State v. Liti ( 2015 )

2015 UT App 186THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
RODNEY AMATO LITI,
Defendant and Appellant.
Opinion
No. 20130579-CA
Filed July 30, 2015
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 111401954
David M. Corbett and Craig L. Pankratz, Attorneys
for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES JOHN A. PEARCE and KATE A. TOOMEY concurred.
CHRISTIANSEN, Judge:
¶1 Rodney Amato Liti shot and killed his friend. A jury
convicted him of manslaughter and possession of a firearm by a
restricted person.1 Liti appeals, arguing that the trial court
erroneously instructed the jury on the meaning of ‚recklessly‛
for purposes of his manslaughter conviction and that his trial
counsel rendered ineffective assistance by not objecting to the
erroneous jury instruction. He also argues that the trial court
1. The jury also convicted Liti of other crimes. He does not
challenge those convictions and they are therefore not relevant
to this appeal.
State v. Liti
erred in finding that he was a Category I restricted person for
purposes of the firearm-possession charge, because that finding
was based on evidence not presented to the jury. He contends
that because the jury found only that he was a Category II
restricted person, the trial court’s finding resulted in his
erroneous conviction of a second-degree felony rather than a
third-degree felony.
¶2 We conclude that the trial court’s instruction to the jury
defining the reckless mental state for the offense of
manslaughter omitted a necessary element and that Liti is
therefore entitled to a new trial on the homicide charge. The
State concedes that the trial court erred by finding that Liti was a
Category I restricted person and entering the firearm-possession
conviction as a second-degree felony. The State agrees with Liti
that the conviction should properly be entered as a third-degree
felony. We therefore reverse Liti’s conviction for manslaughter
and vacate his conviction for possession of a firearm by a
Category I restricted person. We remand to the trial court for a
new trial on the homicide charge and for entry of Liti’s
conviction for possession of a firearm by a Category II restricted
person as a third-degree felony.
BACKGROUND
¶3 Liti shot his friend (Victim) during an argument.2 Victim
had borrowed Liti’s car to sell drugs and had not timely
returned the car. When Victim did not return on time, Liti sent
2. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.‛
State v. Brown, 948 P.2d 337, 339 (Utah 1997). Thus, we recite the
facts here in a light most favorable to the jury’s verdict that Liti
caused Victim’s death recklessly.
20130579-CA 2 2015 UT App 186State v. Liti
Victim a number of text messages threatening to harm him for
not returning Liti’s car.
¶4 Victim eventually returned the car to Liti’s residence and
soon began arguing with Liti and another man. That argument
escalated into a brawl. At some point during the fight, Liti drew
and cocked a handgun. Shortly thereafter, the gun ‚went off‛
and Victim was fatally wounded. Liti began to cry and apologize
to Victim. He fled and was apprehended by police a short time
later. He was charged with murder, possession of a firearm by a
restricted person, and other crimes.
¶5 At trial, Liti testified that Victim had drawn a gun during
the fight, prompting Liti to draw his own weapon to protect
himself and to ‚[c]ontrol the situation.‛ Liti testified that he
‚didn’t even point the gun or aim the gun.‛ However, he had
‚fumbled‛ the gun while pulling it out and was ‚holding the
trigger area‛ when he saw that Victim ‚was coming towards
[him].‛ Then, ‚meaning to push him back,‛ Liti ‚grabbed on‛ to
Victim. In doing so, he ‚squeezed‛ and ‚the gun went off.‛
¶6 The State argued that Liti, angry that Victim had not
timely returned the car, intentionally killed Victim. Liti admitted
that he shot Victim but argued that the shooting was accidental
or done in self-defense. The jury was instructed on both of Liti’s
theories of the case. As relevant here, the jury was instructed that
it could convict Liti of manslaughter only if it found that Liti had
shot Victim under circumstances constituting imperfect self-
defense or if it found that Liti had acted recklessly in causing
Victim’s death. The State also argued that Liti was a Category II
restricted person because of his use or possession of drugs and
was therefore guilty of possession of a firearm by a restricted
person. The jury was instructed on this theory of the State’s case
but was not asked to determine whether Liti was a Category I
restricted person by virtue of a prior conviction for a violent
felony.
