State v. Garcia

424 P.3d 171

STATE of Utah, Petitioner and Cross–Respondent,

v.Yesha Anthony GARCIA, Respondent and Cross–Petitioner.

No. 20160451

Supreme Court of Utah.

Filed August 23, 2017

Sean D. Reyes, Att'y Gen., Karen A. Klucznik, Asst. Solic. Gen., Salt Lake City, for petitioner

Teresa L. Welch, Salt Lake City, for respondent

Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Durham, and Justice Himonas joined.

On Certiorari to the Utah Court of Appeals

Justice Pearce, opinion of the Court:

INTRODUCTION

¶ 1 Yesha¹ Anthony Garcia fired four shots at a car driving past his house. The car's driver, Garcia's cousin Keith, was the intended target. Keith's step-daughter Kanesha was also aboard when Garcia took aim. The State charged Garcia with attempted murder and possession of a firearm by a restricted person.²

¶ 2 At trial, Garcia presented evidence of an imperfect self-defense. The district court decided—and the State conceded—that sufficient evidence of imperfect self-defense existed to present the defense to a jury. The jury was also instructed on the lesser-included offense of attempted manslaughter. But the jury instruction explaining how imperfect self-defense interacted with attempted manslaughter misstated the law.³ The jury convicted Garcia on the attempted murder and possession of a firearm by a restricted person charges.

¶ 3 Garcia argued to the Utah Court of Appeals that his counsel provided ineffective assistance when he failed to object to the attempted manslaughter jury instruction. Garcia also argued that the district court erred by not granting a directed verdict on the possession of a firearm charge because there was insufficient evidence to convict him. Garcia claimed that to the extent his insufficiency claim was unpreserved, his counsel provided ineffective assistance with respect to that claim. The court of appeals found that the defective jury instruction prejudiced Garcia's trial and vacated his attempted murder conviction. State v. Garcia , 2016 UT App 59, ¶ 26, 370 P.3d 970. The court of appeals affirmed the possession of a firearm by a restricted person charge, concluding that even if Garcia's counsel had erred, the error was not prejudicial. Id. ¶ 37.

¶ 4 The State seeks certiorari review of the court of appeals' ruling. The State argues that the court erred by presuming prejudice without considering whether, without counsel's error, "[t]he likelihood of a different result [was] substantial, not just conceivable." Harrington v. Richter , 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Garcia cross-petitions and argues that the court of appeals erred when it found that his counsel had not preserved his argument concerning the constitutionality of the unlawful user in possession statute. Garcia also claims that the court of appeals erred when it found that his counsel had not provided ineffective assistance when he neglected to argue that the term "unlawful user" was unconstitutionally vague as applied to him.

¶ 5 We reverse the court of appeals with respect to the jury instruction argument, but we uphold the denial of Garcia's motion for directed verdict.

BACKGROUND

¶ 6 Yesha Anthony Garcia sold drugs professionally. Garcia believed his cousin Keith had stolen a portion of his cocaine stash that Garcia kept at his cousin Tish's apartment. This enraged Garcia. He beat up both Keith's wife and step-daughter, Kanesha. Garcia then called Keith's mom on the phone, telling her he was going to kill Keith.

¶ 7 That same evening, Garcia sent his live-in girlfriend to her family's home, and—loaded gun in hand—waited for Keith to appear. Eventually, Garcia saw Keith and Kanesha—who claim they were looking for Garcia's address to give to the police—drive past his house, turn around, and drive past again. Garcia ran out his front door and unloaded his revolver in the car's direction. Garcia failed to hit the car. Kanesha called the police.

¶ 8 A little while later, a police officer found Garcia walking in his neighborhood. At trial, the officer who made first contact with Garcia on the street testified about their encounter. The officer testified that he called over to Garcia, who walked toward the officer and—unprompted—put his hands on the hood of the police car. Garcia told the officer that his name was Chancey Garcia. When asked to spell Chancey, Garcia couldn't. When the officer asked him "how that was possible that a grown man didn't know how to spell his name," Garcia became defensive. The officer told Garcia that he was looking for someone who had committed a crime and that, if it wasn't him, he could be on his way. According to the officer, at that point, Garcia began looking from side to side in a way that, in the officer's opinion, seemed like Garcia was "looking for an escape route." After that, the officer ordered Garcia to sit down on the ground. Garcia complied. Another officer approached with "the complainant," who identified Garcia as the shooter.⁴

¶ 9 After Garcia was identified, he was cuffed and placed in a police car. A detective who interviewed Garcia testified that Garcia told him where the gun Garcia had fired could be found. The detective also reported that Garcia insisted he "hadn't done anything wrong. He was just protecting himself and his family, that sort of thing."

