WEBVTT 1 00:00:00.120 --> 00:00:03.240 What's up, everyone, and welcome back to the program. In 2 00:00:03.279 --> 00:00:05.759 this episode, we're getting right back to the State of 3 00:00:05.879 --> 00:00:10.400 Utah's response to Tyler Robinson's memorandum in regards to his 4 00:00:10.519 --> 00:00:16.039 bind over Part two. When properly construed, the evidence demonstrates 5 00:00:16.039 --> 00:00:19.760 a reasonable belief that the defendant knowingly created a great 6 00:00:19.839 --> 00:00:22.480 risk of death to another when he fired a high 7 00:00:22.480 --> 00:00:25.920 powered rifle toward a crowd of thousands, including several who 8 00:00:26.000 --> 00:00:28.320 were in the line of fire were otherwise in close 9 00:00:28.359 --> 00:00:32.600 proximity to mister Kirk. Just as he misrepresents the legal 10 00:00:32.679 --> 00:00:37.119 standard governing this prelim hearing, defendant also misrepresents the standard 11 00:00:37.359 --> 00:00:41.880 for establishing the great risk of death aggravator. The existence 12 00:00:42.920 --> 00:00:45.600 of that aggravator does not require a minimum set of 13 00:00:45.600 --> 00:00:50.159 factual circumstances which must be present, as defendant claims defense 14 00:00:50.200 --> 00:00:54.399 Memorandum at five, nor is the test a multi factor analysis, 15 00:00:54.560 --> 00:00:58.479 as defendant also claims. When the evidence is properly viewed 16 00:00:58.679 --> 00:01:01.840 under the test the Utah the Supreme Court has actually endorsed, 17 00:01:02.479 --> 00:01:06.480 the evidence demonstrates a reasonable belief that the aggravating circumstance 18 00:01:06.959 --> 00:01:11.879 is satisfied. Here, a defendant misrepresents the applicable test for 19 00:01:12.000 --> 00:01:15.280 determining whether he knowingly created a great risk of death 20 00:01:15.319 --> 00:01:18.719 to another. In explaining and applying the great risk of 21 00:01:18.760 --> 00:01:23.760 death aggravator State vers. Sosa Hurtado twenty nineteen, the Utah 22 00:01:23.840 --> 00:01:27.319 Supreme Court expressly stated that it was not establishing multi 23 00:01:27.319 --> 00:01:31.599 factor balancing tests. Rather, the ultimate test is the statutory test, 24 00:01:31.920 --> 00:01:35.519 and that test requires that the defendant knowingly created the 25 00:01:35.519 --> 00:01:39.799 great risk of death. Quoting Utah Code Section seventy six 26 00:01:39.920 --> 00:01:43.439 five two two to one c. The three factors that 27 00:01:43.480 --> 00:01:47.280 the Sosa Hurtado Court identified to guide the application of 28 00:01:47.359 --> 00:01:50.319 the statutory test or simply a range of factors of 29 00:01:50.319 --> 00:01:54.680 possible relevance to the statutory inquiry has elaborated in our 30 00:01:54.719 --> 00:01:57.879 case law. In fact, the Court repeated, we are not 31 00:01:58.040 --> 00:02:02.159 here establishing the multi factor test. The considerations in Sosa 32 00:02:02.200 --> 00:02:05.079 Hurtado are non exhaustive and they are not the test. 33 00:02:05.680 --> 00:02:11.840 Defendant ignores these portions of Sosa Hurtado. Defendant also erroneously 34 00:02:11.960 --> 00:02:16.960 urges the Court to construe the aggravating circumstance narrowly Defense 35 00:02:17.000 --> 00:02:21.159 Memorandum at three through five. The legislature has already narrowed 36 00:02:21.159 --> 00:02:24.439 the aggravator by requiring that the defendant knowingly create a 37 00:02:24.439 --> 00:02:27.719 great risk of death to another Utah Code Section seventy 38 00:02:27.759 --> 00:02:31.680 six two two two two A and three, the court 39 00:02:31.759 --> 00:02:36.120 cannot apply its own narrowing gloss of that standard. Again, 40 00:02:36.199 --> 00:02:40.439 the ultimate test is the statutory test Sosa