State v. Perdue

• Decision Date: 07 June 1991
• Docket Number: No. 900081-CA,900081-CA
• Citation: 813 P.2d 1201
• Parties: STATE of Utah, Plaintiff and Appellee, v. Terry Wayne PERDUE, Defendant and Appellant.
• Court: Utah Court of Appeals

Page 1201

813 P.2d 1201

STATE of Utah, Plaintiff and Appellee, v. Terry Wayne PERDUE, Defendant and Appellant.

No. 900081-CA.

Court of Appeals of Utah.

June 7, 1991.

Andrew A. Valdez, Charles F. Loyd, Jr., Ronald S. Fujino (argued), Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.

R. Paul Van Dam, State Atty. Gen., Dan R. Larsen, Asst. Atty. Gen. (argued), Salt Lake City, for plaintiff and appellee.

Before GARFF, JACKSON and ORME, JJ.

OPINION

GARFF, Judge:

Terry Wayne Perdue appeals his conviction of murder in the second degree, a first degree felony, in violation of Utah Code Ann. § 76-5-203 (Supp.1989), arguing that his own jury instructions, submitted by the defense, violated his due process rights and that the evidence was insufficient to support the verdict. We affirm.

FACTS

We recite the facts from the record in the light most favorable to the jury verdict, State v. Johnson, 774 P.2d 1141, 1147 (Utah 1989); State v. Pedersen, 802 P.2d 1328, 1330 (Utah App.1990). In the late afternoon of October 18, 1988, defendant received a telephone call from his friend, Jerry Kadell Hermansen, the victim. The victim asked defendant to pick him up at a bar in Sandy and to give him a ride. The victim had given defendant cocaine for rides in the past.

When defendant arrived, the victim told him he had to retrieve a pillowcase from a nearby building. After retrieving the pillowcase, he showed defendant its contents: a revolver, a buck knife, and some ammunition. The victim suggested that they use the gun for target practice. He also suggested they share some of his cocaine. The two decided to go to an area near the city dump to fire the gun.

En route, the two men started to argue about a supposed drug debt defendant owed the victim. Upon arriving at the dump, the two began snorting cocaine. Defendant snorted two lines and the victim snorted six. The victim wanted defendant to obtain more cocaine and defendant refused. After firing some shots, they began arguing again. This time, the victim demanded that defendant pay the debt. The victim took the keys out of the ignition, telling defendant he would keep the car as payment of the debt or until the debt was repaid.

During this argument, defendant watched as the victim reloaded the gun with three bullets. Defendant demanded that the victim give him his keys and the victim refused. Considering himself in danger, defendant hit the victim with his fist and took the gun.

During the struggle, defendant fired three shots. Each shot was fired more than fourteen inches away from the victim. The fatal shot was fired into the right side of the neck, slightly downward, and exited the lower left side of the neck through the spinal cord. Another shot entered from the back left side of the chest, exited the left front side of the chest and entered the victim's elbow. Yet another shot entered the back of the left hip proceeding straight from the rear.

Defendant had had no prior violent incidents with the victim. The victim never pointed the gun at defendant, never said he was going to shoot defendant, and never threatened defendant with violence. After the shooting, defendant never checked to see whether the victim was alive or dead, nor did he summon help.

After the shooting, defendant threw the gun on the seat of the car, retrieved his keys from the victim, and dragged him to the side of the road and drove away. Two cartridges remained in the victim's right hand. Defendant later gave the victim's gun to his cocaine supplier in return for twenty dollars' worth of cocaine. Defendant was convicted of murder in the second degree.

JURY INSTRUCTIONS

Defendant claims that his right to a fair trial was unconstitutionally compromised by two of the instructions given to the jury. To the extent our review of the court's refusal to give certain jury instructions involves questions of law, as in this case invited error and manifest injustice, we review for correctness and accord no deference to the trial court. Ramon v. Farr, 770 P.2d 131, 133 (Utah 1989). As to our analysis of the instructions themselves, we affirm when the instructions, taken as a whole, "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. Haston, 811 P.2d 929, 931 (Utah App.1991) (quoting State v. Brooks, 638 P.2d 537, 542 (Utah 1981)).

