State v. Binkerd , 310 P.3d 755 ( 2013 )

2013 UT App 216_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JOSHUA BINKERD,
Defendant and Appellant.
Opinion
No. 20100978‐CA
Filed September 6, 2013
Fourth District, Heber Department
The Honorable Derek P. Pullan
No. 091500123
Corbin B. Gordon, Matthew A. Bartlett, and
John M. Webster, Attorneys for Appellant
John E. Swallow and Ryan D. Tenney, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred.
ORME, Judge:
¶1 Defendant Joshua Binkerd appeals from a conviction for
manslaughter, a second degree felony. See Utah Code Ann. § 76‐5‐
205(2) (LexisNexis 2012).1 We affirm.
BACKGROUND
¶2 In 2008, Defendant was affiliated with a gang in Salt Lake
City. Defendant was an “original gangster,” which meant that “he
1. Because the provisions in effect at the relevant time do not differ
in any way material to our analysis from the statutory provisions
now in effect, we cite the current version of the Utah Code as a
convenience to the reader.
State v. Binkerd
was in the gang before anything else, and called the shots and
basically told you what you needed to do.” Chris Alvey “like[d] to
think of” Defendant as his original gangster; as his “OG.” Alvey
acted as Defendant’s “second‐hand, his partner,” and Alvey
viewed Defendant as a “best friend . . . like an older brother.”
¶3 The victim in this case periodically associated with
Defendant’s gang. She occasionally drove gang members to
robberies and often used drugs with them. She had once been
romantically involved with Defendant. By December 2008,
however, the victim had come to be described within the gang as
“their . . . redheaded snitch.” Consequently, Defendant told fellow
gang members that there was a “green light” on the victim. A
“green light” usually meant that the target could be killed, but
could also mean that gang members should “do some harm” or
“some damage” to the target. Defendant told Alvey about the
“green light” on the victim and told at least one of the gang
members that there was an “SOS” on the victim, meaning “shoot
on sight.” Defendant told Alvey “there was only one way to take
care of a snitch” and that was to “kill ‘em.” A few days before
Christmas that year, Alvey was with Defendant in a parking lot,
and Alvey displayed a gun. Defendant said that “they had some
ratting ass bitch that they had to take care of.”
¶4 On Christmas Eve, Defendant and Alvey confronted the
victim in an apartment. After telling the victim that they knew that
she was a “rat,” Alvey pulled the gun, cocked it, and put it to the
victim’s head, and Defendant whispered into her ear that “she was
going to die tonight.” But then Defendant said, “Not here, not
now,” and “we’re not doing this here.”
¶5 Two days later, one of Defendant’s fellow gang members
found the victim with a tape recorder and a list of every phone
number that the gang member had called that day. The gang
member called Defendant to ask what he should do with the
victim. Defendant told the gang member to bring her to him.
Defendant then instructed Alvey to drive the victim up a canyon
in a van and leave her there. As Alvey drove with the victim, the
two smoked methamphetamine together. At some point during the
20100978‐CA 2 2013 UT App 216State v. Binkerd
drive, Defendant called Alvey and told him, “Don’t bring her
back.”
¶6 Alvey later said that if Defendant had not called him, he
would have “left [the victim] on the side of the highway
somewhere or up a dirt road or something.” Instead, based on
what he believed Defendant’s instructions to be, Alvey pulled into
a parking lot near a reservoir, told the victim to get out of the van,
shot her four times, and left. A camper found the victim a short
time later with several gunshot wounds. She died at a hospital
several hours later.
¶7 On his way back, Alvey called Defendant to tell him that “it
was done.” When Alvey arrived back at the apartment where he
and Defendant were staying, Alvey met with Defendant and
several other gang members. He told the group that he had shot the
victim. In recognition of his efforts, Defendant gave Alvey a blue
bandana—a sign of respect within the gang—for “doing a good
job” and “killing [the victim],” noting, “Murder doesn’t happen
every day.” Defendant, having ordered that the gun Alvey used be
destroyed, then fled from the apartment to a hotel. He was arrested
a few days later.