¶ 10 Garcia spoke with a sergeant at the police station later that morning. In the interview, Garcia explained his frame of mind when Keith and Kanesha drove past his house:

A: I don't know what the f*** [Keith]'s gonna do. I thought he was gonna throw a cocktail in my house.

Q: A Molotov cocktail?

A: Yeah. That's why I was there. If it wasn't for that I would've been in Wendover or something. I would try and let this shit die down.

....

Q: Tish had said, yeah, he [Keith] came and got his gun, he's gonna light you up? Or what'd she say?

A: Nah, I wasn't ... thinking about him like hurting me, burning me like that.

Q: But if Tish told you he had his gun ... you knew that he was coming for you, possibly.

A: Not really. Not in that kind of way because he's scary you know, I mean, I know his character.

Q: So you didn't think he was gonna come? You just thought maybe?

A: Yeah, I was like mainly worried about my property really.

¶ 11 Garcia also spoke about his motive for firing at Keith:

[Keith] just pulled up in the Explorer, just like looking, like—mad dogging and shit. And I looked, and I was like no he didn't, no he didn't. And I just grabbed my shit like boom boom boom boom , and I emptied out the whole clip.

....

I'm just glad I didn't hurt nobody, though. It was just like when I saw him I just like, because I wanted to kill him bad, I want him dead.

....

I just lost it, man. Because I'm already done. Like, I was so antsy yesterday. I wanted to just kill him. I wanted to go just kill him.

¶ 12 At the station, Garcia also spoke about his drug dealing and his drug use:

When I'm off cocaine, too, I get like real paranoid. I always think the cops gonna run in my shit. So, uh, yeah cuz I do a lot of cocaine like sometimes.

....

Q: [I]t's odd that you use, because lots of people who really got skills don't use at all.

A: Yeah, no, it's just my heart and soul is into this shit man, you know what I mean?

....

A: I started using in 2006. I was twenty-five about to turn twenty-six.

¶ 13 At trial, Garcia told a somewhat different story. He testified that he believed Keith had stolen drugs from him and that he had merely taken "precautions to protect [his] home from an attack from Keith." He also testified that he expected Keith to come over to his house "with a gun"—but never mentioned a Molotov cocktail. He said he sent his girlfriend away because he "didn't feel safe." When his counsel asked why he didn't feel safe, he stated, "I just know my cousin."

Q: What does that mean?

A: He just blows stuff out of proportion. Just like one minute he is cool with us, and then he just snaps.

Q: Okay. Does Keith have a history of violence?

A: Yeah.

Q: Okay. And you believed him to possess a firearm?

A: Yeah.

....

Q: Okay. And ... what was your understanding of what he was going to do with that gun?

A: He was coming for me. Like he was coming to look for me.

Q: Okay. And so you felt there was a danger?

A: Yes.

....

Q: And you told [the detectives] Keith was coming for [you], and you did what?

A: I defended myself.

¶ 14 After Garcia was questioned by his counsel, the prosecutor cross-examined him.

Q: [Y]ou just testified that you were afraid Keith was coming at you with a gun?

A: Yes.

Q: And you just testified that Keith—you had been told Keith was going to come get you with a gun?

A: Yes.

Q: All right. Now, you, um, talked to this detective, right?

A: Yes.

Q: You watched the videotape of that interview?

A: Yes.

....

Q: [T]he detective asked you, um, says, Hey, you thought that Keith was coming for you with a gun? And you said, Not in that way. I know his character. Um, I was more worried about my property.

¶ 15 The sergeant later testified that in his interview with Garcia, Garcia never mentioned that he was afraid Keith was coming at him with a gun.

¶ 16 After the close of evidence, Garcia argued that there was an evidentiary basis to instruct the jury on attempted manslaughter "if you look at his actions as reckless." The State countered that there was no evidence that Garcia shot at Keith recklessly. But it suggested that "there is some evidence upon which ... [Garcia] could argue that it was imperfect self-defense," because Garcia could have believed, even though "[Keith] wasn't armed, ... [that] he thought [Keith] was coming at him with a gun." The State explained that even though it thought the theory was "wrong," there was enough evidence that "the instruction should come in."

¶ 17 In response to the State's comments, Garcia offered to modify the attempted manslaughter jury instruction to reflect imperfect self-defense. The district court agreed to let Garcia put the imperfect self-defense attempted manslaughter...