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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 set aside?

A Oh, yes, surely.

Price not only said that he could set his opinion aside, but also noted that it was based upon the type of common notoriety expressly mentioned in rule 18(e)(14). Thus, Price did not have an "unqualified opinion" under rule 18(e)(13). Price's testimony does not, as claimed by defendant, exhibit any prejudice against him. Price inferred that his standards were based on "light impressions" which he could easily set aside. Moreover, at the Conclusion of the individual voir dire all of the panel members were asked whether they could and would set aside any opinions they had. Price indicated that he would.

Finally, Filip state that it would require a strong argument for her not to sentence to death a defendant responsible for five murders. Defendant challenged the juror on the bases that she believed the death penalty would be the only appropriate penalty and that defendant would have the burden to negate this feeling. However, Filip further stated:

Q [by the prosecution] Mrs. Filip, if you found after deliberation in the guilt phase beyond a reasonable doubt that Mr. Bishop was guilty of the five capital crimes, would you in the sentencing phase automatically vote for death, or would you listen to the evidence and make a weighing of any mitigating circumstances against the aggravating circumstances?

A I wouldn't automatically vote for a death sentence. I think that would be a very difficult thing to do. I would listen to what was said.

Q And do you realize even in the sentencing phase the burden is upon the State to prove that this person -- from the evidence, that the death penalty would be appropriate? The burden is on the State still.

A. Yes, yes.

Filip's answers, when taken in context, clearly indicate that she would follow the court's instructions and keep a fair and open mind when considering the testimony at trial. We are convinced that the trial court did not abuse its discretion in not dismissing Filip for cause.

We have also reviewed the record concerning the selection of the other panel members challenged for cause and determine that in none of those cases did the court abuse its discretion.

VI. CONSTITUTIONALITY OF ALLOWING TEN PEREMPTORY CHALLENGES

Defendant's third point is that the lower court erred by not declaring rule 18(d) of the Utah Rules of Criminal Procedure unconstitutional. That provision allows the prosecution to exercise ten peremptory challenges against a death-qualified jury in a pro-death-penalty state results in a "conviction-prone" and "death-prone" jury in violation of a defendant's constitutional rights.

Defendant's tri-part argument rests upon, first, the death qualification of the panel; second, a survey of registered voters from Salt Lake County which, defendant claims, demonstrates pro-death-penalty attitudes on the part of Utahns; and third, the ten peremptories allowed by rule 18(d). It is the effect of these three components' operating upon one another that defendant claims causes rule 18(d) to be infirm.

The sixth amendment to the United States Constitution guarantees an accused a trial by an impartial jury. *fn23 Selection of petit juries from a representative cross-section of the community is an essential component of this guarantee. *fn24

Death qualification of a jury involves the identification and removal for cause of those panel members whose views on capital punishment prevent or substantially impair the performance of their duties in accordance with the "jurors' oath" and the court's instructions. *fn25 And under Utah law, those panel members who would always vote for the death penalty upon conviction of first degree murder are also excludable. *fn26

Defendant relies on footnote 18 in Witherspoon v. Illinois, *fn27 which indicates that a defendant might establish that a death-qualified jury was less than neutral with respect to guilt. *fn28 However, this argument has been laid to rest.

In Lockhart v. McCree, *fn29 the defendant had been convicted of capital felony murder and was sentenced to life without possibility of parole. Prior to the guilt phase of the defendant's bifurcated trial, the Judge removed for cause those prospective jurors who stated that they could not under any circumstances vote for imposition of the death penalty. *fn30 The defendant subsequently filed a petition, claiming inter alia that removal of the jurors violated his sixth and fourteenth amendment rights to have his guilt or innocence determined by an impartial jury selected from a representative cross-section of the community.

In Lockhart, the United States Supreme Court reversed an Eighth Circuit opinion upholding the district court's decision that had granted the defendant petition. the Supreme Court held that the United States Constitution does not prohibit the removal for cause, prior to the guilt phase of a bifurcated capital trial, of prospective jurors whose opposition to the death penalty is so strong that it would prevent or substantially impair the performance of their duties as jurors at the sentencing phase of trial. *fn31 The decision dealt with both the fair cross-section and impartially guarantees of the sixth and fourteenth amendments. *fn32

This Court has previously considered the point and came to the same Conclusion in State v. Lafferty, *fn33 State v. Moore, *fn34 and State v. Schreuder. *fn35

Defendant claims, however, that the death-qualification process allowed identification by the prosecution of neutral or "death penalty scrupled" panel members who were then excluded with peremptory challenges by the prosecution. In Lockhart, the United States Supreme Court said:

We would in any event reject the argument that the very process of questioning prospective jurors at voir dire about their views of the death penalty violates the Constitution. McCree concedes that the State may challenge for cause prospective jurors whose opposition to the death penalty is so strong that it would prevent them from impartially determining a capital defendant's guilt or innocence. Ipso Facto, the State must be given the opportunity to identify such prospective jurors by questioning them at voir dire about their views of the death penalty. *fn36

We therefore conclude that this aspect of defendant's argument fails and that this failure wholly undermines his attack on rule 18(d). Yet, even assuming arguendo that the first aspect of defendant's argument had some merit, his point on appeal still must fail.

