include other acts in a
connected series. And the dissent’s insistence on the narrow
murderous act formulation cannot be reconciled with the terms and
conditions of the Johnson opinion. The Johnson court explicitly noted
that “there may be circumstances in which a defendant may be
guilty although the endangered person is physically removed from the
defendant’s conduct.” 740 P.2d at 1267 (emphasis added). A key factor
in evaluating such circumstances, in the Johnson court’s view, is “the
endangered person’s proximity in time and place to the murder.” Id.
(emphasis added). That clearly indicates that the timeframe is not
limited to the precise act that caused the victim’s death. It would
make no sense to consider the time proximate to the murderous act if
that act was the only “conduct” we considered for purposes of
applying the aggravator. We would simply assess the endangered
person’s condition at the exact time of the murderous act without
any consideration of the person’s condition at times proximate to that
act. And that approach is incompatible with what we said in Johnson
about the circumstances that inform our analysis.11
¶46 Our cases have stated a clear standard. The governing
standard is not a bright line, but it is the standard prescribed in our
case law. We accordingly retain it, as it is well-established in our
cases, is consistent with the statutory text, and is sufficiently
workable in practice.
3
¶47 We also conclude that there was a sufficient basis for a
guilty verdict on the charge of aggravated murder under the
_____________________________________________________________
11 The dissent’s standard would also yield some real practical
difficulties. If the dissent’s standard were taken to its logical end, a
defendant could avoid the application of the aggravator in Utah
Code section 76-5-202(1)(c) despite taking multiple shots at both his
eventual victim and another person positioned closely nearby. He
could even seriously wound both persons. So long as the final kill
shot is taken after the two people separate, the dissent would
mandate the conclusion that there is no “great risk of death” to
another person resulting from the circumstances of the murder. That
is not our law.
19
STATE v. SOSA-HURTADO
Opinion of the Court
governing standard. Sosa-Hurtado perpetrated two separate acts
that created a great risk of death to Isabel and that were part of a
“concatenating series of events” leading to the murder of Stephen.
The first was the shot directed at (and injuring) Isabel. The second
was the initial shot aimed at Stephen—a shot that hit him in the
hand when Isabel was only a few feet away. A reasonable jury could
conclude that both of these acts created a great risk of death to Isabel
and that both were part of the “concatenating series of events”
leading to the murder of Stephen.
¶48 A concatenating series of events is a series that is “linked”
together in a meaningful way. See Concatenate, WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY (2002) (defining “concatenate” as “to
link together”). The link between the acts in a “series” of events
leading to a murder may be established based on the “defendant’s
intent and knowledge of the risk and the endangered person’s
proximity in time and place to the murder.” State v. Johnson, 740 P.2d
1264, 1267 (Utah 1987). And here both the defendant’s state of mind
and Isabel’s close proximity in time and place to the murder of
Stephen sustain a close linkage between these events. See State v.
Sosa-Hurtado, 2018 UT App 35, ¶ 31, 424 P.3d 948 (identifying
temporal relationship, spatial relationship, and threat to the third
party as factors relevant to the inquiry called for by our cases).
¶49 Sosa-Hurtado’s intent and knowledge are evident. He was
defeated12 in a fistfight with Stephen and soon came back with an
assault rifle to seek revenge. When he saw that Isabel was in the
way, Sosa-Hurtado shot at him directly. That shot alone is powerful
evidence of Sosa-Hurtado’s state of mind toward Isabel. Sosa-
Hurtado had more than mere knowledge that he was creating a
great risk of death to Isabel. He intended to create that risk—or
perhaps even to kill him. That is a powerful indicator of the
connection between the shots aimed at Stephen and the initial shot
aimed at Isabel. And it thus provides strong support for the jury
verdict of aggravated murder.
_____________________________________________________________
12 There is no direct evidence indicating that Stephen defeated
Sosa-Hurtado in a fistfight. But there is circumstantial evidence to
this effect—evidence that Stephen punched Sosa-Hurtado twice in
the face, and that Sosa-Hurtado responded by speeding away in his
car. A reasonable jury could infer that Sosa-Hurtado’s response was
a reaction to being bested by Stephen in the fistfight.
20
Cite as: 2019 UT 65
Opinion of the Court
¶50 The jury could properly have concluded that there was a
close causal connection between the shot aimed at Isabel and the
shots that killed Stephen. The evidence could reasonably sustain the
conclusion that Sosa-Hurtado shot at Isabel to get him out of the
way—so he could proceed with the job of avenging his earlier defeat
at the hands of Stephen. Under this view of the evidence, it could be
said that “the knowing and intentional killing took place under
circumstances in which the actor knowingly exposed someone other
than himself and his victim to a great risk of death because of his
knowing or intentional murder of his victim.” Johnson, 740 P.2d at
1266 (emphasis added). And this further sustains the conclusion that
the danger intentionally caused to Isabel was an element of the
“circumstances” leading to the murder of Isabel.
¶51 This is also reinforced by the “close proximity in time and
place” between the killing and the shot fired at Isabel. The record
does not tell us precisely how much time elapsed between the kill
shots fired at Stephen and the initial shot fired at Isabel, but it seems
clear that it was only a matter of seconds.13 That also reinforces the
above-noted linkage between the two sets of shootings. Again, the
jury could properly have concluded that Sosa-Hurtado’s shot at
Isabel was aimed at furthering his ultimate goal of a revenge-killing
of Stephen. And the temporal proximity of the two shootings
reinforces that conclusion.
¶52 The same goes for the spatial proximity of the shootings.
All of the shootings took place within the same small smoke shop—
just twenty-four feet by fifteen feet. Thus Sosa-Hurtado could not
have been more than a couple of feet away from where he shot at
Isabel when he turned to take the execution shots at Stephen. This
again confirms that the killing and the initial shot at Isabel were part
of a series of “concatenating events” under our cases, or in other
words that Isabel was within the “zone of danger” when
Sosa-Hurtado killed Stephen. And we uphold Sosa-Hurtado’s
conviction on this basis.
B
¶53 Sosa-Hurtado next asserts that the court of appeals erred in
upholding the trial court’s refusal to consider the documents he filed
months after submitting his motion for a new trial. Sosa-Hurtado
_____________________________________________________________
13Isabel’s testimony at trial indicates that Sosa-Hurtado fired at
Stephen immediately after firing at Isabel.
21
STATE v. SOSA-HURTADO
Opinion of the Court
views this as “effectively denying [his] motion for new trial on
unnecessarily technical grounds.”
¶54 Sosa-Hurtado claims that rule 24 of the Utah Rules of
Criminal Procedure does not require a party to request leave to file
evidence after the ten-day filing period has passed unless it would
delay a hearing or inconvenience the court. See UTAH R. CRIM. P. 24
(2007). Sosa-Hurtado also asserts that the court of appeals erred in
affirming the trial court’s denial of the motion on the merits. We
disagree on all counts and affirm.
1
¶55 Sosa-Hurtado contends that rule 24 did not require him to
request leave of the court to file affidavits six weeks to four months
after he filed his initial motion. Because “no hearing ha[d] been
scheduled,” he insists that “no leave would be necessary as no delay
would be occasioned thereby.” The State sees the matter differently.
It interprets the rule 24 deadline to file a motion for new trial within
ten days after entry of sentence to also apply to the supporting
affidavits and documentation. And, if a defendant cannot meet this
deadline, the State says the defendant may move for an extension
“before expiration of the time for filing a motion for new trial.” See
UTAH R. CRIM. P. 24(c) (2007).
¶56 The arguments distill down to a question of what Utah
Rule of Criminal Procedure 24 requires. Rule 24 states:
(a) The court may, upon motion of a party or upon its
own initiative, grant a new trial in the interest of justice
if there is any error or impropriety which had a
substantial adverse effect upon the rights of a party.
(b) A motion for a new trial shall be made in writing
and upon notice. The motion shall be accompanied by
affidavits or evidence of the essential facts in support
of the motion. If additional time is required to procure
affidavits or evidence the court may postpone the
hearing on the motion for such time as it deems
reasonable.
(c) A motion for a new trial shall be made not later than
10 days after entry of the sentence, or within such
further time as the court may fix before expiration of
the time for filing a motion for new trial.
(d) If a new trial is granted, the party shall be in the
same position as if no trial had been held and the
22
Cite as: 2019 UT 65
Opinion of the Court
former verdict shall not be used or mentioned either in
evidence or in argument.
UTAH R. CRIM. P. 24 (2007).
