Troy Michael Kell (born June 13, 1968) is an
inmate on death row in Utah. Troy Kell was sentenced to life in prison
by the State of Nevada for the 1986 murder of James "Cotton" Kelly.
Shortly after his conviction he was transferred to
the Utah State Prison as part of a prisoner exchange program. On July
6, 1994, Troy Kell attacked and killed inmate Lonnie Blackmon at the
Utah Department of Corrections Gunnison facility, stabbing Blackmon a
total of 67 times while his associate, Eric Daniels, held Blackmon
down. Kell was sentenced to death by firing squad for his part in the
Once in prison, Kell became a white supremacist
gang leader. Prior to the attack on Blackmon, Kell had been involved
in race-related altercations with several black inmates, including
Blackmon. The murder was captured on the prison security closed-circuit
HBO, in cooperation with Blowback Productions
filmed a documentary, entitled, Gladiator Days: Anatomy of a Prison
Murder, released in 2002. The documentary tells the story of Troy
Kell and Eric Daniels' murder of Lonnie Blackmon, and shows footage of
the initial trial in 1996; statements from Kell, Daniels, guards, the
state attorney, Blackmon's brother, and Sandra Shaw (who was serving
time elsewhere as the instigator of Kell's first murder, for which
Kell was originally incarcerated); and footage of the attack captured
by the CCTV within the Utah Prison in Gunnison, Utah.
Due to security concerns, the state won the right
to hold Kell's trial in a courtroom within the Utah State Prison
facility. Convicted of aggravated murder, the state pushed for and
secured a death penalty verdict from the jury. In 2003, he came within
a month of execution by firing squad, but eventually chose to file an
appeal. As of May 2008, Kell remains on death row, as his appeals
Conviction for a previous murder
Kell was originally imprisoned in the state of
Nevada for the murder of 21-year old James "Cotton" Kelly. In 1986,
Kell, then age 18, was asked by 15 year-old suitor, Sandra "Sandy"
Shaw, to "do something" to Cotton Kelly for his inappropriate advances
towards Ms. Shaw.
Cotton Kelly drove into the desert with Shaw, Kell,
and a third young man (William "Billy" Merritt), where Kell shot Kelly
six times in the face, killing him. The murder was dubbed the "Show
and Tell Murder" by Las Vegas media, because Shaw and another teen
(David Fletcher) returned to the scene of the crime with their friends,
to see the corpse. One of the friends eventually reported the incident
to the police which led to the arrests and convictions of Shaw, Kell,
The Las Vegas Sun reported Ms. Shaw's words: “I
made a horrible, immature decision to ask a friend to rough this man
up so he would leave me alone,” Sandy says. “Cotton Kelly had been
hassling me and pestering me to go out with him and to pose for nude
pictures. He would call our house at all hours of the day and was so
persistent that my mom phoned the police to request that they keep him
away from me. But they didn’t have stalking laws in place then like we
For her part in the crime, Sandy Shaw was sentenced
to life in prison without the possibility of parole. In 2004, the
State Board of Pardons and Parole commuted her sentence making her
eligible for parole. She served 21 years of her sentence and was
released on parole in December 2008. William Merritt was released from
prison after serving 12 years. He later returned for subsequent crimes.
Troy Kell was sentenced to life in prison without parole. He was
transferred to Utah because of violent altercations between himself
and other inmates and gang affiliations.
On Thursday December 9, 2010, Troy Michael Kell
married his Fiancee (not identified) at the Utah State Prison-Draper
in a non-contact visitation room.
In the Supreme Court of the State of Utah
2002 UT 19
State of Utah,
Plaintiff and Appellee
Troy Michael Kell, Defendant and Appellant
Sixth District, Sanpete County
The Honorable David L. Mower
Mark L. Shurtleff, Att'y Gen., Laura B. Dupaix,
Kirk Torgensen, Scott Reed, Asst. Attys Gen., Salt Lake City, Ross
Blackham, Manti, for plaintiff
Stephen R. McCaughey, Salt Lake City, for defendant
¶1 Defendant Troy Michael Kell, an inmate at the
Central Utah Correctional Facility (CUCF) in Gunnison, Utah, was
charged with aggravated murder, a violation of section 76-5-202 of the
Utah Code. After being tried in a courtroom located inside the prison
facility, he was convicted and sentenced to death.
¶2 Defendant stabbed fellow inmate Lonnie Blackmon
(Blackmon) to death on July 6, 1994. Prior to the attack, defendant, a
white supremacist, had been involved in race-related altercations with
several African-American inmates, including Blackmon.
¶3 On the day before the killing, defendant and two
of his accomplices, Eric Daniels (Daniels) and Paul Payne (Payne),
submitted medical request forms to visit the prison's medical
facility. In addition, Daniels forged a medical request form in
Blackmon's name so that Blackmon would be transported to the medical
facility at the same time defendant and his accomplices were being
¶4 Moments before the attack occurred, defendant
and Blackmon were moved from the upper tier of the building at the
CUCF where they were housed to the lower tier where they awaited
transfer to the prison's medical facility. Both defendant and Blackmon
were placed in double locked handcuffs fastened to a belt around the
waist. Their feet were not placed in shackles so that they could
safely descend the stairs from the top tier of the cell block. By this
time, Daniels had also been moved to the lower tier to go to the
medical facility. Payne's request to go to the medical facility had
been denied because he was in punitive isolation on the top tier of
the cell block. Nevertheless, at his insistence, Payne was permitted
to shower on the lower tier of the cell block rather than in the
showers located on the second tier of the cell block, where his cell
¶5 While descending to the lower tier, defendant
removed his handcuffs with a partial handcuff key that had been
altered with a homemade handle made from melted plastic utensils.
Defendant also produced a shank.(1) Blackmon was
standing with his back to defendant talking to other inmates, when
defendant began to stab him repeatedly in the neck, eyes, face, back
and chest. Defendant was free to use his unrestrained hands and arms
during the attack, but Blackmon could only kick at his attackers to
defend himself because he was still in handcuffs that were attached to
his waist. Blackmon's efforts were futile in any event because Payne
choked and punched him and Daniels held onto his legs during the
¶6 For over two and a half minutes, defendant
slashed Blackmon with his shank, inflicting sixty-seven stab wounds,
only two of which were described by the forensic examiner as being
capable of inflicting death in the short term. Despite Blackmon's
pleas to stop, defendant continued the assault and, in fact, after
walking away, returned twice to inflict more wounds, until Blackmon
lay motionless on the floor of the cell block. Blackmon bled to death
and defendant was charged with aggravated murder. A more detailed
account of the attack can be found in the companion case of State
v. Daniels, 2002 UT 2.