Hurtado, twenty nineteen, 41 00:02:40.759 --> 00:02:45.360 UTAH sixty five. Nor does defendant emphasis on language from 42 00:02:45.439 --> 00:02:48.599 other cases that a defendant must create a high probability 43 00:02:48.599 --> 00:02:52.599 of death modify the statutory standard defense Memorandum at two. 44 00:02:53.000 --> 00:02:55.280 A high probability of death is just another way to 45 00:02:55.319 --> 00:02:58.360 say a great risk of death. Other courts use the 46 00:02:58.439 --> 00:03:02.520 term high probability. Therefore, does not modify the statutory test 47 00:03:02.800 --> 00:03:08.159 that Soda Sosa Hurtado endorsed UTAH twenty nineteen. The ultimate 48 00:03:08.199 --> 00:03:12.240 test is the statutory test. It also makes no difference 49 00:03:12.319 --> 00:03:15.080 that the facts of other cases do not precisely fit 50 00:03:15.319 --> 00:03:19.000 the facts here. Defendant spills much ink detailing the facts 51 00:03:19.039 --> 00:03:22.039 of other cases where courts have analyzed the great risk 52 00:03:22.280 --> 00:03:26.159 of death aggravator, But the fact that other defendants did 53 00:03:26.159 --> 00:03:30.080 more to endanger others, like firing multiple shots, than defendant 54 00:03:30.120 --> 00:03:33.919 did here is not persuasive. The issue is not whether 55 00:03:34.120 --> 00:03:36.479 another court has applied the aggravator in a case with 56 00:03:36.599 --> 00:03:40.919 identical or at least highly similar facts. Rather, the issue 57 00:03:41.080 --> 00:03:44.960 is whether the evidence, together with the reasonable inferences therefrom, 58 00:03:45.439 --> 00:03:48.039 when properly viewed in the light of most favorable to 59 00:03:48.080 --> 00:03:52.680 the state, supports a reasonable belief that defendant knowingly created 60 00:03:52.719 --> 00:03:54.960 a great risk of death to at least one other 61 00:03:55.000 --> 00:03:59.919 person see Sosa Hurtado, twenty nineteen, Utah. The ultimate test 62 00:04:00.240 --> 00:04:03.719 is a statutory test. The state is comfortably surmounted at 63 00:04:03.759 --> 00:04:07.680 low bar. The court must also recognize that while Hurtado 64 00:04:08.080 --> 00:04:11.439 analyzed and applied the great risk of death aggravator, it 65 00:04:11.520 --> 00:04:14.919 did so in different context and therefore had a different focus. 66 00:04:15.520 --> 00:04:19.360 So Hurtado fired three shots at two different people. He 67 00:04:19.480 --> 00:04:22.240 fired the third and fatal shot at his victim at 68 00:04:22.279 --> 00:04:25.199 close range and with his back to the other smoke 69 00:04:25.199 --> 00:04:29.319 shop employee. The issue in that case therefore concerned the 70 00:04:29.360 --> 00:04:32.560 scope of the relevant circumstances that a jury could consider 71 00:04:32.839 --> 00:04:37.000 in determining whether the aggravator was satisfied. As the court explained, 72 00:04:37.240 --> 00:04:40.720 the issue was whether the relevant circumstances extend beyond the 73 00:04:40.720 --> 00:04:43.959 precise act that caused the death of the victim, or 74 00:04:44.040 --> 00:04:47.839 whether the aggravator applied only where the murderous act itself 75 00:04:48.199 --> 00:04:50.600 creates a great risk of death to a third party. 76 00:04:51.560 --> 00:04:54.720 Citing UTAH Code Section seventy six TOASH five to A 77 00:04:54.800 --> 00:04:58.120 one point one c, the court ultimately held that the 78 00:04:58.160 --> 00:05:01.920 relevant circumstance include more than just the murderous act itself. 79 00:05:02.519 --> 00:05:05.240 A person may be guilty of knowingly creating a great 80 00:05:05.279 --> 00:05:07.839 risk of death to another person if he did so 81 00:05:07.920 --> 00:05:10.680 within a brief span of time of the act causing 82 00:05:10.720 --> 00:05:14.279 the murder, and the acts together formed a series of events. 