¶57 Accordingly, at the time of Sosa-Hurtado’s trial, rule 24
gave a defendant ten days following sentencing to file a motion for
new trial. Id. 24(c). Rule 24 also states that a motion “shall be
accompanied by affidavits or evidence of the essential facts in
support of the motion.” Id. 24(b). Supporting evidence of essential
facts must thus accompany the motion and must be filed within the
ten days as required by rule 24, unless the trial court extends the
ten-day period. Id. 24(c); see State v. Mitchell, 2007 UT App 216, ¶ 9,
163 P.3d 737. If a party desires an extension to file a motion or
supporting evidence, it must seek leave of the court within the
ten-day filing period. Mitchell, 2007 UT App 216, ¶¶ 9–12 (reasoning
that rule 24 “provides a clear method by which a defendant may
invoke the discretion of the trial court to obtain more time to file a
properly supported motion.”). Although rule 24(c) does not
explicitly state the parties must ask for leave, its language implies
that a party must ask for leave within the ten-day window before
submitting evidentiary support after the filing deadline has passed.
UTAH R. CRIM. P. 24(a), (c) (2007).
¶58 The court of appeals held that Sosa-Hurtado could not file
supporting documentation after the ten-day filing period unless he
filed a request for an extension within that period. State v.
Sosa-Hurtado, 2018 UT App 35, ¶¶ 41–42, 424 P.3d 948 (citing
Mitchell, 2007 UT App 216). It also concluded that the decision to
grant or deny a request for an extension is a matter “entirely within
the trial court’s discretion.” Id. ¶ 41. We agree. The district court
could permissibly have allowed the submission of the late-filed
documents. But it also had the discretion to refuse to consider this
new material.14 Because Sosa-Hurtado failed to ask for an extension
_____________________________________________________________
14 Sosa-Hurtado also contends that the district court should have
held an evidentiary hearing (with the subtext that he might have
been able to discuss his late-filed evidence at the hearing). In his
briefing on appeal, he frames this argument as the “Consequences of
Refusal to Consider After-Filed Documents and Hold an Evidentiary
Hearing.” We would frame this differently. We see it as the
consequence of defense counsel’s failure to file the supporting
documentation in the time required by the rules of criminal
(continued . . .)
23
STATE v. SOSA-HURTADO
Opinion of the Court
within the ten-day filing period, the trial court was within its
discretion in refusing to consider the late-filed documents.15 Id. ¶ 42.
¶59 Sosa-Hurtado also contends that the trial court’s conclusion
that he “did not provide the required evidence or affidavits in
support of his claim” is a “hyper-technical” reading of rule 24
because he contends that he incorporated the evidence by reference.
And he contends that the court of appeals’ decision to uphold this
conclusion was error. See Sosa-Hurtado, 2018 UT App 35, ¶¶ 39–44.
¶60 Sosa-Hurtado asserts that the motion provided “evidence
of the essential facts in support of the motion, and constituted
substantial compliance with [r]ule 24.” But this argument
misunderstands the basis for the court of appeals’ decision. The
court of appeals focused its analysis on whether the trial court acted
_____________________________________________________________
procedure. We also note that the decision to grant or deny an
evidentiary hearing is firmly committed to the district court’s
discretion. See State v. Wilder, 2016 UT App 210, ¶ 15, 387 P.3d 512
(reasoning that “[a]ssuming the defendant presents some evidence,
the trial court may choose to hold an evidentiary hearing before
ruling on the motion for new trial.”). And we see nothing to suggest
that the district court abused its discretion in proceeding on the
papers in front of it, given that both parties relied on the trial
transcript and on the basis of that transcript, no material fact was in
dispute. See State v. Clegg, 2002 UT App 279, ¶ 6, 54 P.3d 653 (“If no
material fact is in dispute, then no evidentiary hearing is required.”).
15 Sosa-Hurtado notes that our rules of criminal procedure are
“intended and shall be construed to secure simplicity in procedure,
fairness in administration, and the elimination of unnecessary
expense and delay.” UTAH R. CRIM. P. 1 (2007). And he insists that
these goals should have directed the admission of his late-filed
documents. We disagree. The quoted principles are background
goals to be taken into account in the interpretation of our rules of
procedure. But the stated goals do not trump the terms and
conditions of the rules, or the inherent discretion vested in our trial
judges. Where, as here, the trial judge has the discretion to reject a
late-filed document, the broad aspiration for “fairness” is hardly a
basis for overriding the court’s discretion. Fairness often dictates
adherence to the timeframes set forth in our rules. And those
timeframes cannot be overridden by a bare citation to the general
aspiration for “fairness.”
24
Cite as: 2019 UT 65
Opinion of the Court
within its discretion when it elected to exclude the late-filed
affidavits and amended motion. Sosa-Hurtado, 2018 UT App 35,
¶¶ 39–44. As discussed above, the court of appeals properly
concluded that the trial court acted within its discretion when it
excluded the late-filed documents.
2
¶61 Sosa-Hurtado also argues that the court of appeals erred by
affirming the trial court’s denial of the motion for new trial on its
merits.16 Sosa-Hurtado sought a new trial on the basis of three
alleged errors: (1) the State violated his constitutional rights by
failing to disclose the details of the plea agreement with
Suarez-Campos, (2) the State prejudiced Sosa-Hurtado’s case by
presenting the four doctored ammunition receipts, and (3) the
district court’s ex parte communication with the jury prejudiced him.
We affirm the court of appeals’ conclusion that none of these alleged
errors entitle Sosa-Hurtado to a new trial. See State v. Sosa-Hurtado,
2018 UT App 35, ¶ 45, 424 P.3d 948.
¶62 First, because the trial court did not consider the late-filed
documents, Sosa-Hurtado asserts that it erred in concluding that the
State did not misrepresent its plea deal with Suarez-Campos. At
trial, Sosa-Hurtado’s counsel asked Suarez-Campos about a pending
aggravated burglary charge and suggested that charge would be
dismissed under his plea deal. During a sidebar conversation, the
State represented to the district court that the dismissal of the
aggravated burglary charge required Suarez-Campos “to testify, if
necessary, against [Sosa-Hurtado] in that particular case.”
Sosa-Hurtado’s counsel stated that Suarez-Campos’s counsel had
informed him that the aggravated burglary charge would be
_____________________________________________________________
16 Sosa-Hurtado’s briefing is unclear on this point. He presents
these arguments as “[c]onsequences of [the trial court’s r]efusal to
[c]onsider [a]fter-[f]iled [d]ocuments and [h]old an [e]videntiary
[h]earing.” And in his reply brief, he points to these arguments as
establishing that he was prejudiced by the trial court’s refusal to
consider the late-filed documents. Sosa-Hurtado’s briefing on appeal
to this court therefore appears to present these arguments as
evidence of “prejudice” that he experienced as a result of the trial
court’s alleged error, but not as arguments challenging the denial of
the motion for new trial on its merits. Still, out of an abundance of
caution, we address them on their merits.
25
STATE v. SOSA-HURTADO
Opinion of the Court
dismissed in exchange for his testimony in this case alone. The State
reiterated that the plea deal with Suarez-Campos included his
agreement to testify in the aggravated burglary case.
¶63 In the motion for new trial, Sosa-Hurtado asserted that
after Suarez-Campos finished testifying, Suarez-Campos’s counsel
“approached . . . Sosa-Hurtado’s counsel and insisted that dismissal
of Suarez-Campos’ aggravated burglary case was in fact part of his
deal to testify against Mr. Sosa-Hurtado.” Sosa-Hurtado later filed
an affidavit in which his trial counsel attested to this conversation.
Sosa-Hurtado also cited to the record of Suarez-Campos’s
aggravated burglary case in the motion for new trial to demonstrate
that the State did dismiss that case after Suarez-Campos gave
testimony in this trial. Sosa-Hurtado contrasts this with the State’s
representation during trial that Suarez-Campos’s plea agreement
required him to agree to testify against Sosa-Hurtado in the
aggravated burglary trial. Sosa-Hurtado asserts that this alleged
misrepresentation constitutes a potential Brady violation, a Giglio
violation, and that it denied him “due process and the right of
confrontation.” See Davis v. Alaska, 415 U.S. 308, 315 (1974); Giglio v.
United States, 405 U.S. 150, 154–55 (1972); State v. Gonzales, 2005 UT
72, ¶ 47, 125 P.3d 878; State v. Bisner, 2001 UT 99, ¶ 33, 37 P.3d 1073.