Defendant relies on Batson v. Kentucky *fn37 in support of his claim that the State's exercise of its peremptory challenges to remove all individuals who entertain "scruples" against imposition of the death penalty, and amidst much ambiguity, he appears to claim that this violates the fair-cross-section component of the sixth amendment. However, Batson expressly declined to address the fair-cross-section challenge to the discriminatory use of peremptory challenges. *fn38 And in Lockhart, the Court noted that it had never invoked the fair-cross-section principle to invalidate the use of either for-cause or peremptory challenges to prospective jurors or to require petit juries, as opposed to jury panels or venires, to reflect the composition of the community at large. *fn39 That Court concluded that an extension of the fair-cross-section requirement to petit juries would be unworkable and unsound. *fn40 The Court, instead of stopping there, held, assuming arguendo that such a constitutional requirement did exist, that "groups defined solely in terms of shared attitudes that would prevent or substantially impair members of the group from performing one of their duties as jurors, such as the 'Witherspoon-excludables'... are not 'distinctive groups' for fair cross section purposes." *fn41

Finally, the survey relied on by defendant is not particularly persuasive and is far from the type of evidence this Court needs before striking legislative enactments. *fn42

V. COMPOSITION OF THE JURY

Defendant's fourth point is that he was denied his right to trial by a jury chosen from a fair cross-section of the community. Before the jury was sworn, defendant moved to quash the panel on the ground that using voter registration lists as the sole source of jurors in Salt Lake County violated his rights under the sixth amendment to the United States Constitution. The motion was denied. On appeal, defendant again raises the issue, contending that the use of voter registration lists as the exclusive source of jurors leads to the systematic under-representation of racial and ethnic minorities, particularly Hispanics, on panels in Salt Lake County.

In State v. Tillman, *fn43 defendant Tillman raised this issue for the first time on appeal by incorporating the record evidence and argument from this case. In Tillman, we addressed the issue both as to defendant Tillman and defendant Bishops, and we concluded that the point was without merit. *fn44

VI CHANGES OF VENUE AND SEQUESTRATION OF THE JURY

Defendant's fifth point is that the trial court violated his constitutional rights by denying his motion for change of venue.

In January 1984, defendant filed a motion for a change of venue pursuant to rule 29(e) of the Utah Rules of Criminal Procedure. *fn45 Defendant's motion was premised upon a claim that he could not receive a fair trial in Salt Lake County because of public sentiment against him and due to the extensive media coverage of the events surrounding the case. By defendant's own choice, a hearing on the motion was not had until after voir dire had been completed. The motion was subsequently denied.

Defendant relies upon Rideau v. Louisiana, *fn46 Estes v. Texas, *fn47 and Sheppard v. Maxwell *fn48 to support his argument that pretrial publicity in this case was so massive and prejudicial that his trial inherently lacked due process. In Rideau, the United States Supreme Court reversed the conviction of a defendant whose staged and highly emotional confession had been filmed with the cooperation of the police and then broadcast on television for three days while he was awaiting trial. *fn49 In so holding, the Court said, "ubsequent court proceedings in a community so pervasively exposed to such a spectacle could be but a hollow formality." *fn50 Similarly, in Estes, the Court reversed a conviction where the "volume of trial publicity, the Judge's failure to control the proceedings and the telecast of a hearing of the trial itself 'inherently prevented a sober search for the truth.'" *fn51 Finally, in Sheppard, the Court reversed the defendant's conviction after relating for several pages perhaps the most egregious pretrial and trial publicity ever reported, which, in the Court's own words, led to a "carnival atmosphere at trial" that could have been prevented by the trial court. *fn52

After reviewing the record, we hold without reservation that the publicity and attendant circumstances in this case did not amount to "one of those exceptional cases where pretrial publicity exacerbated by State complicity encouraged the jurors to form such strong preconceived views of the defendant's guilt as to be considered inherently prejudicial against him." *fn53

Because we hold that pretrial publicity and community sentiment did not inevitably lead to an unfair trial, defendant may prevail on his point only if he demonstrates that the trial was not fundamentally fair. *fn54 We begin with the proposition that whether a motion for a change of venue should be granted rests within the sound discretion of the trial court. *fn55 The standard used to determine if an abuse of discretion has resulted is whether the defendant has had "a panel of impartial, 'indifferent' jurors." *fn56

The United States Supreme Court in Irvin v, Dowd, *fn57 noted that qualified jurors need not be totally ignorant of the facts and issues involved.

To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. *fn58

Thus, defendant has the burden of demonstrating the existence of actual prejudice on his appeal. *fn59

To demonstrate that he was actually prejudiced by pretrial publicity, defendant principally relies upon a random telephonic survey of 400 Salt Lake County voters conducted between February 13 and 16, 1984. The survey indicates that 80 percent of the respondents stated that they believed defendant to be guilty. Additionally, 88 percent of the respondents stated that if defendant were found guilty, he should be sentenced to death. However, 71 percent felt that defendant would get a fair trial in Salt Lake County, and 76 percent indicated that they could probably or would definitely be fair jurors.