83 00:05:15.040 --> 00:05:19.399 Unlike Hurtado, this case involves only the murderous act itself, 84 00:05:19.959 --> 00:05:23.720 be the evidence supports a reasonable belief that the statutory 85 00:05:23.759 --> 00:05:27.279 test for the great risk of death aggravator is satisfied here. 86 00:05:28.560 --> 00:05:31.079 Although Sosa Hurtado was focused on the scope of the 87 00:05:31.120 --> 00:05:35.279 relevant circumstances that can support the aggravator, its analysis is 88 00:05:35.319 --> 00:05:39.600 nevertheless helpful here because the Supreme Court recognized that firing 89 00:05:39.639 --> 00:05:42.439 a rifle at a murder victim while another is close 90 00:05:42.480 --> 00:05:46.000 by creates a great risk of death to that surviving person. 91 00:05:46.959 --> 00:05:50.160 As explained in State's opening memo, the Soa Hurtado Court 92 00:05:50.240 --> 00:05:53.199 recognized that there were two separate acts that created a 93 00:05:53.240 --> 00:05:57.480 great risk of death to the surviving smoke shop employee. 94 00:05:57.680 --> 00:06:00.600 The first act was the shot fire towards the surviving 95 00:06:00.600 --> 00:06:03.600 employee that missed. The other was a shot that hit 96 00:06:03.879 --> 00:06:07.120 the murder victim in the hand while the surviving employee 97 00:06:07.319 --> 00:06:11.439 was only a few feet away. Thus, contrary to defendant's contention, 98 00:06:12.000 --> 00:06:16.040 UTAH has in fact adopted an interpretation of the aggravating 99 00:06:16.079 --> 00:06:19.000 factor that would permit its application, where the firing of 100 00:06:19.040 --> 00:06:22.079 a single shot at an intended victim hit only the 101 00:06:22.079 --> 00:06:25.680 intended victim. Here, there were several people close to mister 102 00:06:25.759 --> 00:06:29.399 Kirk when defendant shot him dead. Most significantly, the questioner 103 00:06:29.480 --> 00:06:33.000 was directly between defendant and mister Kirk and within a 104 00:06:33.000 --> 00:06:37.240 few feet of mister Kirk stead example number eight. There 105 00:06:37.240 --> 00:06:40.680 were also several people who were near the questioner. There 106 00:06:40.680 --> 00:06:43.800 were also those with mister Kirk who were under or 107 00:06:43.839 --> 00:06:46.800 near his tent. All these people were visible in the 108 00:06:46.800 --> 00:06:51.480 clear line of sight between Defendant's perch and mister Kirk's seat. Indeed, 109 00:06:51.720 --> 00:06:54.439 from a distance of four hundred and ten feet from 110 00:06:54.480 --> 00:06:59.079 mister Kirk, basic mathematics dictates that an angular shift of 111 00:06:59.120 --> 00:07:01.839 even one eighth of an inch would result in a 112 00:07:01.879 --> 00:07:05.920 substantial miss of the intended target either above below, or 113 00:07:05.959 --> 00:07:08.160 to the right or left, depending on the direction of 114 00:07:08.199 --> 00:07:12.199 the shift, placing many others in danger. Given these facts, 115 00:07:12.360 --> 00:07:15.639 two of the three Sosa Hertato factors support the conclusion 116 00:07:15.959 --> 00:07:20.319 that the great risk of death aggravator applies. As explained, 117 00:07:20.360 --> 00:07:23.079 the spatial relationship between those in the line of fire 118 00:07:23.360 --> 00:07:27.519 and those close to mister Kirk supports application of the aggravator. 