Speaker 1: What's up, everyone, and welcome back to the program. In
Speaker 1: this episode, we're getting right back to the State of
Speaker 1: Utah's response to Tyler Robinson's memorandum in regards to his
Speaker 1: bind over Part two. When properly construed, the evidence demonstrates
Speaker 1: a reasonable belief that the defendant knowingly created a great
Speaker 1: risk of death to another when he fired a high
Speaker 1: powered rifle toward a crowd of thousands, including several who
Speaker 1: were in the line of fire were otherwise in close
Speaker 1: proximity to mister Kirk. Just as he misrepresents the legal
Speaker 1: standard governing this prelim hearing, defendant also misrepresents the standard
Speaker 1: for establishing the great risk of death aggravator. The existence
Speaker 1: of that aggravator does not require a minimum set of
Speaker 1: factual circumstances which must be present, as defendant claims defense
Speaker 1: Memorandum at five, nor is the test a multi factor analysis,
Speaker 1: as defendant also claims. When the evidence is properly viewed
Speaker 1: under the test the Utah the Supreme Court has actually endorsed,
Speaker 1: the evidence demonstrates a reasonable belief that the aggravating circumstance
Speaker 1: is satisfied. Here, a defendant misrepresents the applicable test for
Speaker 1: determining whether he knowingly created a great risk of death
Speaker 1: to another. In explaining and applying the great risk of
Speaker 1: death aggravator State vers. Sosa Hurtado twenty nineteen, the Utah
Speaker 1: Supreme Court expressly stated that it was not establishing multi
Speaker 1: factor balancing tests. Rather, the ultimate test is the statutory test,
Speaker 1: and that test requires that the defendant knowingly created the
Speaker 1: great risk of death. Quoting Utah Code Section seventy six
Speaker 1: five two two to one c. The three factors that
Speaker 1: the Sosa Hurtado Court identified to guide the application of
Speaker 1: the statutory test or simply a range of factors of
Speaker 1: possible relevance to the statutory inquiry has elaborated in our
Speaker 1: case law. In fact, the Court repeated, we are not
Speaker 1: here establishing the multi factor test. The considerations in Sosa
Speaker 1: Hurtado are non exhaustive and they are not the test.
Speaker 1: Defendant ignores these portions of Sosa Hurtado. Defendant also erroneously
Speaker 1: urges the Court to construe the aggravating circumstance narrowly Defense
Speaker 1: Memorandum at three through five. The legislature has already narrowed
Speaker 1: the aggravator by requiring that the defendant knowingly create a
Speaker 1: great risk of death to another Utah Code Section seventy
Speaker 1: six two two two two A and three, the court
Speaker 1: cannot apply its own narrowing gloss of that standard. Again,
Speaker 1: the ultimate test is the statutory test Sosa Hurtado, twenty nineteen,
Speaker 1: UTAH sixty five. Nor does defendant emphasis on language from
Speaker 1: other cases that a defendant must create a high probability
Speaker 1: of death modify the statutory standard defense Memorandum at two.
Speaker 1: A high probability of death is just another way to
Speaker 1: say a great risk of death. Other courts use the
Speaker 1: term high probability. Therefore, does not modify the statutory test
Speaker 1: that Soda Sosa Hurtado endorsed UTAH twenty nineteen. The ultimate
Speaker 1: test is the statutory test. It also makes no difference
Speaker 1: that the facts of other cases do not precisely fit
Speaker 1: the facts here. Defendant spills much ink detailing the facts
Speaker 1: of other cases where courts have analyzed the great risk
Speaker 1: of death aggravator, But the fact that other defendants did
Speaker 1: more to endanger others, like firing multiple shots, than defendant
Speaker 1: did here is not persuasive. The issue is not whether
Speaker 1: another court has applied the aggravator in a case with
Speaker 1: identical or at least highly similar facts. Rather, the issue
Speaker 1: is whether the evidence, together with the reasonable inferences therefrom,
Speaker 1: when properly viewed in the light of most favorable to
Speaker 1: the state, supports a reasonable belief that defendant knowingly created
Speaker 1: a great risk of death to at least one other
Speaker 1: person see Sosa Hurtado, twenty nineteen, Utah. The ultimate test
Speaker 1: is a statutory test. The state is comfortably surmounted at
Speaker 1: low bar. The court must also recognize that while Hurtado
Speaker 1: analyzed and applied the great risk of death aggravator, it
Speaker 1: did so in different context and therefore had a different focus.
