State v. Diaz

• Decision Date: 24 August 1993
• Docket Number: No. 920847-CA,920847-CA
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jose DIAZ, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 19

859 P.2d 19

STATE of Utah, Plaintiff and Appellee, v. Jose DIAZ, Defendant and Appellant.

No. 920847-CA.

Court of Appeals of Utah.

Aug. 24, 1993.

Ronald S. Fujino and Charles F. Loyd, Jr., Salt Lake City, for defendant and appellant.

Jan Graham and Todd A. Utzinger, Salt Lake City, for plaintiff and appellee.

Before BILLINGS, JACKSON and RUSSON, JJ.

RUSSON, Associate Presiding Judge:

Jose Diaz appeals his conviction of murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1993). We affirm.

FACTS

On appeal from a jury verdict, we recite the facts in the light most favorable to that verdict. State v. Sherard, 818 P.2d 554, 556 (Utah App.1991), cert. denied, 843 P.2d 516 (Utah 1992); accord State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992); State v. Gray, 851 P.2d 1217, 1219 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993).

On November 7, 1991, Jose Diaz, and his brother, Carlos Garcia, went to the Raging Bull Tavern in Salt Lake City, where Mario "Chino" Lopez and some friends were playing pool. Shortly after Diaz and Garcia entered the tavern, Lopez and at least one other person attacked them with pool cues and balls.

Kenneth Washington, the doorman and bouncer, attempted to break up the fight. He separated Diaz and Lopez and told them, "Not in the bar." The parties moved outside with pool cues and balls in hand. Washington closed the front door, but before he could lock it, Lopez and his companion came running back into the bar and headed toward the back door of the bar. Washington again moved to close the door, but backed away when a hand holding a small handgun appeared through the partially open doorway. Diaz and Garcia came running into the bar.

Washington watched as Diaz ran toward the back of the bar, where Lopez had slipped and fallen on the dance floor. Lopez was on his knees and had one hand on the floor, attempting to stand up. Washington heard shouts of "get him, get him" and then saw Diaz approach Lopez, point a gun at his chest and pull the trigger. Diaz pulled the trigger a second time, but the gun misfired. Diaz and Garcia then ran out the back door.

Washington went to the back door to see where Diaz and Garcia had gone, but could not find them. He closed the door and asked the bartender, Arnold Medina, to call 911. Medina was already speaking with a 911 operator, and police officers and paramedics arrived shortly thereafter. The investigating officers found no weapons on or near Lopez. Paramedics administered emergency treatment to Lopez and rushed him to LDS Hospital, where he died from a single gunshot wound to the chest. Diaz was subsequently apprehended and charged by information with murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1993).

At trial, the State called Dr. Maureen Frikke, the medical examiner who performed the autopsy on Lopez. Dr. Frikke testified that Lopez had suffered at least sixteen "blunt force wounds" to his head and neck, and several "defensive wounds" on his forearms and hands. Dr. Frikke did not find any injuries that she characterized as "offensive injuries." Additionally, Dr. Frikke testified that the bullet that killed Lopez had a "slightly upward" trajectory.

The State also called Richard Minyard, who had been an inmate at the Salt Lake County Jail with Diaz. Minyard testified that Diaz admitted killing Lopez. According to Minyard, Diaz told him that he and Garcia had Lopez down on the ground and that he told Garcia to shoot Lopez. When Garcia refused, Diaz took the gun from him and shot Lopez himself.

Diaz did not testify at trial, but did call several witnesses whose testimony disputed the facts set forth in the State's case. Key among them was Diaz's brother, Carlos Garcia. Garcia testified that he was the one responsible for shooting Lopez, but that he was acting in self-defense. Garcia claimed that as he entered the bar, Lopez punched him in the face, breaking his nose. After the men were ordered out of the bar by Washington, Garcia claimed that he was stabbed in the back by Lopez. Feeling that his life was in danger, Garcia pulled a gun out of his pocket. At the sight of the gun, Lopez ran back into the bar, and Garcia chased after him. After Lopez picked up a bar stool and threw it at him, Garcia shot Lopez in the chest. Garcia said that Lopez was standing when he shot him and had not fallen to the ground as the State's witnesses had testified.

Diaz also called Johanna Lindstrom, a patron at the Raging Bull on the night of the shooting. She testified that she saw Garcia chase Lopez with a gun in his hand. She did not see the actual shooting, however, because she had fled to the bathroom. On cross-examination, the State elicited testimony from Lindstrom that she was waiting to be sentenced on a third degree felony. Diaz objected, arguing that such was improper evidence for impeachment purposes. The objection was overruled.

