State v. Flynn

2022 UT App 89

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
BRONSON JOSEPH FLYNN,
Appellant.

Opinion
No. 20200685-CA
Filed July 14, 2022

Fifth District Court, St. George Department
The Honorable G. Michael Westfall
No. 181502732

Gary W. Pendleton, Attorney for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGE RYAN D. TENNEY and JUSTICE DIANA HAGEN
concurred. 1

CHRISTIANSEN FORSTER, Judge:

¶1 Following his conviction for murder, Bronson Joseph
Flynn filed a motion for new trial, alleging that he had received
ineffective assistance of counsel. The district court denied Flynn’s
motion, and Flynn appeals that denial. We affirm.

1. Justice Diana Hagen began her work on this case as a judge of
the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally
Utah R. Jud. Admin. 3-108(4).
State v. Flynn

BACKGROUND

¶2 Flynn was outside a bar in St. George, Utah, when he was
approached by Spencer Tafua. The two exchanged heated words,
and Tafua threw several punches at Flynn, at least one of which
landed, causing Flynn to fall to the ground. Flynn retreated while
Tafua’s friends restrained Tafua. At this point, Flynn was
“[a]fraid” and “[o]verwhelmed.” A friend walked Flynn to the
parking lot and then returned to the bar.

¶3 According to Flynn, four men, including Tafua, followed
him to the parking lot, while “screaming at” him. He heard one of
the men threaten that he would “kill” him and another tell
somebody to “grab your strap.” 2 Flynn estimated that the men
were five to ten feet away from him. Flynn ran to his car but had
trouble opening the front passenger side door. He “look[ed] back
towards the bar” and saw “a group kind of coalescing and moving
towards [him] in the parking lot aisle.” “That’s when [he] decided
to arm [himself].” Flynn retrieved his rifle from the back seat of
the car, walked around to the driver side about “five” or “seven”
feet from the car, and chambered a live round. He thought the gun
“would be a deterrent enough to keep people from continuing to
move toward [him].” But the group, which was “probably 30 to
40 feet” away at that point, kept coming toward him.

¶4 Some witnesses testified that it was Flynn who came back
toward the bar with his rifle in hand. 3 One heard him yell, “Come

2. Flynn interpreted “strap” to mean “gun,” and another witness
confirmed that “strap” was “slang for gun.”

3. Numerous witnesses testified at trial regarding the initial
altercation and the events that followed it. Each witness presented
a slightly different perspective, and there were some variations in
their testimonies. As this case does not concern issues relating to
(continued…)

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State v. Flynn

fight me now. You think you’re so tough now.” And another
heard him “mouthing off.”

¶5 Flynn “pulled the action again to cause that live round to
fly out” to “show them it was loaded.” He warned, “Everybody
back up or I’ll shoot.” However, several individuals continued to
move toward him. Flynn felt “panicked that they weren’t
responding” by backing away. According to Flynn, one of the
men—Tafua’s brother (Brother)—“lunge[d] for the gun.” Flynn
again yelled at the group to “[b]ack up.” Tafua then lunged for
the gun. Flynn “stepped onto the curb to try to put a little distance
between them and [him].” Brother again lunged for the gun and
fell. 4 At this point, Flynn “took the safety off . . . because [he] was
boxed in and panicked.” Tafua and three others stepped over
Brother and kept “moving towards” Flynn while Flynn was
“screaming at the top of [his] lungs” for them to “[b]ack up.”
Flynn felt “[s]cared” and backed up several more steps. He then
“planted [his] feet” and warned, “You come any closer, I’ll shoot
you.” At that point, Tafua lunged for the gun one last time, and
Flynn shot him in the chest, killing him. Flynn then “ran back to
[his] car” and everyone else “backed off.”

¶6 The State charged Flynn with murder and various other
offenses. Prior to trial, the State offered Flynn a plea deal that
would have allowed him to plead guilty to a charge of
manslaughter based on “imperfect self-defense and/or the

the sufficiency of the evidence and we do not reach the prejudice
prong of the ineffective assistance of counsel analysis, see infra
¶ 13, we refrain from a full discussion of the testimony for the sake
of brevity. Suffice it to say that there was evidence to support both
the State’s and Flynn’s versions of events.

4. Brother did not admit to lunging for the gun but testified that
he tripped or was “pushed down” by the other people in the
group.