¶7 Following two pretrial evidentiary hearings, the
trial court determined to hold defendant's trial in a regular
courtroom located inside the CUCF. This decision was based on security
risks particular to defendant, including his criminal background,
prison disciplinary record, and overall prison history. In addition,
several logistical problems regarding security existed in trying
defendant in either of the two courtrooms available outside the
prison. Because most of the numerous witnesses in the case were either
prison guards or high security inmates, the security risks and costs
associated with transporting all of them to a courtroom located
outside of the county would have been extremely high; thus, the trial
court decided to hold the trial in the courtroom located within the
confines of the prison.
¶8 At trial, defendant testified that he killed
Blackmon because Blackmon had overtly threatened him. According to
defendant, Blackmon wanted to make an example of him to the other
inmates to demonstrate Blackmon's power in the prison. Defendant
stated he believed Blackmon was making a threat when he overheard
Blackmon say to another inmate on the day of the killing, "Yeah man .
. . it's on. You know it," even though Blackmon made no threatening
gestures toward defendant. Defendant claimed that due to conditions in
the prison and circumstances surrounding Blackmon's threats, he was
suffering from "extreme emotional disturbance" at the time of the
homicide. One eyewitness testified, however, that during the attack
defendant's demeanor was "very business like, as cold as cold gets. It
was like he was doing a job."
¶9 Based on his testimony, defendant asked the
court to instruct the jury on the defense of imperfect self-defense
manslaughter, but the court declined his request. The trial court did,
however, instruct the jury on the lesser included offense of murder,
as well as aggravated murder. The jury unanimously found the defendant
guilty of aggravated murder and sentenced him to death.
¶10 On appeal defendant raises twelve claims of
error, as follows: (1) the trial court erred by denying him his
constitutional rights to a public trial, to the presumption of
innocence, to a fair trial, and to equal protection of the law, by
trying him in a courtroom located inside a prison; (2) the trial court
violated his constitutional right to a fair trial by denying him an
impartial jury in its rulings on voir dire; (3) the trial court erred
by failing to instruct the jury on the theory of imperfect
self-defense manslaughter; (4) the trial court erred by requiring
jurors to view a videotape of the homicide; (5) multiple evidentiary
errors individually and cumulatively deprived him of a fair trial; (6)
the prosecutors violated his rights to due process of law and
protection under the Eighth and Fourteenth Amendments of the United
States Constitution by making improper arguments to the jury; (7) the
trial court erred during the penalty phase by forbidding the jury to
consider mercy and sympathy as mitigating factors; (8) the victim
impact evidence admitted in the penalty phase and the Utah statute
that allows it, are unconstitutional; (9) Section 76-5-202 of the Utah
Code, which describes the aggravating factors necessary for capital
murder, is unconstitutionally vague on its face; (10) the Utah death
penalty statutes are unconstitutional because they do not narrow the
class of death-eligible murders, thus encouraging the arbitrary and
capricious application of the death penalty; (11) the capital
sentencing proceedings were flawed; and, (12) because defendant had
already been disciplined through the prison's disciplinary
proceedings, the subsequent trial violated state and federal
constitutional double jeopardy provisions. Because defendant raises
numerous issues involving different standards of review, we set forth
the proper standard as we address each issue.
I. WHETHER THE LOCATION OF THE TRIAL PREJUDICED THE
¶11 Defendant argues that holding the trial in a
courtroom inside the prison denied him his constitutional rights to a
fair trial, the presumption of innocence, equal protection under the
law, and a public trial. We reviewed some of these issues in State
v. Daniels, where we applied close judicial scrutiny and reviewed
the trial court's decision for correctness. 2002 UT 2 at ¶¶ 15-19.
¶12 In Daniels, this court concluded that
holding the trial at the prison did not constitute a violation of the
defendant's constitutional rights to a fair trial or to the
presumption of innocence, because "try[ing] an inmate in a prison
courtroom for a violent crime alleged to have been committed inside a
prison by a person incarcerated for a previous conviction does not per
se present an unacceptable risk of bringing into play impermissible
factors which might erode the presumption of innocence." 2002 UT 2 at
¶ 26. Nevertheless, we concluded that "a case-by-case evaluation is
necessary" to make the determination whether to hold a trial in a
¶13 Here, in addition to alleging the lack of a
fair trial or presumption of innocence, defendant also raises a claim
regarding his right to equal protection. The latter claim warrants
identical treatment as the previous ones; we hold that no
constitutional violations have occurred because the actions taken by
the trial court were not inherently prejudicial. Seeid. at ¶ 20
(citing Holbrook v. Flynn, 475 U.S. 560, 567 (1986)).
¶14 This ruling is supported by responses to the
questionnaires filled out by each potential juror in this case. For
example, the juror questionnaire asked, "Does the fact that this trial
is being held at the Central Utah Correctional Facility affect your
ability to sit as a juror in this case?" Of the one hundred and
thirteen potential jurors who filled out questionnaires, only ten
answered the question affirmatively, and of those ten, only two
potential jurors explained that it was because they did not feel
comfortable with the courtroom location itself. Neither of the jurors
who expressed reservations about the prison were selected to sit on
the jury. Accordingly, we conclude that the location of the trial did
not prejudice the outcome of this case.
¶15 Finally, defendant argues that holding the
trial in the prison violated his Sixth Amendment right to a public
trial. In most cases, if the reviewing court finds that a
constitutional error was harmless beyond a reasonable doubt, it need
not reverse. Chapman v. California, 386 U.S. 18 (1967);
State v. Villarreal, 889 P.2d 419, 425 (Utah 1995). The U.S.
Supreme Court has, however, identified a few unique circumstances in
which a constitutional error so undermines the fairness of the
proceedings that prejudice must be presumed. E.g., Johnson
v. United States, 520 U.S. 461, 468-69 (1997) (identifying six
constitutional errors that make up the "very limited class of cases"
that defy harmless-error analysis). A violation of the accused's right
to a public trial is one such circumstance.(2)
SeeWaller v. Georgia, 467 U.S. 39 (1984); see also
State v. Crowley, 766 P.2d 1069, 1071 (Utah 1988)(quoting State
v. Jordan, 57 UT 612, 618, 196 P. 565, 567-68 (1921)) (holding
that prejudice is presumed when one's right to a public trial under
the Utah Constitution has been violated).