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¶7 The jury convicted Liti of manslaughter and possession of
a firearm by a restricted person. The jury found that Liti
possessed a firearm and was an unlawful user or possessor of a
controlled substance. At sentencing, the trial court observed that,
during trial, the State had provided to the court evidence that
Liti was on probation for a felony at the time of the shooting. The
trial court therefore found that Liti was a Category I restricted
person and that his firearm-possession conviction should thus be
entered as a second-degree felony rather than a third-degree
felony. The trial court noted that the jury ‚didn’t have the
opportunity to find‛ the prior conviction ‚because [the court]
didn’t submit it to them.‛ The trial court explained, however,
[There is] no question whatsoever, in fact, that Mr.
Liti is a Category I restricted person. The jury
didn’t find that. But I’m going to declare that that
conviction of possession of a firearm by a restricted
person is a second-degree felony, finding beyond
all doubt that he is a Category I restricted person.
So I’m going to rule [the firearm-possession
conviction] is a second-degree felony.
Liti now appeals.
ISSUES AND STANDARDS OF REVIEW
¶8 Liti argues that the jury instructions failed to correctly
define ‚recklessly‛ for purposes of his manslaughter conviction.
Whether jury instructions correctly state the law is a question of
law. State v. Weaver, 2005 UT 49, ¶ 6, 122 P.3d 566. We therefore
review jury instructions for correctness. Id.¶9 Liti also argues that the trial court deprived him of his
due process right to a jury trial on every element of the charged
offense when the court found that Liti was Category I restricted
person. Issues of due process are questions of law, and we
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review for correctness the process afforded the defendant by the
trial court. State v. Turner, 2012 UT App 189, ¶ 15, 283 P.3d 527.
ANALYSIS
I. Trial Counsel Rendered Constitutionally Ineffective
Assistance by Failing to Object to the Erroneous Jury Instruction.
¶10 Liti first argues that the jury instruction defining
‚recklessly‛ for purposes of his manslaughter conviction was
incorrect because it omitted an element of the statutory
definition of recklessness. Because trial counsel failed to object to
the instruction, Liti concedes that the issue is unpreserved. He
therefore argues that trial counsel rendered ineffective assistance
by failing to ensure that the jury instructions were correct.3
¶11 To succeed on a claim of ineffective assistance of counsel,
a defendant must show both ‚that counsel’s performance was
deficient‛ and ‚that the deficient performance prejudiced the
defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984). To
establish that counsel’s performance was deficient, a defendant
‚must show that counsel’s representation fell below an objective
standard of reasonableness.‛ Id. at 688. This showing requires
the defendant to ‚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); see also State v. Larrabee, 2013 UT 70, ¶ 19, 321 P.3d 1136.
To establish prejudice in an ineffective-assistance-of-counsel
claim, the ‚defendant must show that a reasonable probability
3. He also argues that the trial court plainly erred in submitting
the instruction to the jury. Due to our disposition of this claim on
the basis of ineffective assistance of counsel, we do not evaluate
whether the trial court plainly erred.
20130579-CA 5 2015 UT App 186State v. Liti
exists that, but for counsel’s error, the result would have been
different.‛ State v. Millard, 2010 UT App 355, ¶ 18, 246 P.3d 151(citation and internal quotation marks omitted).
A. The Jury Instructions Were Incorrect.
¶12 To evaluate whether trial counsel performed deficiently in
failing to object to the jury instructions, we must first consider
whether those instructions were legally correct. We review jury
instructions in their entirety to determine whether the
instructions, taken as a whole, fairly instructed the jury about the
applicable law. State v. Stringham, 957 P.2d 602, 608 (Utah Ct.
App. 1998).
¶13 A defendant who ‚recklessly causes the death of another‛
is guilty of manslaughter. Utah Code Ann. § 76-5-205(1)(a)
(LexisNexis Supp. 2011). The Utah Criminal Code defines what
constitutes a reckless mental state:
A person engages in conduct . . . [r]ecklessly with
respect to circumstances surrounding his conduct
or the result of his conduct when he is aware of but
consciously disregards a substantial and
unjustifiable risk that the circumstances exist or the
result will occur. The risk must be of such a nature
and degree that its disregard constitutes a gross
deviation from the standard of care that an
ordinary person would exercise under all the
circumstances as viewed from the actor’s
standpoint.
