State v. Reece

349 P.3d 712

2015 UT 45

The STATE of Utah, Appellee

v.Cody Alan REECE, Appellant.

No. 20120883.

Supreme Court of Utah.

April 14, 2015.

Lisa J. Remal, Tawni Hanseen, Brock Van De Kamp, Lori J. Seppi, Salt Lake City, for appellant.

Sean D. Reyes, Att'y Gen., Christopher D. Ballard, Asst. Att'y Gen., for appellee.

Chief Justice DURRANT authored the opinion of the Court, in which Associate Chief Justice LEE, Justice DURHAM, Justice PARRISH, and Judge ORME joined. Justice NEHRING did not participate herein due to his retirement; Court of Appeals Judge GREGORY K. ORME sat. Justice DENO G. HIMONAS became a member of the Court on February 13, 2015, after oral argument in this matter, and accordingly did not participate.

Chief Justice DURRANT, opinion of the Court:

Introduction

¶ 1 Cody Reece was convicted of aggravated murder, aggravated burglary, possession of a weapon by a restricted person, and obstruction of justice. He argues that we must vacate his convictions because the trial court erred by (1) denying his request for a variety of lesser-included-offense jury instructions, (2) preventing him from asking twelve questions during voir dire, (3) refusing to exclude evidence that he was arrested with a stolen rifle in his car one month after the murder, and (4) refusing to sever the weapons offense from the other charges.

¶ 2 We affirm Mr. Reece's convictions. First, although the court erred in denying Mr. Reece's request for lesser-included-offense instructions on several variants of unintentional homicide, the error was harmless due to the overwhelming evidence that Mr. Reece committed aggravated murder. Second, the court's limits on voir dire questioning were not improper—Mr. Reece was allowed to ask almost two hundred questions from his proposed juror questionnaire, and the court also permitted unlimited individual follow-up questioning with each prospective juror, so Mr. Reece had ample opportunity to evaluate each juror for potential biases. Third, the stolen-rifle evidence was properly admitted because it was relevant to the genuine noncharacter purpose of linking Mr. Reece to the murder weapon, and the evidence was unlikely to improperly affect the jurors' decision in light of the significant criminal conduct Mr. Reece admitted to in his trial testimony. Finally, the court's refusal to sever the weapons charge was not an abuse of discretion, because the jury never heard any evidence that Mr. Reece was a convicted felon.

¶ 3 Mr. Reece also challenges his sentence, arguing that the noncapital-aggravated-murder sentencing statute is unconstitutional. And even if it is not, he maintains that the court abused its discretion when it imposed a sentence of life without parole (LWOP) because it erroneously interpreted the sentencing statute as establishing a presumptive LWOP sentence. We conclude that the sentencing statute is constitutional for reasons we recently discussed in State v. Perea.¹ But because the record is unclear as to how the court's incorrect reading of the statute influenced its decision to impose an LWOP sentence, we remand for the court to determine whether its erroneous interpretation of the statute affected its sentencing decision. If the court concludes that it did, Mr. Reece is entitled to a new sentencing hearing.

Background

¶ 4 The victim's husband returned home from work on the evening of July 13, 2010, to find his wife lying dead on the couch in their front room. She had a gunshot wound in her forehead and there was a bullet hole in the couch next to her body. The victim's face had been beaten with a hard object, and she had “deep gouges” on the back of her hands, most likely from attempting to shield her face during the attack. Police recovered a 9 mm shell casing, two slugs, and a broken piece of plastic, which they later matched with the guide rod used in a Beretta handgun. There was no sign of forced entry, no missing valuables, and no evidence of a struggle elsewhere in the home. Investigators determined that the victim was likely killed right where she was found on the couch by a bullet fired at a downward trajectory about one foot away from her head. Police never recovered the murder weapon.

¶ 5 That same evening, after several days of heavy drug use, Cody Reece drove to the victim's neighborhood in Sandy, Utah, to steal mail. Around 6:30 p.m., he took a brown package from a home located about one-half mile west of the victim's. Fifteen minutes later, witnesses saw Mr. Reece speeding through a construction site on 700 East in a black Mazda. Mr. Reece collided with another vehicle and drove off, eventually abandoning the Mazda in a neighborhood a mile north of the accident. He then walked through the neighborhood and knocked on several doors, asking for a glass of water and to use a phone. At one of the homes, he stole a money order out of the mailbox when the homeowner left the front door to retrieve a phone for Mr. Reece to use. He entered another home through the back door without permission, punched one of its occupants several times, and then fled through the front door. Eventually, several neighbors tackled Mr. Reece and restrained him until police arrived. Mr. Reece was arrested and jailed for assault and burglary.