¶8 In interviews with police following his arrest, Defendant
repeatedly denied that he had told Alvey to kill the victim or that
he had intended for him to do so. Defendant did, however, admit
that he had taken Alvey “under [his] wing” and that Alvey was his
“sidekick.” He conceded that if he asked Alvey “to do something,
he would.” Defendant also admitted that he had told the victim
that she would “get [herself] hurt” if she spoke with police. He told
police that he knew that there was a “green light” on the victim,
but claimed it meant that a person could “do whatever you want
to do” to the victim. Defendant admitted that he and Alvey had
confronted the victim in an apartment on Christmas Eve. He told
police that he had told the victim, “I should beat the shit out of you
right here, right now but you’re lucky” because they were in a
friend’s apartment. Defendant admitted that Alvey had put a gun
to the victim’s head during the encounter and told her there was a
“green light” on her. Defendant claimed that he “shook [his] head”
20100978‐CA 3 2013 UT App 216State v. Binkerd
at Alvey, then said, “Do what you want to do. Do what the hell you
want, dude.”
¶9 Defendant admitted to police that he had a “gut feeling” that
Alvey was going to kill the victim when he took her up the canyon.
He also agreed that he “might have insinuated” that Alvey should
kill the victim, despite denying that he intended for it to occur.
Defendant told police that he “might have said something that did
go into his mind along the lines of doing it.” In response to an
officer asking whether he believed himself to be innocent,
Defendant responded, “No, I don’t.”
¶10 Under the theory that Defendant had acted as an accomplice
to the murder of the victim, the State charged Defendant with one
count of aggravated murder, see Utah Code Ann. § 76‐5‐202
(LexisNexis Supp. 2013), and in the alternative, one count of
depraved indifference murder, see id. § 76‐5‐203(2)(c) (LexisNexis
2012). The information also included a dangerous weapon
enhancement. See id. § 76‐3‐203.8.
¶11 Alvey was also arrested soon after the killing. He pled guilty
to one count of aggravated murder. See id. § 76‐5‐202 (LexisNexis
Supp. 2013). The State agreed not to seek the death penalty in
exchange for his testimony against Defendant.
¶12 At his trial, Defendant claimed that he did not tell Alvey to
kill the victim and never intended for him to do so. Defendant
conceded that Alvey apparently believed that he had ordered the
killing but argued that because Defendant did not act intentionally
or knowingly, he did not have the requisite mental state to commit
aggravated murder or depraved indifference murder.
¶13 Defendant moved to dismiss the charges following the close
of evidence. He argued that the evidence failed to demonstrate that
Defendant intended for the victim to be killed. Defendant
contended that Alvey had testified that “the only thing that
[Defendant] did to order, persuade, or assist him in the killing of
[the victim] was to say be safe, and don’t come back.” He claimed
that his statement was ambiguous at best and that “it is clear that
20100978‐CA 4 2013 UT App 216State v. Binkerd
he never intended anyone to kill [the victim], if it’s believed that he
gave a green light at all.” The State responded that in light of the
“cumulative evidence,” Defendant had
primed Chris Alvey. He had him ready. In the good
gang tradition, he was having someone else do his
dirty work . . . . That is sufficient evidence on that to
show that he [not only] aided, encouraged, assisted
Chris Alvey in carrying out that murder but evidence
. . . to show that that’s what he wanted done, that
that was his intent, to get rid of [the victim].
After hearing arguments from both parties, the trial court denied
Defendant’s motion to dismiss.
¶14 The trial court and counsel then discussed jury instructions.
Before trial, the State had proposed that the jury be given an
instruction on the lesser included offense of reckless manslaughter.
The State withdrew that proposed instruction during the
discussion following the denial of Defendant’s motion to dismiss.
The trial court responded by asking whether Defendant wanted
the jury instructed on manslaughter. Defense counsel replied
that he was not seeking an instruction for manslaughter, a
second degree felony, see Utah Code Ann. § 76‐5‐205(2) (LexisNexis
2012), but wanted an instruction on negligent homicide, a class A
misdemeanor, see id. § 76‐5‐206(2), “if that’s available without
including manslaughter.” The defense had not previously
submitted a written request for a negligent homicide instruction or
a proposed jury instruction. The prosecution opposed that request,
arguing that neither a manslaughter nor a negligent homicide
instruction was warranted.
