State v. Archuleta

492 P.3d 801

STATE of Utah, Appellee,

v.Bobby Fiedel ARCHULETA, Appellant.

No. 20190871-CA

Court of Appeals of Utah.

Filed June 24, 2021

Herschel Bullen, Salt Lake City, Attorney for Appellant

Sean D. Reyes, Salt Lake City, and Nathan H. Jack, Attorneys for Appellee

Judge David N. Mortensen authored this Opinion, in which Judge Jill M. Pohlman concurred. Judge Gregory K. Orme concurred, with opinion.

Opinion

MORTENSEN, Judge:

¶1 Bobby Fiedel Archuleta, triggered to road rage by an alleged horn honk, chased down the other car, and, after arguing with the motorist, pulled out a gun and shot at the motorist before turning and speeding away. A jury later convicted Archuleta on two counts of aggravated assault, one count of possession or use of a dangerous weapon by a restricted person, one count of discharge of a firearm, and one count of theft by receiving stolen property. Archuleta appeals, citing issues with the evidence and jury instructions. We affirm.

BACKGROUND¹

¶2 Around 4:00 p.m. one late-summer afternoon, while cruising down a Salt Lake City highway, a motorist (A.D.) watched and listened for several blocks as a black sports car followed him, the driver honking and yelling at him. The driver had apparently been enraged after perceiving that A.D. had honked at him. Soon, through his rear-view and side-view mirrors, A.D. saw the driver catch up and pull alongside him.

¶3 The driver confronted A.D., yelling, "Do you want to get popped?" A.D. noticed a "black male passenger" (Passenger) in the passenger's seat of the driver's car, but Passenger did not say anything. Ultimately, A.D. ignored the driver and, as the light changed, kept driving. As A.D. continued to watch, the driver pulled behind him and kept following.

¶4 Further down the road, the driver again pulled near A.D., who had stopped at another light. And, once more, the driver threatened to shoot A.D. Thinking that the driver did not actually have a gun, A.D. yelled back, "Well, if you're going to pop, then pop." And, "Shoot the gun. Shoot the gun. Shoot it. Shoot it. Don't be just threatening me with a gun. Shoot it." As the light changed and A.D. began to pull forward, the driver sped up, raised a black gun, and shot in A.D.’s direction while turning right. The bullet tore through the passenger's door, nearly hitting A.D.’s four-year-old son, and lodged in the passenger's seat, where the seat frame stopped the bullet from hitting A.D. The bullet left three holes: one entrance hole in the car door's exterior, one exit hole in the car door's interior, and one entrance hole into the seat—"all consistent with one round."

¶5 A.D. called 911 to report the shooting and pursued the fleeing driver until the 911 dispatcher persuaded him to stop. During that phone call, A.D. described the driver as "a Hispanic man with tattoos—including a star tattoo on his face—wearing a turquoise shirt, a black baseball hat with turquoise on it, and prescription glasses." He further reported that the driver drove a "black Charger or Challenger" and that a "black male passenger" was riding in the passenger's seat.

¶6 Police, seeking the driver's identity, soon identified Archuleta as a suspect and began surveilling his apartment within a few hours of the shooting. After only a few minutes, Archuleta arrived—driving a black Dodge Challenger with a black male in the passenger's seat. Archuleta had a star tattoo under his left eye and wore a turquoise shirt, a black baseball hat with turquoise on it, and prescription glasses.

¶7 On searching Archuleta's car, police found a stolen gun one round short of full capacity. Although officers found no casing in Archuleta's car, the Salt Lake Police Crime Lab's director examined the slug found in A.D.’s car to determine if it was fired by the gun recovered from Archuleta's car. The director testified that he was "100 percent sure" that the "bullet recovered from [A.D.’s car] match[ed] the gun that was recovered from Bobby Archuleta's car."

¶8 Archuleta denied being in a road rage incident and claimed he was in Roy, not Salt Lake City, during the incident—a claim identified at trial as an irreconcilable geographical discrepancy. But an investigator familiar with cell phone mapping technology testified that between 3:52 p.m. and 4:35 p.m. on the day of the shooting, Archuleta's cell phone data suggested he was somewhere between 3300 South in Salt Lake City and Bountiful—a set of possible coordinates that did not preclude him from being present at the shooting's time and place. The investigator testified that "[b]ased on [the cell phone data] before and after [the shooting] and considering travel time, it's literally physically impossible for the phone to" "have been in Roy at that time."

