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State v. Sosa-Hurtado

Court of Appeals of Utah

March 1, 2018

State of Utah, Appellee,
Yelfris Sosa-Hurtado, Appellant.

         Third District Court, Salt Lake Department The Honorable Denise P. Lindberg No. 121902927

          Herschel Bullen, Attorney for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Ryan M. Harris authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.

          HARRIS, JUDGE.

         ¶1 A father (Father) and his son (Son) were working together in a small corner smoke shop when Defendant Yelfris Sosa-Hurtado, having lost a fistfight with Son less than an hour earlier, entered the smoke shop with a rifle. Defendant fired one shot at Father, missing but causing secondary injuries, then fired three shots at Son, fatally wounding him. Defendant then fired another six shots outside the shop at no particular target.

         ¶2 After trial, Defendant was convicted of aggravated murder, a first degree felony; discharge of a firearm with injury, a second degree felony; and eight counts of discharge of a firearm, all third degree felonies. The aggravator enhancing Defendant's murder charge was that Defendant, in murdering Son, also "knowingly created a great risk of death to a person other than [Son]." Defendant appeals all of these convictions, arguing that the aggravator was unsupported by the evidence, and arguing that, for various reasons, the trial court should have granted his motions for mistrial and for new trial. We affirm Defendant's convictions.


         ¶3 On March 14, 2012, Father and Son were working at a smoke shop when Father noticed a car parked in an alley next to the shop that was situated in such a way that Father worried it might cause a hazard for the shop's patrons. Father approached Defendant, who was standing near the car, explained his concerns, and asked Defendant to move the car. Defendant refused. Father noted his own physical disability and stated that there wasn't anything he could personally do about Defendant's refusal, but repeated his concern that people could be injured and reiterated his request that Defendant move his car. Defendant again refused to move the car and asked, "What are you going to do about it?"

         ¶4 Following this exchange, Father went back inside the smoke shop and told Son what had happened, and Son decided to go outside and talk to Defendant. Son's entreaty was likewise unpersuasive; when Son asked Defendant to move the car, Defendant not only refused, but also punched Son in the face. Son returned blows, and a fistfight ensued, with Son ending up getting the better of Defendant. When the fight was over, Defendant got into the car and fled, and Father and Son went back inside the shop.

         ¶5 After fleeing from the fistfight, Defendant went to a friend's (Friend) house, and complained to Friend that people at the smoke shop had hit him. Friend offered to help Defendant go back and fight those who hit him. Defendant agreed that this sounded like a good idea, and so the two of them drove back to the smoke shop. When they arrived, they both exited the car, and Friend began to walk toward the entrance. Before he got there, Defendant passed Friend and entered the smoke shop carrying a high-powered rifle that was approximately three feet long.[1] Once inside, Defendant told a customer to leave the premises, and then began shooting.

         ¶6 The smoke shop consisted of one room that was approximately twenty-four feet long and fifteen feet wide, with a single door along the longer wall. When Defendant entered the shop, Father and Son were standing behind a waist-high glass counter that was laid out in an S-shape near the wall opposite the door. Father and Son were standing between three and seven feet apart. Defendant proceeded across the small shop, toward Father and Son, until he was standing approximately three feet from the counter and some five feet away from both Father and Son. From this location, Defendant fired a single shot in Father's direction, narrowly missing Father but hitting the glass counter and interior shelving near Father, causing glass and wood shrapnel to hit Father's leg. After this shot was fired, Father fell to the floor behind the counter.

         ¶7 After missing his shot at Father, Defendant immediately turned toward Son and took one or two steps toward him, saying, "I'm going to kill you." Defendant stopped when he was standing at the counter, approximately three feet away from Son, and extended the barrel of the gun toward Son, so that the muzzle of the rifle was very close to Son. From that location, Defendant shot Son, causing Son to fall on the floor behind the counter. Defendant then leaned over the counter, and shot Son two more times. While Defendant was shooting Son, neither Defendant nor his rifle was facing Father; rather, Father was to Defendant's right, about five feet away, on the floor behind the counter. Still, Father was close enough to feel the "muzzle blast" from the rifle on his face as Defendant shot Son. After shooting Son, Defendant left the store through the front door and fired another six shots outside the shop, apparently at no particular target.

