State v. Rivera

509 P.3d 257

STATE of Utah, Appellee,

v.Raul RIVERA, Appellant.

No. 20200169-CA

Court of Appeals of Utah.

Filed April 7, 2022

Nicolas D. Turner, Attorney for Appellant

Sean D. Reyes and Marian Decker, Salt Lake City, Attorneys for Appellee

Judge Ryan D. Tenney authored this Opinion, in which Judges Michele M. Christiansen Forster and Ryan M. Harris concurred.

Opinion

TENNEY, Judge:

¶1 During a heated confrontation that stemmed from a longstanding family feud, Raul Rivera threatened both his brother-in-law and brother with violence and then "came at" them with a screwdriver. Rivera was later convicted of two counts of aggravated assault based on his actions.

¶2 Rivera now appeals his convictions, claiming that his trial counsel was ineffective for (1) not moving to dismiss one of the two charges on multiplicity grounds, (2) withdrawing a proposed self-defense jury instruction, and (3) not having the screwdriver tested for fingerprints. We disagree with Rivera on each front and affirm his convictions.

BACKGROUND¹

The Confrontation

¶3 Over the course of several years, Raul Rivera had "bad blood" with David,² who was his brother-in-law. Rivera told various family members that he "wanted to do something" to David, and Rivera also made "threats" to David personally.

¶4 On Rivera's birthday in April 2019, Rivera called his niece (who was David's daughter) and told her that he intended "to go and put a bullet in" David.

¶5 Five days later, Rivera went to the home of Benjamin,³ his brother. When Rivera arrived, he "was just mad." Rivera accused Benjamin of being "on David's side." He also told Benjamin that he "was no longer [Rivera's] brother," that Benjamin "was a piece of shit," and that Rivera "had a gun in his car" with "a bullet for [Benjamin] and ... a bullet for David." In response, Benjamin told Rivera to "[j]ust leave."

¶6 While this was happening, David and his son happened to arrive at Benjamin's house to pick up Benjamin for work. Benjamin got into David's truck as Rivera "was saying a bunch of stuff" to Benjamin. Apparently unaware that David was in the backseat, Rivera told David's son to "[t]ell David that I got something for him." Rivera then started walking to his own SUV, which was parked several yards away.

¶7 David instructed his son to drive over to Rivera's SUV and park behind it so that he and Benjamin could "[g]o see what [Rivera] want[ed]." David's son did, after which David and Benjamin got out and began walking toward Rivera's SUV.

¶8 Rivera was now sitting in his vehicle, and when he saw David and Benjamin approaching, he said, "Yeah, I got something for you," and "Yeah[,] [p]ull your gun out." Rivera then "open[ed] the door, and he grab[bed] something from the side of the door" as he exited his SUV. David and Benjamin were "standing together" at that point, with Benjamin standing just to David's left. It looked to David like Rivera was "coming after" them. He later testified: "whether [Rivera] was going to get Benjamin first or was going to get me, I don't know."

¶9 David saw that Rivera had a "chrome" "object" in his hands, and based on Rivera's past comments and threats, David "assume[d] it was the gun." So David quickly took out his own gun from his back pocket and shot Rivera.

¶10 Benjamin called 911. At the request of the 911 dispatcher, David put his gun inside the house. When police arrived soon after, "David stepped forward and said, ‘It was me,’ " clearly indicating that he was the shooter. For his part, Rivera was transported to the hospital and treated for the gunshot wound.

¶11 While investigating the scene, officers found no other gun besides David's. They did, however, find a black and chrome screwdriver lying directly beneath the hinge of the driver-side door of Rivera's SUV.

The Trial

¶12 The State charged Rivera with two counts of aggravated assault—one count for assaulting David and one count for assaulting Benjamin. The State did not file charges against David for shooting Rivera.

¶13 Before trial, Rivera's counsel (Counsel) included a self-defense instruction in the proposed jury instructions, with the theory apparently being that Rivera was acting in self-defense when he exited his SUV with the screwdriver. During trial, however, Counsel informed the judge that Rivera wouldn't be testifying. When Counsel then asked the judge to "minus the self-defense" instruction, the court removed it.

¶14 Rather than pursuing a self-defense theory, Counsel advanced a different theory at trial: namely, that Rivera "didn't come out [of his SUV] with a screwdriver" at all, that David had shot him unprovoked, and that David and Benjamin had planted the screwdriver under the SUV after the shooting to "back their story up."

