State v. Augustine , 298 P.3d 693 ( 2013 )

2013 UT App 61_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CODY JESSE AUGUSTINE,
Defendant and Appellant.
Memorandum Decision
No. 20110454‐CA
Filed March 7, 2013
Third District, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 081905753
Stephen W. Howard, Attorney for Appellant
John E. Swallow and Karen A. Klucznik, Attorneys for Appellee
JUDGE JAMES Z. DAVIS authored this Memorandum Decision,
in which JUDGES J. FREDERIC VOROS JR.
and STEPHEN L. ROTH concurred.
DAVIS, Judge:
¶1 Cody Jesse Augustine appeals his conviction for attempted
murder, a first degree felony, see Utah Code Ann. § 76‐5‐203(2)–(3)
(LexisNexis 2012);1 id. §§ 76‐4‐101, ‐102, arguing that the trial
court’s exclusion of his expert witness and permitting the prosecu‐
1. Where subsequent amendments to the relevant statutory
provisions do not affect our analysis, we cite the most recent
version of the Utah Code.
State v. Augustine
tion to call Scott Stapley2 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 individ‐
ual.” Augustine argues that the trial court’s determination was
incorrect and that, as a result, his constitutionally protected right
2. Augustine and Stapley were jointly charged with attempted
murder, but the cases were ultimately severed. See generally State
v. Stapley, 2011 UT App 54, 249 P.3d 572.
20110454‐CA 2 2013 UT App 61State v. Augustine
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
20110454‐CA 3 2013 UT App 61State v. Augustine
21, ¶ 22 (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 suffers from an extreme emotional disturbance
when he is exposed to extremely unusual and overwhelming stress.”
Shumway, 2002 UT 124, ¶ 9 (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 (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]
3. Augustine notes that a defendant is not required “to show a
highly provocative triggering event that was contemporaneous
with [his] loss of self‐control” to be entitled to an instruction on the
extreme emotional distress defense. See State v. White, 2011 UT 21,
¶ 30, 251 P.3d 820 (citation and internal quotation marks omitted).
It is true that “a building emotional reaction to a series of events
may contribute to extreme emotional distress,” and that “an external
triggering event” need not occur contemporaneously. Id. ¶ 32(explaining that “[a]n external trigger is a necessary predicate to
access the defense because other preeminent causes of emotional
distress—organic causes relating to mental illness and self‐inflicted
causes—are expressly rejected as a form of distress under the
statute”). However, while Augustine’s childhood traumas may
(continued...)
20110454‐CA 4 2013 UT App 61State v. Augustine
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
3. (...continued)
have contributed to the stress he felt the evening of the attack on
J.E., it does not change the fact that the “external triggering
event[s]” Augustine specifically identifies were self‐created.
20110454‐CA 5 2013 UT App 61State v. Augustine
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.
20110454‐CA 6 2013 UT App 61State v. Augustine
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 they fairly
instruct the jury on the law applicable to the case, the
fact that one of the instructions, standing alone, is not
as accurate as it might have been is not reversible
error.
State v. Lucero, 866 P.2d 1, 3 (Utah Ct. App. 1993) (citations
omitted). Accordingly, “[e]ven if we find error in the jury
instruction, we will not reverse [a] defendant’s conviction unless
that error is harmful.” State v. Shepherd, 1999 UT App 305, ¶ 23, 989
P.2d 503 (second alteration in original) (citation and internal
quotation marks omitted).
¶10 Here, instruction twelve explains the accomplice liability
standard by quoting the relevant statutory provision word‐for‐
word: “Every 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.” See Utah
Code Ann. § 76‐2‐202 (LexisNexis 2012). This instruction clearly
indicates that a requirement of accomplice liability is that the
accomplice “act[] with the mental state required for the . . .
offense,” which in this case was attempted murder. Instruction
fifteen outlines the elements of attempted murder:
Before you can convict the defendant of the offense
of Attempted Criminal Homicide, Murder, . . . you
must find from all of the evidence and beyond a
reasonable doubt each and every one of the
following elements of that offense that is alleged to
have occurred on or about July 28–29, 2008:
20110454‐CA 7 2013 UT App 61State v. Augustine
1. That in Salt Lake County, State of
Utah;
2. The defendant intentionally attempted
to cause the death of another person;
and
3. That the victim suffered serious bodily
injury in the course of the offense.
