State v. Gardner

STEWART, Justice

(concurring):

I concur in the majority opinion. However, because today’s opinion might otherwise be taken as casting doubt on the position of a majority of the Court on one important point, I append these comments. The majority holds that it is not necessary to reach the issue of the admissibility of prior crime evidence used to prove a capital homicide aggravating factor under Utah Code Ann. § 76-5-202(l)(h) because the admission of that evidence was at most harmless error. That ruling is a sufficient disposition of the issue here.

Nevertheless, it is especially important in a capital case to make the law as clear as possible so as to avoid unnecessary error in the future. For that reason, I think it appropriate to state my concurrence with Justice Zimmerman’s opinion in this case which holds that evidence of other crimes used to prove an aggravating circumstance under § 76-5-202(l)(h) must be proved after a jury has first found a defendant guilty of the underlying intentional homicide.

In State v. Bishop, 753 P.2d 439, 489 (Utah 1988), I joined Justice Zimmerman’s concurring opinion that expressed a similar view in a somewhat different legal context. Nevertheless, I expressly refrained from joining that opinion insofar as it was based on constitutional grounds. Again, I decline to adopt a constitutional basis for the rule.

The courts historically have had inherent supervisory power over the order of adducing evidence in a case. Reliance on that power in this case is preferable since it is ordinarily better to avoid a constitutional ruling when there is another basis for decision. Constitutionalization of the rule requiring bifurcation could lead to a degree of rigidity in evidentiary matters that could have untoward consequences. Evidence of prior crimes may be appropriate or necessary in the guilt phase of the trial for a variety of reasons. Such evidence may be admissible pursuant to Rule 404(b) to prove motive, intent, identity, and other material issues under certain circumstances. See, e.g., State v. Forsyth, 641 P.2d 1172 (Utah 1982). There may even be instances when a defendant chooses to adduce prior crime evidence, for example, to establish an alibi by showing that he was incarcerated at the time of an alleged crime. In addition, the Legislature has in a number of instances made prior crimes elements of other substantive crimes. Constitutionalization of the rule might affect the use of prior crimes in unanticipated ways. The net effect of all this is that exclusion of evidence of prior crimes as aggravating circumstances on due process grounds could have far-reaching ramifications that I am not prepared to confront.