State v. Young

853 P.2d 327, 208 Utah Adv. Rep. 6, 1993 Utah LEXIS 55, 1993 WL 79648

Opinions

HALL, Chief Justice:

Defendant appeals his convictions for first degree murder¹ and theft² and the sentence of death imposed for the murder conviction. Defendant was charged with murdering Ember K. Mars and stealing her pickup truck. A jury convicted defendant of both charges, finding that the homicide was committed in the course of a rape or an attempted rape and for personal or other pecuniary gain. After a separate hearing, the trial court found that defendant had been previously convicted of a felony involving violence against a person. Following a four-day penalty phase hearing, the jury returned a verdict of death on the first degree murder conviction. At formal sentencing, the trial court imposed the death sentence as well as an additional sentence of one to fifteen years in the state prison and a $10,000 fine for the theft conviction. Defendant raises numerous issues on appeal.

I. FACTS

On August 18, 1987, defendant met Ember Mars and her friends Angela Johnson and Gene Butcher at the Flying J truckstop in Salt Lake City, Utah. At Mars’ invitation, defendant joined them at their table. When the group left, defendant asked if he could accompany them to Butcher’s apartment to take a shower. Butcher consented, and they proceeded in Mars’ truck to pick up Johnson’s car before travelling on to the apartment.

Mars and defendant arrived at Butcher’s apartment shortly after the others. After playing cards, Butcher and Johnson decided to lie down in the bedroom. When Johnson awoke at about 7:50 a.m., the stereo was still playing and defendant’s suitcase was still in the living room, but defendant and Mars were gone. Angela became worried about Mars and called her home every ten to thirty minutes for the remainder of the day.

Defendant and Mars were later seen at Ream’s market, where Mars was a regular customer. Defendant selected a video, while Mars purchased some items. Mars wrote a check to pay for the purchase. They left the store together.

Randy Powell, Mars’ roommate, returned home about 5 p.m. on August 19, 1987. He noticed that the back screen door was open. On entering the house, he saw a brown paper bag on the table and an open drawer. He saw Mars’ jeans and shirt lying in the middle of the living room floor. Powell went into his bedroom, where he found Mars’ body. He called the police.

Upon arrival, the police found Mars’ partially nude body on the floor in the bedroom. She had what appeared to be four or five stab wounds in her neck and a large amount of blood on the left side of her head. The police found blood in both bedrooms of the house, in the bathroom, and on a towel in the living room. They found a broken, bloody clothing iron on the bed next to the body. In the other bedroom, they found a large black vase wedged between the bed and the wall next to some bloody tissues.

The medical examiner testified that the cause of death was injury to the head by a blunt and sharp object. In addition, there were three stab wounds in the left side of the neck that did not cut any major blood vessels or penetrate the spinal canal, stab wounds in the right neck and chest that did not sever major blood vessels, facial injuries indicating attempted suffocation, and bruises on the back of the left hand, both thighs, the left knee, and both ankles. The medical examiner testified that the wounds were sustained over a one-half-hour to one-hour period prior to Mars’ death. None of the wounds was immediately incapacitating. Examination of the victim showed no visible injury to the vagina or anus but revealed a large amount of semen in the oral cavity. The semen could have been deposited after death.

On August 28, 1987, the police apprehended defendant in Illinois driving Mars’ truck. Utah authorities took custody of defendant at the Salt Lake County Airport on May 20, 1988. Detective Dick Judd transported him to the Metropolitan Hall of Justice, where he was charged with capital homicide. After being read his rights, defendant signed a waiver form and made a lengthy statement acknowledging his involvement in Mars’ death. The State played a tape of this statement to the jury at the guilt phase of defendant’s trial. Other facts relevant to the case are discussed in conjunction with the issues below.

II. CONSTITUTIONALITY OF THE DEATH PENALTY

Defendant raises several objections to the constitutionality of Utah’s death penalty statutes. Utah Code Ann. §§ 76-3-206 and -207; Utah Code Ann. § 76-5-202. Defendant urges us to hold Utah’s death penalty scheme unconstitutional because (1) the aggravating factor in Utah Code Ann. § 76-5-202(l)(f), relating to murder for personal or pecuniary gain, is vague and overbroad and fails to channel the discretion of the jury; (2) the aggravating factor in subsection (h), relating to prior convictions, is unconstitutionally vague; (3) the death penalty scheme in Utah constitutes cruel and unusual punishment, violating the state and federal constitutions; (4) section 76-5-202 violates due process and equal protection under the state and federal constitutions; (5) the extensive list of aggravating factors in section 76-5-202 fails to narrow the class of offenders eligible for the death penalty; (6) the statute impermissibly creates a presumption of death; (7) the statute unacceptably reduces evidentiary burdens in the penalty phase; and (8) the statute fails to provide for automatic review of federal constitutional issues by the federal court system.

Defendant first challenges the constitutionality of section 76-5-202(l)(f), the “personal or pecuniary gain” aggravating circumstance. “ ‘The constitutional requirement of definiteness is violated by a criminal statute that fails to give a person of ordinary intelligence fair notice that his contemplated conduct is forbidden by the statute.’ ”³ Defendant had reasonable notice that the requirement of subsection (f) applied to killing the victim and taking her purse, money, credit cards, and truck.⁴ Therefore, defendant’s claim of vagueness is meritless. Further, because defendant was also found guilty of first degree murder with the aggravating circumstances under subsections (d)⁵ and (h),⁶ we may uphold the jury’s verdict without addressing the constitutional adequacy of subsection (f).⁷

We have previously addressed the application of section 76-5-202(l)(h) in State v. Gardner⁸ and State v. James.

Footnotes

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9 In Gardner, we declined to address the constitutionality of the statute, noting instead that overwhelming evidence of guilt combined with the existence of two other aggravating factors made any error in the application of subsection (h) harmless.¹⁰ Defendant’s case mirrors Gardner’s; the two other aggravating circumstances make any error in the application of subsection (h) harmless. Further, in James we upheld the constitutionality of subsection (h) against the claim that the subsection was void for vagueness.¹¹ We dismiss defendant’s claims concerning subsection (h) as meritless.¹²

We have considered defendant’s other challenges to the constitutionality of Utah’s death penalty scheme in numerous other cases.¹³ These cases addressed the constitutionality of the death penalty statutes under both the state and federal constitutions.¹⁴ Relying on the reasoning and analysis used in those cases, we hold that the death penalty under the Utah statutory scheme is constitutional and was constitutionally applied to defendant.

III. DEFENDANT'S MOTION TO STRIKE JURY PANEL

On March 6, 1989, defendant filed a motion to strike the March jury panel, arguing that the jury selection did not comply with the Jury Selection and Service Act (the “Act”)¹⁵ and the constitutional provisions guaranteeing him trial by a jury composed of a fair cross-section of the community.¹⁶ At the hearing on this motion, defendant presented evidence concerning the degree of noncompliance with the Act, the extent to which Hispanics comprise a distinct minority group for fair cross-section purposes, and the disparity between the number of Hispanics on the panel and the number of Hispanics in the population. The court denied defendant’s motion. Defendant filed an interlocutory appeal, and this court stayed the March 1989 trial date pending our decision whether to accept that appeal. This court rejected the interlocutory appeal, and a new jury panel was selected to convene in May.

The May jury panel was selected on March 30, 1989. On April 25, 1989, the third district court approved an administrative order governing selection procedures for that court. Defendant moved to strike the May panel on the ground that the administrative order of the third district court impermissibly superseded the directives of the Act. The court took further evidence on the renewed motion. The trial judge denied defendant’s motion to strike the May panel, and trial began on May 17, 1989.

Defendant claims that Salt Lake County’s jury selection procedure denied him his right to trial by a fair and impartial jury as guaranteed by the Sixth and Fourteenth amendments to the United States Constitution. He alleges that the selection process deprived him of a jury consisting of a fair cross-section of the community and that he is entitled to a new trial unless the State can show that the deprivation resulted from a significant state interest. As evidence for his contention, defendant asserts that none of the 77 venire persons chosen as prospective jurors in his case were of African-American, Asian, or Hispanic descent and that the persons chosen for the month of his trial did not represent the geographical or socio-economic character of the community because they were not proportionately drawn from the county’s voting districts as required by statute.

Defendant correctly asserts that he has the right to an impartial jury drawn from a fair cross-section of the community.¹⁷ If he can show that the jury selection process deprived him of that right, the burden shifts to the State to establish that the deprivation resulted from a significant state interest that was manifestly advanced by those aspects of the selection process that resulted in the discrepancy.¹⁸ To establish a prima facie violation of his right to a jury that represents a fair cross-section of the community, defendant must show that the excluded persons represent a distinctive group in the community, that the group is not fairly and reasonably represented in jury venires, and that this un-derrepresentation is due to a systematic exclusion of the group during the jury selection process.¹⁹

Defendant first claims that the lack of geographical and socio-economic distribution of voters on the May jury venire violates the Sixth Amendment. However, courts do not recognize geographical distribution or socio-economic status as a distinctive classification or group for Sixth Amendment purposes.²⁰ Mere geographic proximity does not endow people with the common values, culture, and history such as to create a distinctive group within our society. Therefore, we reject defendant’s claim that a disproportionate representation from the county’s voting districts violated his constitutional right to a fair cross-section of the community.

Defendant’s allegation that persons from minority backgrounds were excluded from his jury panel fares no better. The district court did recognize in State v. Malin²¹ that Hispanics are a distinctive group in Salt Lake County for fair cross-section purposes.²² However, defendant has failed to show unfair or unreasonable representation of Hispanics on jury venires in Salt Lake County. He offers no evidence regarding the representation of Hispanics on jury venires other than the bare fact that the 77 venire persons chosen for his trial did not contain any Hispanic persons. He has not produced any evidence on the number of Hispanics in the jury pool drawn for the month of May, nor has he presented statistics on the number of Hispanics who were qualified as jurors for that month. Defendant has likewise produced no evidence of unfair representation of Hispanics on other jury venires drawn from the same selection process as that used for his panel,²³ nor has he shown that the underrepresentation on his panel resulted from other than a purely random selection process. The constitution does not require that each petit jury chosen contain the requisite percentage of minority members in order to meet the fair cross-section requirement.²⁴ Indeed, purely random drawings will not always produce the appropriate percentages of minority citizens, particularly where, as here, the percentage of minority citizens in a community is relatively small. Therefore, defendant has failed to raise a prima facie claim that he was deprived of his constitutional right to an impartial jury.

Defendant also claims that Salt Lake County’s violation of the statutory procedures for selecting his jury deprived him of a fair and impartial jury. To obtain relief under the Act, defendant must show prejudice resulting from a substantial viola tion of its provisions.²⁵ Because this court stayed defendant’s March trial date to review his petition for interlocutory appeal, defendant was ultimately tried by a different panel than the one objected to in March. Therefore, defendant can show no prejudice under the Act with regard to the March panel.²⁶ We will accordingly limit our review to defendant’s objections to the May jury panel.

Defendant complains that the jury clerk violated the Act by disqualifying prospective jurors without the supervision of the court.²⁷ By administrative order, the court delegated to the clerk the task of disqualifying persons according to statutory requirements.²⁸ The court reserved the responsibility of determining all disqualifications for physical or mental health reasons and all disqualifications requiring the exercise of discretion. The court’s method of reviewing those forms requiring a discretionary determination of eligibility preserves the Act’s purpose of qualifying all those who meet the statutory requirements. We do not believe the Act requires that our state judges personally use precious resources to perform the routine task of evaluating every jury form returned. We see no reason why the court cannot reasonably delegate this initial qualification function to a trained court clerk. The court’s practice substantially complies with the Act.

Similarly, the court’s practice of allowing the jury clerk to grant postponements to prospective jurors with difficulty or hardships substantially complies with the Act.²⁹ The court may reasonably delegate the authority to grant postponements to the clerk, who has more direct contact with potential jurors.

Defendant also contends that the clerk violated the provisions of the Act requiring selection of a master jury wheel from the master list.³⁰ The county clerk’s office compiled a master list from voter registration and driver’s license records. This list, comprised of 100 percent of the voters from each voting district plus driver’s license records, was then designated as the master jury wheel. The court’s administrative order authorized this process.

Defendant contends that this process deprived him of a jury representing a fair cross-section of the community in two respects. First, he argues that the lack of a separate master jury wheel created disproportionate representation of voters from each voting district in the county on monthly jury panels. He then argues that this disproportionate representation deprived him of a fair cross-section of voters. His contention is without merit. The Act does not prohibit the use of 100 percent of the master list to constitute the master jury wheel. The master jury wheel contains a proportionate number of persons from each district. There is substantial compliance with the Act in this respect.

Defendant argues that the clerk violated the Act by removing certain names from the source lists before compiling them into the master list. The clerk cross-checked the lists to avoid duplications and removed the names of those who were on active military duty, were deceased, had moved out of the county, and were under 18 years of age. The clerk also programmed the computer to pass over those persons who had been chosen from the master list as jurors during the last five years. Defendant claims that removal of all names from the list other than those known to be deceased violated the Act and deprived him of a jury representing a fair cross-section of the community.

We fail to see how removing the names of persons who are under 18, nonresidents, or on active military duty can prejudice defendant, since the Act disqualifies these persons from jury service. The court’s administrative order instructed the clerk to remove those persons who had been called to jury service in the past five years. This order was a reasonable administrative decision, given the ample number of prospective jurors in Salt Lake County. Further, defendant has failed to demonstrate any actual or potential prejudice besides his bald assertion that he was deprived of a “fair cross-section.” His contentions regarding the master jury wheel are therefore without merit.

Defendant next contends that the court did not sufficiently enforce the law requiring return of the jury questionnaires by prospective jurors. Defendant complains that the clerk did not further investigate the availability of those jurors whose forms were returned by the postal service as undeliverable. The court authorized the clerk to abandon further location efforts for the persons with undeliverable forms after it made the determination that efficiency and cost effectiveness prohibited a further search. This decision by the court was reasonable and not in substantial violation of the Act, which does not specifically address the problem of undeliverable jury questionnaires and notices.

Defendant’s next contention is that the clerk violated the statute because she did not take sufficient steps to follow up on those persons who did not return their qualification forms. The jury clerk testified that she sends reminder notices to those persons who have not returned their forms. She refers those who still fail to respond to the presiding judge for further proceedings. This testimony shows that the court took reasonable action to enforce the return of qualification forms. Defendant has shown no violation of the Act and no prejudice resulting from the alleged lack of enforcement. Therefore, he has made no colorable claim regarding the enforcement of the selection procedures.

Defendant also claims that the county clerk did not make the master jury list available to the public because he charged $25 to $100 to view it and he did not store it in a particular order. Nothing in the Act requires that the list be available to the public free of charge, and defendant has not shown that the charges deprived him of the ability to look at the list. The county clerk keeps the list on a computerized database. He deliberately scrambles the database to obtain a random selection of jurors when he makes the monthly selections. The Act does not require that there be a hard copy of the master list. The definition of “jury wheel” includes an electronic system or database.³¹ It is reasonable to conclude that such a system is also a sufficient means of storing the master list.