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State v. Flynn

extreme emotional distress defense.” However, defense counsel
advised Flynn to reject the offer because, in counsel’s opinion,
“even if the jury did not believe that [he] had acted in self-defense,
a manslaughter conviction was ‘a reasonable worst-case
scenario.’” Flynn rejected the plea offer, “believing” that if the jury
rejected his perfect self-defense argument, it “would consider the
mitigating circumstances that would . . . reduce the murder
charge to manslaughter.”

¶7 Ultimately, defense counsel did not ask the court to
instruct the jury on lesser-included offenses. However, the State
requested instructions on the lesser-included offense of
manslaughter based on recklessness or imperfect self-defense.
The court adopted the requested instructions on the lesser-
included offense. The court did not instruct the jury on extreme
emotional distress.

¶8 During its cross-examination of Flynn, the State suggested
that rather than shoot Tafua, Flynn could have run away, fought
with his fists, asked the security guards for help, called 911, fired
a warning shot into the air, or shot Tafua in the arm or leg rather
than the chest. During closing argument, the State reemphasized
several of these options.

¶9 In his closing argument, defense counsel started out by
emphasizing to the jury, “[W]e have a right to defend ourselves.
We don’t have to just let someone beat the tar out of us. We have
a right to defend ourselves . . . with legal force if necessary.”
Counsel then went on to discuss all the efforts Flynn took to
retreat and the fact that he did not shoot Tafua until after he had
deliberately warned the approaching group several times to stay
away from him:

[W]hen exactly did [Flynn] stand his ground? Did
he stand his ground at the smoking area? Did he
stand his ground at the entrance of the bar? Did he

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State v. Flynn

stand his ground halfway down when they were
following him? Did he stand his ground as he
chased?

So at this point . . . in his car he didn’t go any
further . . . , and that’s when he did see these people
coming, that’s when he did pull out his rifle. Then
let’s go further than that, because they kept
advancing on him. Even after he racked it, even after
he said, “Don’t come any closer or I’ll shoot,” they
still kept coming. Did [Flynn] shoot anyone then?
Did [Flynn] stand his ground? No. [Flynn] tried to
get up into the area between his car and another car
through the empty parking stall. He wasn’t even
standing his ground then, and that’s when
somebody tried to grab the gun for the first time.

Then he gets to the sidewalk, he turns around
to face the enemy. Let’s be clear, this group of
people in that moment were his enemy. Not by Mr.
Flynn’s choice. Then they come closer. . . .

. . . . [Then Brother either] tried to grab the
gun . . . [or tripped and Flynn] misconstrued that as
him reaching for the gun. But did [Flynn] shoot
[Brother]? Did he shoot them right then? No, he
didn’t.

....

He says that he walked down a few feet away
from his car. . . . Then he turned around, and this is
where he stood his ground. . . . After being pursued
once, twice, three times, four, five, six, seven times,
this is where . . . Flynn stood his ground, and he . . .
yelled, “Don’t come any closer, stay away from me.
Don’t come any closer or I’ll shoot.” . . . .

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State v. Flynn

[Tafua] also advanced that 10 to 20 feet
towards [Flynn], after he warned him don’t come
any closer or I’ll shoot, and [Tafua] took his first step
closer. Did [Flynn] shoot? How about the second
step, did [Flynn] shoot? How about the third step?
Did [Flynn] shoot? . . . . No, [Flynn] waited.

. . . . [Flynn] waited to fire that gun . . . . One
to two feet, [Tafua] is right there. That’s how long
[Flynn] waited to fire that rifle. Do you really think
that [Flynn] wanted to kill [Tafua]?

Defense counsel then responded to the State’s suggestions about
alternative solutions Flynn could have employed: “[The State]
brought up yesterday all those suggestions that Mr. Flynn could
have done. Well, I’m going to go through these scenarios too.”
Defense counsel then recited all the times Tafua and his friends
could have backed off rather than cornering Flynn and opined
that, had they done so, “[Tafua] would still be alive today.”
Counsel then continued,

[Flynn] didn’t have time to think. [Flynn]
didn’t have time to strategize and think you know
what, maybe I came off a little rough. Maybe I
should have . . . you know, told a joke. No. No.

. . . . [T]ime and time again he had distanced
himself. After time and time again he had
communicated his desire to withdraw from the
engagement. He didn’t have time.

