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State v. Robinson1/3/2003
of being ejected out of the gun and got jammed in there. Detective Orndorff, who is a much more skilled person in firearms, he's an instructor, and he looked at the gun closer than I did.
Q: What information did Detective Orndorff give you?
A: Other than what I just said, I don't recall any.
Q: That it was jammed?
A: Yeah.
Given this testimony, we simply cannot conclude that the State "present sufficient evidence to support a reasonable belief" that Mr. Robinson acted recklessly in causing Ms. Galbraith's death. State v. Clark, 2001 UT 9, , 20 P.3d 300. Detective Grothe's testimony that Mr. Robinson did not know the gun was loaded and that he thought the gun was safe, as well as his explanation of how the bullet likely came into firing position, falls well short of establishing a reasonable belief that Mr. Robinson was "aware of" any risk, much less that he was "aware of but consciously disregard a substantial and unjustifiable risk." Utah Code Ann. § 76-2-103(3) (1999). In fact, it refutes such a conclusion.
We emphasize that our decision is highly dependent upon the strategy pursued by the State, and in particular the fact that Detective Grothe's testimony is the only evidence that the State presented at the preliminary hearing. At that hearing, the State said it felt confident that it "could make probable cause with one detective," but it failed to do so. In this case we are faced with one person's testimony, and that testimony, fairly viewed, suggests that Mr. Robinson did not act recklessly.
Even "view all evidence in the light most favorable to the prosecution and . . . draw all reasonable inferences in favor of the prosecution," Clark, 2001 UT 9 at , the evidence provided in this case simply does not support a probable cause determination. The inferences that the State asks us to make, that Mr. Robinson "knew that the gun contained at least one live round" and that he was aware that his actions would cause the gun to fire, would not be "reasonable inferences" flowing logically from the evidence because such inferences would directly contradict the only testimony that was presented in this case by the State's own witness. That witness characterized Mr. Robinson as having no perception of any risk that the gun was ready to fire a live round. On the contrary, it establishes not that Mr. Robinson perceived a risk and consciously disregarded it, but rather that he failed even to perceive the risk. See supra note 2.
CONCLUSION
Because the State did not produce enough evidence at the preliminary hearing "to support a reasonable belief" that Mr. Robinson was "aware of but consciously disregard " the risk that his handgun was ready to fire, we affirm the magistrate's dismissal of the manslaughter charge against him.
Gregory K. Orme, Judge
I CONCUR:
Judith M. Billings, Judge
DAVIS, Judge (concurring):
I write separately to highlight concern I have with the lowered probable cause standard for bindover. Part of the rationale for a lowered standard is the so-called presumption "that the prosecution's case will only get stronger as the investigation continues." Evans v. State, 963 P.2d 177, 182 (Utah 1998). This presumption has no legal or factual basis and should not be relied upon.
A presumption is a "legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts." Black's Law Dictionary 1203 (7th ed. 1999); see also Webster's Ninth New Collegiate Dictionary 932 (9th ed. 1986) (defining presumption as "a legal inference as to the exi
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