State v. Campos ( 2013 )

2013 UT App 213_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
REGINALD CAMPOS,
Defendant and Appellant.
Opinion
No. 20101042‐CA
Filed August 29, 2013
Third District, West Jordan Department
The Honorable Mark S. Kouris
No. 091401831
Herschel Bullen, Attorney for Appellant
John E. Swallow and Mark C. Field, Attorneys for
Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES WILLIAM A. THORNE JR. and CAROLYN B. MCHUGH
concurred.
VOROS, Judge:
¶1 Two men—one an unofficial neighborhood watch volunteer,
the other a certified public accountant—got out of their SUVs and
squared off near midnight in their Bluffdale neighborhood. Each
was armed with a loaded semi‐automatic pistol. One shot the
other. The victim is paralyzed below the chest. The shooter,
Reginald Campos, was convicted of attempted murder with injury,
a first degree felony, and aggravated assault, a third degree felony.1
1
See generally Utah Code Ann. §§ 76‐4‐101, ‐102(1)(c)(i)
(LexisNexis 2012) (attempt); id. § 76‐5‐103 (2008) (aggravated
assault); § 76‐5‐203(2)(a), (3)(a) (2012) (murder).
State v. Campos
¶2 Campos challenges his convictions, alleging a number of
errors in the trial and arguing that he was denied a fair trial
because he was deprived of his constitutional right to effective
assistance of counsel. We conclude that Campos’s trial counsel
performed deficiently in three instances. While each instance alone
might not be sufficiently prejudicial to require reversal in this case,
taken as a whole trial counsel’s deficient performance undermines
our confidence in the verdict on the attempted murder charge. We
therefore reverse the conviction for attempted murder. We affirm
the conviction for aggravated assault.2
BACKGROUND3
¶3 Around 11 p.m. on July 21, 2009, David Serbeck, a former
bounty hunter and Army sniper, was outside his house packing for
a camping trip when his neighbor stopped by to talk. Serbeck’s
neighbor, the local homeowners’ association president, showed
Serbeck several photographs he had obtained of suspects and cars
possibly involved in recent crimes in the neighborhood. Serbeck
thought he recognized some of the vehicles and people in the
photographs. The two men decided to drive around the
neighborhood, along with Serbeck’s nine‐year‐old daughter, on an
unofficial neighborhood watch patrol.
2
We also grant the State’s Motion to Strike Defendant’s
Pro Se Motion for Remand and Oral Arguments Pursuant to
Rule 23B.
3
“When reviewing a jury verdict, we examine the evi‐
dence and all reasonable inferences drawn therefrom in a light
most favorable to the verdict, and we recite the facts accord‐
ingly.” State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. “We present
conflicting evidence only when necessary to understand issues
raised on appeal.” Id.20101042‐CA 2 2013 UT App 213State v. Campos
¶4 As they were driving, Serbeck saw two sixteen‐year‐old girls
walking. He slowed his SUV and said out the window something
to the effect of, “Hey, what’s up?” or “Be careful going home.” The
girls did not respond, and Serbeck drove on.
¶5 One of the girls was Campos’s daughter. When she and her
friend arrived at the Campos house, they got into a car and drove
to pick up another friend at a nearby house. After picking up the
friend, they all returned to the Campos house, and on the way they
passed Serbeck’s SUV. Serbeck mistook the girls’ car for one of the
suspicious cars in the photographs. He made a U‐turn and began
following the car. The girls were “freaked out” and “a bit
traumatized” when they realized that the same individual who had
spoken to them earlier was now following them. One of the girls
called Campos to tell him they were being followed and to ask for
help. Campos got his handgun from the house and drove to meet
the girls, who by this time had lost Serbeck by turning out of the
neighborhood onto a major road.
¶6 After losing sight of the girls’ car, Serbeck and his neighbor
returned home. Soon, however, Serbeck saw the same car drive
down the street. Serbeck decided to go on patrol again. According
to Serbeck’s testimony, he went inside his house, grabbed his
handgun, inserted a loaded magazine, racked the gun, and
engaged the slide safety. Serbeck placed his gun under the center
console in his SUV, and Serbeck and his neighbor—but not
Serbeck’s daughter—set out to find the car. Serbeck’s neighbor did
not know that Serbeck had brought a gun.
¶7 Meanwhile, Campos arrived home with the girls. He sent his
daughter’s friends into the house and asked his daughter to explain
what had happened, though she was too “hysterical” to do so at
first. Campos had his daughter get into an SUV, and they went to
find the other SUV. As they were driving, Campos passed
Serbeck’s vehicle. When Campos’s daughter identified it as the
SUV that had followed her, Campos made a U‐turn, pulled in front
20101042‐CA 3 2013 UT App 213State v. Campos
of Serbeck, and abruptly stopped, forcing Serbeck to stop quickly
to avoid hitting Campos’s vehicle.
¶8 Serbeck’s and Campos’s accounts of what happened next
differed in slight but significant ways. Serbeck testified at trial that
Campos got out of his SUV pointing his gun at Serbeck and
Serbeck’s neighbor. Campos “raged,” pacing back and forth and
“screaming something about someone following his daughter.”
Serbeck got his gun and got out of his SUV, staying halfway behind
the open door. Serbeck asked Campos to calm down and asked
what was going on. Serbeck introduced himself as part of the
neighborhood watch and said he was with the homeowners’
association president. When Campos began to lower his voice and
his weapon, Serbeck told Campos he was going to put his gun
down. He crossed the gun in front of his chest as he moved it from
his right hand to his left, stepped out from behind the door, placed
the gun on the ground, and kicked it behind him. As Serbeck again
asked what was going on, he heard a girl inside Campos’s SUV
scream, “[D]on’t believe him[;] they are lying, they are lying.”
Campos said, “[H]ow stupid do you think I am?” As Serbeck was
standing back up, Campos shot him.
¶9 Campos related his account of the events to a police officer
later that evening. He told the officer that after stopping the SUV,
he retrieved his gun from a locked case and put it in his back
pocket. He got out of the SUV, keeping his hand on the gun. He
yelled to Serbeck and Serbeck’s neighbor something to the effect of,
“Why are you chasing my daughter?” He saw Serbeck get out of
his SUV holding a gun and stand halfway behind the open door.
Serbeck said something, but Campos could not remember what it
was. Campos heard Serbeck rack his gun and saw him start to raise
it. Campos pulled his own gun out of his pocket, racked it, and
fired at Serbeck. He then moved to the right to get a better view of
Serbeck and fired again. Campos recalled shooting his gun a total
of two or three times.
20101042‐CA 4 2013 UT App 213State v. Campos
¶10 Serbeck’s neighbor testified that Campos had his gun in
hand and pointed at the ground when Campos got out of the SUV.
When Serbeck got out of the SUV with his gun, Campos raised his
gun. Campos was angry and said something to the effect of,
“[W]hat the hell are you guys doing?” After Serbeck got out of the
SUV, his neighbor could not see him, but he heard Serbeck say,
“[H]old on a minute.” Immediately after this exchange, Serbeck’s
neighbor heard three shots. He never heard Serbeck rack his gun.
¶11 Campos’s daughter testified that she saw Campos retrieve
something from a box before getting out of the SUV, but she did
not see what it was. She did not see most of what followed because
she was sitting in the SUV facing away from Campos and Serbeck.
She heard Campos ask Serbeck and his neighbor what they were
doing following his daughter and her friends, why they were
“messing around with [his] daughter,” “what they were doing out
this late at night,” and “why they were wandering the streets.”
They “wouldn’t answer.” She testified that Campos did not yell;
rather, he was calm and “in control of himself.” She then heard two
or three shots.
¶12 One bullet struck Serbeck and he fell to the ground. The
bullet entered his chest near the shoulder, punctured a lung, and
severed the spinal cord on its way out, paralyzing Serbeck from the
chest down. When Serbeck realized how much he was bleeding, he
stuck his finger in the wound to stanch the flow. An expert witness
testified that the trajectory of the bullet was consistent with
Serbeck’s bending over or crouching, but he could not say whether
Serbeck was in fact doing so.
¶13 After Campos shot Serbeck, he pointed his gun at Serbeck’s
neighbor, who was still in the SUV, and told him to put his hands
up and not move. Campos got his phone and called 911 to request
an ambulance. He continued to point his gun at Serbeck and his
neighbor, yelling to Serbeck at one point, “[D]on’t be messing with
the gun!” Once Campos was sure Serbeck’s neighbor did not have
a gun, Campos let him get out of the SUV and help Serbeck. After
20101042‐CA 5 2013 UT App 213State v. Campos
Serbeck’s neighbor walked around the SUV to where Serbeck was,
Campos told the neighbor to kick Serbeck’s gun farther away,
which he did.