¶64 Without considering the late-filed documents, the court of
appeals found unpersuasive Sosa-Hurtado’s assertion that he was
entitled to a new trial because the State failed to fully disclose the
plea deal with Suarez-Campos. Sosa-Hurtado, 2018 UT App 35,
¶¶ 46–51. First, the court of appeals concluded that even if the State
intended to dismiss the aggravated burglary charge based on
Suarez-Campos’s testimony in this matter alone and that the State
improperly failed to disclose this, he was not entitled to relief
because Sosa-Hurtado knew of these terms from Suarez-Campos’s
counsel. Id. ¶ 48 (citing State v. Pinder, 2005 UT 15, ¶ 25, 114 P.3d
551). Second, the court of appeals concluded that Sosa-Hurtado had
failed to demonstrate prejudice as a result of the State’s alleged
suppression of information about the plea deal. Id. ¶ 49. The jury
was already aware that Suarez-Campos was receiving a favorable
plea deal for his testimony and Sosa-Hurtado failed to demonstrate
that the jury’s assessment of Suarez-Campos’s credibility would
have been materially altered by the notion that an additional charge
would have been dismissed in exchange for Suarez-Campos’s
testimony. Id. (citing State v. Howell, 2016 UT App 90, ¶ 14, 374 P.3d
1032). For these reasons, among others, the court of appeals held that
26
Cite as: 2019 UT 65
Opinion of the Court
Sosa-Hurtado was not entitled to a new trial. Id. ¶ 50 (citing Bisner,
2001 UT 99, ¶ 33).
¶65 We agree with the court of appeals. As an initial matter, the
district court did not abuse its discretion in refusing to admit the
affidavits that would have put this information into the record. And
even if the district court had accepted the late filings, the district
court would not have erred in denying the motion for a new trial.
Prosecutors must disclose to defendants all exculpatory evidence in
their possession. Bisner, 2001 UT 99, ¶ 32; see also Brady v. Maryland,
373 U.S. 83, 87 (1963). But “courts universally refuse to overturn
convictions where the evidence at issue is known to the defense
prior to or during trial, where the defendant reasonably should have
known of the evidence, or where the defense had the opportunity to
use the evidence to its advantage during trial but failed to do so.”
Bisner, 2001 UT 99, ¶ 33.
¶66 Here it is apparent that defense counsel was aware of the
existence of the plea agreement. Sosa-Hurtado, 2018 UT App 35, ¶ 48.
The State may have failed to disclose the full terms of the deal. But
Sosa-Hurtado did not show that he sustained any prejudice from
that failure. See Pinder, 2005 UT 15, ¶ 24 (“[A] Brady violation occurs
only where the state suppresses information that . . . is material and
exculpatory, meaning its disclosure would have created a reasonable
probability that the result of the proceeding would have been
different.” (internal quotation marks and citation omitted)). Sosa-
Hurtado asserts that the jury needed additional information about
the plea agreement in light of its potential impact on their
assessment of Suarez-Campos’s credibility. But he fails to explain
how the jury’s knowledge of the additional charge would have
changed the jury’s perception of Suarez-Campos. The jury knew
enough about the plea agreement to infer Suarez-Campos’s
willingness to point a finger at Sosa-Hurtado.
¶67 Sosa-Hurtado next asserts that the court of appeals erred in
upholding the district court’s refusal to hold a hearing with regard to
the falsified receipts. He claims that the State committed
prosecutorial misconduct when it presented the receipts.
¶68 On cross-examination, the State sought to impeach
Sosa-Hurtado’s assertion that he had only purchased AK-74
ammunition one time. To do so, the State attempted to introduce
receipts that it initially claimed had been found during a search of
Sosa-Hurtado’s home. Sosa-Hurtado’s counsel objected, claiming
that the receipts did not appear to have been found in Sosa-
Hurtado’s home, but had been faxed from a gun store. The
27
STATE v. SOSA-HURTADO
Opinion of the Court
prosecutor explained that law enforcement represented to him that
the receipts were found in Sosa-Hurtado’s home during the search
but offered to stop short of seeking admission of the exhibits. Sosa-
Hurtado requested an admission that the State erred and that the
receipts were not found at Sosa-Hurtado’s home. Later, after a
detective was called to confirm where the receipts had been found,
the court sustained Sosa-Hurtado’s objection and the State
apologized to the jury—with the prosecutor conceding that the State
“was incorrect” in asserting that “the receipts for the ammunition . . .
w[ere] found in the defendant’s home during the search warrant”
and conceding that it could not “tie those purchases to this
defendant.”
¶69 After the deadline for filing a motion for a new trial,
Sosa-Hurtado filed two affidavits relevant to this issue. In one
affidavit, Sosa-Hurtado’s trial counsel attested to overhearing an
off-the-record conversation amongst counsel for the State about
whether they could determine whether the receipts were found in
the search of the home. Sosa-Hurtado’s counsel asserted that he
heard counsel for the State say that he had whited out words on the
receipts that indicated that the receipts were faxed to the detective.
He then alleged that he overheard different counsel for the State ask
the detective whether he had “any way of tying these receipts to this
particular case” and heard the detective admit that he did not. In a
separate affidavit another of Sosa-Hurtado’s attorneys stated that a
member of the trial attorney team located photocopies of the receipts
that indicated that they were sent to the detective as a fax.
¶70 Sosa-Hurtado asserts that he was prejudiced by this
allegedly doctored evidence and that it “gave the jury reason to
doubt his credibility.” He contends that the detective’s actions
amounted to “outrageous conduct shocking the conscience,
fundamentally repugnant, and a violation of due process.” See State
v. Colonna, 766 P.2d 1062, 1066 (Utah 1988). And he claims that the
trial court should have held an evidentiary hearing to “determine
whether the State’s conduct amounted to such outrageous conduct
as would warrant granting the defendant a new trial.” Id. at 40. In
Sosa-Hurtado’s view, “[t]he proper remedy is to remand this case for
the purpose of holding a hearing to determine if the Information
should be dismissed.” Id. And, “at the very least,” he contends that a
new trial “would be warranted for the outrageous violation of [his]
due process rights.” Id. Above all, he seeks remand for a hearing on
this issue.
28
Cite as: 2019 UT 65
Opinion of the Court
¶71 If these allegations are accurate, then we can certainly
understand the outrage. Yet we ultimately agree with the court of
appeals that Sosa-Hurtado received all of the relief that he sought
during trial. The challenged “evidence was excluded . . . and the
State apologized to the jury for its introduction.”17 Sosa-Hurtado, 2018
UT App 35, ¶ 52. With that in mind, we agree with the court of
appeals that the trial court did not abuse its discretion in denying
Sosa-Hurtado’s motion for new trial.
¶72 Sosa-Hurtado lastly contends that the court of appeals
erred in upholding the trial court’s refusal to hold a hearing on the
judge’s ex parte communication with the jury about the need to
release jurors to allow them to vote on Election Day. In a cursory
argument, Sosa-Hurtado seeks a hearing to determine whether the
judge’s ex parte communication was prejudicial.
¶73 The court of appeals cited State v. Maestas, 2012 UT 46,
¶¶ 69–70, 299 P.3d 892, for the proposition that courts do not
presume prejudice when an ex parte communication with a jury is
brief, non-substantive, deals with the timing of the jury’s dismissal,
is disclosed to both parties, and neither party raised an objection.
Sosa-Hurtado, 2018 UT App 35, ¶ 54. Because that was the case here,
the court of appeals concluded that the trial court acted within its
discretion when it did not presume prejudice and declined to grant
Sosa-Hurtado a new trial. Id. And again we agree. The district court
acted within its discretion when it denied the hearing.
III
¶74 We commend the court of appeals for its careful and
insightful analysis in this case. We affirm the court of appeals in all
respects.
_____________________________________________________________
17 The court of appeals also noted that Sosa-Hurtado did not
submit any timely-filed evidence in support of his claim that the
State doctored the receipts to implicate Sosa-Hurtado and refused to
consider the affidavits discussed above. Sosa-Hurtado, 2018 UT App
35, ¶ 52.
29
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
JUSTICE PEARCE, dissenting opinion:
¶75 I dissent from the majority’s decision to affirm
Sosa-Hurtado’s aggravated murder conviction. I concur with the
majority’s holding that the district court acted within its discretion
when it denied the motion for a new trial.
¶76 Sosa-Hurtado contends that the court of appeals erred in
concluding that his “shooting at [Isabel], followed by the separate
and independent act of shooting [Stephen], supports the aggravating
factor.” See State v. Sosa-Hurtado, 2018 UT App 35, ¶¶ 33–37, 424 P.3d
948. Sosa-Hurtado argues that “it cannot reasonably be said that . . .
[he] ‘created a likelihood or high probability of great risk of death’ to
[Isabel] at the specific time he shot and killed [Stephen].”
¶77 Two questions are folded into this issue. First, the meaning
of the “great risk of death” aggravator found in Utah Code section
76-5-202(1)(c) (2013). And second, whether the court of appeals
correctly concluded that there was sufficient evidence in the record
to support the trial court’s decision to instruct the jury on that
aggravator.
¶78 “Criminal homicide constitutes aggravated murder if,”
among other things, “the actor intentionally or knowingly causes the
death of another” under circumstances in which the actor
“knowingly created a great risk of death to a person other than the
victim and the actor.” UTAH CODE § 76-5-202(1)(c) (2013). Although
seemingly straightforward, uncertainty arises in application because
the statute does not fully explain the time frame in which the
defendant must create the “great risk of death” to another. The
statute tells us that it must occur at the time the defendant “causes
the death of another,” but that still requires us to identify at what
point a defendant begins to cause the death of another.