After Diaz had called his last witness, the jury was excused and the parties presented arguments on the admissibility of character evidence of the victim, Lopez. Diaz's counsel argued that such was necessary character evidence for the purpose of buttressing a self-defense claim. The State responded that such evidence was irrelevant to the case because only Garcia, not Diaz, had raised a claim of self-defense. Diaz's defense was not based on a self-defense theory, but instead based on his claim that he did not commit the murder. The trial court refused to admit the said evidence.

Following the four-day trial, Diaz moved for an instruction defining the elements of aggravated assault and specifying that such was a "forcible felony" for the purposes of Utah Code Ann. § 76-2-402(1) (Supp.1993), Utah's self-defense statute. The motion was denied. The jury subsequently found Diaz guilty of murder, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1993).

Diaz appeals, claiming that: (1) the evidence was insufficient to support his conviction; (2) the trial court erred in admitting defense witness Lindstrom's testimony of her pending sentencing on a third degree felony; (3) the trial court erred in refusing to admit character evidence of the victim, Lopez; and (4) the trial court erred in refusing to include an instruction defining the elements of aggravated assault and specifying that such was a forcible felony for the purposes of self-defense.

SUFFICIENCY OF THE EVIDENCE

"On appeal, we review the evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict." State v. Sherard, 818 P.2d 554, 557 (Utah App.1991) (citation omitted), cert. denied, 843 P.2d 516 (Utah 1992). "We do not weigh conflicting evidence, nor do we substitute our own judgment on the credibility of the witnesses for that of the jury." Id. (citations omitted); accord State v. Howell, 649 P.2d 91, 97 (Utah 1982). Moreover, "[t]he existence of contradictory evidence or of conflicting inferences does not warrant disturbing the jury's verdict." Howell, 649 P.2d at 97 (citation omitted). "[W]e will reverse only if the evidence 'is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt' that the defendant committed the crime of which [he] was convicted." Sherard, 818 P.2d at 557 (quoting State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989)) (citations omitted).

Utah Code Ann. § 76-5-203 (Supp.1993) provides, in pertinent part:

(1) Criminal homicide constitutes murder if the actor:

(a) intentionally or knowingly causes the death of another;

(b) intending to cause serious bodily injury to another commits an act clearly dangerous to human life that causes the death of another; [or]

(c) acting under circumstances evidencing a depraved indifference to human life engages in conduct which creates a grave risk of death to another and thereby causes the death of another

....

Reviewing the evidence and reasonable inferences therefrom in the light most favorable to the jury's verdict, we are unable to say that reasonable minds must have entertained a reasonable doubt as to Diaz's guilt. See Sherard, 818 P.2d at 557. First, Washington, the doorman and bouncer at the Raging Bull, testified that he watched Diaz approach Lopez, point a gun at his chest and pull the trigger. Secondly, the medical examiner, Dr. Frikke, testified that Lopez died from a single gunshot wound to the chest. Additionally, Richard Minyard, an inmate at the Salt Lake County Jail with Diaz, testified that Diaz admitted killing Lopez, telling him that (1) he and Garcia had Lopez down on the ground; (2) he told Garcia to shoot Lopez, and (3) when Garcia refused, Diaz took the gun from him and shot Lopez himself. The above evidence establishes that Diaz engaged in conduct which created a grave risk of death to another, and thereby caused the death of another. Moreover, the evidence, taken together with the reasonable inferences therefrom, indicates that in so doing, Diaz acted with, at the very least, a depraved indifference to human life. Accordingly, the evidence was sufficient to support the jury verdict in this case. ¹

IMPEACHMENT EVIDENCE

Diaz argues that the trial court erred in admitting certain impeachment evidence concerning a defense witness, Johanna Lindstrom. Specifically, he objects to the following question by the prosecutor: "Ms. Lindstrom, you are being sentenced on a felony, Monday, right?" Lindstrom answered in the affirmative.

Whether evidence is admissible is a question of law, which we review for correctness, incorporating a "clearly erroneous" standard of review for subsidiary factual determinations. State v. Reed, 820 P.2d 479, 481 (Utah App.1991) (citing State v. Ramirez, 817 P.2d 774, 781 n. 3 (Utah 1991)); accord State v. Gray, 851 P.2d 1217, 1224 (Utah App.), cert. denied, 860 P.2d 943 (Utah 1993). Furthermore, "[i]n reviewing a trial court's decision to admit evidence, we will not reverse...