STATE of Utah, Plaintiff and Appellee, v. Rodney Amato LITI, Defendant and Appellant.
No. 20130579-CA
Court of Appeals of Utah.
July 30, 2015
2015 UT App 186 | 355 P.3d 1078
¶ 23 While we agree that Hare has identified some inconsistencies in the detectives’ testimonies, we are not convinced that trial counsel‘s failure to explore these inconsistencies through cross-examination constituted deficient performance. To overcome the “strong presumption” that counsel performed adequately, Hare must show that there is “no conceivable tactical basis for counsel‘s actions.” State v. Clark, 2004 UT 25, ¶ 16, 89 P.3d 162 (emphasis omitted) (citation and internal quotation marks omitted). However, given the minor and immaterial nature of these inconsistencies to the question of Hare‘s guilt, we conclude that trial counsel could have reasonably elected not to pursue these inconsistencies at trial. Because the State‘s case was strongly supported by the testimony of the confidential informant, it is difficult to see how attacking the credibility of the detectives on such minor inconsistencies was likely to help Hare in any meaningful way. Thus, there is a conceivable tactical basis for defense counsel‘s decision not to cross-examine the detectives on these inconsistencies, and we conclude that trial counsel did not perform deficiently.
C. Failure to Adequately Advise Hare on his Right to a Jury Trial
¶ 24 Finally, Hare asserts that trial counsel failed to adequately advise him of his right to a jury trial. On rule 23B remand, the trial court found that Hare had failed to present any evidence that he was prejudiced by trial counsel‘s performance in this regard. Hare has neither challenged this finding nor otherwise attempted to show that he was prejudiced by counsel‘s performance.
¶ 25 Instead, Hare argues that he need not show prejudice because counsel‘s deficient performance resulted in a structural error, relieving him of the obligation to demonstrate prejudice. However, the Supreme Court has held that “ineffectiveness claims alleging a deficiency in attorney performance are subject to a general requirement that the defendant affirmatively prove prejudice.” Strickland v. Washington, 466 U.S. 668, 693, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). And Utah appellate courts have declined to relieve a defendant of his burden to show prejudice under Strickland even where the defendant claims that his counsel‘s deficient performance has resulted in a structural error. See, e.g., State v. Arguelles, 921 P.2d 439, 442 (Utah 1996); State v. Malaga, 2006 UT App 103, ¶ 11, 132 P.3d 703. Hare has made no persuasive showing that his case is different from Malaga or Arguelles. We therefore conclude that Hare was required to demonstrate prejudice here and failed to do so.
CONCLUSION
¶ 26 Hare has not demonstrated that the trial court erred either in accepting his waiver of a jury trial or in failing to set his case for trial within thirty days of Hare‘s request. Neither has Hare demonstrated that his trial counsel rendered ineffective assistance. We therefore affirm Hare‘s convictions.
David M. Corbett, Midvale, and Craig L. Pankratz, Tooele, Attorneys for Appellant.
Sean D. Reyes, Salt Lake City, and John J. Nielsen, Attorneys for Appellee.
Opinion
CHRISTIANSEN, Judge:
¶ 1 Rodney Amato Liti shot and killed his friend. A jury convicted him of manslaughter and possession of a firearm by a restricted person.1 Liti appeals, arguing that the trial court erroneously instructed the jury on the meaning of “recklessly” for purposes of his manslaughter conviction and that his trial counsel rendered ineffective assistance by not objecting to the erroneous jury instruction. He also argues that the trial court erred in finding that he was a Category I restricted person for purposes of the firearm-possession charge, because that finding was based on evidence not presented to the jury. He contends that because the jury found only that he was a Category II restricted person, the trial court‘s finding resulted in his erroneous conviction of a second-degree felony rather than a third-degree felony.
BACKGROUND
¶ 3 Liti shot his friend (Victim) during an argument.2 Victim had borrowed Liti‘s car to sell drugs and had not timely returned the car. When Victim did not return on time, Liti sent Victim a number of text messages threatening to harm him for not returning Liti‘s car.