Defendant further complains that the jury clerk did not place the qualified list of jurors on a qualified jury wheel. The computer in the court clerk’s office lists all the names for each month. It does not have a separate list of the qualified jurors for each month, merely a notation by the jurors’ names indicating whether they are qualified. Therefore, in order to determine which jurors have qualified for jury service, a defendant must examine the entire list of jurors called for that month. Although this system does not facilitate instant availability of the qualified jury wheel, it does contain the names of qualified jurors. We have noted that the computer system is a legal means of storing jury wheels under the statute.³² Further, defendant has shown no prejudice resulting from this procedure, other than the requirement of a more lengthy search of the computer record. Therefore, no substantial violation occurred.

In sum, we note that, as a whole, the selection process used by Salt Lake County complied with statutory procedures. We are convinced that a random and fair cross-section of the community can be drawn using Salt Lake County’s procedures and that defendant was able to obtain a fair and impartial jury.

IV. DEATH QUALIFICATION OF THE JURY VENIRE

Defendant claims that excluding from the jury those jurors who stated that they could never vote to impose the death penalty (“death qualification” of the jury panel) violated his right to a jury panel made up of a fair cross-section of the community. Defendant bases his claim on article I, sections 10 and 12 of the Utah Constitution. Defendant contends that a death-qualified jury does not represent the community at large and is more likely to convict a person accused of a crime.

This court has examined on numerous occasions the propriety of death qualifying a jury. We have repeatedly upheld the process of death qualification in the face of claims that the practice violated the United States Constitution.³³ In State v. Shaffer, ³⁴ we permitted the questioning of jurors concerning their views on the death penalty. We reserved the question of whether the exclusion of those jurors who could not vote for the death penalty violated the Utah Constitution. The Utah practice of death qualification excludes not only those jurors who would never vote to impose the death penalty, but also those jurors who would always vote to impose the death penalty upon a finding of first degree murder.³⁵ This practice comports with Utah law, which permits exclusion of all jurors who cannot follow their oath and apply the law as instructed by the court.³⁶ The death qualification process is therefore consonant with Utah law.³⁷

Although our prior holdings concerning death qualification rely on the federal constitution, the analysis used in those cases applies here as well. Death qualification of the jury venire advances a significant state interest in seating jurors willing to abide by the law and follow their oath as jurors.³⁸ The trial court did not err in allowing the death-qualification process in defendant’s trial.

V. PROSECUTION’S USE OF PEREMPTORY CHALLENGES

Prior to trial, defendant moved to prohibit the prosecution from exercising its peremptory challenges to remove those jurors who expressed hesitation about imposing the death penalty. The trial court denied the motion pending the exercise of the peremptory challenges. Following voir dire, defendant renewed the motion, focusing on the prosecution’s challenges of certain jurors who defendant believed expressed hesitation about the death penalty. The trial court denied the motion and refused to require the prosecution to explain the reasons for the challenges.

Defendant bases his claim on Batson v. Kentucky,³⁹ In Batson, the Supreme Court held that the state may not use its peremptory challenges to exclude black jurors from a jury panel.⁴⁰ Defendant argues that Batson prohibits any peremptory challenge by the state that would be prohibited as a challenge for cause. Defendant’s reliance on Batson is misplaced. Batson involved the discriminatory use of peremptory challenges to remove a cognizable racial group from the jury panel. Defendant cannot establish that persons who express hesitation about the death penalty are a cognizable, distinctive group in society. Therefore, the fair cross-section requirement of the Sixth Amendment cannot be used to invalidate the use of peremptory challenges against those persons.⁴¹ Furthermore, in State v. Bishop, we recognized the ability of the prosecution to use its peremptory challenges in any nondiscriminatory manner, including the removal of those jurors who express hesitation about the death penalty.⁴² We adhere to that ruling now. The trial court correctly refused to require the State to explain the challenges.

VI. DEFENDANT’S CHALLENGES FOR CAUSE

Defendant contends that the trial court committed reversible error by refusing to grant his challenges for cause to four jurors, whom he then had to remove by peremptory challenge. Defendant claims that these jurors exhibited biased responses when questioned concerning their views on the death penalty, creating a jury panel prone to convict and to sentence him to death. Defendant correctly asserts that prejudicial error would have occurred if he were required to use his peremptory challenges on jurors who should have been removed for cause.⁴³ We therefore direct our inquiry to the propriety of the trial court’s refusal to remove the jurors.

A trial court has broad discretion in determining whether to grant a challenge for cause.⁴⁴ While the law requires a jury comprised of impartial and unbiased persons, the trial court must actually determine whether the individual juror entertains such strong views that he or she cannot decide the case with appropriate impartiality.⁴⁵ Only strong and deep impressions or opinions on the part of a veni-re person serve as a basis for removal for cause.⁴⁶ In reviewing the trial court’s decision to remove a juror for cause, this court should look at the whole voir dire exchange with the juror.⁴⁷ If the juror’s answers as a whole convey the impression of bias, then removal for cause is necessary. However, if the answers as a whole indicate that the juror is willing to listen and consider the evidence presented and to follow the law, the court is not required to remove the juror.⁴⁸

Our review of the entire voir dire record indicates that the trial court did not err in refusing to dismiss the challenged jurors for cause. Although the challenged jurors did express strong opinions about the appropriateness of the death penalty in certain homicide cases, each of the jurors expressed willingness to follow the law, to weigh the evidence, and to consider any mitigating evidence presented. None of the jurors expressed a strong opinion that the death penalty should be imposed in every homicide case, and all expressed the belief that death was not the appropriate penalty in all homicide cases. The jurors’ responses as a whole indicated a willingness to be fair and impartial. The trial court did not abuse its discretion in denying defendant’s challenges for cause.

VII. PROSECUTION’S CHALLENGE FOR CAUSE

Defendant claims that the trial court improperly granted the prosecution’s motion to excuse juror Hoffman for cause. Hoffman indicated that she would have difficulty imposing the death penalty, that she would suffer emotionally from having to decide the fate of someone’s life, and that she suffered from emotional problems and a hormonal imbalance. She stated that she “hoped” she would be able to impose death if she determined that it was the appropriate penalty, but doubted her ability to do so. The prosecution moved to dismiss her for cause based on her inability to impose the death penalty. After argument, the court granted the motion on the ground that Hoffman suffered from physical and emotional problems that would impair her ability to function as a juror.

As stated above, the trial court is granted a wide range of discretion in determining whether to grant challenges for cause.⁴⁹ Although a juror may not be excused for cause simply because he or she expresses hesitation about imposing the death penalty, the trial court may excuse a juror who indicates an inability to impose the death penalty.⁵⁰ The court may also excuse a juror if it appears from the totality of the voir dire that he or she cannot perform the duties of a juror due to a physical or emotional disability.⁵¹

Reviewing the voir dire as a whole, it was within the trial court’s discretion to remove Hoffman for cause. Her answers to the questions posed on voir dire indicated that she suffered from emotional and physical problems that affected her ability to remember, to make a decision, and to stand by her decisions if opposition arose.⁵² Her difficulties in remembering and making decisions were not related merely to her inability to make a decision regarding the death penalty, but to the more general task of hearing and evaluating evidence.⁵³ This inability to evaluate and remember evidence and to make a decision regarding the evidence would have substantially impaired her ability to serve as a juror. Therefore, Hoffman was properly excused for cause.

VIII. ADMISSION OF EVIDENCE DURING THE GUILT PHASE

Defendant asserts that the trial court should have excluded several of the prosecution’s exhibits because they were irrelevant and inflammatory. Specifically, he objects to the introduction of several items found in the truck when he was apprehended in Illinois, including four credit card purchase receipts, credit cards, and identification cards belonging to the victim. Defendant objects to the introduction of these items of evidence on several statutory and constitutional grounds.

We initially note that, contrary to defendant’s argument, the majority of the items are relevant to establish the aggravating factor that the murder was committed for pecuniary or other personal gain.⁵⁴ However, we need not reach the issue of the items’ admissibility because it is clear that any error committed in admitting them was harmless.⁵⁵ In State v. Bishop, we reviewed the standard for harmless error in criminal cases, including capital cases. We held that for an error to require reversal, the likelihood of a different outcome must be sufficiently high and undermine our confidence in the jury’s verdict.⁵⁶ The prosecution presented substantial evidence, including defendant’s taped confession, that tended to prove defendant’s guilt of the crimes charged. It is highly unlikely that the minor bits of evidence objected to here persuaded the jury to convict defendant or to sentence him to death. We are convinced that the jury would have reached those same verdicts had the evidence been excluded.

Defendant next contends that the trial court erred in admitting evidence of his attempted flight from the police who apprehended him in Illinois. Over objection, the arresting officer testified that defendant ran a police roadblock before being apprehended. In light of the overwhelming evidence of defendant’s guilt, we find this evidence harmless and therefore decline to consider his arguments concerning its probativeness.⁵⁷

Defendant also claims that the trial court violated his Sixth Amendment right to confrontation when it refused to permit him to question witness Angela Johnson concerning the victim’s prior sexual activity. Defendant contends that this testimony was relevant to the issue of consent on the aggravating factor of rape or attempted rape. Evidence of a rape victim’s prior sexual activity with individuals other than the defendant has little, if any, relevance to the question of her consent to sexual activity with the defendant.⁵⁸ Moreover, defendant did not seriously dispute the issue of consent in this case and admitted raping the victim. Therefore, the evidence was irrelevant, and defendant’s right to confrontation under the state and federal constitutions was not denied.⁵⁹

IX. GUILT PHASE REASONABLE DOUBT INSTRUCTIONS

During the guilt phase of the trial, defendant requested that the trial court give his. proposed instruction number 8, regarding the reasonable doubt standard of proof. Instead, the trial court gave instructions 15 and 16, regarding proof beyond a reasonable doubt. Defendant objects to these instructions, arguing that they are erroneous and misleading and tend to trivialize the jury’s decision-making process. He contends that the erroneous reasonable doubt instructions violated his right to due process of law.⁶⁰

Specifically, defendant objects to the instructions on three grounds. First, he objects to the language of instruction 16 informing the jury, “[Y]ou must have greater assurance of the correctness of such a decision than you would normally have in reaching the weighty decisions affecting your own life.” Defendant contends that this court disapproved of that language in State v. Johnson.⁶¹ In Johnson, Justice Stewart, writing for a majority of the court, held that an instruction equating the reasonable doubt standard with the weighty decisions of the jurors’ lives incorrectly trivialized the constitutionally required burden of proof.⁶²

However, the language in instruction 16 did not equate the reasonable doubt burden with the weighty decisions of the jurors’ lives; it impressed upon the jurors that the reasonable doubt standard requires greater proof than such decisions. No talismanic phraseology is required to articulate the reasonable doubt standard. An instruction must merely impress upon the jurors the heavy burden the prosecution must meet to prove guilt beyond a reasonable doubt.⁶³ Instruction 16 conveyed the proper impression of the gravity of the jurors’ decision.

Second, defendant objects to the language used in instruction 15 regarding a “mere possibility.”⁶⁴ He contends that this language violates Johnson, which disapproved of the “mére possibility” language.⁶⁵ Defendant misreads the import of instruction 15. Actually, the instruction favored defendant since it told the jurors that they must find guilt beyond a reasonable doubt and that they must not base their verdict on mere speculation or possibility. This instruction conveyed to the jurors that the State could not rely on “mere possibility” to obtain a conviction.

Third, defendant objects to the language defining reasonable doubt in instruction 16. He again contends that prohibiting a “possibility” from comprising a reasonable doubt deprived the jurors of the ability to act upon doubts that they may have entertained. Instruction 16 informed the jurors that “[a] reasonable doubt cannot be a doubt that is merely fanciful or imaginary or is based on a wholly speculative possibility” and that “it must arise from the evidence or lack of evidence in this ease.” This correctly informed the jurors that they were to base their deliberations on the evidence in the case and not to entertain imaginary or speculative suggestions as reasonable doubts. The language of instruction 16, taken as a whole, did not minimize the scope of the reasonable doubt or exclude legitimate doubts a juror may have entertained.

Even if defendant can show that the instructions given by the trial court were in a technical sense incorrect, he has not shown that the instructions prejudiced him. Only harmful and prejudicial errors constitute grounds for granting a new trial.⁶⁶ Defendant does not argue that the jury would have reached a different verdict if his requested instruction had been given instead of instructions 15 and 16. He has not demonstrated that the qualitative difference in these instructions affected the verdict he received, in either the guilt or the penalty phase. We therefore reject his contention that the instructions entitle him to a new trial.

X. GUILTY AND MENTALLY ILL VERDICT

Prior to trial, defendant was interviewed by several alienists. The prosecution received these experts’ reports at least two months prior to trial. On March 7, 1989, defendant filed a notice of intent to rely on a defense of diminished mental capacity and/or insanity. Defendant filed the motion less than thirty days before the March trial date, but the trial court permitted him to proceed with the reports necessary to present the defense.⁶⁷ On March 22, 1989, defendant withdrew the notice of intent to seek a diminished capacity defense. During the guilt phase of the trial, however, defendant presented the testimony of Dr. Lancaster to establish defendant’s mental state.⁶⁸ The prosecution did not object to this testimony. Defendant requested an alternative verdict form that allowed the jury to enter a verdict of guilty and mentally ill (“GAMI”). Defense counsel also requested an instruction regarding the GAMI verdict. The trial court denied these requests because defendant had not presented evidence that he lacked the mens rea necessary for conviction of the crimes charged and because he had not given notice that he intended to rely on the defense of insanity or diminished mental capacity.

Defendant argues that the Utah Rules of Criminal Procedure require a trial court to instruct a jury that it may find a defendant guilty and mentally ill in any case in which the defendant requests such a verdict and presents evidence which would tend to support that verdict. Defendant claims that Utah Rule of Criminal Procedure 21.5 does not require that a defendant request a verdict of insanity prior to being entitled to a guilty and mentally ill instruction.

Defendant ignores the requirement of rule 21.5 that the guilty and mentally ill verdict option is to be offered if a defendant at trial asserts a defense of “not guilty by reason of insanity.”⁶⁹ Rule 21.5 links the GAMI option to the statutory requirement of notice of a defendant’s intent to rely on the defense of insanity.⁷⁰ This requirement also notifies the prosecution of the defendant’s intent to seek one of the alternative verdict forms available under the rule. A rule 21.5 verdict form, based on the mental condition of the defendant, is available only if the defendant has given notice of his or her intent to seek it. In this case, defendant withdrew his notice to rely on a defense of diminished capacity or insanity. Therefore, the prosecution had no notice of his intent to seek an alternative verdict under rule 21.5.

Defendant asserts that our holding in State v. DePlonty⁷¹ requires that we grant him a new trial to allow the jury' an opportunity to reach a verdict of guilty and mentally ill. DePlonty held that a defendant need not prove that he or she is insane to receive a GAMI verdict.⁷² However, De-Plonty does not negate the requirement that the defendant must give notice of his intention to seek a verdict predicated on mental illness. Indeed, defendant DePlonty gave the requisite notice to the state prior to his trial⁷³ Because defendant did not give proper notice of his intent to seek a verdict based on mental illness or insanity, he was not entitled to a GAMI instruction.

