State v. Campos

Decision Date29 August 2013
Docket NumberNo. 20101042–CA.,20101042–CA.
Citation742 Utah Adv. Rep. 23,309 P.3d 1160
PartiesSTATE of Utah, Plaintiff and Appellee, v. Reginald CAMPOS, Defendant and Appellant.
CourtUtah Court of Appeals

OPINION TEXT STARTS HERE

Herschel Bullen, for Appellant.

John E. Swallow and Mark C. Field, for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges WILLIAM A. THORNE JR. and CAROLYN B. McHUGH concurred.

Opinion

VOROS, Judge:

¶ 1 Two men—one an unofficial neighborhood watch volunteer, the other a certified public accountant—got out of their SUVs and squared off near midnight in their Bluffdale neighborhood. Each was armed with a loaded semi-automatic pistol. One shot the other. The victim is paralyzed below the chest. The shooter, Reginald Campos, was convicted of attempted murder with injury, a first degree felony, and aggravated assault, a third degree felony. 1

¶ 2 Campos challenges his convictions, alleging a number of errors in the trial and arguing that he was denied a fair trial because he was deprived of his constitutional right to effective assistance of counsel. We conclude that Campos's trial counsel performed deficiently in three instances. While each instance alone might not be sufficiently prejudicial to require reversal in this case, taken as a whole trial counsel's deficient performance undermines our confidence in the verdict on the attempted murder charge. We therefore reverse the conviction for attempted murder. We affirm the conviction for aggravated assault.2

BACKGROUND 3

¶ 3 Around 11 p.m. on July 21, 2009, David Serbeck, a former bounty hunter and Army sniper, was outside his house packing for a camping trip when his neighbor stopped by to talk. Serbeck's neighbor, the local homeowners' association president, showed Serbeck several photographs he had obtained of suspects and cars possibly involved in recent crimes in the neighborhood. Serbeck thought he recognized some of the vehicles and people in the photographs. The two men decided to drive around the neighborhood, along with Serbeck's nine-year-old daughter, on an unofficial neighborhood watch patrol.

¶ 4 As they were driving, Serbeck saw two sixteen-year-old girls walking. He slowed his SUV and said out the window something to the effect of, “Hey, what's up?” or “Be careful going home.” The girls did not respond, and Serbeck drove on.

¶ 5 One of the girls was Campos's daughter. When she and her friend arrived at the Campos house, they got into a car and drove to pick up another friend at a nearby house. After picking up the friend, they all returned to the Campos house, and on the way they passed Serbeck's SUV. Serbeck mistook the girls' car for one of the suspicious cars in the photographs. He made a U-turn and began following the car. The girls were “freaked out” and “a bit traumatized” when they realized that the same individual who had spoken to them earlier was now following them. One of the girls called Campos to tell him they were being followed and to ask for help. Campos got his handgun from the house and drove to meet the girls, who by this time had lost Serbeck by turning out of the neighborhood onto a major road.

¶ 6 After losing sight of the girls' car, Serbeck and his neighbor returned home. Soon, however, Serbeck saw the same car drive down the street. Serbeck decided to go on patrol again. According to Serbeck's testimony, he went inside his house, grabbed his handgun, inserted a loaded magazine, racked the gun, and engaged the slide safety. Serbeck placed his gun under the center console in his SUV, and Serbeck and his neighbor—but not Serbeck's daughter—set out to find the car. Serbeck's neighbor did not know that Serbeck had brought a gun.

¶ 7 Meanwhile, Campos arrived home with the girls. He sent his daughter's friends into the house and asked his daughter to explain what had happened, though she was too “hysterical” to do so at first. Campos had his daughter get into an SUV, and they went to find the other SUV. As they were driving, Campos passed Serbeck's vehicle. When Campos's daughter identified it as the SUV that had followed her, Campos made a U-turn, pulled in front of Serbeck, and abruptly stopped, forcing Serbeck to stop quickly to avoid hitting Campos's vehicle.

¶ 8 Serbeck's and Campos's accounts of what happened next differed in slight but significant ways. Serbeck testified at trial that Campos got out of his SUV pointing his gun at Serbeck and Serbeck's neighbor. Campos “raged,” pacing back and forth and “screaming something about someone following his daughter.” Serbeck got his gun and got out of his SUV, staying halfway behind the open door. Serbeck asked Campos to calm down and asked what was going on. Serbeck introduced himself as part of the neighborhood watch and said he was with the homeowners' association president. When Campos began to lower his voice and his weapon, Serbeck told Campos he was going to put his gun down. He crossed the gun in front of his chest as he moved it from his right hand to his left, stepped out from behindthe door, placed the gun on the ground, and kicked it behind him. As Serbeck again asked what was going on, he heard a girl inside Campos's SUV scream, [D]on't believe him[;] they are lying, they are lying.” Campos said, [H]ow stupid do you think I am?” As Serbeck was standing back up, Campos shot him.

