Tillman v. Cook

855 P.2d 211, 209 Utah Adv. Rep. 54, 1993 Utah LEXIS 60, 1993 WL 100103

• Court: Utah Supreme Court
• Decided: March 31, 1993
• Docket: 890322
• Status: Published

Opinions

HALL, Chief Justice:

A jury convicted ElRoy Tillman of capital homicide and sentenced him to death. This court affirmed the conviction and sentence on direct appeal.¹ Thereafter, Tillman filed a petition for a writ of habeas corpus in the third district court, challenging both his conviction and his sentence. The trial court addressed the issues on the merits and denied the petition, holding that no valid claim for relief was asserted. We affirm.

Tillman contends that the trial court erred in concluding that (1) the prosecutor did not make improper statements during closing argument at trial; (2) the information was not improperly amended after the preliminary hearing to include additional aggravating circumstances of capital homicide; (3) Tillman’s constitutional right to a unanimous jury verdict on the charges against him was not violated by the instructions the trial court gave; (4) the aggravating circumstances of capital homicide, particularly the aggravated arson circumstance, were supported by sufficient evidence; (5) Utah capital homicide statute section 76-5-202(l)(d) was constitutional; and (6) Tillman’s right to the effective assistance of counsel was not violated by the performance of his counsel during the trial and on direct appeal.

I.FACTS

Tillman was convicted of killing his former girlfriend’s new boyfriend, Mark Scho-enfeld, in Schoenfeld’s apartment on the night of May 25, 1982. As Schoenfeld slept, Tillman struck him on the head several times with the blunt end of an ax. Tillman then set fire to Schoenfeld’s bed. The primary cause of death was carbon monoxide poisoning caused by the burning mattress, but the evidence indicated that the blows to the head would have independently caused Schoenfeld’s death. Carla Sagers, Tillman’s girlfriend at the time of the murder, was with Tillman in Schoen-feld’s apartment that night. She received immunity in exchange for her testimony against Tillman. Tillman was convicted of first degree murder and sentenced to death. On direct appeal, this court affirmed the conviction and sentence.²

II.STANDARD OF REVIEW

On appeal from a denial of a petition for a writ of habeas corpus, we accord no deference to the trial court’s conclusions of law, but instead review them for correctness.³

III.PROSECUTORIAL MISCONDUCT

Tillman asserts that a comment made by the prosecutor during closing argument in the penalty phase of the trial was prejudicial and inflammatory. The prosecutor stated, “(Tillman) bludgeoned (Schoenfeld) to death with an ax and then to further disfigure him, set fire to him while he was still breathing.” Tillman contends that the prosecutor’s assertion that the fire was intended to disfigure the victim was unsupported by the evidence and that it raised an aggravating circumstance of the first degree murder statute, subsection (q), that had not been charged.⁴

On direct appeal, this court addressed the issue of whether Tillman was denied a fair trial due to prosecutorial misconduct because of statements made by the prosecutor during closing argument in both the guilt and penalty phases.⁵ Although Tillman’s present claim implicates different prosecutorial statements, it is based on the same ground for relief. We therefore reject the argument as having been previously adjudicated.

IV.AMENDMENT OF THE INFORMATION

Tillman contends for the first time that an amendment of the information pri- or to trial resulted in an unfair conviction. Tillman was initially charged with first degree murder performed during the commission or attempted commission of burglary or aggravated burglary. At the conclusion of the preliminary hearing and before Tillman was bound over to the district court, the prosecutor moved to amend the information to conform with the evidence adduced at the preliminary hearing and to charge, in addition to the initial aggravating circumstances, that the murder took place during the commission or attempted commission of arson or aggravated arson. At that time, Tillman’s attorney stated that he had no objection to the amendment. The circuit court judge granted the motion and ordered Tillman bound over to the district court on the amended information. No issue was raised on direct appeal as to the lawfulness of the amended information.

Tillman now asserts that the amendment was erroneous because it broadened the elements of the offense charged. He contends that the amendment violated due process by depriving him of an adequate opportunity “to prepare and defend as to each element, fact or circumstance.” Although we could decline to address the issue, given counsel’s agreement to the amendment at the preliminary hearing and, more importantly, counsel’s failure to raise the issue on direct appeal, we will nevertheless exercise our discretion to address the issue on the merits.