¶15 Defense counsel insisted on a negligent homicide
instruction, conceding that Defendant may have been negligent in
setting into action a series of events that culminated in the victim’s
demise. The court responded that defense counsel was admitting
that the jury might conclude that Defendant “[o]ught to have been
aware of the substantial and unjustified risk that [the victim]’s
death” would result from his conduct. Defense counsel agreed,
20100978‐CA 5 2013 UT App 216State v. Binkerd
stating that Defendant possibly “should have been more conscious
of that and he was negligent in not being conscious of that, . . . yes.”
¶16 The court then noted that the legal difference between
reckless manslaughter and negligent homicide was only the extent
of Defendant’s awareness of the risk that Alvey might kill the
victim. Compare Utah Code Ann. § 76‐5‐205(1) (LexisNexis 2012),
with id. § 76‐5‐206(1). In response to the court questioning whether
Defendant might have been aware of the risk, thereby supporting
a manslaughter instruction as well, defense counsel replied, “I
would think he really should have been aware of the risks, but I’m
not asking for the manslaughter” instruction. While still opposing
either instruction, the State argued that if the court granted the
request for a negligent homicide instruction, the jury should, in
fairness, also be instructed on manslaughter. The court noted that
different standards apply when the State, rather than the defense,
requests a lesser included offense instruction. The court then took
the matter under advisement, stating that it would prepare the
instructions that night and provide them to counsel the next
morning so they would be “free to go through them” before the
instructions were provided to the jury.
¶17 The next morning, the court stated that, pursuant to the
request from Defendant, it would provide the jury with an
instruction on negligent homicide. The court then articulated the
test that applies when the State, rather than the defendant, requests
an instruction for a lesser included offense. The court concluded
that, after reviewing the law and the evidence, it believed a
manslaughter instruction was also appropriate. The court then
asked the State whether it intended to argue that Defendant was
guilty as a principal or as an accomplice. The State responded that
it would argue an accomplice liability theory. In response to the
court asking the defense whether there was an objection to the
instructions incorporating accomplice liability with the elements of
manslaughter, defense counsel said, “No. . . . I think they should
have to prove the additional elements” of accomplice liability.
¶18 The accomplice liability instruction provided to the jury
read: “Every person, acting with [the] mental state required for the
20100978‐CA 6 2013 UT App 216State v. Binkerd
commission of an offense who directly commits the offense, who
solicits, requests, commands, encourages or intentionally aids
another person to engage in conduct which constitutes an offense
shall be criminally liable as a party for such conduct.” The
manslaughter instruction informed the jury that “Manslaughter is
a lesser included offense of Murder” and then listed the required
elements, including that, to convict, the jury must find beyond a
reasonable doubt that Defendant “Recklessly . . . Solicited or
requested or commanded or encouraged or aided another person
. . . To cause the death of another, to wit: [the victim].” The
instruction for negligent homicide stated that “Negligent Homicide
is a lesser included offense of Murder” and listed the elements as
including that, to convict, the jury must find beyond a reasonable
doubt that Defendant “Acting with criminal negligence . . .
Solicited or requested or commanded or encouraged or aided
another person . . . To cause the death of another, to wit: [the
victim].”
¶19 The jury convicted Defendant of the manslaughter charge
but acquitted him of both aggravated murder and murder. The jury
also found that a dangerous weapon had been used in the offense
and that Defendant knew that it had been used. See Utah Code
Ann. § 76‐3‐203.8 (LexisNexis 2012). At sentencing, the court
expressed its belief that it was required to add a minimum of one
and a maximum of five years to Defendant’s sentence as a result of
the dangerous weapon enhancement. As a result, the court
sentenced Defendant to a term of two to twenty years in prison,
rather than the one to fifteen years required by the manslaughter
statute. See id. §§ 76‐5‐205; 76‐3‐203(2).