         ¶8 After interviewing witnesses and conducting an investigation, law enforcement officers apprehended Defendant and Friend a few days later. Defendant was charged with aggravated murder, discharge of a firearm causing bodily injury, and eight counts of discharge of a firearm. Friend was charged with murder, and with nine counts of discharge of a firearm. The aggravator enhancing Defendant's murder charges was that Defendant, in the course of murdering Son, also "knowingly created a great risk of death" to Father.

         ¶9 At trial, Father and several other witnesses testified during the State's case-in-chief, identifying Defendant as the shooter and describing the argument and fistfight between Defendant, Father, and Son. These witnesses also described Defendant's conduct during the shooting itself. Friend was one of these witnesses, and he described his conversation with Defendant following the fistfight, their subsequent drive to the smoke shop, and the events that took place after their arrival. Friend gave this testimony pursuant to a plea bargain in which the State agreed to reduce Friend's charges and recommend only probation in this case in exchange for Friend's truthful testimony. As part of this plea agreement, the State also agreed to dismiss an aggravated burglary charge against Friend in a separate case in which Defendant was also a codefendant. During cross-examination, Defendant's counsel asked Friend about the details of his plea arrangement, including whether he had an aggravated burglary charge pending in a separate case. When Friend answered that question in the affirmative, Defendant's counsel asked if that charge would also be dismissed as part of the bargain. Friend responded, "I think, " at which point the State requested a sidebar.

         ¶10 During the sidebar, the State explained that the aggravated burglary charge was for an incident that took place ten days prior to the events at the smoke shop. The State acknowledged that it intended to dismiss Friend's aggravated burglary charge, but also stated that part of the plea agreement in this case was that Friend would also testify against Defendant in the aggravated burglary case, if necessary. The State asserted that if Defendant's counsel questioned Friend about the aggravated burglary charge, it would open the door for Friend to disclose that Defendant was a codefendant in that case, thereby alerting the jury to the fact that Defendant also stood accused of committing aggravated burglary in a separate incident just ten days before the events at the smoke shop. In response, Defendant's counsel stated that Friend's counsel had informed Defendant's counsel that Friend's aggravated burglary charge would be dismissed in exchange for Friend's testimony in this case. Defendant's counsel then stated that he would rather not provide the State with an opportunity to tell the jury about Defendant's potential culpability in the aggravated burglary case, and therefore elected to refrain from further questioning on the subject. The trial court then instructed the jury to "disregard any reference or any discussion that was previously made about any unrelated case being dismissed."

         ¶11 As the trial continued, the State presented further testimony from law enforcement officers who investigated Defendant's involvement in this case. These officers testified that Defendant had access to an AK-74, the type of rifle that the State believed was used in the shooting. One officer (Officer) also testified that, on the day Defendant was arrested, Defendant still had bruising on his face. Following Officer's testimony, the jury submitted proposed questions to the trial court, some of which the court directed Officer to answer. One of these questions asked Officer whether, at the time Defendant was arrested, Defendant had offered any explanation for the bruising on his face. In response, Officer stated that, while law enforcement officers had noticed the bruising at the time of Defendant's arrest, "because he invoked his rights we weren't able to ask him about that, so we didn't get an answer to that."

         ¶12 Defendant's counsel quickly objected to Officer's response. Outside the presence of the jury, Defendant's counsel moved for a mistrial, arguing that Officer had improperly commented on Defendant's invocation of his constitutional right to be free from self-incrimination. The State opposed the motion for mistrial, and asserted that Officer's reference to Defendant's invocation of his rights was harmless because it was indirect, inadvertent, and would not be used by the State as evidence of Defendant's guilt. The State instead suggested that the court give a curative instruction to the jury explaining to them that Defendant did nothing wrong by invoking his right to remain silent. In response, Defendant's counsel indicated that she would object to a curative instruction and reiterated that she believed mistrial was the only appropriate remedy for any harm caused by Officer's statement. The court denied Defendant's motion for a mistrial and, because Defendant objected to one, did not give a curative instruction. Neither Defendant nor the State brought up Officer's statement again.