Additionally, we fail to see how defendant was prejudiced by the trial court’s refusal to submit a GAMI verdict form to the jury. Contrary to defendant’s argument, a verdict of guilty and mentally ill does not preclude the jury from returning a verdict of death.⁷⁴ Although the United States Supreme Court has held that an insane person may not be executed,⁷⁵ the Court has also held that retardation or mental illness less severe than insanity does not in and of itself - preclude a death sentence.⁷⁶ The jury heard extensive evidence concerning defendant’s mental illness at the penalty phase of the trial. The trial court gave a lengthy instruction concerning the mitigating circumstance of mental illness, including the particular circumstances of defendant’s mental condition.⁷⁷ The jurors apparently found this evidence insufficient to mitigate against the imposition of the death penalty. We fail to see how the additional fact of a GAMI verdict would have changed this result.⁷⁸

XI. PROSECUTORIAL MISCONDUCT

Defendant next claims that the prosecutor’s improper comments during his opening statement⁷⁹ and his questioning of one witness, Detective Couch,⁸⁰ deprived defendant of a fair trial. Defendant claims that the prosecutor insinuated that additional evidence existed which had not been introduced and that this insinuation encouraged the jury to decide the case on the basis of evidence not introduced at trial, thereby prejudicing defendant’s case.

Initially, defendant must show that his claims are properly before this court. Defense counsel made no objections to either of these statements during the trial of the case. Therefore, we deem the issue waived unless we determine that the statements constituted plain error.⁸¹ This court will review the record of a capital case for manifest or plain error, whether or not objected to at trial.⁸² We discussed the plain error doctrine in State v. Eldredge.83 We stated that for an error not raised at trial to constitute “plain error,” it must have been obvious to the trial court and it must have been harmful.⁸⁴ Therefore, for defendant to succeed on his claim, he must show that the prosecutor’s statements constituted obvious error and that absent this error, there is a reasonable likelihood that defendant would have received a more favorable result.⁸⁵

Although we give counsel considerable latitude in making arguments to the jury, “counsel exceeds the bounds of this discretion and commits error if he or she calls to the jury’s attention material that the jury would not be justified in considering in reaching its verdict.”⁸⁶ The Utah Rules of Professional Conduct also prohibit an attorney from alluding to matters not introduced as evidence at trial.⁸⁷ The insinuation that other evidence exists encourages the jury to determine its verdict based upon evidence outside the record and jeopardizes a defendant’s right to a trial based upon the evidence presented.⁸⁸ The prosecutor’s remarks and his questions asked of Detective Couch constituted obvious error.

Although defendant has shown the plain error of the prosecution’s statements, he has not shown prejudice. When there is strong proof of guilt, the conduct or remark of a prosecutor is not presumed prejudicial.⁸⁹ Therefore, unless the error undermines our confidence in the jury verdict, we will not overturn that verdict.⁹⁰ The prosecutor presented overwhelming evidence of guilt. In addition to defendant’s confession, the jury heard numerous witnesses testify to their observations of the crime scene and the evidence of repeated beatings, multiple stab wounds, and extensive blood spatters found there. At the penalty phase, numerous witnesses testified about defendant’s prior criminal history, his violent nature, and the aggravating circumstances of the crime. In both the guilt and penalty phases, the court instructed the jury to base its verdict solely on the evidence that was admitted at the trial and that the arguments of the prosecution and defense counsel did not constitute evidence. It is unlikely that the jury was significantly influenced in its verdicts of guilt and death by the prosecutor’s comments. The references to other evidence were therefore harmless.

XII. SHACKLING OF DEFENDANT DURING PENALTY PHASE

Defendant did not attend the penalty phase hearing for a portion of the first day and for the entire second day of the hearing. He returned to the courtroom on the third day and stated that he planned to attend the remainder of the hearing. He then asked permission to testify immediately. After some discussion concerning the propriety of defendant’s decision to testify, the trial judge stated that he would require restraints on defendant. Defendant was required to wear a waist chain attached to handcuffs. He stated that he would like to leave the courtroom to “think some things over” but that he would come back.

Following noon recess, defendant returned to the courtroom wearing the restraints. The jury entered the courtroom while defendant sat at counsel table in the chains. Counsel asked to approach the bench, and the court excused the jury. Counsel made arguments concerning the shackles; the judge refused to remove them. Thereafter, defendant again left the courtroom.

Defendant argues that the court’s shackling order denied his right to due process under the Fifth Amendment. He claims that the court must show necessity prior to requiring a defendant to appear before a jury wearing restraints. He claims that restraints are inherently prejudicial and are an affront to his human dignity. Defendant also claims that the restraints violated his right to be free from cruel and unusual punishment under the Eighth Amendment because the restraints invited a death sentence imposed through caprice or emotion. He bases his claims on Holbrook v. Flynn,⁹¹ which states that restraints on a defendant are inherently prejudicial, and on Elledge v. Dugger;⁹² which holds that the prohibition against restraining defendants in front of a jury extends to the penalty phase of a capital trial.

With the exception of Elledge v. Dugger, defendant’s argument relies on cases that arose from a trial court’s shackling order during the guilt-innocence phase of a trial.⁹³ These cases are based on the proposition that a shackling order violates a defendant’s right to due process because it undermines the presumption of innocence.⁹⁴ This presumption no longer applies during the penalty phase of a capital trial. Indeed, a jury sitting at a penalty phase recently found the defendant guilty of first degree murder during the guilt phase of the trial. As a result, the constitutional foundation for the right to be free from shackles or other restraint no longer exists, and we accord greater significance to public safety concerns.⁹⁵ Where the defendant has already lost the presumption of innocence, it is within the sound discretion of the trial court to determine the safety measures necessary to insure the security of the courtroom and its occupants.⁹⁶ These safety measures may include shackling a defendant in appropriate circumstances.

By holding that shackling at the penalty phase does not inherently violate the due process rights of a defendant, we do not hold that shackling is necessary or appropriate in all capital sentencing proceedings. The mere fact that a jury convicted a defendant of first degree murder is not a sufficient basis for a decision to shackle him during the penalty phase. The trial court should look at the particular facts of the case and the conduct of the proceedings and should balance the need for safety and security in the courtroom against the potential for prejudice.⁹⁷

In this case, the trial court had before it a large quantity of information regarding defendant’s violent past and uncontrollable temper. Specifically, the court had previously heard testimony by an Indiana police officer that it took four security officers to restrain defendant when he became angry at a photographer in an Indiana courtroom. Defendant’s own experts testified that his temper was triggered when he perceived that he was being labeled retarded or insane. The psychological testimony presented during the remainder of the penalty phase was therefore likely to trigger his temper.

Defendant argues that because he had not exhibited any signs of violent outbursts during the present trial, there was no reason to believe that restraints were necessary. A trial judge is not required to wait until an outburst actually occurs before determining proper security measures for the courtroom. Given the evidence concerning the likelihood of a violent outburst during the upcoming testimony and the potential severity of such an outburst should one occur, we do not believe that the trial judge was required to wait for a manifestation of danger. The trial court took reasonable precautions against a violent outburst by defendant.

Further, defendant has shown no prejudice resulting from the shackling. Aside from showing that some jurors briefly viewed the shackles, defendant has offered no evidence of the effect of the shackles upon the jurors or of the likelihood that the shackles had a bearing on the verdict. A defendant is' not necessarily prejudiced when jurors briefly view him wearing shackles.⁹⁸ The trial court took steps to minimize the effects of the shackles by placing them underneath defendant’s coat and by having those present remain seated while the court and the jurors entered the room. Therefore, the effect of the shackles did not likely prejudice defendant.

Defendant argues that the shackles deprived him of his Sixth Amendment right to attend his trial because he was forced to remain absent rather than have the jurors view him in shackles. This argument fails for two reasons. First, we have already determined that the shackles were appropriate under the circumstances and did not cause undue prejudice to him. Second, it appears from the record that defendant’s departure from the courtroom was voluntary and only tangentially related to the shackles placed on him. Therefore, defendant’s choice to absent himself during the trial does not show that the shackling order compromised his Sixth Amendment rights.

On the day following the court’s shackling order, defense counsel requested the court to poll the jury concerning any press exposure they may have had regarding the shackling or the trial. The court asked defense counsel what coverage there had been and what coverage counsel contended was prejudicial. Defendant cited no particular press items as prejudicial and brought no items into court concerning press coverage of the trial. Therefore, the trial court declined to poll the jurors without evidence of prejudicial press to which they could have been exposed.

To establish that his trial might have been prejudiced by midtrial publicity, defendant must establish that the publicity was inherently prejudicial.⁹⁹ Not every item of media coverage prejudices a trial.¹⁰⁰ The trial court is not required to poll the jurors as to their obedience to the daily admonition to avoid press coverage unless the potential media exposure concerning the trial would prejudice the defendant’s case.¹⁰¹ The trial judge did not err in requiring defendant to show possible prejudice before polling the jurors.

XIII. PRESENTATION OF AN ADDITIONAL AGGRAVATING CIRCUMSTANCE AT THE PENALTY PHASE

During the penalty phase, the prosecution asked the jury to consider an additional aggravating circumstance that it had not considered during the guilt phase of the trial. This circumstance was that the murder was committed in an especially cruel, heinous, or atrocious manner as defined in Utah Code Ann. § 76-5-202(l)(q). Defendant contends that the court should have required the State to present this circumstance at the guilt phase of the trial or forfeit its use.

Nothing in the Utah death penalty statutes requires that the State present all statutorily defined aggravating circumstances during the guilt phase. In fact, the death-sentencing statute, section 76-3-207(2), provides that the aggravating circumstances presented in the penalty phase “shall include those as outlined in 76-5-202.” This sentence clearly contemplates that factors not presented at the guilt phase may be presented during the penalty phase. We have previously held that all aggravating evidence not unfairly prejudicial to the accused may be presented during the penalty phase of a capital proceeding.¹⁰² The legislature has determined that the factors defined in section 76-5-202 are aggravating factors and warrant consideration by the jury in imposing the death penalty.¹⁰³ Therefore, the jury may properly consider these factors in the penalty phase even when the factors were not introduced during the guilt phase of the trial.

Defendant argues that the consideration of additional aggravating factors violated the Eighth and Fourteenth Amendments because it failed to properly channel the jury’s discretion and to narrow the class of offenders eligible for the death penalty. In Lowenfield v. Phelps,¹⁰⁴ the Supreme Court held that the narrowing function required by the Eighth Amendment may occur at either the guilt or the penalty stage of a capital trial.¹⁰⁵ Utah’s scheme is similar to that upheld in Lowen-field; it narrows the class of offenders subject to the death penalty during the guilt phase of the trial.¹⁰⁶ Once the initial narrowing of the class occurs at the guilt phase, the addition of the aggravating circumstance at the penalty phase does not distort the narrowing function required by the Eighth Amendment.

XIV. ADMISSION OF PRO SE ANSWER FROM CIVIL CASE

As its last piece of evidence in the penalty phase hearing, the State introduced a portion of defendant’s pro se answer to a civil complaint filed against him by Mars’ sister. The court did not advise the jury concerning who had filed the complaint or the remedy sought. The court simply told the jurors that the answer responded to a civil complaint filed in Salt Lake County and that they need not concern themselves with the nature of the case or the omitted portions of the answer. Defendant object ed to the admission of the answer under the Utah Rules of Evidence and under the federal constitution.

Defendant first claims that the answer should be excluded under Utah Rule of Evidence 403 because its prejudicial effect outweighs its probative value as evidence in the penalty hearing. Defendant cites State v. Maurer,¹⁰⁷ which reversed Maurer’s conviction based on the introduction of a letter from Maurer to the victim’s father.¹⁰⁸

Maurer, however, is readily distinguishable from the present case. The state introduced Maurer’s letter to the victim’s father during the guilt phase of a second degree murder trial to establish Maurer’s intent in killing his victim. Portions of the letter established Maurer’s guilt of the crime. However, other portions of the letter were irrelevant and highly inflammato-' ry.¹⁰⁹ These portions of the letter raised concerns because they encouraged the jury to base their determination of guilt or innocence upon Maurer’s character and lack of remorse in committing the crime. Therefore, the letter was prejudicial because it directed the jury’s attention to matters it was prohibited from considering.¹¹⁰

Unlike the guilt phase of a trial, the sentencing phase revolves around the character and background of a defendant.¹¹¹ An examination into a defendant’s character is mandatory in a capital sentencing proceeding.¹¹² A jury may legitimately consider a defendant’s character, future dangerousness, lack of remorse, and retribution in the penalty phase hearing. The pro se answer to the complaint revealed defendant’s attitude concerning the crime, his future dangerousness, and his character.¹¹³ Therefore, it was highly relevant to the proceedings at hand and not unfairly prejudicial to defendant.

Defendant also contends that the answer allowed the jury to consider improper victim impact evidence in violation of the Eighth Amendment. Defendant cites Booth v. Maryland¹¹⁴ for the proposition that a state may not introduce a victim impact statement at the penalty phase of a capital trial to establish the impact of the crime on the victim’s family.¹¹⁵

Booth was recently overruled by the Supreme Court in Payne v. Tennessee.¹¹⁶ In Payne, the Court held that the Eighth Amendment does not necessarily bar admission of evidence concerning the human cost of a defendant’s crime.¹¹⁷ In so holding, the Court reaffirmed the view that justice is due to the accuser as well as to the accused.¹¹⁸ Therefore, under Payne, the admission óf the pro se answer does not violate defendant’s constitutional rights.¹¹⁹

We reject defendant’s other arguments concerning the admission of the pro se answer. We note that defendant has no right to counsel in a civil case, and the State did not compel defendant to respond to the civil complaint or elicit the statements he made in his response. His Fifth and Sixth Amendment claims regarding the pro se answer are therefore meritless.

XV. DEFENDANT’S REQUEST FOR ALLOCUTION

During the penalty phase of defendant’s trial, he requested permission to address the jury on two separate occasions. The first occasion occurred on the third day of the penalty phase hearing. The trial court advised defendant against testifying and requested that he consult with his attorneys regarding his decision. The court also informed him that it was not the appropriate time for him to testify. Defendant agreed to think about his decision and to wait until the appropriate time if he desired to testify.

Defendant again asked to address the jury on the fourth day of the penalty phase hearing. After the defense indicated that it would call no more witnesses to the stand, defendant requested permission to read a statement to the jury. The prosecution objected, arguing that no precedent allowed a defendant to make an unsworn, uncontested statement to the jury in a capital trial. The trial court asked defense counsel to provide statutory or constitutional authority for the right to make such a statement. Counsel requested time to research the issue, and the trial court granted a recess. The next morning, counsel presented arguments regarding the al-locution right. After hearing the arguments, the court denied the motion.

Thereafter, the defense rested, counsel made closing arguments, and the court sent the jury to deliberate. After the jury returned its verdict, the court set a sentencing date of July 11, 1989. On that date, defense counsel made several motions that the trial court denied.¹²⁰ The court then asked defendant if he had anything to say before it formally imposed sentence. Defendant stated that he wished to stay in Utah, where he could maintain contact with counsel while his appeal was pending. Defense counsel then argued that defendant had the right-to return to Indiana prior to imposition of the death sentence and that defendant’s waiver of that right was against their advice and raised questions concerning his competency. After this argument, the court again asked defendant if he wished to say anything. Defendant objected to his attorneys’ characterization of him as “a fruitcake.” The court then asked defendant which mode of execution he preferred and imposed a sentence of death by lethal injection.

