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Show I PAGE EIGHT In The Supreme Court Of The John Walter Boyland, Plaintiff and Appellant, No. 13321 FILED June 10. 1974 John W. Turner, Warden. Utah State MONI)AYtJUNKI7,lJ74 INTERMOUNTAIN COMMERCIAL RECORD Prison, Defendant and Respondent. Allan E. Mecham, Clerk CROCKETT, Justice: John Walter Boyland appeals from the district court's denial of his petition in habeas corpus by which he sought to have his conviction of first-degr- ee murder declared invalid. Pursuant to regular proceedings, under the law, in which those accused of crime are afforded ample protections as a precaution against convicting the innocent, the petitioner was duly convicted by a jury. Thereafter he had the benefit of an appeal in which the verdict and judgment were affirmed. 2 The essential facts of the crime are set forth in that decision, to which reference is made, and in the interest of brevity are omitted here. Petitioner's contention of error, which he claims deprived him of due process of law, is that the pistol used in the killing was not available at the trial. It appears that it had been sent by mail to the FBI in Washington, for certain tests, and that it had been sent back to the FBI a second time for reasons not made clear on appeal here. On the second trip, the pistol was lost, although a "tracer" showed that it had reached Washington, D. C. However, a similar gun was presented in evidence for illustrative purposes. D. C. , Petitioner urges that the absence of the actual gun was of critical importance because one aspect of his defense was that he had not intended to kill the victim, but it accidentally discharged. In support of this he contended that the firing mechanism was loose. Two gun experts testified for. the State, a Salt Lake City police' officer and an FBI agent. Both said that based upon their examination of the gun, it was unlikely that it would discharge accidently. But the officer said the gun could discharge by itseh if it were banged quite hard against a solid surface, while it was in a "full cocked" position. State Of Utah and may be either wilfully or negligently lost, or intentionally suppressed; substantial a be to possithat circumstances may be such that there appears accused, the to benefit of be would of evidence the bility that the presence 3 If those conditions exist, his wherefore its absence would be prejudicial. court may rights should of course be safeguarded by whatever means the trial deem proper, but also consistent with the objective of convicting the guilty and thus 'serving the interests of the public. However, we fail to perceive 77-- 1 -- 10. U. C. A. 1. See. Utah Constitution. Art. I. Sec. 12; Sees. 77-- 1 -- 8 to 2d 655. 1953; and see statement in State v. Seymour, 18 Utah 2d 153. 417 P. 2. State v. Boyland. 27 Utah 2d 268, 495 P. 2d 315. 3. See Trumble v. State. 75 N. M. 183, 402 P. 2d 162; as to use of evidence obtained in questionable manner see, Suppressed Evidence, 5 Utah Law Review 92 et seq. (1956); and Story v. Burford, 178 F. 2d 911 (10th Cir. 1949). anything which would even remotely suggest that the absence of the particular gun was due to any negligent or intentional action of the State; nor that any difference between that gun and the one actually used was anything more than a figment of the petitioner's conjecture in an effort to avoid his conviction of crime. i One wonders what would have been the claim if the gun had been tossed in the furnace, or. in the river, or otherwise disposed of, before his apprehension. The testimony concerning the gun and its use, and the claims as to its condition were there, and the jury undoubtedly gave due consideration to them. We are not convinced that the trial court was in error in his view: that the absence of the particular gun at the trial was not of critical moment; and the fact that the petitioner had no opportunity to have an "expert" of his own ex- amine the gun was nothing of sufficient consequence to justify nullifying of his conviction. The other more important aspect of this problem is that the defendant has had an appeal from his conviction in which all errors of any consequence in connection with his trial could have been, and in fact were, assigned and argued. Thereupon, his conviction became final; and it should be subject to If claims of a collateral attack only upon the most exigent circumstances. to him known been should have error, which were known to the petitioner, or or his counsel at the time of trial, could be used as a basis for subsequent attacks upon the judgment in habeas corpus proceedings, the solidarity of of litigation on a judgments would be destroyed, and the merry-go-roucase would never stop. nd Affirmed. No costs awarded. That habeas corpus cannot properly be used as a supplemental appeal, but is available only in extraordinary circumstances, where some basic requirement of law has been so omitted or disregarded that the petitioner was effectively denied due process of law. see Schad v. Turner, 27 Utah 2d 345, 496 P. 2d 263, '" citing Brown v. Turner, 21 Utah 2d 96, 440 P. 2d 968. 4. There are two obstacles to petitioner's success in this habeas corpus proceeding, upon which we comment: As to the absence of the gun, we agree that it is possible that circumstances may exist where evidence, which is in the possession of the prosecution and for which it should be held responsible, United States Steel Corporation, U. C. A. 1953, 35-4-5(- a), Plaintiff, v. No. 13401 Department ,of Employment Security and Board of Review of the Industrial Commission of Utah, Blaine B. Evans, William L. Liston and Glade G. Durrant,, Defendants, FILED June 11, 1974 Allan E. Mecham, Clerk CALLISTER, Chief Justice: Plaintiff initiated this proceeding to review the determination of the Board of Review of the Industrial Commission, affirming the decision of the appeals referee that claimants, Evans, Liston and Durrant, were entitled to unemployment compensation benefits. Claimants were journeymen millwrights, a skill which is' classified as a trade and craft position by plaintiff. They were employed in the coke plant at plaintiff's Geneva Works. In the autumn of 1972, there was a coal shortage which necessitated a curtailment of the coke oven operations and a consequent reduction in the number of millwrights needed. Under the contract between plaintiff and the union, the claimants had the option of taking a direct layoff from the millwright position or being assigned as a laborer. Each claimant exercised his option to take a layoff rather than accept an unskilled position in the labor pool. The base rate of pay for a millwright is $4. 