¶79 This case provides a poignant example of the principle. Did
Sosa-Hurtado cause Stephen’s death when he entered the store
armed and ready to kill? Did he cause Stephen’s death when he fired
at Isabel? When he fired the shot that hit Stephen in the hand? Or
when he fired point-blank the two shots into Stephen’s chest?
¶80 The meaning of Utah Code section 76-5-202(1)(c) is a
question of statutory interpretation. The point of statutory
interpretation is to understand what the Legislature intended. Bagley
v. Bagley, 2016 UT 48, ¶ 10, 387 P.3d 1000. Because “[t]he best
evidence of the legislature’s intent is the plain language of the statute
itself, we look first to the plain language of the statute.” Id.
(alteration in original) (citation omitted) (internal quotation marks
30
Cite as: 2019 UT 65
PEARCE, J., dissenting
omitted). As we examine the text, “[w]e presume that the legislature
used each word advisedly.” Ivory Homes, Ltd. v. Utah State Tax
Comm’n, 2011 UT 54, ¶ 21, 266 P.3d 751 (citation omitted) (internal
quotation marks omitted).
¶81 When we find ourselves hunting for language that we do
not encounter in the statute’s text, we often presume that “the
expression of one [term] should be interpreted as the exclusion of
another.” Marion Energy, Inc. v. KFJ Ranch P’ship, 2011 UT 50, ¶ 14,
267 P.3d 863 (alteration in original) (citation omitted) (internal
quotation marks omitted). And we “seek to give effect to omissions
in statutory language by presuming all omissions to be purposeful.”
Id.
¶82 “[W]e do not view individual words and subsections in
isolation; instead, our statutory interpretation requires that each part
or section be construed in connection with every other part or
section so as to produce a harmonious whole.” Penunuri v. Sundance
Partners, Ltd., 2013 UT 22, ¶ 15, 301 P.3d 984 (emphasis omitted)
(citation omitted) (internal quotation marks omitted). “Thus, we
interpret [] statutes to give meaning to all parts, and avoid[]
rendering portions of the statute superfluous.” Id. (alterations in
original) (citation omitted) (internal quotation marks omitted). Utah
Code section 76-5-202 lists twenty circumstances18 that change
murder into aggravated murder. Section 76-5-202(1)(c) details the
“great risk of death” aggravator:
(1) Criminal homicide constitutes aggravated murder if
the actor intentionally or knowingly causes the death
of another under any of the following circumstances:
...
(c) the actor knowingly created a great risk of
death to a person other than the victim and the
actor . . . .
_____________________________________________________________
18 The majority finds significance in the Legislature’s use of the
word “circumstance[]” and argues that this is a “strong textual clue”
for the “great risk of death” aggravator. Supra ¶ 34 n.8. Section 76-5-
202(1) provides that criminal homicide constitutes aggravated
murder in “any of the following circumstances.” Thus the
Legislature uses “circumstance[]” to refer to the twenty aggravators
and not as a “strong” signal as to how any individual aggravator
should be interpreted.
31
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
¶83 And it is helpful to read the aggravator in context, taking
into account several of the other aggravators the Legislature has
specified:
(1) Criminal homicide constitutes aggravated murder if
the actor intentionally or knowingly causes the death
of another under any of the following circumstances:
(a) the homicide was committed by a person who
is confined in a jail or other correctional institution;
(b) the homicide was committed incident to one
act, scheme, course of conduct, or criminal episode
during which two or more persons were killed, or
during which the actor attempted to kill one or
more persons in addition to the victim who was
killed;
(c) the actor knowingly created a great risk of
death to a person other than the victim and the
actor;
(d) the homicide was committed incident to an act,
scheme, course of conduct, or criminal episode
during which the actor committed or attempted to
commit [a specified offense, such as arson,
burglary, robbery, or rape];
(e) the homicide was committed incident to one
act, scheme, course of conduct, or criminal episode
during which the actor committed the crime of
abuse or desecration of a dead human body . . . ;
(f) the homicide was committed for the purpose of
avoiding or preventing an arrest of the defendant
or another by a peace officer . . . or . . . effecting the
defendant’s or another’s escape from lawful
custody; [and]
(g) the homicide was committed for pecuniary gain
....
(2) Criminal homicide constitutes aggravated murder if
the actor, with reckless indifference to human life,
causes the death of another incident to an act, scheme,
course of conduct, or criminal episode during which
the actor is a major participant in the commission or
attempted commission of [a specified offense against a
child].
32
Cite as: 2019 UT 65
PEARCE, J., dissenting
UTAH CODE § 76-5-202.
¶84 Read as a whole, the first observation that jumps from the
page instructs that many of the aggravating circumstances require
that the factor occur as part of the same “act, scheme, course of
conduct, or criminal episode” as the murder. See, e.g., id. § 76-5-
202(1)(b), (d), (e); -202(2). So, for example, if the murder occurs in a
scheme or course of conduct that also involves robbery or the
desecration of a corpse, it constitutes aggravated murder. See id. § 76-
5-202(1)(d), (e). And the phrase “act, scheme, course of conduct, or
criminal episode” suggests that the time frame encompassed by
those aggravators is broader compared to those aggravators where
this language is absent.19
_____________________________________________________________
19 Our case law recognizes that the Legislature’s addition of the
phrase “one act, scheme, course of conduct, or criminal episode”
broadened the relevant time frame for determining whether an
aggravator occurred. In State v. Valdez, for example, this court
reasoned that sufficient evidence supported the aggravator that the
two victims were killed “at the same time,” because “[w]hile the
evidence does not indicate that [the two victims] were killed at the
same moment, the jury could have found that they were killed at
about the same time and as part of the same episode or scheme.” 748
P.2d 1050, 1054 (Utah 1987). We pointed out that when section 76-5-
202(1)(b) was rewritten in 1983 to “clarify the scope of the
aggravating circumstance,” id., the language changed from “[a]t the
time the homicide was committed the actor also committed another
homicide” to “[t]he homicide was committed incident to one act,
scheme, course of conduct, or criminal episode during which two or
more persons are killed.” I 1983 Utah Laws 434. Based on this change
to the statutory language, we reasoned that homicides that occurred
during a longer time frame, instead of at the same time, could satisfy
the aggravating factor. Valdez, 748 P.2d at 1054.
In State v. Alvarez, we again interpreted this aggravating factor
and examined whether there was sufficient evidence that the
homicide was committed incident to an act, scheme, course of
conduct, or criminal episode during which two or more persons
were killed. 872 P.2d 450, 458–59 (Utah 1994). We concluded that,
under section 76-5-202(1)(b), homicides committed minutes apart
were sufficiently close in time to satisfy the aggravator. Id. at 459.
Thus, we construed section 76-5-202(1)(b) as requiring the jury to
(continued . . .)
33
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
¶85 The great risk of death aggravator does not contain the
“act, scheme, course of conduct, or criminal episode” modifier. See
id. § 76-5-202(1)(c). We presume this omission to be deliberate, see
State v. Stewart, 2018 UT 24, ¶ 13, 438 P.3d 515, and it suggests that
the temporal window between the aggravating circumstance and the
criminal homicide is narrower for the great risk of death aggravator
than it is for those aggravators in which the Legislature has
mandated that we look to the entire criminal episode.
¶86 On two prior occasions, we have wrestled with the scope of
the great risk of death aggravator. Our first occasion to do so arose
out of the infamous Hi-Fi Murders. See State v. Pierre, 572 P.2d 1338,
1355 (Utah 1977).
¶87 Pierre and two co-defendants robbed five individuals
inside the Hi-Fi Shop. Id. at 1343. During the robbery, Pierre and one
co-defendant tortured and attempted to kill five individuals,
eventually killing three. Id. The two men “tied up [the victims],
made [them] . . . lie on the floor, and forced [them] to drink liquid
Drano.” Id. Pierre then raped one of the victims. Id. After this torture,
Pierre “finally shot all of the victims in the head with . . . a . . .
handgun, which caused the deaths [of three of the victims], within a
brief period of time.” Id. Pierre then attacked one of the victims
further after shooting him: he “kicked a ball point pen into one of
[the victim’s] ears and attempted to strangle him with a cord.” Id. at
1344 (footnote omitted).
¶88 On appeal, Pierre argued, among other things, that the trial
court misinstructed the jury on the great risk of death aggravator. Id.
_____________________________________________________________
conclude, in part, that “the conduct giving rise to the deaths of [both
victims] was closely related in time.” Id.