Utah Rule of Criminal Procedure 4(d) provides that an information may be amended as long as the amendment does not charge an additional or different offense or prejudice the defendant;

The court may permit an indictment or information to be amended at any time before verdict if no additional or different offense is charged and the substantial rights of the defendant are not prejudiced. After verdict, an indictment or information may be amended so as to state the offense with such particularity as to bar a subsequent prosecution for the same offense upon the same set of facts.⁶

Whether an amendment charges an additional or different offense turns on whether different elements are required to prove the offense charged in the amended information or whether the offense charged in the amended information increased the potential punishment from that originally charged.⁷

On direct appeal in this case, we held that the aggravating circumstances are elements of a capital murder offense and must be proved beyond a reasonable doubt.⁸ The addition of aggravating circumstances in the first degree murder charge meant that additional variations of capital homicide were alleged. It is arguable, therefore, that additional offenses were charged.

Nevertheless, Tillman has shown no prejudice because of the amendment.⁹ He was bound over after the information was amended; therefore, the circuit court found probable cause in the evidence to support it. Moreover, the information was amended on August 18, 1982, and the trial did not begin until January 4, 1983. Thus, Tillman’s attorneys had more than three months after the amendment to prepare a defense to the additional aggravating circumstances alleged.¹⁰ In any event, aggravating circumstances added to the information at the preliminary hearing did not expose Tillman to a greater punishment. In sum, the amendment resulted in no prejudice to Tillman’s defense and, considering all events, did not result in a fundamentally unfair trial.

V. JURY UNANIMITY

Tillman argues that the trial court erred in failing to require the jury to agree unanimously on which of the aggravating circumstances were proved beyond a reasonable doubt. The capital homicide charge was based on allegations of one or more of the four aggravating circumstances, i.e., burglary, aggravated burglary, arson, and aggravated arson.

Federal constitutional law does not require unanimity in state cases with respect to a particular aggravating circumstance to uphold a state’s capital offense conviction.¹¹ Notwithstanding federal law, the Utah Constitution does require jury unanimity on all elements of a crime.

On direct appeal, a majority of this court held that jurors are constitutionally required to agree unanimously on each element of a criminal offense, including at least one aggravating circumstance in a capital offense.¹² This holding was based on the conclusion that aggravating circumstances are distinct factual and legal elements of the crime of first degree murder.

Justice Stewart, in his concurring opinion, expressed the view that the jurors had been sufficiently instructed to act with the requisite unanimity.¹³ That opinion, which formed a majority for the result affirming Tillman’s conviction and sentence, stated in part:

The jury was instructed that it had to find each element of the offense by proof beyond a reasonable doubt, and the instructions were pellucid that an aggravating circumstance was an element of the crime that had to be proved beyond a reasonable doubt.... [The instruction] did not reasonably lend itself to the interpretation that some jurors could find one aggravating circumstance or offense, while other jurors disagreed on the finding and found some other aggravating circumstance or offense.

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The clear impact of the last quoted paragraph of the instruction, together with the general unanimity instruction given to the jury, is that the jury as a group had to find unanimously at least one aggravating circumstance.¹⁴

Tillman argues that Mills v. Maryland,15 which was decided after the opinion on his direct appeal was issued, requires reversal of his conviction based on the unanimity ground. Mills, however, is not dispositive of the issue presented. Mills dealt with jury unanimity in finding mitigating circumstances in the penalty phase of a capital case where the issues and determinations of law are different from those in the guilt phase.¹⁶ In the instant case, by contrast, the issue is whether the jury instructions sufficiently informed the jury that it had to be unanimous with respect to each element of the crime for which it convicted.