Speaker 1: So Hurtado fired three shots at two different people. He
Speaker 1: fired the third and fatal shot at his victim at
Speaker 1: close range and with his back to the other smoke
Speaker 1: shop employee. The issue in that case therefore concerned the
Speaker 1: scope of the relevant circumstances that a jury could consider
Speaker 1: in determining whether the aggravator was satisfied. As the court explained,
Speaker 1: the issue was whether the relevant circumstances extend beyond the
Speaker 1: precise act that caused the death of the victim, or
Speaker 1: whether the aggravator applied only where the murderous act itself
Speaker 1: creates a great risk of death to a third party.
Speaker 1: Citing UTAH Code Section seventy six TOASH five to A
Speaker 1: one point one c, the court ultimately held that the
Speaker 1: relevant circumstance include more than just the murderous act itself.
Speaker 1: A person may be guilty of knowingly creating a great
Speaker 1: risk of death to another person if he did so
Speaker 1: within a brief span of time of the act causing
Speaker 1: the murder, and the acts together formed a series of events.
Speaker 1: Unlike Hurtado, this case involves only the murderous act itself,
Speaker 1: be the evidence supports a reasonable belief that the statutory
Speaker 1: test for the great risk of death aggravator is satisfied here.
Speaker 1: Although Sosa Hurtado was focused on the scope of the
Speaker 1: relevant circumstances that can support the aggravator, its analysis is
Speaker 1: nevertheless helpful here because the Supreme Court recognized that firing
Speaker 1: a rifle at a murder victim while another is close
Speaker 1: by creates a great risk of death to that surviving person.
Speaker 1: As explained in State's opening memo, the Soa Hurtado Court
Speaker 1: recognized that there were two separate acts that created a
Speaker 1: great risk of death to the surviving smoke shop employee.
Speaker 1: The first act was the shot fire towards the surviving
Speaker 1: employee that missed. The other was a shot that hit
Speaker 1: the murder victim in the hand while the surviving employee
Speaker 1: was only a few feet away. Thus, contrary to defendant's contention,
Speaker 1: UTAH has in fact adopted an interpretation of the aggravating
Speaker 1: factor that would permit its application, where the firing of
Speaker 1: a single shot at an intended victim hit only the
Speaker 1: intended victim. Here, there were several people close to mister
Speaker 1: Kirk when defendant shot him dead. Most significantly, the questioner
Speaker 1: was directly between defendant and mister Kirk and within a
Speaker 1: few feet of mister Kirk stead example number eight. There
Speaker 1: were also several people who were near the questioner. There
Speaker 1: were also those with mister Kirk who were under or
Speaker 1: near his tent. All these people were visible in the
Speaker 1: clear line of sight between Defendant's perch and mister Kirk's seat. Indeed,
Speaker 1: from a distance of four hundred and ten feet from
Speaker 1: mister Kirk, basic mathematics dictates that an angular shift of
Speaker 1: even one eighth of an inch would result in a
Speaker 1: substantial miss of the intended target either above below, or
Speaker 1: to the right or left, depending on the direction of
Speaker 1: the shift, placing many others in danger. Given these facts,
Speaker 1: two of the three Sosa Hertato factors support the conclusion
Speaker 1: that the great risk of death aggravator applies. As explained,
Speaker 1: the spatial relationship between those in the line of fire
Speaker 1: and those close to mister Kirk supports application of the aggravator.