Defendant next claims that only 32 out of the 84 panel members indicated they had formed an opinion, which means if the survey accurately predicted potential juror views, the panel deviated from the community by 53 percent. Defendant argues that this gross under-representation of the opinionated group demonstrates that the panel was not candid during voir dire. Further, defendant claims that the discrepancy between the respondents who said they had an opinion (80 percent) and those who said they would be fair jurors (76 percent) shows that voir dire was an unreliable indicator of impartiality.

Even if we were to agree (and we do not) that 32 panel members expressed that they had an opinion, defendant's argument fails for a number of reasons. First, it is doubtful whether surveys such as the one in this case have any predictive value concerning qualified jurors who report for jury service. *fn60 second, defendant's survey did not ask whether the respondents could set their opinions aside. Third, the trial court was free to reject the validity of the opinion poll in exercising its sound discretion. *fn61 Finally, defendant asserts, "They survey... is a more objective measurement of actual prejudice than the flawed voir dire examination in which the court refused to allow the asking of crucial questions and improperly rehabilitated the venireperson ." As indicated, the voir dire was not flawed. *fn62 And such a bald assertion of prejudice is inadequate to justify a change of venue. *fn63

The test is whether any jurors were actually prejudiced against defendant. Defendant has not even begun to satisfy his burden. The only comment on the actual voir dire made by defendant is a conclusory statement that "inspection of the jury voir dire discloses that most of the prospective jurors had formed an opinion regarding Mr. Bishop's guilt."

Defendant also claims that potential juror had read a prejudicial news article which appeared in the paper the morning of jury selection. However, only six panel member reported that they had read part or all of the article or seen the headlines thereof. Of these, all but one were excused. This juror indicated that she would decide the case solely on the evidence produced at trial and would disregard the article. She said she had no opinion as to defendant's guilt. The other members of the jury also indicated that they would follow the court's instructions, and a review of their voir dire indicates that they manifested no partiality as to defendant's case. therefore, defendant's claim that he was erroneously denied a change of venue is without merit.

Defendant also contends that the trial court erred by failing to sequester the jury, but this does not address this issue. Moreover, our review of the record does not reveal that a motion or any argument to sequester was made by defendant. Defendant, however, has attached as an addendum to his brief affidavits in which counsel testify that a motion to sequester was presented orally to the trial Judge during an unreported conference.

Even if we assume defendant made a motion to sequester, a review of the record indicates that the trial court did not abuse it's discretion in failing to grant the motion. The trial Judge specifically instructed the jury not to watch television, listen to radio, read the paper, or discuss any matters which might have been relevant to the case. There is no evidence that the jury disregarded these instructions. We find defendant's claim to be without merit. *fn64

VII. CONSTITUTIONALITY OF THE DEATH PENALTY

In his sixth and seventh points, defendant raises several objections to the constitutionality of Utah's death penalty statutes. Utah Code Ann. §§ 76-3-206, -207 (1978 & Supp. 1986). Defendant urges that we hold the statutes unconstitutional because (1) the death penalty constitutes cruel and unusual punishment, (2) the death penalty violates principles of due process and equal protection, (3) the statutes allow the jury too much discretion in determining whether to impose the death penalty because it is not instructed on how to consider aggravating and mitigating circumstances, (4) the scheme in conjunction with the first degree murder statute allows the "double counting" of aggravating circumstances in both the death penalty, (5) the statutory scheme allows a "de facto" shift of the burden of proof to the defendant in the penalty phase, and (6) the scheme provides for inadequate review since no written findings are mad concerning the aggravating and mitigating circumstances. A review of our cases ruling on the constitutionality of the death penalty statutes, as well as an examination of the briefs underlying these decisions, indicates that in substance all these claims have been previously urged upon this Court, albeit framed at times in a slightly different fashion, and rejected. *fn65 The reasoning of those cases is sound, and we decline to depart from the holdings therein. Utah's death penalty is constitutional and was constitutionally applied to defendant.

VIII. SUPPRESSION OF DEFENDANT'S CONFESSION

Defendant's eighth point is that the trial court erred by denying his motion to suppress his confession. Resolution of the issue requires additional factual development.

A

Defendant filed a pretrial motion to suppress his confession wherein he had described how he murdered the five boys. On February 9, 1984, an evidentiary hearing was held and the following facts were developed.

Prior to defendant's confession, police officers were told that Graeme Cunningham had been planning to go with his friend, J. H., and J. H.'s father Roger Downs, on a vacation to California tow days after Graeme's disappearance. The officers also learned that Downs had contacted Graeme by telephone just before Graeme disappeared.

Further investigation revealed that Downs had lived at several addresses in the Salt Lake City area, that he had offered to take a nude photograph of a young boy, that he had spent a lot of money on young boys, and that he told dirty jokes to young boys. The officers also learned that Downs was not J. H.'s ...


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