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02/03/88 STATE UTAH v. ARTHUR GARY BISHOP

February 3, 1988

STATE OF UTAH, PLAINTIFF AND RESPONDENT,
v.
ARTHUR GARY BISHOP, DEFENDANT AND APPELLANT



Hall, C.j., Howe, J., concurs, Stewart, A.c.j., concurs in part with opinion; Durham, J., concurs separately with opinion; Zimmerman, J., concurs in the result with opinion.

The opinion of the court was delivered by: Hall

HALL, Chief Justice:

Defendant was convicted of five counts of first degree murder, Utah Code Ann. § 76-5-202 (1987 & Supp. 1983) (amended 1984 & 1985); five counts of aggravated kidnapping, Utah Code Ann. § 76-5-302 (1978 & Supp. 1987); and one count of aggravated sexual abuse of a child, Utah Code Ann. § 76-5-404.1 (Supp. 1983) (amended 1984). After a penalty hearing, the jury returned verdicts of death on all of the murder convictions. The trial court also imposed five consecutive sentences of five years to life for each of the aggravated kidnapping convictions, two of which have ten-year minimum mandatory terms, and sentenced defendant to five years to life, with a six-year minimum mandatory term on the sexual abuse of a child conviction. Defendant's nineteen-point brief raises over forty arguments on appeal.

I FACTS

Between October 16, 1979, and July 14, 1983, Alonzo Daniels (aged 14), Claude (Kim) Peterson (aged 11), Danny Davis (aged 4), Troy Ward (aged 6), and Graeme Cunningham (aged 13) disappeared and were never seen alive again. Prior to Cunningham's July 14, 1983 disappearance, he had been planning a trip to California with a friend, minor J. H., and defendant.

During the afternoon of July 24, 1983, J. H. and defendant stopped at Cunningham's home, and the police arrived shortly thereafter. A police officer drove J. H. to the police station; defendant followed in his car. At the station, the officers questioned defendant in a formal interview about Cunningham's whereabouts. For approximately the first hour of the interview, defendant gave no helpful information. Defendant then turned off the tape recorder and stated that he did not want to talk anymore and that he wanted a lawyer. However, after going to the restroom and being told that he was going to jail, defendant indicated that he wished to continue. Shortly thereafter, defendant produced a revolver and over 400 photographs of nude boys.

Upon returning to the police station, defendant gave the officers a confession detailing the abduction and murder of the five missing youths. Defendant then directed the officers to locations in Big Cottonwood Canyon and Cedar Fort, Utah, where the boys' bodies were eventually recovered with the issues below.

II. VOIR DIRE

Defendant's first point is that the trial court erred during voir dire. Defendant's two-fold argument first attacks the questioning of panel member Walker and then challenges the voir dire as a whole.

A

Defendant claims that the trial court interfered during questioning of Walker by unnecessarily limiting defense questions and by interrupting and allegedly "rehabilitating" Walker just as she "seemed" about to make biased statements. Defendant contends that this interference effectively foreclosed a challenge for cause and forced him to exercise a peremptory challenge to remove her from the jury panel. Defendant relies upon the following excerpts from the record to support his claim of interruptions and alleged rehabilitation:

Q [by defense counsel] Would you ever impose -- vote to impose a death penalty if there were a conviction on capital homicide because you believed somebody expected it of you?

A No.

Q So it wouldn't matter if you believe the prosecutor expected you --

The Court: I won't let you go into that.

Q [by defense counsel] You have told Judge Banks that you believe in the death penalty. Why do you believe in it?

A I just do.

Q Can you -- you must have some reasons, I assume, supporting that belief.

A Well, I think if anybody has killed somebody and it's been proven, I just believe that -- in the death penalty.

Q But you do understand that some offenses, some kinds of homicides, don't allow you to impose a death penalty?

A Well, yes.

Q Is that a conflict for you?

A Yes, in a way. Yes.

Q How is it a conflict?

