WEBVTT 1 00:00:00.120 --> 00:00:03.919 What's up everyone, and welcome back to the program. In 2 00:00:03.960 --> 00:00:05.960 this episode, we're going to pick up where we left 3 00:00:06.000 --> 00:00:09.480 off with the binding memorandum filed by the State of 4 00:00:09.560 --> 00:00:15.039 Utah against Tyler Robinson two. Defendant also knowingly created a 5 00:00:15.080 --> 00:00:18.440 great risk of death to everyone near mister Kirk when 6 00:00:18.480 --> 00:00:22.079 defendant pulled the trigger. Defendant also knowingly created a great 7 00:00:22.160 --> 00:00:24.519 risk of death to all others who were near mister 8 00:00:24.600 --> 00:00:27.359 Kirk but not within the line of fire when defendant 9 00:00:27.399 --> 00:00:33.039 fired the fatal shot. See Sosa Hurtado twenty nineteen forty 10 00:00:33.079 --> 00:00:37.240 seven through fifty two. Sosa Hertato establishes at firing a 11 00:00:37.280 --> 00:00:40.280 gun at one person can create great risk of death 12 00:00:40.320 --> 00:00:42.759 to others who are near, even if they are not 13 00:00:42.799 --> 00:00:47.560 within the line of fire. Sosa Hurtado involved a murder 14 00:00:47.560 --> 00:00:50.359 in a small smoke shop where a father and son worked. 15 00:00:50.840 --> 00:00:54.759 After Sosa Hurtado repeatedly refused the father's demands to move 16 00:00:54.799 --> 00:00:58.640 his car because it was endangering customers, the son intervened 17 00:00:58.920 --> 00:01:03.000 and asked so Hurtado to move his car. Sosa Heurtato 18 00:01:03.119 --> 00:01:06.159 responded by punching the son and starting a fistfight that 19 00:01:06.200 --> 00:01:10.640 Sosa Hurtato ultimately lost. Sosa hur Toto left, but later 20 00:01:10.719 --> 00:01:13.760 returned with an assault rifle and fired one shot at 21 00:01:13.799 --> 00:01:16.319 the father, who was standing behind the counter two to 22 00:01:16.359 --> 00:01:19.719 four feet away from his son. The first shot missed 23 00:01:19.760 --> 00:01:22.640 the father and hit the glass case, sending glass and 24 00:01:22.719 --> 00:01:25.719 wood into the father's leg and causing him to fall 25 00:01:25.760 --> 00:01:29.280 on the floor. Sosa hurd Toto then turned towards the 26 00:01:29.319 --> 00:01:31.959 sun and fired a second shot that hit the son's 27 00:01:32.000 --> 00:01:34.920 hand and caused him to also fall to the floor 28 00:01:35.040 --> 00:01:38.040 behind the counter. The father began to get up and 29 00:01:38.120 --> 00:01:41.079 moved towards his son, when with his back to father, 30 00:01:41.439 --> 00:01:45.000 Sosa Hurtado leaned over the counter, positioned the rifle only 31 00:01:45.040 --> 00:01:47.680 inches from the son's chest, and shot him twice more, 32 00:01:47.879 --> 00:01:51.359 killing him. The smoke shop consisted of a single room 33 00:01:51.680 --> 00:01:55.920 approximately fifteen feet wide and twenty four feet long. After 34 00:01:55.959 --> 00:01:59.959 a jury convicted Sosa Hurtato of aggravated murder, he appealed 35 00:02:00.159 --> 00:02:02.760 and challenged the sufficiency of the evidence to support the 36 00:02:02.879 --> 00:02:06.920 charged aggravating factor that he placed another person at great 37 00:02:07.000 --> 00:02:10.680 risk of death when he killed the victim, quoting Utah 38 00:02:10.680 --> 00:02:13.960 Code Section seventy six to five two two one s 39 00:02:14.919 --> 00:02:18.280 the Utah Supreme Court had no trouble, rejecting this argument 40 00:02:18.520 --> 00:02:21.840 and affirming the aggravated murder conviction. The court found that 41 00:02:21.840 --> 00:02:24.879 two separate acts each created a great risk of death 42 00:02:25.120 --> 00:02:27.840 to the father. The first was the first shot directed 43 00:02:27.879 --> 