State v. Leleae
| Decision Date | 09 December 1999 |
| Docket Number | No. 981189-CA.,981189-CA. |
| Citation | 1999 Utah Ct. App. 368,993 P.2d 232 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. John LELEAE, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Lisa J. Remal and Robert K. Heineman, Salt Lake Legal Defender Assn., Salt Lake City, for Appellant.
Jan Graham, Atty. Gen., and Kenneth A. Bronston, Asst. Atty. Gen., Salt Lake City, for Appellee.
Before WILKINS, P.J., GREENWOOD, Associate P.J., and DAVIS, J.
¶ 1 Defendant was convicted of aggravated assault in violation of Utah Code Ann. § 76-5-103 (1995), and the trial court imposed an enhanced sentence under Utah Code Ann. § 76-3-203.1(1) (1999). Defendant appeals, arguing (1) insufficient evidence supported his conviction; (2) errors during voir dire precluded a fair trial; (3) the trial court erred when it refused to allow defendant to introduce the entire statement he made to the police; (4) the gang enhancement statute is unconstitutional; and (5) the trial court failed to properly sentence defendant under the Shondel doctrine.1 We affirm defendant's conviction for aggravated assault, but vacate his enhanced sentence and remand for resentencing on the aggravated assault conviction.
¶ 2 " " State v. Kiriluk, 975 P.2d 469, 470 (Utah Ct.App.1999) (quoting State v. Hamilton, 827 P.2d 232, 233-34 (Utah 1992)).
¶ 3 On May 10, 1997, Kenny Brems, the victim, was driving his truck eastbound on 3500 South Street in West Valley City, Utah, when he noticed a blue Monte Carlo to his right. The road narrowed from four to two lanes, one in each direction, as both cars approached 4400 West Street. At that point, Brems heard two "pops" in close succession and turned down his radio to listen more closely. Brems then heard a third pop, at which instant his rear window shattered. Brems realized the popping sounds were gunfire and that someone in the Monte Carlo was shooting at him.
¶ 4 The road then widened back into four lanes. To prevent the Monte Carlo from pulling along side his truck, Brems backed into the Monte Carlo, pushing it into another car behind it. At that point, Brems's truck stalled, but he was too scared to restart it. He got out of his truck and ran down 3500 South Street to escape and get help. At the same time, he saw three men get out of the Monte Carlo. One of the men, whom Brems later identified as defendant, had a gun. The other two men were Edwin Seumanu and his brother, Viliamu Seumanu. ¶ 5 As he ran down the street, Brems tried unsuccessfully to get several drivers to call the police. He finally found Earl Bramhall, who was already calling the police from his cellular phone in his stopped vehicle. Brems felt more secure and stood by Bramhall's car, but he did not notice that the three men had climbed back into the Monte Carlo. The Monte Carlo pulled around Brems's truck, ran over some barricades, and bore down on Brems. Bramhall saw the Monte Carlo approaching Brems and yelled, Brems turned to see the Monte Carlo rushing toward him. He tried to jump out of the way, but the Monte Carlo struck him in the thigh, knocking him to the ground.
¶ 6 The Monte Carlo stopped, and defendant and one of the Seumanu brothers got out of the car. Defendant was still holding a gun. The men approached Brems, and the Seumanu brother asked why Brems had backed into their car. Brems responded, "Because you were shooting at me." Just then, the other Seumanu brother got out of the Monte Carlo. After that, Brems remembers only being beaten and begging for his life. He does not recall whether defendant was hitting him, only that the person who initially accompanied defendant began the beating and that he was assaulted by more than one person.
¶ 7 Several people witnessed the incident. Bramhall, the driver who called the police from his cellular phone, testified he saw defendant participate in the beating. Kevin Lubbers, the driver of the vehicle into which Brems pushed the Monte Carlo, was not close enough to see which of the Monte Carlo's occupants assaulted Brems, but he did testify "that they were all beating up on this guy." Another driver who had stopped his car recalled he saw three or four men exit the Monte Carlo, chase Brems as he limped away, and then beat him. He did not see any of the assailants try to stop the assault.
¶ 8 The first police officer to arrive at the scene was Officer William McCarthy. He saw a woman leading Brems away and what appeared to be three Polynesian men, whom he later identified as defendant and the Seumanu brothers, fighting with two other Islanders wearing Delta airline uniforms. The men in the airline uniforms were attempting to restrain defendant and his two cohorts.