826 per hour; the base rate for a laborer is $3. 51 per hour. Under a plan negotiated between the union and the company, a worker who is placed on a lower rated job is paid a sum quarterly to compensate him for the reduction in earnings at th rate of 85 of his previous year's earnings, including incentive pay, converted to an hourly basis. The position of millwright is not by progression through the company's labor pool. A person is either hired directly as a journeyman millwright or as an apprentice. The claimants elected the layoff since the proffered alternative work would not utilize their special skills, training and experience for an indefinite time. Claimants filed for unemployment compensation while they sought employment commensurate with their prior training, earnings and ex- namely, whether, under all of the attendant circum- stances, did the claimant have good cause for leaving his work temporarily and seeking to apply his attained skills in the open labor market rather than accepting assignment to the unskilled labor pool. The Board of Review emphasized that a millwright's skill is not attained by progression through labor experience but rather by virtue of specialized training, the individual is employed as a skilled craftsman. The Board. of Review concluded that claimants had sufficient cause, as shown by the evidence, to seek temporary work elsewhere in the skilled occupation for which they were fitted by training and experience rather than accepting work in the general labor pool outside of their field of experience. The appeals referee in his decision, made a scholarly analysis of the law, which merits summation in this opinion. He stated that the. employer's approach was that' if a claimant were capable of performing the work, he would be obliged immediately to take the lower position, which would be deemed ' suitable so long as the general criteria, such as, pay, safety, etc. as proU. C. A. 1953, were met. In contrast, the vided in Section claimant's approach might be characterized as the use of the highest skill, which is premised on the concept that a claimant should not be expected immediately to accept employment using Jess than his highest skill. The immediacy of the acceptance would vary according to the training and experience attached to the skill, its marketability, and the length of the claimant's unemployment. For example, a claimant, with a very technical skill, which he had acquired by suitable schooling and working experience and fpr which there was a market, would be allowed to refuse work not utilizing his highest skill for a much longer period than a person who had acquired a simple skill within a short time on the job. Nevertheless, even a person with the highest skill would be expected to lower his standard of expectation for work, such as pay, working conditions, etc. as the period of his unemployment extended; the rate of reduction would be dependent upon the nature of the skill. The appeals referee explained that the latter approach comported with the overall suitability standards set forth in Section The employer's and fitness and minimizes the prior trainapproach emphasizes physical ability ing and experience provisions of the law. In a recent amendment to the Act, the legislature has expressed the contemporary view of Section to society encourage an individual to take training to acquire a skill. To hold that skill as a factor should be immediately excluded would be inconsistent both with recently expressed legislative intent and the specific standards of "prior to determine the training" and "experience" set forth in Section of work. suitability : 35-4-5- g), perience. Plaintiff vigorously urges that claimants were ineligible for unemploy- ment compensation benefits under Section U. C. A. 1953, since they left work voluntarily without good cause, and the determination of the appeals referee to the contrary was unsupported by the record and erroneous as a matter of law. 1 In essence, plaintiff contends that as a matter of law claimants left their work voluntarily without good cause, when they rejected the offer of continuing employment as laborers with earnings substantially equivalent, to their prior pay, with full fringe benefits. Claimants, according to plaintiff were qualified to perform the proffered work with rio greater risk to their health, safety, morals or physical well-bein- g than was involved in their as prior position millwrights. U. C. A. 1953, provides: ". . . In any I. Sec. judicial proceed-in- g under this section the findings of the commission and the board of review as to facts if supported by evidence shall be conclusive and the jurisdiction of said court shall be confined to questions of law. The Board of Review found that the appeals referee's decision was and supported by competent evidence. The Board stated that unbiased fair, the referee applied the proper test of eligibility of a claimant under Section 35-4-5(- a), ..." 4 The appeals referee stated that the basic intent of Unemployment Compensation Act was to alleviate the undue economic hardship experienced by those who. were unemployed through no fault of their own. To interpret the law so as to compel a person confronted with pending unemployment to accept immediately : a position below his skill would be to create a situation where a person was hard-earnto coerced by economic pressure abandon his training and experience. An interpretation consistent with the intent of the law would be to give a person an a for of reasonable to time seek opportunity period employment utilizing his highest skill so that he might provide better economic care for his family and be an attribute to his community. ed The instant case is readily distinguishable from United Steelworkers v. Department of Employment Security2 and Bus v. Bethlehem Steel Corporation3 upon which plaintiff relies, since neither case involved, whether the proffered employment was suitable by reason of the claimant's skill, training and experience but merely involved the issue of whether it constituted good cause to refuse employment at substantially reduced wages. 16 Utah 2d 72, 395 P. 2d 837 (1964). 3. 37 A.D. 2d 98, 322 N.Y.S. 2d 310 (1971). (Continued on pagv 9) |