State v. Dozah

• Decision Date: 22 January 2016
• Docket Number: No. 20130771–CA.,20130771–CA.
• Parties: STATE of Utah, Appellee, v. Max Edward DOZAH, Appellant.
• Court: Utah Court of Appeals

368 P.3d 863

STATE of Utah, Appellee,

v.Max Edward DOZAH, Appellant.

No. 20130771–CA.

Court of Appeals of Utah.

Jan. 22, 2016.

Lori J. Seppi, for Appellant.

Sean D. Reyes and Christopher D. Ballard, Salt Lake City, for Appellee.

Judge MICHELE M. CHRISTIANSEN authored this Opinion, in which Judge JOHN A. PEARCE concurred.¹ Judge J. FREDERIC VOROS JR. concurred, except as to Part II, in which he concurred in the result, with opinion.

Opinion

CHRISTIANSEN, Judge:

¶ 1 Defendant Max Edward Dozah appeals from his convictions for aggravated kidnapping and aggravated assault, arguing that the district court erred by denying his requested compulsion instruction and in responding to a question from the jury during deliberation without consulting counsel. We reverse the district court's ruling denying Defendant's motion for a new trial, vacate his convictions, and remand the case for further proceedings consistent with this opinion.

BACKGROUND

¶ 2 On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly. State v. Clark, 2014 UT App 56, ¶ 2, 322 P.3d 761. We include conflicting evidence as relevant and necessary to understand the issues on appeal. See State v. Losee, 2012 UT App 213, ¶ 2 n. 2, 283 P.3d 1055.

¶ 3 The central witness, Kelly, was both a user and seller of methamphetamine. As of January 2011, he owed $400 to his supplier. To clear the debt, Kelly agreed to go with the supplier's boyfriend, Chris, and another man to conduct a drug transaction at another person's house. When the three arrived at the house, they met a fourth man, David. David knocked Kelly unconscious. When he awoke, Kelly found himself tied to a chair. The trio of assailants assaulted Kelly and threatened him by telling him he "was done" and "wasn't going to make it through the night." At some point, Chris and the unnamed man left. While they were gone, "all sorts of people" "paraded" through the house, including David's sister, who sprayed bleach in Kelly's eyes.

¶ 4 Defendant then arrived with Chris. Kelly testified that Defendant "said it looks like you pissed the wrong people off." Defendant also repeated that Kelly "was done" and "wasn't going to make it through the night." Defendant did not physically assault Kelly and was not present when others assaulted Kelly.

¶ 5 Defendant conveyed a message from the drug supplier that Kelly would "have to die or be gone." Chris and Defendant discussed putting Kelly on a bus and asked him where he would like to go. Kelly responded that he wanted to go to Elko, Nevada. The men then untied Kelly and escorted him to the backseat of the supplier's car. Defendant drove the car, with Chris in the front passenger seat.

¶ 6 Kelly testified that, during the drive, Defendant told him that he was "going to die for messing with [the supplier]." Defendant said he had a lead pipe and was going to "bust" Kelly's kneecaps and leave him "for dead." After driving up Parley's Canyon and turning off onto a side road, they encountered a road closure due to snow. Defendant yelled at Chris that they had chosen the wrong road; Chris replied, "This is fine ... just do it." Defendant took Kelly out of the car and yelled that he was going to kill Kelly. Chris held a piece of pipe out of the car window but Defendant never took it. Defendant got back in the car and drove off.² Left in a remote location in below-freezing weather, wearing only a t-shirt, pants, and shoes, Kelly managed to walk down to an open road where he was eventually rescued. The responding officer noted that Kelly's face was injured and swollen and that Kelly looked like he had been beaten up. The officer also noted that the temperature was twenty degrees Fahrenheit.

¶ 7 At trial, Defendant argued that he had not been the instigator of the crimes against Kelly. He testified that the supplier had asked him to go to the house because she "was scared that something was going to happen." When he arrived, he saw that Kelly had been beaten up and was tied to a chair. Defendant admitted that he "should have turned around and walked away" but did not. He testified, "I didn't know what was going to happen. I didn't know if they were going to pull a gun on me. I didn't know if I was the next one in the chair, I didn't know what to do." Defendant further testified that he then "inserted" himself into the discussions regarding what to do with Kelly because he "didn't want [Kelly] to get beat up any more" and "didn't want to get beat up" himself. Defendant stated that when he first suggested untying Kelly, Chris threatened Defendant with being "the next one in the chair."