A. Federal Constitutional Issues

The United States Supreme Court has addressed the right of allocution in several cases. In Green v. United States,121 the defendant asked the Court to vacate his sentence because the trial judge did not ask him whether he had anything to say prior to sentencing. The defendant alleged that the failure to elicit his comments violated Federal Rule of Criminal Procedure 32(a).¹²² Though the Court delved at length into the history and value of the allocution procedure, it based its decision upon violation of the federal rule. The Court described the importance of the right, stating:

The most persuasive counsel may not be able to speak for a defendant as the defendant might, with halting eloquence, speak for himself. We are buttressed in this conclusion by the fact that the Rule explicitly affords the defendant two rights: “to make a statement in his own behalf,” and “to present any information in mitigation .of punishment.” We therefore reject the Government’s contention that merely affording defendant’s coun-' sel the opportunity to speak fulfills the dual role of Rule 32(a).¹²³

The Court determined that the trial court’s question “Did you want to say something?” could have been directed to the defendant, and without further evidence that the defendant was not addressed, the defendant’s claim failed.¹²⁴

In Hill v. United States,125 the Court upheld a sentence issued in violation of rule 32(a) against a collateral attack. The case arose from a petition to vacate Mr. Hill’s sentence under section 2255 of 28 U.S.C., which provides that a prisoner may file a motion to “vacate, set aside or correct” a sentence, upon the ground “that the sentence was imposed in violation of the Constitution or laws of the United States” or that the sentence “is otherwise subject to collateral attack.”¹²⁶ After noting that the relief afforded by section 2255 was no more extensive than that available by habe-as corpus, the Court held that the violation of rule 32(a) in pronouncing the petitioner’s sentence was “not of itself an error of the character or magnitude cognizable under a writ of habeas corpus.” ¹²⁷ In so holding, the Court noted that the sentencing judge did not violate the defendant’s constitutional rights merely because he did not ask the defendant if he had anything to say prior to sentencing.¹²⁸ The Court expressly declined to determine whether a defendant’s affirmative request to speak would raise a constitutional issue if that request were denied.¹²⁹

In McGautha v. California,¹³⁰ petitioner Crampton argued that Ohio’s single procedure for determining guilt and penalty issues in a death penalty case deprived him of his right to allocution on penalty issues because he could not address the jury without suffering adverse consequences in the determination of his guilt.¹³¹ Crampton did not specifically request permission to address the jury with regard to punishment, but chose to remain silent due to possible harm to his case on guilt issues. The Court acknowledged the question left unanswered in Hill, but noted that Crampton had not asked to speak. The Court did not resolve the issue of whether a defendant who wishes to make a statement prior to sentencing can constitutionally be denied that opportunity.¹³²

The McGautha Court noted that the allo-cution right traditionally allowed one to speak to the judge prior to the pronouncement of sentence and that Ohio statutes provided for this procedure after the jury had brought in its verdict.¹³³ The Court held that a state may constitutionally require a defendant facing the death penalty to choose between addressing the jury on punishment issues, thereby subjecting himself to cross-examination, or remaining silent on both guilt and punishment issues. Relying on Hill v. United States, the Court held that Ohio was not “required to provide an opportunity for petitioner to speak to the jury free from any adverse consequences on the issue of. guilt.” ¹³⁴

Although both Hill and McGautha recognize that the Supreme Court has not yet resolved the question presented by defendant, the decision in McGautha gives some guidance concerning the scope and importance of the allocution right. The Court’s conclusion that the allocution right does not require testimony free from adverse consequences on the issue of a defendant’s guilt implies that the right is not absolute and does not require testimony without cross-examination. Also, McGautha tacitly approved Ohio’s procedure allowing allocution to the sentencing judge and not to the jury prior to its determination of sentence.¹³⁵

Although the United States Supreme Court has not specifically answered the question of whether allocution is a constitutionally protected right, the federal courts of appeals have generally determined that the right to allocution is not a constitutionally protected right.¹³⁶ Most other jurisdictions that recognize the right of allocution consider it to be statutory in nature.¹³⁷ Apparently, only one state, Rhode Island, has held that allocution is a constitutional right. In so holding, Rhode Island relied on provisions of its state constitution rather than the federal constitution.¹³⁸ Cases in other jurisdictions have rejected similar constitutional provisions as a basis for recognizing the right of allocution as it existed at common law.¹³⁹

Utah courts have also examined the constitutionality of the right of allocution. In State v. Kelbach,140 the defendant contended that Utah’s unitary procedure for determining guilt and sentence denied him his right of allocution because he was forced to choose between his right to address the jury regarding punishment and his right against self-incrimination.¹⁴¹ We rejected the defendant’s argument that the allocution right rose to a constitutional level requiring protection equivalent to the right against self-incrimination.¹⁴² We held that the trial court did not err when it failed to ask the defendant for a statement prior to his sentencing or to afford him an opportunity to address punishment issues.¹⁴³

In State v. McClendon,¹⁴⁴ this court again addressed the requirement that a defendant be allowed to speak prior to sentencing. McClendon claimed that the trial judge had not asked him whether he had any cause why judgment should not be pronounced against him, as required by former Utah Code Ann. § 77-35-9. Like rule 22(a), section 77-35-9 required a judge to ask a defendant if he or she wished to make a statement. We held that the trial judge substantially complied with the statutory requirement of section 77-35-9 when he asked if the defendant or his attorney had anything to say.¹⁴⁵ The opinion did not address whether the right was statutory in nature or constitutional and did not specifically refer to the separate right set forth in rule 22.

In State v. Lorrah,146 the defendant argued that he was denied a “due process right of allocution.”¹⁴⁷ However, we rejected his contention without analysis.¹⁴⁸ This passing reference was not intended to give the allocution right constitutional recognition. Following the precedents set by the United States Supreme Court and the examples of other states that recognize the right as devolving from statute, we hold that the allocution right is not a constitutional one, but merely a statutory right governed by Utah Rule of Criminal Procedure 22(a).

Defendant also claims that the trial judge’s refusal to permit him to exercise his right to allocute to the jury violated the Eighth Amendment’s prohibition against cruel and unusual punishment because it prevented him from presenting relevant mitigating evidence to the jury. The Supreme Court has held in Lockett v. Ohio¹⁴⁹ and Eddings v. Oklahoma¹⁵⁰ that a state may not preclude the consideration of any relevant evidence a defendant wishes to present in mitigation.¹⁵¹ Defendant contends that by denying his request to allo-cute, the court denied him the right to present evidence of his situation, his abilities and limitations, and his humanity. The State contends that this “evidence” is cumulative and of only marginal relevance.

The claim that the denial of a defendant’s right to allocution violates the Eighth Amendment appears to be an issue of first impression. The nature of defendant’s request may provide the answer to this claim. Defendant did not request to testify to the jury, but to present an un-sworn statement without the burden of cross-examination. Many courts have previously held that an unsworn statement does not constitute “evidence” at all, but is merely a formality held over from the days when a criminal defendant was incompetent to testify in his criminal trial.¹⁵²

Further, short of the unsworn statement, the court gave defendant every opportunity to present evidence in mitigation of his penalty. The defense presented three days of testimony regarding mitigation. This testimony provided the jury with a clear picture of defendant’s life history and the difficulties he had faced. The court did not preclude defendant from presenting further evidence in mitigation at the time he requested allocution. The court offered to let defendant take the stand and testify as to the mitigating evidence in his statement. As a result, defendant had the opportunity to present and have considered all relevant evidence he proposed to offer in his allocution, including evidence of his limitations and of his humanity.

The Supreme Court has held that the right to testify may be conditioned on the right of the prosecution to' cross-examine the defendant.¹⁵³ In McGautha, the Court held that a defendant who wished to speak to the jury concerning his sentencing must subject himself to cross-examination even if it prejudices his defense in the guilt determination.¹⁵⁴ The requirements of Lockett and Eddings allowing a defendant to present evidence in mitigation of the death penalty are not without limits. Both Lockett and Eddings require that the evi dence presented relate to the issue of the appropriateness of a defendant’s penalty.¹⁵⁵ In Eddings, the evidence presented in mitigation was subject to cross-examination, foundational requirements, and prosecuto-rial scrutiny of witness credibility.¹⁵⁶ Our own case of State v. Gardner¹⁵⁷ supports the notion that mitigating evidence must relate to the proceedings at hand. In Gardner, the defense sought to introduce evidence that the victim and his friends opposed capital punishment.¹⁵⁸ We held that this evidence was not relevant to the penalty phase hearing.¹⁵⁹

Defendant’s request for allocution without prosecutorial scrutiny far exceeds the scope of mitigating evidence required by Lockett, Eddings, and Gardner. Therefore, we conclude that the court’s limitation on defendant’s ability to present mitigating evidence did not violate the Due Process Clause or the Eighth Amendment.

B. State Constitutional Issues

Defendant has cited article I, section 9 of the Utah Constitution as additional support for his claim that the trial court unconstitutionally denied his request to make a statement. Section 9 is similar to the Eighth Amendment’s prohibition against cruel and unusual punishment.¹⁶⁰

Defendant cites no authority for the argument that Utah’s constitution provides an independent basis for his claims and makes no separate argument regarding the effect of section 9 on his claim that he has a constitutional right to allocution. The Utah Constitution’s language, while different from that of the Eighth Amendment, does not prohibit cross-examination of a defendant or have any apparent connection to the specific procedure of allocution claimed by the defendant. Absent a well-briefed argument showing such a connection, we hold that Utah’s constitutional equivalent of the Eighth Amendment provides no independent basis for guaranteeing a defendant a right of allocution.¹⁶¹

We have also examined whether the trial judge’s denial of the request for allocution violated defendant’s right of self-representation. Article I, section 12 of the Utah Constitution guarantees that “[i]n criminal prosecutions the accused shall have the right to appear and defend in person and by counsel.” ¹⁶² We have previously construed this right to require that an accused have the choice to represent himself or herself in criminal cases.¹⁶³ We have not yet analyzed article I, section 12 in terms of the right of allocution. Other state courts have declined to extend similar constitutional provisions to include such a right.¹⁶⁴ Generally, other states have held that a constitutional provision guaranteeing the right “to defend in person and by counsel” merely recognizes the right of self-representation, not a separate allocution right.¹⁶⁵ These courts have held that under the constitutional or statutory provisions involved or the particular circumstances present, an accused assisted by counsel had no absolute right to address the jury.¹⁶⁶

Even if we interpret defendant’s request to implicate the right to self-representation under article I, section 12, that right is not absolute and may be denied if a defendant fails to properly invoke it prior to trial and in a clear and unequivocal manner. We have long recognized that article I, section 12 explicitly grants defendants the right to self-representation.¹⁶⁷ However, the right to self-representation under article I, section 12 has never been absolute. In the case of State v. Penderville,¹⁶⁸ we held that while a defendant has a right to represent himself in criminal cases, that right may be subject to limitations.¹⁶⁹ In discussing those limitations, we stated:

It is generally, if not universally held that the accused in a criminal proceeding who is sui juris and not mentally incompetent has the right to conduct his own defense without the aid of counsel. An accused may not, however, having once elected to proceed with the aid of counsel for purposes of delay or to obstruct the proceeding against him advance successfully an insincere claim of his right to defend in person.¹⁷⁰

Generally, the right to self-representation has been subject to limits as to the time and manner in which it may be invoked. An accused who wishes to represent himself or herself must indicate this desire to the court. The accused must ordinarily make the request or application prior to trial, framed in unequivocal terms and accompanied by a valid waiver of counsel.¹⁷¹ Additionally, the trial court must determine whether the accused has the ability to intelligently waive the right to counsel and represent him- or herself. In this case, defendant did not equivocally or timely make a request to represent himself.

Finally, the denial of allocution did not constitute reversible error. Not all errors involving constitutional rights require reversal.¹⁷² For us to hold a constitutional error harmless, it must be harmless beyond a reasonable doubt.¹⁷³ In other words, the side which benefited by the error (the prosecution) must show beyond a reasonable doubt that the error did not contribute to the verdict (or sentence) obtained.¹⁷⁴ Even under this strict standard, the State can show that the denial of allocution was harmless.

The prosecution presented many aggravating circumstances. Defendant had killed twice prior to the present homicide. He killed in the course of a rape or attempted rape. He killed for personal or pecuniary gain. The killing took place over a long period of time and involved excessive physical pain to the victim. Defendant showed no remorse regarding the killing and indicated that he would kill again. In addition to the overwhelming evidence of aggravation, the jury heard several days of testimony in mitigation of the penalty. The mitigating evidence went to defendant’s mental and emotional defects and to his poor upbringing. Defendant adequately presented his evidence of mitigation without use of his personal statement. The statement he offered to give was cumulative; it did not provide any evidence not brought out at trial. With the evidence already presented, it was not likely to influence the result. Further, defendant’s “right” to present his statement to the jury was not prohibited, merely limited by the requirement that he subject himself to cross-examination. The impact of this statement on a jury would be minimal at best, and certainly less so than the sworn testimony defendant declined to make.

C. Statutory Interpretation

Utah Rule of Criminal Procedure 22 governs a defendant’s right of allocution in Utah. That rule states, “Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment....”¹⁷⁵

This statute does not particularly address the rights of a defendant in death penalty cases. The death penalty hearing procedure is governed by Utah Code Ann. § 76-3-207, which specifies the order for presenting evidence in the proceeding. This procedure does not provide specifically for a right of allocution and does not provide a procedure for a defendant to allocute to the jury.¹⁷⁶

The majority of state and federal courts have determined that allocution is a statutory right that is governed by the statutes defining the right.¹⁷⁷ States with similar death penalty statutes and similar allocution statutes have held that the opportunity to address the sentencing judge after the jury verdict of death but before sentence is pronounced satisfies the statutory right of allocution.¹⁷⁸ These states have not recognized an allocution right before the jury retires to determine the verdict. This follows the common law practice of allocution, where the defendant addressed the judge prior to sentencing but after the jury returned a verdict of death.¹⁷⁹

The process of allocuting to a sentencing judge, as opposed to the sentencing jury in a death penalty case, also comports more closely with the language of Utah’s statute. Although both the jury and the court “impose” sentence, under Utah’s death penalty statute the language of rule 22(a) appears to be directed to the procedure of the court, not to the presentation to the jury. Other authorities support the proposition that the judge imposes sentence, although the jury may make the decision as to what penalty shall be given:

A “judgment” is the adjudication by a court, based upon the verdict of a jury, upon the plea of a defendant, or upon its own finding following a nonjury trial, that the defendant is guilty or not guilty; a “sentence” is the pronouncement by a court of the penalty imposed upon the defendant after a judgment of guilty. A judgment of guilty becomes final when sentence is pronounced.¹⁸⁰

Hence, statements the defendant made before the trial court imposed the death sentence satisfied the language and purpose of rule 22(a).