The usual rule is that "[n]o party may assign as error any portion of the charge or omission therefrom unless he objects thereto before the jury is instructed, stating distinctly the matter to which he objects and the grounds of his objection." Utah R.Crim.P. 19(c); State v. Medina, 738 P.2d 1021, 1023 (Utah 1987). The Utah Supreme Court has emphasized that Rule 19(c) requires more than a general exception to the instructions. The rule "requires that the matter excepted to and the ground therefor be distinctly stated." State v. Cantu, 750 P.2d 591, 594 (Utah 1988). Where no grounds are apparent from the text of the instruction and no objection is stated, the objection is presumed waived. State v. Dumas, 721 P.2d 502, 506 (Utah 1986). The exception to this general rule is that "[n]otwithstanding a party's failure to object, error may be assigned to instructions in order to avoid manifest injustice." Utah R.Crim.P. 19(c).

Prior to trial, both the prosecutor and defense counsel submitted proposed jury instructions to the trial court. Among defendant's proposed jury instructions were two instructions on reasonable doubt and two on self-defense. ¹ The court used one each of defense counsel's reasonable doubt and self-defense instructions and rejected the alternate instructions. Defense counsel objected to the court's rejection of one of the reasonable doubt instructions he submitted, claiming that the instruction not given was better because it "has more of a clarification ... and also contains some cites of authority that we think supports our position." Defense also objects, for the first time on appeal, to the instruction given on self-defense.

Thus, defense counsel submitted not only the two objectionable instructions, but also the two instructions accepted by the court. Defendant then objected to one of his own instructions on reasonable doubt and declined to object to the other. ² Defense's position is problematic because, by submitting all four proposed instructions to the court, counsel impliedly not only represented that the instructions were legally sound, but urged the trial court to use the same instructions it now appeals. Defense counsel now argues manifest injustice against his invited error.

Medina is on point as to both instructions. In Medina, the Utah Supreme Court declined to entertain a claim of manifest injustice where defense counsel "actively represented to the court that she had read the instruction and had no objection to it." 738 P.2d at 1023. The court reasoned that an objection raised for the first time on appeal was inappropriate because "counsel consciously chose not to assert any objection that might have been raised and affirmatively led the trial court to believe that there was nothing wrong with the instruction." Id.

In Medina, defense counsel stated she had no objections to an instruction that she had not submitted, whereas in the present case, the defense had submitted the "objectionable" instructions. We think it reasonable to assume that the act of submitting an instruction to a court of law, whether or not signed by counsel, ³ and whether or not counsel later objects to it, constitutes a representation by the attorney that he or she has read the instruction, waives any objection thereto, and endorses it as legally sound. Also, when counsel submits more than one instruction on a single issue, counsel cannot complain when, as expected, the court uses only one of them. We think this principle holds whether or not counsel subsequently voices an objection after the judge selects the "wrong" instruction.

We agree with those jurisdictions which have adopted the rule that a party may not appeal a jury instruction that the same party submitted or requested. E.g., State v. Henderson, 114 Wash.2d 867, 792 P.2d 514 (1990); State v. Tassler, 159 Ariz. 183, 765 P.2d 1007, 1009 (1988) (one may not deliberately inject error in the record and then profit from it on appeal); Brooks v. State, 706 P.2d 664, 668 (Wyo.1985); State v. Kincaid, 103 Wash.2d 304, 692 P.2d 823, 830 (1985); State v. Aragon, 107 Idaho 358, 690 P.2d 293, 297 (1984); State v. Stroud, 210 Mont. 58, 683 P.2d 459, 467-68 (1984); State v. Patchett, 229 Kan. 163, 621 P.2d 1011, 1014 (1981); West v. State, 617 P.2d 1362, 1366 (Okl.Cr.App.1980); State v. Cruz, 86 N.M. 455, 525 P.2d 382, 384 (App.1974); Adams v. State, 81 Nev. 524, 407 P.2d 169, 173 (1965); State v. North, 238 Or. 90, 390 P.2d 637, 639, cert. denied, 379 U.S. 939, 85 S.Ct. 344, 13 L.Ed.2d 349 (1964). ⁴

We conclude that where an instruction is submitted by a party, that same party cannot later object to it because he or she has already waived any objection and endorsed it as legally sound. Further, when a party submits more than one instruction on a single issue, it is reasonable to assume that one instruction represents that party's preferred position, while the others represent back up positions. Therefore, that party cannot complain when the court uses but one of the requested instructions.

INVITED ERROR AND MANIFEST INJUSTICE

Closely related to the rule just elaborated above, is the doctrine of invited error. This doctrine would also require the conclusion that a party cannot appeal a jury instruction that the same party requested. The doctrine of invited error "prohibits a party from setting up an error at trial and then complaining of it on appeal." Henderson, 114 Wash.2d 867, 792 P.2d 514, 516 (1990) (quoting State v. Pam, 101 Wash.2d 507, 680 P.2d 762, 764 (1984)). In Henderson, ...