¶16 In this case, there is no evidence that
defendant's right to a public trial was violated. The requirement of a
public trial serves an essential purpose: "that the public may see
[the accused] is fairly dealt with and not unjustly condemned, and
that the presence of interested spectators may keep his triers keenly
alive to a sense of their responsibility and to the importance of
their functions." Waller, 467 U.S. at 46 (quoting Gannett
Co. v. DePasquale, 443 U.S. 368, 380 (1979)). Here, although the
trial took place in a courtroom at the prison, the proceedings were in
no way closed to the public. Cf. State v. Jackson, 178
Or. App. 233, 243-44 & n.3, 36 P.3d 500 (2001) (holding that a
defendant's right to a public trial under the Oregon Constitution was
violated where the trial, which was held in a prison, was closed to
the public, where the proceedings were broadcast by close-circuit
television to a public courtroom, and where the State had made no
showing of need to restrict access to the proceedings). Indeed, when
deciding on the venue for the trial, the trial court stated that at
least twenty-three non-inmate citizens were expected to attend the
proceedings. While the prison courtroom may or may not have been as
inviting to the public as another venue, there is no evidence that the
public could not freely attend. We therefore find that defendant's
right to a public trial was not violated.
II. WHETHER DEFENDANT WAS DENIED A FAIR TRIAL
OF ERRORS IN THE JUROR VOIR DIRE PROCESS
¶17 Defendant claims he was denied the right to a
fair trial because the jury voir dire process was flawed.
Specifically, he contends that the court should have denied two
improper for-cause challenges by the prosecution and granted five
proper for-cause challenges by the defense. A trial court's decision
to grant or deny a motion to remove a juror for cause is reviewed for
an abuse of discretion. State v. Lafferty, 2001 UT 19, ¶ 58, 20
¶18 The federal constitutional standards relating
to jury selection in death penalty cases were articulated by the
United States Supreme Court in Witherspoon v. Illinois, 391
U.S. 510 (1968). It held that a death sentence could not be carried
out "if the jury that imposed or recommended it was chosen by
excluding veniremen for cause simply because they voiced general
objections to the death penalty or expressed conscientious or
religious scruples against its infliction." Id. at 522. The
Court recognized that such wholesale exclusions of veniremen
constituted a violation of the defendant's Sixth and Fourteenth
Amendment rights to an impartial sentencing jury. Id. at 513,
518. The Court further articulated that "[i]t is . . . settled that a
State may not entrust the determination of whether a man is innocent
or guilty to a tribunal 'organized to convict.'" Id. at 521
(citing Fay v. New York, 332 U.S. 261, 294 (1947)). However,
the Court made clear that it would not bar a state from excluding for
cause veniremen whose "attitude toward the death penalty would prevent
them from making an impartial decision as to the defendant's guilt."
Id. at 522 n.21.
¶19 Twelve years later, in Adams v. Texas,
448 U.S. 38 (1980), the Court explained Witherspoon and its
progeny as establishing "the general proposition that a juror may not
be challenged for cause based on his views about capital punishment
unless those views would prevent or substantially impair the
performance of his duties as a juror in accordance with his
instructions and his oath." Adams, 448 U.S. at 45. In light of
the legal standard articulated in Adams, the question then
becomes whether the trial court correctly applied it in the cases of
prospective jurors V.D. and R.F.(3)
¶20 The record of the voir dire examination clearly
shows that V.D. had reservations about imposing the death penalty in
all but two circumstances: when a child molester kills a child, and
when a rapist kills his victim. Her views fall into the category of
those things that could "substantially impair the performance of . . .
[her] duties as a juror in accordance with . . . [her] instructions
and . . . [her] oath." Adams, 448 U.S. at 45. R.F. claimed the
ability to listen to the facts and apply the law, but she also made
other statements indicating that she would have a very difficult time
imposing the death penalty herself. This court has previously held
that the trial court is to be granted broad discretion in determining
whether a juror should be dismissed for cause. See State v.
Carter, 888 P.2d 629, 649-50 (Utah 1995); State v. Young,
853 P.2d 327, 344 (Utah 1993); State v. Archuleta, 850 P.2d
1232, 1240 (Utah 1993). In fact, in this case the trial judge was
even-handed in excluding other prospective jurors for cause, most
notably two jurors who were excused because they appeared to be too
eager to impose the death penalty. Because the trial court should be
afforded substantial deference in determining juror for-cause
dismissals and because its ruling was not unreasonable given the high
likelihood that the views expressed by these jurors would
substantially impair performance of their duties, we affirm.
¶21 As to defendant's five for-cause challenges
denied by the trial court, we look again to the broad discretion
standards articulated in Carter, Young, and Archuleta.
Nothing in the record indicates that the trial court abused its
discretion in denying the challenges. Thus, we affirm its ruling.
III. WHETHER THE TRIAL COURT COMMITTED STRUCTURAL
BY NOT INSTRUCTING THE JURY ON THE THEORY
IMPERFECT SELF-DEFENSE MANSLAUGHTER
¶22 Defendant claims the trial court committed
structural error by not instructing the jury on the lesser included
offense of imperfect self-defense manslaughter. "Whether the trial
court's refusal to give a proposed jury instruction constitutes error
is a question of law, which we review for correctness." State v.
Hamilton, 827 P.2d 232, 238 (Utah 1991).
¶23 We also addressed this issue in Daniels.
In that case, the jury returned a guilty verdict on the charge of
aggravated murder, rejecting the option of finding the defendant
guilty of the lesser included offense of murder. 2002 UT 2 at ¶ 13. On
appeal, Daniels argued that the trial court erred by failing to
instruct the jury on manslaughter. Id. at ¶ 14. We rejected
that argument concluding that
where a jury is instructed on, and has the
opportunity to convict a defendant of, a lesser included offense,
but refuses to do so and instead convicts the defendant of a greater
offense, failure to instruct the jury on another lesser included
offense, particularly an offense that constitutes a lesser included
offense of the lesser included offense that the jury was instructed
on, is harmless error.
