State v. Augustine

298 P.3d 693

STATE of Utah, Plaintiff and Appellee,

v.Cody Jesse AUGUSTINE, Defendant and Appellant.

No. 20110454–CA.

Court of Appeals of Utah.

March 7, 2013.

Stephen W. Howard, Attorney for Appellant.

John E. Swallow and Karen A. Klucznik, Attorneys for Appellee.

Memorandum Decision

DAVIS, Judge:

¶ 1 Cody Jesse Augustine appeals his conviction for attempted murder, a first degree felony, seeUtah Code Ann. § 76–5–203(2)–(3) (LexisNexis 2012); ¹id. §§ 76–4–101, –102, arguing that the trial court's exclusion of his expert witness and permitting the prosecutionto call Scott Stapley ² as a witness after Stapley made it clear that he would refuse to testify amounted to a violation of his constitutional right to present a full, fair, and complete defense. Augustine also argues that his trial counsel was ineffective for failing to object to the jury instruction given regarding the State's burden of disproving his extreme emotional distress affirmative defense and that the jury instructions also failed to adequately inform the jury as to what mens rea was required for accomplice liability. We affirm.

I. Extreme Emotional Distress

¶ 2 One of Augustine's main defenses at trial was that he acted under extreme emotional distress at the time of the attack on the victim (J.E.), which, if believed by the jury, would have resulted in a conviction of the lesser offense of attempted manslaughter. Augustine testified at trial that he ultimately became “[un]hinged” after a series of events occurring in the evening hours between July 28 and 29, 2008, that culminated in his stabbing J.E. with a knife several times while J.E. fled from Stapley's assault with a four-bladed battle-ax. Augustine sought to support his extreme emotional distress defense with expert witness testimony and proffered that the expert would testify as to “significant issues in [Augustine's] background, childhood and onward, that would affect his ability to deal with certain stressors” involved in this case. The trial court, however, excluded the expert testimony on relevance grounds, explaining that extreme emotional distress involves “an objective, ... reasonable person” standard and, as proffered, the expert testimony would address only a subjective standard of whether the behavior “was reasonable for this individual.” Augustine argues that the trial court's determination was incorrect and that, as a result, his constitutionally protected right to present witnesses and evidence in support of his defense was violated.

¶ 3 We review the trial court's decision to exclude expert testimony for an abuse of discretion and “to ensure that no mistakes of law affected [the] lower court's use of its discretion.” State v. Sheehan, 2012 UT App 62, ¶ 15, 273 P.3d 417 (citation and internal quotation marks omitted). We affirm the trial court's exclusion of the expert testimony, but we do so on slightly different grounds than those cited by the trial court. See generally Medel v. State, 2008 UT 32, ¶ 23, 184 P.3d 1226 (“[W]e have authority to affirm the district court's decision on any grounds apparent in the record....”).

¶ 4 “A person suffers extreme emotional distress when exposed to extremely unusual and overwhelming stress such that the average reasonable person would react by experiencing a loss of self-control.” State v. Spillers, 2007 UT 13, ¶ 14, 152 P.3d 315 (citation and internal quotation marks omitted). “This standard requires a trier of fact to put herself in the shoes of a reasonable person in the defendant's situation to determine whether the defendant's reaction to a series of events was reasonable.” State v. White, 2011 UT 21, ¶ 37, 251 P.3d 820. In analyzing a claim of extreme emotional distress, the defendant's “reaction cannot be viewed in isolation” because a “broader context” will help paint “an accurate picture of the past experiences and emotions that give meaning to that reaction.” Id. ¶ 31;see also State v. Shumway, 2002 UT 124, ¶ 10, 63 P.3d 94 (determining that an instruction on an extreme emotional distress defense was warranted where the teenager, who ultimately stabbed his friend to death, was a victim of bullying for many years).