119 00:07:28.079 --> 00:07:31.319 Defendant also threatened these people by indirect means through the 120 00:07:31.399 --> 00:07:36.360 risk of stray or ricochet bullets. The other Hertata factor, 121 00:07:36.680 --> 00:07:39.240 the time between the murderous act and any other acts 122 00:07:39.279 --> 00:07:42.519 the defendant may have taken towards third parties, is simply 123 00:07:42.560 --> 00:07:47.720 inapplicable here. Considerations of Soa Hertato factors therefore supports a 124 00:07:47.720 --> 00:07:51.480 reasonable belief that defendant knowingly created a great risk of 125 00:07:51.519 --> 00:07:54.199 death to those who were in defendant's line of fire 126 00:07:54.639 --> 00:07:57.000 and to those who were close to mister Kirk but 127 00:07:57.079 --> 00:07:59.759 outside the line of fire. When defendant pulled the trigger, 128 00:08:00.279 --> 00:08:03.480 one defendant knowingly created a great risk of death to 129 00:08:03.560 --> 00:08:07.600 those who were within his line of fire. Defendant's attacks 130 00:08:08.319 --> 00:08:11.480 the state's line of fire argument, which he repeatedly mislabels 131 00:08:11.600 --> 00:08:15.000 as a line of sight argument Defense Memorandum at fifteen 132 00:08:15.000 --> 00:08:18.160 and sixteen. On the basis that mister Kirk was seated 133 00:08:18.319 --> 00:08:22.720 in an elevated position, Defendant asserts that the bullet traveled above, 134 00:08:22.959 --> 00:08:26.319 not through the crowd, but in states exhibit eight, the 135 00:08:26.439 --> 00:08:30.759 questioner's head is visible above mister Kirk's head State example 136 00:08:30.839 --> 00:08:33.639 number eight. Others standing in the front rows of the 137 00:08:33.639 --> 00:08:37.320 crowd are positioned at approximately the same level as the questioner, 138 00:08:37.639 --> 00:08:41.200 but slightly farther back from mister Kirk. And regardless of 139 00:08:41.240 --> 00:08:44.519 the precise elevation of the questioner's head and the heads 140 00:08:44.559 --> 00:08:46.519 of the others in the crowd in relation to mister 141 00:08:46.600 --> 00:08:49.679 Kirk's head, any difference is so negligible that it does 142 00:08:49.720 --> 00:08:52.799 not place the others outside the line of fire see 143 00:08:52.840 --> 00:08:56.600 State's example seven and eight. The evidence therefore supports a 144 00:08:56.639 --> 00:08:59.320 reasonable belief that all these people were in the line 145 00:08:59.320 --> 00:09:02.720 of fire and therefore within the zone of danger that 146 00:09:02.799 --> 00:09:07.200 defendant created when he fired his rifle. See Sylvia, verse 147 00:09:07.200 --> 00:09:11.519 State sixty, Florida, twenty eleven. Defendant knowingly created a great 148 00:09:11.600 --> 00:09:13.879 risk of death to people who were in his line 149 00:09:13.879 --> 00:09:18.639 of fire. Commonwealth verst Buck seven h nine, Pennsylvania nineteen 150 00:09:18.679 --> 00:09:22.159 ninety eight single fatal shot at murder victim placed another 151 00:09:22.200 --> 00:09:24.559 individual who was in the line of fire at grave 152 00:09:24.639 --> 00:09:28.480 risk of death. Two. Defendant knowingly created a great risk 153 00:09:28.519 --> 00:09:31.720 of death to those nearer mister Kirk when defendant pulled 154 00:09:31.759 --> 00:09:35.440 the trigger. Defendant also knowingly created a great risk of 155 00:09:35.480 --> 00:09:38.519 death to those near mister Kirk, although not within the 156 00:09:38.559 --> 00:09:42.279 line of fire. Two security personnel were directly in front 157 00:09:42.559 --> 00:09:46.039 and on either side of mister Kirk, but still within 158 00:09:46.080 --> 00:09:49.360 the span of his tent. A third security person was 159 00:09:49.440 --> 00:09:51.960 under the tent and just to mister Kirk's right state 160 00:09:52.000 --> 00:09:55.120 example seven. This person had to take only a small 161 00:09:55.159 --> 00:09:58.399 step to reach mister Kirk as he fell. Another person 162 00:09:58.639 --> 00:10:01.519 was operating a camera just under the tent front edge 163 00:10:01.639 --> 00:10:05.639 to mister Kirk's