¶14 About the time Serbeck’s neighbor got out of the SUV, a
woman who had heard the commotion from a nearby house came
and asked Campos if she could approach Serbeck to help. As she
approached Serbeck, she used the bottom of her sandal to turn the
barrel of Serbeck’s gun away from Serbeck, his neighbor, and
herself. She testified that she later checked the bottom of her
sandals before entering her house and did not see any blood on
them. Although Campos still had his gun in his hand, the woman
testified that he was pointing it in the air and that he was fairly
calm and “level‐headed.” However, she heard a female in the
background screaming, “He is lying, he is lying.”
¶15 After the police and emergency medical personnel arrived,
Serbeck was flown to the hospital. But before he was taken, Serbeck
asked an officer to make sure that the safety on his gun was
engaged; he later testified that he did so because he had heard
Campos tell the 911 operator that Serbeck had racked his gun. The
officer confirmed that the slide safety was on. At trial, a gun expert
testified that an engaged slide safety would prevent someone from
racking the gun. The expert also testified, and demonstrated, that
the slide safety could be engaged by directly kicking the safety.
Investigators also found one bullet in the chamber of Serbeck’s gun
and one in the magazine, and there was some blood on the back of
the handle. Two shell casings from Campos’s gun were found.
¶16 At trial, Campos argued that he acted in self‐defense. He
asserted that he shot Serbeck only after he saw Serbeck with a gun
and heard him rack it. He argued that Serbeck’s safety engaged
when the gun was kicked. And he argued that the blood got on
Serbeck’s gun because Serbeck was holding it when he was shot,
and the State had provided no evidence that the blood got on the
gun when Serbeck’s neighbor kicked it. Campos further argued
20101042‐CA 6 2013 UT App 213State v. Campos
that it was reasonable under the circumstances to point his gun at
Serbeck’s neighbor until he could be sure that he was unarmed.
¶17 The jury rejected Campos’s self‐defense argument and
convicted Campos of attempted murder with injury for shooting
Serbeck and aggravated assault for holding Serbeck’s neighbor at
gunpoint.4 Campos was sentenced to consecutive terms of three
years to life for attempted murder with injury and an
indeterminate term not to exceed five years for aggravated assault.
Campos challenges the convictions on appeal.
ISSUES AND STANDARDS OF REVIEW
¶18 In challenging his conviction for attempted murder, Campos
asserts three claims of ineffective assistance by his trial counsel. He
contends that his trial counsel performed deficiently by (1) failing
to request a special mitigation jury instruction for extreme
emotional distress, (2) failing to object to a verdict form that
misplaced the burden of proof for imperfect self‐defense, and (3)
failing to object to several statements made by the prosecutor in
closing arguments. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” State
v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.5
4
The jury also convicted Campos of one count of aggra‐
vated assault against Serbeck, but the trial court later merged
this conviction with the attempted murder conviction.
5
Campos also asserts the imperfect self‐defense and
prosecutorial misconduct claims under the plain error doctrine.
See State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993) (setting
forth test for plain error). Given our resolution of this appeal
under Campos’s ineffective assistance claims, we need not
address his plain error arguments.
20101042‐CA 7 2013 UT App 213State v. Campos
¶19 Campos advances other challenges to his conviction for
attempted murder. Because we conclude that Campos is entitled to
a new trial on the basis of ineffective assistance of counsel, we do
not address his remaining claims other than to provide limited
guidance on remand.
¶20 Campos challenges his conviction for aggravated assault
first by arguing that the trial court improperly excluded expert
testimony relevant to the reasonableness of Campos’s actions. “The
trial court has wide discretion in determining the admissibility of
expert testimony, and such decisions are reviewed under an abuse
of discretion standard. Under this standard, we will not reverse
unless the decision exceeds the limits of reasonability.” State v.
Larsen, 865 P.2d 1355, 1361 (Utah 1993) (citations omitted); see also
State v. Maestas, 2012 UT 46, ¶ 122, 299 P.3d 892.
¶21 Campos also challenges the aggravated assault conviction
by arguing that he was entitled to a lesser included offense jury
instruction on threatening with a dangerous weapon. “[W]e review
a court’s ruling on a proposed jury instruction for correctness . . . .”
Maestas, 2012 UT 46, ¶ 148.
ANALYSIS
I. Ineffective Assistance of Counsel
¶22 Campos contends that he was denied a fair trial because he
received ineffective assistance of counsel when his trial counsel
failed to request a jury instruction on extreme emotional distress,
failed to object to the verdict form, and failed to object to several
instances of alleged prosecutorial misconduct.
¶23 To ensure a fair trial, the Sixth Amendment of the U.S.
Constitution guarantees the right to effective assistance of counsel.
Strickland v. Washington, 466 U.S. 668, 684–86 (1984). To succeed on
a claim of ineffective assistance of counsel, “the defendant must
show that counsel’s representation fell below an objective standard
20101042‐CA 8 2013 UT App 213State v. Campos
of reasonableness” considering all the circumstances. Id. at 687–88.
Furthermore, “the defendant must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” Id. at 689 (citation and internal
quotation marks omitted). Therefore, “we give trial counsel wide
latitude in making tactical decisions and will not question such
decisions unless there is no reasonable basis supporting them.”
State v. Crosby, 927 P.2d 638, 644 (Utah 1996).
¶24 In addition, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. Thus,
“[w]hen a defendant challenges a conviction, the question is
whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.” Id.
at 695.
A. Extreme Emotional Distress Instruction
¶25 Campos first contends that his trial counsel performed
deficiently by failing to request a special mitigation jury instruction
on extreme emotional distress.
¶26 Under the current statute, extreme emotional distress
operates as a special mitigating circumstance that must be proved
by a preponderance of the evidence. See Utah Code Ann.
§ 76‐5‐205.5 (LexisNexis 2012); State v. Drej, 2010 UT 35, ¶¶ 15,
19–21, 233 P.3d 476. “Special mitigation exists when the actor
causes the death of another or attempts to cause the death of
another . . . under the influence of extreme emotional distress for
which there is a reasonable explanation or excuse.” Utah Code
Ann. § 76‐5‐205.5(1)(b).
¶27 If the trier of fact finds that each element of attempted
murder has been established beyond a reasonable doubt “and also
20101042‐CA 9 2013 UT App 213State v. Campos
that the existence of special mitigation . . . is established by a
preponderance of the evidence,” “the defendant shall instead be
found guilty of attempted manslaughter.” Id. § 76‐5‐205.5(5)(a),
(5)(b)(iv). However, a jury’s determination on special mitigation
must be unanimous. See id. § 76‐5‐205.5(6). “If the jury is unable to
unanimously agree whether or not special mitigation has been
established, the result is a hung jury.” Id. § 76‐5‐205.5(6)(d).
¶28 Campos argues that his trial counsel’s failure to request a
special mitigation jury instruction for extreme emotional
distress—in addition to the instructions on self‐defense—was
deficient because extreme emotional distress is clearly a stronger
defense in this case than self‐defense. The State responds that
Campos’s trial counsel’s actions were reasonable because Campos
would not have been entitled to an instruction on extreme
emotional distress, and because arguing both self‐defense and
extreme emotional distress would have been inconsistent.
¶29 First, we note that Campos would have been entitled to an
instruction on extreme emotional distress. “Each party
is . . . entitled to have the jury instructed on the law applicable to its
theory of the case if there is any reasonable basis in the evidence to
justify it.” State v. Torres, 619 P.2d 694, 695 (Utah 1980). Thus, if “a
rational jury could find a factual basis in the evidence” to support
the theory, the trial court is “‘obligated to give the instruction.’”
State v. White, 2011 UT 21, ¶¶ 21–22, 251 P.3d 820 (quoting State v.
Low, 2008 UT 58, ¶ 25, 192 P.3d 867).
¶30 Our supreme court has explained that “a person acts under
the influence of extreme emotional distress when he is exposed to
extremely unusual and overwhelming stress that would cause the
average reasonable person under the same circumstances to
experience a loss of self‐control, and be overborne by intense
feelings, such as passion, anger, distress, grief, excessive agitation,
or other similar emotions.” Id. ¶ 26 (citation and internal quotation
20101042‐CA 10 2013 UT App 213State v. Campos
marks omitted).6 However, the statute excludes from the purview
of emotional distress “mental illness” and “distress that is
substantially caused by the defendant’s own conduct.” Utah Code
Ann. § 76‐5‐205.5(3). Thus, “an external triggering event is also
required.” White, 2011 UT 21, ¶ 32. “In many cases this triggering
event will naturally occur just before the criminal act; however, we
find no language in our precedent that requires the triggering event
be contemporaneous with the defendant’s loss of self‐control.” Id.¶31 For example, in State v. White, the supreme court reversed
our denial of an extreme emotional distress instruction. See 2011 UT
21, ¶ 38. There, the defendant claimed that she suffered extreme
emotional distress that grew over time due to the actions of her ex‐
husband. See id. ¶¶ 2–7. She confronted him at work about financial
matters, threatened to kill him, and drove away, and when she
returned later, “her emotions took over and she lost all self‐control”
and tried to run him over with her car. See id. The supreme court
held that such circumstances did not make the defense of extreme
emotional distress unavailable as a matter of law. Id. ¶ 33.