¶ 4 Victim eventually returned the car to Liti‘s residence and soon began arguing with Liti and another man. That argument escalated into a brawl. At some point during the fight, Liti drew and cocked a handgun. Shortly thereafter, the gun “went off” and Victim was fatally wounded. Liti began to cry and apologize to Victim. He fled and was apprehended by police a short time later. He was charged with murder, possession of a firearm by a restricted person, and other crimes.
¶ 5 At trial, Liti testified that Victim had drawn a gun during the fight, prompting Liti to draw his own weapon to protect himself and to “[c]ontrol the situation.” Liti testified that he “didn‘t even point the gun or aim the gun.” However, he had “fumbled” the gun while pulling it out and was “holding the trigger area” when he saw that Victim “was coming towards [him].” Then, “meaning to push him back,” Liti “grabbed on” to Victim. In doing so, he “squeezed” and “the gun went off.”
¶ 6 The State argued that Liti, angry that Victim had not timely returned the car, intentionally killed Victim. Liti admitted that he shot Victim but argued that the shooting was accidental or done in self-defense. The jury was instructed on both of Liti‘s theories of the case. As relevant here, the jury was instructed that it could convict Liti of manslaughter only if it found that Liti had shot Victim under circumstances constituting imperfect self-defense or if it found that Liti had acted recklessly in causing Victim‘s death. The State also argued that Liti was a Category II restricted person because of his use or possession of drugs and was therefore guilty of possession of a firearm by a restricted person. The jury was instructed on this theory of the State‘s case but was not asked to determine whether Liti was a Category I restricted person by virtue of a prior conviction for a violent felony.
¶ 7 The jury convicted Liti of manslaughter and possession of a firearm by a restricted person. The jury found that Liti possessed a firearm and was an unlawful user or possessor of a controlled substance. At sentencing, the trial court observed that, during trial, the State had provided to the court evidence that Liti was on probation for a felony at the time of the shooting. The trial court therefore found that Liti was a Category I restricted person and that his firearm-possession conviction should thus be entered as a second-degree felony rather than a third-degree felony. The trial court noted that the jury “didn‘t have the opportunity to find” the prior conviction “because [the court] didn‘t submit it to them.” The trial court explained, however,
[There is] no question whatsoever, in fact, that Mr. Liti is a Category I restricted person. The jury didn‘t find that. But I‘m going to declare that that conviction of
possession of a firearm by a restricted person is a second-degree felony, finding beyond all doubt that he is a Category I restricted person. So I‘m going to rule [the firearm-possession conviction] is a second-degree felony.
Liti now appeals.
ISSUES AND STANDARDS OF REVIEW
¶ 8 Liti argues that the jury instructions failed to correctly define “recklessly” for purposes of his manslaughter conviction. Whether jury instructions correctly state the law is a question of law. State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 566. We therefore review jury instructions for correctness. Id.
¶ 9 Liti also argues that the trial court deprived him of his due process right to a jury trial on every element of the charged offense when the court found that Liti was Category I restricted person. Issues of due process are questions of law, and we review for correctness the process afforded the defendant by the trial court. State v. Turner, 2012 UT App 189, ¶ 15, 283 P.3d 527.
ANALYSIS
I. Trial Counsel Rendered Constitutionally Ineffective Assistance by Failing to Object to the Erroneous Jury Instruction.
¶ 10 Liti first argues that the jury instruction defining “recklessly” for purposes of his manslaughter conviction was incorrect because it omitted an element of the statutory definition of recklessness. Because trial counsel failed to object to the instruction, Liti concedes that the issue is unpreserved. He therefore argues that trial counsel rendered ineffective assistance by failing to ensure that the jury instructions were correct.3
¶ 11 To succeed on a claim of ineffective assistance of counsel, a defendant must show both “that counsel‘s performance was deficient” and “that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To establish that counsel‘s performance was deficient, a defendant “must show that counsel‘s representation fell below an objective standard of reasonableness.” Id. at 688, 104 S.Ct. 2052. This showing requires the defendant to “overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (citation and internal quotation marks omitted); see also State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 1136. To establish prejudice in an ineffective-assistance-of-counsel claim, the “defendant must show that a reasonable probability exists that, but for counsel‘s error, the result would have been different.” State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151 (citation and internal quotation marks omitted).