¶ 9 Campos related his account of the events to a police officer later that evening. He told the officer that after stopping the SUV, he retrieved his gun from a locked case and put it in his back pocket. He got out of the SUV, keeping his hand on the gun. He yelled to Serbeck and Serbeck's neighbor something to the effect of, “Why are you chasing my daughter?” He saw Serbeck get out of his SUV holding a gun and stand halfway behind the open door. Serbeck said something, but Campos could not remember what it was. Campos heard Serbeck rack his gun and saw him start to raise it. Campos pulled his own gun out of his pocket, racked it, and fired at Serbeck. He then moved to the right to get a better view of Serbeck and fired again. Campos recalled shooting his gun a total of two or three times.

¶ 10 Serbeck's neighbor testified that Campos had his gun in hand and pointed at the ground when Campos got out of the SUV. When Serbeck got out of the SUV with his gun, Campos raised his gun. Campos was angry and said something to the effect of, [W]hat the hell are you guys doing?” After Serbeck got out of the SUV, his neighbor could not see him, but he heard Serbeck say, [H]old on a minute.” Immediately after this exchange, Serbeck's neighbor heard three shots. He never heard Serbeck rack his gun.

¶ 11 Campos's daughter testified that she saw Campos retrieve something from a box before getting out of the SUV, but she did not see what it was. She did not see most of what followed because she was sitting in the SUV facing away from Campos and Serbeck. She heard Campos ask Serbeck and his neighbor what they were doing following his daughter and her friends, why they were “messing around with [his] daughter,” “what they were doing out this late at night,” and “why they were wandering the streets.” They “wouldn't answer.” She testified that Campos did not yell; rather, he was calm and “in control of himself.” She then heard two or three shots.

¶ 12 One bullet struck Serbeck and he fell to the ground. The bullet entered his chest near the shoulder, punctured a lung, and severed the spinal cord on its way out, paralyzing Serbeck from the chest down. When Serbeck realized how much he was bleeding, he stuck his finger in the wound to stanch the flow. An expert witness testified that the trajectory of the bullet was consistent with Serbeck's bending over or crouching, but he could not say whether Serbeck was in fact doing so.

¶ 13 After Campos shot Serbeck, he pointed his gun at Serbeck's neighbor, who was still in the SUV, and told him to put his hands up and not move. Campos got his phone and called 911 to request an ambulance. He continued to point his gun at Serbeck and his neighbor, yelling to Serbeck at one point, [D]on't be messing with the gun!” Once Campos was sure Serbeck's neighbor did not have a gun, Campos let him get out of the SUV and help Serbeck. After Serbeck's neighbor walked around the SUV to where Serbeck was, Campos told the neighbor to kick Serbeck's gun farther away, which he did.

¶ 14 About the time Serbeck's neighbor got out of the SUV, a woman who had heard the commotion from a nearby house came and asked Campos if she could approach Serbeck to help. As she approached Serbeck, she used the bottom of her sandal to turn the barrel of Serbeck's gun away from Serbeck, his neighbor, and herself. She testified that she later checked the bottom of her sandals before entering her house and did not see any blood on them. Although Campos still had his gun in his hand, the woman testified that he was pointing it in the air and that he was fairly calm and “level-headed.” However, she heard a female in the background screaming, He is lying, he is lying.”

¶ 15 After the police and emergency medical personnel arrived, Serbeck was flown to the hospital. But before he was taken, Serbeck asked an officer to make sure that the safety on his gun was engaged; he later testified that he did so because he had heard Campos tell the 911 operator that Serbeck had racked his gun. The officer confirmed that the slide safety was on. At trial, a gun expert testified that an engaged slide safety would prevent someone from racking the gun. The expert also testified, and demonstrated, that the slide safety could be engaged by directly kicking the safety. Investigators also found one bullet in the chamber of Serbeck's gun and one in the magazine, and there was some blood on the back of the handle. Two shell casings from Campos's gun were found.

¶ 16 At trial, Campos argued that he acted in self-defense. He asserted that he shot Serbeck only after he saw Serbeck with a gun and heard him rack it. He...

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