Id. at ¶ 28. Likewise, the defendant in this
case has not been harmed, because the jury chose to convict him of the
more serious offense of aggravated murder, rejecting the option of
convicting him of the lesser included offense of murder. Thus, an
instruction on the lesser included offense of imperfect self-defense
manslaughter would have been of no consequence.
IV. WHETHER THE TRIAL COURT COMMITTED REVERSIBLE
BY ALLOWING THE JURY TO VIEW A VIDEOTAPE
OF THE HOMICIDE
¶24 Defendant claims the trial court violated his
constitutional right to a fair trial by allowing the jury to view a
videotape of the homicide. He claims the videotape was unduly
prejudicial and should have been excluded under rule 403. A trial
court's decision to admit evidence under rule 403 of the Utah Rules of
Evidence is reviewed for an abuse of discretion. State v. Boyd,
2001 UT 30, ¶ 23, 25 P.3d 985.
¶25 Rule 403 of the Utah Rules of Evidence states
that "although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair prejudice,
confusion of the issues, or misleading the jury, or by considerations
of undue delay, waste of time, or needless presentation of cumulative
evidence." Although rule 403 contains a presumption of admissibility
of evidence, evidence that has "an unusually strong propensity to
unfairly prejudice, inflame, or mislead a jury" will be deemed
inadmissible. State v. Lafferty, 749 P.2d 1239, 1256 (Utah
1988). Inadmissible evidence may include gruesome photographs of a
homicide victim's corpse, evidence of a rape victim's past sexual
activities with someone other than the accused, and statistical
evidence of matters not susceptible to quantitative analysis, such as
witness veracity. Id.
¶26 However, even if the evidence has the potential
for prejudicing a defendant, it will be admitted if it has unusual
probative value. State v. Vargas, 2001 UT 5, ¶ 51, 20 P.3d 271;
see also State v. Decorso, 1999 UT 57, ¶ 53, 993 P.3d
837 (holding that under rule 403, a court may "exclude relevant
evidence only if its probative value is substantially outweighed by
risk of unfair prejudice" (citing Utah R. Evid. 403)); State v.
Danker, 599 P.2d 518, 519 (Utah 1979) (holding that "if evidence
is relevant and competent, the mere fact that it may be inflammatory
does not render it inadmissible"). We can think of nothing more
probative and relevant than an actual videotape of a crime in
progress. Although the videotape in question is disturbing and
difficult to watch, it unequivocally illustrates defendant's demeanor,
sheds light on his motivations for the attack, and objectively
substantiates the testimony of the eyewitnesses. Because of their high
probative value, we do not place videotapes of a crime in progress in
the same category of evidence as gruesome photos taken after the
commission of a crime. Accordingly, we conclude that the high
probative value of the videotape far outweighs any potential prejudice
toward the defendant. Because the videotape is admissible under rule
403, the trial court did not err in allowing the jury to view it.
V. WHETHER THE ALLEGED EVIDENTIARY ERRORS
CUMULATIVELY DEPRIVED DEFENDANT OF A FAIR TRIAL
IN BOTH THE GUILT AND PENALTY PHASES
¶27 Defendant asserts that various evidentiary
errors committed during the guilt and penalty phases of the trial
deprived him of a fair trial. Trial courts have wide discretion in
determining relevance, probative value, and prejudice. State v.
Boyd, 2001 UT 30, ¶ 23. We review admissibility determinations
made by the trial court for abuse of discretion. Id.;
Lafferty, 2001 UT 19, ¶ 105. However, where the complaining party
failed to make a timely objection, we review the trial court's rulings
for plain error. State v. Dunn, 850 P.2d 1201, 1208-09 (Utah
1993). We address each of the alleged errors in turn.
¶28 Six of defendant's claims of error were
objected to at trial. We review the court's rulings on these for abuse
¶29 First, defendant argues that the "Dear Luther"
a letter, which was written by defendant to a fellow inmate located in
should not have been admitted into evidence because it reflected badly
on his character, but had "no bearing on the circumstances of
Blackmon's death." We disagree. The letter is clear and convincing
evidence of defendant's racist motivation and of his plan to kill
Blackmon. While the letter may have prejudicial effects, it does not
fall within the category of evidence that is inherently prejudicial,
and it has high probative value. Thus, the court's actions were in
accord with rule 403's presumption of admissibility.
¶30 Second, defendant claims that admitting into
evidence his post-homicide statements(5)
to a prison guard violated his Miranda rights. Again, we
disagree. The statements in question were volunteered by defendant and
therefore are admissible without Miranda warnings. Rhode
Island v. Ignis, 446 U.S. 291, 300 (1980). Further, while they may
have been prejudicial, they were not inherently prejudicial; they were
also highly probative as to his racist beliefs, a fact that went to
the motive for the killing and demonstrated his clear premeditated
intent. Thus, they were permissible under rule 403.
¶31 Next, defendant maintains that the
"speculative" evidence concerning Daniels' forgery of Blackmon's
medical request form should not have been admitted "for there was no
showing that [defendant] was an accomplice to, or even aware of the
forgery." However, the body of evidence presented by the State clearly
showed that Daniels aided defendant in the attack, thus permitting an
inference that the forgery was part of a plan. This evidence showed
the attack was premeditated and rebutted defendant's claim that he
faced a situation of "kill or be killed."
¶32 Defendant asserts that the medical examiner's
report should not have been admitted into evidence because it was
hearsay and not subject to confrontation. Defendant's argument is
unfounded. The medical examiner relied on the report in her testimony
at trial. Defendant had ample opportunity to cross-examine her
regarding the report itself. Further, even if admitting the report was
error, it was harmless. There was nothing in the report that added to
or detracted from the medical examiner's testimony.
¶33 Defendant next argues that inmate Francisco
Colon's rebuttal testimony(6)
was improper because it was cumulative and unduly prejudicial. This
testimony had significant probative value to rebut defendant's claim
that the attack was not racially motivated. Thus, it was highly
relevant and not unduly prejudicial.
¶34 Defendant also claims the court should not
have admitted a small close-up autopsy photograph of the defendant's
previous homicide victim(7)
during the penalty phase of the trial because it was gruesome and
presumptively inadmissible according to rule 403. While disturbing,
the photograph is not gruesome in the sense of rule 403. It contains
no blood stains or gaping wounds, elements that have been held to
constitute a gruesome photograph. State v. Decorso, 1999 UT
57, ¶ 50. Further, the photograph was highly relevant to framing
defendant's character before the jury in the penalty proceedings.
