State v. Duran

• Decision Date: 18 April 1989
• Docket Number: No. 870531-CA,870531-CA
• Citation: 772 P.2d 982
• Parties: STATE of Utah, Plaintiff and Respondent, v. Rudy Ringo DURAN, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 982

772 P.2d 982

STATE of Utah, Plaintiff and Respondent, v. Rudy Ringo DURAN, Defendant and Appellant.

No. 870531-CA.

Court of Appeals of Utah.

April 18, 1989.

Richard G. Uday and Brooke C. Wells, Salt Lake City, for defendant and appellant.

R. Paul Van Dam and Dan R. Larsen, Salt Lake City, for plaintiff and respondent.

Before BENCH, BILLINGS and GREENWOOD, JJ.

OPINION

BILLINGS, Judge:

Defendant Rudy Ringo Duran, an inmate at the Utah State Prison, was convicted by a jury of assault by a prisoner, a third degree felony, in violation of Utah Code Ann. § 76-5-102.5 (1978). On appeal, Duran claims (1) the evidence was insufficient to support the jury's guilty verdict which rejected Duran's claim of self-defense and defense of habitation, and (2) the trial court erred in refusing to reduce the felony charge to a misdemeanor. We affirm.

FACTS

The day of the assault, Duran was an inmate at the Utah State Prison. On October 28, 1986, a disturbance erupted in "A" block where Duran was housed. The disturbance was precipitated by an inmate's attempt to prevent prison guards from searching his cell. During the exchange, other inmates on "A" block, allegedly including Duran, began shouting and screaming their support. The inmate subsequently assaulted one of the prison guards for which he was taken to maximum security.

Officer Carpenter, who was involved in the incident, wrote a report charging Duran with "verbal violence." Officer Carpenter went to Duran's cell and advised Duran of the report and stated that he would personally ensure Duran would be the next person to go to maximum security.

The following morning, Lt. Walter Yankovich reviewed three separate written reports regarding Duran's involvement in the disturbance. The reports indicated Duran attempted to incite other inmates to assault Officer Carpenter by yelling and throwing excrement. Duran was also charged with verbally threatening another inmate. Lt. Yankovich confirmed the reports, and then conferred by telephone with his superior Captain Johnson. Together, they determined that Duran should be transferred to maximum security. Thereafter, Lt. Yankovich summoned Officers Olin and Uriate to assist in transferring Duran to maximum security.

Duran claims he was sleeping when the officers arrived. Lt. Yankovich instructed Duran to get dressed because he was being moved to maximum security. Because Utah state prison policy requires that all prisoners be handcuffed when being transferred to a more restrictive facility, Lt. Yankovich directed Duran to turn around to be handcuffed. Although Duran admitted at trial that he was aware of prison policy, he refused to be handcuffed and instead, declared "I'm not going to max." Lt. Yankovich repeated his instructions. Duran again refused to be handcuffed, and continued to stand in the center of the cell with his arms folded across his chest.

The other officers then entered Duran's cell, and Lt. Yankovich instructed Duran for the third time to turn around to be handcuffed. Duran responded by assuming a combative stance; dropping his arms to his side and spreading his legs slightly apart. As Lt. Yankovich turned away from Duran to get a pair of handcuffs from Officer Olin, Duran punched Lt. Yankovich in the face. The blow broke Lt. Yankovich's nose and blurred his vision momentarily. Duran again attempted to strike the Lieutenant, but the other officers intervened and subdued Duran as he continued to resist. Duran was ultimately handcuffed and transferred to maximum security.

At trial, the lower court instructed the jury on theories of self-defense and defense of habitation. The jury rejected these defenses, and Duran was subsequently convicted of assault by a prisoner in violation of Utah Code Ann. § 76-5-102.5 (1978).

On appeal, Duran raises two challenges to his conviction. First, he claims the evidence was insufficient to support the jury's guilty verdict arguing the evidence conclusively established that he acted in self-defense or in the alternative, defense of habitation. Second, Duran asserts the trial court erred in refusing to reduce the felony assault charge to a misdemeanor because Utah Code Ann. § 76-5-102.5 (1978), a third degree felony, and Utah Code Ann. § 76-5-102.4 (1978) (amended 1988), a class A misdemeanor, proscribe the same conduct.

