State v. Evans, 980181.

• Decision Date: 09 March 2001
• Docket Number: No. 980181.,980181.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Jason Junior EVANS, Defendant and Appellant.
• Court: Utah Supreme Court

20 P.3d 888

2001 UT 22

STATE of Utah, Plaintiff and Appellee, v. Jason Junior EVANS, Defendant and Appellant.

No. 980181.

Supreme Court of Utah.

March 9, 2001.

Mark Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, for plaintiff.

Linda M. Jones, Salt Lake City, for defendant.

WILKINS, Justice:

¶ 1 Defendant appeals from convictions of two counts of attempted aggravated murder, first degree felonies in violation of section 76-5-202 of the Utah Code and one count of failure to respond to an officer's signal to stop, a third degree felony in violation of section 41-6-13.5 of the Utah Code. We affirm.

BACKGROUND

¶ 2 We recite the facts in the light most favorable to the jury's verdict. State v. Litherland, 2000 UT 76, ¶ 2, 12 P.3d 92. On August 15, 1997, at approximately 10:40 p.m., West Valley City police officers Chad Evans and Cory Newbold were working undercover, patrolling in an unmarked car. They saw two cars driving together, a Monte Carlo, followed by a Pontiac. The keyhole on the driver's door of the Pontiac had been removed, and passengers in the Monte Carlo were passing around a bottle that appeared to be alcohol. Additionally, the officers discovered that the license plate on the Monte Carlo was not registered to that vehicle. The officers decided to pull the cars over, but because their car only had a siren and wig-wag headlights (lights that flash alternately), they called first for backup.

¶ 3 Officer Robert Idle, who was also working undercover, responded. Officer Idle's car had a siren, wig-wag headlights, and three sets of red and blue strobe lights, which were located inside the headlights, in the rear taillight housings, and attached to the passenger visor. Officer Idle activated all of his emergency equipment, except his siren, to stop the two cars. He moved up behind the Pontiac, which started to pull over to the side of the road. As the Pontiac began to pull over, Officer Idle remained behind the Monte Carlo, and Officers Evans and Newbold pulled over behind the Pontiac. The Monte Carlo also pulled over, and Officer Idle parked about ten to twelve feet behind it. The Pontiac was behind Officer Idle's car, with Officers Newbold and Evans' car behind it. Officers Newbold and Evans' wig-wag lights and siren were engaged at the time.

¶ 4 Officer Idle got out of his car and began walking towards the Monte Carlo. Because he was working undercover, he was not in uniform, but was wearing shorts and a tee shirt, with his gun and badge attached to his belt. As soon as he started walking towards the Monte Carlo, he lifted up his tee shirt, making both his gun and badge visible. After he had taken about three steps, the driver's side door of the Monte Carlo opened, and defendant emerged holding a rifle. Defendant immediately began firing at Officer Idle. Officer Idle returned fire, and fell to the ground, continuing to fire until his weapon was empty.

¶ 5 Officer Evans, who was by then standing on an embankment alongside the road, saw Officer Idle drop to the ground and started running towards him. At the same time, defendant started to fire in the direction of Officer Evans. When Officer Evans reached Officer Idle, Officer Idle was in convulsions, having been shot several times.

¶ 6 During the gunfire, other vehicles were passing. At least two were hit by stray bullets. Bullets hit the front tire and windshield of one witness's car, causing the windshield to shatter, broken glass cutting the driver's shoulder. Another witness's car was hit from behind by a bullet that passed within eight to twelve inches of her seven-year-old daughter in the backseat and then hit the windshield directly in front of her eighteen-year-old daughter.

¶ 7 Officer Newbold, who was in his car trying to inform dispatch that shots had been fired, saw the Monte Carlo drive off. He followed with his siren and wig-wag lights on. Approximately four shots were fired from the Monte Carlo as it was driving away. As Officer Newbold continued to pursue, the Monte Carlo slowed to a stop. Defendant pointed the rifle out of the driver's window at Officer Newbold. Officer Newbold saw defendant pull the trigger and then try to either re-load the gun or clear a malfunction. No shots were fired, and the Monte Carlo took off again. Officer Newbold thought he saw two objects thrown out of the driver's side window.

¶ 8 Officer Newbold continued to chase the Monte Carlo, which did not stop until, in the course of attempting to evade police, it became damaged and disabled. By then, several other officers had arrived on the scene. Five people were removed from the Monte Carlo. Officer Newbold identified defendant as the driver. Defendant was arrested and charged with three counts of attempted aggravated murder and one count of failure to respond to an officer's signal.