Our analyses in Valdez and Alvarez indicate that the added
language “act, scheme, course of conduct, or criminal episode”
broadened the time frame during which two homicides need to
occur to satisfy the aggravating factor in subsection (1)(b). See also
State v. Schroyer, 2002 UT 26, ¶ 15, 44 P.3d 730 (citing Valdez and
Alvarez and noting that while the court would not reach the merits of
the issue, there was “clearly” a sufficiently close temporal connection
to satisfy section 76-5-202(1)(b), where the murder and attempted
murder occurred within five to ten minutes of each other).
34
Cite as: 2019 UT 65
PEARCE, J., dissenting
at 1354-55; see also UTAH CODE § 76-5-202(1)(c) (1973).20 Pierre argued
that “the evidence did not disclose any circumstances which would
warrant the conclusion that at the time the death of any of the
victims was caused either [of the two surviving victims] w[ere]
placed in a great risk of death.” Pierre, 572 P.2d at 1355.
¶89 We disagreed, holding that “[t]he evidence fully sustains
that the killing of the three victims and the creation of a setting of
great risk of death to the two surviving victims occurred within a
brief span of time in which were formed a concatenating series of
events.” Id.21 We also quoted the trial court’s recitation of the State’s
allegations that the surviving victims had been “poisoned, shot and
[one of them] strangled and wounded with a pen and that such acts
created a great risk of death to each of them. If it is true as to either of
them, it would make the murder of [the other victims] murder in the
first degree.” Id. at 1355 n.28.
¶90 The Pierre court concluded that a “careful reading” of
section 76-5-202(1)(c) requires “an intentional and knowing killing of
one in circumstances where the defendant creates a great risk of
death to another other than the victim and the defendant.” Id. at
1355.22 By reasoning in this manner, the Pierre court concluded that
_____________________________________________________________
20 At trial, the court instructed the jury on six aggravators, which
we summarized as follows:
(1) At the time of killing one, defendant killed another,
(2) At the time of killing one, defendant intentionally
created a great risk of death to others than the victim
and himself, (3) The killing was in the perpetration of a
robbery, (4) The killing was in perpetration of a rape,
(5) The killing was for pecuniary gain, and/or (6) The
killing was for personal gain.
State v. Pierre, 572 P.2d 1338, 1354–55 (Utah 1977) (footnotes omitted).
On appeal, Pierre challenged only the “great risk of death” and
“pecuniary gain” aggravators. Id. at 1354–55.
21 Merriam-Webster defines “concatenate” as “linked together”
or “forming a chain or series.” Concatenate, WEBSTER’S NEW
INTERNATIONAL DICTIONARY (2nd ed. 1934). Sesquipedalian legal
tests are often more problematic than helpful.
22 To reach this conclusion, the court determined that section 76-
5-202(1)(c) was distinguishable from a prior similar statute: section
76-30-3, which was repealed in 1973. Pierre, 572 P.2d at 1355. Utah
(continued . . .)
35
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
the act that created the great risk of death to another did not need to
be the same act that killed the victims for the aggravator to apply. See
id.
¶91 We next visited the meaning of “great risk of death” in
State v. Johnson, 740 P.2d 1264 (Utah 1987). As did the defendant in
Pierre, Johnson challenged whether there was sufficient evidence to
conclude that he had put a third person at great risk of death when
he murdered his victim. Id. at 1266; see UTAH CODE § 76-5-202(1)(c)
(Supp. 1986). Johnson also challenged the district court’s conclusion
that there was sufficient evidence to convict him of the aggravator
under section 76-5-202(1)(d), “the homicide was committed while the
actor was engaged in the commission of or an attempt to commit . . .
aggravated sexual assault.” Johnson, 740 P.2d at 1266 (alteration in
original) (quoting UTAH CODE § 76-5-202(1)(d) (Supp. 1986)).
¶92 Johnson befriended a traveling husband and wife and led
them to an abandoned warehouse to spend the night. Id. at 1265. At
the end of an evening of drinking and playing cards, Johnson
suddenly “became unglued,” grabbed a shovel handle, and ordered
the husband to get up and strip. Id. The husband complied but asked
Johnson what he was doing. Id. Johnson then hit the husband across
the shoulders with the shovel, which caused him to fall to his knees.
Id. When the husband again asked what Johnson was doing, Johnson
told him to “[s]hut up, because if you don’t I’m going to start on
your old lady.” Id. at 1265–66.
¶93 Johnson “then took [husband] behind some shelving in the
basement,” repeatedly struck him with the shovel, and ordered him
to lie on the floor. Id. at 1266. Meanwhile, the wife laid terrified in a
different part of the basement. Id. Johnson then returned to the wife,
stripped her, tied her hands behind her, and forced her to perform
fellatio on him. Id. Johnson then raped and attempted to strangle her.
_____________________________________________________________
Code section 76-30-3 (1953) stated that “[e]very murder . . .
perpetrated by any act greatly dangerous to the lives of others and
evidencing a depraved mind, regardless of human life . . . is murder
in the first degree.” Id. (second and third alterations in original)
(citing UTAH CODE § 76-30-3). A prior case had interpreted that
statute to require that the act “greatly dangerous to the lives of
others must be directed against people generally . . . and not against
any particular person.” Id. (alteration in original) (quoting State v.
Russell, 145 P.2d 1003, 1009 (Utah 1944)).
36
Cite as: 2019 UT 65
PEARCE, J., dissenting
Id. When the wife “went limp, he began bludgeoning her with the
shovel handle he had used on her husband.” Id. After she regained
consciousness, Johnson had left. See id. She called out to her husband
and heard a moan. Id. The next morning, she left in search of help. Id.
Police officers subsequently found husband’s body naked with his
hands tied and his head in a pool of blood. Id. He had received at
least twelve blows to the head. Id.
¶94 On appeal, we recognized that we had previously
interpreted the great risk of death factor “to apply when the
defendant created a setting in which he placed persons other than
the victims at great risk of death ‘within a brief span of time in which
were formed a concatenating series of events.’” Id. (quoting Pierre,
572 P.2d at 1355). We then stated that the standard announced in
Pierre “require[d] clarification to permit a meaningful application of
the language of section 76-5-202(1)(c) to the facts of this case.” Id.
¶95 Our clarified standard provided:
A proper reading of the statute requires an
examination of the manner in which the killing
occurred and consideration of whether the knowing
and intentional killing took place under circumstances
in which the actor knowingly exposed someone other
than himself and his victim to a great risk of death
because of his knowing or intentional murder of his
victim.
Id. “Section 76-5-202(1)(c) properly applies to situations in which the
defendant kills his victim in a manner by which he knows he is
gravely endangering others.” Id. This clarified standard zeroes in on
whether the “manner” by which the defendant killed the victim
placed the third party in a great risk of death.
¶96 To clarify our standard, we looked favorably on the New
Jersey Superior Court’s interpretation of that state’s grave risk of
death aggravating factor. Id. at 1267. There, the court stated:
[T]he facts must include a knowing or purposeful state
of mind vis-a-vis the creation of a great risk of death,
that there be a likelihood or high probability of great
risk of death created, not just a mere possibility . . . and
that there be at least another person within the ‘zone of
danger’ created by defendant’s conduct.
Id. (alterations in original) (quoting State v. Price, 478 A.2d 1249, 1260
(N.J. Super. Ct. Law Div. 1984)). And we cautioned that while there
may be cases where a defendant may be guilty of the aggravator
37
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
where the endangered third party is physically removed from the
defendant’s conduct, “such cases require a careful consideration of a
defendant’s intent and knowledge of the risk and the endangered
person’s proximity in time and place to the murder.” Id.23
¶97 Employing this clarified standard, we held that the
aggravator did not apply in Johnson because “[t]he State [had]
produced no evidence indicating that [wife] was placed at grave risk
of death by defendant’s battery of [husband].” Id. at 1267. We
focused on whether the act that killed the victim—in that case, the
battery—placed the third party in a great risk of death. Because it
did not, the aggravator did not apply.
_____________________________________________________________
23 The majority opinion points out this language in Johnson as
demonstrating that the relevant conduct in terms of the great risk of
death aggravator is not limited to the “endangered person’s
condition at the exact time of the murderous act.” Supra ¶ 45. That is
correct. As discussed herein, the focus should be on the manner by
which the defendant kills his victim—not a specific fatal act or
moment. There may be circumstances where the manner by which
the defendant harms and kills his victim places others in great risk of
death—even though not at the same moment or place. An obvious
example of the potential for spatial distance—a bomb. A defendant
who placed a bomb intending to kill one person with the knowledge
that others nearby would be in a great risk of death, would have
engaged in conduct that properly falls within this aggravator. It is
more difficult to imagine circumstances where there is a temporal
distance between the acts that killed the victim and the creation of
the great risk of death—but there are some we can think of:
deploying poison or gas that kills the victim and leaks such that it
places others in great risk of death or constructing a trap for the
homicide victim that later places others in great risk. These
possibilities exist such that we cannot rule out that the aggravator
could be satisfied by conduct that did not create the great risk of
death to a third party at the same time as the homicide. But these are
likely to be the exception to the rule. And as we cautioned in Johnson,
such circumstances will require a “careful consideration of a
defendant’s intent and knowledge of the risk and the endangered
person’s proximity in time and place to the murder.” 740 P.2d at
1267.
