Utah's murder statutes not only outrage victims' families because of outdated language, they also confuse prosecutors and even judges.
"There have been mistakes in sentencing, mistakes in charging, I'm told," said Sen. Lyle Hillyard, R-Logan, a practicing criminal attorney who wants to change the current first- and second-degree homicide charges to aggravated homicide and, simply, homicide.The name changes sound simple enough - Hillyard doesn't want to change the penalties for the crimes at all. And it's simplicity Hill-yard seeks. He has prefiled a bill for the 1991 session to make the name changes.
Hillyard says he's been told that there are "rare" instances in which even a judge has become confused. First-degree homicide carries with it two possible sentences - execution or five-years-to-life imprisonment. It is a first-degree felony.
Second-degree homicide carries with it a five-years-to-life imprisonment sentence. It, too, is a first-degree felony. And therein lies the confusion. Some prosecutors, or even judges, who don't often deal with murder mistakenly believe that second-degree homicide is a second-degree felony - and that it carries with it a lesser penalty, one to 15 years in prison.
"It also is a matter of public misunderstanding," says Hillyard. For example, the parents of Malik Smith, Hollywood actress Beverly Todd and producer Kris Keiser, were outraged when John Tavo Leota, the young man who punched their son last year in a dance-hall fight and caused his death, was charged with second-degree homicide instead of first-degree homicide.
"They (Smith's parents) came unglued, and many others do also. They don't understand. Because the charge contains the language `second' they think it isn't as serious as it should be. The victim's family is offended, and they're suffering enough as it is," says Hillyard.
Leota was ultimately found guilty of negligent homicide, which led to another bill being introduced in the Legislature, one that creates an additional homicide sentencing category with a sentence of zero to five years in prison. Negligent homicide carries a one-year jail sentence, and Leota was freed from jail last week.
Mark Hofmann, who killed two people with bombs, also pleaded guilty to second-degree homicide, and many Utahns thought that plea was too light. But, again, Hoffmann was sentenced to five years to life in prison and the Utah Board of Pardons has said he will serve the rest of his life behind bars.