State v. Russell

733 P.2d 162, 52 Utah Adv. Rep. 4, 1987 Utah LEXIS 648

• Court: Utah Supreme Court
• Decided: February 9, 1987
• Docket: 18591
• Status: Published

Opinions

HOWE, Justice:

Defendant appeals from his jury conviction of two counts of murder in the second degree, contending that he was not convicted by a unanimous jury verdict and that the evidence was insufficient to convict him as charged.

Defendant Russell and his family were neighbors to Floyd and LaRue Rowley, whose son occasionally tended the Russell children. Floyd and LaRue were shot to death in their home by Russell during a discussion in which he charged that their son had taken indecent liberties with his five-year-old daughter.

At the close of defendant’s case, the jury was given a general verdict form on both counts and instructed on murder in the second degree as follows:

Instruction No. 14

Before you can convict the defendant, Dick Roundy Russell, of the crime of Murder in the Second Degree, a lesser included offense of the crime charged in Count I, you must believe from all the evidence and beyond a reasonable doubt each and every one of the following elements of that offense.

1. That on or about the 16th day of May, 1981, in Salt Lake County, State of Utah, Floyd Rowley was killed; and

2. That defendant is the person who caused the death of Floyd Rowley and did so under one of the following circumstances:

a. Defendant intentionally or knowingly caused the death of Floyd Rowley; or

b. Defendant intended to cause serious bodily injury to Floyd Rowley and committed an act clearly dangerous to human life that caused the death of Floyd Rowley; or

c. Defendant acted under circumstance[s] which evidenced a depraved indifference to human life and engaged in conduct which created a grave risk of death to another and thereby caused the death of Floyd Rowley.

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If on the other hand, you are convinced of the truth of element number 1 above and any one of the three circumstance[s] in element number 2 above beyond a reasonable doubt, then you must find the defendant guilty of Murder in the Second Degree a lesser included offense of the crime charged in Count I.

A similar instruction was given on Count II which charged the murder of LaRue Row-ley.

Defendant requested that the jury be instructed that they had to choose which of the three alternatives (a, b, or c) listed under paragraph 2 of those instructions formed the basis for any verdict they might return. His requested instruction to that effect was rejected. He objected to Instruction No. 14 on the ground that it gave under paragraph 2 “three alternatives, without telling the jury that they must be unanimous in one or the other of those three alternatives.” The jury returned a guilty verdict on both counts. Over the objection of the State, defendant then asked that the jury be polled as to which alternative they had chosen to convict defendant. This request was granted, and the jurors answered that they had chosen different alternatives in paragraph 2 to arrive at their guilty verdicts.

Before we address defendant’s two contentions on appeal, we note the State’s objection to the polling of the jury on which point it has briefed us. A defendant may poll the jury to determine whether the verdict is unanimous. U.C.A., 1953, § 77 — 35—21(f). The purpose of polling is to determine that the verdict signed by the foreman is that of the individual jurors and not one that has been coerced or caused by mistake. State v. Agtuca, 12 Wash.App. 402, 529 P.2d 1159 (1974). Evidence that the jury was confused or that it misunderstood or disregarded the facts or the applicable law is inadmissible as violative of the long-standing policy against attempts to undermine the integrity of the verdict. Groen v. Tri-O-Inc., 667 P.2d 598 (Utah 1983). All inquiries into the mental processes of the jury are improper. See State v. Couch, 635 P.2d 89, 95 (Utah 1981). Defendant properly polled the individual jurors to determine if the verdict on each count was theirs. The court then continued: “It has also been requested that you be polled as to which subdivision under the section of criminal homicide, murder in the second degree, you found you reached your verdict at.” Inasmuch as the jury had been instructed under a general verdict form and had been told that it could find defendant guilty of “any one of the three circumstances,” the polling at that point became an attempt to reach their thought processes and was impermissible. Consequently, the result of the poll will play no part in our decision on the two issues before us.

