Boggess v. State

655 P.2d 654, 1982 Utah LEXIS 1058

• Court: Utah Supreme Court
• Decided: September 13, 1982
• Docket: 17983
• Status: Published

Opinions

HOWE, Justice:

The defendant, Walter Preston Boggess, Jr., was tried for the shooting death of his wife. A jury convicted him of manslaughter and he was sentenced to a term of 1 to 15 years in the Utah State prison. He alleges error in that the trial judge failed to instruct the jury on a lesser included offense and failed to grant a mistrial as a result of juror bias. Defendant also alleges that he was denied effective assistance of counsel in violation of his constitutional rights.

This case is before us for the third time. On October 16, 1979, we dismissed defendant’s appeal without consideration of its merits because he had not filed his notice of appeal on time. State v. Boggess, Utah, 601 P.2d 927 (1979). On July 20, 1981, we vacated an order of the district court granting defendant a writ of habeas corpus which released him from prison, but simultaneously granted a writ of certiorari so that we might directly review defendant’s allegations of error at his trial. Boggess v. Morris, Utah, 635 P.2d 39 (1981).

The record shows that on March 2, 1978 the defendant and his wife were sitting across from each other at a kitchen table in their home. Defendant was smoking a pipe of marijuana and playing with his single action .44 magnum caliber revolver. He had loaded and unloaded the pistol and was pointing it at various targets within the room and dry-firing. His wife asked him to unload the gun. Defendant answered by pointing the gun in her direction and saying, “It’s not loaded.” Defendant then pulled the trigger and the pistol discharged a bullet which struck her in the chest. Defendant phoned the police who found Mrs. Boggess dying on the floor. Later that day, following the death of his wife, defendant was arrested and charged with second degree murder. After being advised of his Miranda rights, he admitted the shooting. At his trial, the jury was instructed as to second degree murder and manslaughter. A verdict of guilty of manslaughter was returned.

Defendant contends that the trial judge committed error by his failure to instruct the jury on the offense of negligent homicide which he asserts is a lesser included offense. Counsel for the defendant did not request such an instruction. While the defendant now charges that his counsel was negligent in failing to do so, it appears that it was intentional on the part of counsel as part of his trial strategy to obtain a conviction of manslaughter instead of murder. The State argues that negligent homicide is not an included offense and an instruction on that offense would have been improper. We need not here decide those questions since under any reasonable view of the evidence as to the defendant’s intent, which evidence was largely undisputed in this case, there was no evidence to support a verdict of guilty of negligent homicide. State v. Gillian, 23 Utah 2d 372, 463 P.2d 811 (1970); State v. Mitchell, 3 Utah 2d 70, 278 P.2d 618 (1955).

Section 76-5-206, U.C.A. 1953 provides: (1) Criminal homicide constitutes negligent homicide if the actor, acting with criminal negligence, causes the death of another.

Section 76-2-103(4) provides that a person is criminally negligent when

he ought to be aware of a substantial and unjustifiable risk that circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor’s standpoint.

The defendant did not claim that he was unaware of the danger associated with the use of guns. He admitted that he should have looked to have seen if the gun was unloaded before he fired it, but he did not. He noted that his action was a “hell of a way to show it’s unloaded.” Even though he thought the gun was unloaded, defendant knew it was dangerous to have pointed it at his wife and pulled the trigger. In view of this evidence as to the defendant’s knowledge concerning the inherent danger of firearms and the recklessness of his conduct towards his wife, the evidence would not admit of a finding that he was unaware but should have been aware of a substantial and unjustifiable risk, or that he failed to perceive the nature and degree of the risk— all of which is necessary to constitute criminal negligence. To the contrary, the defendant’s own testimony establishes a state of mind found in manslaughter. He repeatedly characterized his action as “reckless” which under § 76-5-205 constitutes manslaughter. There being no evidence to support a verdict of negligent homicide under the peculiar facts of this case, it clearly was not error for the court to have failed to have given an instruction on that crime.

Defendant’s next assignments of error are interrelated and will be considered together. He complains that the trial judge erred by not declaring a mistrial. During the course of the trial, counsel for the defendant received hearsay information that one of the jurors had expressed the opinion before the commencement of the trial that the defendant should hang for killing his wife. Counsel registered an objection to this alleged bias and reserved the right to move for a mistrial after the verdict was returned but he did not do so. Defendant asserts that the failure of his attorney to make a motion for mistrial and his failure to request a jury instruction on the lesser included offense of negligent homicide demonstrates that he was denied the effective assistance of counsel as guaranteed by our Federal Constitution.

The Sixth Amendment to the United States Constitution provides that: “... the accused shall enjoy the right ... to have the Assistance of counsel for his defence.” Commenting on the right to counsel we said in State v. McNicol, Utah, 554 P.2d 203 (1976) at 204, “He is entitled to the assistance of a competent member of the Bar, who shows a willingness to identify himself with the interests of the accused and presents such defenses as are available under the law and consistent with the ethics of the profession.” See also Heinlin v. Smith, Utah, 542 P.2d 1081 (1975) and State v. Gray, Utah, 601 P.2d 918, 919 (1979).

We have already pointed out that the defendant was not entitled to an instruction on negligent homicide and hence counsel’s failure to request an instruction on that offense does not give rise to any basis for incompetency. As to counsel’s failure to move for a mistrial on the basis of the alleged biased statement of a juror, we must presume that he diligently explored the alleged statement, found it to be groundless, and therefore did not make a motion for a mistrial. The record does not contain any evidence to the contrary and we would be unwarranted in presuming incompetency of counsel in view of this paucity in the record. Furthermore, it may well have been part of his strategy to not seek a mistrial after the defendant was only found guilty of the lesser charge of manslaughter.

The judgment and sentence are affirmed.

HALL, C.J., and OAKS, J., concur. DURHAM, J., does not participate herein. TAYLOR, District Judge, sat, but died before the opinion was filed.