# State v. Tillman

> Utah Supreme Court · December 22, 1987 · 72 Utah Adv. Rep. 6

URL: https://www.frixlaw.com/law-library/cases/9565100

## Case

- **Full name:** STATE of Utah, Plaintiff and Respondent, v. Elroy TILLMAN, Defendant and Appellant
- **Court:** Utah Supreme Court
- **Decided:** December 22, 1987
- **Citations:** 72 Utah Adv. Rep. 6; 750 P.2d 546; 1987 Utah LEXIS 835; 1987 WL 33745
- **Precedential status:** Published
- **Opinion:** Concurrence by Howe
- **Judges:** Hall, Stewart, Howe, Durham, Zimmerman
- **Cited by:** 161 later opinions in the Frix Law Library

## Citator (automated)

- **Yellow flag:** Disagreed with by People v. Cahill, 2 N.Y.3d 14 (2003).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9565100

## How later opinions describe it (automated extraction)

- stating that a prima facie case is established if the defendant shows "(1) that the group alleged to be excluded is a 'distinetive' group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relatio…
- holding that blacks and Asians are not numerous enough in Salt Lake County to constitute a distinctive group for fair cross-section purposes
- discussing Utah Code Ann. § 76-5- 202(1), the Utah capital murder statute in effect at the time of the murder and the trial
- holding that the jury need not agree on the theory supporting the conviction if there is sufficient evidence to support either theory

## Opinion text

HOWE, Justice:
(concurring in the result).
I concur except I concur only in the result of parts VII and VIII.
I concur in the result of Part VII on the basis of the analysis of the unanimity rule in State v. Russell, 733 P.2d 162 (Utah 1987). Although the instant case does not involve the defendant’s mens rea as in State v. Russell, in that case we approved the rule of People v. Sullivan, 173 N.Y. 122 , 65 N.E. 989 (1903), which held that the jury does not have to be unanimous on the precise manner in which the crime was committed, or by which of several alternative methods or modes, or under which interpretation of the evidence so long as there is substantial evidence to support each of the methods, modes, or manners charged. I cannot accept the implication in the majority opinion that had the defendant requested separate verdict forms requiring the jury to be unanimous as to what felony he was in the course of committing when the homicide took place, he would have been entitled to such a verdict. State v. Russell, supra, held that the defendant was not entitled to have the jury instructed that they must be unanimous as to the defendant’s mens rea. That holding likewise applies here where we are concerned with the manner in which the killing occurred.
*583 As to Part VIII, I base my concurrence on State v. Johnson, 740 P.2d 1264 (Utah 1987), where we employed the res gestae analysis which we adopted in State v. Weddle, 29 Utah 2d 464 , 511 P.2d 733 (1973). Under that analysis, it is sufficient if the killing is directly associated with the felony as part of one continuous, interrelated occurrence. See the cases cited and discussed in State v. Johnson, supra, State v. Dudrey, 30 Wash.App. 447 , 635 P.2d 750 (1981), and State v. Richmond, 112 Ariz. 228 , 540 P.2d 700 (1975). The same reasoning applies to the arson which immediately followed the attack on the victim.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9565100. Public record. Not legal advice.