I.

Defendant first contends that the second degree murder statute, U.C.A., 1953, § 76-5-203, defines three separate and distinct theories upon which the jury could have convicted him. Consequently, he argues, he was deprived of his right to a unanimous jury verdict, Utah Const., art. I, § 10, when the trial court refused to give his requested instruction that the jury had to unanimously agree upon one of the three theories as the basis for its verdict. He refers to three Utah cases where we were faced with, but did not decide, a similar question. In State v. Rasmussen, 92 Utah 357, 68 P.2d 176 (1937), the defendant was charged with involuntary manslaughter, consisting of either an unlawful act not amounting to a felony, on the one hand, or a lawful act performed in an unlawful manner, on the other. A plurality of this Court found any error harmless. In State v. Roedl, 107 Utah 538, 155 P.2d 741 (1945), the error assigned dealt with an instruction on murder in the first degree. Again, this Court found any error in the instruction harmless. In State v. Thompson, 110 Utah 113, 170 P.2d 153 (1946), a unanimous jury verdict on a first degree murder charge based either on a “depraved mind regardless of human life” or “malice aforethought” theory was attacked on appeal as containing two different theories precluding unanimity. The Thompson Court found it unnecessary to address the issue as the disputed instruction to the jury had contained the limiting language that “all of the jurors must concur as to either one or the other of the kinds of murder above referred to_” (Emphasis added.) Thus, the question presented by defendant in the instant case has never been squarely decided by this Court.

Many jurisdictions have considered the scope of the constitutional requirement of a unanimous jury verdict in criminal cases. The decisions are virtually unanimous that a defendant is not entitled to a unanimous verdict on the precise manner in which the crime was committed, or by which of several alternative methods or modes, or under which interpretation of the evidence so long as there is substantial evidence to support each of the methods, modes, or manners charged. One of the earliest cases is a decision of the Court of Appeals of New York in 1903, People v. Sullivan, 173 N.Y. 122, 65 N.E. 989. In that case, the defendant was charged with premeditated murder or murder committed during the commission of a felony. In answer to the defendant’s contention that the jury had to be unanimous upon which theory it convicted him, the court stated the following, which has been quoted and relied upon by many subsequent cases:

There was but a single crime charged in the indictment against the defendant,— that of murder in the first degree; and the only issue to be determined by the jury was whether the defendant had been guilty of that crime. Under our statute (section 183, Pen.Code), so far as applicable to the case before us, proof either that the defendant killed the deceased with a deliberate and premeditated design to effect his death, or while the defendant was engaged in the commission of a felony, or an attempt to commit a felony, though without any design to take life, established his guilt of the crime charged. “It is not necessary that a jury, in order to find a verdict, should concur in a single view of the transaction disclosed by the evidence. If the conclusion may be justified upon either of two interpretations of the evidence, the verdict cannot be impeached by showing that a part of the jury proceeded upon one interpretation and part upon the other.”

65 N.E. at 989-90 (citation omitted). Other cases which are in accord that the jury does not have to be unanimous as to whether the defendant committed premeditated murder or felony murder are Newsted v. State, 720 P.2d 734 (Okla.Crim.App.1986); State v. Ellison, 36 Wash.App. 564, 676 P.2d 531 (1984); State v. Encinas, 132 Ariz. 493, 647 P.2d 624 (1982); State v. Williams, 285 N.W.2d 248 (Iowa 1979) (dicta), cert. denied, 446 U.S. 921, 100 S.Ct. 1859, 64 L.Ed.2d 277 (1980); People v. Fullwood, 51 Mich.App. 476, 215 N.W.2d 594 (1974); People v. Milan, 9 Cal.3d 185, 107 Cal.Rptr. 68, 507 P.2d 956 (1973); State v. Reyes, 209 Or. 595, 308 P.2d 182 (1957).