Id. § 76-2-103(3) (LexisNexis 2008). In this case, the jury was
instructed that ‚[a] person acts recklessly when he is aware of a
substantial and unjustifiable risk that his or her conduct will
cause a particular result, consciously disregards the risk, and
acts anyway.‛ We agree with Liti that this instruction failed to
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fairly instruct the jury on the applicable law because it failed to
require a jury finding that the defendant’s conscious disregard of
the risk constituted a ‚gross deviation‛ from the standard of care
expected of an ordinary person as viewed from the defendant’s
standpoint.
¶14 We conclude that the plain language of the statute
compels this result. When interpreting a statute, we rely first on
the statute’s plain language as the best evidence of the
legislature’s intent. LeBeau v. State, 2014 UT 39, ¶ 20, 337 P.3d
254. We interpret statutes to give meaning to all parts and to
avoid rendering portions of the statute superfluous. Id. We also
presume that the legislature ‚used each word advisedly,‛ and
thus we ‚give effect to each term according to its ordinary and
accepted meaning.‛ Id. (citation and internal quotation marks
omitted). Because the jury instruction omitted the second
sentence of the statute, we must consider whether the inclusion
of the omitted portion would have changed the meaning of the
jury instruction. We determine that it would have.
¶15 The first sentence in the statute defines reckless behavior
in terms of the defendant’s knowledge and disregard of a
substantial and unjustifiable risk. Utah Code Ann. § 76-2-103(3).
This portion of the statute speaks primarily to the magnitude or
type of risk that the defendant’s conduct imposes on another.
The second sentence of the statute addresses whether the
defendant’s decision to disregard that risk constitutes a ‚gross
deviation from the standard of care that an ordinary person
would exercise under all the circumstances as viewed from the
actor’s standpoint.‛ Id. This portion of the statute asks the jury to
measure the defendant’s decision to ignore the risk against an
objective standard of behavior we would expect of a reasonable
person similarly situated. This second inquiry is therefore
analytically distinct from the first, and its omission represents a
significant change to the statutory standard. The legislature’s use
of the word ‚must‛ indicates that a finding of a ‚gross
20130579-CA 7 2015 UT App 186State v. Liti
deviation‛ is necessary to a finding that a defendant acted
recklessly.
¶16 We also find support for this conclusion in our caselaw
interpreting the similarly structured criminal-negligence statute.
That statute has a comparable ‚gross deviation‛ requirement:
A person engages in conduct . . . [w]ith criminal
negligence or is criminally negligent with respect
to circumstances surrounding his conduct or the
result of his conduct when he ought to be aware of
a substantial and unjustifiable risk that the
circumstances exist or the result will occur. The
risk must be of a nature and degree that the failure
to perceive it constitutes a gross deviation from the
standard of care that an ordinary person would
exercise in all the circumstances as viewed from
the actor’s standpoint.
Id. § 76-2-103(4). Our supreme court has explained that this
statute ‚requires proof that [the] defendant’s conduct place[d]
another at risk; that the risk [was] substantial and unjustifiable;
and that failure to perceive the risk constitute[d] a gross
deviation from the reasonable [person] standard.‛ State v.
Chavez, 605 P.2d 1226, 1227 (Utah 1979) (emphasis omitted). Our
caselaw recognizes that the nature of the risk involved in both
criminal negligence and recklessness is the same; ‚the only
difference between the two is whether the defendant was aware
of that risk.‛ State v. Boss, 2005 UT App 520, ¶ 14 n.2, 127 P.3d
1236. But ‚[i]n both cases, a defendant’s conduct must be ‘a gross
deviation’ from the standard of care exercised by an ordinary
person.‛ State v. Standiford, 769 P.2d 254, 267 (Utah 1988). Thus,
our caselaw confirms what the plain language of the statute
reveals: to obtain a conviction on a theory of reckless
manslaughter, the State must prove that the defendant’s conduct
in disregarding the risk of death was ‚‘a gross deviation’ from
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the standard of care exercised by an ordinary person‛ in the
defendant’s circumstances. Id. The omission of the gross-
deviation element in the jury instructions here constitutes error.