Even if we determine that the trial court erred by refusing Young’s request to allo-cute to the jury, the error would not require a new penalty phase. Only those errors that are harmful or prejudicial to the outcome of a trial or penalty phase provide grounds for granting a new hearing or overturning a conviction.¹⁸¹ We have held that “the standard for dealing with non-constitutional error is that [the court] will not reverse a conviction unless the error is substantial and prejudicial in the sense that there is a reasonable likelihood that in its absence there would have been a more favorable result for the defendant.” ¹⁸² We have determined above that the denial of defendant’s allocution is harmless under the higher standard for constitutional error.¹⁸³ Therefore, any error is also harmless under a statutory harmless error standard.

XVI. REBUTTAL BY PROSECUTION DURING PENALTY PHASE

Defendant argues that the trial court erred in allowing the prosecution to present rebuttal argument at the penalty phase hearing following the closing arguments of the defense. Defendant bases his claim on the language of Utah’s death penalty sentencing statute, Utah Code Ann. § 76-3-207. This section outlines the nature of the capital sentencing proceeding and the evidence that may be presented there. It provides in pertinent part, “The state’s attorney and the defendant shall be permitted to present argument for or against sentence of death.”¹⁸⁴ Defendant contends that this language does not allow for rebuttal argument by the prosecution.

In addition to section 76-3-207, the capital sentencing procedure is also subject to the Utah Rules of Criminal Procedure. Rule 1(b) defines the scope of these rules and statés that they “shall govern the procedure in all criminal cases in the courts of this state except juvenile cases.” ¹⁸⁵ Rule 17(g)(7) governs criminal trial procedures. This rule provides that a cause will be submitted to the jury after opening argument by the prosecution, argument by the defense, and a closing response by the prosecution. By virtue of rule 1, this section applies to the penalty phase of defendant’s trial. Therefore, although section 76-3-207 provides that both parties may argue their respective positions on the death penalty issue, the manner in which the arguments proceed is governed by the rules of criminal procedure. Under these rules, the trial court correctly allowed the prosecution its closing response.

XVII. PENALTY PHASE INSTRUCTIONS

Defendant bases several claims of error on the trial court’s selection of instructions given to the jury in the penalty phase. We address these claims separately below.

A. Instruction on Mercy or Sympathy

Defendant first objects to the trial court’s refusal to give his proffered instructions concerning the use of mercy or sympathy in reaching the jury’s verdict. Defendant submitted proposed instruction number 5, which would have instructed the jury that mercy or sympathy could guide their decision in the penalty phase.¹⁸⁶ The trial court refused to give this instruction and instead gave one requiring the jury to make its decision based upon the evidence produced in the penalty phase, without resort to sympathy or emotion. Defendant claims that the combination of the judge’s instruction regarding antisympathy and his refusal to give the requested sympathy instruction caused the jury to disregard the evidence produced in mitigation during the penalty phase. Defendant claims that this violated his right to be free from cruel and unusual punishment under the Eighth Amendment to the United States Constitution and under article I, section 9 of the Utah Constitution.

Defendant bases his claim on Penry v. Lynaugh,187 Lockett v. Ohio,188 and Ed-dings v. Oklahoma,¹⁸⁹ all of which vacated the death penalty sentences of the respective defendants because the sentencing procedures used did not allow the sentencing bodies to hear and fully consider the mitigating evidence offered. Defendant argues that these cases require a jury to consider sympathy for the defendant during the penalty phase and to consider any mercy or sympathy arising from the mitigating evidence in reaching their verdict.

Defendant’s reliance on these cases is misplaced. The United States Supreme Court has specifically rejected the argument that these cases require a jury to consider sympathy in reaching its verdict. In Saffle v. Parks,190 the Court explained that these decisions did not require mercy and did not prohibit an antisympathy instruction during the penalty phase.¹⁹¹ Because Saffle arose on a petition for habeas corpus, the Court declined to create a “new rule” concerning sympathy that was not present in the former cases.¹⁹² The Court further rejected petitioner Park’s reasoning that an antisympathy instruction violated his rights because it barred the jurors from considering his mitigating evidence. It distinguished between allowing a jury to consider mitigating evidence and guiding jurors as to how they should consider the evidence. The Court upheld an antisympa-thy instruction because reliable, accurate, and nonarbitrary sentencing necessarily requires a “ ‘moral inquiry into the culpability of the defendant, and not an emotional response to the mitigating evidence.’” ¹⁹³ We follow the reasoning and holding of Saffle and hold that the federal constitution does not prohibit an antisympathy instruction, nor does it require an instruction that the jurors may be guided by mercy or sympathy.

Defendant also argues that the Utah Constitution requires the trial court to instruct the jury that it may be swayed by mercy or sympathy. He argues that the instruction is required by our holdings in State v. Wood¹⁹⁴ and State v. Holland.195 These cases require a jury to impose a life sentence unless the prosecution has proved beyond a reasonable doubt that death is justified and appropriate under all the circumstances.¹⁹⁶ Defendant claims that the emphasis placed on human dignity and the high value of human life in the Holland and Wood opinions requires an instruction promoting mercy or sympathy in capital sentencing proceedings.

Nothing in the Wood or Holland opinion or in Utah law requires the instruction proposed by defendant. The right of a defendant to present and have the jurors consider mitigating evidence does not entitle the defendant to make a general appeal to the jury’s sympathy or emotions.¹⁹⁷ The purpose of the capital sentencing proceeding is to channel the jury’s discretion regarding the sentence to avoid arbitrary and capricious results in application of the death penalty.¹⁹⁸ An instruction that asks the jury to determine the sentence based upon emotions or sympathy encourages arbitrary application of the death penalty, not the channeled discretion contemplated by the death-sentencing procedure.¹⁹⁹ The careful effort in the sentencing proceeding to focus on evidence concerning the defendant’s background, character, circumstances, and the nature of the crime committed is wasted if the jury is instructed to make a purely emotional decision instead of a reasoned response to the evidence presented.²⁰⁰ Consideration of a defendant’s mitigating evidence does not require the application of emotions or prejudice. We have previously disapproved of attempts to appeal to a jury’s raw emotions rather than focusing on the evidence in a capital case.²⁰¹ We continue to adhere to the principle that the capital sentencing determination is not the place for an arbitrary decision based on emotion or prejudice.

Moreover, the instructions given did not prohibit the jury from considering defendant’s mitigating evidence. The instructions as a whole requested the jury to weigh the aggravating and mitigating evidence and to consider the nature and circumstances of the crime and defendant’s character. The antisympathy instruction told the jurors to base their decision on the evidence presented and not on “mere sentiment, conjecture, sympathy, passion, prejudice, public opinion, or public feeling.” This instruction accurately channeled the jury’s discretion to the aggravating and the mitigating evidence presented to it and ensured that it would base its decision on that evidence, not on emotion or caprice.

B. Instruction on the Wood Test’s Second Prong

Defendant contends that the jury was not adequately instructed concerning its duty under the second prong of State v. Wood.202 This prong requires the jury to determine that the prosecution has proved beyond a reasonable doubt that death is the only appropriate penalty under all the circumstances.²⁰³ The trial court gave two instructions concerning the Wood test. Instruction 6 stated the Wood standard. It told the jurors that they must find, beyond a reasonable doubt, both that the aggravating factors outweigh the mitigating factors and that death is the only appropriate penalty. Instruction 7 explained the weighing process the jury must employ in applying the Wood test. Defendant claims that instruction 7 blurs the distinction between the two prongs of the Wood test and encourages the jurors to apply only the first part of the test.

State v. Wood established the requirement that a jury make two separate findings prior to imposing a sentence of death.²⁰⁴ First, a jury must find beyond a reasonable doubt that the aggravating circumstances presented in the penalty phase outweigh the mitigating circumstances. Second, a jury must find beyond a reasonable doubt, after considering all aspects of the case, including the aggravating and mitigating circumstances presented, that the imposition of the death penalty is justified and appropriate in the circumstances.²⁰⁵ In State v. Holland,206 we emphasized the importance of both prongs of the Wood test. We noted that employing the first prong alone could produce an unduly broad application of the death penalty and could result in a mere numerical counting of the aggravating and mitigating circumstances in each case.²⁰⁷ The second prong of the Wood test serves the important function of allowing the jurors to look at the totality of the case in light of their societal values and personal experiences.²⁰⁸

It is well established that the trial court must instruct the jury on the law applicable to the facts of the case before it.²⁰⁹ However, the language employed in Holland concerning the second prong of the Wood test need not be mechanically applied in every case. In determining whether the trial judge properly instructed the jury regarding the Wood test, we examine the totality of the instructions given to the jury to assess whether those instructions adequately conveyed the law applicable to the case.²¹⁰

Defendant primarily objects to the last paragraph of penalty phase instruction 7.²¹¹ Though not a model of clarity, this paragraph correctly analyzes the process for weighing aggravating and mitigating circumstances and the need for the jurors to assess those circumstances in the second portion of the Wood test. Further, instruction 7 was not the only instruction given concerning the prongs of the test. Instruction 6 clearly delineated both prongs of the Wood test and instructed the jury to carefully consider both steps in its deliberating process.²¹² Also, the trial court gave instruction 8, which emphasized the need for finding beyond a reasonable doubt that both prongs of the test had been met.²¹³ Therefore, as a the instructions given adequately informed the jury of its duty and guided the jury in its deliberation as to each prong of the Wood test.

Additionally, defendant argues that the instructions given should have informed the jury that it could consider any lingering doubts it had as to defendant’s guilt. The Supreme Court rejected this argument in Franklin v. Lynaugh.214 We agree with the Court’s reasoning and holding in that decision and adopt it here. The penalty phase focuses on an assessment of the defendant’s character after he has been found guilty beyond a reasonable doubt.²¹⁵ Defendant was not entitled to an instruction regarding lingering or residual doubts given to the jury during the penalty phase of his case.

C. Incorporation of Guilt Phase Instructions

Defendant contends that incorporating the guilt phase instructions into the penalty phase produced several erroneous instructions. In addition to his claims concerning the antisympathy instruction discussed above and his claims concerning the reason able doubt instructions that are discussed below, he claims that the incorporation of the guilt phase instructions tended to confuse the jury and to misdirect its attention to the evidence produced in the guilt phase as opposed to that of the penalty phase.

Defendant’s argument fails for two reasons. First, we have previously held that the State may use the aggravating circumstances found at the guilt phase to support its case during the penalty phase.²¹⁶ Second, defendant has failed to explain how the instructions confused the jury when their applicability was facially apparent. Although defendant lists a number of instructions from the guilt phase that were arguably not applicable to the penalty phase, he does not explain why these instructions would confuse the jury. We find no error in the court’s incorporation of the guilt phase instructions.

D. Reasonable Doubt Instructions

' Defendant claims that the guilt phase instructions concerning reasonable doubt violated his right to due process. In addition, he claims that penalty phase instruction 8 incorrectly stated the standard of proof beyond a reasonable doubt. We have previously discussed defendant’s claims concerning the guilt phase reasonable doubt instructions in section IX of this opinion and rely on our analysis there. Defendant’s rights were adequately protected by the instructions given. The instruction given in the penalty phase essentially mirrored those instructions given in the guilt phase.²¹⁷ The penalty phase reasonable doubt instruction adequately stated the standard for proof beyond a reasonable doubt and adequately safeguarded defendant’s due process rights.

XVIII. PENALTY PHASE VERDICT FORMS

At the conclusion of the penalty phase, the court gave the jury two verdict forms. One indicated that the jurors had reached a unanimous verdict finding death; the other indicated that they were unable to reach a unanimous verdict of death. Defendant claims that the jurors should have been given an additional verdict form that allowed them to register a unanimous finding of life. Defendant argues that the absence of this form focused the jury deliberations on death, as opposed to life, and created a presumption that the sentence of death would be imposed unless one of the jurors voted against it.

Life imprisonment, not the death penalty, is the presumed sentence in a capital homicide case.²¹⁸ The court instructed the jury that the presumed sentence was life imprisonment unless each juror was persuaded beyond a reasonable doubt that death was the only appropriate and justified penalty.²¹⁹ The trial court correctly informed the jury of the presumption of life in the sentencing phase. We fail to see how the verdict form requested would have removed any presumption of death. On the contrary, such a verdict form may have confused the jurors and created the impression that they must vote unanimously for life to impose that penalty.²²⁰ The trial court correctly refused to provide the third verdict form.

XIX. MERGING OF THEFT CONVICTION

Defendant claims that his conviction for theft should merge with his murder conviction because theft is a lesser included offense of first degree murder under the aggravating circumstance that the murder was committed for personal or pecuniary gain. A defendant cannot be convicted of both first degree murder and a lesser included offense of that crime.²²¹ We have determined that one crime is a lesser included offense of another “where the two crimes are ‘such that the greater cannot be committed without necessarily having committed the lesser.’ ” ²²² This court examined the relationship between lesser included offenses and the aggravating circumstances under the first degree murder statute in the case of State v. Shaffer.²²³ Although we held in Shaffer that the defendant’s conviction of robbery merged with his conviction of murder under aggravating circumstance (h) in Utah Code Ann. § 76-5-202, we stated that a defendant could be convicted of a crime that might also serve as the basis for an aggravating circumstance if the prosecution did not rely on that crime for proof of the aggravating circumstance.²²⁴

In determining whether the State relied on proof of the theft for its proof of the aggravating circumstance, it becomes necessary to examine what was actually proved at trial.²²⁵ The jury convicted defendant of theft of a motor vehicle. The jury also convicted him under the aggravating circumstances in subsections (d) (rape), (h) (prior felony), and (f) (pecuniary or other personal gain). Evidence at trial was sufficient to prove aggravating factors (d) and (h) and also sufficient to prove that in addition to the victim’s motor vehicle, defendant took her credit cards, her purse, and her money.²²⁶ This additional evidence independently supports a finding of murder for gain under subsection (f). The crime of murder in the first degree under subsection (f) could have been proved absent the theft conviction. The trial court correctly determined that the theft conviction should not merge with the first degree murder conviction.

XX. CUMULATIVE ERROR

Defendant claims that the cumulative effect of errors during the guilt and penalty phases of his trial require a new penalty hearing. The doctrine of cumulative error allows for a new trial when standing alone, no error is severe enough to warrant a new trial, but when considered together, the errors denied the defendant a fair trial.²²⁷ This court ascribes to the doctrine of cumulative error, but we do not believe that the doctrine warrants a new trial or penalty hearing in this case. Although defendant has claimed many errors on appeal, we have determined that the majority of his claims do not constitute error; the remainder are merely harmless error. We have examined the effect of the harmless errors and determine that the cumulation of these errors did not result in a fundamentally unfair trial.²²⁸ Therefore, the doctrine of cumulative error does not afford defendant relief.²²⁹

We have duly reviewed defendant's other claims of error raised in the context of the points above and find them to be without merit.²³⁰

Associate Chief Justice Howe concurs in this opinion, and we would affirm the conviction and sentence. However, a majority of the court, in the opinions that follow, reverse and remand for a new trial.

HOWE, Associate C.J., concurs.

1

. Utah Code Ann. § 76-5-202.

2

. Utah Code Ann. § 76-6-404.

3

. Bouie v. City of Columbia, 378 U.S. 347, 351, 84 S.Ct. 1697, 1701, 12 L.Ed.2d 894 (1964) (quoting United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811-12, 98 L.Ed. 989 (1954)).

