State v. Shepherd
357 P.3d 598
Utah Ct. App.2015Background
- On Aug. 21, 2011 a swimmer at Pineview Reservoir was struck by a boat, suffered massive injuries (including a completely transected femoral artery), and later died. A nearby witness heard screams, rowed out, reached the victim alive and responsive, and called 911; EMS arrived later and the victim was dead.
- Defendant Skyler J. Shepherd initially denied involvement or knowledge to officers, later (with counsel present) admitted he had been on the boat, that a friend initially swerved and then he took the wheel, that the boat approached the victim, he asked if she was okay, saw severe injury, and then left the scene.
- State charged Shepherd with reckless endangerment (Utah Code § 76-5-112), obstruction of justice, and failure to render assistance at an accident. A jury convicted on all counts; Shepherd appealed.
- On appeal Shepherd argued (1) insufficient evidence for reckless endangerment because he did not cause the collision, (2) Fifth Amendment violation from comments about his initial silence, (3) improper admission of expert and opinion testimony (including ultimate-issue and truthfulness opinions), and (4) trial counsel ineffective for not objecting to prosecutorial statements.
- The Court of Appeals affirmed: it held Shepherd owed a statutory duty to render aid once he became the operator of a vessel involved in an accident, his failure to act created a substantial risk of death (satisfying recklessness), any comment on silence was either not protected or harmless, the boating expert was properly admitted under Rule 702, improper credibility testimony was harmless, and counsel’s failure to object did not amount to ineffective assistance.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Shepherd) | Held |
|---|---|---|---|
| Sufficiency of evidence for reckless endangerment | Shepherd’s decision to take control of the boat and then leave the scene (failing to render aid) created a substantial risk of death; statutory duty attached to operator of a vessel involved in an accident. | He did not cause the collision and thus his conduct did not create the risk that caused death; omission alone insufficient. | Affirmed — omission can constitute "conduct" under the statute where a legal duty to act exists; jury could find duty, awareness of risk, and conscious disregard. |
| Use of Shepherd’s initial silence | Statements that he offered no pertinent information were admissible; Shepherd never invoked Fifth Amendment; comments harmless if error. | Comments and argument about his silence impermissibly invited an inference of guilt under the Fifth Amendment. | Affirmed — Shepherd did not invoke the privilege; even if some comment was improper, any error was harmless beyond a reasonable doubt. |
| Admissibility of boating expert and opinion testimony | Expert testimony on how sound/visibility travel on water would aid the jury in assessing what Shepherd would have heard or seen; witness was qualified and applied reliable experiential methods. | Expert was unqualified, didn’t test Shepherd’s boat or Pineview, and improperly offered ultimate-issue and lay-opinion conclusions. | Affirmed — trial court did not abuse discretion under Rule 702; testimony about perceiving sounds/sights on water is factual (not ultimate-issue) and threshold reliability satisfied. |
| Prosecutorial misstatements and ineffective assistance for failure to object | Prosecutor’s comments were largely benign and not so improper that counsel was required to object; some challenged testimony/statements were harmless. | Prosecutor misstated facts, vouched, and referenced plea negotiations/charging decisions; counsel’s failure to object was constitutionally deficient. | Affirmed — most comments were not prejudicial; counsel had reasonable tactical bases not to object, and Shepherd failed Strickland prejudice prong. |
Key Cases Cited
- State v. Germonto, 868 P.2d 50 (Utah 1993) (standard for reviewing sufficiency of the evidence)
- Minnesota v. Murphy, 465 U.S. 420 (U.S. 1984) (witness must invoke Fifth Amendment privilege to assert it)
- Salinas v. Texas, 133 S. Ct. 2174 (U.S. 2013) (privilege is waived unless invoked; silence after answering may not invoke the privilege)
- Miranda v. Arizona, 384 U.S. 436 (U.S. 1966) (invocation requirement and custodial interrogation standards)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-part test for ineffective assistance of counsel)
- State v. Hollen, 44 P.3d 794 (Utah 2002) (abuse-of-discretion standard for admission of expert testimony)