State v. Vos
| Decision Date | 21 June 2007 |
| Docket Number | No. 20050613-CA.,20050613-CA. |
| Citation | 2007 UT App 215,164 P.3d 1258 |
| Parties | STATE of Utah, Plaintiff and Appellee, v. Isiah Bo'Cage VOS, Defendant and Appellant. |
| Court | Utah Court of Appeals |
John Pace, Salt Lake City, for Appellant.
Mark L. Shurtleff, atty. gen., and Laura B. Dupaix, asst. atty. gen., Salt Lake City, for Appellee.
Before GREENWOOD, Associate P.J., BILLINGS and THORNE, JJ.
¶ 1 Isiah Bo'Cage Vos appeals his conviction of murder, a first degree felony. See Utah Code Ann. § 76-5-203 (2003). We affirm.
¶ 2 On the afternoon of October 21, 2004, Jeffrey Maestas was shot and killed near the intersection of 700 North and Star Crest Drive in Salt Lake City. By early on the morning of October 22, police had identified Vos as the primary suspect in the shooting. That same day, Vos's family retained attorney John Bucher to represent Vos and informed police that Vos wished to surrender. Vos surrendered to police at Bucher's office that afternoon and was booked and placed into jail. Vos was not questioned or given Miranda warnings at that time.
¶ 3 At the time of Vos's surrender, the evidence against him that was known to the police consisted of a patchwork of witness statements, none of which alone identified Vos as the shooter. One of Vos's former coaches saw him walking along Star Crest Drive one block north of 700 North five to eight minutes before the shooting, but did not witness the shooting itself. One driver at the scene of the shooting heard several pops and observed two men running, one of whom had a pistol. Another driver witnessed a smaller man chasing a bigger man up a driveway. A third driver saw Maestas park his car, get out, and approach a pedestrian, who pulled out a gun and started firing when Maestas was about six feet away. She then saw the pedestrian jump into a teal Ford Explorer but could not get a license plate number. Police tracked down the driver of the teal Explorer, Anthony Ferguson, who identified Vos as the person who had gotten into his vehicle after the shooting. The Salt Lake Police Department's gang unit also apparently had information suggesting Vos's involvement in the shooting.
¶ 4 On October 27, five days after Vos's surrender, Bucher informed Detective Cordan Parks that Vos wanted to make a statement about the shooting. Bucher had previously spoken to Vos on at least one occasion about the case, and arranged a meeting at the jail so that Parks could interview Vos. Prior to the meeting, Bucher made several statements to Parks about the case, including statements that Vos was involved and that the weapon used had been destroyed. Bucher also informed Parks that Vos would be claiming imperfect self-defense.
¶ 5 When Bucher and Parks first met with Vos at the jail, Vos did not want to make a statement. Parks left the room to allow Bucher and Vos to confer privately. Bucher informed Vos that the police already had substantial evidence linking him to the shooting, including several witnesses who could identify Vos, and told Vos that it was in his best interests to give a statement. Parks returned and Bucher informed him that Vos was waiving his Miranda rights. Parks then took Vos's statement in Bucher's presence without giving Vos Miranda warnings.
¶ 6 Vos proceeded to admit that he had shot Maestas, although he claimed to have been acting in self-defense. Vos outlined a history of gang-related violence that Maestas had perpetrated against Vos and his family, including Maestas shooting at Vos's house and threatening to shoot Vos's mother and kill Vos. Vos claimed that, on the evening of the shooting, Vos was walking on the sidewalk when Maestas made a u-turn in his vehicle, pulled over, and threatened to kill Vos. According to Vos, Maestas then reached down to the floor of his car as if to grab something, jumped out of the car, and again threatened Vos. Vos drew a gun at this point and told Maestas to stop, but Maestas continued to advance and threaten to kill Vos. Vos opened fire and continued to shoot at Maestas until his gun was empty. Vos then related how he had fled the scene in Ferguson's vehicle.
