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State v. Robinson1/3/2003
g the manslaughter statute."), cert. denied, 781 P.2d 878 (Utah 1989). Two subjective elements of the definition are whether the person actually perceived the risk that his or her actions presented and whether he or she consciously disregarded it.See State v. Howard, 597 P.2d 878, 881 (Utah 1979)(recognizing that whether an actor perceived and disregarded a risk "is purely [a question] of subjective intent in the mind of the actor"); State v. Martinez, 2000 UT App 320, n.5, 14 P.3d 114 (" iability for criminal recklessness . . . require actual knowledge or awareness and thus turn on the defendant's subjective mental state.") (citations omitted), aff'd, 2002 UT 80, 52 P.3d 1276. The magnitude of the risk itself, on the other hand, is an objective matter. See Wessendorf, 777 P.2d at 526 (" he statutory language includes application of an objective standard, i.e., that ' he risk in both cases must be of such a degree that an ordinary person would not disregard or fail to recognize it.'") (quoting State v. Dyer, 671 P.2d 142, 148 (Utah 1983)).
ANALYSIS
Although it is undisputed that Mr. Robinson contributed to Ms. Galbraith's death, we hold that the State did not establish probable cause that Mr. Robinson acted recklessly in doing so.
For whatever reason, the only evidence the State presented at the preliminary hearing was the testimony of Detective Don Grothe, who had investigated the incident. During direct examination, Detective Grothe recited his understanding of what had occurred and also said the following: "[Mr. Robinson] stated that when he retrieved the gun from [Ms. Galbraith], there was nothing that caused him to think that the gun--well that she had activated a round or loaded it or anything like that."
Then, during cross-examination, the following exchange took place between Mr. Robinson's counsel and Detective Grothe:
Q: Detective , what did he tell you that would make you think that he knew that the gun was loaded or in a firing position?
A: There was nothing that made him think that.
Q: He didn't think it was loaded?
A: No.
A: . . . He told me that when he retrieved the gun . . . he assumed that it was empty and didn't have a round in the chamber, and it didn't have a clip in the gun. That's what he stated.
Q: There was no clip in the gun?
A: That's what he stated.
Q: And he advised you he assumed the gun was safe?
A: Yes.
Q: Is there anything to suggest in any form from anybody or any evidence that this was an intentional act?
A: No.
Q: Would it be fair to describe this, that this was an accident?
A: Yeah. There's nothing at this point that would indicate any criminal intention that he fired the gun with the intent to hurt her. Yes, that would be my opinion.
Q: And you're telling me from your information you've gathered that he did not know the gun was loaded or had a bullet in the firing chamber?
A: Yes.
Q: What information do you have to suggest that Mr. Robinson knew the gun to have live ammunition in it that could be fired?
A: There was no information that I have that would have confirmed for sure that he knew that it was loaded.
Q: Did you make any examination of the gun as to its malfunctioning abilities, or how--was it functioning properly? Was there any reason to explain why that bullet would be in that firing position?
A: I'm not a gun expert per se, but from what I saw, it appeared that it had been jammed. It was a round that had been spent that was in the process
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