The rule of People v. Sullivan, supra, has also been employed in cases where the defendant was convicted of assault. In State v. James, 698 P.2d 1161 (Alaska 1985), the jury was instructed that it could find the defendant guilty if it unanimously agreed that he had committed first degree assault as described in either of two subsections of the statute. One subsection required an intent to cause serious physical injury to another person. The other subsection required the intentional performing of an act that results in serious physical injury to another person under circumstances manifesting extreme indifference to the value of human life. Similarly, in Wells v. Commonwealth, 561 S.W.2d 85 (Ky.1978), the court relying upon People v. Sullivan, supra, held that the jury in convicting the defendant of assault did not have to be unanimous as to whether he (1) intended to cause serious physical injury, or (2) wantonly engaged in conduct creating a grave risk of death and under circumstances manifesting extreme indifférence to human life.

The rule has also been employed in cases of armed robbery where the jury was allowed to convict if they found that the defendant used force or simply threatened imminent use of force, Manson v. State, 101 Wis.2d 413, 304 N.W.2d 729 (1981); in cases where the jury was allowed to convict the defendant upon finding that he participated in the commission of the crime, either as a principal or an accessory or, in one case, as a conspirator, Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), cert. denied, 445 U.S. 931, 100 S.Ct. 1320, 63 L.Ed.2d 764 (1980); People v. Burgess, 67 Mich.App. 214, 240 N.W.2d 485 (1976); State v. Carothers, 84 Wash.2d 256, 525 P.2d 731 (1974) (overruled on other grounds); in cases of driving while under the influence of intoxicating liquor where the defendant could be convicted on proof of either being under the influence or having 0.10% or more by weight of alcohol in his blood, State v. Bratthauer, 354 N.W.2d 774 (Iowa 1984); State v. Franco, 96 Wash.2d 816, 639 P.2d 1320 (1982); and in a murder case where unanimity of the jury was not required as to whether the defendant intended to kill the victim or his companion, State v. Flathers, 57 S.D. 320, 232 N.W. 51, 72 A.L.R. 150 (1930).

The Sullivan rule has also found application in cases where it was held that the jury did not have to be unanimous as to the exact mens rea of the defendant where the statute contained more than one mens rea. In State v. Richardson, 24 Wash.App. 302, 600 P.2d 696 (1979), the defendant was charged with second degree assault. The jury was instructed that they could convict the defendant if they found that (1) he knowingly assaulted the victim with a weapon likely to produce harm; or (2) he knowingly inflicted grievous bodily harm upon the victim; or (3) he caused physical injury to the victim by means of criminal negligence. In State v. Dixon, 127 Ariz. 554, 622 P.2d 501 (App.1980), the jury was charged that they could convict the defendant of theft if they found he (1) knowingly controlled property of another with intent to deprive him of such property; or (2) controlled property of another, knowing or having reason to know that the property was stolen.

There are limitations on the rule, however. If the statute under which the defendant is convicted actually defines more than one crime and not merely one crime which may be committed in several different ways, the defendant is entitled to jury unanimity on which crime he is guilty of committing. That is the crux of United States v. Gipson, 553 F.2d 453 (5th Cir. 1977), upon which the defendant in the instant case relies and upon which defendants have generally relied in other cases in which the question of unanimity was raised. In Gipson, the defendant was charged with violating a statute prohibiting six enumerated criminal acts. The defendant was charged with violating the statute by committing various criminal acts in several incidents. The jury instruction permitted conviction without requiring unanimity about which act the defendant had committed and in which incident. The Court of Appeals reversed the conviction and held that the jury should have been required to agree upon “just what the defendant did,” i.e., the jury must unanimously agree on the actus reus element of the offense because the prohibited acts fell into two conceptually distinct categories. One group of acts interdicted the receipt, concealing, or storing of motor vehicles or aircraft. The other category interdicted the bartering, selling, or disposing of any such property. The defendant was entitled to jury unanimity as to which category of crime he committed. In this connection, see State v. Ewing, 174 Or. 487, 149 P.2d 765 (1944); People v. Scofield, 203 Cal. 703, 265 P. 914 (1928); State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976); State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980).