¶15 To support this theory, Counsel cross-examined David, Benjamin, and the testifying police officer about the position of the screwdriver, whether someone had placed it there or moved it after Rivera allegedly dropped it, and whether it had been tested by police to see if fingerprints from anyone other than Rivera were on it. Counsel also repeatedly asked these witnesses why the screwdriver was found directly beneath the SUV's driver-side door instead of farther away from the vehicle. Through questioning, Counsel suggested that if Rivera really did "come at" David and Benjamin, Rivera's "natural momentum" should have caused the screwdriver to land farther away from the SUV after he was shot.

¶16 In further support of this theory, Counsel called a private investigator as a defense witness. In his testimony, the investigator opined that the screwdriver should have been "in a different spot" if Rivera had been shot while approaching David and Benjamin as they claimed.

¶17 Counsel also pressed the testifying police officer about the screwdriver and the State's failure to "fingerprint[ ] or analyze[ ] [it] in any way, shape, or form." Counsel pointed out that "nothing" "prevent[ed] someone from getting the screwdriver out of [the SUV] and dropping it somewhere" after the shooting, and he likewise pointed out that "we wouldn't know" whether Benjamin's or David's fingerprints were on it because the State hadn't "fingerprinted it."

¶18 During closing argument, Counsel combined these points to argue that if Rivera was "coming out and lunging and gets shot and drops where he's shot at, that screwdriver" should not have been found under the driver-side door. "It doesn't make sense," Counsel urged. But "[w]hat does make sense," he argued, "is that here's two individuals who say they've been threatened and having to deal with [Rivera's] B.S. for all this" time and who chose to "deal with it" by "shoot[ing] him."

¶19 As he had done through questioning, Counsel also criticized the State for not testing the screwdriver to determine if either David's or Benjamin's fingerprints were on it. This was suspicious, Counsel argued, because David and Benjamin "could have easily got that screwdriver out of [Rivera's] car and put it there to back their story up," noting that "[t]hey had time to do this before cops even got there." Counsel claimed that the State had put "little blinders on" and had erroneously focused its investigation on Rivera when it should have been investigating David and Benjamin instead.

¶20 After deliberations, the jury convicted Rivera of both counts of aggravated assault. Rivera now appeals his convictions.

ISSUES AND STANDARD OF REVIEW

¶21 Rivera argues that Counsel was ineffective on several grounds. When an ineffective assistance claim is raised for the first time on appeal, it presents a question of law. See State v. Drommond , 2020 UT 50, ¶ 46, 469 P.3d 1056.⁴

ANALYSIS

¶22 "To succeed on his ineffective assistance of counsel claim," a defendant "must show that (1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced him." State v. Selzer , 2013 UT App 3, ¶ 16, 294 P.3d 617 (quotation simplified). This requires the defendant to identify the "acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment" and then "show[ ] that counsel's errors were so serious as to deprive the defendant of a fair trial." Strickland v. Washington , 466 U.S. 668, 687, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "Because failure to establish either prong of the test is fatal to an ineffective assistance of counsel claim, we are free to address ... either prong" in our review. Honie v. State , 2014 UT 19, ¶ 31, 342 P.3d 182.

¶23 Here, Rivera argues that Counsel was ineffective for (1) not moving to dismiss one of the two aggravated assault counts on multiplicity grounds, (2) withdrawing the self-defense jury instruction, and (3) not submitting the screwdriver for fingerprinting. We address each argument in turn.

I. Multiplicity

¶24 Rivera first argues that Counsel was ineffective for not moving to dismiss one of the two aggravated assault charges on multiplicity grounds. An ineffective assistance claim fails, however, when the proposed motion would have been futile. See State v. Makaya , 2020 UT App 152, ¶ 9, 476 P.3d 1025 ("[I]t is not unreasonable for counsel to choose not to make a motion that would not have been granted."). This was so here.

¶25 One of the protections embodied in the Double Jeopardy Clause of the United States Constitution is the "protect[ion] against multiple punishments for the same offense." State v. Prion , 2012 UT 15, ¶ 30, 274 P.3d 919 (quotation simplified). "The rule against multiplicity" is derived from this, and it "is violated if the State punishes a defendant for more counts of an offense than are allowed by the intended unit of prosecution for that offense." State v. Rasabout , 2015 UT 72, ¶ 26, 356 P.3d 1258 ; see also State v. Calvert , 2017 UT App 212, ¶ 33, 407 P.3d 1098 (recognizing that the rule against multiplicity is violated "when a single offense is charged in several counts" (quotation simplified)).

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