State v. Moritzsky, 880395-CA
| Decision Date | 23 March 1989 |
| Docket Number | No. 880395-CA,880395-CA |
| Citation | 771 P.2d 688 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Joseph MORITZSKY, Defendant and Appellant. |
| Court | Utah Court of Appeals |
Kirk C. Bennett, West Valley City, for defendant and appellant.
R. Paul Van Dam, Atty. Gen., Charlene Barlow (argued), Asst. Atty. Gen., for plaintiff and respondent.
Before BILLINGS, JACKSON and ORME, JJ.
Defendant Joseph Moritzsky appeals his jury conviction of aggravated assault, a third degree felony in violation of Utah Code Ann. § 76-5-103 (1978). Defendant urges, through new counsel, reversal of his conviction due to his trial counsel's failure to request the appropriate "defense of habitation" jury instruction. Defendant claims counsel's failure rendered his assistance ineffective in contravention of the Sixth Amendment. We agree, and reverse defendant's conviction.
The relevant facts are gleaned mainly from the testimony of defendant and the victim of the charged assault, Gary Olson. Defendant and Olson were partners in a horse training venture, which they conducted in a "camp" outside of Vernal, Utah. Defendant moved a trailer he owned to the camp, in which he lived with his girlfriend and her small child. Olson continued to live in Vernal and commuted to the camp almost daily to work with the horses.
On April 1, 1987, Olson and two friends arrived at the camp at around 7:00 p.m., and defendant invited them into his trailer. Olson had been drinking beer since early that morning, and brought half a fifth of whiskey with him to the camp. Olson, defendant, and the others drank the whiskey, and after a short stay the two visitors left the camp. Defendant and Olson then began to bicker over a horse they were training for a client. Olson wanted to take the horse to his home in Vernal; defendant wanted to keep the horse at the camp. Heated words were exchanged. Defendant testified that although Olson took off his hat and coat and threw them on the ground, indicating his intention to fight defendant, no physical violence occurred at this time. To avoid a fight, defendant told Olson to take the horse. Although the foregoing facts are essentially undisputed, the events following this confrontation are recalled quite differently by defendant and Olson.
Defendant claims the argument over the horse occurred outside the trailer. After deciding to allow Olson to take the horse, defendant went back into the trailer, drank a few beers, and had dinner. Believing Olson had mounted the horse and simply ridden off into the sunset, defendant went to bed. About an hour and a half after the argument, defendant was awakened by the sound of a person in the trailer. Defendant got out of bed, wrapped a towel around his otherwise naked self, and exited the bedroom to investigate the disturbance. Defendant found that a rope used to secure the trailer door had been broken, and Olson was standing in the front room. Defendant, believing Olson had returned intending to start a fight, tried to avoid further confrontation by offering Olson another beer. Olson responded by shoving defendant. Defendant told Olson not to shove him, and retrieved some wood for the fire. Olson shoved defendant again, harder than the first time. Defendant did not want to fight Olson in the small living room of the trailer while wearing only a towel. Accordingly, defendant went into his bedroom, retrieved his Colt .45 caliber pistol, came back into the front room, and fired a warning shot into the trailer ceiling. Olson quickly attempted to exit the trailer, and defendant helped him along with a shove out the door. Olson landed on the ground and got up cursing defendant, who then fired a second warning shot into the ground in front of Olson. Defendant told Olson to leave him alone or Olson would be shot. Olson did not heed this warning, and defendant shot Olson in the foot when he stepped toward defendant, who was standing in the trailer doorway.
Olson recalls the evening's events somewhat differently. Olson claims the argument over the horse occurred inside the trailer, and during the argument defendant shoved Olson out of the trailer. Olson admits shoving defendant during the argument and eventually going back into the trailer, but claims he reentered only 20 minutes after being shoved out. Olson claims he went back into the trailer to retrieve a halter he needed to ride the horse home, and was shot while still inside the trailer.
In defense to the charge of aggravated assault, defendant raised self-defense, defense of property, and defense of habitation. The jury was instructed on each of these defenses. Having heard the conflicting testimony, the jury found defendant guilty of aggravated assault. Defendant seeks reversal of his conviction based on what he perceives as the ineffectiveness of his counsel. Defendant claims that given the above testimony, a properly instructed jury could conclude that defendant was defending his habitation when he shot Olson in the foot. However, the defense of habitation instruction requested by defendant's counsel and given to the jury failed to incorporate a statutory presumption that defendant acted reasonably, if the jury found he was otherwise entitled to assert the defense. See Utah Code Ann. § 76-2-405 (1988). Defendant claims that due to his counsel's failure to request the correct instruction, he was denied the right to effective assistance of counsel guarantied him under the Sixth Amendment to the United States Constitution.
Defendant's Sixth Amendment challenge to his conviction will be successful only if he can prove that (1) his counsel rendered an objectively deficient performance, demonstrated by specific acts or omissions; and (2) counsel's error prejudiced defendant, i.e., a "reasonable probability" exists that, but for counsel's acts or omissions, the verdict would have been more favorable to defendant. See, e.g., State v. Verde, 770 P.2d 116, 119 (1989); State v. Frame, 723 P.2d 401, 405 (Utah 1986); State v. Geary, 707 P.2d 645, 646 (Utah 1985); State v. Pursifell, 746 P.2d 270, 275 (Utah Ct.App.1987). On appeal, defendant must overcome the strong presumption that his counsel's assistance was adequate. See Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674 (1984). The formidable nature of this burden is demonstrated by the fact that the parties have been unable to draw our attention to even a single reported Utah case where a criminal conviction was actually overturned on the basis of ineffective assistance of counsel. 1
Nonetheless, the right to effective assistance of counsel is an important aspect of a criminal defendant's Sixth Amendment rights. Appellate courts must review each case carefully to prevent the infrequent meritorious claim from being reflexively swept into the tide of affirmance by the chronicles of probability. Our task is not to mechanically apply the two-part standard set forth above, but instead to Frame, 723 P.2d at 405. It is with these observations in mind that we review the merits of defendant's claim. Because of its crucial role in this case, however, we first turn our attention to Utah's defense of habitation statute.
Utah Code Ann. § 76-2-405 (1988) provides that defense of one's habitation may justify the use of force. The section provides as follows:
(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:
(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or
(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.
(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.
The presumption provided in subsection (2) was added in 1985. See 1985 Utah Laws ch. 252, § 1. While not a model of clarity--subsection (1) speaks of reasonable beliefs and subsection (2) of reasonable action and reasonable fear--the thrust of subsection (2) is to vest persons who defend their habitation under circumstances described in subsection (1) with the presumption that their beliefs and actions were reasonable. See In re R.J.Z., 736 P.2d 235, 236 (Utah 1987) (). Where a defendant entitled to assert the defense establishes the factors articulated in subsection (2), the presumption is necessarily triggered and the burden shifts to the State to rebut it, i.e., to prove that in fact defendant's beliefs and actions under subsection (1) were not reasonable. See id. at 236-37 ( ...
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