State v. Berriel

• Decision Date: 05 April 2013
• Docket Number: No. 20110926.,20110926.
• Citation: 299 P.3d 1133,731 Utah Adv. Rep. 6
• Parties: STATE of Utah, Plaintiff and Respondent, v. Darren BERRIEL, Defendant and Petitioner.
• Court: Utah Supreme Court

299 P.3d 1133

731 Utah Adv. Rep. 6

STATE of Utah, Plaintiff and Respondent,

v.Darren BERRIEL, Defendant and Petitioner.

No. 20110926.

Supreme Court of Utah.

April 5, 2013.

John E. Swallow, Att'y Gen., Ryan D. Tenney, Asst. Att'y Gen., for respondent.

Douglas J. Thompson, Provo, for petitioner.

On Certiorari to the Utah Court of Appeals

Justice DURHAM, opinion of the Court:

INTRODUCTION

¶ 1 On certiorari, we consider whether the court of appeals erred in affirming the district court's refusal to instruct the jury on defense of a third person. We consider whether the evidence supports defendant Darren Berriel's theory that he stabbed the victim in defense of a third person under Utah Code section 76–2–402. We agree with the court of appeals that there is no basis in the evidence to support this theory and accordingly affirm.

BACKGROUND

¶ 2 Darren Berriel was convicted of aggravated assault for stabbing the victim, Luis. On the evening of the stabbing, Mr. Berriel received a phone call from Rachel, Luis's girlfriend. Rachel told Mr. Berriel that Luis “had been hurting [her]” and asked him “to come over and help.” According to Mr. Berriel's friends who were with him when he received the call, Rachel was screaming and crying over the phone. After the phone call, Mr. Berriel told his friends that Rachel “was getting beat up” by Luis and that he needed to go to her house to help her.

¶ 3 Mr. Berriel and at least three friends immediately drove to the house where Rachel and Luis lived with Rachel's family. On the way, Mr. Berriel called Krissy, Rachel's friend, and asked her to “get Rachel away from the house.” In the meantime, Luis and Rachel had left the house and driven to pick up Rachel's thirteen-year-old brother.

¶ 4 Luis and Rachel returned to the house with Rachel's brother shortly after Mr. Berriel and his friends arrived. After parking on the street in front of the house, Rachel and her brother exited from the passenger's side of the car onto the sidewalk, and Luis exited from the driver's side onto the street. Mr. Berriel and his friends were waiting on the opposite side of the street. Mr. Berriel and Luis approached one another, meeting in the middle of the road. According to Luis's testimony, he told Mr. Berriel, “[Y]ou don't need that knife to fight with me, if you want to fight with me.” According to another observer, Luis told Mr. Berriel, “You don't know what's going on, stay out of it.”

¶ 5 Mr. Berriel then thrust a knife toward Luis's torso. Luis moved his arms to protect his abdomen, and the knife slashed his left forearm, causing a laceration that required stitches. Luis then ran toward the house to get his dog, and Mr. Berriel and his friends drove away. Meanwhile, Rachel stood at least fifteen feet away from where the stabbing occurred and was not involved in the altercation.

¶ 6 Mr. Berriel later turned himself in to law enforcement and was prosecuted for the stabbing. At trial, the district court instructed the jury on self-defense. However, the court refused to instruct the jury on defense of a third person because it determined that Mr. Berriel's theory that he stabbed Luis in defense of Rachel was “not supported by the evidence.” Following his conviction for aggravated assault, Mr. Berriel appealed the district court's refusal to instruct the jury on defense of a third person.¹ A divided panel of the court of appeals affirmed, explaining that “a jury could not reasonably have concluded” that Rachel was in imminent danger at the time of the assault. State v. Berriel, 2011 UT App 317, ¶ 6, 262 P.3d 1212. Mr. Berriel petitioned this court for certiorari, and we agreed to consider whether the court of appeals erred in affirming the district court's refusal to give a jury instruction on defense of a third person.

STANDARD OF REVIEW

¶ 7 “On certiorari, we review for correctness the decision of the court of appeals, not the decision of the district court. The correctness of the court of appeals' decision turns on whether that court correctly reviewed the trial court's decision under the appropriate standard of review.” Utah Cnty. v. Butler, 2008 UT 12, ¶ 9, 179 P.3d 775 (internal quotation marks omitted).

ANALYSIS

I. THE DISTRICT COURT'S REFUSAL TO ISSUE A JURY INSTRUCTION IS REVIEWABLE FOR ABUSE OF DISCRETION

¶ 8 “[T]he refusal to give a jury instruction is reviewed for abuse of discretion....” Miller v. Utah Dep't of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208. The precise amount of deference we afford on review depends on the type of issue presented. On issues that are primarily or entirely factual, we afford significant deference; on issues that are primarily or entirely legal in nature, we afford little or no deference.