¶20 Defendant filed a motion for a new trial, arguing that an
individual cannot be convicted as an accomplice for a general
intent crime such as reckless manslaughter. Defendant also argued
that the trial court had incorrectly applied the dangerous weapon
enhancement. The court rejected both claims. While it agreed that
it had misinterpreted the dangerous weapon enhancement at
sentencing when it concluded that it was required to add one to
five years generally to Defendant’s sentence, the court stated that
any error was harmless because it would have imposed the same
20100978‐CA 7 2013 UT App 216State v. Binkerd
sentence even if it had viewed the additional five years as
discretionary. With regard to Defendant’s underlying conviction,
the court held that a defendant can be convicted as an accomplice
to a general intent crime such as manslaughter. The court further
held that even if it had erred, the error was invited by Defendant’s
request for an instruction on negligent homicide, a crime which,
like manslaughter, does not require specific intent. Defendant
appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 Given the applicable statutory scheme, Defendant argues
that he cannot be convicted as an accomplice to manslaughter. We
review statutory interpretations for correctness, granting no
deference to the trial court. See Jeffs v. Stubbs, 970 P.2d 1234, 1240
(Utah 1998). Defendant argues that it was plain error for the court
to include the instruction on manslaughter, a general intent crime,
as a lesser included offense of murder and aggravated murder,
both specific intent crimes, under the theory of accomplice liability.
In general, to establish the existence of plain
error and to obtain appellate relief from an alleged
error that was not properly objected to, the appellant
must show the following: (i) An error exists; (ii) the
error should have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the error, there is
a reasonable likelihood of a more favorable outcome
for the appellant, or phrased differently, our
confidence in the verdict is undermined.
State v. Dunn, 850 P.2d 1201, 1208–09 (Utah 1993). The State
contends that Defendant invited any error with regard to the
manslaughter instruction by requesting the negligent homicide
instruction. The doctrine of invited error bars review for plain error
when the defendant “led the trial court to believe that there was
nothing wrong with the instruction.” State v. Medina, 738 P.2d 1021,
1023 (Utah 1987).
20100978‐CA 8 2013 UT App 216State v. Binkerd
¶22 Defendant also contends that his defense counsel was
ineffective in several regards. “An ineffective assistance of counsel
claim raised for the first time on appeal presents a question of law.”
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. “First, the defendant
must show that counsel’s performance was deficient. This requires
showing that counsel made errors so serious that counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment. Second, the defendant must show that the deficient
performance prejudiced the defense.” Strickland v. Washington, 466
U.S. 668, 687 (1984).
¶23 Defendant also argues that the court committed plain error
in several other regards. “Generally, appellate courts will not
consider an issue brought for the first time on appeal unless plain
error is shown. When a party seeks review of an unpreserved issue,
that party must articulate an appropriate justification for appellate
review, such as plain error, in the party’s opening brief.” State v.
Crabb, 2011 UT App 440, ¶ 3 n.1, 268 P.3d 193 (per curiam) (citation
omitted).
ANALYSIS
I. It Was Not Legal Error for Defendant, as an Accomplice to
Aggravated Murder, To Be Convicted of Manslaughter.
¶24 The accomplice liability statute provides that “[e]very
person, acting with the mental state required for the commission of
an offense who directly commits the offense, who solicits, requests,
commands, encourages, or intentionally aids another person to
engage in conduct which constitutes an offense shall be criminally
liable as a party for such conduct.” Utah Code Ann. § 76‐2‐202
(LexisNexis 2012). Defendant argues that he “cannot be tried as an
accomplice for a crime that is different from the conviction of the
original actor.” We disagree.
¶25 In State v. Crick, 675 P.2d 527 (Utah 1983), our Supreme
Court explained that
20100978‐CA 9 2013 UT App 216State v. Binkerd
[a] defendant can be criminally responsible for an act
committed by another, but the degree of his
responsibility is determined by his own mental state
in the acts that subject him to such responsibility, not
by the mental state of the actor. This is clear from the
language of § 76‐2‐202 . . . . Otherwise, a designing
person could use a madman to kill another and
mitigate his own responsibility by reference to the
derangements of the person he had used to
accomplish his purposes.
Id. at 534 (emphasis in original). Crick’s jury was not instructed on
a lesser included offense, however, because “there was no basis in
the record to convict her of manslaughter on the theory that she
was an accomplice.” Id. Additionally, the Utah Supreme Court has
held that
it is not necessary for the accomplice to have the
same intent that the principal actor possessed as long
as the accomplice intended that an offense be
committed. An accomplice will be held criminally
responsible to the degree of his own mental state, not
that of the principal. This prevents an individual who
is charged as an accomplice from escaping criminal
liability by arguing that the principal actor had a
lower intent or diminished capacity when the crime
was committed. Therefore, the first step in applying
accomplice liability is to determine whether the
individual charged as an accomplice had the intent
that an underlying offense be committed.