¶32 The State argues that Campos “substantially caused” his
own emotional distress when he retrieved his gun, drove with his
daughter to find Serbeck, forced Serbeck to stop by pulling in front
of him, and confronted Serbeck with his gun in hand. However,
this argument ignores the initial triggering event that led Campos
to take the actions described by the State: Campos’s teenage
daughter and her friends arrived at Campos’s house in a panic
after being followed late at night. By the time Campos confronted
Serbeck, Serbeck testified that Campos was “[en]raged,” “mad,”
and “screaming something about somebody following his
6
Although the supreme court was applying an earlier
version of the statute when it made this statement, we see noth‐
ing in the language of the amended statute that would suggest a
departure from this precedent defining extreme emotional
distress.
20101042‐CA 11 2013 UT App 213State v. Campos
daughter.”7 Based on this evidence, a rational jury might conclude
that Campos was under “extremely unusual and overwhelming
stress that would cause the average reasonable person under the
same circumstances to experience a loss of self‐control, and be
overborne by intense feelings, such as passion [and] anger.” See id.
¶ 26 (citation and internal quotation marks omitted). That Campos
could have called 911 rather than pursuing and shooting
Serbeck—in other words, that Campos acted in a way that arguably
exhibited “loss of self‐control” and his being “overborne by intense
feelings”—does not necessarily mean that Campos substantially
caused his own emotional distress. Although the jury may not have
ultimately concluded that Campos was acting “under the influence
of extreme emotional distress” or that the circumstances presented
“a reasonable explanation or excuse” for that emotional distress, see
Utah Code Ann. § 76‐5‐205.5(1)(b) (LexisNexis 2012), the evidence
provides some basis for such a conclusion and Campos would have
been entitled to a jury instruction on extreme emotional distress
had his counsel requested one.
¶33 The State argues, however, that failure to request such an
instruction does not constitute deficient performance because
doing so would have been inconsistent with Campos’s theory of
the case. The State argues that throughout the trial defense counsel
presented Campos as calm and in control in an effort to strengthen
its case that Campos acted reasonably for purposes of self‐defense.
The State thus argues that we should not second‐guess defense
counsel’s strategic choice to pursue the self‐defense theory to the
exclusion of the “inconsistent” emotional distress theory.
¶34 “[A]ny election between inconsistent defenses [is] a
legitimate exercise of trial strategy rather than ineffective assistance
of counsel.” State v. Pascual, 804 P.2d 553, 556 (Utah Ct. App. 1991);
7
The State emphasized this evidence to the jury, referring
to Campos’s “rage” over a dozen times in closing arguments and
asking, at one point, “Who in their right mind would do such a
thing unless you are just blinded by rage?”
20101042‐CA 12 2013 UT App 213State v. Campos
see also State v. Perry, 899 P.2d 1232, 1241 (Utah Ct. App. 1995). For
example, trial counsel cannot be deemed ineffective for failing to
request a jury instruction on diminished capacity when the
defendant has denied all involvement in the crime. See Jackson v.
Shanks, 143 F.3d 1313, 1320 (10th Cir. 1998); see also State v. Hall, 946
P.2d 712, 723–24 (Utah Ct. App. 1997) (rejecting ineffective
assistance claim when defense counsel did not request lesser
included offense instructions, because “defense counsel’s
request . . . would have been inconsistent with his assertion that
defendant never touched [the victim]”).
¶35 Here, defense counsel might have argued both self‐defense
and extreme emotional distress. Indeed, the two defenses are
sometimes asserted together. See, e.g., State v. Spillers, 2007 UT 13,
¶¶ 13–23, 152 P.3d 315 (concluding that a defendant was entitled
to jury instructions on self‐defense, imperfect self‐defense, and
extreme emotional distress). Accordingly, because Campos’s
theory of the case supported a claim of self‐defense, and the State’s
theory of the case supported a claim of extreme emotional distress,
defense counsel might well have requested an instruction for
extreme emotional distress in addition to self‐defense. Campos’s
trial counsel could have argued to the jury that if it believed
Campos’s version of events, it must acquit him, but if it believed
the State’s version of events, it must convict him only of attempted
manslaughter, not attempted murder.
¶36 However, given the “heavy measure of deference” we apply
to counsel’s judgments, Strickland v. Washington, 466 U.S. 668, 691
(1984), we cannot say that Campos’s trial counsel acted
unreasonably in pursuing a different trial strategy. If Campos had
prevailed on self‐defense, he would have been entitled to acquittal.
See Utah Code Ann. § 76‐2‐402(1) (LexisNexis 2008). Extreme
emotional distress would have provided the jury with a middle
ground, conviction for attempted manslaughter. See id.§ 76‐5‐205.5(5)(b)(iv) (2012). But Campos had already provided the
jury with a middle ground—imperfect self‐defense—that was
consistent with his version of events. See id. § 76‐5‐203(4)(a), (c)
20101042‐CA 13 2013 UT App 213State v. Campos
(2012) (providing that imperfect self‐defense reduces attempted
murder charge to attempted manslaughter). Trial counsel is given
a wide latitude of discretion in making strategic decisions at trial,
Strickland, 466 U.S. at 689; State v. Tennyson, 850 P.2d 461, 465, 468
(Utah Ct. App. 1993), and we cannot say that Campos’s trial
counsel acted unreasonably in this case by pursuing one middle‐
ground defense and choosing to forego another that was arguably
inconsistent with Campos’s version of events. See Ross v. State, 2012
UT 93, ¶¶ 31, 48, 293 P.3d 345 (suggesting that had trial counsel
pursued claims of actual innocence, mistaken identity, or
self‐defense, the decision to forego a defense of extreme emotional
distress would have been a legitimate trial strategy because the
other defenses “would have undermined or conflicted with the
extreme emotional distress defense”).
B. Verdict Form
¶37 Campos next challenges his trial counsel’s failure to object
to the verdict form’s description of imperfect self‐defense.
Imperfect self‐defense is an affirmative defense to a charge of
attempted murder. Utah Code Ann. § 76‐5‐203(4)(a); State v. Low,
2008 UT 58, ¶¶ 22–24, 192 P.3d 867. This affirmative defense is
available if the defendant “attempted to cause the death of another
under a reasonable belief that the circumstances provided a legal
justification or excuse for the conduct although the conduct was not
legally justifiable or excusable under the existing circumstances.”
Utah Code Ann. § 76‐5‐203(4)(a).
¶38 The prosecution is required to “disprove the existence of
affirmative defenses beyond a reasonable doubt once the defendant
has produced some evidence of the defense.” State v. Drej, 2010 UT
35, ¶ 15, 233 P.3d 476 (citation and internal quotation marks
omitted); see also Utah Code Ann. §§ 76‐1‐501, ‐502, ‐504
(LexisNexis 2012). Therefore, once a defendant has produced some
evidence of imperfect self‐defense, the prosecution is required to
disprove imperfect self‐defense beyond a reasonable doubt. If the
prosecution does not meet this burden, the charge of attempted
20101042‐CA 14 2013 UT App 213State v. Campos
murder is reduced to attempted manslaughter. See Utah Code Ann.
§ 76‐5‐203(4)(c).
¶39 In the present case, the jury was given a verdict form for the
charge of attempted murder with injury. The form read as follows:
We, the jurors in the above case, unanimously
find the defendant, Reginald Campos:
_____ Guilty beyond a reasonable doubt of
Attempted Murder with Injury;
_____ Not guilty of Attempted Murder with
Injury.
ONLY if you find the Defendant, Reginald
Campos, guilty of Attempted Murder with Injury,
then answer the following:
_____ We find, beyond a reasonable doubt, that
the defense of Imperfect Self Defense
applies in this case;
_____ We find, beyond a reasonable doubt,
that the defense of Imperfect Self
Defense does not apply in this case.
(Emphasis added.) Campos argues that by asking the jury whether
it found beyond a reasonable doubt that the affirmative defense
applied, the verdict form effectively shifted the burden of proof
from the State to Campos.
¶40 The State concedes only that the verdict form contained
“less‐than‐clear language.” The State suggests that the form was
not erroneous, because it did not state or imply that the defendant
bore the burden to prove that imperfect self‐defense applied. We
disagree.