A Oh, I don't know. In general.

Q Pardon.

A In general, I mean, just I have different feelings. I means, like I say, I just believe it.

The Court: Let me put this question to you: If at the guilt phase, if it goes to that phase, you are not satisfied in your own mind the state has shown that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt and further that you aren't convinced in your own mind that the death penalty was the only appropriate penalty for Mr. Bishop, would you vote for the life sentence and not the death penalty?

Ms. Walker: Life.

The Court: All right.

Q [by defense counsel] If it's proven to you that Mr. Bishop killed a child, does that then justify the death penalty?

A No. I mean -- yes.

Q Okay.

The Court: You see, at the guilt phase, you had already determined that he did take the life of a child. Under some circumstances, can you see where a life sentence would be appropriate over death, under some circumstances?

Ms. Walker: Under some -- if -- yes, yes.

The Court: All right.

Q [by defense counsel] What are those kinds of circumstances?

A Well, if he was really sick or -- well, you know, did have a mental problem and that or whatever, yes.

Briefed instances where the court limited questioning of Walker follow:

Q [by defense counsel] Do you believe there is any relationship between what a victim may have suffered and what the perpetrator of the crime should suffer?

The Court: I won't allow that question.

Q [by defense counsel] Do you believe that the most important thing you can teach your children is respect for law and order?

A Yes.

Q The most important thing?

A Well, yes.

Q Okay. In addition to that, what do you think the two or three most important aspects of being a parent are?

The Court: I'm not going to allow that to go in there.

Q [by defense counsel] If a person were to be convicted of first-degree murder, what kind of information would you like to know about him?

The Court: I won't allow that questions in.

Q [by defense counsel] What would be your feelings about participating in a jury whose function is to try a capital homicide case where if the person is convicted you will have to consider imposition of the death sentence?

A My feeling?

Q Yes.

A I'm not very good.

Q Why not?

A I don't know; I don't know.

Q I mean, are these feelings of nervousness?

A Yes, yes.

Q Because of the enormity of the responsibility?

A No, not that. I just think -- that having a boy the same age and that, I mean, it just -- I just have feelings.

Q You do have on son?

A Yes.

Q What are the feelings that you have because they were boys that were killed?

The Court: No. I am not going to allow any further probing into that.

Q [by defense counsel] Do you believe that people can become better persons over time and can change?

The Court: I don't think that's appropriate.

Q [by defense counsel] In your own mind, in any particular case, would you need to know in that case the purpose [of the death penalty?]

The court: I don't think the purpose is appropriate. If they believe in it, yes. And when you are asking them about the legislature, that's what the legislature has done, so that has to be accepted as the law.

An accused has a right to a fair trial by an impartial jury. *fn1 The broad discretion afforded trial courts in seating fair, impartial jurors extends to the scope of voir dire questioning: *fn2

The court may permit counsel or the defendant to conduct the examination of the prospective jurors or may itself conduct the examination. In the latter event, the court may permit counsel or the defendant to supplement the examination by such further inquiry as it deems proper, or may itself submit to the prospective jurors additional questions requested by counsel or the defendant. *fn3

Voir dire provides the means for detecting juror prejudice or bias, thereby enabling counsel to intelligently challenge such person. *fn4 Accordingly, sufficient latitude in the questioning process must be given to preserve the right to a fair trial. *fn5 It follows that whether a trial court abuses its discretion turns on whether, considering the totality of the questioning, counsel is afforded and adequate opportunity to gain the information necessary to evaluate jurors. *fn6

On appeal, an appellant have the burden of establishing that reversible error resulted from an abuse of discretion. Beyond unsupported claims, defendant had not begun to establish that the court's interruptions and questioning significantly deprived him of the opportunity to discover information relevant to Walker's fitness for jury service. The record reveals due diligence on the part of the trial court to secure an impartial jury.

