District Court, St. George Department The Honorable G.
Michael Westfall No. 101501945
W. Pendleton, Mary C. Corporon, and J.D. Lauritzen, Attorneys
D. Reyes and Karen A. Klucznik, Attorneys for Appellee
Michele M. Christiansen Forster authored this Opinion, in
which Judges David N. Mortensen and Jill M. Pohlman
CHRISTIANSEN FORSTER, JUDGE:
Brandon Perry Smith appeals his conviction of murder. We
2 Smith was acquainted with Paul Ashton, who had a history of
violence and dealing drugs. Ashton had two roommates,
Roommate and Boyfriend. While living with Ashton, Roommate
and Boyfriend had been visited by another individual (Friend)
who used illegal drugs with Boyfriend at Ashton's home.
Ashton, who had become a drug informant following a previous
arrest for drug possession with intent to distribute,
contacted his law enforcement handler and informed him that
he knew of two individuals the police might be interested in
investigating. A few days later, Roommate and Boyfriend
learned that Ashton was an informant. Boyfriend texted Friend
to ask if he would help them move out of Ashton's
residence. Friend and his girlfriend (Girlfriend) accompanied
Roommate to Ashton's residence while Boyfriend stayed at
another friend's home. In an effort to prevent Ashton
from knowing that she was aware he was a police informant,
Roommate told Ashton that the reason she was moving out so
suddenly was that Boyfriend had been arrested.
Roommate's ruse apparently did not fool Ashton, however,
because while Roommate, Friend, and Girlfriend loaded a truck
with Roommate and Boyfriend's belongings, Ashton began
texting Smith. Ashton told Smith that he needed "a
piece" to "defend [himself]" because he had
been "labeled a rat." Eventually, Smith agreed to
help, arriving at Ashton's residence about forty minutes
later with two guns. Smith was wearing his shooting gloves
and entered the apartment complex stealthily from the back,
anticipating trouble. He gave Ashton one of the two guns,
which Ashton put in his waistband. Soon after, Friend and
Girlfriend left with a truckload of belongings while Roommate
stayed behind to continue packing. Ashton gave Smith a pipe
wrapped in electrical tape and told him to knock Roommate
out, explaining that "then there would just be two"
to deal with when the others returned. Ashton also began
cutting lengths from a piece of rope to tie them up with.
Smith believed Ashton intended to "[tie] them up and
[take] them out, like, in the desert somewhere and
then-yeah." Despite Ashton's instructions, Smith did
not hit Roommate because he did not think the pipe was
"substantial enough" to knock her out.
When Friend and Girlfriend returned, they and Roommate began
loading additional items into the truck. When they could not
find Boyfriend's mountain bike, Roommate confronted
Ashton and accused him of stealing it. She called him names
and hit him in the face with a plastic tool kit. Ashton and
Smith both pulled out their guns. Ashton shot Roommate in the
head, killing her instantly. He then shot Friend in the
shoulder. Friend fell to the ground and blacked out. By this
time, Girlfriend had locked herself in the bathroom, and
Ashton yelled at Smith to "go get her."
Smith broke the bathroom door open and hit Girlfriend in the
head thirteen times with the pipe while Ashton waited outside
the bathroom. Although Smith initially intended only to knock
Girlfriend out, "that didn't work" and she was
in "a lot of pain," so "somewhere along the
line," Smith concluded that things had "gone too
far" and he "might as well just" kill her. He
slammed her head into the floor, choked her, and slashed her
throat three times with a pocket knife he had brought with
him. Ashton and Smith then fled. Girlfriend died from her
wounds a short time later.
In the meantime, Friend had escaped and called the police.
Police quickly caught up with Ashton and arrested him. Soon
after, Smith turned himself in because he heard that the
police were looking for him. At that time, Smith admitted
that he had loaned a gun to Ashton but claimed that he
blacked out after Ashton shot Roommate and Friend.
Officers picked up Smith and took him to the police station.
Before questioning Smith, the interviewing detective
(Detective) advised him of his Miranda rights in the
[Detective:] But you understand you do have the right to
remain silent, that anything you say can and will be used
against you in court? Okay. You have the right to an attorney
and to have one present with you while you're being
questioned- and if you can't afford one-
[Smith:] [I can't afford] one. [I can't] afford one.
[Detective:] Yeah. The courts will appoint you a lawyer if
you really need one, okay?
[Smith:] If it came to that or-
[Detective:] Yeah. If it-you know, if it comes to that,
but-so keep those in mind, you know, and go ahead and tell me
what you want to tell me.
then proceeded to question Smith, who confessed to killing
Smith was charged with aggravated murder and aggravated
assault. Prior to trial, he moved the court to
suppress his police interview on the ground that his
Miranda rights had been violated. Smith also moved
the court to suppress a crime scene video and autopsy photos
of Girlfriend. The court denied both motions.
Detective passed away before trial, but the State played the
audio recording of his interview with Smith for the jury. The
State also called as a witness the police officer who
transported Smith to jail after his interview (Officer).
Defense counsel sought to cross-examine Officer regarding a
conversation he had with Smith in which he asked Smith
"what he felt as he was committing the act of
murder." Smith explained to Officer that "he felt
he needed to complete the act because he didn't know what
[Ashton] would do to him if he didn't." When Officer
asked Smith "what he meant," Smith responded,
"[Ashton] just shot two people. So I thought maybe he
would shoot me." The State objected to this line of
questioning as being beyond the scope of Officer's direct
examination, and defense counsel agreed to defer questioning
about the conversation until Smith presented his defense.
When it came time for Smith to present his defense on day
five of the trial, he began by calling Officer as a witness,
but the State objected on hearsay grounds to Officer
testifying regarding his conversation with Smith. Smith
asserted that the conversation should be admitted under the
rule of completeness. See Utah R. Evid. 106. The
court initially sustained the State's objection, but upon
receiving further information that same day, it indicated
that it would reexamine the issue if defense counsel provided
additional relevant authority. Defense counsel did not raise
the issue again until after the jury was excused on day seven
of the trial. At that point, the court heard additional
argument and took the State's objection to Officer's
testimony under advisement. The next day, following further
discussion of the matter off the record, the State withdrew
its objection, and Officer was permitted to testify regarding
his conversation with Smith.
Smith moved for a mistrial on the grounds that the delayed
ruling had "an unfair effect upon the defendant."
Because Officer's statement was admissible under the rule
of completeness, Smith argued, the jury should have been
permitted to hear that testimony at the same time it heard
the audio recording of Smith's police interrogation. The
court denied Smith's motion because it determined that
any delay was invited by Smith, who did not argue that the
rule of completeness was applicable at the time of