20101042‐CA 15 2013 UT App 213State v. Campos
¶41 The fundamental problem with the verdict form used in this
case is that it requires an affirmative defense to be established
beyond a reasonable doubt. This is contrary to Utah law. A
defendant need only produce enough evidence to raise a
reasonable basis for the affirmative defense. See State v. Sellers, 2011
UT App 38, ¶ 16, 248 P.3d 70. “Once that initial showing is made,
the burden shifts to the state to prove to the jury, beyond a
reasonable doubt, that the defense lacks merit.” Id. In other words,
once a defendant—or even the prosecution for that matter—has
produced enough evidence to warrant the giving of an instruction
on an affirmative defense, the defendant is entitled to acquittal or,
as in the case of imperfect self‐defense, reduction of the charge
unless the prosecution carries its burden of disproving the defense
beyond a reasonable doubt. See State v. Knoll, 712 P.2d 211, 214–15
(Utah 1985); Sellers, 2011 UT App 38, ¶¶ 15, 17; see also Utah Code
Ann. § 76‐5‐203(4)(c). Thus, a jury may reduce an attempted
murder charge to attempted manslaughter “even though the
evidence of [imperfect] self‐defense fell ‘far short of establishing
the [defense] by a preponderance of the evidence upon the
subject.’” See Knoll, 712 P.2d at 214 (quoting State v. Vacos, 120 P.
497, 502 (Utah 1911)).
¶42 Because “the burden of proof required for affirmative
defenses is counter‐intuitive,” State v. Garcia, 2001 UT App 19, ¶ 16,
18 P.3d 1123, the prosecution’s responsibility “should [be] made
plain to the jury,” State v. Torres, 619 P.2d 694, 695 (Utah 1980).
“When the defendant has reached the threshold to merit
self‐defense instructions, those instructions must clearly
communicate to the jury what the burden of proof is and who
carries the burden.” Garcia, 2001 UT App 19, ¶ 16 (emphasis
added); see also State v. Hansen, 734 P.2d 421, 428–29 (Utah 1986)
(plurality opinion) (stating that “[t]he proper course would be for
the court to explicitly state that the defendant has no particular
burden of proof” regarding an affirmative defense because even
when a jury instruction “does not expressly shift the burden of
proof to the defendant,” it “can be misleading and may well raise
20101042‐CA 16 2013 UT App 213State v. Campos
the inference that the burden is on the defendant”). “[F]ailure to
adequately instruct the jury ‘concerning the burden of proof as to
self‐defense,’ is reversible error and requires a new trial.” Garcia,
2001 UT App 19, ¶ 18 (quoting Torres, 619 P.2d at 696). The duty to
properly instruct the jury applies to the verdict form. See Hart v.
Salt Lake County Comm’n, 945 P.2d 125, 136 (Utah Ct. App. 1997).
¶43 Here, sufficient evidence was presented to warrant a jury
instruction on imperfect self‐defense. The judge gave a jury
instruction on imperfect self‐defense, and the instruction properly
described the burden of proof. However, the verdict form directly
contradicted that instruction by asking the jury to find either that
the affirmative defense had been disproved beyond a reasonable
doubt, or that it had been proved beyond a reasonable doubt. This was
error.
¶44 Campos’s trial counsel did not object to the verdict form,
and in fact proposed a similarly flawed form—as did the
prosecution. Campos therefore argues that he was deprived of his
constitutional right to effective assistance of counsel. To show that
his trial counsel’s assistance “fell below an objective standard of
reasonableness,” Campos “must overcome the presumption that,
under the circumstances, the challenged action might be
considered sound trial strategy.” Strickland v. Washington, 466 U.S.
668, 687–89 (1984) (citation and internal quotation marks omitted).
¶45 As stated above, the verdict form was fundamentally
flawed. Once it had been established that an imperfect self‐defense
instruction was warranted, “[i]t was . . . [Campos’s] trial counsel’s
responsibility to ensure that it be made plain to the jury that
[Campos] did not bear any further burden of proof on the matter
and that, rather, the State alone had the responsibility to disprove
his defense beyond a reasonable doubt.” See Sellers, 2011 UT App
38, ¶ 17 (citation and internal quotation marks omitted). Campos’s
trial counsel thus had a duty to ensure that the jury was clearly and
properly instructed on the burden of proof relevant to imperfect
self‐defense. The State has not argued that failure to fulfill that
duty may be considered sound trial strategy, and we do not see
20101042‐CA 17 2013 UT App 213State v. Campos
how it could be. See State v. Moritzsky, 771 P.2d 688, 690, 692 (Utah
Ct. App. 1989) (rejecting state’s claim that defense counsel’s request
of an erroneous jury instruction on an affirmative defense could be
justified as a tactical decision, given “[t]he lack of any conceivable
tactical basis” for defense counsel’s actions). Therefore, Campos’s
trial counsel’s failure to object to the verdict form fell below an
objective standard of reasonableness. See Sellers, 2011 UT App 38,
¶ 17; Moritzsky, 771 P.2d at 692.
¶46 To demonstrate that he is entitled to relief on appeal,
Campos must show not only that his trial counsel performed
deficiently, but also that he was prejudiced by his trial counsel’s
deficient performance. See Strickland, 466 U.S. at 694. We will
address the prejudice relevant to the verdict form in conjunction
with the next allegation: prosecutorial misconduct.
C. Prosecutorial Misconduct
¶47 Campos challenges his trial counsel’s failure to object to
several statements made by the prosecutor in closing arguments.
While most of the statements Campos challenges do not rise to the
level of prosecutorial misconduct, two statements do.
1. Unfairly appealing to the sympathies and passions of the
jury
¶48 The prosecutor began his closing remarks by stating that this
case was about “civilized society,” “[s]ociety versus the man who
takes the law into his own hands. It’s society versus the self‐
appointed accuser and self‐appointed judge.” He returned to this
theme in his final words to the jury:
[O]ur whole system of law is based on the concept of
justice. Which simply means when you commit a
crime like this, when you gun down your fellow
neighbor in the most tragic of ways, stealing from
him his ability to run, his ability to bike, his ability to
20101042‐CA 18 2013 UT App 213State v. Campos
walk his daughter down the aisle, when you do
something like that on the streets of our community
then you should be held accountable. Hold Mr.
Campos accountable for his actions and to do that,
find him guilty on all counts.
¶49 Campos argues that these statements were inflammatory
and inappropriately appealed to passion and prejudice. He argues
that the statements prompted the jury to put themselves in the
shoes of the victim and to consider matters outside the evidence.
The State responds that the prosecutor was entitled to make a plea
that justice be done and that Campos be held accountable for his
actions: “[T]he prosecutor’s argument legitimately [implied] that
Defendant’s conduct was that of a vigilante and that society,
represented by the jury, should hold responsible a person who
unlawfully takes matters into his own hands and harms another
person in the process.” We agree with Campos.
¶50 To determine whether a prosecutor’s remarks are “so
objectionable as to merit a reversal,” we must determine whether
the remarks “call to the attention of the jurors matters which they
would not be justified in considering in determining their verdict.”
State v. Valdez, 513 P.2d 422, 426 (Utah 1973); accord State v. Todd,
2007 UT App 349, ¶¶ 15–16, 173 P.3d 170. “Counsel for both sides
have considerable latitude in their arguments to the jury . . . .”
Valdez, 513 P.2d at 426. However, a prosecutor “exceed[s] the
bounds of propriety” when he or she “unfairly appeals to the
sympathies,” “passions and prejudices of the jury.” Todd, 2007 UT
App 349, ¶¶ 19–20 (citations and internal quotation marks
omitted). “[T]he determination of guilt must not be the product of
fear or vengeance but rather intellectually compelled after a
disinterested, impartial and fair assessment of the testimony that
has been presented.” Id. ¶ 21 (citation and internal quotation marks
omitted). Such arguments are inappropriate because they “divert
the jury from its duty to decide the case on the evidence.” Id. ¶ 18
(citation and internal quotation marks omitted).
20101042‐CA 19 2013 UT App 213State v. Campos
¶51 Applying these standards, our courts have held that “a
prosecutor is prohibited from asking jurors to put themselves in the
victim’s place,” see id. ¶ 19, or suggesting “that the jury has a duty
to protect the alleged victim—to become her partisan,” see State v.
Wright, 2013 UT App 142, ¶ 41. Furthermore, “reference to the
jury’s societal obligation” is inappropriate when it suggests that the
jury base its decision on the impact of the verdict on society and the
criminal justice system rather than the facts of the case. See State v.
Dunn, 850 P.2d 1201, 1224 (Utah 1993); State v. Smith, 700 P.2d 1106,
1112 (Utah 1985).