A. The Jury Instructions Were Incorrect.
¶ 12 To evaluate whether trial counsel performed deficiently in failing to object to the jury instructions, we must first consider whether those instructions were legally correct. We review jury instructions in their entirety to determine whether the instructions, taken as a whole, fairly instructed the jury about the applicable law. State v. Stringham, 957 P.2d 602, 608 (Utah Ct.App. 1998).
¶ 13 A defendant who “recklessly causes the death of another” is guilty of manslaughter.
A person engages in conduct . . . [r]ecklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor‘s standpoint.
¶ 14 We conclude that the plain language of the statute compels this result. When interpreting a statute, we rely first on the statute‘s plain language as the best evidence of the legislature‘s intent. LeBeau v. State, 2014 UT 39, ¶ 20, 337 P.3d 254. We interpret statutes to give meaning to all parts and to avoid rendering portions of the statute superfluous. Id. We also presume that the legislature “used each word advisedly,” and thus we “give effect to each term according to its ordinary and accepted meaning.” Id. (citation and internal quotation marks omitted). Because the jury instruction omitted the second sentence of the statute, we must consider whether the inclusion of the omitted portion would have changed the meaning of the jury instruction. We determine that it would have.
¶ 15 The first sentence in the statute defines reckless behavior in terms of the defendant‘s knowledge and disregard of a substantial and unjustifiable risk.
¶ 16 We also find support for this conclusion in our caselaw interpreting the similarly structured criminal-negligence statute. That statute has a comparable “gross deviation” requirement:
A person engages in conduct . . . [w]ith criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor‘s standpoint.
¶ 17 The State opposes this conclusion by arguing that “the ‘gross deviation’ language would have added little, if anything, to this definition under the circumstances of this case.” The State asserts that “there is very little daylight—if any—between consciously disregarding a risk that is ‘substantial and unjustifiable’ and grossly deviating from the standard of care required under the existing circumstances.” Thus, the State reasons, “the ‘gross deviation’ language adds little or nothing to the requirement of consciously disregarding a ‘substantial and unjustifiable’ risk of death.” However, the State‘s argument asks us to conclude that the second half of the statute defining reckless behavior is, essentially, superfluous. Given the standards by which we interpret statutes, we cannot accept this invitation and must presume that the legislature intended for each portion of the statute to impose a meaningful requirement. See LeBeau, 2014 UT 39, ¶ 20. We therefore conclude that the jury instructions in this case failed to correctly state the law with respect to the mental-state finding required to convict Liti of reckless manslaughter.
B. Trial Counsel Performed Deficiently.
¶ 18 Having concluded that the jury instructions failed to correctly state the law, we must next consider whether trial counsel performed deficiently by not objecting to the erroneous instructions. In evaluating trial counsel‘s performance, “we give trial counsel wide latitude in making tactical decisions and will not question such decisions unless there is no reasonable basis supporting them.” State v. Crosby, 927 P.2d 638, 644 (Utah 1996). However, absent some tactical explanation, defense counsel‘s “failure to object to a jury instruction that [does] not alert the jury to every element of the crime with which his client was charged” constitutes deficient performance. State v. Eyre, 2008 UT 16, ¶ 19, 179 P.3d 792.
¶ 19 As discussed above, the jury instruction defining the mens rea for reckless manslaughter omitted the requirement that the State prove that the defendant‘s conduct was a “gross deviation” from the care exercised by a reasonable person. We conclude that trial counsel should have objected to this legally erroneous jury instruction because it failed to charge the jury with finding every element necessary to convict Liti of reckless manslaughter. See id.
