State v. Haston

• Decision Date: 06 May 1991
• Docket Number: No. 900021-CA,900021-CA
• Citation: 811 P.2d 929
• Parties: STATE of Utah, Plaintiff and Appellee, v. Robert T. HASTON, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 929

811 P.2d 929

STATE of Utah, Plaintiff and Appellee, v. Robert T. HASTON, Defendant and Appellant.

No. 900021-CA.

Court of Appeals of Utah.

May 6, 1991.

Rehearing Denied May 30, 1991.

Lisa J. Remal and Ronald S. Fujino, argued, Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., and Judith S.H. Atherton, Asst. Atty. Gen., argued, Salt Lake City, for plaintiff and appellee.

Before GREENWOOD, JACKSON and ORME, JJ.

OPINION

ORME, Judge:

Defendant Robert T. Haston appeals his conviction for attempted criminal homicide, a second degree felony. Defendant also challenges enhancement of his sentence for use of a firearm and imposition of fines, surcharge, costs, and restitution. We affirm his conviction but remand for resentencing.

FACTS

Defendant's companion, David Ezzeddine, had received his government assistance payment on August 2, 1989. The proceeds were used to defray the expenses incurred in the course of a protracted drinking party. Defendant, Ezzeddine, and Leonard Tate spent approximately two days engaged in nearly non-stop barhopping and imbibing, joined sporadically by three other companions. Over the course of this bacchanal, the revelers consumed a fifth-gallon of peppermint schnapps, several pitchers of beer, at least 120 cans of beer, and a quantity of vodka.

On the afternoon of the second day, the festivities having moved to a motel on Salt Lake City's west side, Ezzeddine asked defendant to see his gun. Defendant gave Ezzeddine the gun, a revolver, which was then passed to Tate, and returned to defendant. Defendant offered a version of subsequent events which was at odds with the details related by Tate and Ezzeddine. Defendant claimed to have been loading the gun in order to be prepared to protect the group from possible burglars. In contrast, Tate and Ezzeddine claimed defendant was brandishing the gun while remonstrating Tate for the amount of beer he had permitted the others to consume. Tate claims that when he challenged defendant's bravado, defendant shot him.

Defendant was tried by a jury and convicted of attempted criminal homicide, for which he was sentenced to a term of one-to-fifteen years. The court then enhanced the sentence with a mandatory one-year term and a discretionary zero-to-five year term for use of a firearm and ordered the sentences to be served consecutively. On appeal, defendant challenges the imposition of two additional prison terms as sentence enhancement, and contests the imposition of restitution, fines, surcharge, and costs in the form of attorney fees. Defendant also claims that jury instructions concerning the burden of proof were defective, misstating and inadequately explaining the law, and that the prosecution's misstatement of the law on the affirmative defense of intoxication was prejudicial. Finally, he claims the "depraved indifference" instruction was legally insufficient.

REASONABLE DOUBT INSTRUCTION

Defendant challenges Instruction Number Seven as failing to adequately define the beyond-a-reasonable-doubt standard and claims the instruction could have allowed the jury to convict on an improper civil standard of proof. ¹ We will reverse on the basis of an improper instruction only where the defendant demonstrates prejudice stemming from the instructions viewed in the aggregate. State v. McCumber, 622 P.2d 353, 359 (Utah 1980). We review jury instructions in their entirety, State v. Bingham, 684 P.2d 43, 45 (Utah 1984), and will affirm "[w]hen taken as a whole ... they fairly tender the case to the jury, [even where] one or more of the instructions, standing alone, are not as full or accurate as they might have been...." State v. Brooks, 638 P.2d 537, 542 (Utah 1981). See also Cage v. Louisiana, 498 U.S. 39, 111 S.Ct. 328, 329, 112 L.Ed.2d 339 (1990) ("In construing the instruction, we consider how reasonable jurors could have understood the charge as a whole."); State v. Johnson, 774 P.2d 1141, 1146 (Utah 1989) (jury instructions must be construed as a whole).

Defendant relies heavily on Justice Stewart's concurring opinion in State v. Johnson, 774 P.2d 1141, 1148 (Utah 1989), which was joined in by two other justices and thus is the opinion of the Court as concerns the reasonable doubt instruction challenged in that case. Justice Stewart's opinion, drawn largely from his dissenting opinion in State v. Ireland, 773 P.2d 1375, 1380 (Utah 1989), analyzed specific language commonly featured in reasonable doubt instructions. Two discrete criteria may be distilled from these opinions. First, as defendant notes, the instruction should contain terminology which unambiguously expresses the prosecution's burden to "obviate all reasonable doubt." Ireland, 773 P.2d at 1381 (Stewart, J., dissenting). See also Johnson, 774 P.2d at 1149 (Stewart, J., concurring in the result). That precise language is contained in Instruction Number Seven. Second, use of the "weighty affairs of life" language is proscribed. See Johnson, 774 P.2d at 1148 (Stewart, J., concurring in the result). Instruction Number Seven omits any reference to "weighty affairs." The instruction thus conforms with both prongs of the Johnson/ Ireland directive.