00:02:30.960 towards them, but the second was the initial shot aimed 44 00:02:30.960 --> 00:02:33.319 at the sun, a shot that hit the son in 45 00:02:33.360 --> 00:02:36.240 the hand when the father was only a few feet away. 46 00:02:37.159 --> 00:02:40.599 The court concluded that a reasonable jerry could conclude that 47 00:02:40.639 --> 00:02:42.919 both of these acts created a great risk of death 48 00:02:43.080 --> 00:02:46.520 to the father. Thus, firing at one person while another 49 00:02:46.840 --> 00:02:49.560 is only a few feet away knowingly creates a great 50 00:02:49.639 --> 00:02:53.800 risk of death for that other person. Here, in addition 51 00:02:54.159 --> 00:02:57.159 to those in the defendant's line of fire, several others 52 00:02:57.199 --> 00:03:00.599 were in close proximity to mister Kirk when defendants gottom dead. 53 00:03:01.520 --> 00:03:04.319 At least two individuals were standing under the tent where 54 00:03:04.319 --> 00:03:07.439 mister Kirk was seated, and others were near the front, 55 00:03:07.520 --> 00:03:11.159 sides and back of the tent. As in Sosa Hurtado, 56 00:03:11.719 --> 00:03:15.360 these individuals proximity to mister Kirk when defendant fired put 57 00:03:15.439 --> 00:03:19.000 them in the zone of danger. See twenty nineteen Utahs 58 00:03:19.039 --> 00:03:23.599 sixty five and forty seven. Their proximity and spatial relationship 59 00:03:23.639 --> 00:03:27.000 together with the indirect threats to them arising from the 60 00:03:27.120 --> 00:03:30.639 risk of stray or rikocheg bullets, put them in the 61 00:03:30.719 --> 00:03:33.800 zone of danger, especially when the defendant used a high 62 00:03:33.840 --> 00:03:37.599 powered rifle to kill mister Kirk. Other courts agree that 63 00:03:37.639 --> 00:03:41.400 the risk of stray, rickocheing and passed through bullets creates 64 00:03:41.439 --> 00:03:44.599 a zone of danger for anyone close to a shooting victim. 65 00:03:44.680 --> 00:03:48.520 For example, in Commonwealth Verse Rie zero six eighty four 66 00:03:48.599 --> 00:03:51.599 A two two D ten twenty five ten thirty six 67 00:03:51.680 --> 00:03:55.879 through thirty seven PA nineteen ninety six, the Pennsylvania Supreme 68 00:03:55.919 --> 00:03:58.719 Court found that firing the fatal bullet at the victim 69 00:03:58.879 --> 00:04:00.400 while the victim lay on the floor or of an 70 00:04:00.479 --> 00:04:03.639 enclosed bedroom, while another was on the floor close to 71 00:04:03.639 --> 00:04:07.240 the victim and others were on a bed nearby, created 72 00:04:07.280 --> 00:04:10.360 a great risk of death to everyone in that bedroom. 73 00:04:10.560 --> 00:04:13.280 The Rios court recognized that an errand bullet could have 74 00:04:13.280 --> 00:04:16.399 struck and killed anyone in the bedroom. That risk of 75 00:04:16.439 --> 00:04:20.000 death was not reduced because Rios fired only a single bullet. 76 00:04:20.879 --> 00:04:24.720 It's not necessary that the endangered bystander be directly in 77 00:04:24.720 --> 00:04:26.839 the line of fire for a grave risk of death 78 00:04:27.000 --> 00:04:31.720 to occur. IDEA thirty six Indeed, the Pennsylvania Supreme Court 79 00:04:31.759 --> 00:04:35.120 has repeatedly confirmed the conclusion that a zone of danger 80 00:04:35.199 --> 00:04:40.199 encompasses everyone. You're a shooting victim see Commonwealth versus Watson, 81 00:04:40.399 --> 00:04:44.079 five sixty five at two D one thirty two one PA, 82 00:04:44.399 --> 00:04:47.480 nineteen eighty nine. In a day and age where accidental 83 00:04:47.560 --> 00:04:51.000 victims of shootings are a prosaic, a jury can infer 84 00:04:51.079 --> 00:04:54.639 that an individual is knowingly endangering or person when that 85 00:04:54.759 --> 00:04:57.879 individual uses a gun in any area where he knows 86 00:04:57.920 --> 00:05:01.279 that others could be See also Commonwealth vers. Smith, five 87 00:05:01.279 --> 00:05:04.040 point forty a dot two D two forty six two 88 00:05:04.120 --> 00:05:08.879 sixty Pa, nineteen eighty eight. Jerry properly found that defendant 89 00:05:08.959 --> 00:05:11.480 created a grave risk of death where others were in 90 00:05:11.560 --> 00:05:15.439 danger of being struck by an errant ricochet or pass 91 00:05:15.519 --> 00:05:19.319 through bullet Commonwealth first Right, nine sixty one a dot 92 00:05:19.360 --> 00:05:22.600 two D one nineteen one forty six PA, two thousand 93 00:05:22.639 --> 00:05:26.079 and eight. A grave risk can be found where there's 94 00:05:26.120 --> 00:05:29.079 potential for an errant ricochet or a path through a bullet. 95 00:05:29.759 --> 00:05:33.120 It is unnecessary by the endangered bystander to be in 96 00:05:33.160 --> 00:05:35.079 the direct line of fire in order to be in 97 00:05:35.120 --> 00:05:38.399 grave risk of death, As with those in the line 98 00:05:38.399 --> 00:05:41.959 of fire. Defendant also acted knowingly in creating a grave 99 00:05:42.040 --> 00:05:44.639 risk of death for all those close to mister Kirk. 100 00:05:44.920 --> 00:05:49.079 When defendant pulled the trigger again, defendant could see, especially 101 00:05:49.160 --> 00:05:52.279 through his rifle scope, those who were in front of 102 00:05:52.639 --> 00:05:57.920 and to the sides of mister Kirk. State example one, two, three, three, 103 00:05:57.920 --> 00:06:01.199 dot two, four, five, seven, eight ten, tout three thirty 104 00:06:01.199 --> 00:06:05.480 two at one transcript Day one eighty seven, twelve through 105 00:06:05.480 --> 00:06:09.720 eighty eight. It's also reasonable to infer that the defendant 106 00:06:09.839 --> 00:06:12.480 could see people in the area behind mister Kirk's tent. 107 00:06:13.040 --> 00:06:16.240 In fact, that earlier that morning, defendant had been down 108 00:06:16.319 --> 00:06:21.600 to the amphitheater area, interacted with some TPUSA representatives, and 109 00:06:21.639 --> 00:06:24.879 would have seen firsthand the staging area behind mister Kirk's tent. 110 00:06:26.279 --> 00:06:30.000 Defendant was thus aware of the existing circumstances, that is, 111 00:06:30.279 --> 00:06:33.439 that several people were near mister Kirk when defendant shot. 112 00:06:33.480 --> 00:06:37.519 Ham Utah Code section seventy six Dash two Dash one 113 00:06:37.560 --> 00:06:40.920 oh three to two. A person acts knowingly with respect 114 00:06:40.920 --> 00:06:45.079 to circumstances surrounding his conduct when he is aware the 115 00:06:45.160 --> 00:06:50.040 existing circumstances, and again defended himself, anticipated that he might 116 00:06:50.040 --> 00:06:53.439 miss Kirk, he loaded his Grandpa's rifle with not just 117 00:06:53.519 --> 00:06:57.199 one engraved bullet, but with four engraved bullets. Had he 118 00:06:57.240 --> 00:06:59.519 been certain of his aim, he would have no reason 119 00:06:59.560 --> 00:07:02.120 to load it with more than one bullet. But defendant 120 00:07:02.160 --> 00:07:04.720 was well aware that he might miss his target, thereby 121 00:07:04.800 --> 00:07:07.920 putting others in danger, both those in the line of 122 00:07:07.959 --> 00:07:11.600 fire and others nearby, and he thus came prepared with 123 00:07:11.639 --> 00:07:14.399 four bullets in the event his aim was not true, 124 00:07:14.759 --> 00:07:18.560 a real possibility, as his own target practice had confirmed 125 00:07:18.600 --> 00:07:22.399 to him. The state therefore presented apple evidence of the 126 00:07:22.439 --> 00:07:27.120 aggravating