State v. Graves

• Decision Date: 02 May 2019
• Docket Number: No. 20171023-CA,20171023-CA
• Citation: 442 P.3d 1228
• Parties: STATE of Utah, Appellee, v. Reyfus Mellow GRAVES, Appellant.
• Court: Utah Court of Appeals

442 P.3d 1228

STATE of Utah, Appellee,

v.Reyfus Mellow GRAVES, Appellant.

No. 20171023-CA

Court of Appeals of Utah.

Filed May 2, 2019

Mark H. Tanner, Orangeville, Attorney for Appellant

Sean D. Reyes, Jeanne B. Inouye, and Karen A. Klucznik, Salt Lake City, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and David N. Mortensen concurred.

Opinion

HARRIS, Judge:

¶ 1 In the culmination of a months-long feud, Reyfus Mellow Graves shot at two other men as they arrived at his friend’s apartment complex. Witnesses heard Graves—who hails from Puerto Rico—make the following exclamation as he fired his weapon: "This is how we do it in Puerto Rico!" The State charged Graves with (among other crimes) attempted murder. At the trial, the prosecutor asked several witnesses about Graves’s exclamation and also made mention of it during closing argument. At the conclusion of the trial, the jury found Graves guilty. Although Graves did not object on racial or constitutional grounds to any of the State’s questions and comments about Puerto Rico, and indeed brought up the subject himself on a number of occasions during trial, Graves now complains that the repeated references to Puerto Rico in a trial set in Emery County, Utah, imbued the proceeding with improper implications of racism and prevented him from receiving a fair trial. After reviewing the record in this case, including the entire trial transcript, we are unpersuaded by Graves’s arguments, and therefore affirm his convictions.

BACKGROUND

¶ 2 On the afternoon of April 14, 2016, trouble was brewing in Ferron, Utah, as a string of profane text messages flew back and forth between and among four adult men: Graves, JH, ES and SO. The dispute appears to have originated from discussion of a woman (Girlfriend) who was at the time dating and living with Graves, but who had previously dated both JH and ES, and had also once lived in the same apartment as SO. As the texts were going back and forth, Graves, who had moved to Ferron just three months prior, was at ES’s residence having a beer after work, and SO and JH were together at a different location. Graves and SO had never gotten along, though the reason for the bad blood between them is unclear from the record.

¶ 3 As the text exchange escalated, someone using ES’s phone wrote "You want war[,] let’s do war," to which JH replied, "Ok me and [SO] is down .... Where at [a]nd when[?]" A few minutes later, SO messaged ES that he was "on [his way] to [ES’s] place." SO then apparently called ES’s phone, which Graves answered. Profanity-laced threats ensued from both men. At this point, JH and SO borrowed a car from a neighbor and drove to ES’s place, bringing JH’s minor brother (Brother) along "for a witness."

¶ 4 In front of ES’s apartment, Graves and ES were sitting in ES’s Ford Bronco smoking cigarettes and drinking beer, since ES did not like people to smoke in his apartment. When JH and SO pulled up to the apartment complex, Graves got out of the Bronco and fired three shots from a .22 caliber revolver (that belonged to ES) at least roughly in the direction of JH and SO as they exited the vehicle. The bullets did not hit anyone. Several witnesses would later testify that, as he was firing, Graves rotated the gun sideways and yelled something to the effect of "This is how we do it in Puerto Rico!" Graves denied making any such statement.

¶ 5 When the shooting started, JH moved in front of Brother, who had stayed in the car and ducked below the window. SO took cover behind the car, but began taunting Graves with insults and racial slurs. Graves continued to point the gun at SO until ES approached Graves and took the gun from him. ES then took the gun into his apartment and hid it under a pillow on his couch. Once Graves was disarmed, SO ran up to him and started to pummel him with his fists, continuing to punch him even after he felt Graves go limp. At some point, JH joined the fray and held Graves against a wall as SO continued to beat him.

¶ 6 The scuffle was eventually interrupted by an off-duty highway patrol trooper (Trooper), who happened to live down the street and responded after hearing the sound of gunfire in his neighborhood and observing a man pointing what looked like a gun. After calling the matter in to dispatch, Trooper drove his unmarked police vehicle to the apartment complex, drew his service weapon, and ordered all of the men to get on the ground. The men complied, and either JH or SO told Trooper that Graves had been shooting at them. Based on this information, Trooper used the single pair of cuffs in his possession to handcuff Graves. Trooper searched Graves, but found no gun and therefore ordered everyone on the scene to stay in place until backup arrived. At some point, ES explained that the gun was in his apartment. After additional law enforcement officers arrived at the scene, they confirmed that the gun was indeed where ES claimed it was, and secured his apartment until they procured a search warrant.