State v. Briggs, 2008 UT 75, ¶ 14, 197 P.3d 628. See State v. Alvarez,
872 P.2d 450, 461 (Utah 1994) (“Party liability under section 76‐2‐
202 does not require that the persons involved in the criminal
conduct have the same mental state.”).
¶26 Further, in State v. Jeffs, 2010 UT 49, 243 P.3d 1250, our
Supreme Court reiterated “that an accomplice need not act with the
20100978‐CA 10 2013 UT App 216State v. Binkerd
same intent, or mental state, as the principal.”2 Id. ¶ 49. Defendant
argues that Jeffs assumes the requirement “that [Defendant] had to
intend the death of [the victim] in order to be found guilty as an
accomplice.” However, Jeffs confirmed that “‘accomplice liability
adheres only when the accused acts with the mens rea to commit
the principal offense.’”3 Id. ¶ 44 (quoting State v. Calliham, 2002 UT
86, ¶ 64, 55 P.3d 573). In this case, Defendant was found guilty of
acting as an accomplice to manslaughter, not murder, and it is
manslaughter, not murder, which is the “principal offense” for
purposes of Jeffs.4 See supra note 3.
2. The State argues that State v. Jeffs, 2010 UT 49, 243 P.3d 1250,
should not govern this case because Defendant was sentenced in
May 2010 and the Jeffs decision was not issued until July 2010. See
generally State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993) (“To
establish a claim of ineffectiveness based on an oversight or
misreading of law, a defendant bears the burden of demonstrating
why, on the basis of the law in effect at the time of trial, his or her
trial counsel’s performance was deficient.”). Because we believe
Jeffs to be only a clarification of existing precedent, we regard it as
appropriate for inclusion in this discussion.
3. We recognize the potential confusion caused by the term
“principal” in this sentence. Our understanding is that the
“principal offense” is the offense of which the defendant is
convicted under a theory of accomplice liability. In Jeffs, that
offense was the same—the defendant was charged and convicted
as an accomplice to the commission of rape. See 2010 UT 49, ¶ 1.
But in the present case, Defendant, while charged with murder,
was convicted of manslaughter notwithstanding that Alvey pled
guilty to aggravated murder.
4. We note that Defendant was tried separately from Alvey.
Defendant had his own jury that considered the facts relevant to
his involvement in the victim’s death. While some may question
why the jury did not convict Defendant of aggravated murder, the
crime to which Alvey pled, or murder, it was within the province
(continued...)
20100978‐CA 11 2013 UT App 216State v. Binkerd
¶27 Jeffs states that
[i]n those cases where the defendant solicits,
requests, commands, or encourages another to
commit an offense, the accomplice liability statute
incorporates the default mental state of recklessly,
knowingly, or intentionally. However, in those cases
where the defendant is charged with aiding another
in the commission of the offense, the accomplice
liability statute requires that the defendant’s aiding
be “intentional.”
Id. ¶ 50 (emphasis added). See Utah Code Ann. § 76‐2‐202
(LexisNexis 2012). See also Jeffs, 2010 UT 49, ¶ 52 (“Without Jeffs’
proposed instruction as to intent, the jury could have convicted
Jeffs if it found that Jeffs ‘intentionally’ did some act, and such
intentional act unintentionally ‘aided’ Steed in having
nonconsensual sexual intercourse with [the victim]. For example,
even if Jeffs never intended for Steed to rape [the victim], the jury
instruction allowed for the possibility that he would be found
guilty simply because he intentionally performed the marriage
ceremony and the existence of the marriage aided Steed in raping
[the victim].”) (emphasis in original).
¶28 In the instant case, there is ample evidence to support a
determination that Defendant acted recklessly. Defendant called
Alvey while Alvey was driving the victim up into the canyon and
said, “Don’t bring her back.” Defendant later awarded Alvey a blue
bandana for “killing [the victim]” and “doing a good job.” He
admitted to authorities that he had earlier told Alvey there was a
4. (...continued)
of the jury to convict Defendant of the lesser included offense of
manslaughter, even though the record before us would readily
sustain Defendant’s conviction for being an accomplice to
aggravated murder or murder. See, e.g., State v. Crick, 675 P.2d 527,
534 (Utah 1983).