¶ 7 Prior to trial, Vos retained new counsel and sought to suppress his statement to Parks. The grounds for the suppression motion were that the statement was not made voluntarily, that it was made in violation of Vos's Miranda rights, and that any waiver of those rights was the result of Bucher's ineffective assistance as counsel. The district court heard the testimony of Parks, Bucher, and Vos, and then denied the motion.
¶ 8 Vos went to trial utilizing a theory of imperfect self-defense and was convicted of murder by a jury. At trial, the State used various aspects of Vos's statement to Parks, and the existence of the statement effectively precluded Vos from presenting an identity defense. Vos appeals his conviction, arguing that the district court should have suppressed his statement to Parks.
¶ 9 Vos first argues that Bucher provided ineffective assistance of counsel resulting in Vos's statement to Parks about the shooting. To the extent that the district court addressed Bucher's alleged ineffective assistance of counsel below, we review the district court's factual findings for clear error and its legal conclusions for correctness. See Schultz v. State, 2006 UT App 105, ¶ 7, 132 P.3d 701 (), cert. denied, 150 P.3d 58 (Utah 2006); cf. State v. Hernandez, 2005 UT App 546, ¶ 13, 128 P.3d 556 . Ineffective assistance of counsel arguments raised for the first time on appeal are reviewed for correctness as a matter of law. See State v. Holbert, 2002 UT App 426, ¶ 26, 61 P.3d 291 .
¶ 10 Vos also argues that the district court erred in concluding that his statement to Parks was not obtained in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Although a district court's Miranda ruling also presents a mixed question of fact and law, we review Miranda rulings for correctness in the interest of uniformity in this important area of the law. See State v. Levin, 2006 UT 50, ¶ 46, 144 P.3d 1096.
¶ 11 Vos raises multiple arguments that Bucher's actions leading up to Vos's statement to Parks constituted ineffective assistance of counsel. Specifically, Vos argues that Bucher usurped Vos's right to decide the objectives of the representation; that Bucher unilaterally disclosed Vos's involvement in the shooting in violation of attorney-client confidentiality; that Bucher failed to conduct an adequate investigation into the strength of the State's case before insisting that Vos make a statement; and that there was no strategic or tactical justification for Bucher's insistence that Vos make a statement. Vos also argues that Bucher's actions resulted in both presumptive and actual prejudice to Vos's defense.
¶ 12 To demonstrate ineffective assistance of counsel under any of these theories, Vos must show "(1) that counsel's performance was deficient and (2) that the deficient performance was prejudicial." State v. Tiliaia, 2006 UT App 474, ¶ 12, 153 P.3d 757, cert denied, 2007 Utah LEXIS 88 (Utah Apr. 20, 2007); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to be deemed deficient, counsel's performance must fall "below an objective standard of reasonableness," State v. Holbert, 2002 UT App 426, ¶ 53, 61 P.3d 291, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at ¶ 54 (quotations and citation omitted). To establish prejudice, Vos must demonstrate "`a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Id. at ¶ 55 (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).
¶ 13 Here, we cannot say that Bucher's actions resulting in Vos's statement to Parks were objectively unreasonable. Contrary to Vos's assertions on appeal, his identity and involvement in the shooting were facts already known to the police with reasonable certainty at the time of Bucher's actions. Multiple witnesses had described seeing two people involved in an altercation, one of whom was the deceased victim, Maestas. One witness described Maestas's shooter getting into a teal Explorer, and Ferguson, the driver of the Explorer, identified Vos as the person who had flagged him down for a ride at the time and location of the shooting. Another witness, who knew Vos personally, had seen him walking near the site of the shooting minutes before the shooting occurred.
¶ 14 Under these circumstances, Bucher's decision to focus on establishing a potential self-defense claim to the exclusion of an identity defense was objectively reasonable. Not only was Vos's identity as the shooter already known to the police, but Bucher was aware of Maestas's prior threats and use of violence against Vos and his family. These facts lent credence to a self-defense theory. A reasonable attorney in Bucher's position would be justified in concluding that an identity defense was not viable and that Vos's best hope for a favorable result lay in establishing self-defense, perfect or imperfect. Bucher's conclusions to this effect, and his actions1 in pursuing a self-defense claim, can thus not be deemed to fall outside the "wide range of...
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