Speaker 1: Defendant also threatened these people by indirect means through the
Speaker 1: risk of stray or ricochet bullets. The other Hertata factor,
Speaker 1: the time between the murderous act and any other acts
Speaker 1: the defendant may have taken towards third parties, is simply
Speaker 1: inapplicable here. Considerations of Soa Hertato factors therefore supports a
Speaker 1: reasonable belief that defendant knowingly created a great risk of
Speaker 1: death to those who were in defendant's line of fire
Speaker 1: and to those who were close to mister Kirk but
Speaker 1: outside the line of fire. When defendant pulled the trigger,
Speaker 1: one defendant knowingly created a great risk of death to
Speaker 1: those who were within his line of fire. Defendant's attacks
Speaker 1: the state's line of fire argument, which he repeatedly mislabels
Speaker 1: as a line of sight argument Defense Memorandum at fifteen
Speaker 1: and sixteen. On the basis that mister Kirk was seated
Speaker 1: in an elevated position, Defendant asserts that the bullet traveled above,
Speaker 1: not through the crowd, but in states exhibit eight, the
Speaker 1: questioner's head is visible above mister Kirk's head State example
Speaker 1: number eight. Others standing in the front rows of the
Speaker 1: crowd are positioned at approximately the same level as the questioner,
Speaker 1: but slightly farther back from mister Kirk. And regardless of
Speaker 1: the precise elevation of the questioner's head and the heads
Speaker 1: of the others in the crowd in relation to mister
Speaker 1: Kirk's head, any difference is so negligible that it does
Speaker 1: not place the others outside the line of fire see
Speaker 1: State's example seven and eight. The evidence therefore supports a
Speaker 1: reasonable belief that all these people were in the line
Speaker 1: of fire and therefore within the zone of danger that
Speaker 1: defendant created when he fired his rifle. See Sylvia, verse
Speaker 1: State sixty, Florida, twenty eleven. Defendant knowingly created a great
Speaker 1: risk of death to people who were in his line
Speaker 1: of fire. Commonwealth verst Buck seven h nine, Pennsylvania nineteen
Speaker 1: ninety eight single fatal shot at murder victim placed another
Speaker 1: individual who was in the line of fire at grave
Speaker 1: risk of death. Two. Defendant knowingly created a great risk
Speaker 1: of death to those nearer mister Kirk when defendant pulled
Speaker 1: the trigger. Defendant also knowingly created a great risk of
Speaker 1: death to those near mister Kirk, although not within the
Speaker 1: line of fire. Two security personnel were directly in front
Speaker 1: and on either side of mister Kirk, but still within
Speaker 1: the span of his tent. A third security person was
Speaker 1: under the tent and just to mister Kirk's right state
Speaker 1: example seven. This person had to take only a small
Speaker 1: step to reach mister Kirk as he fell. Another person
Speaker 1: was operating a camera just under the tent front edge
Speaker 1: to mister Kirk's left state example eight. Defendant had a
Speaker 1: clear line of sight to view all these people from
Speaker 1: just four hundred and ten feet away. The evidence also
Speaker 1: supports a reasonable inference that defendant knew that the people
Speaker 1: there in the area behind mister Kirk's tent. Defendant visited
Speaker 1: the amphitheater area at least twice before the shooting. This
Speaker 1: evidence supports a reasonable inference that he saw the staging
Speaker 1: area behind mister Kirk's tent. The fact that defendant had
Speaker 1: a clear line of sight to mister Kirk's tent at
Speaker 1: the time of the shooting also supports a reasonable inference
Speaker 1: that defendant new people were in that staging area when
Speaker 1: he fired the shot. Defendant argues that given the speed
Speaker 1: with which he had to acquire his target and fire
Speaker 1: once he got into position in the sniper's nest, the
Speaker 1: evidence does not support a reasonable inference that he knew
Speaker 1: that any of these people were present. Defense Memorandum at
Speaker 1: twenty and twenty one. But this argument again ignores the
Speaker 1: controlling evidence entry standard because it asked the court to
Speaker 1: view the inferences in defendant favor rather than the states
Speaker 1: defendant had a clear line of sight to mister Kirk,
Speaker 1: the crowd, those nearest mister Kirk, and those in the
Speaker 1: staging area behind the tent. The evidence therefore supports a
Speaker 1: reasonable inference that defendant knew all the above mentioned people
Speaker 1: were near mister Kirk when defendant fired his rifle, and
Speaker 1: defendant had longer than just the approximate thirty five to
Speaker 1: forty four seconds in the prone position to observe these people.