20100978‐CA 12 2013 UT App 216State v. Binkerd
“green light” on the victim and that he had a “gut feeling” that
Alvey was going to kill the victim. Defendant told police that he
“might have said something that did go into [Alvey]’s mind along
the lines of doing it.” This evidence supports the jury’s conclusion
that Defendant was aware of but consciously disregarded a
substantial and unjustifiable risk that the victim would be killed by
Alvey as a result of Defendant’s words and actions. See Utah Code
Ann. § 76‐2‐103(3); Jeffs, 2010 UT 49, ¶ 50. Given the sequence of
events, it was reasonable for the jury to conclude that Defendant’s
intentional acts and statements to Alvey were reckless because
Defendant recognized and disregarded the distinct possibility that
Alvey would interpret them to be a directive to murder the victim.
The Jeffs decision does not undercut the propriety of this result.5 Cf.
State v. Howell, 649 P.2d 91, 95 (Utah 1982) (“[W]e hold that a trial
court may properly give a lesser included offense instruction, even
over a defendant’s objection, if there is clearly no risk that the
defendant will be prejudiced by lack of notice and preparation so
as to deprive him of a full and fair opportunity to defend
himself.”).
¶29 Defendant also argues that “[i]f [Defendant]’s acts were only
‘reckless,’ without intent that the murder occur, then he is not an
accomplice to the underlying crime of murder” because murder is
a specific intent crime. We do not view this argument as persuasive
because “it is not necessary for the accomplice to have the same
intent that the principal actor possessed as long as the accomplice
intended that an offense be committed.” See State v. Briggs, 2008 UT
5. Defendant cites to State v. Telford, 2002 UT 51, 48 P.3d 228 (per
curiam), and State v. Calliham, 2002 UT 86, 55 P.3d 573, in support
of his argument that he must have acted with the mens rea
required for the offense committed by the principal, i.e., Alvey
Because neither of these decisions purported to overrule State v.
Crick, 675 P.2d 527 (Utah 1983), or State v. Alvarez, 872 P.2d 450(Utah 1994), and because both Telford and Calliham were issued
before both State v. Briggs, 2008 UT 75, 197 P.3d 628, and State v.
Jeffs, 2010 UT 49, 243 P.3d 1250, we do not view them as
dispositive.
20100978‐CA 13 2013 UT App 216State v. Binkerd
75, ¶ 14, 197 P.3d 628 (emphasis added). Nothing in the case law
suggests that this standard applies only when the principal and the
accomplice are both charged with crimes requiring the same intent,
as Defendant contends. Having disregarded the potential that his
words and actions demonstrated recklessness as to whether Alvey
would take the victim’s life, Defendant was properly convicted as
an accomplice to manslaughter.6
II. Defendant’s Trial Counsel Was Not Ineffective.
¶30 To establish a claim of ineffective assistance of counsel, a
defendant must demonstrate “(1) that counsel’s performance was
objectively deficient, and (2) a reasonable probability exists that but
for the deficient conduct defendant would have obtained a more
favorable outcome at trial.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162 (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
Defendant must overcome a “strong presumption that . . . trial
counsel rendered adequate assistance.” State v. Crosby, 927 P.2d
638, 644 (Utah 1996). We accord considerable deference in deciding
whether the “challenged action ‘might be considered sound trial
strategy.’” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana,
350 U.S. 91, 101 (1955)).
A. Defendant’s Trial Counsel Was Not Ineffective for
Requesting a Jury Instruction on Negligent Homicide.
¶31 Defense counsel’s decision to request or not request a lesser
included offense instruction at trial is afforded this same deference,
in recognition of the fact that counsel is in the best position to
gauge the defendant’s likelihood of defeating a charge outright and
to weigh the possibility that acquittal is not in the cards but that a
6. Because we determine that Defendant could legally be convicted
as an accomplice to manslaughter, it was not ineffective for defense
counsel to fail to make an argument to the contrary. “[T]he failure
of counsel to make motions or objections which would be futile if
raised does not constitute ineffective assistance.” State v. Malmrose,
649 P.2d 56, 58 (Utah 1982).
20100978‐CA 14 2013 UT App 216State v. Binkerd
jury might be satisfied with a conviction on a lesser charge. Cf. State
v. Hauptman, 2011 UT App 75, ¶ 10 n.4, 249 P.3d 1009 (recognizing
that “the failure to request such an instruction may have been part
of defense counsel’s trial strategy”); State v. Hall, 946 P.2d 712, 723
(Utah Ct. App. 1997) (“Defense counsel’s failure to request the
instructions, however, is entirely consistent with his trial
strategy.”).