38
Cite as: 2019 UT 65
PEARCE, J., dissenting
¶98 In contrast, we held that Johnson’s conduct did “come
within the aggravating circumstances described in Utah Code Ann.
§ 76-5-202(1)(d) (Supp. 1986).” See id. That subsection provided “[t]he
homicide was committed while the actor was engaged in the
commission of, or an attempt to commit . . . aggravated sexual
assault.” UTAH CODE § 76-5-202(1)(d) (Supp. 1986). We determined
that the evidence supported the conclusion that the husband “was
murdered while defendant was engaged in assaulting” wife. Johnson,
740 P.2d at 1267. We then reviewed how two other courts had
defined that type of “while.” Id. at 1267–68. We quoted the Indiana
Supreme Court’s reasoning that “‘while committing’ denotes a
continuing chain of events” under its felony murder statute. Id. at
1267 (citation omitted). Indiana then utilized Webster’s dictionary to
conclude that the word “while” “clearly implies a continuity of
action over a span of time.” Id. at 1268. We then quoted the Supreme
Court of Ohio’s conclusion that “while” does not mean that one act
“must occur at the same instant” as a separate act, but only that it
occur “as part of one continuous occurrence.” Id. (citation omitted)
(internal quotation marks omitted). We noted that we had
previously adopted the res gestae analysis in the context of first
degree murder. Id. (citing State v. Weddle, 511 P.2d 733 (Utah 1973)).
Therefore, because Johnson’s murder of husband and assault on wife
“were one continuous, interrelated occurrence,” the evidence
supported that aggravator. Id.24 In contrast, this “one continuous,
interrelated occurrence” was insufficient to demonstrate that the
great risk of death aggravator applied.
¶99 Comparing the analysis of these two aggravating factors in
Johnson, it becomes evident that the great risk of death aggravator
requires a closer temporal connection between the homicide and the
creation of a great risk of death. That is, in Johnson, we determined
that the “defendant’s murder of [husband] and assault on [wife]
were one continuous, interrelated occurrence,” satisfying the
aggravator that the murder was committed while Johnson was
engaged in the commission of aggravated sexual assault, but not that
_____________________________________________________________
24 In Johnson, we also interpreted “the attack that led to
[husband’s] death” as “in part undertaken to facilitate defendant’s
assault on [wife].” 740 P.2d at 1268. While this played into our
perception of the facts, it is unclear whether or how this
interpretation factored into our conclusion that the evidence
supported the assault aggravating factor.
39
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
he knowingly created a great risk of death to wife due to the killing
of husband. Id. at 1266–68.25 In Pierre, by contrast, evidence that “the
killing of the three victims and the creation of a setting of great risk
of death to the two surviving victims occurred within a brief span of
time in which were formed a concatenating series of events” was
sufficient to satisfy the great risk of death aggravator. 572 P.2d at
1355.
¶100 Examining closely our treatment in Johnson of the two
aggravating factors there, and the requirement that the great risk of
death be caused by the act that constituted the homicide, not simply
part of one “series of events,” reveals that while we spoke in terms of
“clarifying” Pierre, in fact we significantly narrowed Pierre to the
point of overruling it sub silentio.26 Being part of one series of events
_____________________________________________________________
25 The majority opinion recognizes that in Johnson there “were
other acts directed at the wife that may arguably have been
connected to the killing, and that may have caused her great risk of
death,” but it concludes that these facts are immaterial to the
discussion in Johnson. Supra ¶ 44 n.9.
The State raised that argument before the Johnson court. The State
interpreted Pierre and the language of subsection (1)(c) as “not
limit[ing] the creation of a grave risk of death to another to the
actor’s act of killing the murder victim, [therefore] defendant could
properly be found guilty of first degree murder.” Applying this
interpretation to the facts of the case, the State argued that even
though the acts committed against the husband were distinct from
those against the wife, “it is clear that, within a brief span of time,
[Johnson] both endangered [wife’s] life by beating her and killed
[husband]. In this sense, the life endangering conduct was
committed in conjunction with the killing. This situation falls within
the circumstance described by subsection (1)(c) . . . .”
In the face of this argument, the Johnson court concluded that
“[t]he State produced no evidence indicating that [wife] was placed
at grave risk of death by defendant’s battery of [husband] . . .” 740
P.2d 1264, 1267. The Johnson court’s conclusion that those acts were
irrelevant to the great risk of death aggravator demonstrates that
Johnson’s “clarification” narrowed the test we announced in Pierre.
26 In Pierre we articulated the great risk of death aggravator in
the following way: “[t]he evidence fully sustains that the killing of
the three victims and the creation of a setting of great risk of death to
the two surviving victims occurred within a brief span of time in
(continued . . .)
40
Cite as: 2019 UT 65
PEARCE, J., dissenting
was not sufficient in Johnson to satisfy the section 76-5-202(1)(c)
aggravator. Rather, the Johnson court focused on whether the manner
by which the defendant killed his victim was the manner by which
he knowingly endangered others. 740 P.2d at 1266.
¶101 That leaves us with the uncomfortable conclusion that
while Johnson spoke in terms of clarifying, rather than overruling, the
two cases are at loggerheads. The facts in Pierre do not satisfy the
Johnson test. Indeed, the manner by which Pierre killed his victims—
with individual shots fired only inches away from each individual
victim’s head—did not themselves place the remaining victims in a
great risk of death.27 I would conclude that Johnson narrowed the
scope of the aggravating factor and directed us to focus on the action
that constituted the homicide, and whether that action created a
great risk of death to a third party.
¶102 Many other states have similar aggravating factors in their
statutes. And they have interpreted the aggravating factor in a wide
variety of ways. Arizona courts, for example, have applied the
aggravating factor only where individuals were within the zone of
danger created by the defendant’s murderous act and the defendant
did not separately intend to kill these bystanders. See, e.g., State v.
Johnson, 133 P.3d 735, 748 (Ariz. 2006) (en banc) (discussing four
factors relevant to whether the great risk of death aggravator exists:
_____________________________________________________________
which were formed a concatenating series of events.” 572 P.2d at 1355
(emphasis added). By contrast, our clarified standard in Johnson
stated that
[a] proper reading of the statute requires an
examination of the manner in which the killing
occurred and consideration of whether the knowing
and intentional killing took place under circumstances
in which the actor knowingly exposed someone other
than himself and his victim to a great risk of death
because of his knowing or intentional murder of his
victim.
740 P.2d at 1266 (emphasis added).
27 If there was a likelihood or high probability that a shot fired
may have hit another person—such as a stray shot—this would
satisfy the great risk of death aggravator. Here, there was no
evidence before the jury that the shots fired at Stephen put Isabel at a
great risk of death.
41
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
(1) “the third person’s proximity to the victim,” (2) “whether the
defendant’s actions were during ‘the murderous act itself,’”
(3) “whether the defendant intended to kill the third party,” and
(4) “whether the defendant engaged in sufficiently risky behavior
toward the third person” (citations omitted)); State v. Johnson, 710
P.2d 1050, 1055 (Ariz. 1985) (en banc) (declining to apply the
aggravator when “the other person endangered was a victim or
intended victim of the criminal conduct,” that is, the evidence
indicated defendant intended to kill both victims).
¶103 Florida courts have adopted a similar approach. See, e.g.,
Raulerson v. State, 420 So. 2d 567, 571 (Fla. 1982) (affirming
application of the aggravator where the defendant engaged in a
shoot-out with police in a restaurant, given the risk that one of the
four bystanders caught between the defendant and the officers or a
police officer “would be hit and killed”); White v. State, 403 So. 2d
331, 337 (Fla. 1981) (per curiam) (concluding that the aggravator did
not apply where each of the six murders were “effected by a gunshot
blast to the head” where “the gun was discharged at close range and
involved relatively little risk of injury to other persons in the room,”
and characterizing the deaths as “six discrete homicides”), abrogation
on other grounds recognized by Holland v. State, 773 So. 2d 1065 (Fla.
2000)).
¶104 Other jurisdictions interpret and apply the aggravator
more broadly. Oklahoma courts, for example, apply the factor if a
defendant threatens the life of another individual and appears to
have the ability to take that person’s life, even if that person was not
otherwise in the zone of danger created by the defendant’s conduct.