¶52 Here, the prosecutor’s comments called attention to matters
the jury should not have considered in reaching its verdict. We are
most troubled by the prosecutor’s reference to Campos’s “stealing
from [Serbeck] his ability to run, his ability to bike, his ability to
walk his daughter down the aisle.” The statement was a direct
appeal to the passions of the jury. It suggested to the jury that it
should find Campos guilty out of vengeance or sympathy for the
victim rather than based on what the facts and the law required.
¶53 Taken as a whole, the prosecutor’s statements in the present
case constituted prosecutorial misconduct. The prosecutor
appealed to the passions of the jury and the jury’s duty to society
to argue that Campos should be found guilty because of the tragic
consequences suffered by Serbeck. The jury’s guilty verdict must
be based on an impartial determination that the State proved each
element of the charged crimes beyond a reasonable doubt, see Todd,
2007 UT App 349, ¶ 21, and disproved each affirmative defense
beyond a reasonable doubt, see State v. Drej, 2010 UT 35, ¶ 15, 233
P.3d 476. It must not be based on a desire to punish the defendant
because of the victim’s tragic loss of “his ability to run, his ability
to bike, his ability to walk his daughter down the aisle.”
2. Personal attack on defense counsel
¶54 Campos also challenges several statements where the
prosecutor compared the defense’s theory of the case to a red
20101042‐CA 20 2013 UT App 213State v. Campos
herring and suggested that defense counsel was being deceitful.
The State responds that the prosecutor’s statements “‘were not
directed at defense counsel personally, but rather were comments
on the defense theories.’” (Quoting State v. Norton, 254 P.3d 77, 90
(Idaho Ct. App. 2011) (holding that a prosecutor’s description of
some of defense counsel’s arguments as red herrings and smoke
and mirrors was not inappropriate).) We agree with Campos that
the statements in this case were inappropriate.
¶55 In closing arguments, the prosecutor began his rebuttal by
discussing at length the idiom of a red herring as “a technique to
confuse or distract.” In applying the idiom to this case, the
prosecutor stated, “And is there any relationship with a red herring
and the defense in this case? They would have you believe an
almost unbelievable story. Why? Simply to confuse and
distract. . . . Why would they do that? Just a red herring. A ploy to
confuse and distract.”
¶56 As noted above, the basic test for prosecutorial misconduct
is whether the statements “call to the attention of the jurors matters
which they would not be justified in considering in determining
their verdict.” State v. Valdez, 513 P.2d 422, 426 (Utah 1973).
“Accordingly, ‘[t]he prosecutor should refrain from argument
which would divert the jury from its duty to decide the case on the
evidence.’” State v. Todd, 2007 UT App 349, ¶ 18, 173 P.3d 170(alteration in original) (quoting ABA Standards for Criminal
Justice: Prosecution Function and Defense Function 3‐5.8(d) (3d ed.
1993)). A prosecutor diverts the jury from its duty to decide the
case on the evidence when he is “permitted to make unfounded
and inflammatory attacks on the opposing advocate.” United States
v. Young, 470 U.S. 1, 9 (1985). Thus, remarks intended to “disparage
the defense or otherwise impugn the forthrightness of the defense
strategy” constitute misconduct. See State v. Cummins, 839 P.2d 848,
854 (Utah Ct. App. 1992) (citation and internal quotation marks
omitted); see also Young, 470 U.S. at 9 (“‘A personal attack by the
prosecutor on defense counsel is improper.’” (quoting ABA
Standards for Criminal Justice 4‐7.8 (2d ed. 1980))). However,
20101042‐CA 21 2013 UT App 213State v. Campos
referring to defense counsel’s theory as a red herring would not be
inappropriate so long as the reference could be classified as a
comment on the strength of “the evidence and the inferences and
deductions arising therefrom,” see State v. Tillman, 750 P.2d 546, 560
(Utah 1987); State v. Parsons, 781 P.2d 1275, 1284 (Utah 1989).
¶57 The prosecutor’s comments here crossed the line from
permissible argument of the evidence to an impermissible attack on
defense counsel’s character. The prosecutor argued not only that
the claim of self‐defense was a distraction, but also that it was a
technique or ploy to confuse and distract the jury. That is, the
prosecutor argued that defense counsel intended to mislead the jury.
Arguing that the evidence does not support the defense theory and
that the theory is thus a distraction from the ultimate issue is
fundamentally different from arguing that defense counsel is
intentionally trying to distract and mislead the jury. Cf. State v.
Harmon, 956 P.2d 262, 275–77 (Utah 1998) (Russon, J., with one
justice concurring and three justices concurring in the result)
(suggesting that impugning defense counsel’s character and
wrongly accusing defense counsel of misleading witnesses
constitute prosecutorial misconduct).
3. Deficient performance
¶58 Campos argues that his trial counsel’s failure to alert the
trial court to both instances of prosecutorial misconduct “fell below
an objective standard of reasonableness” and thus constituted
deficient performance. See Strickland v. Washington, 466 U.S. 668,
687–88 (1984). We agree. The inappropriate and unchecked appeal
to the sympathy of the jury created a “risk that jurors [would] feel
obligated to seek revenge for the victim.” See Todd, 2007 UT App
349, ¶ 21. The suggestions that defense counsel was intentionally
misleading the jury exacerbated “the possibility that the jury
[would] give special weight to the prosecutor’s arguments.” Id.
¶ 17 (citation and internal quotation marks omitted). Such
misconduct thus merited action on the part of defense counsel.
20101042‐CA 22 2013 UT App 213State v. Campos
¶59 Furthermore, the two instances of prosecutorial misconduct
book‐ended the prosecutor’s rebuttal argument, which opened
with the red herring reference and closed with the appeal to the
jury’s sympathy for Serbeck. Campos’s trial counsel thus did not
have an opportunity to counter the statements through argument
to the jury. We acknowledge that “interruptions of arguments,
either by an opposing counsel or the presiding judge, are matters
to be approached cautiously.” Young, 470 U.S. at 13. However, in
this case, “[a]t the very least, a bench conference might have been
convened out of the hearing of the jury . . . and an appropriate
instruction given.” See id. at 13–14. Defense counsel’s failure to
request such a remedy or otherwise object constituted deficient
performance.
¶60 Campos must also establish that his counsel’s failure to at
least request a curative instruction prejudiced his case. While these
two instances of unchallenged prosecutorial misconduct may not
be sufficiently prejudicial on their own to require reversal, they
must also be viewed in the context of the improper verdict form.
We thus turn to the issue of cumulative prejudice.
D. Cumulative Prejudice
¶61 Each of the three instances of deficient performance
identified above requires a showing of prejudice to merit reversal.
See Strickland, 466 U.S. at 687; State v. Dunn, 850 P.2d 1201, 1229
(Utah 1993); State v. Troy, 688 P.2d 483, 486 (Utah 1984). Under the
doctrine of cumulative prejudice, we will reverse “if the cumulative
effect of the several errors undermines our confidence . . . that a fair
trial was had.” Dunn, 850 P.2d at 1224 (omission in original)
(citation and internal quotation marks omitted). Campos argues
that taken together, the cumulative effect of his trial counsel’s
lapses was sufficiently prejudicial to warrant reversal. We agree.
¶62 The State argues that the error on the verdict form could not
be prejudicial because the prosecution and defense each informed
the jury in closing arguments that the State bore the burden of
20101042‐CA 23 2013 UT App 213State v. Campos
disproving self‐defense beyond a reasonable doubt. However, we
do not agree that these statements rendered the error harmless. The
jury was expressly instructed to ignore anything in counsel’s
closing arguments that conflicted with the jury instructions: “If
they say anything about the law that conflicts with these
instructions, you are to rely on these instructions.” “In the absence
of any circumstances suggesting otherwise, courts presume that the
jury follows such instructions.” State v. Wright, 2013 UT App 142,
¶ 42 (citing State v. Menzies, 889 P.2d 393, 401 (Utah 1994)). “A
special verdict form is a jury instruction . . . .” Hart v. Salt Lake
County Comm’n, 945 P.2d 125, 136 (Utah Ct. App. 1997). Therefore,
counsel’s closing arguments did not cure the error in the verdict
form.
¶63 The State also argues that the error on the verdict form could
not be prejudicial because several other instructions correctly
informed the jury of the burden of proof. Most of the instructions
cited by the State simply state that the prosecution bears the
burden of proof or that guilt must be established beyond a
reasonable doubt. The instruction most relevant to the issue of
prejudice is the instruction on imperfect self‐defense, which clearly
and correctly stated that a reduction of the charge to attempted
manslaughter is required if the State fails to meet its burden:
The defendant is not required to prove that the
defense applies. Rather, the State must prove beyond
a reasonable doubt that the defense does not apply.