¶ 5 While Augustine's expert witness's testimony would support a subjective distress analysis by explaining Augustine's behavior in light of the other traumatic experiences that have occurred in his life, Augustine has not convinced us that he is entitled to the defense in the first place. See generally White, 2011 UT 21, ¶ 22, 251 P.3d 820 (noting that the affirmative defense of extreme emotional distress “is not available to all who seek it”). The defense cannot be based on emotions and stress a defendant brought about himself; rather, “a person suffersfrom an extreme emotional disturbance when he is exposed to extremely unusual and overwhelming stress.” Shumway, 2002 UT 124, ¶ 9, 63 P.3d 94 (citation and internal quotation marks omitted). This distinction of “exposed” versus “self-imposed” “guide[s] the evaluative process of extreme emotional distress claims in our courts.” White, 2011 UT 21, ¶¶ 22–23, 251 P.3d 820 (recognizing that because “all intentional homicides, with the exception of those by cold-blooded killers or in the course of a felony, are abnormal acts for the perpetrators and the result of strong emotions and stresses[,] ... a distinction must be drawn so that this defense will only be applicable to those homicides which appropriately qualify under the underlying purpose of this mitigating defense and not en masse to all acts constituting murder, in the second degree” (citation and internal quotation marks omitted)).

¶ 6 Here, Augustine bases his entitlement to an extreme emotional distress defense based on the culmination of three “triggering events.” ³ First, Augustine felt “anger, distress, [and] grief” when he worried that the painful urination he had begun experiencing might be a sexually transmitted disease (STD) that he concluded he must have contracted from his girlfriend, who must have contracted it from her last sexual partner, J.E. Second, shortly after Augustine self-diagnosed his ailments as an STD, he drove to J.E.'s house seeking retribution and got into a fistfight, which spiked his adrenaline. Last, the sight of blood and Stapley knocked down during the altercation with J.E. caused Augustine to panic. As a result of the combined pressure of these three stressors, Augustine asserts, he lost control of his rationality and was driven to stab J.E. repeatedly.

¶ 7 We are unconvinced that such a sequence of events merits an extreme emotional distress defense. The triggering stressors that Augustine enumerates are largely self-imposed—he sought out J.E. for retribution for what was an assumption that J.E. indirectly passed along an STD to Augustine. Augustine went to J.E.'s house looking for a fight. Thus, the ensuing fight and adrenaline spiking are products of his own behavior. Augustine admitted as much at trial, affirmatively answering the State's question as to whether his “anxiety to a pretty significant extent is something [he] caused [him]self.” Likewise, the escalation of the fight to involve Stapley and weapons are factors that Augustine brought upon himself by seeking out a fight and bringing a weapon in the first place. “Thus, defendant's emotional disturbance was a product of his knowingly or intentionally involving himself in the commission of a crime and [is not] excusable [under the extreme emotional distress defense].” See State v. Gardner, 789 P.2d 273, 276, 283 (Utah 1989) (internal quotation marks omitted) (holding that any error in the jury instructions regarding the defense of extreme emotional distress was harmless where “[t]he triggering event” prompting the defendant to go on a shooting spree “was his escape attempt [from custody in court] in which he was wounded”). Because Augustine was not entitled to a defense of extreme emotional distress, we need not address his claims that the trial court erroneously excluded his expert witness under the Utah Rules of Evidence, that the exclusion of his witness violated his constitutional rights, and that his trial counsel was ineffective for not challenging the jury instruction given on the affirmative defense of extreme emotional distress. See generally Jones v. Cyprus Plateau Mining Corp., 944 P.2d 357, 360 (Utah 1997) (“Harmless errors are those that are sufficiently inconsequential so no reasonable likelihood exists that the error affected the outcome of the proceedings.”); State v. Buel, 700 P.2d 701, 703 (Utah 1985) (concluding that trial counsel's failure to make futile objections does not constitute ineffective assistance).

II. Mental State Instruction

¶ 8 Next, Augustine argues that although the accomplice liability jury instruction quoted the relevant statutory provision verbatim, it nonetheless was confusing and incomplete. Specifically, Augustine asserts that the instruction given failed “to adequately instruct the jury that the mental state required in order to find him guilty of attempted murder as an accomplice was the actual intent to cause death.” (Internal quotation marks omitted.) Without further clarification, Augustine contests, the jury instructions “left the door open for the jury to find Augustine guilty of attempted murder based on Stapley's intent to cause death, even if they believed Augustine intended only to inflict serious bodily injury.” The State contends that “the instructions as a whole accurately and adequately informed the jury of the mental state necessary to convict [Augustine] as an accomplice to attempted murder.” We agree with the State.

¶ 9 “[W]e review challenges to jury instructions under a correctness standard.” State v. Featherhat, 2011 UT App 154, ¶ 8, 257 P.3d 445.

Jury instructions must be read and evaluated as a whole. They must accurately and adequately inform a criminal jury as to the basic elements of the crime charged. However, if taken as a whole th...