left state example eight. Defendant had a 164 00:10:05.639 --> 00:10:08.639 clear line of sight to view all these people from 165 00:10:08.799 --> 00:10:12.440 just four hundred and ten feet away. The evidence also 166 00:10:12.480 --> 00:10:15.519 supports a reasonable inference that defendant knew that the people 167 00:10:15.600 --> 00:10:19.039 there in the area behind mister Kirk's tent. Defendant visited 168 00:10:19.080 --> 00:10:24.159 the amphitheater area at least twice before the shooting. This 169 00:10:24.279 --> 00:10:27.200 evidence supports a reasonable inference that he saw the staging 170 00:10:27.240 --> 00:10:30.559 area behind mister Kirk's tent. The fact that defendant had 171 00:10:30.559 --> 00:10:33.279 a clear line of sight to mister Kirk's tent at 172 00:10:33.320 --> 00:10:36.600 the time of the shooting also supports a reasonable inference 173 00:10:37.000 --> 00:10:39.960 that defendant new people were in that staging area when 174 00:10:39.960 --> 00:10:43.480 he fired the shot. Defendant argues that given the speed 175 00:10:43.759 --> 00:10:46.360 with which he had to acquire his target and fire 176 00:10:46.440 --> 00:10:49.279 once he got into position in the sniper's nest, the 177 00:10:49.320 --> 00:10:52.360 evidence does not support a reasonable inference that he knew 178 00:10:52.519 --> 00:10:55.840 that any of these people were present. Defense Memorandum at 179 00:10:55.879 --> 00:10:59.360 twenty and twenty one. But this argument again ignores the 180 00:10:59.360 --> 00:11:02.480 controlling evidence entry standard because it asked the court to 181 00:11:02.559 --> 00:11:06.159 view the inferences in defendant favor rather than the states 182 00:11:07.000 --> 00:11:09.240 defendant had a clear line of sight to mister Kirk, 183 00:11:09.559 --> 00:11:12.440 the crowd, those nearest mister Kirk, and those in the 184 00:11:12.480 --> 00:11:16.480 staging area behind the tent. The evidence therefore supports a 185 00:11:16.559 --> 00:11:21.320 reasonable inference that defendant knew all the above mentioned people 186 00:11:21.399 --> 00:11:24.480 were near mister Kirk when defendant fired his rifle, and 187 00:11:24.600 --> 00:11:27.480 defendant had longer than just the approximate thirty five to 188 00:11:27.519 --> 00:11:31.039 forty four seconds in the prone position to observe these people. 189 00:11:31.799 --> 00:11:33.960 He would also have seen the people as he ran 190 00:11:34.240 --> 00:11:38.519 and then crawled towards his rooftop position. Regardless of emphasizing 191 00:11:38.559 --> 00:11:41.600 how hastily defendant had to act to acquire his target 192 00:11:41.840 --> 00:11:44.799 and fire his rifle does not help him. It only 193 00:11:44.879 --> 00:11:47.840 highlights and increases the likelihood that he would miss his 194 00:11:47.879 --> 00:11:51.240 intended target. The speed with which defendant had to act, 195 00:11:51.480 --> 00:11:54.879 coupled with evidence showing that he had to reassemble his rifle, 196 00:11:55.200 --> 00:11:58.320 that he loaded four cartridges in his rifle, and that 197 00:11:58.360 --> 00:12:02.320 in his earlier target practice he sometimes missed the target entirely, 198 00:12:02.879 --> 00:12:05.639 all supports the reasonable inference that defendant knew that he 199 00:12:05.639 --> 00:12:09.240 could miss. That inference supports a reasonable belief that he 200 00:12:09.320 --> 00:12:13.279 knowingly created a great risk of death to both those 201 00:12:13.320 --> 00:12:16.919 in his line of fire and others near mister Kirk. Again, 202 00:12:17.399 --> 00:12:20.879 a jury can infer that an individual is knowingly endangering 203 00:12:20.879 --> 00:12:24.000 a person when that individual uses a gun in any 204 00:12:24.039 --> 00:12:29.320 