See Lockett v. State, 53 P.3d 418, 430 (Okla. Crim. App. 2002)
(“[E]vidence is sufficient to support the aggravating circumstance . . .
where a defendant during the continuing course of conduct in which
a murder is committed, threatens the life of another and has the
apparent ability and means of taking that person’s life.” (first
alteration in original) (citation omitted)).
¶105 Louisiana courts apply a similar factor more broadly,
reasoning that it applies when a defendant causes the death of one
person and creates the required risk to another through a single
course of conduct. In State v. Williams, 480 So. 2d 721, 722–27 (La.
1985), the Louisiana Supreme Court reviewed prior interpretations
of the aggravating circumstance that the defendant “knowingly
created a risk of death or great bodily harm to more than one
person.” One case that the Louisiana court reviewed had
“considered, but rejected, the argument that the aggravating
42
Cite as: 2019 UT 65
PEARCE, J., dissenting
circumstance contemplated only a single act (such as exploding a
bomb in a crowd) which killed one person and at the same time
created the risk of death or great bodily harm to at least one more
person.” Id. at 723. In that prior case, the Louisiana court had
concluded—in dicta—that “the more likely intention of the
Legislature was to include the risk of multiple deaths (or great harm)
created by a ‘single consecutive course of conduct’ in which at least
one person was killed.” Id. at 723–24 (footnote omitted). After
reviewing several cases, the Williams court reaffirmed the statutory
construction
that the Legislature intended to classify among the
most serious murders those in which the murderer
specifically intended to kill more than one person and
actually caused the death of one person and the risk of
death or great bodily harm to at least one other person,
all by a single act or by a series of acts in a single
consecutive course of conduct.
Id. at 726.28
¶106 In contrast, the changes our Legislature made to the
statute after Pierre support the conclusion that the interpretation we
set forth in Johnson hews closer to how the Legislature intended the
aggravator to function. As highlighted above, the Legislature has
added the language “incident to one act, scheme, course of conduct,
_____________________________________________________________
28 Across the variations in interpretations, a significant number
of jurisdictions recognize that indiscriminate shooting in a crowded
area satisfies the aggravator. See, e.g., Commonwealth v. DeJesus, 880
A.2d 608, 611–12, 619 (Pa. 2005) (concluding that the aggravator was
satisfied based on evidence that the defendant “spray[ed] bullets up
and down” a street from his position on a rooftop, killing one victim
and injuring two others); State v. McCall, 677 P.2d 920, 934 (Ariz.
1983) (en banc) (declining to apply the aggravator where the
shooting was “purposeful and intentional,” not “random or
indiscriminate”); State v. Simants, 250 N.W.2d 881, 891 (Neb. 1977)
(interpreting the aggravator “to cover those situations where the act
of the defendant jeopardizes the lives of more than two other
persons, such as the use of bombs or explosive devices, the
indiscriminate shooting into groups, or at a number of individuals,
or other like situations”). This appears to be the aggravator’s
common ground amidst otherwise varying interpretations.
43
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
or criminal episode” to certain aggravators. The first addition was to
subsection (1)(b) in 1983, after Pierre and prior to Johnson.29 See 1983
Utah Laws 434. The Legislature did not make a similar change to
subsection (1)(c). See id. This leads us to conclude that the Legislature
broadened subsection (1)(b)’s reach between those two cases in a
way that it did not to (1)(c). The contrast suggests that the relevant
time frame for the great risk of death aggravator is narrower than for
the aggravator where two or more persons are killed. If the
Legislature had amended the great risk of death factor to state “the
homicide was committed incident to an act, scheme, course of
conduct, or criminal episode during which the actor knowingly
created a great risk of death to a person other than the victim and
actor,” then we would understand the factor to apply to conduct
beyond the manner by which the defendant killed the victim.
Without this language, however, we are restricted to focusing more
narrowly on the fatal conduct.
¶107 The court of appeals understandably attempted to
reconcile Pierre and Johnson. And in doing so, promulgated a three-
factor test:
(1) the temporal (or chronological) relationship
between any actions the defendant may have taken
towards the third party and the acts constituting the
murder; (2) the spatial relationship, or proximity,
between the third party, the murder victim, and the
defendant at the time of the acts constituting the
murder; and (3) whether and to what extent the third
party was actually threatened by the assailant, either
by direct threats or by indirect means such as the risk
of stray or ricocheting bullets.
State v. Sosa-Hurtado, 2018 UT App 35, ¶ 31. The court of appeals
then applied the factors and determined that “there was sufficient
evidence to support the trial court’s decision to allow the aggravator
to be presented to the jury.” Id. ¶ 36. “Defendant shot at [Isabel]
mere seconds before shooting and killing [Stephen],” “[Isabel] was
_____________________________________________________________
29 The Legislature subsequently added this language in
subsections (1)(d), (1)(e), and (2) as well. 2005 Utah Laws 922 (adding
subsection (1)(e), which includes this language); I 2006 Utah Laws
861 (adding this language to subsection (1)(d)); II 2007 Utah Laws
2075 (adding subsection (2), which includes this language).
44
Cite as: 2019 UT 65
PEARCE, J., dissenting
no more than seven feet away from [Stephen], and some five feet
away from Defendant, when Defendant shot [Stephen],” and
“Defendant actually fired a rifle shot at [Isabel] at close range just
seconds before he shot [Stephen].” Id.
¶108 I have concerns with the court of appeals test on a couple
of levels. First, because the test was attempting to reconcile Pierre
and Johnson, it concluded that if the creation of a great risk of death
and the homicide occur “within a brief span of time,” they
“constitute[] a concatenating series of events,” and “could be
considered as part of the same course of conduct.” Id. ¶ 33 (citation
omitted) (internal quotation marks omitted). Although this language
is an accurate reference to Pierre, I would move away from that
interpretation of the aggravating factor. Rather, there must be a
closer causal relationship between the manner in which the
defendant killed the victim and the creation of a great risk of death
to a third party.
¶109 My second concern is with the factor that instructs that
“courts should examine whether and to what extent the third party
was actually threatened with harm during the course of the
murderous events.” Id. ¶ 35. This factor evokes the necessary
question of whether there was a likelihood or high probability that
the third person faced a great risk of death. But it risks leaving
behind the question of whether the defendant “knowingly created”
the great risk of death. See UTAH CODE § 76-5-202(1)(c); see also
Johnson, 740 P.2d at 1267 (“[T]he facts must include a knowing or
purposeful state of mind vis-a-vis the creation of a great risk of death
. . . .” (first alteration in original) (citation omitted) (internal
quotation marks omitted)).
¶110 Third, and at a larger policy level, this court has lately
been cautioning against reliance on multifactor tests and
highlighting the way these tests can distort the relevant inquiry. See,
e.g., Met v. State, 2016 UT 51, ¶¶ 89–90, 388 P.3d 447 (disavowing a
multifactor test and reasoning that parties are “not required to view
the factors [outlined in a prior decision] as a mandatory checklist,”
but should instead focus on the text of the relevant rule); State v.
Cuttler, 2015 UT 95, ¶¶ 2, 18–21, 367 P.3d 981 (explaining that it is
“not appropriate for a district court to moor its . . . analysis entirely
and exclusively to” factors that were not part of the text of the rules);
State v. Lucero, 2014 UT 15, ¶ 32, 328 P.3d 841 (clarifying that “courts
are bound by the text of [our rules], not the limited list of
considerations” we had outlined in a prior decision), abrogated on
other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016. While
45
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
nice in theory, multifactor tests tend to corrode into a checklist
divorced from the legal question at issue. And they encourage courts
to balance the factors against each other in a way that can distract
from the ultimate question to be answered. The majority plants a test
into our jurisprudence that, if history is any guide, we will
eventually have to prune back or dig out.30
¶111 I would therefore not be inclined to adopt the court of
appeals’ three-factor test, but instead emphasize the statutory
language and the interpretation of this court in Johnson that the
murderous acts must create the great risk of danger to the third
party.31 But that is not to say that the court of appeals was off base in
identifying temporal and spatial proximity as considerations that can
help illuminate the question. To decide whether evidence supports
the notion that a defendant placed a third party at great risk of
death, finders of fact will need to examine the third party’s
proximity to a defendant’s murderous act.
_____________________________________________________________
30 The majority believes this concern is overblown because it is
simply “identifying a range of factors of possible relevance to the
statutory inquiry as elaborated in our case law.” Supra ¶ 39 n.9. I
have no doubt that is the majority’s intent, but we have consistently
seen how these types of lists transform into balancing tests. The
majority may be right that this one will be different, but I suspect
that this thinking is, much like Samuel Johnson once described in a
much different context, “the triumph of hope over experience.”
JAMES BOSWELL, BOSWELL’S LIFE OF JOHNSON (ebook),
https://www.gutenberg.org/files/1564/1564-h/1564-h.htm.