¶35 Although defendant has argued this point under
rule 403, that rule does not govern the standard for considering the
admissibility of the photograph. The admissibility standard for
capital penalty phase deliberations is addressed in section
76-3-207(2)(b) of the Utah Code. That provision states that "[any
evidence the court considers to have probative force may be received
regardless of its admissibility under the exclusionary rules of
evidence." Thus, "evidence may be admissible during the penalty phase,
even if excluded by the rules of evidence during the guilt phase."
State v. Lafferty, 2001 UT 19, ¶ 105. This standard enables a jury
to "legitimately consider a defendant's character, future
dangerousness, lack of remorse, and retribution" during the penalty
phase. State v. Young, 853 P.2d 327, 353 (Utah 1993). Here, the
photograph was offered to show the violent and brutal manner in which
the defendant had killed an earlier victim. Obviously, the jury
already knew about the manner in which defendant killed Blackmon. The
defendant's willingness to commit extremely brutal and violent crimes
was certainly a relevant factor for the jury to consider at
sentencing. Thus, we conclude the trial court did not abuse its
discretion in admitting the photograph.
¶36 Defendant makes three claims of error that were
not objected to at trial. We review these claims for plain error.
¶37 Defendant contends that the evidence showing
that no other homicides had ever occurred at the CUCF "had no bearing
on the circumstances facing [defendant]" and was presumptively
prejudicial. This evidence, however, was offered to undermine
defendant's defense of "extreme emotional disturbance" at the time of
In addition, the information regarding deaths in the prison was
objective and readily ascertainable; it did not fall within the rule
403 category of statistical evidence that should be excluded for "not
[being] susceptible to quantitative analysis . . . ." State v.
Lafferty, 749 P.2d 1239, 1256 (Utah 1988). Accordingly, the
evidence was not inherently prejudicial and was permissible under rule
¶38 Defendant next contends that evidence during
the penalty phase regarding his affiliation with a white supremacist
prison gang denied him his right to confrontation, violated his First
and Fourteenth Amendment rights, and violated Utah state law. However,
this evidence bore directly on the question of motive for Blackmon's
killing, his premeditated intent, and on defendant's character, a
mandatory element to be considered during a capital sentencing
proceeding. Id. Therefore, it was properly admitted.
¶39 Finally, defendant maintains that allowing into
evidence numerous prison disciplinary incident reports documenting his
frequent violent and dangerous behavior directed towards prison guards
and other inmates constituted hearsay and violated his right to
confrontation. We disagree. Such evidence was highly probative of
defendant's character and relevant for capital sentencing purposes.
See id. Furthermore, everything contained in the reports
had already been offered in sworn testimony by the prison officers who
filled them out. Thus, defendant had an opportunity to cross examine
each of the authors of the reports about the content of the reports.
Further, any error in admitting the reports was harmless since the
contents of the reports had already been testified to. The
disciplinary reports were properly admitted.
VI. WHETHER THE ALLEGED PROSECUTORIAL MISCONDUCT
DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AND
PROTECTION UNDER THE EIGHTH AMENDMENT
¶40 Defendant claims the prosecutor made comments
in both the guilt(9)
phases of the trial that tainted the fairness of the trial and
violated his constitutional rights to due process of law and against
cruel and unusual punishment. Because defendant did not object to the
comments during the trial, we review this issue for plain error.
State v. Dunn, 850 P.2d, 1223-24 (Utah 1993).
¶41 With respect to the comments during the guilt
phase, defendant argues the stories told by the prosecutor "drew the
jurors' attention to a multitude of facts which were not in evidence,
subject to confrontation, or proper for their consideration in
reaching a verdict." While it is true that a prosecutor is not
permitted in a closing argument to allude "to matters not introduced
as evidence at trial," the statements at issue in this case were
offered not as new factual matter, but simply as illustrations to make
a conceptual point. State v. Young, 853 P.2d 327, 349 (Utah
1993). The accuracy of the prosecutor's anecdotes was not at issue;
nor were they offered to introduce new evidence to the jury. Although
perhaps ill-advised because of its personal nature, the prosecutor's
narrative did not constitute misconduct or result in plain error.
¶42 As to the comments made during the penalty
phase, defendant claims they were "factually and legally incorrect and
minimized the ultimate seriousness of the jury's decision to be made
in the penalty phase by indicating that Kell's actions had already
determined his fate," citing Caldwell v. Mississippi, 472 U.S.
320, 328-29 (1985), in support.(11)
Defendant suggests an insupportable interpretation of the comments. It
is obvious to us that the prosecutor was not suggesting that
responsibility for determining the appropriateness of death rested
with Kell himself. The prosecutor was merely placing the blame for
this death-eligible killing on Kell's shoulders. The jury still had to
make the decision regarding the imposition of the death penalty.
VII. WHETHER THE TRIAL COURT ERRED IN REFUSING TO
THE JURY TO CONSIDER MERCY AND SYMPATHY
AS MITIGATING FACTORS DURING THE PENALTY PHASE
¶43 Defendant claims the trial court erred during
the penalty phase of the trial by denying a jury instruction including
mercy and sympathy as mitigating factors. Because defendant did not
object to the instruction at the time of the trial, this claim is
reviewed for plain error. Dunn, 850 P.2d at 1208-09.
¶44 Subsections (2) and (3) of section 76-3-207 of
the Utah Code set forth what may be considered mitigating evidence
during a capital sentencing proceeding.(12)
The statute does not identify mercy or sympathy as mitigating factors.
This court has addressed this issue in several previous cases.
¶45 In Young, we applied the standard
articulated by the United States Supreme Court in Snaffle v. Parks,
494 U.S. 484 (1990), where "the Court upheld an antisympathy
instruction because reliable, accurate, and nonarbitrary sentencing
necessarily requires a 'moral inquiry into the culpability of the
defendant, and not an emotional response to the mitigating evidence.'"
Young, 853 P.2d at 363 (citations omitted). We adopted the
reasoning of Snaffle because "the federal constitution does not
prohibit an antisympathy instruction, nor does it require an
instruction that the jurors may be guided by mercy or sympathy."
Id. Recently, we again followed this rationale in State v.