During the course of voir dire, the trial court explained to counsel that the purpose of its conduct was two-fold: First, it explained that the interruptions and clarifications were necessary so the jury could understand the import of counsel's questions. The Judge said: "But you see, it's unfair on some of these because they don't understand it because they haven't been instructed as to what they are going to have to consider on these things. We have touched on it, but we haven't clearly instructed them on it. And that's the difficulties we're having." At another point, the trial Judge state, "The difficulty is, you see, they haven't received the benefit of all the instructions as to the law of the case." *fn7 The court was simply trying to assist juror understanding such that their answers would be meaningful.

Second, the court explained the importance of determining whether a juror could be easily swayed during voir dire. *fn8 Indeed, at one point during voir dire, defendant objected to the court's interrupting and asking leading questions of panel member Newman. After the woman left the jury room, the court explained: "I just wanted the reason [on the record]. It's apparent to the court she wouldn't follow the courts instructions. She is stricken for cause." The court's interruptions and questions did not constitute an abuse of discretion. The court was simply fulfilling its duty to seat a fair and impartial jury.

Defendant's contention that he was prejudiced by the trial court's limitations on questioning is unpersuasive. The only significant limitation was the court's restriction on questioning Ms. Walker concerning what effect child victims would have on her decision. Defendant argues that such a limitation was egregious because the woman had a young son similar in age to the ages of the victims. As an initial matter, the transcript reveals that Ms. Walker was a widow with three children. Their ages at the time were 27, 29, and 32. In any event, defense counsel was given the opportunity to question Walker on the matter. Prior to Walker's statement about "having a boy the same age" and defense counsel's question concerning child victims, the following exchange took place between counsel and Ms. Walker:

Q [by defense counsel] In this case, you have been informed that the victims are all children. Does your attitude about the death penalty -- is your attitude on the death penalty affected as to whether it's appropriate in a case or not if children are victims rather than adults?

A Well, I don't believe a person is guilty until they are proven innocent -- I feel, no way. I mean nothing.

Q I understand that. But if we have a case where you were going to have to consider penalty, life or death, and the homicides were the deaths of children, would you be able to listen to all of the factors in mitigation against the death penalty or in aggravation of the death penalty, or would the fact that the children were victims make it mandatory for you that a death sentence and not life be imposed.

A No, no. *fn9

After Walker and four other panel members were questioned, defendant objected to the court's proscription of the child victim question, and the court agreed that counsel could ask the following question: "Since I note on your sheet that you have children the same age or in the same age category as the victims, would that in and of itself make you unable to sit as a fair impartial juror in this case?" Notwithstanding this ruling, counsel never again requested to put the question to Walker, despite the fact that at the Conclusion of individual voir dire, the court asked counsel if there were any other questions they wanted to put to the jury. These facts convince us that defendant was not prejudiced by the court's rulings.

B

Defendant also objects to the handling of the voir dire as a whole. He first complaints in a footnote that the trial court improperly prevented defense counsel from questioning the panel about

he relationship between the death penalty and Christianity; whether a life sentence could accomplish the goal of preventing crime in the same way as the death penalty; and whether questioning jurors about the death penalty raises doubts as to defendant's guilt ; what "brutality" meant in context of potential juror's statement that death penalty should be imposed where "brutality" involved; how the potential juror defined "aggravation" and "mitigation."

Defendant has failed, as to all but one of these claims, to either cite to the record where the alleged actions occurred or provide any authority or argument as to why such actions constituted reversible error. As has been aptly stated by another court, " reviewing court is entitled to have the issues clearly defined with pertinent authority cited and is not simply a depository in which the appealing party may dump the burden of argument and research." *fn10

