An Ogden man, sentenced to die for the rape and murder of an 11-year-old girl two years ago, believes testimony concerning a crime he committed 15 years ago unduly influenced the judge to give him the death penalty.

John Albert Taylor's attorney told the Utah Supreme Court Monday that Taylor didn't get a fair penalty hearing because the unsubstantiated testimony was admitted from a neighbor who said Taylor abused her when she was 6 years old.Martin B. Gravis, Taylor's attorney, wants the court to grant Taylor a new penalty hearing. Taylor is sentenced to die for the rape and strangulation of Charla King, 11, on June 23, 1989.

Utah law allows wide-ranging testimony about a defendant's character and past to be admitted during the penalty phase of a capital-crime trial.

But Gravis believes that because Taylor's neighbor didn't tell anyone of the abuse when it occurred, her testimony should not have been heard. The neighbor didn't come forward with her story until after Taylor was convicted for King's murder, more than 15 years after the alleged abuse would have occurred.

Assistant Utah Attorney General Sandra Sjogren argued that because all aspects of a defendant's life are taken into consideration when considering the death penalty, the neighbor's claim of sexual assault was appropriate testimony.

The judge didn't admit all claims of sexual assault arising from Taylor's brief stay in Utah while a teenager. Taylor was picked up by the police in 1974, after several young girls identified him as the man who had sexually abused them at an Ogden swimming pool. The judge didn't consider that incident during the penalty phase because he didn't believe it had been proved beyond a reasonable doubt.

Gravis argued that the testimony was prejudicial to Taylor because he could not defend himself. "It's hard for anyone to determine what they were doing 15 years ago, or to remember if there are witnesses they can call."

Sjogren said there were no witnesses to the abuse but that there was no question that Taylor was the abuser.

"Everyone knew who he was. They were neighbors."

She also noted that several other elements of Taylor's past were considered when he was given the death penalty, including a 1979 Florida conviction for burglary and illegal possession of a firearm; a 1974 Utah burglary that he later admitted; and the rape of his sister when he was 14, which led to a four-year stint in a Florida sex offenders program.

Justice I. Daniel Stewart questioned the appropriateness of giving Taylor a death sentence for a first murder. Stewart said no other Utah death-row inmates were given the death penalty for their first murder.

Sjogren and Justice Michael D. Zimmerman disagreed. Elroy Tillman was sentenced to die for bludgeoning a man with an ax, then setting his bed on fire, Sjogren said. Douglas Carter faces the death penalty for murdering an elderly Provo woman. Even though it was his first murder, he stabbed, shot and smothered her, which resulted in the death penalty, Sjogren said.

The court told Gravis it will take his appeal under advisement.

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(Additional information)

Death-row arguments

DEFENSE:

Accusation that John Albert Taylor abused a neighbor girl 15 years ago should not have been admitted as evidence.

PROSECUTOR:

During the setting of penalties, state law allows wide-ranging testimony about a defendant's character and past deeds.