¶ 6 Police began to suspect that Mr. Reece was involved in the victim's death, and three days after his arrest, they obtained a search warrant for his clothing. Investigators found a blood “stain on the bottom right-hand side” of Mr. Reece's shirt “as well as some droplets and a smear.” There were also “two little droplets or spots” on the “back side of the shirt above the right shoulder.” DNA testing revealed that the first stain contained a mixture of DNA from which neither Mr. Reece nor the victim could be excluded as contributors. The second stain matched the victim's DNA.

¶ 7 Police interviewed Mr. Reece on July 21, and he claimed that he could not remember much of what happened the day of the murder because he had been drinking heavily and using Xanax. He said he remembered getting into a car accident, running away because he thought his car had been hit intentionally, and being arrested. But he claimed not to remember entering any homes in the victim's neighborhood.

¶ 8 While in jail, Mr. Reece called his mother several times asking for help posting bail. When his mother asked him why he was in jail, he explained that his memory was “fuzzy,” but he remembered things he could not talk about on the phone. According to Mr. Reece's cellmate (Cellmate), Mr. Reece told him that he entered the victim's home because as “he was driving by [the] house,” he saw “the garage door open[ ]” and “didn't see any cars,” so he believed no one was home. But once Mr. Reece was inside, “a lady came up and grabbed” him, “he grabbed his gun, turned around ... and the gun went off by accident.” Mr. Reece eventually posted bail and was released.

¶ 9 Once he was out of jail, Mr. Reece visited a friend (Friend) who, unbeknownst to Mr. Reece, was a paid confidential informant.

She told investigators that Mr. Reece asked her for money and said he felt like he was going to go to prison for a long time if he did not get out of town. According to Friend, Mr. Reece said that he “probably shot a lady” and that he was having flashbacks of running through a restaurant with blood on his clothes and throwing his clothes and a gun into a dumpster. Friend also claimed that she was with Mr. Reece the day before the murder and saw him cleaning a 9 mm Beretta handgun.

¶ 10 Police arrested Mr. Reece again on August 10 based on a report that he was stealing license plates. They found a stolen assault rifle in his car, which they traced to a theft in Park City. According to the rifle's owner, the rifle and a 9 mm Beretta handgun were both in his truck the day the rifle was stolen in January 2010.

¶ 11 The State charged Mr. Reece with aggravated murder, aggravated burglary, possession of a dangerous weapon by a restricted person, and obstruction of justice. Over Mr. Reece's objection, the trial court granted the State's motion to introduce the stolen rifle as evidence linking him to a 9 mm Beretta handgun.

¶ 12 At trial, Mr. Reece denied telling Cellmate that he struggled with and accidentally shot the victim. He claimed that he did not have a gun on July 13 and said that Friend was lying about his incriminating statements and seeing him cleaning a 9 mm Beretta on July 12. According to Mr. Reece, he was in the victim's neighborhood stealing mail when he heard a gunshot inside her home. He went inside to assist a woman he saw lying motionless in the living room, believing she may have tried to kill herself. He claimed that while he was leaning over her, he got some blood on his shirt, and he looked up to see a man with a gang tattoo holding a gun. Mr. Reece explained that he fled when the man turned the gun on him and that he purchased the stolen assault rifle for protection. He admitted that he had previously owned a 9 mm Beretta but insisted that he got rid of the gun in early 2010.

¶ 13 Mr. Reece requested that the court issue lesser-included-offense instructions on murder, felony murder, manslaughter, negligent homicide, and homicide by assault. The court denied the request, concluding that Mr. Reece's testimony “create[d] an all-or-nothing situation” and that there was no rational basis to believe Cellmate's testimony that the murder was inadvertent, in light of the physical evidence of an intentional killing. Mr. Reece also submitted a 193–question juror questionnaire. The court struck twelve questions and modified several others, citing concern for the jurors' privacy.

¶ 14 Mr. Reece moved to sever the weapons charge, which the court granted in part. The court instructed the jurors to determine whether Mr. Reece was in possession of a firearm on July 13 and informed them that it was unlawful under some circumstances for a person to purchase or possess a gun. The jury found Mr. Reece guilty of all charges and found...