Nevertheless, although defendant has not adequately raised and briefed these issues on appeal, we have reviewed the record and find no manifest and prejudicial error. n.11 [Footnote omitted] Indeed, much of what is objected to is not reflected by the record. At defense counsel's request, the court queried the entire panel as to which of them regularly attended church, and while the court may not have allowed counsel to probe during general voir dire into the relationship between the panel member's religious viewpoints and capital punishment, it explained to counsel that the jurors' attitudes on the death penalty would be examined thoroughly during individual voir dire. Moreover, the court later ruled that questions concerning conflict between a juror's religious views or Christianity and the death penalty could be asked during individual voir dire. Subsequently, counsel asked several jurors during individual voir dire, without interruption or objection, whether they felt that any conflict existed between their religious views and the death penalty. Others volunteered the information. Most jurors were not asked the question. We conclude that defendant's contention that the trial Judge refused to allow questioning of jurors concerning possible conflicts between religious views and capital punishment is simply without merit. *fn12

Similarly, the trial court permitted defense counsel to ask panel members in substance whether they believed that a life sentence could accomplish the goal of preventing crime in the same way as the death penalty. Only when Mr. Bentley was asked the question did the court interpose and not allow elaboration. Yet, Bentley had already stated that in his view, a life sentence was not as serious as a death sentence. He had also explained why he though the death penalty was an appropriate penalty. Given these answers and the lack of analysis by counsel on appeal, we fail to see how the Judge's "limitation" on the questioning was an abuse of discretion.

The same analysis holds true concerning defendant's argument that the trial court erred by allegedly refusing to allow defense counsel to ask panel members whether the court's questions about the death penalty raised doubts about defendant's innocence. The trial court instructed the panel on the presumption of innocence, and the panel members responded that they would afford defendant the presumption and follow the Judge's instructions on the law. The trial Judge later allowed the question to be posed.

As to the other two questions at issue, they involved isolated incidents which, when viewed in context, do not constitute an abuse of discretion since ample information about the two or three panel members in question was obtained by counsel, thus enabling counsel to evaluate their qualifications for being impartial jurors.

Defendant also contends that the court asked intimidating questions whenever a panel member responded in a manner unacceptable to the court, but defendant has failed to indicate where such questioning occurred. A careful review of the record discloses not only that this contention is without basis.

Defendant finally contends that the court erred by asking during general voir dire certain questions proposed for individual voir dire, by refusing to ask other probative questions, and by asking leading questions. In general, these concerns were addressed hereinabove. We also observe that the substance of many of counsels' proposed questions was asked in the form of other questions. As in State v. Hillstrom, *fn13 the trial court allowed great latitude in questioning. *fn14

In terms of the standard set forth above, we have reviewed the voir dire of Ms. Walker and the panel as a whole and conclude that ample latitude in questioning the panel was permitted so counsel could intelligently exercise challenges.

III. CHALLENGES FOR CAUSE

Defendant's second point is that the trial court erred by not granting challenges for cause lodged against at least three jury panel members: Harmon, Price, and Filip. Defendant expended peremptory challenges to have those jurors removed from the panel and, during the course of the jury selection process, exercised all of his peremptories.

It is prejudicial error to compel a party to exercise a peremptory challenge to remove a panel member who should have been removed for cause. *fn15 Thus, we must determine whether the trial court abused its discretion by refusing to remove Harmon, Price, and Filip.

Rule 18(e)(13) of the Utah Rules of Criminal Procedure allows a challenge for cause to be taken where a juror has "formed or expressed an unqualified opinion or belief as to whether the defendant is guilty or not guilty." And, of course, a juror must be willing to apply the law as instructed by the court. *fn16 These principles are implicit in rule 18(e) (14) of the Utah Rules of Criminal Procedure, which provides in part that a challenge for cause is proper where "a state of mind exists on the part of the juror with reference to the cause, or to either party, which will prevent him from acting impartially and without prejudice to the substantial rights of the party challenging [the juror]." "Impartiality" has been defined as a mental attitude of appropriate indifference. *fn17