ASSAULT BY PRISONER

Duran claims the jury's verdict is not supported by the evidence. Specifically, Duran contends the attempt to transfer him to maximum security without first affording him proper notice and a hearing entitled Duran to forcibly resist the officers' efforts. Thus, Duran argues the evidence conclusively established the elements of self-defense, Utah Code Ann. § 76-2-402 (1978), and/or defense of habitation, Utah Code Ann. § 76-2-405 (1988). In reviewing a claim of insufficiency of the evidence,

"we review the evidence and all inferences which may reasonably be drawn from it in the light most favorable to the verdict of the jury. We reverse a jury conviction for insufficient evidence only when the evidence, so viewed, is sufficiently inconclusive or inherently improbable that reasonable minds must have entertained a reasonable doubt that the defendant committed the crime of which he [or she] was convicted."

State v. Verde, 770 P.2d 116, 124 (Utah 1989) (quoting State v. Petree, 659 P.2d 443, 445 (Utah 1983)).

Utah Code Ann. § 76-5-102.5 (1978), provides "[a]ny prisoner who commits assault, intending to cause bodily injury, is guilty of a felony of the third degree." Duran admits he struck the guard, but claims his conduct was legally justified because he acted in self-defense and/or defense of habitation. We disagree, and find the jury verdict implicitly rejecting Duran's statutory defenses, is supported by the evidence and consistent with Utah authority. ¹

To successfully assert a claim of self-defense, a defendant must "reasonably [believe] that such force is necessary to defend himself ... against such other's imminent use of unlawful force." Utah Code Ann. § 76-2-402(1) (1978). Similarly, defense of habitation requires that a defendant "reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation...." Id. at § 76-2-405 (1988). The Utah Supreme Court has interpreted reasonable in the context of §§ 76-2-402(1) and -405 "to mean objectively reasonable." In re R.J.Z., 736 P.2d 235, 236 (Utah 1987).

Duran raises two arguments with regard to the statutory defenses. First, Duran claims his procedural due process rights were violated when the guards attempted to transfer him to maximum security without first giving him written notice of his alleged misconduct and a hearing prior to the transfer. ² Duran raises the alleged procedural violations for the purpose of satisfying the requisite "unlawful" requirement set forth in both statutes. Duran argues the "unlawful" i.e., unconstitutional entry and use of force rendered his assault justifiable. Second, Duran claims the evidence demonstrates conclusively that his fears were reasonable under the circumstances. We address each argument separately.

For purposes of this appeal, we will assume Duran did not receive the requisite notice and hearing before his transfer. ³ Thus, the precise issue before us is whether a violation of Duran's constitutional rights justified Duran's resistance to his transfer by means of physical force. Duran cites no authority for the proposition that a prison inmate may forcibly resist a perceived unconstitutional act by a prison guard and similarly, our independent research has revealed none.

We do, however, acknowledge counsel's effort to analogize this to an unlawful arrest situation, but do not find the analogy persuasive. ⁴ Defendant's argument is incompatible with the operation and character of a prison environment. This is so in part because the right to resist an unlawful arrest is normally limited to the resistance necessary to avoid or escape the arrest. See, e.g., Brooks v. State, 144 Ga.App. 97, 240 S.E.2d 593, 595 (1977); State v. Harrell, 67 N.C.App. 57, 312 S.E.2d 230, 235 (1984); Watkins v. State, 350 So.2d 1384, 1386 (Miss.1977). In an unlawful prison transfer situation, there simply is no place to go to resist the allegedly "unlawful" or "unconstitutional" act of the prison guards. Moreover, permitting inmates to resist prison authority based on actual or perceived constitutional violations would create chaos in an already volatile environment, and endanger not only prison employees but other prisoners as well.

[S]elf-help by the inmate cannot be recognized as an acceptable remedy. There must, in most instances ... be compliance with the orders of the correction personnel, or acceptance of the penalties properly applicable to noncompliance. The risks inescapably attendant on the refusal of an inmate to carry out even an illegal order of a correction officer are such as to require compliance at the time with the right of retrospective administrative or judicial determination as to the legality of the order.

Rivera v. Smith, 63 N.Y.2d 501, 483 N.Y.S.2d 187, 194, 472 N.E.2d 1015, 1022 (1984).

We agree with the New York Court of Appeals, and hold that a prison inmate is not justified in resisting prison authorities solely on the basis of an actual or perceived constitutional violation. ⁵ Instead, prison inmates must resort to either an administrative or judicial proceeding to raise the appropriate challenges.

We next address Duran's claim that the record conclusively establishes his fear of the prison guards was reasonable and, therefore, justified his assaultive behavior.

In this regard, Duran argues he reasonably believed he had to strike the prison guard to protect himself, notwithstanding his admission that the prison guards neither verbally nor physically threatened him. Duran claims the mere presence of three guards in his cell constituted a greater force...