In Johnson, the Court instructed trial courts to avoid jury instructions with language comparing the reasonable doubt standard with a juror's personal standard in deciding the "weighty affairs" of his or her life. Id. Such language "tends to diminish and trivialize the constitutionally required burden-of-proof." Id. (quoting Ireland, 773 P.2d at 1381 (Stewart, J., dissenting)). "A jury must have a greater assurance of the correctness of its decision, if it is to comply with the constitutional mandate, than the individual jurors are likely to have in making the 'weighty' decisions they confront in their own lives." Ireland, 773 P.2d at 1381 (Stewart, J., dissenting).

Defendant particularly objects to the inclusion of the following sentence: "Proof beyond a reasonable doubt is that degree of proof which satisfies the mind, convinces the understanding of those who are bound to act conscientiously upon it and obviates all reasonable doubt." Defendant claims that this sentence is contextually similar to a phrase rejected by Justice Stewart in his dissent in Ireland, where the instruction stated that the jury should convict if it had "an abiding conviction of the truth of the charge...." Id. The first portion of the challenged sentence mirrors language approved in State v. Tillman, 750 P.2d 546, 572-73 (Utah 1987), while the remainder of the sentence responds to Justice Stewart's criticism in Ireland, 773 P.2d at 1382 (Stewart, J., dissenting), and Johnson, 774 P.2d at 1148 (Stewart, J., concurring in the result), by incorporating the "need [to] obviate a real or substantial doubt" phrase expressed in Johnson. 774 P.2d at 1149 (Stewart, J., concurring in the result).

Defendant dissects other portions of Instruction Number Seven in the course of arguing that the instruction did not adequately define the reasonable doubt standard. However, several sentences now challenged by defendant are identical to sentences included in the very language of defendant's proposed instruction. Others are identical or textually similar to language approved by the Utah Supreme Court in Tillman, Johnson, and Ireland. We repeat that it is not the province of an appellate court to peruse each turn of phrase and every clause of a jury instruction. Rather, in search of prejudicial error, we consider the instruction in its entirety. Johnson, 774 P.2d at 1146.

The Supreme Court's rejection of the "weighty affairs" language reflects a concern that analogous language might permit a defendant to be convicted on a standard of proof lower than that which is constitutionally required. Johnson, 774 P.2d at 1148 (Stewart, J., concurring in the result). In essence, Johnson requires trial courts to avoid terms and phrases which fail to eliminate suggestions that a reasonable doubt is something more than a "mere possible doubt," although the Court did not prescribe particular language. See id. at 1148-49.

We have recently held that a reasonable doubt instruction identical to the instruction challenged in the present case satisfied the Johnson mandate. See State v. Pedersen, 802 P.2d 1328, 1331-32 (Utah Ct.App.1990). ² While we recognize that this reasonable doubt instruction is not a model of lucidity and simplicity, ³ it does present an "accurate definition of the burden-of-proof placed upon the state." ⁴ Id. at 1332. ⁵

PROSECUTORIAL MISSTATEMENT

Defendant claims the prosecutor misstated the law regarding the affirmative defense of intoxication during his closing argument. The prosecutor stated:

The state suggests that you may find ... [defendant] guilty each of three ways, but any of the three ways is sufficient to find him guilty. When you read the instructions, you will note that voluntary intoxication, Instruction 20, does not apply at all to the third way [,]depraved indifference[,] that the government suggests that [defendant] may be found guilty. Doesn't matter how drunk he was. Doesn't matter how drunk people were that he shot.

The "third way" of showing defendant's guilt required proof that defendant knowingly did an act with depraved indifference for life. Utah Code Ann. § 76-5-203(1)(c) (1990); State v. Standiford, 769 P.2d 254, 261 (Utah 1988). Thus, intoxication may be a defense if defendant's intoxication defeated his capacity to form the requisite intent. Utah Code Ann. § 76-2-306 (1990); State v. Wood, 648 P.2d 71, 89 (Utah), cert. denied, 459 U.S. 988, 103 S.Ct. 341, 74 L.Ed.2d 383 (1982). The state concedes that the prosecutor did indeed misrepresent the law to the jury, but counters that the error was immediately cured by the judge's prompt reference to the instructions. Defendant responds that the instructions themselves were confusing and misleading to the jury, so that the court's...