4

. See generally State v. Schreuder, 726 P.2d 1215, 1226-27 (Utah 1986) (subsection satisfied when defendant believed she wojild inherit under deceased’s will).

5

. Subsection (d) makes a murder committed during the commission of or attempt to commit rape an aggravating circumstance.

6

. A previous felony conviction involving violence to a person is an aggravating circumstance under subsection (h).

7

. See State v. Gardner, 789 P.2d 273, 279-80 (Utah 1989) (no need to reach constitutionality of subsection (h) when defendant was also convicted of two other aggravating circumstances), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990); State v. Shaffer, 725 P.2d 1301, 1307 (Utah 1986) (no need to consider constitutionality of subsection (f) when defendant was also convicted of robbery, which constitutes an aggravating circumstance under subsection (d)).

8

. 789 P.2d 273, 279 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

9

. 819 P.2d 781, 796-97 (Utah 1991).

10

. Gardner, 789 P.2d at 279-80.

11

. James, 819 P.2d at 796-97.

12

. In so holding, we also note that the documents presented in support of the prior conviction conformed to rule 902 of the Utah Rules of Evidence and were admissible to prove the existence of the prior convictions.

13

. See Gardner, 789 P.2d at 278-79; State v. Holland, 777 P.2d 1019, 1024-26 (Utah 1989); State v. Bishop, 753 P.2d 439, 460 (Utah 1988); State v. Tillman, 750 P.2d 546, 572 (Utah 1987); Andrews v. Morris, 677 P.2d 81, 83-84 (Utah 1983); State v. Wood, 648 P.2d 71, 79-85 (Utah 1981), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982); Andrews v. Morris, 607 P.2d 816, 823-24 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); Pierre v. Morris, 607 P.2d 812, 814-15 (Utah), cert. denied, 449 U.S. 891, 101 S.Ct. 254, 66 L.Ed.2d 120 (1980); State v. Andrews, 574 P.2d 709, 710 (Utah 1977), reh’g denied, 576 P.2d 857 (Utah), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); State v. Codianna, 573 P.2d 343, 348 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978); State v. Pierre, 572 P.2d 1338, 1345-46 (Utah 1977), reh’g denied, 576 P.2d 857 (Utah), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978). We note that these cases did not address defendant’s contention that the death penalty statutes are unconstitutional because they do not provide for automatic review by a federal court. This argument is frivolous. The doctrine of separation of powers prohibits the state of Utah from requiring, the federal courts to review a Utah conviction. Neither this court nor the Utah Legislature has the authority to define the jurisdiction of the federal courts. See U.S. Const, art. I, § 8; U.S. Const, art. Ill, amend. X; Utah Const, arts. VI, VIII.

14

. See, e.g., Bishop, 753 P.2d at 460; Tillman, 750 P.2d at 572.

15

. Utah Code Ann. §§ 78-46-1 to -22.

16

. U.S. Const, amend. VI; Utah Const, art. I, §§ 7, 10, 12, 24; Utah Const, art. V, § 1. Defendant makes no argument concerning the state constitutional issues other than citing to the relevant sections. His failure to engage in any briefing or analysis of the state constitutional issues is dispositive. State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988).

17

. See Duren v. Missouri, 439 U.S. 357, 363-64, 99 S.Ct. 664, 668-69, 58 L.Ed.2d 579 (1979); Taylor v. Louisiana, 419 U.S. 522, 527-28, 95 S.Ct. 692, 696-97, 42 L.Ed.2d 690 (1975); Hoyt v. Florida, 368 U.S. 57, 59, 82 S.Ct. 159, 161, 7 L.Ed.2d 118 (1961).

18

. Duren, 439 U.S. at 367-68, 99 S.Ct. at 670-71.

19

. Id. at 364, 99 S.Ct. at 668.

20

. Defendant cites no cases so holding, and we are unable to locate any.

21

. Order, State v. Malin, CR 86-827 (October 28, 1986). The court found in the Matin case that Hispanics were a distinctive group, comprising 4.99 percent of Salt Lake County’s general population. Hispanics comprised 4.31 percent of the population over eighteen years of age and potentially eligible to serve as jurors.

22

. Id.; see also State v. Tillman, 750 P.2d 546, 575-76 (Utah 1987) (holding that blacks and Asians are not numerous enough in Salt Lake County to constitute a distinctive group for fair cross-section purposes). By citing these statistics, we do not necessarily hold that Hispanics constitute a cognizable group within the state of Utah.

23

. Defendant did produce evidence that the qualified jury pool drawn for March 1989 contained 2.74 percent Hispanics, less than the 4.31 percent in the community at large. However, defendant attributed this lower percentage to the use of outdated address lists in contacting potential jurors. The list used to contact the May jurors was compiled on March 21, 1989, nine days prior to the selection of the May jury pool. Therefore, defendant’s claim with regard to the outdated list does not apply to the May panel.

24

.See Taylor, 419 U.S. at 538, 95 S.Ct. at 701-02; Lockhart v. McCree, 476 U.S. 162, 173, 106 S.Ct. 1758, 1764-65, 90 L.Ed.2d 137 (1988). Defendant cites Batson v. Kentucky, 476 U.S. 79, 95, 106 S.Ct. 1712, 1722, 90 L.Ed.2d 69 (1990), for the proposition that he need only show under-representation on his' own jury venire in order to make his claim. While it is true that a defendant need only bring in evidence regarding the selection process used for his own veni-re, that evidence must still show a systematic exclusion of a distinctive group to violate the fair cross-section requirement. A showing of systematic exclusion requires more evidence than a bare numerical showing from a single venire. This evidence may be a showing that the selection process affords an opportunity for purposeful discrimination or that the process regularly excludes a cross-section of the community. Batson, 476 U.S. at 94-95, 106 S.Ct. at 1721-22. A single instance of underrepresentation does not make a prima facie case that a group was systematically excluded.

25

. See Utah Code Ann. § 78-46-16(2).

26

. Defendant also claims that the failure to appoint a proper panel in March violated his right to a speedy trial and his right to be tried within 180 days under the Interstate Disposition on Detainers Act, Utah Code Ann. §§ 77-29-1 to - 11. We have reviewed this claim, including defendant’s supplemental affidavit regarding the claim, and agree with the trial court that defendant affirmatively waived these rights.

27

. Utah Code Ann. § 78-46-8 requires that the court determine all instances of disqualification.

28

. Former section 78-46-12(3), which applies to this case, required juror qualification forms to ask whether the prospective juror was a citizen of the United States; a resident of the county; able to read, speak, and understand the English language; without any physical or mental disability impairing his or her capacity to render jury service; not a convicted felon; and not on active duty in the military service of the United States. If these criteria were met, the person was considered qualified for jury service under section 78-46-2.

29

. Utah Code Ann. § 78-46-15 states that the court may excuse jurors for hardship or undue burden.

30

. See Utah Code Ann. §§ 78-46-10 to -12 (1989).

31

. Utah Code Ann. § 78-46-4(5) (1989).

32

. Id.

33

. State v. Bishop, 753 P.2d 439, 456 (Utah 1988); State v. Lafferty, 749 P.2d 1239, 1253 (Utah 1988); State v. Valdez, 748 P.2d 1050, 1056-57 (Utah 1987); State v. Schreuder, 726 P.2d 1215, 1225-26 (Utah 1986); State v. Moore, 697 P.2d 233, 237 (Utah 1985); State v. Norton, 675 P.2d 577, 588-89 (Utah 1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1923, 80 L.Ed.2d 470 (1984); State v. Codianna, 573 P.2d 343, 351 (Utah 1977), cert. denied, 439 U.S. 882, 99 S.Ct. 219, 58 L.Ed.2d 194 (1978).

34

. 725 P.2d 1301, 1309 (Utah 1986).

35

. See, e.g., Schreuder, 726 P.2d at 1225-26.

36

. See Utah R.Crim.P. 18(e)(13)-(14).

37

. In State v. Moore, 697 P.2d at 237, we stated;

[T]here is some counterbalancing under Utah law_ [A] trial judge must also ask prospective jurors whether they would always vote for a death penalty upon a conviction of first degree murder_ [W]e cannot conclude that a jury of persons who may impose a death sentence, but are not committed in advance to do so, will be less than fair and impartial in determining guilt.

Furthermore, the Legislature has established capital punishment as one of the options in a first degree murder case. Clearly the legislative policy would be undermined if jurors were allowed to sit who by conscience could never impose the death penalty.

38

.In noting that death qualification advances a significant state interest, we do not intend to imply in any way that persons excluded due to their convictions on the death penalty constitute a distinctive cross-section of the community under the Utah Constitution or that defendant is entitled to have his individual jury panel mirror the community’s general beliefs concerning the death penalty. We adhere to our prior holdings regarding the nature of the fair cross-section requirements. See, e.g., Bishop, 753 P.2d at 457; State v. Tillman, 750 P.2d 546, 575 (Utah 1987).

39

. 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

40

. Id. at 87-88, 106 S.Ct. at 1718.

41

. Lockhart v. McCree, 476 U.S. 162, 174, 106 S.Ct. 1758, 1765, 90 L.Ed.2d 137 (1986); State v. Bishop, 753 P.2d 439, 457 n. 41 (Utah 1988).

42

. 753 P.2d at 456-57 & n. 41.

43

. Id. at 451; State v. Jones, 734 P.2d 473, 474 (Utah 1987); State v. Norton, 675 P.2d 577, 589 (Utah 1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1923, 80 L.Ed.2d 470 (1984).

44

. Bishop, 753 P.2d at 451; Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981); State v. Jonas, 793 P.2d 902, 906 (Utah Ct.App.), cert. denied, 804 P.2d 1232 (Utah 1990).

45

. Jones, 734 P.2d at 475; Norton, 675 P.2d at 589.

46

. Bishop, 753 P.2d at 451; State v. Lacey, 665 P.2d 1311, 1312 (Utah 1983).

47

. Bishop, 753 P.2d at 452 (jury voir dire must be read as a whole).

48

. Id. at 452; State v. Frame, 723 P.2d 401, 406 (Utah 1986); Norton, 675 P.2d at 589; State v. Malmrose, 649 P.2d 56, 61 (Utah 1982).

49

. Wainwright v. Witt, 469 U.S. 412, 425-26, 105 S.Ct. 844, 852-53, 83 L.Ed.2d 841 (1985); State v. Bishop, 753 P.2d 439, 451 (Utah 1988); Jenkins v. Parrish, 627 P.2d 533, 536 (Utah 1981).

50

. Adams v. Texas, 448 U.S. 38, 44, 100 S.Ct. 2521, 2525-26, 65 L.Ed.2d 581 (1980); Witherspoon v. Illinois, 391 U.S. 510, 522-23, 88 S.Ct. 1770, 1777-78, 20 L.Ed.2d 776 reh'g denied, 393 U.S. 898, 89 S.Ct. 67, 21 L.Ed.2d 186 (1968).

51

. Utah R.Crim.P. 18(e)(2).

52

. For example, when Hoffman was questioned about her ability to stand by her decisions, the following dialogue took place;

Q. If you were selected as a juror, and there were twelve of you on the jury, and you came to the time to make the decision, and eleven of you voted for the death penalty, and you voted, or you didn’t know. Let’s say you really were hesitant about it. Do you feel like you’d be able to stick to your guns about it, or would that kind of situation cause you to have self doubts about your own judgment, or how would you feel?

A. I have that happen to me a lot. And I do tend to have self doubts, and would wonder, well maybe I’m wrong. Like I said, I have a hard time with decisions. I don’t think my decision is important, and my opinion is important. My self esteem is real low. Which is obvious, I’m sure. But I do have a hard time with decision making. So, most of the time I’ll follow, regardless of how I feel. Sometimes I just go with the flow, so to speak.

53

.Hoffman stated:

A. Remembering could be a problem. I have a very bad memory, and I have a wandering mind, where I can’t even read a book, because two pagess [sic] later I've got to go back, and start all over. I have a bad problem with a wandering mind. And I can’t remember. . I’m the person with the sunglasses on the head, and can't find them.

These answers indicate that her memory problems extended beyond the ability to decide on the death penalty issue and would affect her general ability to hear and decide the case. Therefore, regardless of her views on the death penalty, her inability to remember would appear to be sufficient grounds to excuse her for cause.

54

. Utah Code Ann. § 76-5-202(l)(f).

55

. See State v. Bishop, 753 P.2d 439, 477 (Utah 1988); State v. Knight, 734 P.2d 913, 919 (Utah 1987); State v. Banner, 717 P.2d 1325, 1335 (Utah 1986); State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984); Utah R.Crim.P. 30.

56

. Bishop, 753 P.2d at 477 (citing Knight, 734 P.2d at 920).

57

. See id.

58

. State v. Johns, 615 P.2d 1260, 1263-64 (Utah 1980).

59

. See State v. Moton, 749 P.2d 639, 643-44 (Utah 1988); Johns, 615 P.2d at 1264.

60

. U.S. Const, amend. V.

61

. 774 P.2d 1141, 1148-49 (Utah 1989) (Stewart, J., concurring in the result).

62

. Id.

63

. State v. Eagle, 611 P.2d 1211, 1213 (Utah 1980) (no apparent reason to mandate one particular instruction on reasonable doubt); see also Johnson, 774 P.2d at 1147-49; State v. Ireland, 773 P.2d 1375, 1380 (Utah 1989); State v. Standiford, 769 P.2d-254, 266 (Utah 1988) (framing of instructions lies in the trial court’s discretion).

64

. Instruction 15 reads: “The law does not permit you to reach a verdict upon speculation, conjecture, or mere possibilities. Before you can make a finding of guilt, the State must convince you of the defendant’s guilt beyond a reasonable doubt."

65

. Johnson, 774 P.2d at 1148-49 (arguing that a mere possibility may indeed establish a reasonable doubt).

66

. Johnson, 774 P.2d at 1146 & n. 16; State v. Tillman, 750 P.2d 546, 561 (Utah 1987).

67

. Utah Code Ann. § 77-14-3(1) requires a defendant to give notice of an insanity defense at least thirty days prior to trial. The trial court did not make a ruling regarding the timeliness of the motion.

68

. Dr. Lancaster testified that defendant had a tendency to lie and puff himself up to fill in gaps in his memory and to make himself appear smarter. Although Dr. Lancaster testified that defendant was mentally deficient, the thrust of the testimony was that defendant’s confession was unreliable and should not be regarded as conclusive evidence that defendant committed the crime charged.

69

. Utah R.Crim.P. 21.5(2)(a).

70

. See Utah Code Ann. § 77-14-3(1). We do not reach the issue of whether defendant’s March 7, 1989, notice was sufficient under this statute, since that notice was withdrawn on March 22, 1989.

71

. 749 P.2d 621 (Utah 1987).

72

. Id. at 627.

73

. Id. at 623.

74

. See Utah R.Crim.P. 21.5(3). See generally Utah Legislative Survey—1983, 1984 Utah L.Rev. 115, 156-57.

75

. Ford v. Wainwright, 477 U.S. 399, 401, 106 S.Ct. 2595, 2596-97, 91 L.Ed.2d 335 (1986).