¶17 The State opposes this conclusion by arguing that ‚the
‘gross deviation’ language would have added little, if anything,
to this definition under the circumstances of this case.‛ The State
asserts that ‚there is very little daylight—if any—between
consciously disregarding a risk that is ‘substantial and
unjustifiable’ and grossly deviating from the standard of care
required under the existing circumstances.‛ Thus, the State
reasons, ‚the ‘gross deviation’ language adds little or nothing to
the requirement of consciously disregarding a ‘substantial and
unjustifiable’ risk of death.‛ However, the State’s argument asks
us to conclude that the second half of the statute defining
reckless behavior is, essentially, superfluous. Given the
standards by which we interpret statutes, we cannot accept this
invitation and must presume that the legislature intended for
each portion of the statute to impose a meaningful requirement.
See LeBeau, 2014 UT 39, ¶ 20. We therefore conclude that the jury
instructions in this case failed to correctly state the law with
respect to the mental-state finding required to convict Liti of
reckless manslaughter.
B. Trial Counsel Performed Deficiently.
¶18 Having concluded that the jury instructions failed to
correctly state the law, we must next consider whether trial
counsel performed deficiently by not objecting to the erroneous
instructions. In evaluating trial counsel’s performance, ‚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).
However, absent some tactical explanation, defense counsel’s
‚failure to object to a jury instruction that [does] not alert the
jury to every element of the crime with which his client was
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charged‛ constitutes deficient performance. State v. Eyre, 2008
UT 16, ¶ 19, 179 P.3d 792.
¶19 As discussed above, the jury instruction defining the
mens rea for reckless manslaughter omitted the requirement that
the State prove that the defendant’s conduct was a ‚gross
deviation‛ from the care exercised by a reasonable person. We
conclude that trial counsel should have objected to this legally
erroneous jury instruction because it failed to charge the jury
with finding every element necessary to convict Liti of reckless
manslaughter. See id.¶20 The State argues that trial counsel ‚could
have . . . reasonably decided not to ask for the ‘gross deviation’
language because it was not material to the defense theory of
self-defense.‛ The State contends that trial counsel could have
reasonably concluded that ‚exploring a subtle nuance of
recklessness would risk distracting the jury from [the self-
defense] narrative and lessen Liti’s chances of a full acquittal.‛
However, though trial counsel focused on self-defense in closing
argument, Liti’s own testimony was that the shooting was an
accident. Thus, even though trial counsel’s principal argument
may have been self-defense, given the testimony presented,
‚[t]here is only upside in a complete statement of the
requirement of mens rea‛ with respect to the reckless-
manslaughter charge. See State v. Barela, 2015 UT 22, ¶ 27, 349
P.3d 676. We therefore conclude that ‚no reasonable lawyer
would have found an advantage in understating the mens rea
requirement‛ of reckless manslaughter, see id., and we further
conclude that trial counsel performed deficiently by failing to
object to the erroneous instruction.
C. Trial Counsel’s Deficient Performance Prejudiced Liti.
¶21 To merit reversal of his conviction, Liti must also
demonstrate that his defense was prejudiced by trial counsel’s
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deficient performance—that there is a reasonable probability of a
more favorable result absent the error. State v. McNeil, 2013 UT
App 134, ¶ 42, 302 P.3d 844. We conclude that trial counsel’s
deficient performance prejudiced Liti’s defense.
¶22 The jury convicted Liti of manslaughter without
indicating whether it did so under a theory of recklessness or
imperfect self-defense. Given the evidence presented, it is
reasonably likely that the jury’s verdict was based at least in part
on a determination that Liti acted recklessly.4 The omission of
the gross-deviation requirement therefore allowed the jury to
convict Liti without considering whether the State had proved
everything necessary to obtain a reckless-manslaughter
conviction.
¶23 The State argues that the omitted language would have
made no difference to the verdict because Liti ‚threatened to
shoot the victim numerous times and admitted pulling out a
gun, cocking it, and putting his finger on or near the trigger
during a fight.‛ The State contends this is ‚textbook
recklessness.‛ We agree that Liti’s drawing a gun, arming it, and
exercising poor trigger discipline created a substantial and
unjustifiable risk of death to another—a conclusion borne out by
the jury’s verdict on the manslaughter charge when instructed to
find only those elements. But we cannot conclude that the
evidence in this case necessarily proves beyond a reasonable
4. Indeed, while our review of the record discloses some
evidence from which a jury could have conceivably concluded
that Liti reasonably believed ‚lethal force was ‘necessary to
prevent death or serious bodily injury,’‛ we see no evidence that
Liti ‚reasonably but incorrectly believed his actions were legally
justifiable‛ such that a jury could have found imperfect self-
defense. See State v. Lee, 2014 UT App 4, ¶¶ 38–40, 318 P.3d 1164(Voros, J., concurring).