Tillman argues that Mills requires this court, as a matter of law, to reverse his conviction if there is a possibility that a single juror could have applied the instruction erroneously. In Mills, four justices agreed that the imposed sentence was invalid because a reasonable juror could have construed the instructions from the verdict form as permitting an unconstitutional application of the law on imposing the death penalty.¹⁷ Four justices, however, held that reasonable jurors would not have misunderstood the instructions.¹⁸ Justice White, who provided the fifth vote for reversing the defendant’s death sentence, wrote a brief concurring opinion, which provided in its entirety, “The issue in this case is how reasonable jurors would have understood and applied their instructions. That is the issue the Court’s opinion addresses, and I am persuaded that the Court reaches the correct solution. Hence, I join the Court’s opinion.” ¹⁹

Thus, a majority of the Court agreed that the appropriate test was whether reasonable jurors would have properly understood and applied the instructions, not, as Tillman asserts, whether there was a possibility that a single juror could have erroneously applied the instructions. In sum, Mills is not authority for a conclusion different from the one reached in this case on direct appeal.²⁰

VI. SUFFICIENCY OF THE EVIDENCE ON AGGRAVATING CIRCUMSTANCES

Tillman next argues that there was insufficient evidence to support the individual aggravating circumstances. Because no special verdicts were given that would indicate on which aggravating circumstance the jury based the conviction, there must be sufficient evidence to support the State’s proof on each aggravating circumstance as individual elements of the crime of first degree murder.²¹ On direct appeal in this case, Justice Stewart provided the swing vote for affirmance of the conviction and sentence. In his concurring opinion, he noted:

Even if the principle of juror unanimity as to aggravating circumstances could have been violated under the instruction, the assumed error would clearly be harmless because there is no real dispute in this case that the defendant in fact committed arson, aggravated arson, burglary, and aggravated burglary. That evidence is not really contested.²²

The lead opinion on direct appeal concluded that unanimity on a particular aggravating circumstance was not required and found that “the record contains ample evidence, both eyewitness testimony and physical evidence, to support a jury verdict that at the time of the commission of the homicide, defendant intentionally and knowingly caused the death of the victim under any one of the aggravating circumstances at issue.”²³ Justice Howe joined only in the result of this portion of the opinion.²⁴

The critical instruction the jury received provided that an essential element of the charge was “[tjhat at the time the homicide was committed, the defendant was engaged in the commission of, or attempting to commit burglary or aggravated burglary, and/or arson or aggravated arson.” With respect to burglary and aggravated burglary, Tillman argues that the only possible mens rea component is intent to kill.²⁵ Allowing this, he claims, would make every indoor murder a capital offense and would grant juries unlimited discretion to impose the death penalty in violation of State v. Wood²⁶ and Godfrey v. Georgia.27

Tillman’s argument is basically a reconfiguration of the merger issue already decided against him. On direct appeal, a majority of the court held that a burglary predicated on intent to kill does not merge with the crime of first degree murder.²⁸ Tillman has not argued, nor do we find, any unusual circumstances that would require readjudieation of that ground for relief.

For obvious reasons, Tillman does not question the sufficiency of the evidence to support the aggravating circumstances of burglary and aggravated burglary. The elements of each are clearly met. A person who unlawfully enters or remains in a building with the intent to commit a felony is guilty of burglary.²⁹ Uncontroverted evidence shows that Tillman secretly entered Schoenfeld’s house with the intent to kill the victim. Clearly, the jury had adequate evidence upon which to conclude that Tillman committed burglary.

The evidence also shows that Tillman entered the house with the intent to kill and that he caused bodily injury to Schoenfeld with an ax while in the house. A person who, in committing a burglary, causes bodily injury to, or uses or threatens use of a dangerous weapon against, any person who is not a participant in the crime is guilty of aggravated burglary.³⁰ The crime of aggravated burglary, therefore, is supported by the evidence.

With respect to arson, however, Tillman argues that the evidence does not support the crime.³¹ He claims that burning the mattress was incidental to the intended burning of the corpse; therefore, the mens rea for arson is not met. This argument is frivolous.