76

. Penry v. Lynaugh, 492 U.S. 302, 340, 109 S.Ct. 2934, 2958, 106 L.Ed.2d 256 (1989). It is interesting to note that the mental illness and retardation described in Penry is similar in severity and effect to defendant Young’s. See id. at 307-10, 109 S.Ct. at 2941-42.

77

. Instruction 14 explained that the jury could find as mitigating evidence the fact that defendant was impaired by mental illness. The instruction then related several circumstances of defendant’s claimed mental illness as possible mitigating circumstances.

78

. A GAMI verdict would have afforded defendant an additional hearing to determine his mental state. Defendant has not shown that he meets the additional requirements for treatment at the Utah State Hospital pending the execution of his sentence. Therefore, the provisions of rule 21.5 allowing for imprisonment at the state hospital are not a sufficient basis for assuming prejudice to defendant.

79

. During his opening statement, the prosecutor stated:

The State does not intend to bring in every single piece of evidence in this case. The State will bring in the evidence that will indicate to you what occurred that evening. I don’t intend to bring in every blood splatter on the wall. I don't intend to bring in every piece of blood pooling on the floor, but I will bring in to you enough evidence to you [sic] to prove what occurred that night.

80

. The prosecutor questioned State’s witness Detective Couch regarding his investigation of the case. During questioning, the prosecutor asked:

Q: ... Detective Couch, as numerous as those photos were that we went through, they are not all, each and every photograph that was taken of the scene, are they?

A: No. They would be just a small portion.

Q: And as many of the exhibits that you have testified about, the physical evidence that we have brought into court today, these are not every single piece of evidence that was seized at the scene; is that correct?

A: That’s correct.

Q: What portion of it would you expect it to be?

A: Approximately a third to maybe a half.

81

. State v. Holland, 777 P.2d 1019, 1026 (Utah 1989).

82

. Id.

83

. 773 P.2d 29, 35 (Utah), cert. denied, 493 U.S. 814, 110 S.Ct. 62, 107 L.Ed.2d 29 (1989).

84

. Id. at 35-36.

85

. See State v. Rimmasch, 775 P.2d 388, 407 (Utah 1989); State v. Verde, 770 P.2d 116, 122 (Utah 1989); State v. Bell, 770 P.2d 100, 106 (Utah 1988) (all regarding standard for harmless error).

86

. State v. Dibello, 780 P.2d 1221, 1225 (Utah 1989); see also State v. Troy, 688 P.2d 483, 486 (Utah 1984); State v. Valdez, 30 Utah 2d 54, 60, 513 P.2d 422, 426 (1973).

87

. Utah R. Professional Conduct 3.4(e).

88

. See United States v. Young, 470 U.S. 1, 18, 105 S.Ct. 1038, 1047-48, 84 L.Ed.2d 1 (1985).

89

. Troy, 688 P.2d at 486 (citing State v. Seeger, 4 Or.App. 336, 479 P.2d 240 (1971)).

90

. Dibello, 780 P.2d at 1225; State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988).

91

. 475 U.S. 560, 568-69, 106 S.Ct. 1340, 1345-46 (1986).

92

. 823 F.2d 1439, 1450-52 (11th Cir.1987).

93

. See Holbrook, 475 U.S. at 561-62, 106 S.Ct. at 1341-42; Estelle v. Williams, 425 U.S. 501, 503-04, 96 S.Ct. 1691, 1692-93, 48 L.Ed.2d 126, reh’g denied, 426 U.S. 954, 96 S.Ct. 3182, 49 L.Ed.2d 1194 (1976); Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 1061, 25 L.Ed.2d 353, reh’g denied, 398 U.S. 915, 90 S.Ct. 1684, 26 L.Ed.2d 80 (1970). Elledge v. Dugger also relies almost exclusively on cases in which the shackling issue was raised in the guilt phase of the trial. 823 F.2d at 1454 & n. 5 (Edmondson, J., dissenting in part).

94

. See, e.g., Allen, 397 U.S. at 344, 90 S.Ct. at 1061.

95

. Duckett v. State, 104 Nev. 6, 752 P.2d 752, 755 (1988). A jury may expect that a person it has just found guilty of murder will be restrained in some fashion. Cf. Holbrook, 475 U.S. at 571, 106 S.Ct. at 1347; Elledge, 823 F.2d at 1454 (Edmondson, J., dissenting in part).

96

. Duckett, 752 P.2d at 755; Bello v. State, 547 So.2d 914, 918 (Fla.1989).

97

.See Duckett, 752 P.2d at 755. Duckett upheld the use of shackles on a defendant during his penalty phase hearing although the only rationale for the restraints was the murder conviction for which he was being sentenced. We believe that the conviction alone should not be sufficient evidence of violence to sustain shackling a defendant during the penalty phase, but that the trial court should look at the circumstances of the proceeding as a whole.

98

. Gates v. Zant, 863 F.2d 1492, 1501 (11th Cir.), cert. denied, 493 U.S. 945, 110 S.Ct. 353, 107 L.Ed.2d 340 (1989).

99

. State v. Clark, 675 P.2d 557, 560 (Utah 1983); State v. Velasquez, 672 P.2d 1254, 1263-64 (Utah 1983).

100

. Clark, 675 P.2d at 560.

101

. Id.

102

. State v. Lafferty, 749 P.2d 1239, 1259 (Utah 1988); see also State v. Gardner, 789 P.2d 273, 285-86 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

103

. See, e.g., State v. Tillman, 750 P.2d 546, 571 (Utah 1987).

104

. 484 U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 reh’g denied, 485 U.S. 944, 108 S.Ct. 1126, 99 L.Ed.2d 286 (1988).

105

. Id. at 244-46, 108 S.Ct. at 554.

106

. See id. Utah Code Ann. § 76-5-202 limits the class of offenders subject to the death penalty by requiring that at least one of several enumerated aggravating factors be proven at the guilt phase for conviction of a capital homicide.

107

. 770 P.2d 981 (Utah 1989).

108

. Id. at 987.

109

. Id. at 983.

110

. Id.

111

. Utah Code Ann. § 76-3-207(2).

112

. See Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 876-77, 71 L.Ed.2d 1 (1982); Lockett v. Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 2964, 57 L.Ed.2d 973 (1978).

113

. In his pro se answer, Young set forth seven reasons why he killed Mars, including an admission that he wanted her money, truck, and credit cards. He also stated repeatedly that he did not care that he had killed her.

114

. 482 U.S. 496, 107 S.Ct. 2529, 96 L.Ed.2d 440, reh’g denied, 483 U.S. 1056, 108 S.Ct. 31, 97 L.Ed.2d 820 (1987).

115

. Id. at 502-03, 107 S.Ct. 2529, 96 L.Ed.2d 440.

116

. — U.S. ---, 111 S.Ct. 2597, 2609, 115 L.Ed.2d 720, reh’g denied, 112 S.Ct. 28 (1991).

117

. Id. — U.S. at -, 111 S.Ct. at 2609.

118

. Id. (citing Snyder v. Massachusetts, 291 U.S. 97, 122, 54 S.Ct. 330, 338, 78 L.Ed. 674 (1934)).

119

. By following the holding in Payne, we do not necessarily hold that the pro se answer at issue in this case would constitute victim impact evidence. The only evidence concerning the victim’s family in the answer is a brief mention of the word sister, implying that the victim had a sister. We do not believe that this alone constitutes victim impact evidence concerning the effect of the crime on the victim’s family.

120

. Defense counsel moved to arrest the judgment of guilt and substitute a GAMI verdict, to arrest the sentence of death because defendant was mentally ill, and to merge the theft charge with the first degree murder charge.

121

. 365 U.S. 301, 81 S.Ct. 653, 5 L.Ed.2d 670 (1961).

122

.Federal rule 32(a) provides in pertinent part, "Before imposing sentence the court shall afford the defendant an opportunity to make a statement in his own behalf and to present any information in mitigation of punishment....” This rule is identical to Utah Rule of Criminal Procedure 22(a), which was formerly codified at Utah Code Ann. § 77-35-22(a).

123

. Green, 365 U.S. at 304, 81 S.Ct. at 655 (quoting Fed.R.Crim.P. 32(a)).

124

. Id.

125

. 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 reh’g denied, 369 U.S. 808, 82 S.Ct. 640, 7 L.Ed.2d 556 (1962).

126

. 28 U.S.C. § 2255.

127

. Hill, 368 U.S. at 428, 82 S.Ct. at 471.

128

. Id.

129

. Id. at 429, 82 S.Ct. at 471-72.

130

. 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), reh’g denied, 406 U.S. 978, 92 S.Ct. 2407, 32 L.Ed.2d 677 (1972).

131

. Id. 402 U.S. at 217-20, 91 S.Ct. at 1472-74.

132

. Id. at 219 & n. 23, 91 S.Ct. at 1473 & n. 23.

133

. Id. at 220, 91 S.Ct. at 1474.

134

. Id.

135

. Id.

136

. See United States v. Fleming, 849 F.2d 568 (11th Cir.1988); United States v. De La Paz, 698 F.2d 695, 697 (5th Cir.1983); Katz v. King, 627 F.2d 568, 576 (1st Cir.1980); Lunz v. Henderson, 533 F.2d 1322 (2d Cir.), cert. denied, 429 U.S. 849, 97 S.Ct. 136, 50 L.Ed.2d 122 (1976); Segura v. Patterson, 402 F.2d 249, 252 (10th Cir.1968), rev'd on other grounds, 403 U.S. 946, 91 S.Ct. 2280, 29 L.Ed.2d 856 (1971).

137

. See infra note 177 and accompanying text.

138

. Article I, section 10 of the Rhode Island Constitution grants accused persons the "liberty to speak for themselves.” This clause has been interpreted by the Rhode Island courts to require that an accused have the opportunity to address the sentencing judge prior to pronouncement of sentence on all issues "germane and of possible assistance in the determination of the sentence to be imposed.” Leonardo v. State, 444 A.2d 876, 878 (R.I.1982); see also State v. Nicoletti, 471 A.2d 613, 618 (R.I.1984); Robalewski v. Superior Court, 97 R.I. 357, 197 A.2d 751, 753 (1964).

139

. See, e.g., State v. Carr, 374 A.2d 1107, 1115-17 (Conn.1977), and cases cited therein.

140

. 23 Utah 2d 231, 461 P.2d 297 (1969), vacated in part, 408 U.S. 935, 92 S.Ct. 2858, 33 L.Ed.2d 751 (1972).

141

. Id. at 299. Utah’s current two-phase procedure for determining first a defendant’s guilt and then the sentence was adopted by the state legislature in 1973. Utah Code Ann. § 76-3-207 (enacted 1973 Utah Laws ch. 196, § 76-3-207).

142

. Id.

143

. Id.

144

. 611 P.2d 728 (Utah 1980).

145

. Id. at 729.

146

. 761 P.2d 1388 (Utah 1988).

147

. Id. at 1389.

148

. Id.

149

. 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

150

. 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

151

. Lockett, 438 U.S. at 604, 98 S.Ct. at 2964; Eddings, 455 U.S. at 114, 102 S.Ct. at 876-77.

152

. See, e.g., Ferguson v. Georgia, 365 U.S. 570, 587-91, 81 S.Ct. 756, 765-68, 5 L.Ed.2d 783 (1961), and cases cited therein.

153

. See, e.g., McGautha, 402 U.S. at 215, 91 S.Ct. at 1471; Brown v. Walker, 161 U.S. 591, 597-98, 16 S.Ct. 644, 647, 40 L.Ed. 819 (1896); State v. Anderson, 495 P.2d 804, 806 (Utah 1972); State v. Younglove, 17 Utah 2d 268, 409 P.2d 125, 126-27 (Utah 1965).

154

. McGautha, 402 U.S. at 215-17, 91 S.Ct. at 1471-72.

155

. Eddings, 455 U.S. at 113-15, 102 S.Ct. at 876-77; Lockett, 438 U.S. at 604, 98 S.Ct. at 2964-65.

156

. See generally Eddings, 455 U.S. at 105-08, 102 S.Ct. at 871-74.

157

. 789 P.2d 273 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

158

. Id. at 286.

159

. Id.

160

. Utah Const, art. I, § 9. This section reads, "Excessive bail shall not be required; excessive fines shall not be imposed; nor shall cruel and unusual punishments be inflicted. Persons imprisoned shall not be treated with unnecessary rigor.”

161

. See State v. Webb, 779 P.2d 1108, 1111 n. 4 (Utah 1989); State v. Lafferty, 749 P.2d 1239, 1247 n. 5 (Utah 1988).

162

. Utah Const. art. I, § 12.

163

. See, e.g., Lafferty, 749 P.2d at 1247-49; State v. Penderville, 2 Utah 2d 281, 272 P.2d 195, 199 (Utah 1954).

164

. For example, article I, section 8 of the Connecticut Constitution states that "the accused shall have a right to be heard by himself and by counsel." The Supreme Court of Connecticut has held that this provision was not violated where a trial court refused to allow a defendant to address the court personally prior to pronouncing sentence upon him. This provision seems to speak even more clearly to a right to personally speak to a sentencing body than to a right of self-representation, and yet the Supreme Court of Connecticut found that the allocution right was not implicated by the provision. State v. Carr, 172 Conn. 458, 374 A.2d 1107, 1115 (1977). Other examples of similar state interpretations of their constitutions may be found in Annotation, Right of defendant in criminal case to conduct defense in person, or to participate with counsel, 77 A.L.R.2d 1233, 1241 § 4 (1967), and later case service.

165

. People v. Richardson, 4 N.Y.2d 224, 226-27, 173 N.Y.S.2d 587, 588-89, 149 N.E.2d 875, 876, cert. denied, 357 U.S. 943, 78 S.Ct. 1395, 2 L.Ed.2d 1557 (1958); see also State v. Louviere, 169 La. 109, 124 So. 188, 192 (1929); State v. Brine, 160 Me. 401, 205 A.2d 12, 13 (1964); State v. Velanti, 331 S.W.2d 542, 546 (Mo.1960); Rehfeld v. State, 102 Ohio St. 431, 131 N.E. 712, 714 (1921); Foster v. State, 148 Tex.Crim. 372, 187 S.W.2d 575, 576 (Tex.1945); State v. Saari, 152 Vt. 510, 568 A.2d 344, 350-51 (1989).

166

. 21A Am.Jur.2d Criminal Law § 767 (1981).

167

. Lafferty, 749 P.2d at 1247-49; State v. Ruple, 631 P.2d 874, 875 (Utah 1981). The federal Constitution also guarantees the right to self-representation under the Sixth and Fourteenth Amendments. Faretta v. California, 422 U.S. 806, 819, 95 S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975).

168

. 2 Utah 2d 281, 272 P.2d 195 (Utah 1954).

169

. Id. at 199.

170

. Id. (citations omitted).

171

. 21A Am.Jur.2d Criminal Law § 769 (1981).

172

. Arizona v. Fulminante, — U.S. -,---, ---, 111 S.Ct. 1246, 1253-54, 1261-66, 113 L.Ed.2d 302, 317-18, 327-33, reh'g denied, — U.S. -, 111 S.Ct. 2067, 114 L.Ed.2d 472 (1991); Chapman v. California, 386 U.S. 18, 22, 87 S.Ct. 824, 827, 17 L.Ed.2d 705, reh’g denied, 386 U.S. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241 (1967); State v. Tuttle, 780 P.2d 1203, 1213 (Utah 1989).