The State has the burden of proof at all times. If the
State has not carried this burden, the defendant may
only be convicted of attempted manslaughter.
¶64 The State is correct that, when reviewing an alleged error in
the jury instructions, “we look at the jury instructions in their
entirety.” State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892 (citation
and internal quotation marks omitted). “[I]f taken as a whole they
fairly instruct the jury on the law applicable to the case, the fact
that one of the instructions, standing alone, is not as accurate as it
20101042‐CA 24 2013 UT App 213State v. Campos
might have been is not reversible error.” State v. Lucero, 866 P.2d 1,
3 (Utah Ct. App. 1993); see also Maestas, 2012 UT 46, ¶ 148.
However, “where instructions are in irreconcilable conflict, or so
conflicting as to confuse or mislead the jury, the rule requiring
instructions to be read together has no application.” State v. Green,
6 P.2d 177, 183 (Utah 1931) (citation and internal quotation marks
omitted); accord State v. Hendricks, 258 P.2d 452, 453 (Utah 1953)
(per curiam). Thus, given the direct conflict between the imperfect
self‐defense instruction and the verdict form in this case, we cannot
say that the jury was fairly instructed on the applicable law, even
in light of the numerous more general statements in the
instructions about burdens of proof. As noted above, the
counterintuitive burden allocation for affirmative defenses requires
the trial court to clearly communicate the law to the jury on this
point. See State v. Garcia, 2001 UT App 19, ¶ 16, 18 P.3d 1123.
¶65 Conflict between jury instructions and a verdict form may
be deemed harmless in some circumstances. See Parsons v. Barnes,
871 P.2d 516, 529–30 (Utah 1994). But when “it cannot be told
which instruction was followed by the jury, or what influence the
erroneous instruction had on their deliberations,” “the giving of
inconsistent instructions is error and sufficient ground for a
reversal of the judgment.” Green, 6 P.2d at 183–84 (citation and
internal quotation marks omitted).
¶66 In the context of this case, we do not believe the error was
harmless. Although the verdict form correctly speaks in terms of
the jury’s finding “beyond a reasonable doubt, that the defense of
Imperfect Self Defense does not apply in this case,” the jury’s other
option on this question was to find “beyond a reasonable doubt, that
the defense of Imperfect Self Defense applies in this case.”
(Emphasis added.) The jury’s level of certainty may well have been
influenced by a belief that to reach the opposite conclusion, they
had to be convinced beyond a reasonable doubt. The likelihood
that the jury was actually misguided and would have reached a
different result with a proper verdict form is increased when this
20101042‐CA 25 2013 UT App 213State v. Campos
error is considered in conjunction with the prosecutorial
misconduct.
¶67 In determining whether a prosecutor’s inappropriate
statements prejudiced the defendant, we consider whether, “under
the circumstances of the particular case,” the jury was “probably
influenced by those remarks,” State v. Valdez, 513 P.2d 422, 426
(Utah 1973), “such that there is a reasonable likelihood that in its
absence, there would have been a more favorable result for the
defendant,” State v. Tillman, 750 P.2d 546, 555 (Utah 1987). In
determining whether the jury was probably influenced by the
inappropriate comments, we consider the strength of the evidence
supporting a defendant’s guilt and the strength of the conflicting
evidence:
If proof of defendant’s guilt is strong, the challenged
conduct or remark will not be presumed prejudicial.
Likewise, in a case with less compelling proof, this
Court will more closely scrutinize the conduct. If the
conclusion of the jurors is based on their weighing
conflicting evidence or evidence susceptible of
differing interpretations, there is a greater likelihood
that they will be improperly influenced through
remarks of counsel.
State v. Troy, 688 P.2d 483, 486 (Utah 1984) (citation and internal
quotation marks omitted). Our supreme court explained the
rationale for such an approach by noting that in cases where the
jury had to weigh conflicting evidence or evidence susceptible of
differing interpretations, “the jurors may be searching for guidance
in weighing and interpreting the evidence. They may be especially
susceptible to influence, and a small degree of influence may be
sufficient to affect the verdict.” Id.¶68 At trial, Campos did not contest the fact that he shot
Serbeck. Rather, he argued that he acted in self‐defense. One
version of events supported by the evidence is that after Campos
20101042‐CA 26 2013 UT App 213State v. Campos
stopped Serbeck, Campos got out of the SUV with his gun in his
back pocket. He drew his gun when he heard Serbeck rack his own
weapon and saw Serbeck starting to raise it. Serbeck dropped his
gun when Campos shot him, and the safety engaged when
Serbeck’s neighbor kicked the gun out of the way.
¶69 Another version of events supported by the evidence—and
apparently accepted by the jury—is that Serbeck racked his gun at
home and put the safety on before putting the gun in his SUV.
When Campos stopped Serbeck, Campos got out of the SUV with
his gun drawn, and Serbeck followed suit. Soon, however, Serbeck
put his gun down on the ground, and Campos shot him as he was
rising up.
¶70 The State’s medical expert testified that Serbeck’s wounds
were consistent with his being shot while bent over or crouching.
The expert acknowledged, however, that he could not say whether
Serbeck was in fact crouching. Other circumstantial evidence
presented at trial also could be read to support either version of
events: the bullet in the chamber of Serbeck’s gun, the positioning
of the gun on the ground, the engaged safety mechanism, and the
blood on the gun.
¶71 In other words, “the conclusion of the jurors is based on
their weighing conflicting evidence or evidence susceptible of
differing interpretations.” Troy, 688 P.2d at 486. Such situations
involve “a greater likelihood that [the jury] will be improperly
influenced through remarks of counsel.” Id. We believe the
likelihood is even greater here in light of the conflicting
instructions to the jury on the issue of imperfect self‐defense. To
reduce the charge to attempted manslaughter, the verdict form
required the jury to find beyond a reasonable doubt that Campos
had a reasonable belief that he was legally justified in shooting
Serbeck. However, the jury was required by law to reduce the
charge unless it found that the State had proved beyond a
reasonable doubt that Campos did not have such a belief. See supra
¶¶ 38, 41–42. Given the conflicting evidence that the jury had to
20101042‐CA 27 2013 UT App 213State v. Campos
weigh and the erroneous statement of the burden of proof, we
believe it is likely that the jury was improperly influenced by the
prosecution’s appeal to their sympathies and the accusations that
defense counsel was intentionally trying to mislead them.
¶72 Viewing the cumulative effect of trial counsel’s errors that
we have identified, our confidence in the verdict for the attempted
murder charge is undermined. We therefore reverse the conviction
for attempted murder.8
II. Expert Testimony Relevant to the Aggravated Assault Charge
¶73 Campos challenges his aggravated assault conviction by
contending that the trial court abused its discretion when it
excluded expert testimony relevant to self‐defense.
¶74 The State moved to exclude Campos’s expert. The expert
intended to testify that if a police officer were in Campos’s
situation, having shot one individual and facing a second
individual who may or may not be armed, standard police safety
training would teach the officer to hold his gun on the second
individual until the scene was secure. Campos intended to offer
this evidence in support of his argument that he acted in self‐
defense, and that his actions were reasonable, when he pointed his
gun at Serbeck’s neighbor. The trial court granted the State’s
8
Our ruling is limited to the conviction for attempted
murder. Imperfect self‐defense is available only as a defense to a
charge of murder or attempted murder. See Utah Code Ann.
§ 76‐5‐203(4)(a) (LexisNexis 2012). Although the prosecutorial
misconduct we have identified could possibly be construed
broadly to relate to the verdict on the aggravated assault di‐
rected toward Serbeck’s neighbor, the prosecutorial misconduct
is not sufficiently prejudicial in this case to warrant reversal
without the added deficient performance related to the verdict
form for the attempted murder charge.
20101042‐CA 28 2013 UT App 213State v. Campos
motion on several grounds, including that the expert testimony
would not be helpful to the jury.
¶75 Rule 702 of the Utah Rules of Evidence allows for the
admission of expert testimony “if the expert’s scientific, technical,
or other specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in issue.” Utah R.
Evid. 702.9 Thus, “[u]nder rule 702, the question that must be posed
prior to the admission of any expert evidence is whether, on
balance, the evidence will be helpful to the finder of fact.” State v.
Larsen, 865 P.2d 1355, 1361 (Utah 1993) (citation and internal
quotation marks omitted); see also State v. Maestas, 2012 UT 46,
¶ 156, 299 P.3d 892. “Expert testimony is helpful when the subject
is not within ‘the knowledge or experience of the average
individual.’” Balderas v. Starks, 2006 UT App 218, ¶ 27, 138 P.3d 75(quoting Larsen, 865 P.2d at 1361). However, the issue need not be
“so erudite or arcane that the jurors could not possibly understand
it without the aid of expert testimony.” Larsen, 865 P.2d at 1361.