area where he knows that others could be Commonwealth versus Watson, Pennsylvania, 205 00:12:29.399 --> 00:12:33.320 nineteen eighty nine. Common sense also dictates that firing a gun, 206 00:12:33.600 --> 00:12:36.559 especially a high power rifle, towards others puts them at 207 00:12:36.559 --> 00:12:39.759 great risk of death. That is precisely why gun ranges 208 00:12:39.879 --> 00:12:43.399 prohibit shooters from even handling a firearm when others are 209 00:12:43.440 --> 00:12:48.200 downranged beyond the firing line. Defendant highlights cases where other 210 00:12:48.320 --> 00:12:50.720 courts did not find that the facts satisfied the great 211 00:12:50.799 --> 00:12:53.440 risk of death aggravator. But again, the issue is not 212 00:12:53.559 --> 00:12:57.360 how closely the facts here resemble those in other cases. 213 00:12:57.879 --> 00:13:01.279 The issue is whether the facts here, together with reasonable 214 00:13:01.279 --> 00:13:07.600 inferences therefrom demonstrate a reasonable belief the defendant satisfied the 215 00:13:07.600 --> 00:13:12.720 statutory aggravator. Moreover, some of these cases support application of 216 00:13:12.759 --> 00:13:16.799 the aggravating circumstance. In the case, for example, although defendant 217 00:13:16.840 --> 00:13:19.720 in Little John vers. State fired only one shot in 218 00:13:19.759 --> 00:13:23.039 a convenience store that hit his intended victim, the court 219 00:13:23.120 --> 00:13:26.879 recognized that the aggravator applies when the defendant's acts create 220 00:13:26.919 --> 00:13:29.759 a risk of death to another which are in close 221 00:13:29.799 --> 00:13:33.600 proximity in terms of time, location, and intent to that 222 00:13:33.679 --> 00:13:36.440 act of the killing itself. There was no mention in 223 00:13:36.480 --> 00:13:38.879 Little John of how close others in the store were 224 00:13:38.960 --> 00:13:42.600 to the person who was shot and killed. Similarly, although 225 00:13:42.639 --> 00:13:45.440 the court in Johnson verse State found that the defendant 226 00:13:45.480 --> 00:13:47.840 did not create a great risk of death to another 227 00:13:47.960 --> 00:13:50.960 when he fired out a store manager at point blank range, 228 00:13:51.320 --> 00:13:54.720 The court also noted no other person was within the 229 00:13:54.720 --> 00:13:58.440 immediate vicinity or within the line of fire. Finally, the 230 00:13:58.480 --> 00:14:01.720 court statement in United States first bin laden about a 231 00:14:01.759 --> 00:14:04.480 defendant who might carefully target his victim does not help 232 00:14:04.519 --> 00:14:07.679 defend in here the core positive that a jury may 233 00:14:07.759 --> 00:14:11.440 find there to be qualitative differences between a defendant who 234 00:14:11.440 --> 00:14:16.639 carefully targets an intended victim or victims without endangering others, 235 00:14:17.000 --> 00:14:21.159 and one who acts with indifference to additional persons. But 236 00:14:21.320 --> 00:14:24.559 defendant here acted with indifference to those in his line 237 00:14:24.559 --> 00:14:27.480 of fire and close to mister Kirk because his shot 238 00:14:27.600 --> 00:14:31.360 endangered them, even though it ended up hitting its intended target. 239 00:14:32.080 --> 00:14:33.919 All right, folks, we're gonna wrap up right here, and 240 00:14:34.000 --> 00:14:35.679 in the next episode we're going to pick up with c. 241 00:14:36.440 --> 00:14:39.679 Many of defendant's arguments depend on ignoring some evidence and 242 00:14:39.759 --> 00:14:44.720 improperly viewing the evidentiary inferences in his favor. All the 243 00:14:44.759 --> 00:14:47.879 information that goes with this episode can be found in 244 00:14:47.960 --> 00:14:48.919 the description box.