Walter Kelbach

Case record: Walter Kelbach

Background

Walter Kelbach was 28 years old. Myron Lance was 25 years old. Kelbach and Lance were veterans of prison and aggressive homosexuals. Each was given to abuse of drugs and alcohol. They shared a fondness for inflicting pain and, ultimately, death on fellow human beings.

The offence

In December 1966, Kelbach and Lance killed five people in Salt Lake City, Utah, which triggered a local reign of terror.

On December 17, the pair stopped for gas at a service station where 18-year-old Stephen Shea was working the night shift alone. On impulse, they drew weapons, robbing Shea of $147. They forced Shea into the back of their station wagon and drove him into the desert. In the desert, Shea was ordered to strip, and he was raped by both Kelbach and Lance. Afterward, a coin was tossed to determine who would “eliminat[e]” Shea. Kelbach won and plunged a knife into Shea’s chest five times, leaving the body lying on a lonely desert road.

On December 18, Lance and Kelbach kidnapped Michael Holtz, the night attendant at another Salt Lake City filling station. Holtz was raped by both of his abductors and was forced to watch while coins were tossed to choose his executioner. Lance won and stabbed Holtz once in the heart with the same stiletto used on Stephen Shea.

On December 21, Kelbach and Lance flagged down a taxi driver named Grant Strong and directed him to Salt Lake City’s airport. On the way, Strong stopped off at the taxi barn to tell his supervisor that he did not trust his latest fares. It was decided Strong should click his microphone transmitter switch in case of any trouble, and he signaled moments later after Kelbach drew a gun and pressed it to Strong’s skull, demanding money. Strong surrendered all his cash on hand—nine dollars—but his captors were not seriously interested in robbery. As police and fellow cabbies converged, Kelbach put a bullet through Strong’s brain, and Strong was found dead inside his cab.

After that, Lance and Kelbach arrived at Lolly’s Tavern, near the airport, acting casually while perusing the bar for further victims. Kelbach tinkered with a pinball game while Lance walked up behind a patron, 47-year-old James Sizemore, and shot him in the head. Lance immediately ordered the manager to empty out the till.

Lance and Kelbach pocketed $300 from the cash register and turned their pistols on the bartender and his four surviving customers. Fred Lillie and Beverly Mace were killed where they stood, while three other targets feigned death until the gunmen left. As they departed, the manager retrieved a pistol from behind the bar and opened fire, scoring no hits but panicking the assailants so they fled on foot. Kelbach and Lance were captured at a roadblock several hours later.

Investigation

Police and fellow cabbies converged on the taxi scene after Grant Strong signaled moments earlier with the microphone transmitter. Police later found Strong dead inside his cab. The narrative also stated that police and fellow cabbies were converging on the scene when Kelbach put a bullet through Strong’s brain.

Arrest

Kelbach and Lance fled and were arrested at a roadblock several hours later.

Trial

Kelbach was convicted on five counts of murder. In the Utah case law discussion, after his arrest Kelbach was charged with the murders of Sizemore and Lillie, was convicted of murder in the first degree, and was sentenced to death.

During the tavern shooting at Lolly’s Tavern, patrons Fred Lillie and Beverly Mace died of gunshot wounds and another patron was wounded. Kelbach and Lance fled and were arrested at a roadblock a few hours later.

Sentencing

Kelbach received a death sentence. In the later Utah proceedings, on February 25, 1977, the district court sentenced Kelbach to two consecutive sentences of life imprisonment after the death sentence was vacated.

Kelbach did not appeal the reduction of his sentence from death to life imprisonment.

Appeals

Kelbach appealed his conviction and death sentence, and the Utah Supreme Court affirmed. State v. Kelbach, 23 Utah 2d 231, 240, 461 P.2d 297, 303 (1969), vacated in part, 408 U.S. 935 (1972).

While Kelbach’s appeal was pending before the United States Supreme Court, that Court declared unconstitutional a death penalty provision similar to Utah’s: Furman v. Georgia, 408 U.S. 238, 33 L. Ed. 2d 346, 92 S. Ct. 2726 (1972). Thereafter, the United States Supreme Court vacated Kelbach’s death sentence and remanded his case: Kelbach v. Utah, 408 U.S. 935, 33 L. Ed. 2d 751, 92 S. Ct. 2858 (1972). The Utah Supreme Court remanded the case to the district court for further proceedings: State v. Lance, 559 P.2d 543, 543 (Utah 1977).

In later proceedings, Kelbach filed a petition for a writ of habeas corpus seeking relief on three grounds: (i) denial of the right to be tried before a representative jury; (ii) “lost jurisdiction” because the district court did not immediately resentence him to life imprisonment after the United States Supreme Court vacated his death sentence; and (iii) improper life sentencing under a penalty provision not in effect at the time he committed the murders. The Utah Supreme Court affirmed the district court’s dismissal.