Thus, even assuming the jury focused on the accomplice liability
instruction in the face of compelling evidence of Augustine’s
liability as a principal, this instruction clearly indicates that a
conviction for attempted murder requires a finding that the
defendant had the “intent[ to] attempt[] to cause the death of
another person” or, as the parties referred to it throughout the trial,
the “inten[t] to kill.” Thus, reading instructions twelve and fifteen
together, the mens rea required for accomplice liability was
adequately explained by the jury instructions provided. Cf. State v.
Larsen, 876 P.2d 391, 396–97 (Utah Ct. App. 1994) (affirming the
given jury instruction as adequate where “the instruction properly
followed the language of the [relevant] statute and additional
instructions clearly defined the requisite intent”); Lucero, 866 P.2d
at 3 (noting that room for improvement in a given jury instruction
does not render the instruction given inadequate).
III. Calling Stapley as a Witness
¶11 Last, Augustine contends that after Stapley informed the
court of his intention to remain silent, having Stapley subsequently
refuse to testify in the presence of the jury allowed the State to
support its case with the inferences that could be drawn from
Stapley’s refusal, thereby denying Augustine his constitutional
right to a fair trial. We review questions of constitutional law for
correctness. See State v. Martinez, 896 P.2d 38, 39–40 (Utah Ct. App.
1995). We affirm the trial court’s decision.
20110454‐CA 8 2013 UT App 61State v. Augustine
¶12 The issue here boils down to whether the conversation that
occurred outside of the jury’s presence during which Stapley
indicated that he had been planning on refusing to testify
amounted to his having actually invoked a Fifth Amendment
privilege. A witness’s “exercise of the [Fifth Amendment] privilege
is not evidence to be used in the case by any party.” State v. Travis,
541 P.2d 797, 799 (Utah 1975) (emphasis, citation, and internal
quotation marks omitted); see also State v. Maestas, 2012 UT App 53,
¶ 62, 272 P.3d 769 (“[O]ut of concern that a defendant’s invocation
of the Fifth Amendment may improperly prejudice his standing
before the court or jury, a defendant is even prohibited from calling
a codefendant to the stand to force him to invoke his privilege
against self‐incrimination.” (citation omitted)). It is considered
unprofessional conduct when an attorney “calls a witness to testify
who he knows will claim a valid privilege not to testify for the
purpose of impressing upon a jury the fact that the privilege is
being claimed.” State v. Schreuder, 712 P.2d 264, 274 (Utah 1985).
Nonetheless, an attorney “‘need not accept at face value every
asserted claim of privilege, no matter how frivolous.’” United States
v. Torrez‐Ortega, 184 F.3d 1128, 1137 (10th Cir. 1999) (quoting Namet
v. United States, 373 U.S. 179, 188 (1963)). It “is sufficient to defeat
[the] suggestion [that a witness is being called for an] improper . . .
purpose” when the attorney calling the witness has “a
colorable—albeit ultimately invalid—argument” that the witness
could not validly claim the privilege. See id. Compare Namet, 373
U.S. at 188 (concluding that it was not reversible error to allow the
prosecutor to call witnesses to the stand who had given advance
notice of their intention to invoke the Fifth Amendment where “the
prosecutor initially did not believe that the [witnesses] could
properly invoke their privilege against self‐incrimination,
reasoning with some justification that their pleas of guilty to the
gambling charges would erase any testimonial privileges as to that
conduct,” and where that “view of the law was supported by
substantial authority”), with United States v. Martin, 526 F.2d 485,
487 (10th Cir. 1975) (determining that “the trial court did not err in
refusing to permit [a witness] to be called to the stand and thus be
compelled to invoke his Fifth Amendment rights in the presence of
20110454‐CA 9 2013 UT App 61State v. Augustine
the jury” when “[a]ll concerned knew full well that the [witness]
intended to invoke his Fifth Amendment right not to testify[, h]e
had already done so successfully at the first trial[,] . . . it was
assumed . . . that the [witness]’s claim of privilege was a valid one[,
and] . . . [d]efense counsel in the trial court did not in any[ way]
suggest that the [witness]’s claim was invalid”). Thus, “reversible
error is [not] invariably committed whenever a witness” is called
before the jury and “claims his privilege not to answer.” Namet, 373
U.S. at 186; accord State v. Boyland, 495 P.2d 315, 317 (Utah 1972).