A person who by means of fire unlawfully and intentionally damages the property of another is guilty of arson.³² The evidence shows that Tillman intended to and, in fact, did burn Schoenfeld’s mattress. The crime of arson is clearly supported by the evidence. That Tillman also intended to burn Schoenfeld by setting the mattress on fire does not negate the conclusion that Tillman committed the crime of arson as defined by statute.³³

Tillman also argues that the evidence supporting the aggravating circumstance of aggravated arson was legally inadequate. Aggravated arson is committed when one intentionally and unlawfully damages a habitable structure by fire. Tillman contends that the elements of aggravated arson are lacking because there was no evidence of his intent to burn a habitable structure and no actual burning of a habitable structure.³⁴

An attempt to commit aggravated arson can be the aggravating circumstance elevating an intentional killing to first degree murder,³⁵ and the jury was so instructed. A person who acts with the kind of culpability otherwise required for the commission of the offense and engages in conduct constituting a substantial step toward commission of the offense is guilty of attempt.³⁶

Arguably, no habitable structure was burned in this case; the fire burned only the mattress on which Sehoenfeld lay, Schoenfeld’s body, and portions of the carpet. The evidence, however, was sufficient to support a finding of attempted aggravated arson. Photographs, diagrams, and eyewitness testimony established that the burned bed was in Schoenfeld’s bedroom and the head of the bed was adjacent to a wall. The fire was started between 12 and 1 a.m., the approximate time of Schoen-feld’s death. Tillman and Sagers set the mattress ablaze and left the bedroom door shut. A firefighter testified that he saw nothing on the mattress that would have prohibited the spread of flames to the wall, and an arson investigator testified that a mattress fire could cause the destruction of a building. The facts, therefore, support the conclusion that when Tillman lit the mattress on fire, he intended to set fire to Schoenfeld’s house, a habitable structure. Hence, Tillman’s conduct also constituted a substantial step in the commission of aggravated arson.

With respect to both arson and aggravated arson, Tillman argues that neither offense could constitute an aggravating circumstance for first degree murder because Tillman and Sagers believed Scho-enfeld to be dead and intended the fire to be only a means of concealing the murder. The evidence, however, showed that Scho-enfeld died of carbon monoxide poisoning as a result of the fire, and Sagers' uncon-troverted testimony was that Sehoenfeld was alive when the fire was started and that she and Tillman knew this. In response to questioning by the prosecutor, she testified as follows:

Q. Could you tell whether he was still alive?

A. Yes, he was.

Q. How do you know?

A. You could see him and hear him breathing.

Q. Did you make any comments to El-Roy about that fact or he to you?

A. As we were leaving, ElRoy asked me if he should hit him again.

Q. What did you say?

A. I says, “no.”

Q. Anything else?

A. ElRoy said he wanted him dead.

Q. Did you say anything back?

A. And I said the fire would probably do it.

This evidence is sufficient to support a finding of an intentional killing by means of the fire.³⁷

VII. INEFFECTIVE ASSISTANCE OF COUNSEL

Tillman claims that he was denied effective assistance of counsel at both the trial and on direct appeal. He argues that his trial counsel was ineffective in (1) failing to object to prejudicial comments by the prosecutor; (2) failing to object to the amendment of the information; (3) failing to request a specific instruction for unanimity on the aggravating circumstances for first degree murder; (4) submitting an overly broad instruction on second degree murder; and (5) failing to move to dismiss or strike the underlying crimes constituting aggravating circumstances because the crimes were not proved. Tillman further argues that his appellate counsel was ineffective in not adequately addressing “certain of those issues on [direct] appeal.”

To prevail on a claim of ineffective assistance of counsel, a defendant must show that his or her counsel rendered a deficient performance that fell below an objective standard of reasonable conduct and that the deficient performance prejudiced the defendant.³⁸ Tillman urges this court to adopt a higher standard of review of his counsel’s effectiveness because this is a death penalty case and because trial and appellate counsel were one and the same.

While we recognize the particular need for effective representation in a death penalty ease, we do not believe that a higher standard of review is warranted. The Strickland standard achieves an adequate balance between the policy of finality and the preservation of constitutional rights. Although there may be theoretical logic to the proposition that counsel on appeal cannot be trusted to raise issues of his or her own ineffectiveness at trial, there are two reasons why the conclusion suggested by that logic is incorrect. First, our experience has been that counsel in this state have complied with their ethical obligations and argued their own ineffectiveness on appeal. Second, because of the plain error doctrine and the scope of review we exercise in capital cases, we have ourselves reviewed the record and addressed issues not reviewed by counsel, as we have done in this case, and reversed on such issues when appropriate.³⁹ Hence, we decline to adopt a higher standard for the ineffective assistance of counsel claim in this case.