¶ 8 According to Defendant, Kelly stated that if they bought him a bus ticket to Elko, they would never see him again. Defendant volunteered to drive Kelly to the bus station and to buy Kelly's ticket. Chris eventually agreed to this plan, provided he could go along. However, when they started driving, Kelly asked Defendant and Chris to take him to a friend's house instead.³ Defendant testified that Kelly directed them to the closed road and got out of the car on his own. Defendant stated that he was not worried about Kelly, because Kelly "was close enough to the freeway that he could get home."

¶ 9 Before trial, Defendant asked that the jury be instructed as to the affirmative defense of compulsion. However, after the defense rested, the district court declined to so instruct the jury because the court did not see a basis for the instruction in the evidence:

I frankly don't see any evidence, not even ... twisting it in any imaginable way as you've suggested the jury could that would suggest that [Defendant] was compelled to do anything. The State's witnesses have said he was a willing participant, at least [Kelly] has and [Defendant] said I didn't do anything, I was nothing more than a bystander, in fact more than a bystander, I was a good Samaritan, I was trying to rescue [Kelly].... I can't even see in any way that the jury could say that [Defendant] was a part of this. Yes. He was participating in all of this. Yes. And when he was told not to untie [Kelly] that somehow could be ... read as that he was being coerced into participating in the aggravated kidnaping, the aggravated robbery and aggravated assault. I just frankly don't see it. It's just too much of a leap. So I won't give that instruction.

As a result of the district court's ruling on his compulsion instruction request, Defendant did not detail a compulsion defense in his closing argument.

¶ 10 After the jury began deliberating, it sent a note to the court. The note asked for the definition of aggravated assault and asked whether leaving Kelly on the closed road constituted aggravated assault. The district court did not alert counsel to the jury's question and instead sent a written response back to the jury. The court's response told the jury to look to the jury instructions for a definition of aggravated assault. The response also explained, "The other question, must be decided without my help. It is for the jury to decide." Upon learning of the jury's question and the district court's response after the jury returned a verdict, Defendant's counsel objected and filed a motion for a new trial. After oral argument on that motion, the district court denied Defendant's motion for a new trial.

¶ 11 The jury convicted Defendant of aggravated kidnapping and aggravated assault. Defendant timely appealed.

ISSUES AND STANDARDS OF REVIEW

¶ 12 Defendant first contends that the district court erred by refusing to instruct the jury on compulsion. We review a district court's refusal to give a requested jury instruction for correctness. State v. Kruger, 2000 UT 60, ¶ 11, 6 P.3d 1116.

¶ 13 Defendant next contends that the district court erred by giving an incorrect supplemental instruction. Whether a given jury instruction correctly states the law is reviewable under a correction of error standard, with no particular deference given to the district court's ruling. State v. Archuleta, 850 P.2d 1232, 1244 (Utah 1993) ; State v. Lee, 2014 UT App 4, ¶ 7, 318 P.3d 1164.

¶ 14 Defendant also contends that the district court erred in denying his motion for a new trial, because the district court violated his right to be present, right to due process, and right to the assistance of counsel when the court provided a supplemental instruction to the jury without consulting Defendant's counsel. "We will not reverse a trial court's denial of a motion for a new trial absent a clear abuse of discretion." State v. Maestas, 2012 UT 46, ¶ 103, 299 P.3d 892. But we "review the legal standards applied by the trial court in denying such a motion for correctness and review the trial court's factual findings for clear error."Id. (citation and internal quotation marks omitted).

ANALYSIS

I. Compulsion Instruction

¶ 15 Defendant contends that he was entitled to have the jury instructed as to compulsion and that the district court therefore erred by refusing to give such an instruction to the jury.

¶ 16 Compulsion is an affirmative defense. Utah Code Ann. §§ 76–2–302, –308 (LexisNexis 2012). "When a criminal defendant requests a jury instruction regarding a particular affirmative defense, the court is obligated to give the instruction if evidence has been presented—either by the prosecution or by the defendant—that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies to the defendant." State v. Low, 2008 UT 58, ¶ 25, 192 P.3d 867. "However, a court need not instruct the jury on the requested affirmative defense where the evidence is so slight as to be incapable of raising a reasonable doubt in the jury's mind as to whether the defendant acted in accordance with that affirmative defense." State v. Burke, 2011 UT App 168, ¶ 81, 256 P.3d 1102 (brackets, ellipsis, citation, and internal quotation marks omitted). And "when a defendant presents no evidence...