My client, Dan “Bull” Dozer, was charged with second degree murder of Jake Jones. The judge properly instructed the jury on the elements of second degree murder and—as a lesser included offense—involuntary manslaughter. The jury brought in a verdict of second degree murder.      The key witness at the trial was George Glass. The transcript of his testimony is attached. On appeal, I would like to argue that his testimony was insufficient to support a verdict of second degree murder or involuntary manslaughter. As an alternative argument, I would like to try to persuade the court to reduce the verdict to involuntary manslaughter (as the court did in State v. Bolsinger). Please read the transcript and attached authorities and advise me as to the best arguments on these points I can make on appeal, and whether I am likely to win.

Transcript of Testimony of George Glass

Q: Mr. Glass, what is your occupation?
A: I am a bartender at the Wonder Bar, in Ogden.
Q: Did you see an altercation between Bull Dozer and Jake Jones in the Wonder Bar last April 23?
A: Yes.
Q: Please describe what you saw and heard.
A: It happened around 10 p.m. Bull and Jake had been standing at the bar drinking whiskey and shooting dice, for about an hour. They had a quart bottle of whiskey in front of them which was about half full. All of a sudden they started arguing loudly about their dice game. Jake was yelling that Bull and cheated by turning one of the dice when Jake wasn't looking, and Bull owed him $5 on a bet they made. Bull said he hadn't cheated, and he said that Jake had no right to attack his honor. Then Jake said, “Well, there isn't much honor to attack,” and Bull got very angry and said, “It's all over for you buddy.” Bull picked up the whiskey bottle and clobbered Jake over the head with it. Jake just crumbled. Bull said,” I didn't mean to kill him,” and he ran out the door. We called a doctor, but it was too late. Jake had died of a brain hemorrhage.
Q: Would you describe the two men?
A: There were both about 5 feet, 10 inched tall. Bull was a little heavier, maybe 180 pounds, while Jake was about 160 pounds. Bull was 35 years old and Jake was 41.
Q: Was Bull drunk?
A: No, but he was a bit high from the whiskey. He's usually a very easy going guy, but when he drinks he tends to get pretty combative. I've told him about this before, and I advised him not to drink too much.

Utah Criminal Code
Section 76-5-203. Murder
(1) Criminal homicide constitutes murder if the actor:

(a) intentionally or knowingly causes the death of another; (b) intending to cause serious bodily injury to another, he commits an act clearly dangerous to human life that causes the death of another (c) acting under circumstances evidencing a depraved indifference to human life, he engages in conduct which creates a grave risk of death to another and thereby causes the death of another; or (d) [commits certain felonies].

Section 76-5-205. Manslaughter
(1) Criminal homicide constitutes manslaughter if the actor:

(a) recklessly causes the death of another; (b) commits a homicide which would be murder, but the offense is reduced pursuant to Subsection 76-5-203 (4); or (c) commits murder, but special mitigation is established under Section 76-5-205.5 .

(2) Manslaughter is a felony of the second degree.

Click here to return to Learning in Action>>

Central High School | 70 Fricker St., Providence, RI 02903 | 401.456.9111
What Kids Can Do, Inc. | PO Box 603252, Providence, RI 02906 | 401.247.7665

Copyright © 2005