circumstance. Because the evidence demonstrates probable cause for each 127 00:07:27.160 --> 00:07:30.480 element of Count one, aggravated murder, the court must bind 128 00:07:30.519 --> 00:07:34.319 defendant over for trial on that count see Utah Rules 129 00:07:34.360 --> 00:07:39.839 for Criminal Procedure seven b b B. The evidence establishes 130 00:07:39.920 --> 00:07:44.040 probable cause that defendant committed Count two, felony discharge of 131 00:07:44.040 --> 00:07:48.680 a firearm causing serious bodily injury. To establish that defendant 132 00:07:48.680 --> 00:07:52.680 committed felony discharge of a firearm causing serious bodily injury, 133 00:07:53.319 --> 00:07:57.839 the state must show that one defendant discharge the firearm 134 00:07:57.959 --> 00:08:01.160 in the direction of an individual, knowing or having reason 135 00:08:01.199 --> 00:08:04.000 to believe that an individual may be endangered by the 136 00:08:04.040 --> 00:08:08.399 discharge of the firearm and number four cause serious bodily 137 00:08:08.439 --> 00:08:13.279 injury to that individual. Utah Code Section seventy six DASH eleven, 138 00:08:13.839 --> 00:08:17.439 DASH two ten two A, and three C. The same 139 00:08:17.480 --> 00:08:21.839 evidence that establishes probable cause that defendant committed aggravated murder 140 00:08:22.199 --> 00:08:25.600 also establishes probable cause that he committed each element of 141 00:08:25.680 --> 00:08:30.279 felony discharge causing serious bodily injury. As explained, The evidence 142 00:08:30.360 --> 00:08:34.759 establishes probable cause that defendant fired a high powered rifle 143 00:08:34.799 --> 00:08:39.360 in mister Kirk's direction. As also explained, the evidence establishes 144 00:08:39.480 --> 00:08:43.720 probable cause that defendant knew that firing a high power 145 00:08:43.840 --> 00:08:48.360 rifle in mister Kirk's direction would endanger mister Kirk. Indeed, 146 00:08:48.360 --> 00:08:51.840 defendant admitted that he intended to kill mister Kirk State 147 00:08:51.879 --> 00:08:56.879 example sixteen dot one at three sixteen dot three. The 148 00:08:56.919 --> 00:09:01.480 evidence also establishes probable cause that defended inflicted serious bodily 149 00:09:01.559 --> 00:09:05.879 injury on mister Kirk. Serious bodily injury means bodily injury 150 00:09:05.919 --> 00:09:10.759 that creates or causes serious, permanent disfigurement, protracted loss or 151 00:09:10.799 --> 00:09:14.240 impairment of the function of any bodily member or organ, 152 00:09:15.240 --> 00:09:18.399 or it creates a substantial risk of death Utah Code 153 00:09:18.399 --> 00:09:22.200 Section seventy six dot one Dash one O one dot five. 154 00:09:22.720 --> 00:09:25.879 Defendant did not merely create a substantial risk of death 155 00:09:25.960 --> 00:09:28.759 when he shot mister Kirk. He in fact caused mister 156 00:09:28.840 --> 00:09:33.440 Kirk's death, states example eleven, at one. The evidence therefore 157 00:09:33.559 --> 00:09:40.039 establishes probable cause that defendant committed count number two. See 158 00:09:40.159 --> 00:09:44.440 the evidence establishes probable cause that defendant committed counts three 159 00:09:44.960 --> 00:09:48.799 and four obstruction of justice by concealing or removing both 160 00:09:48.840 --> 00:09:51.360 the firearm he used to shoot mister Kirk and the 161 00:09:51.399 --> 00:09:55.240 clothing he wore during the shooting. To establish that defendant 162 00:09:55.279 --> 00:09:58.679 committed obstruction of justice, the state must show that one 163 00:09:59.000 --> 00:10:05.759 defendant to would intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, 164 00:10:06.200 --> 00:10:10.600 or punishment of any person