¶ 9 At trial, three of the Monte Carlo passengers testified: Shiloh Griffin, Natasha Atwood, and Alepino Lavaka. Both Griffin and Atwood testified that they had been with defendant a week earlier when he acquired the gun he used that night. Lavaka said that defendant had shown him the gun the day before the shooting and told Lavaka that if he ever got pulled over, defendant was going to shoot because he did not want to go to prison. Atwood also testified to having a similar conversation with defendant, during which defendant told her that if he ever got pulled over "he would go out like a `G,'" meaning gangster. When questioned about the initial police stop, Lavaka said that he saw red and blue lights in the rearview mirror, and Griffin testified that she thought she saw red and blue lights. Lavaka also testified that before defendant stopped the car, defendant said "we're getting pulled over."

¶ 10 The State also elicited testimony from four passing motorists, who testified that they saw a car being pulled over by an unmarked police car. Three of these witnesses testified that they knew that the car was being pulled over by police because they saw red and blue police lights flashing on the police car. The fourth witness could not remember whether the police car had red and blue flashing lights; however, she testified that she recognized the car as a police car.

¶ 11 Defendant testified that he borrowed the gun because he wanted to go target shooting. Defendant denied telling Lavaka that if he was pulled over he would shoot. However, defendant recalled a conversation with Atwood during which he told her "if anybody ever tried to take me I'd go out like a `G.'"

¶ 12 Defendant described the initial stop, shooting, and subsequent chase. Defendant testified that he pulled over because he saw "somebody flashing their brights at [him]." He said that he thought the driver of the Pontiac was trying to get his attention. Defendant said that when he got out of the car, he saw a stranger walking towards him with a gun in his belt. Defendant said that he responded by then reaching for the rifle, cocking it, and shooting. Defendant testified that he started to shoot because the individual coming towards him had his gun raised. After defendant realized that shots were being fired back at him, he got back into the car and drove off.

¶ 13 Defendant testified that he did not look back as he was driving away and did not know if anyone was following. He told Lavaka "if anybody's following us, shoot [them]." Lavaka refused, and defendant told him to take the wheel. Defendant said he then grabbed the gun off the floor and put it out the window. He tried to cock it, but it was empty. Lavaka threw the gun out of the passenger window. Defendant testified that he did not know he was being chased until he saw and heard patrol cars. He said that he had two large speakers in the back window of his car that blocked his view through the back window. He also testified that he did not know he had shot a police officer until he was arrested.

¶ 14 On appeal, defendant raises three claims of error: (1) the trial court committed plain error in failing to set out a unanimity requirement with respect to the theory relied upon to convict defendant of attempted aggravated murder; (2) the trial court erred in failing to instruct the jury on the lesser-included offense of attempted manslaughter; and (3) the trial court erred in failing to declare a mistrial after learning of the family relationship between a juror and the chief deputy in the prosecutor's office.

ANALYSIS

I. UNANIMITY INSTRUCTION

¶ 15 Defendant claims that his constitutional right to a unanimous verdict, under article I, section 10 of the Utah Constitution, was violated because the jury instructions concerning attempted aggravated murder set forth alternative theories on which the jury could convict defendant, but the instructions did not explain that the jury must be unanimous as to the theory relied upon for the conviction.¹ The instructions given to the jury were those requested by defendant. ¶ 16 Defendant neither objected to the absence of a specific instruction on jury unanimity, nor did he propose such an instruction. Because defendant did not object to the absence of a unanimity instruction, defendant relies on the doctrine of plain error in seeking review of the jury instructions. Under the plain error doctrine, defendant must demonstrate that failure to give an instruction on unanimity was not only error, but also that the error should have been obvious to the trial court, and that the error was of such a magnitude that there is a reasonable likelihood of a more favorable outcome for the defendant. See State v. Saunders, 1999 UT 59, ¶ 57, 992 P.2d 951.

¶ 17 A majority of this court has interpreted article I, section 10 to require jury unanimity with respect to each element of an aggravated murder charge. See id. at ¶¶ 59-62. At the time of defendant's trial in 1998, the issue was arguably unclear. See State v. Tillman, 750 P.2d 546 (Utah 1987) (containing four different opinions discussing...