Lafferty, holding that "while the federal constitution does not
prohibit a 'no mercy' instruction, neither does it require an
instruction that the jurors should be guided by mercy or sympathy."
2001 UT 19, ¶ 110 (citing Young, 853 P.2d at 362).
¶46 Defendant offers nothing new on this issue, and
we see no justification for departing from our precedent. As we said
previously, "[the careful effort in the sentencing proceeding to focus
on evidence concerning the defendant's background, character,
circumstances, and the nature of the crime committed is wasted if the
jury is instructed to make a purely emotional decision instead of a
reasoned response to the evidence presented." Young, 853 P.2d
VIII. WHETHER THE VICTIM IMPACT EVIDENCE ADMITTED IN
AND THE UTAH STATUTE THAT ALLOWS IT ARE UNCONSTITUTIONAL
¶47 Defendant contends that section
76-3-207(2)(a)(iii) of the Utah Code, which permits the admission of
victim impact evidence during the penalty phase of a capital
sentencing proceeding, is unconstitutional under federal and Utah
constitutional law. Because this issue was not raised by the defense
during the trial, we apply a plain error standard of review. Dunn,
850 P.2d at 1208-09. Before treating the constitutional issue on its
merits, we determine whether the victim impact evidence in this case(13)
was prejudicial. If this potential error is not prejudicial, we need
not reach the constitutional questions.
¶48 Although some of the Blackmon family's
statements were not entirely relevant to the sentencing proceeding,
neither were they particularly inflammatory or prejudicial. Notably,
the statements did not ask for the death penalty, but left the
decision up to the jury in remarkably neutral terms. In fact, the
family specified that they would respect any decision the jury made.
We also note that during the guilt phase the jury had heard
considerable testimony portraying Blackmon as an aggressive and
and his family's comments served to balance that view.(15)
¶49 We conclude that the victim impact evidence in
this case was moderate in tone, descriptive of the family's loss and
mourning but not militant or angry, and contained no effort to
pressure the jury to impose the death penalty. Absent its presence in
the penalty phase, we see no possibility that the jury's verdict would
have been different, based as it clearly was on the acts and character
of the defendant. Therefore, we decline to reverse the result of the
penalty phase and do not need to address the constitutional questions.
IX. WHETHER SECTION 76-5-202 OF THE UTAH CODE IS
UNCONSTITUTIONALLY VAGUE ON ITS FACE
¶50 Defendant asserts that section 76-5-202(1)(q)
of the Utah Code, which describes the aggravating factors that render
murder eligible for the death penalty, is unconstitutionally vague on
its face. Defendant argues that the language, "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" describes
all murders, thereby not narrowing the class of death-eligible
murders. Utah Code Ann. § 76-5-202(1)(q) (1995). The constitutionality
of a statute is a question of law reviewed for correctness. E.g.,
State v. One 1980 Cadillac, 2001 UT 26, ¶ 8, 21 P.3d 212.
¶51 This court addressed and rejected an identical
argument in State v. Tuttle, 780 P.2d 1203, 1215-19 (Utah
1989). In Tuttle, we explained that when subsection (q) is read
too literally, it describes all murders "not resulting in
instantaneous death," thus becoming unconstitutionally vague. Id.
at 1216. However, we concluded that subsection (q) can be construed
"in a manner consistent with the federal constitution's requirements
without doing violence to the legislature's intent." Id. at
1217. Accordingly, to meet the requirements of subsection (q), the
State must prove "not only serious physical abuse [or serious bodily
injury] before death, but also that any such abuse [or injury]
evidence a mental state materially more depraved or culpable than that
of most other murders . . . [and] the physical abuse [or injury] must
be qualitatively and quantitatively different and more culpable than
that necessary to accomplish the murder." Id. at 1217.
¶52 In this case, the facts show that defendant
tortured Blackmon. The forensic examiner testified that the twenty-six
stab wounds inflicted on Blackmon's face and eyes could cause only
physical torture, serious physical abuse, or serious bodily injury,
not death. She also testified that the wounds would have been
excruciatingly painful. This testimony clearly satisfies the standard
found in subsection (q); this homicide was committed in an "especially
heinous, atrocious, cruel, or exceptionally depraved manner . . .
demonstrated by physical torture, serious physical abuse, or serious
bodily injury." Utah Code Ann. § 76-5-202(1)(q) (1995). Thus, we
reaffirm our holding in Tuttle, concluding that subsection (q)
of the Utah Code is constitutional.
X. WHETHER UTAH'S DEATH PENALTY STATUTES ARE
BECAUSE THEY DO NOT NARROW THE CLASS OF
¶53 Defendant claims that Utah's death penalty
statutes are unconstitutional because they do not narrow the class of
death-eligible murders. The constitutionality of a statute is a
question of law reviewed for correctness. E.g., One 1980
Cadillac, 2001 UT 26 at ¶ 8.
¶54 We have addressed this issue on numerous
occasions, concluding that Utah's death penalty statutes are
constitutional. See, e.g., Lafferty, 2001 UT 19, ¶¶ 113,
141, 20 P.3d 342; State v. Lovely, 1999 UT 40, ¶ 38, 984 P.2d
382; Young, 853 P.2d at 337-38; State v. Holland, 777
P.2d 1019, 1028 (Utah 1989); State v. Tillman, 750 P.2d 546,
562 (Utah 1987); State v. Wood, 648 P.2d 71, 81-83 (Utah 1982).
Nothing in this case raises grounds for re-examining our substantial
body of precedent regarding this issue.
XI. WHETHER THE CAPITAL SENTENCING PROCEEDINGS WERE
AND WHETHER THE COURT SHOULD CEASE PERFORMING
HARMLESS ERROR REVIEW OF PENALTY PHASE ERRORS
¶55 Defendant claims there were penalty phase
errors and asks this court to remand the case for a new penalty phase
hearing rather than perform a review for harmless error, which is the
current standard for capital sentencing proceedings. Because we have
not found errors in the penalty phase of this trial, this argument is
moot and we do not address it.
XII. WHETHER CONDUCTING THE TRIAL FOLLOWING PRISON
DISCIPLINARY PROCEEDINGS VIOLATED STATE AND
FEDERAL CONSTITUTIONAL DOUBLE JEOPARDY PROVISIONS
¶56 Defendant asserts that because he was punished
in a prison disciplinary proceeding for killing Blackmon, his
subsequent criminal trial violated state and federal double jeopardy
provisions. This issue involves a question of law that we review for
correctness. E.g., One 1980 Cadillac, 2001 UT 26 at ¶8.