¶13 Here, neither the trial court nor Stapley’s counsel were sure
as to whether Stapley could validly claim a Fifth Amendment
privilege in Augustine’s case. The trial court stated,
Mr. Stapley, it’s by no means clear to me that you
have a Fifth Amendment right to not testify. So I’m
not sure you can[] constitutionally [refuse to] testify.
Based on the fact that you testified at your trial and
you were found guilty, and I’m not sure that that
means there is one, but I think there is, arguably
there is a Fifth Amendment right. But I will tell you
as a matter of law, it’s not clear to me whether you
can assert that.
Stapley’s trial counsel noted that he had explained to Stapley the
possible ramifications of refusing to testify in this case if the court
determined that he did not have a valid Fifth Amendment right,
including the possibility that he could be charged with obstruction
of justice or held in contempt, and Stapley confirmed that he
understood. He was then dismissed from the courtroom and the
trial court explained that for Stapley to validly claim his Fifth
Amendment right, he needed to do so on the witness stand.
Augustine’s trial counsel agreed that it was not clear whether
Stapley would refuse to testify, but nonetheless requested that
Stapley be called to claim the privilege without the jury present out
of concern that Stapley’s refusal would lead the jury to draw
prejudicial inferences against Augustine. The trial court denied
20110454‐CA 10 2013 UT App 61State v. Augustine
Augustine’s request. Stapley took the stand in the presence of the
jury and responded to the court’s attempt to swear him in by
stating, “I refuse to.” The court then clarified with Stapley if it was
his decision “not to say anything,” to which Stapley responded,
“Yes.” The trial court excused Stapley, the State rested, and
Augustine proceeded to present his defense.
¶14 Under the facts and circumstances of this case, we do not
believe that error, let alone reversible error, occurred or that
Augustine’s constitutional rights were violated when the trial court
permitted the State to call Stapley as a witness simply because
there was a likelihood that Stapley would refuse to testify
regardless of whether he could validly do so. The parties and the
trial court were unsure whether Stapley could validly claim the
privilege. Stapley was present when both his trial counsel and the
trial court expressed their hesitation as to whether Stapley could
validly claim a Fifth Amendment privilege in this case and he was
reminded by his counsel and the court what the ramifications of
remaining silent would be if the privilege was deemed
inapplicable. Given the emphasis on the uncertainty as to what
Stapley’s rights were in this case, it was reasonable for the State to
call Stapley to allow him the opportunity to change his mind and
to determine if the trial court would accept Stapley’s exercise of the
privilege. This is far from a situation where the prosecutor “call[ed]
a witness who he kn[ew would] claim a valid privilege not to
testify, for the purpose of impressing upon the jury the fact of the
claim of privilege.” See Travis, 541 P.2d at 799 (citation and internal
quotation marks omitted). The State did not pose any questions to
Stapley before he was excused, Stapley uttered four words on the
witness stand, and the trial court denied the State’s attempt to
recall Stapley as a rebuttal witness after the defense rested. Without
more, we are not convinced that the prosecution’s actions amount
to what Augustine describes as a “flagrant . . . attempt[] to
improperly influence the jury.” (Internal quotation marks omitted.)
Accordingly, we conclude that it was not reversible error or a
violation of Augustine’s constitutional rights for the State to
request and the trial court to require that Stapley refuse to testify
20110454‐CA 11 2013 UT App 61State v. Augustine
in the presence of the jury. Cf. McBride v. State, 477 A.2d 174, 186–88
(Del. 1984) (concluding that it was not error for the trial court to
permit the State to call the codefendant as a witness even though
he ultimately invoked his Fifth Amendment right to refuse to
testify because the codefendant “had clearly waived his Fifth
Amendment right not to testify by having testified in his own
defense at his earlier trial,” “the record [did] not establish that the
State knew to a certainty that [the codefendant] would refuse to
give any testimony,” and the question “that prompted his refusal
to testify further was directed solely to [his own] role in the
victim’s killing, not [the] defendant’s”).
¶15 In sum, Augustine was not entitled to the affirmative
defense of extreme emotional distress because the stressors he
identified as triggering his extreme emotional distress were self‐
created. As a result, we do not address Augustine’s other
arguments related to his defense of extreme emotional distress. The
jury instructions adequately explained the mens rea requirement
for a conviction either as an accomplice or a principal, and it was
not a violation of Augustine’s constitutional rights to have Stapley
assert his Fifth Amendment privilege in the presence of the jury.
Affirmed.
20110454‐CA 12 2013 UT App 61