Once comments are made which facially raise a question of partiality or prejudice, an abuse of discretion occurs unless the challenged juror is removed by the court or unless the court or counsel investigates further and finds the inference rebutted; rebuttal of such an inference may be accomplished by a showing that the statement was merely the product of a "light Impression" and not one that would "close the mind against the testimony that may be offered in oppositions." *fn18

In the case at hand, defendant contends that Harmon's voir dire showed he would be unable to weigh mitigating circumstances where more than one death was involved. Harmon stated that in his opinion a death sentence would not always be appropriate. However, when asked whether his opinion would be different where multiple murder were involved, he responded in part, "I would think his life should be taken." When asked whether anything "Good about the individual" might temper his decision to impose the death penalty, he responded in part that he would impose it on his own son if he (the son) had committed the alleged crimes beyond a reasonable doubt. The problem is that the above questions and Harmon's answers have been taken out of context:

Q [by defense counsel] Would it be fair to say that you -- in this area of Justice, would you ascribe to the concept that a person who takes a life of another should pay with his own?

A Not in all case.

Q So in some instances, Justice would not require the forfeiting of a life even if the life had been taken?

A That's correct.

Q Would that, in your opinion, change if the individual was responsible for more than one death?

A Here again, I think you would have to hear all the evidence. But just -- I believe that if there was more than one death involved, then I would think that his life should be taken or her life or whoever.

Q... But let's just assume... that you were satisfied beyond a reasonable doubt that Mr. Bishop was responsible for one or up to five of the deaths of the boys ranging in age from four years old to thirteen years old.

Do you believe that, then, the only penalty that would be appropriate would be death?

A If I had heard all the evidence and I had been explained from the court that the death penalty was appropriate in this case, yes, I would.

The following examination also transpired:

Q [by the prosecution] Mr. Harmon, if the jury were to find the defendant guilty of one or more of these capital crimes and you were on the jury and went to the sentencing phase and if the court instructed you that the mere fact that you had found him guilty of one or more of these crimes was not enough to vote for the death penalty but you had to weight the aggravating circumstances and the mitigating circumstances and then make your decision, could you follow that instruction?

A Yes, sir, I could.

Q [by defense counsel] Mr. Harmon, could you reserve that type of judgment until after all the evidence was presented? Could you do that?

A I have not made a judgment thus far and I won't until that time.

Q You know that, based upon the prosecutor's questions, what he is stating to you is that if, indeed, you find Mr. Bishop committed these offenses under certain aggravating circumstances, then you would have found that he did it and that is was a capital offense. But your job won't be over.

A I understand.

Q Then you would have to go into a penalty phase and determine whether or not the death penalty was proven to you beyond a reasonable doubt and that it was the only appropriate penalty in this case. Could you reserve your judgment from the guilt phase to the penalty phase?

A Yes, sir.

Review of Harmon's answers to counsels' questions reflects that he was willing to keep an open mind and apply the law as the court instructed. Approval of the death penalty is not legal partiality, *fn19 and we do not believe that Harmon's statements, when taken in contest, reveal that he would automatically apply the death penalty. And even if some of Harmon's statements can be read as facially raising a question of impartiality, subsequent questioning by counsel cleared up any doubts concerning Harmon's ability to be an impartial juror. We therefore conclude that the court did not err in refusing to remove Harmon.

In response to the trial court's questioning, Price stated that upon a defendant's conviction for first degree murder, he could impose a life sentence under certain circumstances, but it was not likely. He also stated that he did not feel the death penalty was imposed often enough. Defendant thus contends that Price's answers revealed an impermissible presumption in favor of execution. However, when Price's dialogue with the court and counsel is read in context, it is apparent that no such presumption existed in his mind:

The Court: And could you impose a life sentence rather than death under a given circumstance?

Mr. Price: Yes, definitely.

The Court: And could you do that even though you had determined the defendant guilty of murder in the first degree: Could you still feel that you could impose a life sentence under certain circumstances?

Mr. Price: Probably under certain circumstances, but not likely.