In the instant case, defendant was convicted under section 76-5-203 which provides that second degree murder may be committed in different manners and with different mens rea. It is clear, however, that only one crime is defined — that being second degree murder. Thus, we do not have in this case the problem of several distinct crimes being defined in a single statute as in United States v. Gipson, supra. The jury found that defendant killed both Floyd and LaRue Rowley with the mens rea and under the circumstances set out in either subsections (a), (b), or (c) of the statute. (See instruction 14 set out, infra.) Under the virtually unanimous case law which we have discussed above, defendant was not entitled to unanimity on (a), (b), or (c). We limit our decision to that proposition and do not express any opinion on the necessity of unanimity in other situations not present in this case. Defendant has not cited any authority and we have been unable to find any which would provide a basis for holding that the jury must be unanimous as to which subsection of the statute defendant’s conviction fits under. This void is understandable. Several courts have commented on the difficulty that would be encountered with juries if there were such a requirement. We concur with the observation of the Supreme Court of Alaska in State v. James, 698 P.2d at 1165, where it stated:

In determining whether to adopt the Sullivan rule for Alaska, we must consider the consequences of its rejection. There are differences in conduct, intent or circumstances between the subsections of almost every criminal statute in our code. Rejection of the Sullivan rule would therefore result in juror disagreement over semantics in many cases in which they unanimously agree that the defendant committed the wrongful deed. Our experience is that jurors have a keen sense of justice that is well served by the Sullivan rule. By requiring semantic uniformity we encourage overcomplicated instructions and hung juries in cases in which the jurors actually agree upon the defendant’s guilt.

Similar concern has been expressed on two occasions by the Supreme Court of Wisconsin. In Holland v. State, 91 Wis.2d 134, 280 N.W.2d 288 (1979), the defendant was convicted of second degree murder. The jury was instructed that he could be found guilty in three alternative ways — direct commission, aiding and abetting, and conspiracy. In answer to the defendant’s contention that the jury had to be unanimous as to the theory of his participation in the crime, the court after quoting with approval from People v. Sullivan, supra, and after distinguishing United States v. Gipson, supra, observed, “To require unanimity as to the manner of participation would be to frustrate the justice system, promote endless jury deliberations, encourage hung juries, and precipitate retrials in an effort to find agreement on a nonessential issue.” Later, in Manson v. State, 101 Wis.2d 413, 304 N.W.2d 729 (1981), where the defendant who had been convicted of armed robbery contended that the jury had to be unanimous in deciding whether the taking was accomplished by using force against the person of the owner or by simply threatening the imminent use of force, the court held that requiring such unanimity would raise serious characterization problems which should be avoided.

II.

The jury was instructed on first degree murder, as well as on the lesser included offenses of second degree murder, manslaughter, and negligent homicide. It found defendant guilty of two counts of second degree murder. Defendant assails the convictions on the grounds that they find no support in the evidence and that viewing the evidence in the light most favorable to the State, only a conviction of manslaughter would have been warranted. This contention requires a statement of the facts surrounding the shootings.

When defendant arrived home one Saturday afternoon from a business trip, his wife told him that their five-year-old daughter had complained that the Rowley’s son had taken indecent liberties with her. Defendant, disturbed by this news, walked a short distance down the street to the Rowley residence. There he discussed the accusation with Floyd and LaRue Rowley for about one-half hour. During this time, there was no argument nor was there any hostility shown toward defendant. Defendant stated that he would call and return later when the Rowleys’ son was there. Upon leaving, defendant remarked, “I don’t want to hurt anyone over this.”

