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When state corrections Lt. Fred House was gunned down last January, those outraged by his death took comfort from the likelihood that his assailants would be charged with first-degree murder and face the death penalty.

Death as punishment, however, is no longer an option in this case. Those accused of killing House were charged Wednesday with second-degree murder, punishable by a prison term of five years to life.

[REST] Addam Swappcw; his brother, Jonathan Swapp; and his brother-in-law, John Timothy Singer; face a Sept. 20 arraignment before 3rd Circuit Judge Maurice Jones in Coalville.

Attorney General David L. Wilkinson, whose office is prosecuting the case, said the evidence simply would not support a capital charge.

"We are under ethical standards to charge only what we think the evidence would support," said Wilkinson, who declined to be specific about such evidence.

Wilkinson said, however, that it was only about three months ago that prosecutors were sure they were going to file murder charges in the second degree.

But could first-degree murder charges have been justified?

According to Utah's criminal code, a homicide is a capital, or first-degree, offense if it was intentional and if:

1. It was committed by a prisoner.

2. It was committed in conjunction with another homicide.

3. The actor (suspect) knowingly created a great risk of death to a person other than the victim and the actor.

4. It was committed while the actor was engaged in the commission of robbery, rape, forcible sodomy, sexual assault, arson, burglary or kidnapping.

5. It was committed to prevent an arrest by a peace officer, or to escape from lawful custody.

6. It was committed for pecuniary or other personal gain.

7. The actor had previously been convicted of first- or second-degree murder.

8. It was committed to prevent a witness from testifying, to keep a person from providing evidence or to prevent someone from participating in any legal proceeding or criminal investigation.

According to federal court testimony, Singer was the one who fired the fatal round.

House was shot while releasing his dog, which was supposed to attack and subdue the Swapp brothers, who had exited the Singer home to feed the goats.

The dog hesitated, the Swapps became aware of the presence of House and gunfire broke out, both from Jonathan's rifle and from a rifle pointed out of John Timothy Singer's bedroom.

The charges accuse the Swapp brothers and Singer of acting "under circumstances evidencing a depraved indifference to human life" and "which created a grave risk of death to another and thereby caused the death of Fred House."

Did the defendants know House or those who released the German shepherds were police officers? For 13 days, the defendants, along with matriarch Vickie Singer and other members of the Singer-Swapp family, held police and federal agents in a standoff following the bombing of the LDS Kamas Stake Center in Marion, Summit County, on Jan. 16.

Can it be assumed, then, that the defendants knew police were attempting to arrest them when they began firing the morning of Jan. 28? If so, might the fifth criteria apply?

Federal testimony also indicated that dozens of rounds were fired by Singer and Jonathan Swapp during the shootout, in which Addam Swapp suffered a bullet wound to the arm and chest, and several FBI agentsarrowly escaped being struck by bullets. Could such a fusillade fit under circumstance No. 3?

Singer testified in federal hearings that he was shooting toward the dogs to protect Addam and Jonathan, that he never saw House or intended to kill anyone. The evidence may very well support Singer's contention.

But could some sort of predisposition for violence and a confrontation be construed from the dozens of shots fired during the standoff and from a threatening letter Addam Swapp and Vickie Singer had issued a day earlier to Gov. Norm Bangerter?

The answer to some of these questions might be found within a "probable cause statement," which was filed with the charges and outlines the facts and evidence in support of the charges.

That statement, however, was sealed by prosecutors, who, said Wilkinson, feared that too much publicity would result in a change of venue.

Yet Wilkinson said his office won't seek to close the preliminary hearing, during which it is likely more evidence than contained in the probable cause statement would be revealed.