20130579-CA 11 2015 UT App 186State v. Liti
doubt that Liti’s conduct was a ‚gross deviation‛ from what a
reasonable person may have done under the circumstances.
Given the evidence before the jury, particularly if the jury
believed the testimony that Victim himself was armed, we
cannot confidently say that the jury would necessarily have
concluded that Liti’s conduct in drawing a loaded gun during
the fight was a gross deviation from what was reasonable under
the circumstances. We therefore conclude that there is a
reasonable likelihood that a properly instructed jury would have
returned a verdict more favorable to Liti.
II. The Trial Court Erred in Finding That Liti Was a Category I
Restricted Person.
¶24 Liti next argues that the trial court erred in finding that he
was a Category I restricted person when the jury found only that
he was a Category II restricted person. The State concedes that
the trial court erred and asks us to vacate Liti’s conviction for
unlawful possession of a firearm as a Category I restricted
person and order his conviction entered in accordance with the
jury’s verdict.
¶25 Under Utah law, a restricted person may not legally
possess a firearm. Utah Code Ann. § 76-10-503 (LexisNexis 2008).
The degree of conviction for possession of a firearm by a
restricted person varies by whether the defendant is a Category I
or Category II restricted person: A Category I restricted person
who possesses a firearm is guilty of a second-degree felony. Id.§ 76-10-503(2). A Category II restricted person who possesses a
firearm is guilty of a third-degree felony. Id. § 76-10-503(3). Here,
the jury found that Liti possessed a firearm and that he was an
unlawful user or possessor of a controlled substance. These
findings are sufficient to support a conviction for possession of a
firearm by a Category II restricted person. Id. § 76-10-
503(1)(b)(iii). The jury’s findings are not, however, sufficient to
20130579-CA 12 2015 UT App 186State v. Liti
support Liti’s conviction as a Category I restricted person. Id.§ 76-10-503(1)(a).
¶26 Nevertheless, the trial court found that Liti was a
Category I restricted person because the State had provided the
court, but not the jury, with evidence that Liti was on probation
for a prior felony offense at the time of the shooting. See id. § 76-
10-503(1)(a)(ii). However, a defendant has a federal due process
right to have the jury find every element of an offense with
which he is charged. United States v. Gaudin, 515 U.S. 506, 511
(1995). Thus, ‚[e]lements of a crime must be charged in an
indictment and proved to a jury beyond a reasonable doubt.‛
United States v. O’Brien, 560 U.S. 218, 224 (2010). The prior
conviction here is an element of the offense because possession
of a firearm is not a crime in the absence of a finding that a
defendant is a restricted person. See State v. Higginbotham, 917
P.2d 545, 550 (Utah 1996).
¶27 Accordingly, the trial court erred in finding that Liti was a
Category I restricted person—a question that Liti had a
constitutional right to try to a jury. Liti was prejudiced by that
error because it resulted in his conviction for an offense greater
than that supported by the jury’s findings. We agree with Liti
and the State that Liti’s conviction for unlawful possession of a
firearm by a Category I restricted person cannot stand. We
therefore vacate that conviction, and we direct the trial court on
remand to enter Liti’s conviction for possession of a firearm by a
Category II restricted person—a third-degree felony—as found
by the jury.
CONCLUSION
¶28 The jury instruction defining the reckless mental state for
Liti’s manslaughter conviction failed to charge the jury with
finding that Liti’s conduct was a ‚gross deviation‛ from what a
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reasonable person would do under the circumstances. Trial
counsel rendered ineffective assistance by failing to object to the
erroneous instruction. The trial court erred in finding that Liti
was a Category I restricted person, because the question should
have been presented to the jury. We therefore reverse Liti’s
conviction for manslaughter, vacate his conviction for possession
of a firearm by a Category I restricted person, and remand to the
trial court for a new trial on the homicide charge and entry of a
conviction for possession of a firearm by a Category II restricted
person.
20130579-CA 14 2015 UT App 186