¶32 In this case, it is probable that defense counsel believed that
the jury was likely to convict Defendant for his considerable
involvement in the events leading to the victim’s death. In an effort
to avoid a much more serious sentence for a conviction of
aggravated murder or murder, defense counsel no doubt requested
the instruction for the lesser included offense of negligent homicide
in order to provide the jury with an alternative that would work to
Defendant’s advantage. See State v. Tennyson, 850 P.2d 461, 465
(Utah Ct. App. 1993) (noting that “this court will not second‐guess
trial counsel’s legitimate strategic choices”). Therefore, “under the
circumstances, the challenged action ‘might be considered sound
trial strategy.’” Strickland, 466 U.S. at 689 (quoting Michel, 350 U.S.
at 101). Requesting the instruction was not ineffective, even if the
request then opened the door to an instruction for manslaughter.
We agree with the trial court that “[b]y requesting this instruction
on a lesser included offense, Defendant expanded the scope of
possible ‘underlying offenses’ to include criminal homicide in all
of its pertinent variations.” The critical issue in Defendant’s trial
was his mental state. Once Defendant opened the door with the
request for the negligent homicide instruction, it was a logical step
for the court to include the intermediate mental state required of
manslaughter. The evidence of record simply was not amenable to
resolution only at the two extremes of the spectrum—i.e., either
Defendant intended that his comments to Alvey would lead to the
victim’s murder or he was merely negligent with respect to where
his comments might lead. On the contrary, and as shown by the
verdict actually reached by the jury, the evidence was also
amenable to the conclusion that Defendant was reckless with
respect to the end result of his remarks.
20100978‐CA 15 2013 UT App 216State v. Binkerd
B. Defendant’s Trial Counsel Was Not Ineffective for Failing to
Argue that the Manslaughter Instruction Needed To Be
Submitted in a Prior Written Motion.
¶33 Defendant argues that his trial counsel was ineffective for
failing to argue that the prosecutor’s oral request for a
manslaughter jury instruction violated rule 19 of the Utah Rules of
Criminal Procedure. See Utah R. Crim. P. 19 (“At the final pretrial
conference or at such other time as the court directs, a party may
file a written request that the court instruct the jury on the law as
set forth in the request. . . . The court shall inform the parties of its
action upon a requested instruction prior to instructing the jury,
and it shall furnish the parties with a copy of its proposed
instructions, unless the parties waive this requirement.”). Counsel
was not ineffective in this regard because the State had already
submitted a written request for a manslaughter instruction prior to
trial, thereby providing Defendant with pretrial written notice.
Furthermore, rule 19 does not require written notice. See Utah R.
Crim. P. 19. In any event, a court “may, over the objection of the
defendant’s counsel, give any instruction that is in proper form,
states the law correctly, and does not prejudice the defendant.”
State v. Hansen, 734 P.2d 421, 428 (Utah 1986). Accord State v. Torres‐
Garcia, 2006 UT App 45, ¶ 23 n.4, 131 P.3d 292 (holding, on the
authority of Hansen, that the trial court’s decision to include a
limiting instruction was proper).
C. Defense Counsel Was Not Ineffective for Failing to Argue
that the State’s Requested Instruction for the Lesser
Included Offense of Manslaughter Violated State v. Baker.
¶34 State v. Baker, 671 P.2d 152 (Utah 1983), recognizes that
different tests apply when the defendant requests an instruction for
a lesser included offense as opposed to when the State makes such
a request. See id. at 156–59. The State is entitled to a lesser included
offense instruction when the elements of the lesser included offense
are “necessarily . . . included within the original charged offense.”
See id. at 156. Defendant could not have committed depraved
indifference murder—the offense originally charged by the
State—without having also committed reckless manslaughter. See
20100978‐CA 16 2013 UT App 216State v. Binkerd
State v. Standiford, 769 P.2d 254, 263–64 (Utah 1988) (explaining that
the difference between depraved indifference murder and reckless
manslaughter is the “slight degree of difference” in the “probability
of the risk of death” ignored by the defendant); Utah Code Ann.