Tillman first argues that trial counsel’s failure to object or otherwise remedy prejudicial comments by the prosecutor constitutes ineffective assistance. Specifically, he assails his counsel’s failure to object to the prosecutor’s inflammatory comment “when [Tillman] bludgeoned [Schoenfeld] to death with an ax and then to further disfigure him, set fire to him while he was still breathing.” On direct appeal, this court held that certain statements the prosecutor made during the guilt and penalty phases of the trial and not contemporaneously objected to by trial counsel were not grounds for reversal.⁴⁰ The statement quoted was one of the comments at issue regarding the prosecutor’s discussion of the life sentence.⁴¹ Comments held not to have prejudiced the defense cannot be the basis for an ineffective assistance claim.

Moreover, most of the prosecutor’s comment at issue was true: There was evidence that Tillman bludgeoned Schoen-feld with an ax, arguably to death, and set fire to him while he was still breathing. The remaining statement that Tillman set fire to Schoenfeld to disfigure him is not necessarily inflammatory and, in any event, could not have affected the verdict. Hence, the requirement of prejudice under the Strickland test is simply not met.

Second, Tillman argues that trial counsel’s failure to object to the amendment of the information constitutes ineffective assistance. In light of our conclusion that the amendment to the information was not prejudicial, failure to object could not constitute ineffective assistance.

Tillman’s third claim is that trial counsel’s failure to request a specific instruction for unanimity on the aggravating circumstances for first degree murder amounts to ineffective assistance. As previously stated, this court held on direct appeal that a jury must be unanimous with respect to the aggravating circumstance(s) of a first degree murder conviction.⁴² The instructions given were not perfect on this point, but they did not violate the rule.⁴³ Thus, counsel’s failure to request an instruction demanding specific unanimity did not prejudice Tillman.

Fourth, Tillman argues that trial counsel’s submission of an overly broad instruction on second degree murder renders his counsel’s representation ineffective. The instruction at issue provided:

Before you can convict the defendant of the crime of CRIMINAL HOMICIDE, MURDER IN THE SECOND DEGREE, a First Degree Felony, you must find from the evidence, beyond a reasonable doubt, all of the following elements of that crime:

1. That on or about May 26, 1982, in Salt Lake County, State of Utah, the defendant, ElRoy Tillman:

a. Acted intentionally or knowingly in causing the death of Mark Schoenfeld; or

b. Intending to cause serious bodily injury to Mark Schoenfeld, committed an act clearly dangerous to human life that caused the death of Mark Schoenfeld; or

c. Acting under circumstances evidencing a depraved indifference to human life, he engaged in conduct which created a grave risk of death to Mark Schoenfeld, and thereby caused the death of Mark Schoenfeld; or

d. While in the commission, attempted commission of burglary, aggravated burglary, arson or aggravated arson, caused the death of Mark Schoenfeld.

If you believe that the evidence establishes each and all of the essential elements of the offense beyond a reasonable doubt, it is your duty to convict the defendant. On the other hand, if the evidence has failed to so establish one or more of said elements then you should find the defendant not guilty.

This instruction mirrors the requirements of second degree murder in our statute.⁴⁴ The instruction was therefore not incorrect or prejudicial.

Fifth, Tillman alleges that trial counsel’s failure to move to dismiss or strike the underlying crimes that constituted aggravating circumstances on the grounds of lack of evidence rendered his assistance ineffective. However, because there was sufficient evidence to support the State’s proof on each of the charged aggravating circumstances, counsel’s failure to move to dismiss or strike was not error.

Finally, Tillman argues that appellate counsel’s failure to raise on direct appeal the issues presented in this petition constitutes ineffective assistance. Each of the challenges to Tillman’s conviction and sentence raised in this petition for habeas corpus has been addressed and rejected on its merits, not on the basis of waiver.⁴⁵ Therefore, appellate counsel’s failure to raise them on direct appeal did not prejudice Tillman.