31 The majority opinion characterizes our interpretation of
section 76-5-202(1)(c) as limiting the great risk of death to only the
“final act that specifically causes the victim’s death” and the “precise
moment of [the] murderous act.” Supra ¶¶ 34–35. Not so. The
Johnson court wrote that “[s]ection 76-5-202(1)(c) properly applies to
situations in which the defendant kills his victim in a manner by
which he knows he is gravely endangering others.” 740 P.2d 1264,
1266. We therefore focus on the “manner” by which the defendant
kills the victim. The “manner” is not limited to those precise acts that
caused the death, but the “manner” is limited to those acts that were
directed at the victim who was killed. The shots Sosa-Hurtado fired
at Isabel were not directed at Stephen. The shots Sosa-Hurtado fired
at Stephen did not gravely endanger Isabel.
46
Cite as: 2019 UT 65
PEARCE, J., dissenting
¶112 The ultimate question asks whether “some evidence exists
from which a reasonable jury could find,” State v. Montoya, 2004 UT
5, ¶ 29, 84 P.3d 1183, that the shots aimed at Stephen created a
“likelihood or high probability,” not merely a “possibility,” of great
risk of death to Isabel. Johnson, 740 P.2d at 1267.
¶113 Because the statutory language directs us to focus on
whether the conduct that constituted the homicide created a great
risk of death, I would focus on the conduct that killed Stephen. There
must be sufficient evidence that Sosa-Hurtado had a “knowing or
purposeful state of mind vis-a-vis the creation of a great risk of death,
that there be a likelihood or high probability of great risk of death
created, not just a mere possibility.” Id. (citation omitted); see also
UTAH CODE § 76-5-202(1)(c) (“[T]he actor knowingly created a great
risk of death to a person other than the victim and the actor.”).
¶114 Sosa-Hurtado fired two sets of shots inside the shop. He
first fired one shot at Isabel, missing him but shattering a glass
casing which sent glass and wood into Isabel’s leg and caused him to
fall.32 Because these were not the shots that killed Stephen, they
cannot form the basis for the great risk of death aggravator.
_____________________________________________________________
32 As Sosa-Hurtado recognized in his brief, this “shooting no
doubt amounts to an aggravated assault or attempted homicide of
[Isabel]. For reasons unknown, that was not charged in the Amended
Information.” In other words, it appears, at least to Sosa-Hurtado,
that the facts would have supported instructing the jury on another
aggravating factor. See, e.g., UTAH CODE § 76-5-202(1)(b) (“[T]he
homicide was committed incident to one act, scheme, course of
conduct, or criminal episode during which two or more persons
were killed, or during which the actor attempted to kill one or more
persons in addition to the victim who was killed”). And like Sosa-
Hurtado, we do not see anything in the record that explains why the
State did not charge the other aggravator.
This also speaks to the “real practical difficulties” the majority
sees in my reading of the statute. Supra ¶ 45 n.11. The majority
thinks that a defendant could avoid the aggravator “despite taking
multiple shots at both his eventual victim and another person
positioned closely nearby.” Id. Depending on the circumstances, the
majority could be right, the aggravator in section 76-5-202(1)(c) may
not be present if the shots that killed the victim did not place the
second person at great risk of death. But this does not mean that the
defendant may not have committed aggravated murder because the
(continued . . .)
47
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
¶115 After shooting towards Isabel, Sosa-Hurtado turned to
face Stephen and fired the second set of shots. He fired a shot at
Stephen that hit Stephen’s hand and caused him to fall to the floor
behind the counter.33 With his back to Isabel, Sosa-Hurtado leaned
over the counter, positioned the rifle only inches from Stephen’s
chest, and fired two fatal shots. Only a few feet away, Isabel felt the
air displaced by the bullets, as he began to get up from the floor and
move towards Stephen.
¶116 Sosa-Hurtado argues in his brief that “[t]he shooting of
[Stephen] did not place [Isabel] in the ‘zone of danger,’ i.e., a zone of
‘likelihood or high probability of great risk of death.’” Sosa-Hurtado
contends that “[a]t the time of the killing of [Stephen], [Isabel] was
simply not within the zone of danger as the assailant had his back to
[Isabel], who was on the ground, and [Stephen] was in an entirely
different part of the Smoke Shop.” He also argues that “there was no
evidence, expert or otherwise, that” his use of a “high-powered rifle
. . . increased the relative risk of ricochets” to Isabel. And therefore,
while “there might possibly have been a ricochet,” there was not
“evidence before the trial court that there was a ‘likelihood or high
probability’ of such an occurrence.” The State responds that “the
evidence supports that Isabel was close enough to Stephen when
Defendant shot Stephen for Isabel to feel the bullets pass by him.
Thus, the evidence supports that . . . Isabel was in great danger at the
exact moment Defendant shot at and killed Stephen.”
¶117 The court of appeals considered both the shots fired at
Stephen and the shots fired at Isabel as it concluded that the
evidence supported the aggravator. Sosa-Hurtado, 2018 UT App 35,
¶ 36. With regard to the shots fired at Stephen, the court of appeals
wrote that “[Isabel] was no more than seven feet away from
[Stephen], and some five feet away from Defendant, when
Defendant shot [Stephen]—in close enough physical proximity that
[Isabel] could feel the muzzle blast from the shots targeting
[Stephen].” Id. The court of appeals reasoned that
_____________________________________________________________
aggravator in section 76-5-202(1)(b) very well may apply in the
hypothetical the majority propounds.
33 At this point, Isabel had fallen and was lying on the ground to
the right of Sosa-Hurtado. Isabel was therefore not in the line of sight
of Sosa-Hurtado as he fired the shot that hit Stephen’s hand.
48
Cite as: 2019 UT 65
PEARCE, J., dissenting
[e]ven though [Isabel] was not in the direct line of fire
at the time Defendant shot [Stephen], his close physical
proximity to Defendant and [Stephen] at the time
Defendant shot [Stephen], coupled with the fact that
Defendant had actually fired a shot at [Isabel] just
seconds earlier, is sufficient for [Isabel] to properly be
considered within the “zone of danger.”
Id. (citation omitted).
¶118 I disagree with the court of appeals’ assessment in two
ways. First, freed from the “concatenating series of events” language,
I would not consider the shots fired directly at Isabel to be part of the
murderous conduct the finder of fact should have examined to
determine whether the aggravator was present.
¶119 Second, the evidence does not support the conclusion that
Isabel was in a great risk of death when Sosa-Hurtado fired shots at
Stephen. When Sosa-Hurtado fired the first shot at Stephen, Isabel
was on the ground behind the counter to the right of Sosa-Hurtado.
And when Sosa-Hurtado shot and killed Stephen, he had his back to
Isabel. In addition, Sosa-Hurtado fired the two fatal shots with the
gun barrel positioned only inches away from Stephen’s chest.
Although Isabel was on the ground approximately only four feet
away from Stephen at the time that Sosa-Hurtado killed Stephen, the
State did not present “believable evidence,” see State v. Emmett, 839
P.2d 781, 784 (Utah 1992), that Isabel faced a likelihood or high
probability of a great risk of death.
¶120 I also disagree with the court of appeals’ assessment that
Isabel’s ability to feel the “muzzle blast,” was evidence that he was
in a great risk of danger by the shots fired at Stephen. See Sosa-
Hurtado, 2018 UT App 35, ¶ 36. Isabel testified that he felt “like a
wind, like an air pulling me out of the way” from the shots fired at
Stephen. Whether we call this sensation a “muzzle blast” or a
“wind,” these shots do not indicate that Isabel faced a likelihood or
high probability of a great risk of death. He may have faced a
possibility of death, but the aggravator requires more. See Johnson,
740 P.2d at 1267.
¶121 The State argues that “a reasonable jury could find that the
evidence supported that the risk to Isabel when Defendant
repeatedly shot at Stephen with a high-powered rifle included the
possibility of a ricochet bullet.” It is easy to speculate about a risk of
ricochet, but the evidence presented at trial does not support the
conclusion that the bullets fired by Sosa-Hurtado actually ricocheted
49
STATE v. SOSA-HURTADO
PEARCE, J., dissenting
or that there was a likelihood of ricochet. The sufficiency of the
evidence standard requires “some evidence . . . from which a
reasonable jury” could find that Isabel was in a great risk of death
from the shots fired at Stephen. See Montoya, 2004 UT 5, ¶ 29. We
thus agree with Sosa-Hurtado that while “there might possibly have
been a ricochet,” there was not “evidence before the trial court that
there was a ‘likelihood or high probability’ of such an occurrence.”
¶122 The court of appeals concluded that there existed evidence
from which a reasonable jury could conclude that Sosa-Hurtado’s
killing of Stephen placed Isabel in a great risk of death. Sosa-Hurtado,
2018 UT App 35, ¶ 36. I disagree and would vacate the aggravator
and remand to the trial court for appropriate modification of the
judgment and sentence.
50