regarding conduct that constitutes a 165 00:10:10.639 --> 00:10:15.159 criminal offense. Three destroyed, concealed, or removed an item or 166 00:10:15.200 --> 00:10:19.759 other thing Utah Code Section seventy six dot eight dot 167 00:10:19.799 --> 00:10:23.360 three oh six two s. The evidence establishes probable cause 168 00:10:23.399 --> 00:10:26.840 to support each element. Defendant admitted to mister Twigs that 169 00:10:26.919 --> 00:10:29.240 he had concealed his rifle by leaving it in a 170 00:10:29.279 --> 00:10:33.080 bush where he changed outfits stead example sixteen dot one 171 00:10:33.360 --> 00:10:38.080 at two through seven. UVU surveillance video also shows defendant 172 00:10:38.120 --> 00:10:41.960 moving towards and away from the wooded area north to campus, 173 00:10:42.120 --> 00:10:46.200 where investigators found his rifle. As for his clothing, consistent 174 00:10:46.200 --> 00:10:50.240 with defendant's admission to mister Twigs, the surveillance footage showed 175 00:10:50.279 --> 00:10:54.200 defendant returning to campus just before the shooting wearing different 176 00:10:54.200 --> 00:10:58.240 clothing than he wore during his previous campus visits. Defendant 177 00:10:58.240 --> 00:11:01.279 also admitted to Michael Mitchell that he discarded the clothes 178 00:11:01.519 --> 00:11:05.200 that he wore during the incident. All this evidence establishes 179 00:11:05.240 --> 00:11:08.879 a reasonable belief that the defendant both removed and concealed 180 00:11:08.879 --> 00:11:12.799 the rifle he used to shoot mister Kirk and destroyed, concealed, 181 00:11:13.000 --> 00:11:15.480 or remove the clothing he wore when he fired the 182 00:11:15.480 --> 00:11:19.399 fatal shot see Utah Code Section seventy six Dash eight 183 00:11:19.720 --> 00:11:24.360 Dash three six two see. This evidence therefore establishes probable 184 00:11:24.399 --> 00:11:27.559 cause to support these elements of count three pretending to 185 00:11:27.559 --> 00:11:31.279 the rifle and count four pertending to the clothing. The 186 00:11:31.360 --> 00:11:36.120 evidence also establishes probable cause that defendant intended to hinder, delay, 187 00:11:36.440 --> 00:11:41.080 or prevent a criminal investigation. Defendant texted mister Twigs that 188 00:11:41.120 --> 00:11:43.720 he had hoped to keep this little secret until he 189 00:11:43.799 --> 00:11:46.480 died of old age, and that if he were able 190 00:11:46.519 --> 00:11:49.559 to grab his rifle unseen, he'd have left no evidence. 191 00:11:50.240 --> 00:11:53.279 In the note defendant left for mister Twiggs before driving 192 00:11:53.279 --> 00:11:57.240 to UVU, defendant predicted that by the time mister Twiggs 193 00:11:57.279 --> 00:12:00.879 read the note, defendant would be likely dead or facing 194 00:12:01.120 --> 00:12:06.679 a lengthy prison sentence. These admissions demonstrate that defendant new 195 00:12:06.720 --> 00:12:09.919 a criminal investigation for murder would follow his shooting of 196 00:12:09.960 --> 00:12:13.039 mister Kirk, and that he intended to obstruct that investigation 197 00:12:13.600 --> 00:12:16.720 at the very least that is a reasonable inference from 198 00:12:16.720 --> 00:12:22.000 defendant's admissions. The evidence therefore establishes probable cause that defendant 199 00:12:22.000 --> 00:12:26.440 committed both counts of obstruction of justice. All right, folks, 200 00:12:26.480 --> 00:12:28.159 we're going to wrap up right here, and in the 201 00:12:28.200 --> 00:12:30.200 next episode dealing with the topic, we're going to pick 202 00:12:30.279 --> 00:12:33.519 up what part d. All the information that goes with 203 00:12:33.679 --> 00:12:36.960 this episode can be found in the description box.