Affirmed.

HOWE, Associate C.J., concurs.

1 . State v. Tillman, 750 P.2d 546 (Utah 1987).

2 . Id.

3 . Fernandez v. Cook, 783 P.2d 547, 549 (Utah 1989); State v. Mitchell, 779 P.2d 1116, 1118 (Utah 1989).

4 . Utah Code Ann. § 76-5-202(1) provides in pertinent part:

(1) Criminal homicide constitutes murder in the first degree if the actor intentionally or knowingly causes the death of another under any of the following circumstances:

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(q) The homicide was committed in an especially heinous, atrocious, cruel, or exceptionally depraved manner, any of which must be demonstrated by physical torture, serious physical abuse, or serious bodily injury of the victim before death.

Subsection (1) of this statute was amended in 1991 to replace “murder in the first degree” with "aggravated murder.” We quote from the statute in place when the murder was committed.

5 . Tillman, 750 P.2d at 553-57.

6 . Utah R.Crim.P. 4(d) (formerly codified as Utah Code Ann. § 77-35-4(d)).

7 . See, e.g., Bell v. State, 296 Ark. 458, 757 S.W.2d 937, 942 (1988); State v. Sharpe, 304 N.W.2d 220, 222-23 (Iowa), cert. denied, 454 U.S. 834, 102 S.Ct. 134, 70 L.Ed.2d 113 (1981).

8 . Tillman, 750 P.2d at 578-80 (Stewart, Assoc. C.J., concurring and concurring in the result); id. at 585-88 (Durham, J., concurring and dissenting); id. at 591 (Zimmerman, J., concurring and dissenting).

9 . Tillman cites cases which purportedly stand for the proposition that amendments made to charging documents at critical stages of the proceedings are prejudicial per se and reversible. However, the cases are United States Courts of Appeals cases and, with one exception, involve indictments rather than informations. See Cola v. Reardon, 787 F.2d 681, 700-01 (1st Cir.), cert. denied, 479 U.S. 930, 107 S.Ct. 398, 93 L.Ed.2d 351 (1986); United States v. Mosley, 786 F.2d 1330, 1335 (7th Cir.), cert. denied, 476 U.S. 1184, 106 S.Ct. 2919, 91 L.Ed.2d 548 (1986); United States v. Castro, 776 F.2d 1118, 1121-22 (3d Cir.1985), cert. denied, 475 U.S. 1029, 106 S.Ct. 1233, 89 L.Ed.2d 342 (1986); United States v. Parkhill, 775 F.2d 612, 615 (5th Cir.1985); United States v. Hayes, 775 F.2d 1279, 1282 (4th Cir.1985). Amendments to indictments trigger different rules than amendments to informations. Compare 1 Charles A. Wright Federal Practice and Procedure § 127, at 415-17 (1982) (amendment of indictment) with id. § 128, at 430-31 (amendment of information). The one case cited by Tillman that involves a state information is inapplicable because there, the defendant was unable to determine from the information what the nature of the charge was. See Kreck v. Spalding, 721 F.2d 1229, 1232-33 (9th Cir.1983).

10 . See State v. Bell, 785 P.2d 390, 395 (Utah 1989); Bullock v. United States, 265 F.2d 683, 692 (6th Cir.), cert. denied, 360 U.S. 909, 79 S.Ct. 1294, 3 L.Ed.2d 1260 (1959); U.S.A.C. Transport Inc. v. United States, 203 F.2d 878, 880 (10th Cir.), cert. denied, 345 U.S. 997, 73 S.Ct. 1139, 97 L.Ed. 1403 (1953); State v. Scognamiglio, 202 Conn. 18, 519 A.2d 607, 609-10 (1987); State v. Schertz, 330 N.W.2d 1, 2-3 (Iowa 1983).

11 . Although Johnson v. Louisiana, 406 U.S. 356, 92 S.Ct. 1620, 32 L.Ed.2d 152 (1972), and Apodaca v. Oregon, 406 U.S. 404, 92 S.Ct. 1628, 32 L.Ed.2d 184 (1972), agreed that the Sixth Amendment requires a unanimous verdict in federal criminal cases, both cases held that the Sixth Amendment, as applied to the states through the Fourteenth Amendment under Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), does not impose a similar requirement on state criminal proceedings.