Furthermore, “‘[t]his “helpfulness standard” also implicates Rule
403 considerations, since if the evidence is confusing or unfairly
prejudicial it will hinder rather than aid jury decision making.’”
Campbell v. State Farm Mut. Auto. Ins. Co., 2001 UT 89, ¶ 86, 65 P.3d
1134 (quoting Edward L. Kimball & Ronald N. Boyce, Utah Evidence
Law 7–9 (1996)), rev’d on other grounds, 538 U.S. 408 (2003); see also
id. (noting that because “‘Rule 403 is not being applied directly, . . .
the question is “helpfulness,” not whether the probative value is
greatly outweighed by confusion or prejudice’” (quoting Kimball
& Boyce, Utah Evidence Law 7–9)); State v. Rimmasch, 775 P.2d 388,
398 n.8 (Utah 1989).
¶76 To succeed on a self‐defense claim, Campos would have to
establish that he “reasonably believe[d] that force [was] necessary
9
The Utah Rules of Evidence were amended in 2011.
Because the changes were stylistic only, throughout this opinion
we cite the current version of the rules for convenience. See Utah
R. Evid. 702, 2011 advisory committee note.
20101042‐CA 29 2013 UT App 213State v. Campos
to defend himself or a third person against [Serbeck’s neighbor’s]
imminent use of unlawful force.” See Utah Code Ann. § 76‐2‐402(1)
(LexisNexis 2008). One factor the jury could consider in
determining the reasonableness of Campos’s belief was “the nature
of the danger” Campos allegedly faced. See id. § 76‐2‐402(5)(a).
Although the average juror would not have had direct experience
with the situation Campos faced, the average Utah juror arguably
has the requisite knowledge of handguns to assess the danger of
the situation and the reasonableness of Campos’s belief that force
was necessary to defend himself. Furthermore, testimony about
police standards had at least some potential to confuse the issues
when the jury was tasked to decide the reasonableness of Campos’s
belief from the standpoint of a reasonable civilian (not a peace
officer) under the circumstances. Although the trial court was not
required to exclude the expert testimony on the basis that it was
not helpful, we cannot say that doing so exceeded the limits of
reasonability.10
III. Lesser Included Offense Jury Instruction for Threatening
with a Dangerous Weapon
¶77 Campos contends that the trial court erred by denying his
request for an instruction on threatening with a dangerous weapon
as a lesser included offense for his aggravated assault charge. The
State responds that the evidence does not provide a rational basis
for a verdict acquitting Campos of aggravated assault and
convicting him of the lesser included offense.11
10
Because we affirm on this point, we need not address the
other grounds of the trial court’s ruling to exclude the expert
testimony.
11
Campos asserts that threatening with a dangerous
weapon is also a lesser included offense of attempted murder.
However, Campos has cited no authority for this claim and has
made no attempt to analyze the statutory elements to support it.
(continued...)
20101042‐CA 30 2013 UT App 213State v. Campos
¶78 To obtain an instruction on a lesser included offense, “a
defendant must show (1) that the charged offense and the lesser
included offense have overlapping statutory elements and (2) that
the evidence ‘provides a rational basis for a verdict acquitting the
defendant of the offense charged and convicting him of the
included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788(quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); see also Utah
Code Ann. § 76‐1‐402(3), (4) (LexisNexis 2012). The parties agree
that the first element of the test is met here. Our supreme court
held in State v. Oldroyd that threatening with a dangerous weapon
qualifies as a lesser included offense of aggravated assault. See 685
P.2d 551, 554 (Utah 1984). Thus, the remaining question is whether
the evidence presented at trial provides a rational basis for
acquitting Campos of aggravated assault and convicting him of
threatening with a dangerous weapon.
¶79 In undertaking this analysis, we “must only decide whether
there is a sufficient quantum of evidence presented to justify
sending the question to the jury.” Baker, 671 P.2d at 159. “[W]hen
the evidence is ambiguous and therefore susceptible to alternative
interpretations, and one alternative would permit acquittal of the
greater offense and conviction of the lesser, a jury question exists
and the court must give a lesser included offense instruction at the
request of the defendant.” Id. Furthermore, we “view[] the
evidence in the light most favorable to the defendant requesting the
instruction.” Powell, 2007 UT 9, ¶ 27.
¶80 Campos discusses the evidence adduced at trial, arguing
that it is ambiguous. Yet he does not apply the evidence to the
statutory elements of aggravated assault and the lesser included
11
(...continued)
Therefore, Campos has not carried his burden on appeal of
demonstrating that he was entitled to an instruction on this
point. See Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299,
305 (Utah 1998).
20101042‐CA 31 2013 UT App 213State v. Campos
offense. Without doing so, he cannot demonstrate that the jury
reasonably could have acquitted him of aggravated assault and
convicted him of threatening with a dangerous weapon. It is not
enough simply that the evidence be susceptible to alternative
interpretations in the general sense. Rather, the evidence must be
“susceptible to alternative interpretations” with respect to specific
elements, which “would permit acquittal of the greater offense and
conviction of the lesser.” See Baker, 671 P.2d at 159. Thus, Campos
has not carried his burden on appeal to demonstrate that the trial
court’s ruling was erroneous. See State v. Robison, 2006 UT 65, ¶ 21,
147 P.3d 448 (noting that the appellant bears the burden of
persuasion on appeal and that an appellate court will not “do the
heavy lifting” for the appellant); State v. Thomas, 961 P.2d 299, 305
(Utah 1998).
IV. Issue Related to the Attempted Murder Charge That May
Arise on Remand
¶81 Having reversed Campos’s conviction for attempted
murder, we need not resolve his remaining claims of error relevant
to that offense. However, we address one related issue that the
parties have fully briefed and that is likely to arise on remand. See
generally State v. James, 819 P.2d 781, 795 (Utah 1991).
¶82 Campos contends that the trial court improperly excluded
character evidence. Campos argues that he should have been
allowed to cross‐examine Serbeck about specific instances that
would have exhibited Serbeck’s character for untruthfulness and
violence. Campos also argues that a character witness who testified
at trial should have been allowed to testify about specific instances
that would have exhibited Serbeck’s character for violence. These
specific instances included multiple lies and instances of Serbeck’s
brandishing his handguns and making threats.12
12
The specific instances demonstrating a violent character
that Campos sought to admit included allegations of Serbeck
(continued...)
20101042‐CA 32 2013 UT App 213State v. Campos
¶83 The trial court ruled that evidence of Serbeck’s propensity
for violence could be admitted in the form of opinion and
reputation testimony but that specific instances would be irrelevant
and thus inadmissible. The court also allowed character witnesses
to offer opinion and reputation testimony as to Serbeck’s character
for untruthfulness. But the court appears to have excluded inquiry
into any specific instances probative of Serbeck’s character for
untruthfulness, even on cross‐examination of Serbeck.
¶84 Campos argues that evidence of Serbeck’s prior lies and
violent actions should be admitted under rule 404(b) of the Utah
Rules of Evidence. “Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that on
a particular occasion the person acted in conformity with the
character.” Utah R. Evid. 404(b)(1). By its terms, this general rule
does not apply when evidence of a crime, wrong, or other act is
used for some purpose other than proving that “the person acted
in conformity with the character.” See id. Therefore, “[t]his evidence
may be admissible for another purpose, such as proving motive,
12
(...continued)
having “a habit of always carrying two loaded pistols under his
arms” and brandishing these weapons on three occasions. Two
of these instances occurred in a public restaurant. The third
occurred when Serbeck threatened a woman who had just ended
a relationship with him; as she was leaving, he opened his jacket,
pointed to his firearms, and moved his index finger to his lips. In
connection with a motion for new trial, Campos also proffered
allegations that Serbeck made death threats against multiple
women.
The specific instances demonstrating an untruthful char‐
acter that Campos sought to admit included allegedly imperson‐
ating a U.S. marshal on two occasions and lying to women that
he had worked as a mafia hit man, that he had been diagnosed
with terminal cancer, and that he owned the company he
worked for.
20101042‐CA 33 2013 UT App 213State v. Campos
opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident.” Id. R. 404(b)(2). For such
evidence to be admissible, the trial court must scrupulously
examine the evidence to determine “whether it is genuinely being
offered for a proper, non‐character purpose,” State v. Verde, 2012
UT 60, ¶¶ 17–18, 296 P.3d 673; whether the evidence is relevant to
that non‐character purpose, State v. Nelson‐Waggoner, 2000 UT 59,
¶ 19, 6 P.3d 1120; and whether the evidence meets the requirements
of rule 403, “excluding the bad acts evidence if its tendency to
sustain a proper inference is outweighed by its propensity for an
improper inference or for jury confusion about its real purpose,”
Verde, 2012 UT 60, ¶ 18. See also Nelson‐Waggoner, 2000 UT 59,
¶¶ 16, 18–20; State v. Decorso, 1999 UT 57, ¶¶ 20–23, 993 P.2d 837.