Q [by the prosecution] If we get to a sentencing phase, the court will instruct you that even though you have found the defendant guilty of capital punishment --

The Court: Guilty of a capital offense.

Q -- of a capital offense, before you can decide whether to give life or death, you have to follow certain standards.

Now, would you be able to follow those standards, or would you automatically vote for the death penalty?

A I don't know what the standards would be, you know, so I really don't feel I could answer that.

Q If you were told the standards would be that you would have to weigh aggravating circumstances against the mitigating circumstances and before you could find for death, you would have to find that those aggravating circumstance outweighed the mitigating circumstances beyond a reasonable doubt and that the death penalty was appropriate in the case beyond a reasonable doubt --

Now, my question is: would you follow those standards, or would you go automatically and vote for the death penalty?

A. If the court so desired, then definitely, I would follow their instructions.

Q And if after following those instructions you felt that the death penalty was not appropriate, would you be able to vote for life?

A Certainly.

Q [by defense counsel] Are there some kinds of cases, Mr. Price, that you think always require the death penalty?

A That's a tough one. No, I don't think so.

Q You said that it would -- if, in this case, you had already been part of the jury that had found Mr. Bishop guilty of a capital offense of homicides plus some aggravating circumstances like kidnapping, you had already decided that and returned that verdict, that it would not be likely that you could impose a life sentence. What makes you say that?

A Like I say, I am for capital punishment and death penalty. And I don't think the state or the country, for that matter, imposes it enough. That's my personal feeling.

Although Price state that it was unlikely he would impose a life sentence on a defendant accused of first degree murder, as can be clearly seen, this opinion was not unqualified; he indicated that circumstance existed where a life sentence would be appropriate. The fact that a juror is "strong for the death penalty," as was noted by the court, is not sufficient cause for his removable. *fn20 As was stated in Witherspoon v. Illinois, *fn21" A man who opposes the death penalty, no less than one who favors it, can make the discretionary judgment entrusted to him by the State and can thus obey the oath he takes as a juror." *fn22 We do not believe the death penalty. We so hold despite defendant's contention that Price volunteered that capital punishment should have been imposed in other capital cases. Prices stated: "of course, I wasn't a juror and I don't know what took place. But my personal feeling is that life shouldn't have been imposed on them."

Even assuming that his statement did facially raise an inference of impartiality, it was rebutted by subsequent questioning. When asked by the prosecution whether he would automatically vote for the death penalty or follow "certain standards," Price indicated that he did not know what standards he would be expected to follow, that he would follow the court's instructions, and that if pursuant thereto life was not appropriate, he would vote to impose a life sentence. Mr. Price again indicated that not all such cases call for the death penalty.

Similarly, we find no merit in defendant's contention that Price should have been excused for forming an opinion of guilt. Rule 18(e)(14) of Utah Rules of Criminal Procedure provides, in pertinent part:

o person shall be disqualified as a juror by reason of having formed or expressed an opinion upon the matter or cause to be submitted to such jury, founded upon public journals or common notoriety, if it satisfactorily appears to the court that the juror can and will, notwithstanding such opinion, act impartially and fairly upon the matter to be submitted to him.

Defense counsel queried as follows:

Q How is it that you are so easily able to set aside and ignore your own feelings that you have already expressed and an opinion you formed concerning Mr. Bishop's guilt?

Q How is it that you are able to say that, I formed an opinion of guilt, but I could easily set that aside? How are you able to --

The Court: And base his guilt or innocence on the evidence introduced.

Mr. Price: Well, I might add that most of my friends are in police work.

Q [by defense counsel] Yes.

A And just roughly talking, them not knowing circumstances, you know, how a bunch of fellow will make the -- say what should happen to an individual that commits crimes of those natures, you know.

And that's how I have expressed an opinion in the matter. And I do in any matter, such as that.

Q. So are you telling me that you have sort of jumped to some Conclusions in forming that opinion?

A Definitely, yes.

Q And therefore, it would be easy to ...


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