State v. Andrews

843 P.2d 1027, 191 Utah Adv. Rep. 30, 1992 Utah LEXIS 59, 1992 WL 171582

• Court: Utah Supreme Court
• Decided: July 21, 1992
• Docket: 920308, 920309
• Status: Published

Opinions

AMENDED OPINION

HALL, Chief Justice:

Defendant, under a sentence of death imposed by a jury in 1974, appeals the order of the district court which issued a new death warrant and set a new execution date of July 30,1992.¹ The issue presented is whether the sentencing option of life without parole provided for in Utah Code Ann. § 76-3-207.5² has application in this instance.

On November 16, 1974, defendant was tried and convicted of three counts of criminal homicide, murder in the first degree, all capital offenses. On November 27, 1974, following the statutory sentencing hearing before a jury,³ the sentence of death was imposed. That was and remains his sentence. The sentence has never been vacated or set aside, but has been stayed on numerous occasions to accommodate appeals lodged by defendant in both the state and federal systems over the past many years.

At the time of sentencing, Utah Code Ann. § 76-3-207(3) provided two sentencing alternatives. If the jury reported unanimous agreement to impose the sentence of death, the court was required to discharge the jury and to impose the sentence of death. If the jury was unable to reach a unanimous verdict imposing the sentence of death, the default sentence set by statute was life imprisonment, and the court was required to discharge the jury and to impose that sentence. Subsequently, effective April 27, 1992, the penalty provisions of Utah Code Ann. § 76-3-201, § 76-3-206, § 76-3-207, and § 77-27-9 were modified and a new section 76-3-207.5 was enacted.⁴ This was done to accommodate a new sentencing alternative, that of life in prison without parole.

Defendant contends that the trial court “sentenced” him to death on June 2, 1992, when it issued the death warrant and that it erred in resentencing him without considering the option of life in prison without parole as provided for under the new statute. Resolution of this issue requires a determination of what constitutes a “sentencing” within the meaning of the statutory death sentencing scheme.

In capital cases, the statutorily required sentencing proceeding is conducted before a jury unless waived, in which event the hearing is before the court.⁵ In substance and effect, the verdict of the jury is the sentence, which the court in turn is mandated to impose.⁶

When a judgment of death has been entered, a warrant signed by the judge is drawn and delivered to the sheriff of the county where the conviction is had, which in turn is delivered to the executive director of the Department of Corrections at the same time the defendant is delivered into custody. The warrant states the method and the date of execution, which may not be fewer than thirty days nor more than sixty days from the date of issuance of the warrant.⁷

The judgment of death may be stayed, as was done many times in this case, for purposes of processing appeals or other review.⁸ Utah Code Ann. § 77-19-9 provides:

(1) If for any reason a judgment of death has not been executed and remains in force, the court where the conviction was had, on application of the prosecuting attorney, shall order the defendant to be brought before it....

(2) When the defendant is brought before the court, it shall inquire into the facts and, if no legal reason exists against the execution of judgment, the court shall make an order requiring the executive director of the Department of Corrections or his designee to ensure that the judgment is executed on a specified day, not fewer than 30 nor more than 60 days thereafter, at an hour determined by the Department of Corrections.

(Emphasis added.)

It is thus to be seen that the proceedings before Judge Hyde in the district court on June 2, 1992, were not for the imposition of a new sentence. Rather, the proceedings were for the purpose of determining if any legal cause existed against execution of the judgment of death rendered following the imposition of sentence on November 27, 1974.

Utah Code Ann. § 76-3-207.5 is plain on its face and clearly provides:

(1) The sentencing option of life without parole provided in Sections 76-3-201 and 76-3-207 applies only to those capital offenses for which the offender is sentenced on or after April 27, 1992. The sentencing option of life without parole provided in Sections 76-3-201 and 76-3-207 has no effect on sentences imposed in capital cases prior to April 27, 1992.

Hence, Judge Hyde did not err in concluding that the new sentencing option has no retroactive application to defendant, whose date of sentence occurred on November 27, 1974.

Defendant advances three additional contentions, all of which we have duly considered and found to be without merit.

Following the proceedings before Judge Hyde, at the request of the court, counsel for the State assisted the clerk of the court in drafting an order directing execution of the judgment of death. However, a copy thereof was not provided to defense counsel. While it is true that the basic rules of practice require that a copy of such documents submitted to the court also be provided to opposing counsel,⁹ in the absence of a showing of prejudice, the failure to do so did not constitute reversible error.