Speaker 1: He would also have seen the people as he ran
Speaker 1: and then crawled towards his rooftop position. Regardless of emphasizing
Speaker 1: how hastily defendant had to act to acquire his target
Speaker 1: and fire his rifle does not help him. It only
Speaker 1: highlights and increases the likelihood that he would miss his
Speaker 1: intended target. The speed with which defendant had to act,
Speaker 1: coupled with evidence showing that he had to reassemble his rifle,
Speaker 1: that he loaded four cartridges in his rifle, and that
Speaker 1: in his earlier target practice he sometimes missed the target entirely,
Speaker 1: all supports the reasonable inference that defendant knew that he
Speaker 1: could miss. That inference supports a reasonable belief that he
Speaker 1: knowingly created a great risk of death to both those
Speaker 1: in his line of fire and others near mister Kirk. Again,
Speaker 1: a jury can infer that an individual is knowingly endangering
Speaker 1: a person when that individual uses a gun in any
Speaker 1: area where he knows that others could be Commonwealth versus Watson, Pennsylvania,
Speaker 1: nineteen eighty nine. Common sense also dictates that firing a gun,
Speaker 1: especially a high power rifle, towards others puts them at
Speaker 1: great risk of death. That is precisely why gun ranges
Speaker 1: prohibit shooters from even handling a firearm when others are
Speaker 1: downranged beyond the firing line. Defendant highlights cases where other
Speaker 1: courts did not find that the facts satisfied the great
Speaker 1: risk of death aggravator. But again, the issue is not
Speaker 1: how closely the facts here resemble those in other cases.
Speaker 1: The issue is whether the facts here, together with reasonable
Speaker 1: inferences therefrom demonstrate a reasonable belief the defendant satisfied the
Speaker 1: statutory aggravator. Moreover, some of these cases support application of
Speaker 1: the aggravating circumstance. In the case, for example, although defendant
Speaker 1: in Little John vers. State fired only one shot in
Speaker 1: a convenience store that hit his intended victim, the court
Speaker 1: recognized that the aggravator applies when the defendant's acts create
Speaker 1: a risk of death to another which are in close
Speaker 1: proximity in terms of time, location, and intent to that
Speaker 1: act of the killing itself. There was no mention in
Speaker 1: Little John of how close others in the store were
Speaker 1: to the person who was shot and killed. Similarly, although
Speaker 1: the court in Johnson verse State found that the defendant
Speaker 1: did not create a great risk of death to another
Speaker 1: when he fired out a store manager at point blank range,
Speaker 1: The court also noted no other person was within the
Speaker 1: immediate vicinity or within the line of fire. Finally, the
Speaker 1: court statement in United States first bin laden about a
Speaker 1: defendant who might carefully target his victim does not help
Speaker 1: defend in here the core positive that a jury may
Speaker 1: find there to be qualitative differences between a defendant who
Speaker 1: carefully targets an intended victim or victims without endangering others,
Speaker 1: and one who acts with indifference to additional persons. But
Speaker 1: defendant here acted with indifference to those in his line
Speaker 1: of fire and close to mister Kirk because his shot
Speaker 1: endangered them, even though it ended up hitting its intended target.
Speaker 1: All right, folks, we're gonna wrap up right here, and
Speaker 1: in the next episode we're going to pick up with c.
Speaker 1: Many of defendant's arguments depend on ignoring some evidence and
Speaker 1: improperly viewing the evidentiary inferences in his favor. All the
Speaker 1: information that goes with this episode can be found in
Speaker 1: the description box.