¶57 Given the well-established federal and state
caselaw on this issue, defendant's argument is frivolous. Virtually
every federal circuit court of appeals has held that prison
disciplinary proceedings do not violate the double jeopardy provisions
of the Fifth Amendment of the United States Constitution. See, e.g.,
United States v. May, 158 F.3d 1215, 1220 (11th Cir. 1998)
(ruling that imposing prison sanctions after a riot did not preclude
criminal prosecution); United States v. Brown, 59 F.3d 102, 105
(9th Cir. 1995) (ruling that parole revocation, disciplinary transfer,
and loss of good time credits did not violate double jeopardy);
United States v. Hernandez-Fundora, 58 F.3d 802, 806-08 (2d Cir.
1995) (ruling that a 45-day disciplinary segregation did not
constitute punishment for double jeopardy purposes); Garrity v.
Fielder, 41 F.3d 1150, 1152 (7th Cir. 1994) (ruling that
disciplinary segregation for offense did not bar criminal prosecution
of same offense); United States v. Newby, 11 F.3d 1143, 1144-45
(3d Cir. 1993) (ruling that disciplinary segregation and transfer did
not act as bar to prosecution); United States v. Rising, 867
F.2d 1255, 1259 (10th Cir. 1989) (ruling that administrative
punishment of prisoner for killing a fellow inmate did not bar
criminal prosecution for the killing); Kerns v. Parratt, 672
F.2d 690, 691-92 (8th Cir. 1982) (ruling that criminal prosecution was
not barred after one prisoner was disciplined for attacking another
prisoner); Fano v. Meachum, 520 F.2d 374, 376 n.1 (1st Cir.
1975) (supporting rule that prison disciplinary proceedings did not
violate double jeopardy provisions); United States v. Lepiscopo,
429 F.2d 258, 261 (5th Cir. 1970) (ruling that an inmate could be
prosecuted for attempted escape even after receiving solitary
confinement and loss of good time credits); Hamrick v. Peyton,
349 F.2d 370, 372 (4th Cir. 1965) (ruling that loss of good time
credit following several escapes from prison did not act as a
violation of double jeopardy); Gibson v. United States, 161
F.2d 973, 974 (6th Cir. 1947) (ruling that loss of good time credits
did not violate double jeopardy). This court has also held that prison
disciplinary proceedings have no effect on the double jeopardy
provision. See, e.g., State v. Menzies, 601 P.2d 925,
926 (Utah 1979); State v. Bullock, 589 P.2d 777 (Utah 1979).
Thus, defendant's contention that holding a trial following prison
disciplinary proceedings violates the double jeopardy provisions of
the Fifth Amendment is without merit.
¶58 Defendant was not denied the right to a public
trial, to the presumption of innocence, to a fair trial, or to equal
protection by being tried in the courtroom at the CUCF. The trial
court did not abuse its discretion or deny defendant the right to a
fair trial as a result of the jury voir dire process. The trial
court's failure to instruct the jury on the lesser included offense of
imperfect self-defense manslaughter was harmless. The trial court did
not err in allowing the jury to view a videotape of the homicide. If
any evidentiary errors occurred during the guilt and penalty phases of
the trial, they were harmless. The prosecutor's arguments to the jury
did not violate the Eighth Amendment of the United States
Constitution. The jury did not have to consider mercy and sympathy as
mitigating factors during the penalty phase of the trial. Admitting
victim impact evidence in this case was harmless. Section 76-5-202 of
the Utah Code is not unconstitutional. Utah's death penalty statutes
are not unconstitutional. The capital sentencing proceedings were not
flawed. Prison disciplinary proceedings do not preclude criminal
prosecution of the same crime and do not violate the double jeopardy
provisions of the Fifth Amendment of the United States Constitution.
We affirm his conviction and sentence.
¶59 Chief Justice Howe, Associate Chief Justice
Russon, Justice Durrant, and Justice Wilkins concur in Justice
1. A shank is a crude, homemade steel "knife"
usually about three to four inches in length.
2. The other constitutional errors for which
prejudice must be presumed are: a complete deprivation of the right to
counsel, lack of an impartial trial judge, unlawful exclusion of grand
jurors of defendant's race, violation of the right to
self-representation, and an erroneous reasonable-doubt instruction to
the jury. See Johnson, 520 U.S. at 468-69.
3. V.D. and R.F. were two of the potential one
hundred and thirteen jurors questioned prior to trial. Defendant
raises specific objections to their respective voir dires, asserting
improper for-cause challenges by the prosecution and improper removal
by the court from the jury pool.
4. Some of the relevant parts of the letter stated
[¶ 3] It'll be interesting to see how things go
in about 20 days. Be all alone with 4 niggers. I hate it when that
[¶ 4] Lately it's been plot, strategy of
inflicting pain on a niggers. I'm getting too old for this ship
[¶ 5] Things on this end will be getting live
soon. Looks like I'll have to show me a nappy headed monkey what
some of this white power is all about. They seem to never learn . .
5. While sitting in the x-ray exam room following
the homicide, defendant looked at a prison guard and said, "He really
liked you, you know." The guard did not respond and defendant said, "I
can't stand all of the--" and gestured with his hand, and the guard
said, "I don't know what that means." Defendant then said, "I hate
monkeys with big mouths. I hate it when they talk about our women.
They're taking over our race. I've got to do all I can to save our
race. If everyone would take one out once in a while it would help a
6. Mr. Colon testified that after witnessing the
homicide, he heard defendant say, "That's white power. [I have] been
killing' niggers ever since [I] was an bitty-bitty Aryan." Mr. Colon
also testified that defendant and Daniels approached him prior to the
trial and asked him to be a witness. Daniels wanted Mr. Colon to
testify that Blackmon had possession of a shank during the attack.
7. Defendant shot this victim six times in the face
at close range. The prosecution admitted the photograph into evidence
during the penalty phase of the trial to inform the jury about
defendant's history of committing brutal murders.