¶ 9 Officer Julia Jorgenson arrived moments after Officer McCarthy. She saw a group of five Polynesians and two Caucasians by a chain-link fence on the roadside. Two of the Polynesians were wearing airline baggage-handler-type uniforms, while the other three — one of whom was defendant — were wearing baggy clothing. Knowing that she had been dispatched to a shooting incident, Officer Jorgenson looked for a gun and immediately retrieved a .44 magnum revolver from the passenger seat of the Monte Carlo. She also found five spent shell casings in the car.
¶ 10 Detective Kevin Nudd was assigned to investigate the incident. After visiting the scene of the assault, he interviewed defendant at the West Valley City police station. Defendant initially claimed he was only a bystander and denied any involvement in the assault. Defendant's story changed, however, after Detective Nudd told him that the conversation between defendant and one of the other assailants had been recorded as both suspects were detained in the police car. Defendant then admitted being with the Seumanu brothers but claimed he had only met them that evening. He stated they had all been drinking beer in a park, and that Edwin Seumanu, the owner and driver of the Monte Carlo, agreed to give defendant a ride. Defendant drove the Monte Carlo because Edwin was intoxicated.
¶ 11 Defendant was thus driving Edwin's Monte Carlo when they encountered Brems. Defendant's testimony was that he "accidentally" cut off Brems and that Brems retaliated by cutting off the Monte Carlo. Edwin Seumanu then began firing a gun. After Brems backed into the Monte Carlo, defendant stated he got out of the car to allow Edwin's brother, Viliamu, who was in the back seat, to get out of the two-door car. Defendant retrieved the gun from Edwin as Edwin got out of the Monte Carlo, before Edwin and his brother began chasing Brems. After failing to catch Brems, the Seumanu brothers returned to the Monte Carlo. This time, however, Edwin was behind the wheel. Edwin maneuvered the Monte Carlo around Brems's truck and drove into Brems. Defendant asserted the Seumanu brothers then got out of the vehicle and began to assault Brems. Defendant claimed he tried to pull Edwin and Viliamu off Brems but denied he was involved in the beating.
¶ 12 Edwin Seumanu's story differed a bit from defendant's. Edwin asserted that he had, indeed, allowed defendant to drive. He claimed it was Brems who had cut off the Monte Carlo and thus had provoked Edwin to shoot a gun, which had been kept underneath the driver's seat, "straight up in the air." After Brems backed his truck into the Monte Carlo, Edwin stated that he and defendant got out of the car to pursue Brems. That chase was abandoned, however, and Edwin returned to the driver's seat of the Monte Carlo. Edwin also testified he could not remember what defendant was doing during the attack on Brems, but that it was two other Polynesians in uniforms, not defendant, who pulled the Seumanu brothers off Brems.
¶ 13 As a result of the assault, Brems's jaw was broken, and he suffered several minor head injuries. To treat his broken jaw, doctors surgically wired his jaw shut and removed a front tooth so he could ingest liquified food through a straw. Recovery for Brems was difficult. He found it hard to eat through the straw and was unable to eat solid food. As a result, Brems lost twenty pounds and was continuing to lose a pound a day when doctors removed the wires. It was not until two to three weeks later that Brems was able to eat solid food again.
¶ 14 Brems's jaw healed in six weeks, which is the normal healing time for such an injury. One week after doctors removed the wires from Brems's jaw, they replaced his tooth. At the time of trial, six months after the incident, Brems had gained back all but five pounds of the weight he had lost. Although Brems's jaw fully healed, the pain still makes it difficult for him to hold a small flashlight between his teeth, as he had done previously for his work as a serviceman.
¶ 15 Defendant was charged and tried for attempted criminal homicide, or in the alternative, aggravated assault. A jury returned a guilty verdict against defendant on the aggravated assault charge. The trial court found that defendant acted "in concert" with two others to commit the assault and sentenced defendant to a prison term of six to fifteen years, pursuant to Utah's gang enhancement statute. See Utah Code Ann. § 76-3-203.1 (1995).2 Defendant then filed this appeal.
¶ 16 The first issue we address is whether the evidence was sufficient to support defendant's conviction for aggravated assault. We conclude it was.
¶ 17 "`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.'" State v. Hawkins, 967 P.2d 966, 971 (Utah Ct.App.1998) (). Reversal of a jury conviction...
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