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Wednesday, August 3, 2016

The Court Cannot Give New Jury Instructions Without Consulting Counsel

In State v. Dozah, 2016 UT App. 13, Defendant appealed his convictions for aggravated kidnapping and aggravated assault.  The Court of appeals vacated Defendant’s convictions and remanded the case.

The victim in this case was tied up and abused by a third party named Chris, for drug deal related transgressions. Victim had been tied up and physically and verbally abused prior to Defendant arriving on the scene. Defendant relayed a message about crossing the drug supplier to victim. He also suggested to Chris that they untie victim.  Chris threatened defendant if he untied victim. Defendant, with Chris, then drove victim to an isolated area under the guise of taking him to a bus to leave town. Defendant left victim in a remote location, in below freezing weather, dressed in inadequate clothing. Defendant testified that he did not instigate the situation and he complied with Chris because he was scared for himself. He also tried to intervene on behalf of the victim.

Based on the evidence presented the Court denied Defendant’s compulsion instruction and Defendant did not argue compulsion in his closing.  While the jury was deliberating, they sent a question to the judge. The jury wanted to know a definition and if leaving victim on the road constituted aggravated assault. The judge, without advising or consulting the attorneys, answered the questions by directing to jury to look at the jury instructions and telling them they must decide. After the verdict the trial court denied Defendant’s motion for a new trial.

Defendant’s first ground for appeal is that the court erred in denying Defendant’s request for a compulsion instruction. On appeal, a challenge to jury instructions is reviewed for correctness. Defendant is entitled to an affirmative defense if evidence has been presented that provides any reasonable basis upon which a jury could conclude that the affirmative defense applies.  Defendant does not get the jury instruction if the evidence is so slight as to be incapable of raising a reasonable doubt. Defendant must demonstrate that some evidence was put before the jury. Compulsion occurs when a person is made to commit an illegal act through a specific, imminent threat to self and that person has no reasonable alternative to violating the law.  The Court of Appeals upheld the trial court’s denial because the evidence presented was that Defendant only faced a threat of harm if he untied the victim, not if he refused to perform a criminal act.  

Defendant appeals based on the trial court's response to the jury question. Defendant claimed the judge's response left the jury with an incorrect understanding of the law, was an improper, ex parte contact with the jury, and denied the defendant his due process right to be present at the hearing. 

Under the Sixth Amendment, Defendant has the right to be present at any stage of the criminal proceeding that are critical to the outcome of the case and his presence would benefit the fairness of the procedure. This does not equate to the right to be present at all times. Furthermore, under the Utah Code of Civil Procedure, the court does not have to consult with counsel when answering every jury question. Answers that amount to new, substantive, jury instructions should only be given after consulting with counsel. Defendant claims the trial court's response to the jury's second question not only contained an substantive instruction, but erroneously misstated the law. The test is to look at the effect the court had on the jury and not the intent of the judge when answering the question. 

The Court of Appeals agreed with Defendant. The jury question indicated the jury may base its decision on an improper statement of law. The trial court was responsible to correct this error.  However, the answer given by the trial court could be interpreted as a new instruction that could contradict the prior instruction on  the law and did not accurately state the law. This amounts to prejudicial error and the Court vacated the defendant's conviction for aggravated assault. 

Because aggravated assault is a predicate offense for aggravated kidnapping, this conviction was also vacated. The State argued that the Court should just enter a conviction for simple kidnapping instead.  The Court may enter a conviction for a lesser included offense if the evidence presented was insufficient to support the greater offense, the trier of fact was presented with the necessary facts for the lesser offense, and the error did not affect these findings.  In the present case, the elements for simple kidnapping and aggravated kidnapping a different and the trier did not receive sufficient evidence to support the lesser charge.  Therefore, conviction for aggravated kidnapping was also vacated. 

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