¶9 Archuleta contests none of these facts. Instead, he emphasizes the following. When police first apprehended Archuleta, an officer also interviewed Passenger. Passenger initially claimed he was not near the area when the shooting happened. However, when police found the gun, Passenger changed his story, describing a car pulling up to Archuleta's car and that driver threatening to shoot them. Passenger claimed that when the driver of the other car raised his hand, Passenger ducked down before hearing a loud gunshot. Throughout this interview, he "repeatedly told police they already knew what happened and had the evidence." At trial, the State submitted the police report describing Passenger's statement to imply Archuleta's guilt based on the fact that Archuleta later called Passenger a "rat" when speaking with his wife (Wife). And for the limited purpose of providing context for Archuleta's later statements to Wife, the trial court allowed Passenger's statement.

¶10 Further, at trial, the court admitted, over Archuleta's objection, various jail phone calls between Archuleta and Wife.² These calls began with an automated recording stating, "This call can be recorded and subject to monitoring at any time." As played and recited for the jury, the calls’ content included:

• Archuleta's statement: "I can't blame no one else for my situation but myself."

• The exchange between Archuleta and Wife: Wife said, "You did this for no reason." Archuleta responded, "I know."

• Wife's statement: "Well, if you want to hang out with losers and act fucking crazy."

• Archuleta's statement: "I don't see how they're going to make these fucking aggravated assaults and shit stick though because nobody was hit or nothing like that."

• The exchange between Archuleta and Wife: Wife said, "So did [Passenger] tell on you?" Archuleta responded, "Yeah."

• Archuleta's statement: "[Passenger]’s a rat. [Passenger] told on me."

• Archuleta's instruction: "[T]ell him [Passenger]’s a rat."

• The exchange between Archuleta and Wife: Wife said, "He said in fairness that it was found in your car." Archuleta responded, "Yeah." Wife continued, "You have a gun, which is (inaudible)." Archuleta then said, "It's not my gun. Listen, (inaudible)." Wife then asked, "How are you going to fight that?" And Archuleta answered, "Because listen, there's no DNA. There's no prints on the gun."

• Archuleta's statement: "Well, if the victim changes his mind and doesn't testify, they've got no case."

• The exchange between Archuleta and Wife: Wife said, "I know, but you did this." Archuleta responded, "Oh, I know I did."

• Archuleta's statement: "There's no DNA, there's no prints on the gun. Yeah, it was in my vehicle, but there was fucking two of us in that vehicle. And not only that, there was like a fucking good 30 minutes that they were (inaudible) vehicle, occupying my vehicle with me not in my vehicle."

• The exchange between Archuleta and Wife: Wife said, "You did this." Archuleta responded, "You know I'm a fuck up."

¶11 In admitting these statements, the trial court clarified:

And so jurors, be advised that on these calls, there will be conversations between [Wife] and ... Archuleta. [Wife]’s statements are not offered for the truth of the matter asserted. They're only offered to provide context to Mr. Archuleta's statements.

¶12 The jury convicted Archuleta on two counts of aggravated assault, one count of possession or use of a dangerous weapon by a restricted person, one count of discharge of a firearm, and one count of theft by receiving stolen property. Because Archuleta had previously been convicted of a violent felony and incarcerated at least twice before, the State sought to enhance the charges by designating Archuleta as a habitual violent offender. In a bifurcated proceeding the jury also found that Archuleta met the statutory definition of a habitual violent offender. The court then sentenced Archuleta to prison on each conviction.

¶13 Archuleta appeals.

ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Archuleta raises several issues. First, he contends that, over counsel's objection, the trial court erroneously admitted evidence, including: (1) hearsay of an unavailable witness—Passenger—as a violation of his constitutional right of confronting the witnesses against him, and (2) allegedly incoherent, unreliable, and constitutionally privileged jail phone calls between him and Wife that also constituted hearsay in part. "With regard to the admission of evidence, ... we review the legal questions to make the determination of admissibility for correctness. We review the questions of fact for clear error" and "we review the trial court's ruling on admissibility for abuse of discretion." Arnold v. Grigsby , 2018 UT 14, ¶ 9, 417 P.3d 606 (cleaned up). However, "we will reverse an erroneous evidentiary ruling only if, absent the error, there is a reasonable likelihood that there would have been a more favorable result for the defendant. A reasonable likelihood of a more favorable outcome exists when the appellate court's confidence in the verdict actually reached is undermined." State v. Kohl , 2000 UT 35, ¶ 17, 999 P.2d 7 (cleaned up). Insofar as Archuleta contends these evidentiary concerns amount to constitutional...