173

. Chapman, 386 U.S. at 23-24, 87 S.Ct. at 827; Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230-31, 11 L.Ed.2d 171 (1965).

174

. Chapman, 386 U.S. at 24-25, 87 S.Ct. at 828-29; Fahy, 375 U.S. at 86-87, 84 S.Ct. at 230-31.

175

. Utah R.Crim.P. 22(a). This rule was previously codified at Utah Code Ann. § 77-35-22(a).

176

. Section 76-3-207(2) provides:

In these sentencing proceedings, evidence may be presented as to any matter the court deems relevant to sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, mental and physical condition, and any other facts in aggravation or mitigation of the penalty. Any evidence the court deems to have probative force may be received regardless of its admissibility under the exclusionary rules of evidence. The state’s attorney and the defendant shall be permitted to present argument for or against sentence of death.

177

. The following cases have recognized the right of allocution as derived from statute or from the common law. State v. Allie, 147 Ariz. 320, 710 P.2d 430, 435 (1985) (Ariz.R.Crim.P. 26.10(b)(1)); Beed v. State, 271 Ark. 526, 609 S.W.2d 898, 913 (1980); People v. Garcia, 752 P.2d 570, 575-77 (Colo.1988) (Colo.R.Crim.P. 32(b)); State v. Carr, 374 A.2d 1107, 1115-17 (Conn.1977) (Conn. Practice Book § 2330(2)); Putman v. State, 308 S.E.2d 145, 152 (Ga.1983), cert. denied, 466 U.S. 954, 104 S.Ct. 2161, 80 L.Ed.2d 546 (1984); State v. Goodrich, 546 P.2d 1180, 1187 (Idaho 1976) (I.C.R. 32(a)); State v. Christensen, 201 N.W.2d 457, 459-60 (Iowa 1972) (I.C.A. § 789.6); State v. Engberg, 194 Kan. 520, 400 P.2d 701, 705-06 (1965) (K.S.A. 62-1510), cert. denied, 383 U.S. 921, 86 S.Ct. 899, 15 L.Ed.2d 676 (1966); Commonwealth v. Whitford, 16 Mass.App. 448, 452 N.E.2d 262, 266 (1983) (Mass.R.Crim.P. 28(b)); People v. Howell, 168 Mich.App. 227, 423 N.W.2d 629, 633-34 (1988) (M.C.R. 6.101(G)(2)); State v. Hanson, 304 Minn. 415, 231 N.W.2d 104, 105 (1975) (631.20); Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984) (no absolute right of allocution recognized); State v. Scott, 621 S.W.2d 915, 918 (Mo.1981); State v. Richter, 221 Neb. 487, 378 N.W.2d 175, 181-82 (Neb.1985) (Rev.Stat. § 39-669.07); State v. Rose, 112 N.J. 454, 548 A.2d 1058, 1107 (1988) (R 3:21-4(b)); Tomlinson v. State, 98 N.M. 213, 215, 647 P.2d 415, 417 (1982) (N.M.S.A. § 31-18-15.1); People v. Green, 54 N.Y.2d 878, 444 N.Y.S.2d 908, 429 N.E.2d 415, 416 (Ct.App.1981) (C.P.L. 380.50); State v. McRae, 70 N.C.App. 779, 320 S.E.2d 914, 915 (1984) (G.S. 15A-1334); State v. Gotsis, 13 Ohio App.3d 282, 13 OBR 346, 469 N.E.2d 548, 554 (Ohio Ct.App.1984); State v. Mak, 105 Wash.2d 692, 718 P.2d 407, 430, cert. denied, 479 U.S. 995, 107 S.Ct. 599, 93 L.Ed.2d 599 (1986).

178

.See, e.g., Collins v. State, 261 Ark. 195, 548 S.W.2d 106, 120 (1977); State v. Roe, 1987 WL 16174 (Ohio Ct.App.1987); O’Dell v. Commonwealth, 234 Va. 672, 364 S.E.2d 491, 508-09, cert. denied, 488 U.S. 871, 109 S.Ct. 186, 102 L.Ed.2d 154 (1988); Bassett v. Commonwealth, 222 Va. 844, 284 S.E.2d 844, 853-54 (1981), cert. denied, 456 U.S. 938, 102 S.Ct. 1996, 72 L.Ed.2d 458 (1982); State v. Mak, 718 P.2d at 430. Other states hold that there is no allocution right to the judge or to the jury in death penalty cases. See, e.g., People v. Gaines, 88 Ill.2d 342, 58 Ill.Dec. 795, 813, 430 N.E.2d 1046, 1064 (1982). In Gaines, the Illinois Supreme Court held that the allocution right granted in Illinois' Rules of Criminal Procedure did not apply to death penalty hearings, which were a creature of statute and followed statutory procedures. The court noted that the Illinois legislature had previously amended the allocution statute to specify that its procedures did not apply to death penalty hearings. Id. at 1064-65; see also People v. Robbins, 45 Cal.3d 867, 248 Cal.Rptr. 172, 185-186, 755 P.2d 355, 369 & n. 10 (1988); Commonwealth v. Abu-Jamal, 521 Pa. 188, 555 A.2d 846, 857-58 (1989). But see People v. Davis, 794 P.2d 159, 192 (Colo.1990) (right to address jury found within rule 32(a)); Hunt v. State, 321 Md. 387, 583 A.2d 218, 241 (1990) (right to address jury afforded by statute).

179

. Allocution at common law referred to the inquiry which the court made of the defendant, upon a return of a guilty verdict in a capital case, whether the defendant had any reason to offer why judgment should not be entered against him. The purpose of the allo-cution was not to afford an opportunity to present mitigating evidence or to plead for leniency but rather to disclose certain special circumstances, such as benefit of clergy, which precluded execution of the sentence.

People v. Gaines, 430 N.E.2d at 1062; see also Green v. United States, 365 U.S. 301, 304, 81 S.Ct. 653, 655, 5 L.Ed.2d 670 (1961); Note, Procedural Due Process at Judicial Sentencing for Felony, 81 Harv.L.Rev. 821, 832-33 (1968).

180

. Charles E. Torcía, Wharton’s Criminal Procedure § 609 & n. 2 (12th ed. 1976).

181

. See, e.g., State v. Dibello, 780 P.2d 1221, 1230 (Utah 1989).

182

. State v. Johnson, 771 P.2d 1071, 1073 (Utah 1989); State v. Lafferty, 749 P.2d 1239, 1255 (Utah 1988) (death penalty case).

183

. See § XV(B), supra.

184

. Utah Code Ann. § 76-3-207(2).

185

. Utah R.Crim.P. 1(b).

186

. Defendant’s proffered instruction reads:

In the guilt phase of this case, you were instructed that you should not base your verdict on various irrelevant matters, including sympathy.

You are now instructed that sympathy does play a legitimate part in the determination of whether a defendant shall suffer death or serve a life sentence in prison.

If after consideration of all the circumstances, you feel sympathy for the defendant that is based on the evidence you have heard, and based on such sympathy you are inclined to extend mercy to the defendant, the law enables you to act upon such sympathy and fix the penalty at life imprisonment.

(Emphasis in original.) Defendant also proffered proposed penalty instruction number 6, which reads in part:

Each of you must make an individual decision about whether David Young receives the death penalty or a sentence of life imprison-ment_ If any one or more of you con-

clude that the State has not met its burden on any one of the three legal requirements, or if any one or more of you conclude that the evidence demands mercy, then the penalty will be fixed at life imprisonment.

The court gave the instruction in substance, but refused to use the language of the instruction regarding mercy.

187

. 492 U.S. 302, 109 S.Ct. 2934, 106 L.Ed.2d 256 (1989).

188

. 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978).

189

. 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).

190

. 494 U.S. 484, 110 S.Ct. 1257, 108 L.Ed.2d 415 (1990).

191

. Id. at 489-90, 110 S.Ct. at 1260-61.

192

. Id.

193

. Id. at 490 (quoting California v. Brown, 479 U.S. 538, 545, 107 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring)).

194

. 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982).

195

. 777 P.2d 1019 (Utah 1989).

196

. Holland, 777 P.2d at 1026-27; Wood, 648 P.2d at 83-84.

197

. See State v. Moen, 786 P.2d 111, 138 (Or.1990).

198

. See Saffle, 494 U.S. at 493, 110 S.Ct. at 1262-63; Gregg v. Georgia, 428 U.S. 153, 189-95, 96 S.Ct. 2909, 2932-35, 49 L.Ed.2d 859 (1976); California v. Brown, 479 U.S. 538, 544, 107 S.Ct. 837, 840, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring).

199

. See Brown, 479 U.S. at 545, 107 S.Ct. at 841 (O’Connor, J., concurring).

200

. See id. at 544-45, 107 S.Ct. at 840-41 (O’Connor, J., concurring); Moen, 786 P.2d at 139.

201

. See State v. Lafferty, 749 P.2d 1239, 1256-57 (Utah 1988).

202

. 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982).

203

. Id. at 83.

204

. Id.

205

. Id. at 83-84.

206

. 777 P.2d 1019 (Utah 1989).

207

. Id. at 1028.

208

. Id.

209

. State v. Potter, 627 P.2d 75, 78 (Utah 1981).

210

. See, e.g., State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989); State v. Miller, 727 P.2d 203, 206 (Utah 1986); State v. Sessions, 645 P.2d 643, 647 (Utah 1982).

211

. This paragraph reads:

Thus, any one mitigating factor, standing alone, could outweigh a number or all of the aggravating circumstances in the case to support a decision that death is not the appropriate sentence. However, one aggravating factor, standing alone, could outweigh a number or all mitigating factors in the case to support a decision that death is the only appropriate and justified sentence in this case.

212

. After delineating the first prong of the Wood test, instruction 6 states, "If you find that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, then you must further be persuaded, beyond a reasonable doubt, that the imposition of the death penalty is justified and the only appropriate and justified sentence in this case.” (Emphasis added.)

213

. Instruction 8 reads:

In this, the penalty phase of the trial, all presumptions, independent of evidence, are in favor of the imposition of a sentence of life imprisonment. The burden is upon the State to prove that the aggravating circumstances outweigh the mitigating circumstances beyond a reasonable doubt, and further, the State must prove that the imposition of the penalty of death is the only appropriate and justified penalty, again by a standard of proof of beyond a reasonable doubt. If a reasonable doubt exists as to whether or not the aggravating circumstances outweigh the mitigating circumstances, or whether the imposition of the death penalty is the only appropriate and justified penalty, then the defendant is entitled to a verdict imposing a life sentence.

214

. 487 U.S. 164, 172-73, 108 S.Ct. 2320, 2326-27, 101 L.Ed.2d 155 (1988).

215

. See generally Holland, 777 P.2d at 1027-28; Wood, 648 P.2d at 84.

216

. State v. Gardner, 789 P.2d 273, 280 (Utah 1989) (citing Lowenfield v. Phelps, 484 U.S. 231, 241, 108 S.Ct. 546, 552-53, 98 L.Ed.2d 568 (1988)), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990).

217

. The portions of penalty phase instruction 8 to which defendant objects are nearly identical to the portions of the guilt phase reasonable doubt instructions that are also challenged. Defendant has not objected to the general provisions of the penalty phase instruction concerning the presumption in favor of a life sentence. Therefore, we consider his objections to be identical to those raised concerning the guilt phase instructions.

218

. See State v. Holland, 777 P.2d 1019, 1027 (Utah 1989); State v. Wood, 648 P.2d 71, 83 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982).

219

. The jury was given at least two instructions stating that the presumption in the penalty phase was for a life sentence and that the appropriateness of a death sentence must be proven beyond a reasonable doubt.

220

. See generally Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (striking down scheme which required jury to unanimously find at least one mitigating factor or sentence would be presumed death).

221

. Utah Code Ann. § 76-1-402(3).

222

. State v. Hill, 674 P.2d 96, 97 (Utah 1983) (quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)).

223

. 725 P.2d 1301 (Utah 1986).

224

. Id. at 1314 n. 3.

225

. Hill, 674 P.2d at 97.

226

.The evidence, including defendant’s own statements in his confession and in the pro se answer introduced in the penalty phase, also indicated that he killed the victim in order to prevent her from identifying him and to aid him in leaving the state. This evidence could be used to support a finding of "other personal gain” under subsection (f). While we have not defined "other personal gain,” it seems clear that the purposes of escape and prevention of identification would fit within the plain meaning of those terms.

227

. State v. Ellis, 748 P.2d 188, 191 (Utah 1987); State v. Rammel, 721 P.2d 498, 501-02 (Utah 1986).

228

. See generally State v. Bishop, 753 P.2d 439, 499-500 (Utah 1988) (Zimmerman, J., concurring) (discussing harmlessness of several errors in light of confession and other evidence of guilt and gruesomeness of crime).

229

. See, e.g., State v. Gardner, 789 P.2d 273, 288 (Utah 1989), cert. denied, 494 U.S. 1090, 110 S.Ct. 1837, 108 L.Ed.2d 965 (1990); Bishop, 753 P.2d at 489; Rammel, 721 P.2d at 498, 501-02.

230

. State v. Carter, 776 P.2d 886, 896 (Utah 1989).

These five states entirely incorporate aggravating factors into their guilt stage definitions of capital offense.

•

+These seven states employ a combination scheme (a scheme that first narrows significantly the class of capital offenses at the guilt stage through the use of one statutory list of aggravating factors and then narrows it again at the sentencing phase through the use of a separate statutory list). In summarizing these combination schemes, for simplicity I have included only the aggravating factors each of these states utilizes at the sentencing stage. However, because these states have already substantially limited their capital offenses at the guilt stage, the above depiction of only the sentencing stage aggravating factors may erroneously create the impression that these schemes render eligible for death a broader class of defendants than in fact they do. To the extent that the guilt stage list includes fewer potential aggravating factors than does the sentencing stage list or to the extent that the aggravating factors available at the guilt stage differ from those available at sentencing, my simplified representation of these schemes does not adequately convey the narrowing effect that the two-stage process may have. Unfortunately, a full comparative analysis of all of these complexities is beyond the scope of this appendix.

States identified above with neither + nor + + incorporate their statutory aggravating factors entirely into the sentencing stage, although even in these states the breadth of the definitions of capital offenses varies considerably. For instance, some states may define as capital offenses only willful, deliberate, and premeditated homicides, while others may define as capital all intentional murders as well as all murders occurring during certain felonies, regardless of intent, and all murders caused by poisoning. Nevertheless, in my interpretation none of these variations suffice to transform the schemes in which they occur into what I have called combination schemes.

•

The Georgia statute also defines treason and aircraft hijacking as capital offenses regardless of whether these offenses involve a homicide. Ga.Code Ann. § 17-10-30(a) (1990). These distinct categories of capital offenses are not analogous to the aggravating circumstances used to enhance a homicide to capital murder. I therefore have not included a separate category of aggravation for “treason,” although I have listed Georgia in category three, the aggravating factor for homicides committed during hijacking.