After defendant returned to his home, he and several friends discussed business and the accusation made by his daughter. Defendant had earlier in the day consumed some beer, and his drinking continued during the afternoon when he also consumed some bourbon. At about 6:00 p.m., he either called or received a call from Mrs. Rowley. According to defendant, he told her that he was drunk, angry, and not making any sense, but that he would come to their home in the morning and “we can get it all straightened out then.” Mrs. Rowley then or in a later telephone call urged him to come now. Defendant went to his bedroom and took from his closet a handgun which he placed in the back pocket of his pants. On his way to the Row-leys’ home, he encountered some friends to whom he gave a short but intelligible response to a question they asked about fishing.

Defendant entered the Rowley home through a back door. He, Floyd, LaRue, their son, and a daughter went into the living room. A discussion ensued in which defendant claims Floyd made light of the accusation. The son and daughter denied their father made any such statement but admitted that defendant was loudly screaming and showed signs of drinking. Finally, defendant pulled the gun from his pocket, dropped it, picked it up, walked over to where Floyd was seated, and pointed the gun in Floyd’s face stating, “If I don’t start getting some answers, I am going to start blowing everybody away.” Floyd told defendant that they could resolve the problem like adults and that there was no need for guns. LaRue placed her hand on defendant’s arm and urged him to put his gun away. Floyd attempted to move the gun away from his face and to get up from the chair. Defendant shot him once in the chin killing him.

Defendant exited the house through the rear door and ran around to the front of the house where he encountered LaRue as she came out. When she saw him, she ran back into the house. Defendant raised his gun, aimed it at her as she ran, and then shot her through a large picture window next to the front door. She died several hours later. Defendant then shot himself twice in the chest from which wounds he recovered after hospitalization.

Defendant argues that the evidence will only permit at the most a conviction of manslaughter. U.C.A., 1953, § 76-5-205, defines manslaughter as:

(1) Criminal homicide constitutes manslaughter if the actor:

(a) Recklessly causes the death of another; or

(b) Causes the death of another under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse....

Defendant argues that he had a reasonable belief that his five-year-old daughter had been abused, that he was angry and had been drinking all afternoon, that he told the Rowleys that he did not want to discuss the matter further until morning, that the Rowleys urged him to come now, that he went to resolve the matter and became infuriated at a specious remark made by Floyd, that he pulled his gun out and pointed it at Floyd to impress him with the seriousness of the matter, and that in his anger or by accident, Floyd was shot. He afterwards recklessly shot through the front room window and unintentionally killed LaRue.

Assuming that the evidence would support a conviction of manslaughter, the jury who are the sole judges of the facts, did not view the conflicting evidence that way. We do not agree with defendant that the evidence does not also support his second degree murder convictions. He was seated in the front room of his neighbors’ home discussing a problem which had arisen concerning their children. Apparently when he received no acknowledgement from any of the Rowleys that the incident had occurred, the evidence permits the inference that he pulled out his gun and pointed it in Floyd’s face in an effort to force a confession or acknowledgement. The Rowley children testified that at no time was there any comment from any of the Rowley family that made light of the situation or was designed to provoke defendant. Defendant remarked, “If I don’t start getting some answers, I am going to start blowing everybody away.” He testified that he had previously fired the gun and was aware he first had to pull back the hammer and then pull the trigger before the gun would fire. He also testified that he knew the gun was a dangerous weapon and was aware of what the result would be if someone were to shoot another in the face. The shooting of LaRue occurred moments later after defendant had run out the back door and around the house to the front where he took aim at LaRue and then shot through a window. Given this evidence, the jury reasonably could have rejected defendant’s theory that he “recklessly caused the death of another” or that he “caused the death of another under the influence of extreme emotional disturbance for which there is a reasonable explanation or excuse.” On the other hand, the evidence supports the finding that defendant killed his victims with one of the mens rea and under the circumstances in our second degree murder statute, section 76-5-203.

The conviction and sentence are affirmed.

HALL, C.J., concurs.