Defendant advances an accumulation-of-errors argument which he concedes has previously been addressed in prior appeals and petitions, most of which were rejected on procedural grounds.¹⁰ An example of such is Andrews v. Shulsen,¹¹ wherein defendant appealed the denial of his petition for a writ of habeas corpus. Justice Howe, writing for the court, declined to reach the merits of the petition and concluded:

We have read the briefs filed by counsel for both parties and have heard extended oral argument from them. We conclude that “good cause” has not been shown by plaintiff as to why the claims he now makes were not raised on direct appeal or in prior postconviction proceedings. We are in accord with decisions of federal courts which hold that raising issues in a petition that were not but could have been raised in a previous petition, except where good cause is shown, constitutes an abuse of the writ and requires dismissal of the petition.¹²

A further example of dismissal and rejection of these same claims both on procedural grounds and on the merits is found in a subsequent habeas corpus petition filed in the federal system. Andrews v. DeLand¹³ addressed five of the issues most often advanced by defendant as constituting accumulation of errors: (1) ineffectiveness of counsel; (2) failure to instruct the jury on the lesser included offense of second degree murder; (3) the jury’s exposure to a note on a napkin depicting a hanging accompanied by the words “Hang the Niggers”; (4) use of a peremptory challenge to dismiss the only black juror impaneled; and (5) allegedly false testimony of the recidivism of convicted murderers. The issue of ineffectiveness of counsel was dismissed as an abuse of the writ; alternatively, the issue was found to be proeedurally barred and, alternatively, was found to be without merit.14 After a careful review of the record and discussion of the issue, the Tenth Circuit concluded that Andrews’ counsel had not been ineffective at trial or on appeal. The second degree murder instruction issue was dismissed as an abuse of the writ.¹⁵ The claims relating to the napkin incident were dismissed because it was brought in a successive petition.¹⁶ The claims based upon the exclusion of the black juror were rejected on their merits.17 Finally, the claims of allegedly false testimony during the penalty phase of the trial were dismissed as an abuse of the writ, and they were also rejected on their merits.¹⁸

Defendant’s remaining contention is that execution after the lapse of nearly eighteen years following conviction constitutes cruel and unusual punishment under both article I, section 9 of the Utah Constitution and the eighth amendment to the United States Constitution.

On the ground of waiver alone, this contention is without merit. It is only by virtue of the numerous appeals filed by defendant that so much time has elapsed.

In reaching the merits, we find the claim unpersuasive. As was observed in State v. Bastian,¹⁹ the standard adopted earlier by this court for determining whether a penalty constitutes cruel and unusual punishment is “whether the sentence imposed in proportion to the offense committed is such as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.”²⁰ The eighth amendment standard of proportionality does not differ in any material respect.²¹

In determining whether the sentence of death is disproportionate to the crime of which Andrews stands convicted, we view the evidence and all inferences which may reasonably be drawn therefrom just as we do in the review of any other question, “ ‘in a light most favorable to the verdict of the jury.’ ”²² We recite the facts in light of that standard.²³ So viewing the facts, the punishment imposed upon Andrews is not cruel and unusual.

Andrews stands convicted of participating in a particularly brutal crime. The five victims of this crime were “tied up, made to lie on the floor, and forced to drink liquid Drano ... by [Selby] in company with Andrews, who aided [Selby] by pouring the caustic substance into a plastic cup for accomplishment of these violent acts. [Sel-by] and Andrews both had hand guns and [Selby] finally shot all five victims in the head with either a .25 caliber or [a] .38 handgun. . . .” State v. Pierre, 572 P.2d 1338, 1343 (Utah 1977). All five victims were left for dead, but two miraculously survived.

Under the foregoing facts and circumstances, we think both state and federal standards as they bear upon cruel and unusual punishment are met. We have duly considered all of defendant’s other arguments and find them to be without merit.

The judgment of the trial court is affirmed.

HOWE, Associate C.J., concurs.

1 . For the avowed purpose of insuring jurisdiction, defendant simultaneously filed a petition for a writ of habeas corpus, which we now dismiss.

2 . Enacted in the 1992 general legislative session.

3 . Pursuant to Utah Code Ann. § 76-3-207 (Supp.1974).

4 . 1992 Utah Laws ch. 142, §§ 1-5.

5 . Utah Code Ann. § 76-3-207(1).

6 . Utah Code Ann. § 76-3-207(4).

7 . Utah Code Ann. § 77-19-6.

8 . Utah Code Ann. § 77-19-8.

9 . Utah R.Crim.P. 3(a); Utah R.Civ.P. 5(a).

10 .Judge Hyde declined to address this issue as being beyond his jurisdiction in the proceeding before him, and indeed it was.

11 .773 P.2d 832 (Utah 1988).

12 . Id. at 833-34.

13 . 943 F.2d 1162 (10th Cir.1991).

14 . Id. at 1181-82, 1193-96.

15 . Id. at 1180-81, 1183-84.

16 . Id. at 1172-74.

17 . Id. at 1176-80.

18 . Id. at 1174-76.

19 . 765 P.2d 902 (Utah 1988).

20 . Id. at 904 (quoting State v. Hanson, 627 P.2d 53, 56 (Utah 1981)).

21 . Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

22 . State v. Booker, 709 P.2d 342, 345 (Utah 1985) (quoting State v. Petree, 659 P.2d 443, 444 (Utah 1983)); accord State v. Udell, 728 P.2d 131, 132 (Utah 1986); State v. McCardell, 652 P.2d 942, 945 (Utah 1982).

23 . State v. Verde, 770 P.2d 116, 117 (Utah 1989); accord State v. Warden, 813 P.2d 1146, 1148 (Utah 1991).