¶ 7 Graves, ES, JH, and SO were all arrested, taken into custody, and questioned independently that night. Brother also provided a statement to officers before leaving the scene. A detective (Detective) from the Emery County Sheriff’s Office collected evidence from the scene, taking pictures of where it appeared that bullets had struck a nearby residence and the car that JH and SO had been driving. Detective examined the revolver recovered from ES’s apartment and found that it contained three spent rounds and six unspent rounds. Detective also interviewed three additional witnesses, including one of ES’s neighbors (Neighbor).

¶ 8 The State charged Graves with two counts of attempted murder and two counts of felony discharge of a firearm, but after pretrial proceedings one of the attempted murder counts was changed to a charge of reckless endangerment. Graves eventually stood trial for one count of attempted murder, two counts of felony discharge of a firearm, and one count of reckless endangerment.

¶ 9 At trial the prosecution called Trooper, ES, JH, Brother, SO, the officer (Officer) who transported ES to jail after the incident, Detective, and Neighbor. The State’s case focused on the text messages exchanged on the day of the shooting as well as on Graves’s actions immediately before and during the shooting. In his opening statement, the prosecutor described the shooting as well as Graves’s alleged statement:

At that point, there hadn’t been any words exchanged between them, but one thing that had been said that [ES] will tell you is that when the defendant got out of the Bronco, he said, "I’ll show you how we do things in Puerto Rico."

The defendant is from Puerto Rico. He had pulled his gun out, he held it an angle—not straight up but at an angle—and fired at least the first shot that way. We don’t know exactly where those shots went, in what order. We know there were a total of three shots that were fired out of that .22.

¶ 10 During trial, the prosecution asked ES, JH, and SO—but not Brother, Neighbor, or Trooper—whether they had heard Graves say anything about Puerto Rico.¹ JH and SO both testified that Graves shouted something to the effect of "this is how we do it in Puerto Rico" or "that’s how they do [it] in Puerto Rico." However, ES testified that he never heard Graves say anything about Puerto Rico that night. The prosecution pressed ES on this point, and after ES testified, called Officer to the stand, who testified that ES had told her, as she transported him to jail on the night of the incident, that Graves said something to the effect of "I’ll show you how we do it in Puerto Rico." At this point, defense counsel lodged a hearsay objection to the admission of Officer’s statement about what ES had told her while being transported to jail, but the trial court overruled the objection.

¶ 11 The State drew out other details of the shooting during its case-in-chief. ES testified that Graves had obtained his gun surreptitiously, after asking to see the gun while they were in the apartment. Further, the State asked JH, Brother, and SO whether Graves held the gun sideways or upright during the shooting. These witnesses all testified that Graves held the gun sideways, or (in Brother’s words) "like how gangs ... do it." JH and SO testified that Graves pointed the gun directly at them as he shot and continued to aim the gun at SO afterward. Trooper and Neighbor both testified that they saw Graves pointing the gun at SO, though neither saw the shooting.

¶ 12 ES, JH, and SO also testified about the ongoing dispute between SO and Graves. ES and JH testified that the dispute was driven by SO, and began after Girlfriend evicted SO from her apartment and started a relationship with Graves. They further testified that SO had made several public threats to Graves, sometimes threatening to kill Graves and his family, though no one appears to have taken these threats seriously. For his part, SO testified that he never threatened Graves and that Graves had started the quarrel between them.

¶ 13 The State also called Detective, who testified that it appeared to him that a bullet had struck the vehicle driven by JH, although the bullet had not penetrated the vehicle. Though Detective was, by his own admission, "by no means an expert," he testified that it appeared to him that the mark was made by a small caliber bullet, such as a .22. Detective also testified that he observed what appeared to be a fresh bullet hole in a house across the street from the apartment complex, again consistent with a .22 caliber bullet.

¶ 14 During the defense’s case, Graves testified in his own defense, and disputed several parts of the State’s version of events. Graves testified that ES handed him the gun as JH and SO arrived; that he fired into the air twice and into the ground once and that he never intended to actually hit anyone; that he fired the gun in self-defense; that he never made a statement...