¶ 20 The State argues that trial counsel “could have . . . reasonably decided not to ask for the ‘gross deviation’ language because it was not material to the defense theory of self-defense.” The State contends that trial counsel could have reasonably concluded that “exploring a subtle nuance of recklessness would risk distracting the jury from [the self-defense] narrative and lessen Liti‘s chances of a full acquittal.” However, though trial counsel focused on self-defense in closing argument, Liti‘s own testimony was that the shooting was an accident. Thus, even though trial counsel‘s principal argument may have been self-defense, given the testimony presented, “[t]here is only upside in a complete statement of the requirement of mens rea” with respect to the reckless-manslaughter charge. State v. Barela, 2015 UT 22, ¶ 27, 349 P.3d 676. We therefore conclude that “no reasonable lawyer would have found an advantage in understating the mens rea requirement” of reckless manslaughter, see id., and we further conclude that trial counsel performed deficiently by failing to object to the erroneous instruction.
C. Trial Counsel‘s Deficient Performance Prejudiced Liti.
¶ 21 To merit reversal of his conviction, Liti must also demonstrate that his defense was prejudiced by trial counsel‘s deficient performance—that there is a reasonable probability of a more favorable result absent the error. State v. McNeil, 2013 UT App 134, ¶ 42, 302 P.3d 844. We conclude that trial counsel‘s deficient performance prejudiced Liti‘s defense.
¶ 22 The jury convicted Liti of manslaughter without indicating whether it did so under a theory of recklessness or imperfect self-defense. Given the evidence presented, it is reasonably likely that the jury‘s verdict was based at least in part on a determina-
¶ 23 The State argues that the omitted language would have made no difference to the verdict because Liti “threatened to shoot the victim numerous times and admitted pulling out a gun, cocking it, and putting his finger on or near the trigger during a fight.” The State contends this is “textbook recklessness.” We agree that Liti‘s drawing a gun, arming it, and exercising poor trigger discipline created a substantial and unjustifiable risk of death to another—a conclusion borne out by the jury‘s verdict on the manslaughter charge when instructed to find only those elements. But we cannot conclude that the evidence in this case necessarily proves beyond a reasonable doubt that Liti‘s conduct was a “gross deviation” from what a reasonable person may have done under the circumstances. Given the evidence before the jury, particularly if the jury believed the testimony that Victim himself was armed, we cannot confidently say that the jury would necessarily have concluded that Liti‘s conduct in drawing a loaded gun during the fight was a gross deviation from what was reasonable under the circumstances. We therefore conclude that there is a reasonable likelihood that a properly instructed jury would have returned a verdict more favorable to Liti.
II. The Trial Court Erred in Finding That Liti Was a Category I Restricted Person.
¶ 24 Liti next argues that the trial court erred in finding that he was a Category I restricted person when the jury found only that he was a Category II restricted person. The State concedes that the trial court erred and asks us to vacate Liti‘s conviction for unlawful possession of a firearm as a Category I restricted person and order his convic-
tion entered in accordance with the jury‘s verdict.
¶ 25 Under Utah law, a restricted person may not legally possess a firearm.
¶ 26 Nevertheless, the trial court found that Liti was a Category I restricted person because the State had provided the court, but not the jury, with evidence that Liti was on probation for a prior felony offense at the time of the shooting. See
CONCLUSION
¶ 28 The jury instruction defining the reckless mental state for Liti‘s manslaughter conviction failed to charge the jury with finding that Liti‘s conduct was a “gross deviation” from what a reasonable person would do under the circumstances. Trial counsel rendered ineffective assistance by failing to object to the erroneous instruction. The trial court erred in finding that Liti was a Category I restricted person, because the question should have been presented to the jury. We therefore reverse Liti‘s conviction for manslaughter, vacate his conviction for possession of a firearm by a Category I restricted person, and remand to the trial court for a new trial on the homicide charge and entry of a conviction for possession of a firearm by a Category II restricted person.