12 . Tillman, 750 P.2d at 578-80 (Stewart, Assoc. C.J., concurring and concurring in the result); id. at 585-88 (Durham, J., concurring and dissenting); id. at 591 (Zimmerman, J., concurring and dissenting).

13 . Tillman, 750 P.2d at 579-80 (Stewart, Assoc. C.J., concurring and concurring in the result).

¹⁴

15 . 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988).

16 . Id. at 369-70, 108 S.Ct. at 1862-63; see also McKoy v. North Carolina, 494 U.S. 433, 110 S.Ct. 1227, 108 L.Ed.2d 369 (1990) (reversing defendant’s death sentence on authority of Mills and holding North Carolina’s capital sentencing scheme unconstitutional because it prevented jury from considering any mitigating factor that jury did not unanimously find in deciding whether to impose death penalty).

17 . Id., 486 U.S. at 394, 108 S.Ct. at 1875 (opinion of Blackmun, J., joined by Brennan, Marshall, and Stevens, JJ.).

18 . Id. at 390, 108 S.Ct. at 1872 (Rehnquist, C.J., dissenting, joined by O’Connor, Scalia, and Kennedy, JJ.).

19 . Id. at 389-90, 108 S.Ct. at 1872 (White, J., concurring).

In McKoy v. North Carolina, 494 U.S. at 444 n. 8, 110 S.Ct. at 1234 n. 8, the Supreme Court noted the division over this issue in Mills:

In Mills, the Court divided over the issue whether a reasonable juror could have interpreted the instructions in that case as allowing individual jurors to consider only mitigating circumstances that the jury unanimously found. Compare [Mills, 486 U.S. at 375-84, 108 S.Ct. at 1865-70], with [id. at 391-95, 108 S.Ct. at 1873-75 (Rehnquist, C.J., dissenting) ]. Indeed, the dissent in Mills did not challenge the Court’s holding that the instructions, if so interpreted, were unconstitutional.

20 . Tillman also argues that three other decisions on unanimity issued after his direct appeal, Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), Adamson v. Ricketts, 865 F.2d 1011 (9th Cir.1988), cert. denied, 497 U.S. 1031, 110 S.Ct. 3287, 111 L.Ed.2d 795 (1990), and State v. Tuttle, 780 P.2d 1203 (Utah 1989), cert. denied, 494 U.S. 1018, 110 S.Ct. 1323, 108 L.Ed.2d 498 (1990), require reversal of his conviction and sentence. We have reviewed these cases and find that they do not sufficiently alter the analysis of the unanimity and merger issues employed on direct appeal to warrant reconsideration of those issues.

21 . See State v. Johnson, 821 P.2d 1150, 1156-57 (Utah 1991).

22 . Tillman, 750 P.2d at 580 n. 1 (Stewart, Assoc. C.J., concurring and concurring in the result).

23 . Id. at 566.

24 . Id. at 582 (Howe, J., concurring in the result).

25 . Utah Code Ann. §§ 76-6-201, -202, and -203 define the relevant burglary offenses:

BURGLARY AND CRIMINAL TRESPASS 76-6-201 Definitions.

For purposes of this part:

(1) "Building," in addition to its ordinary meaning, means any watercraft, aircraft, trailer, sleeping car, or other structure or vehicle adapted for overnight accommodation of persons or for carrying on business therein and includes:

(a) Each separately secured or occupied portion of the structure or vehicle; and

(b) Each structure appurtenant to or connected with the structure or vehicle.

(2) "Dwelling” means a building which is usually occupied by a person lodging therein at night, whether or not a person is actually present.

(3) A person "enters or remains unlawfully” in or upon premises when the premises or any portion thereof at the time of the entry or remaining are not open to the public and when the actor is not otherwise licensed or privileged to enter or remain on the premises or such portion thereof.

(4) "Enter” means:

(a) Intrusion of any part of the body; or

(b) Intrusion of any physical object under control of the actor.

76-6-202 Burglary.