The Utah Supreme Court’s procedural and merits discussion included these points:

• Kelbach challenged jury selection procedure as discriminatory, but the court concluded he waived the right because he failed to object to the composition of the jury at trial.
• The court discussed Salt Lake County’s jury selection procedure limiting jury service to real property holders and noted that in 1974 the United States Court of Appeals for the Tenth Circuit struck down this selection procedure.
• The Utah Supreme Court held that Kelbach’s jurisdictional claim about resentencing was without merit, citing Utah Code Ann. § 77-35-1 (1953) and stating the time fixed by that section was not jurisdictional and was “merely directory.”
• The Utah Supreme Court held Kelbach’s claim that he was improperly sentenced under a penalty provision not in effect at the time of the murders was procedurally barred due to waiver from failure to raise it on direct appeal.

The opinion included quotations:

"'In considering an appeal from a dismissal of a petition for a writ of habeas corpus, no deference is accorded the lower court's Conclusions of law that underlie the dismissal of the petition. We review those for correctness.'"

The opinion also included a quotation from Gerrish:

"Our decision is so limited in scope . . . that its effects will be minimal. It applies only to those persons convicted in Salt Lake County during the period of time the improper jury selection system was used, and is further limited to persons who timely objected to their jury panel, because a defendant, by accepting a jury, waives his right to object to the panel."

And quoted language regarding waiver obstacles:

"an unjustified failure to raise an issue on appeal presents a steep obstacle for the petitioner. In such a situation, the petitioner must present some special reason why the rule should not apply: he or she must demonstrate that it would be 'wholly unconscionable not to reexamine the conviction.'"

Outcome

Kelbach’s habeas corpus petition was dismissed at the district court level after the State’s motion to dismiss. The Utah Supreme Court affirmed that dismissal and affirmed the judgment of the district court dismissing Kelbach’s petition.

Aftermath

Kelbach and Lance were sentenced to death, and their death sentences were commuted to life terms after the U.S. Supreme Court ruled the death penalty unconstitutional. As lifers, Lance and Kelbach were stated to be eligible for parole. In the narrative, it was stated that concerns about parole were raised in Utah, and a common fear was spread from coast to coast in 1972 after Kelbach was tapped for an interview by NBC News on a televised program entitled Thou Shalt Not Kill.

The narrative included verbatim statements:

"I haven't any feelings toward the victims,"

The narrative also included the statement:

"I don't mind people getting hurt because I just like to watch it."

In 1992, Kelbach and Lance appeared before the Utah Board of Pardons and Parole. When parole board member Michael Sibbett asked what Lance would do in his shoes, he responded, “I don’t see how you could ever let me out.” The parole board decided that the pair should “spend their natural life in prison.” The board said the “extremely aggravating factors of intentional, premeditated criminal activity that caused the death of multiple vulnerable victims during a five-day period cannot be mitigated on the scale of justice to support parole for either Mr. Lance or Mr. Kelbach.”

Department of Corrections spokesman Steve Gehrke said Lance was taken from the prison to the hospital on Aug. 15. Meanwhile, Gehrke said Kelbach, 72, remained incarcerated at the state prison in Gunnison.

Other details

Kelbach and Lance were described as cousins and gay lovers.

After arrest and conviction in connection with Lolly’s Tavern, the Utah Supreme Court opinion stated that on December 21, 1966, a few minutes after Kelbach and Lance entered the tavern, a patron heard a shot and observed Kelbach holding a gun, and that at about the same time Lance shot James Sizemore in the head and turned to the bartender, saying, "This is a stick-up." The bartender placed the cash drawer on the bar and Lance removed the money. Immediately thereafter, a fusillade of shots resounded through the tavern. The opinion described patrons Fred Lillie and Beverly Mace dying of gunshot wounds and another patron being wounded.

The narrative also included an additional quote attributed to Lance:

"This is a stickup."

In the parole discussion, Lance’s quote about never being let out appeared as:

“I don’t see how you could ever let me out.”

In the parole discussion, the board’s decision was quoted as:

“spend their natural life in prison.”

In the parole discussion, the board’s aggravating factors were quoted as:

“extremely aggravating factors of intentional, premeditated criminal activity that caused the death of multiple vulnerable victims during a five-day period cannot be mitigated on the scale of justice to support parole for either Mr. Lance or Mr. Kelbach."

The later Utah Supreme Court opinion was styled: WALTER B. KELBACH, PLAINTIFF AND APPELLANT, v. O. LANE MCCOTTER, DIRECTOR, UTAH DEPARTMENT OF CORRECTIONS, DEFENDANT AND APPELLEE, Third District, Salt Lake County, with the Honorable Kenneth Rigtrup.

Counsel listed in the opinion included Walter B. Kelbach, Draper, pro se; Jan Graham, Att'y Gen.; and J. Frederic Voros, Jr., Asst. Att'y Gen., Salt Lake City, for defendant. The opinion stated: Zimmerman ZIMMERMAN, Chief Justice.

The opinion stated that Kelbach filed a “Petition for a Writ of Habeas Corpus,” and that the trial court considered it a request for extraordinary relief and treated it under rule 65B of the Utah Rules of Civil Procedure.