8. In order to show that defendant's belief that it
was "kill [Blackmon] or be killed" was unreasonable, the prosecution
introduced evidence that in the entire six-year history of the CUCF
there had never been a murder committed by an inmate. Furthermore,
other processes were in place to resolve inmate disputes. Defendant
simply chose to ignore the established dispute resolution procedures
that had worked in the prison over the preceding six years. It was the
prosecution's argument that defendant would have known that prisoners
simply did not kill other prisoners in the CUCF and so defendant could
not have been under "extreme emotional disturbance" when he killed
9. During the guilt phase the prosecutor told a
story regarding the substantial hardships faced by his mother during
her childhood, commenting that she had never killed anyone or gone to
prison. The purpose of the story was to illustrate that defendant's
"dysfunctional" childhood did not compel him to kill or justify his
actions. The prosecutor concluded, "We all have dysfunction. Criminals
don't have a corner on that market."
10. The prosecutor argued to the jury during the
I anticipate . . . [the defense attorneys are]
gonna come to you and they're going to say that it is up to each of
you, as to whether or not the death penalty is given in this case, and
I say that decision, in reality, was made by Troy Kell when he decided
on two different occasions to brutally/viciously take the life of
another individual. He made that decision. Troy Kell is the reason why
you are here. He is the reason why I am here. He made those decisions
himself, and it's those decisions that Troy Kell made which, in fact,
should make your decision. It's not your fault; its not mine. It's
Troy Kell's fault.
11. The prosecutor in Caldwell argued that
the jury should "not . . . view itself as determining whether the
defendant would die, because a death sentence would be reviewed for
correctness by the State Supreme Court." Caldwell, 472 U.S. at
323, 105 S.Ct. at 2636. The United States Supreme Court deemed the
statements impermissible because they led the jury to believe that the
responsibility for determining the appropriateness of death rested
elsewhere, in the hands of the State Supreme Court.
12. They provide as follows:
(2) (a) In capital sentencing proceedings,
evidence may be presented on:
(I) the nature and circumstances of the crime;
(ii) the defendant's character, background,
history, mental and physical condition;
(iii) the victim and the impact of the crime on
the victim's family and community without comparison to other
persons or victims; and
(iv) any other facts in aggravation or
mitigation of the penalty that the court considers relevant to the
(b) Any evidence the court considers to have
probative force may be received regardless of its admissibility
under the exclusionary rules of evidence. The state's attorney and
the defendant shall be permitted to present argument for or
against the sentence of death.
(3) Aggravating circumstances include those
outlined in Section 76-5-202. Mitigating circumstances include:
(a) the defendant has no significant history of
prior criminal activity;
(b) the homicide was committed while the
defendant was under the influence of mental or emotional
(c) the defendant acted under duress or under
the domination of another person;
(d) at the time of the homicide, the capacity
of the defendant to appreciate the wrongfulness of his conduct or
to conform his conduct to the requirement of law was impaired as a
result of mental disease, intoxication, or influence of drugs;
(e) the youth of the defendant at the time of
(f) the defendant was an accomplice in the
homicide committed by another person and the defendant's
participation was relatively minor; and
(g) any other fact in mitigation of the
Utah Code Ann. § 76-3-207(2) & (3)(1995).
13. During the penalty phase, Blackmon's brother
Larry was permitted to read the following prepared statement to the
Ladies and gentlemen of the jury, the family of
Lennie Blackmon, consisting of two daughters, Latrine and Cody
Blackmon, mother, Mrs. Minnie Blackmon, father Mr. Paul Blackmon,
Sr., brothers Larry Blackmon, Paul Blackmon, Jr., Kenneth Blackmon
and Dane Blackmon, sister Pamela Blackmon, who preceded Lennie in
death, would like you to know that we have suffered a terrible loss,
due to the grave injustice that has occurred here in this state
correctional facility. The manner in which Lennie's life was taken
has left a tremendous void in each of our lives, especially his two
daughters. We understand that Lennie was incarcerated here in this
facility for crimes committed, but there is no reason for his life
to be taken by the hands of another inmate or in any other manner.
Our mother was unable to make this trip because
my grandmother has Alzheimer's and she, being the sole person that
takes care of her, didn't want to leave my grandmother with someone
with no experience in that area. However, in her absence she has
asked me to tell you that after hearing of my brother's murder, she
was unable to eat or sleep for months. She was haunted by
nightmares, dreaming or [sic] and reliving the murder over and over
again. She collapsed during the funeral and had to be carried out of
the church. She was having a hard time breathing.
My mother has suffered from acute arthritis and
high blood pressure for many years and this unfortunate incident has
only served to aggravate and elevate her illness.
My father's mother, Mrs. Mildred Blackmon, was
devastated, as was all of our aunts, uncles, cousins, nieces and
One of the reasons this has made such an impact
on my family is because we have suffered through the murder of my
sister Debra in 1991. It is hard enough to lose one loved one, but
to lose a second child by the hands of a murderer is almost
unbearable. By the grace of [God my family has been able to maintain
some sense of purpose.
Lennie loved his mother and his daughters, as
well as the rest of the family, without reservation and we love him
and miss him very much.
Concerning the penalty phase for this individual,
the family has an abiding conviction that man's laws were written for
the unjust and for evildoers. Therefore whatever punishment is meted
out by this Court or this jury, whether it be the death penalty or
some other sentence, my family will accept that ruling.
14. See, e.g., James Madsen's
testimony (indicating that in prison Blackmon "was looking for a
reputation as a 'bad as'" and had repeatedly threatened defendant from
his cell); Robert Long's testimony (indicating that in Arkansas
Blackmon was a "strong armed type" and "had a potential for
violence"); Richard Kimberly's testimony (indicating that Blackmon was
a member of the "Chips" gang and another militant organization);
Lennie Case's testimony (indicating that the racial tension at the
CUCF elevated when Blackmon arrived from Arkansas).
15. We note that New Jersey has addressed this
issue and formulated a working model for admitting victim impact
evidence. In State v. Muhammad, 678 A.2d 164 (N.J. 1996), the
Supreme Court of New Jersey concluded that victim impact evidence is
admissible in penalty phase proceedings when the content of such
testimony is strictly constrained as to avoid the possibility of
including any statements that would unfairly prejudice the defendant.
Id. at 45. Accordingly, testimony showing the impact of the
murder on the victim's family and the uniqueness of the individual can
be introduced to aid the jury in seeing the victim as an individual
human being rather than a "faceless stranger," but "unduly
inflammatory commentary" will never be allowed because of its unfair
prejudicial effects. Id. at 48.
Troy Michael Kell