         ¶13 At the close of the State's case-in-chief, Defendant moved to dismiss the aggravator enhancing his murder charge. Defendant argued that the State had not presented sufficient evidence that Defendant, in murdering Son, had knowingly exposed Father to a great risk of death, because Defendant's shots directed towards Son occurred at close range when Father was several feet outside of Defendant's direct line of fire. Defendant also asserted that because Defendant's first shot (directed at Father) was not one of the shots contributing to Son's death, it should not factor into the analysis of whether Defendant created a great risk of death to Father. The trial court denied Defendant's motion to dismiss the aggravator.

          ¶14 Following the presentation of the State's case-in-chief, Defendant elected to testify on his own behalf. During the State's cross-examination, Defendant admitted to buying ammunition for an AK-74 at one point in time but denied buying ammunition on four other occasions. In response, the State tried to impeach Defendant by producing ammunition purchase receipts that the State represented were found in Defendant's house pursuant to a search warrant. Defense counsel objected, on the ground that the receipts in question were not in fact seized from Defendant's home. After a brief recess, the State conceded that the receipts had not been found in Defendant's house, and therefore the trial court sustained Defendant's objection. In addition, at the trial court's instruction, the prosecutor explained to the jury that the State could not tie the ammunition purchases represented by the receipts to Defendant, and apologized to the jury for stating otherwise.

         ¶15 After presentation of the evidence, the case was submitted to the jury, which deliberated for an entire day, from 8:00 a.m. until nearly 5:00 p.m. At about 4:30 p.m., without previously seeking the input of the attorneys, the trial judge entered the jury room and asked the jurors whether they were close to a verdict, such that they could conclude deliberations that day, or whether they thought they would need to come back the next day. The jurors indicated that they thought they were "close to a verdict" but that they would "let [the court] know . . . if [they] needed to reconvene." Within minutes of this communication, the trial judge entered the courtroom and informed the attorneys of the interaction, and made a record of what was said. At the time, neither party objected to the trial court's ex parte communication. A few minutes later, around 5:00 p.m., the jury indicated that it had reached a verdict, which was then read in open court. The jury convicted Defendant on all charges, and determined that the aggravator applied to Defendant's murder conviction.

         ¶16 About six weeks after Defendant's conviction, the trial court sentenced Defendant to life in prison without the possibility of parole for aggravated murder; to a term of three to fifteen years for discharge of a firearm with injury to another, to run consecutive to the murder sentence; and to a term of three to five years for each of the eight counts of discharge of a firearm, to run concurrently with each other and with the other sentences. Within ten days of sentencing, Defendant filed a Motion for New Trial pursuant to rule 24 of the Utah Rules of Criminal Procedure, which required (at the time) that a Defendant must move for new trial "not later than 10 days after entry of the sentence" and that "affidavits or evidence of the essential facts in support of the motion" must be submitted with the motion. Utah R. Crim. P. 24(b), (c) (2007).[2] Defendant's motion cited to the trial testimony, but did not attach any other supporting evidence. Over the next several months and without seeking leave from the court, Defendant filed a number of affidavits and exhibits, as well as an amended motion for new trial. The trial court refused to consider these additional documents on the ground that they were untimely submitted and procedurally improper. Thus, in evaluating whether to grant Defendant a new trial, the court considered only Defendant's original motion for new trial and the trial record itself.

         ¶17 In his original motion, Defendant asserted that he was entitled to a new trial for several reasons. First, he claimed that the State "misled" Defendant into believing that Friend's aggravated burglary charge in the separate case would not be dismissed on the basis of Friend's testimony in this case, when Defendant asserts that the State in fact did dismiss Friend's aggravated burglary charge after Friend's testimony in this case. Next, Defendant claimed that he was entitled to a new trial because the receipts that the State attempted to introduce (then withdrew and apologized for after Defendant's objection) were allegedly "doctored" by the State.[3] Finally, Defendant claimed that he was entitled to a new trial because the trial court's ex parte communication with the jury thirty minutes before delivery of the verdict was prejudicial, in that it may have influenced the jury to resolve the case more quickly than it otherwise would have. After reviewing Defendant's motion, the court determined that an evidentiary hearing was not necessary and denied Defendant's motion in a written ruling.

         ¶18 Defendant appeals.

         ISSUES AND ...

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