¶ 9 A district court's refusal to instruct the jury on a defendant's theory of the case presents questions on both sides of the spectrum. The issue of whether the record evidence, viewed in its totality, supports the defendant's theory of the case is primarily a factual question. Factual determinations are entitled to more deference than any other kind of determination, largely for reasons of institutional competency. Manzanares v. Byington (In re Adoption of Baby B.), 2012 UT 35, ¶ 40, ––– P.3d ––––, 2012 WL 4486225. Trial courts are better factfinders than appellate courts. See id. For example, here, the district court's first-hand familiarity with the testimony and other evidence puts it in a better position than an appellate court to determine whether the evidence supports the defendant's theory.

¶ 10 In contrast, the issue of whether to instruct the jury on a theory that is supported by the evidence presents a legal question. When the record evidence supports a defendant's theory, the defendant “is legally entitled to have [an] instruction [on that theory] given to the jury. In those circumstances, refusal constitutes an error of law, and an error of law always constitutes an abuse of discretion.” Miller, 2012 UT 54, ¶ 13 n. 1, 285 P.3d 1208.

¶ 11 The court of appeals employed a correctness standard of review, in accordance with our precedent at the time it issued its opinion. State v. Berriel, 2011 UT App 317, ¶ 4, 262 P.3d 1212 (citing State v. Gallegos, 2009 UT 42, ¶ 10, 220 P.3d 136). This error was harmless to Mr. Berriel. In fact, the correctness standard was more favorable to him than the abuse-of-discretion standard we set forth in this opinion. As explained below, we hold that under either standard of review, the district court did not err in refusing to instruct the jury on defense of a third person.

II. THE COURT OF APPEALS CORRECTLY HELD THAT THE DISTRICT COURT DID NOT ERR BECAUSE MR. BERRIEL'S THEORY IS NOT SUPPORTED BY THE EVIDENCE

¶ 12 A “[d]efendant is entitled to have the jury instructed on [the defense's] theory of the [case] if there is any basis in the evidence to support that theory.” State v. Brown, 607 P.2d 261, 265 (Utah 1980). Mr. Berriel contends that the record in this case supports his theory that he stabbed Luis in defense of Rachel.

¶ 13 Under Utah Code section 76–2–402(1)(a), “[a] person is justified in threatening or using force against another when and to the extent that the person reasonably believes that force or a threat of force is necessary to defend the person or a third person against another person's imminent use of unlawful force.” ² “When interpreting a statute, we assume, absent a contrary indication, that the legislature used each term advisedly according to its ordinary and usually accepted meaning.” Marion Energy, Inc. v. KFJ Ranch P'ship, 2011 UT 50, ¶ 14, 267 P.3d 863 (internal quotation marks omitted). The key terms in section 76–2–402 for purposes of this case are “imminent” and “necessary.”

¶ 14 Black's Law Dictionary defines “imminent danger” as “[a]n immediate, real threat to one's safety” and as “[t]he danger resulting from an immediate threatened injury.” 450 (9th ed. 2009). Webster's Dictionary defines “imminent” as “[a]bout to occur at any moment” and as “impending.” Webster's II New College Dictionary 553 (1995). The imminence requirement distinguishes lawful defensive force from two forms of unlawful force: that which comes too soon and that which comes too late. “A preemptive strike against a feared aggressor is illegal force used too soon; and retaliation against a successful aggressor is illegal force used too late.” George P. Fletcher, Basic Concepts of Criminal Law 133–34 (1998). Defensive force “is neither a punishment nor an act of law enforcement” but rather “an act of emergency that is temporally and materially confined[,] with the narrow purpose of warding off the pending threat.” Onder Bakircioglu, The Right to Self–Defence in National and International Law: The Role of the Imminence Requirement, 19 Ind. Int'l & Comp. L. Rev. 1, 21 (2009). Webster's Dictionary defines “necessary” as “[a]bsolutely required,” “indispensable,” and “[u]navoidably determined by prior conditions or circumstances.” Webster's II New College Dictionary 731 (1995). The necessary requirement distinguishes wanton violence from force that is crucial to averting an unlawful attack. Force is justifiable under section 76–2–402 only if a reasonable belief in the imminence of unlawful harm and in the necessity of defensive force coincide with the defendant's use of force.

¶ 15 In this case, Mr. Berriel argues that three pieces of evidence support his theory that he reasonably believed Rachel was in imminent danger at the time of the stabbing: (1) Rachel's phone call for help; (2) the fact that at the time of the stabbing, Rachel was still in Luis's presence and that Luis instructed Mr. Berriel to “stay out of it”; and (3) Luis's “violent character and his history of violence toward” Rachel.

¶ 16 We agree that Rachel's phone call for help suggested that she was in imminent danger at the time of the call. However, intervention by Mr. Berriel at that time was impossible because he was in a different location than Rachel. When...