(1) A person is guilty of burglary if he [or she] enters or remains unlawfully in a building or any portion of a building with intent to commit a felony or theft or commit an assault on any person.

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76-6-203 Aggravated Burglary.

(1) A person is guilty of aggravated burglary if in attempting, committing, or fleeing from a burglary the actor or another participant in the crime:

(a) causes bodily injury to any person who is not a participant in the crime;

(b) uses or threatens the immediate use of a dangerous weapon against any person who is not a participant in a crime; or

(c) possesses or attempts to use any explosive or dangerous weapon.

26 . 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982).

27 . 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980).

28 . Tillman, 750 P.2d at 568-72; id. at 580-82 (Stewart, Assoc. C J., concurring and concurring in the result); id. at 583 (Howe, J., concurring in the result).

29 . See Utah Code Ann. § 76-6-202.

30 . See Utah Code Ann. § 76-6-203.

31 . Utah Code Ann. §§ 76-6-101, -102, and -103 describe the offense of arson and aggravated arson:

PROPERTY DESTRUCTION

76-6-101 Definitions.

For purposes of this chapter:

(1) "Property" means any form of real property or tangible personal property which is capable of being damaged or destroyed and includes a habitable structure.

(2) "Habitable structure” means any building, vehicle, trailer, railway car, aircraft, or watercraft used for lodging or for assembling persons or conducting business whether a person is actually present or not.

(3) “Property" is that of another, if anyone other than the actor has a possessory or proprietary interest in any portion thereof.

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76-6-102 Arson.

(1) A person is guilty of arson if under circumstances not amounting to aggravated arson, he [or she] by means of fire or explosives unlawfully and intentionally damages:

(a) any property with the intention of defrauding an insurer; or

(b) the property of another.

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76-6-103 Aggravated Arson.

(1) A person is guilty of aggravated arson if by means of fire or explosives he [or she] intentionally and unlawfully damages:

(a) a habitable structure; or

(b) any structure or vehicle when any person not a participant in the offense is in the structure or vehicle.

32 . See Utah Code Ann. § 76-6-102.

33 . Tillman also argues that because arson can be a misdemeanor, the Utah legislature could not have intended it to elevate an intentional killing to a capital offense. We find no merit to this contention. Clearly, the legislature did intend the commission of or attempt to commit arson as an aggravating circumstance. See Utah Code Ann. § 76-5-202(1)(d).

34 . See Utah Code Ann. § 76-6-103(1)(a).

35 . See Utah Code Ann. § 76-5-202(1)(d).

36 . See Utah Code Ann. § 76-4-101(1).

37 . Tillman argues that even if intentionally burning a live victim to death were to be an aggravating circumstance, it would not fall under arson statutes referring to burning of property as the criminal object, but rather would fall under subsection (q) of the first degree murder statute encompassing especially heinous types of killing or would fall under its own subsection such as bomb, subsection (l), or poison, subsection (n). Utah Code Ann. § 76-5-202(1). We find no merit to this argument. The fact that the legislature included arson on a list of serious crimes, see id. § 76-5-202(l)(d), is sufficient to make it an aggravating crime.

38 . See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); State v. Carter, 776 P.2d 886, 893 (Utah 1989).

39 . See State v. Holland, 777 P.2d 1019 (Utah 1989); see also State v. Bishop, 717 P.2d 261 (Utah 1986); State v. Wood, 648 P.2d 71 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982).

⁴⁰

41 . See id. at 583 (Durham, J., concurring and dissenting).

42 . Tillman, 750 P.2d at 577-80 (Stewart, Assoc. C.J., concurring and concurring in the result); id. at 585-88 (Durham, J., concurring and dissenting); id. at 591 (Zimmerman, J., concurring and dissenting).

43 . See Tillman, 750 P.2d at 579-80 (Stewart, Assoc. C.J., concurring and concurring in the result).

44 . See Utah Code Ann. § 76-5-203(1).

45 . Tillman's argument that the prosecutor’s inflammatory statements require reversal of his conviction and sentence, which was rejected in section III of this opinion as untimely, was addressed on its merits in the ineffective assistance of counsel portion of the opinion.