§ 76‐2‐104 (LexisNexis 2012) (noting that a more culpable mental
state satisfies the mental state element of an offense requiring a less
culpable mental state). Therefore, counsel was not ineffective for
failing to argue that the State’s requested instruction violated Baker.
See State v. Howell, 649 P.2d 91, 95 (Utah 1982) (“[W]e hold that a
trial court may properly give a lesser included offense instruction,
even over a defendant’s objection, if there is clearly no risk that the
defendant will be prejudiced by lack of notice and preparation so
as to deprive him of a full and fair opportunity to defend
himself.”).7
7. Defendant also makes a cursory argument that his trial counsel
was deficient for failing to request a bill of particulars, and thereby
“opened the door for the jury to expand the scope of [Defendant]’s
reckless acts to weeks and even months before the actual crime.”
Defendant has failed to adequately brief this argument beyond
mention of the statute granting the right to request a bill of
particulars. See Utah Code Ann. § 77‐14‐1 (LexisNexis 2012) (“The
prosecuting attorney, on timely written demand of the defendant,
shall within 10 days, or such other time as the court may allow,
specify in writing as particularly as is known to him the place, date
and time of the commission of the offense charged.”). The
instructions provided to the jury specifically directed the jury to
consider the acts occurring “on or about December 26, 2008.”
Defendant fails to show how this was insufficient, beyond
mentioning that the jury asked three questions during its
deliberations. The Rules of Appellate Procedure require that a
party set forth the “contentions and reasons . . . with respect to the
issues presented, including the grounds for reviewing any issue
not preserved in the trial court, with citations to the authorities,
statutes, and parts of the record relied on.” Utah R. App. P.
24(a)(9). An “argument that does not contain reasoned analysis
based upon relevant legal authority is inadequately briefed and we
(continued...)
20100978‐CA 17 2013 UT App 216State v. Binkerd
III. The Trial Court’s Misinterpretation of the Dangerous
Weapon Enhancement Was Harmless Error.
¶35 The trial court admitted at the hearing addressing
Defendant’s motion for a new trial that it had originally
misinterpreted the dangerous weapon enhancement. See Utah
Code Ann. § 76‐3‐203.8 (LexisNexis 2012). While the court
sentenced Defendant to a one‐to‐five‐year increase on his sentence
as a result of the enhancement, it acknowledged the error after
Defendant raised the issue that the court had the discretion not to
impose the full five‐year enhancement. The court explained,
however, that had it correctly understood the statute at the time of
sentencing, it would have imposed the same sentence
regardless—a sentiment that is entirely credible given the record
before us. Therefore, the error was harmless. See State v. Hamilton,
827 P.2d 232, 240 (Utah 1992) (holding that an error is harmless if
“there is no reasonable likelihood that the error affected the
outcome of the proceedings”). The trial court has already
accounted for its error, and there is no need to remand for
resentencing.8
7. (...continued)
will not consider the issue.” State v. Sloan, 2003 UT App 170,
¶ 15 n.1, 72 P.3d 138 (citation and internal quotation marks
omitted).
8. Defendant also argues that plain error resulted from a number
of his trial counsel’s other decisions at trial. However, given our
resolution of the issues dealt with in this opinion, such as the
application of the accomplice liability statute, see supra section I, we
need not address those issues. See State v. Carter, 776 P.2d 886, 888
(Utah 1989) (“[T]his [c]ourt need not analyze and address in
writing every argument, issue, or claim raised and properly before
us on appeal. Rather, it is a maxim of appellate review that the
nature and extent of an opinion rendered by an appellate court is
largely discretionary with that court.”).
20100978‐CA 18 2013 UT App 216State v. Binkerd
CONCLUSION
¶36 A defendant charged as an accomplice can be convicted of
a different crime than the principal actor. A theory of accomplice
liability does not foreclose a conviction for manslaughter in this
case. Defendant has established neither that his trial counsel
rendered ineffective assistance nor that the trial court committed
plain error. The court remedied its misinterpretation of the
dangerous weapon enhancement, making its admitted error
harmless.
¶37 Affirmed.
20100978‐CA 19 2013 UT App 216