¶85 On appeal, Campos fails to explain how evidence of
Serbeck’s prior lies and violent actions serves a non‐character
purpose. Indeed, in arguing that such evidence is relevant, Campos
emphasizes that the evidence is “highly probative” because it would
establish Serbeck’s “propensity for violence” and make it more
probable that Serbeck lied on the witness stand. To establish that
specific evidence is admissible under rule 404(b), Campos must
show that the evidence “has independent relevance that does not
depend on . . . propensity.” See R. Collin Mangrum & Dee Benson,
Mangrum & Benson on Utah Evidence 189–90 (2012) (internal
quotation marks omitted); see also Decorso, 1999 UT 57, ¶ 22. He has
not done so.
¶86 Because Campos has not established that the evidence was
offered for a non‐character purpose, its admission is governed by
rules 404(a), 405, and 608 of the Utah Rules of Evidence. “Rule
404(a) of the Utah Rules of Evidence acts as a general bar to
‘[e]vidence of a person’s character . . . for the purpose of proving
action in conformity therewith on a particular occasion.’” State v.
Leber, 2009 UT 59, ¶ 13, 216 P.3d 964 (omission in original) (quoting
a prior but substantively similar version of rule 404(a)); see also
Utah R. Evid. 404(a)(1); id. R. 404(b)(1). One exception to this
general rule “allow[s] an accused to offer evidence of a ‘pertinent
20101042‐CA 34 2013 UT App 213State v. Campos
trait of character’ either of himself or of an alleged victim.” Leber,
2009 UT 59, ¶ 13 (quoting a prior but substantively similar version
of rule 404(a)). A victim’s propensity for violence is “pertinent” to
self‐defense under this exception and is therefore admissible under
rule 404(a). See Utah R. Evid. 404(a)(2)(B); Leber, 2009 UT 59, ¶¶ 13,
15 n.3.
¶87 “Once character evidence is deemed admissible under rule
404(a), the methods of proving character are limited by rule 405.”
Leber, 2009 UT 59, ¶ 13. Rule 405(a) generally limits character
evidence to “testimony about the person’s reputation” and
“testimony in the form of an opinion.” Utah R. Evid. 405(a).
However, “[o]n cross‐examination of the character witness, the
court may allow an inquiry into relevant specific instances of the
person’s conduct.” Id. Thus, “[r]eputation and opinion witnesses
may only be asked about specific instances of conduct on
cross‐examination for the purpose of challenging the credibility of
the reputation or opinion testimony.” Leber, 2009 UT 59, ¶ 20. “On
the other hand, rule 405(b) allows for proof of character through
the use of ‘[s]pecific instances of conduct,’” but “only where
character is an ‘essential element of a charge, claim, or defense.’”
Id. ¶ 13 (quoting a prior but substantively similar version of rule
405(b)). “However, 405(b) seldom applies in criminal cases, and
‘self defense does not place . . . character at issue.’” Leber, 2009 UT
59, ¶ 23 (omission in original) (quoting R. Collin Mangrum & Dee
Benson, Mangrum & Benson on Utah Evidence 190 (2009)); see also
United States v. Talamante, 981 F.2d 1153, 1156 (10th Cir. 1992)
(noting that “use of evidence of a victim’s violent character to
prove that the victim was the aggressor is circumstantial use of
character evidence,” and “[w]hen character evidence is used
circumstantially to create an inference that a person acted in
conformity with his or her character,” character is not at issue for
purposes of the substantively similar Federal Rule of Evidence
405(b)).
¶88 Because a defendant’s or victim’s violent character is
“pertinent” to self‐defense under rule 404(a) but not “at issue”
20101042‐CA 35 2013 UT App 213State v. Campos
under rule 405(b), see Leber, 2009 UT 59, ¶¶ 15 n.3, 23, evidence is
limited to reputation and opinion testimony on direct examination,
and inquiry into relevant specific instances on cross‐examination.
See Utah R. Evid. 404(a); id. R. 405. However, inquiry into
specific instances on cross‐examination is limited to “character
witness[es]”—that is, witnesses who offer “testimony about the
person’s reputation” or “testimony in the form of an opinion”
relevant to the pertinent character trait. See id. R. 405(a); Leber, 2009
UT 59, ¶ 20 & nn.4–5.
¶89 In the present case, therefore, Campos was free to present
witnesses to offer reputation or opinion testimony as to Serbeck’s
character for violence. But, as the trial court correctly noted,
Campos could not use his character witnesses to provide testimony
of specific instances showing Serbeck’s character for violence. Nor
could Campos cross‐examine Serbeck about such specific instances,
because Serbeck did not testify as a character witness concerning
his own character for peacefulness. Cf. Leber, 2009 UT 59, ¶ 20 n.5
(“[I]f an accused offers evidence of his own ‘pertinent trait of
character,’ under rule 404(a)(1), then the prosecution may
cross‐examine him and inquire about specific instances of conduct
to discredit his own reputation testimony.”).
¶90 Another exception to rule 404(a)’s general bar to character
evidence appears in rule 608, which allows evidence of a witness’s
character for untruthfulness and, when a witness’s character for
truthfulness has been attacked, evidence of a witness’s character for
truthfulness. Utah R. Evid. 404(a)(3); id. R. 608. However, like
evidence of a defendant’s or victim’s “pertinent trait,” see id.R. 404(a), evidence of a witness’s character for truthfulness or
untruthfulness is generally limited to “testimony about the
witness’s reputation” and “testimony in the form of an opinion,”
id. R. 608(a). See also State v. Rimmasch, 775 P.2d 388, 391 (Utah
1989). With a few exceptions, “extrinsic evidence is not admissible
to prove specific instances of a witness’s conduct in order to attack
or support the witness’s character for truthfulness.” Utah R. Evid.
608(b); see also id. R. 608(c); id. R. 609; State v. Hackford, 737 P.2d 200,
20101042‐CA 36 2013 UT App 213State v. Campos
202–03 (Utah 1987). “But the court may, on cross‐examination,
allow [specific instances] to be inquired into if they are probative
of the character for truthfulness or untruthfulness of (1) the
witness; or (2) another witness whose character the witness being
cross‐examined has testified about.” Utah R. Evid. 608(b)
(emphasis added). In determining whether to allow cross‐
examination into specific instances of conduct, the trial court
should determine the relevance of the specific instances to the issue
of credibility, see id., and “apply the overriding safeguards of rule
403” of the Utah Rules of Evidence, State v. Gomez, 2002 UT 120,
¶¶ 33–34, 63 P.3d 72 (citation and internal quotation marks
omitted). Unlike rule 405(a), rule 608 does not limit specific‐
instance inquiry on cross‐examination to “character witness[es].”
Compare Utah R. Evid. 405(a), with id. R. 608(b).
¶91 In the present case, therefore, Campos was appropriately
allowed to present character witnesses to give opinion and
reputation testimony about Serbeck’s untruthfulness, without
inquiring into specific instances on direct examination. On cross‐
examination of Serbeck, rule 608 would allow Campos to inquire
into specific instances probative of Serbeck’s character for
untruthfulness. But the trial court has discretion to allow or
disallow such cross‐examination. See id. R. 608(b). If the issue arises
again in a new trial, the court should make this determination
based on relevance and the principles of rule 403. See Gomez, 2002
UT 120, ¶¶ 33–34.
CONCLUSION
¶92 The trial court did not abuse its discretion in excluding
Campos’s proposed expert testimony, nor did it err in refusing a
lesser included offense instruction on threatening with a dangerous
weapon. Campos’s trial counsel did not provide deficient
assistance by failing to request a jury instruction on extreme
emotional distress. However, Campos’s trial counsel provided
constitutionally deficient assistance by failing to object to the
20101042‐CA 37 2013 UT App 213State v. Campos
inaccurate verdict form and by failing to object or request a
curative instruction when the prosecutor engaged in misconduct
in closing arguments. The cumulative effect of the deficient
performance undermines our confidence that Campos received a
fair trial, and absent counsel’s errors, there is a reasonable
probability of a different result.
¶93 We therefore reverse Campos’s conviction for attempted
murder with injury but affirm the conviction for aggravated
assault. We remand the case for further proceedings.13
13
To the extent that we have not explicitly addressed other
issues raised by Campos, we have determined that we need not
address them given our resolution of this appeal. See State v.
Carter, 776 P.2d 886, 888 (Utah 1989).
20101042‐CA 38 2013 UT App 213