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State v. Silva

Supreme Court of Utah

July 23, 2019

State of Utah, Appellee,
v.
Luciano Gabriel Silva, Appellant.

          On Direct Appeal Second District, Weber County The Honorable Ernest W. Jones No. 151901996

          Sean D. Reyes, Att'y Gen., Jeffrey D. Mann, Asst. Solic. Gen., Salt Lake City, Branden B. Miles, Letitia J. Toombs, Josh B. Wayment, Ogden, for appellee

          Cherise Bacalski, Orem, Emily Adams, Bountiful, for appellant

          Associate Chief Justice Lee authored the opinion of the Court, in which Chief Justice Durrant, Justice Himonas, Justice Pearce, and Justice Petersen joined.

          OPINION

          LEE ASSOCIATE CHIEF JUSTICE

         ¶1 Luciano Silva was convicted of murder after shooting and killing his roommate's friend. He challenges his conviction on this appeal, asserting that the trial court committed reversible error when it (1) precluded him from arguing perfect self-defense and (2) refused to declare a mistrial after the prosecutor asked Silva to demonstrate the shooting using a facsimile gun. We disagree. Any error the trial court committed when it refused to allow a claim of perfect self-defense was harmless. And though we are troubled by aspects of the demonstration directed by the prosecutor, we cannot say that the trial court abused its discretion when it denied Silva's motion for a mistrial. We therefore affirm the conviction.

         I

         ¶2 On the night of the shooting, Silva returned home to his trailer to find his roommate, Fabricio, with a friend, Horacio. Silva did not know Horacio. But he soon learned that Horacio was previously a member of the Norteño gang-the same gang Silva once belonged to.

         ¶3 Silva offered to buy methamphetamine and share it with Fabricio and Horacio. He made a phone call and arranged for a drug delivery. While waiting for the delivery, Horacio listened to music by the Salineros, a group associated with the Norteños. Silva questioned Horacio about the music before going to his bedroom. There he mentioned to Fabricio that he was bothered by the music. And he cleaned some bullets for his gun-a gun that he had purchased illegally, allegedly for protection from his former gang.

         ¶4 Silva eventually learned that the drug delivery had failed. Undeterred, he decided to walk to another seller's home. Silva first asked Fabricio to accompany him. But Fabricio said he wasn't interested in going. So Silva asked Horacio to accompany him and he did. About ten to fifteen minutes later, Silva returned home alone without any drugs. He claimed that Horacio had left him at some point during the walk.

         ¶5 The next morning, Horacio's body was found with a gunshot wound to the back of the head. While police were trying to identify Horacio, Silva and Fabricio went to Walmart to buy some groceries. On the way there, Silva admitted to Fabricio that he had shot Horacio in the back of the head. And he explained that he shot him because he was listening to Norteño music.

         ¶6 Police eventually identified Horacio using his cell phone. They also discovered a photo from Horacio's Facebook account that showed the license plate of a vehicle registered to Silva's address. So an officer was assigned to observe Silva's trailer.

         ¶7 Later that day, Silva left his trailer to go pick up his daughter. He was immediately approached by the police. They asked if he knew Horacio, and at first he lied. But he eventually admitted he knew him but not well. And he agreed to go to the police station for further questioning. At the station, Silva again concealed the truth in his initial interactions with the police. But he eventually came clean. He told the police that he and Horacio were on their way to purchase drugs when Horacio discovered that he was carrying a gun. He said that Horacio had asked him if he could hold the gun, that Silva had handed it over, and that Horacio had then turned the gun on Silva and asked to see the money that Silva had brought to purchase drugs. Silva indicated that he had knocked the gun out of Horacio's hand, pushed Horacio back, gained control of the gun, and fired a shot at the back of Horacio's head. After shooting Horacio, Silva said he had thrown the gun into a nearby river and then went home and hid the clothes he was wearing under his bed.

         ¶8 When asked about the details of the shooting, Silva admitted that he knew Horacio was facing away from him when he shot him and that Horacio was unarmed. But he stated that Horacio was turning towards him when he shot him. He also told police that he felt "comfortable" just before the shooting. And he acknowledged that instead of shooting Horacio he could have ran away or "pointed the gun at him and walked away."

         ¶9 The State charged Silva with first-degree murder, two counts of obstructing justice (for his efforts to hide the gun and his clothing), and one count of possession of a firearm by a restricted person (because Silva is an illegal alien). Before trial, the State moved pursuant to Utah Code section 76-2-402(2)(a)(ii) to preclude the jury from considering perfect or imperfect self-defense. That section prohibits a person from using force in self-defense if the person "is attempting to commit, committing, or fleeing after the commission or attempted commission of a felony." Utah Code § 76-2-402(2)(a)(ii) (2017).[1] The State argued that the felonious conduct Silva was engaged in when he killed Horacio was (1) attempted possession of methamphetamine and (2) possession of a firearm by a restricted person. See id. §§ 58-37-8, 76-10-503(2)(a) (2014) (defining respectively the crimes of possession of a controlled substance and possession of a firearm by a restricted person).[2] Silva conceded that he was an illegal alien in possession of a firearm. But he argued that the statute as applied to him unconstitutionally infringed his right to self-defense. He also argued that the statute should not apply because he was not attempting to purchase drugs or fleeing from such an attempt when the shooting occurred. The trial court rejected both arguments. It ruled that the jury could not consider perfect self-defense because Silva was "involved in two felonies at the time of the homicide"-the two identified by the State. Yet "while [Silva] [was] not entitled to claim 'perfect' self-defense," the court allowed him to argue "'imperfect' self-defense to the jury."

         ¶10 At trial, Silva largely retold the narrative he provided to the police. But his testimony varied in key ways. He testified that he felt scared, rather than comfortable, just before he shot Horacio. And he stated that he was not sure whether Horacio was facing towards or away from him when he shot him. He also testified that he thought Horacio may have had a weapon at the time he shot him, contradicting his prior statement. He maintained, however, that Horacio was turning towards him when he shot him. And he again conceded that he had other options besides shooting Horacio, including throwing the gun out of Horacio's reach or simply running away.

         ¶11 During cross-examination, the prosecutor gave Silva a "facsimile gun" and asked him to "demonstrate exactly how [he] was holding the gun when [he] shot Horacio." The prosecutor then separated himself some distance from Silva, turned away from him, and asked him if he thought his life was in danger. Silva said no. The prosecutor repeated this question two more times while slowly turning towards Silva. And Silva reaffirmed both times that he did not feel in danger. Silva's counsel interjected, noting "for the record" that the prosecutor "had his back turned and then he turned around forward and then held his hands up." He also noted the differences between the courtroom setting and the setting of the shooting- specifically that they were "in a courtroom . . . with bailiffs, et cetera." During re-examination, Silva clarified that he did not feel in danger during the demonstration because he was in a courtroom; he misunderstood that the prosecutor was speaking of the night he killed Horacio.

          ¶12 Following Silva's testimony, his trial counsel moved for a mistrial. Counsel asserted that it was "horrendously prejudicial" for the jury to see the reenactment and a gun in Silva's hand and that the demonstration should have been disallowed under Utah Rule of Evidence 403. The prosecutor responded that Silva's "actions [were] central to the issues of this case." He further argued that Silva never denied the fact that he had held a gun or killed Horacio. So "[t]he fact that he held a plastic gun in court in an effort to aid the jury in understanding what happened . . . was relevant and not prejudicial." The trial court agreed with the prosecutor. It denied the motion for a mistrial, stating that the demonstration was not "prejudicial at all" but was rather "central to the whole case." The jury ultimately convicted ...


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