Counsel then continued,

Now I want to briefly talk about the lesser
includeds. I’m not going to go through them, but the
reason I have focused so much on self defense is
because that is the first hurdle that the State needs

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State v. Flynn

to overcome. You must be convinced beyond a
reasonable doubt that . . . Flynn was not acting in
self defense that night.

If . . . you make that conclusion, if you find
that he was acting in self defense, I want to caution
you about the lesser includeds. . . . [I]t’s the State
that introduced those lesser includeds. It’s not me,
it’s not the Court, it’s the State.

I don’t want you tempted. If you have been
convinced beyond a reasonable doubt that he was
acting in . . . self defense, I don’t want you tempted
by the lesser includeds . . . .

Counsel then related the biblical story of King Solomon, in which
King Solomon resolved two women’s dispute over which of them
was the true mother of a baby by proposing to cut the child in two,
with each woman receiving half. The true mother was willing to
give the baby to the false mother rather than see it killed. Counsel
analogized this story to Flynn’s situation, explaining, “[S]plitting
that baby would not have been justice. If you . . . believe that my
client acted in self defense, a lesser included would be splitting
the baby.”

¶10 The jury deliberated for several hours and eventually sent
a note to the court indicating that the jurors could not reach an
agreement about whether murder should be reduced to
manslaughter on a theory of imperfect self-defense. The court
asked the jury to continue deliberating, and the jury eventually
returned with a guilty verdict on the murder charge.

¶11 Flynn filed a motion for new trial, asserting that he
received ineffective assistance of counsel because defense counsel
did not ask for a special mitigation instruction based on a claim of
extreme emotional distress. The court denied Flynn’s motion,

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State v. Flynn

reasoning that counsel was not ineffective because objectively
reasonable counsel could have concluded that the evidence was
not strong enough to support an extreme emotional distress claim
and that such a claim could undermine his self-defense claim.
Flynn now appeals.

ISSUE AND STANDARD OF REVIEW

¶12 Flynn asserts that defense counsel performed ineffectively
by failing to request a jury instruction on extreme emotional
distress. “Where a trial court has heard a motion based on
ineffectiveness of counsel and that court’s ruling is up for review
on appeal, we afford the trial court’s conclusions no deference and
review them for correctness, but we set aside its factual findings
only if they are clearly erroneous.” State v. Martinez, 2020 UT App
69, ¶ 25, 464 P.3d 1170 (quotation simplified).

ANALYSIS

¶13 To prevail on his claim, Flynn “must demonstrate that
(1) his counsel’s performance was deficient in that it fell below an
objective standard of reasonableness and (2) the deficient
performance prejudiced the defense.” State v. Ray, 2020 UT 12,
¶ 24, 469 P.3d 871 (quotation simplified). “Because failure to
establish either prong of the test is fatal to an ineffective assistance
of counsel claim, we are free to address a defendant’s claims
under either prong.” State v. Torres, 2018 UT App 113, ¶ 14, 427
P.3d 550 (quotation simplified). Here, we address only the first
prong of the ineffective assistance inquiry—deficient
performance.

¶14 “The performance inquiry must be whether counsel’s
assistance was reasonable considering all the circumstances.” Ray,
2020 UT 12, ¶ 31 (quotation simplified). “If it appears counsel’s

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State v. Flynn

actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance.” Id. ¶ 34. In making this assessment, a court must
“indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance,” id. (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)), and “[e]very
effort [must] be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s
challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time,” State v. Tippetts, 2021 UT App 137, ¶ 28,
501 P.3d 570 (second alteration in original) (quoting Strickland, 466
U.S. at 689).

¶15 The use of deadly force in self-defense is justified when the
defendant “reasonably believes that force is necessary to prevent
death or serious bodily injury to the person or a third person as a
result of another person’s imminent use of unlawful force, or to
prevent the commission of a forcible felony.” Utah Code Ann.
§ 76-2-402(1)(b) (LexisNexis 2017). “Perfect self-defense requires
that a defendant’s belief that force is necessary be both reasonable
and legally justified.” State v. Silva, 2019 UT 36, ¶ 29, 456 P.3d 718.
It is a complete defense that precludes a conviction for murder or
manslaughter. Utah Code Ann. § 76-2-402(1)(b); see also State v.
Bonds, 2019 UT App 156, ¶ 44, 450 P.3d 120 (“Perfect self-defense
is a complete defense to any crime that, where applicable, results
in acquittal.” (quotation simplified)), aff’d in part, rev’d in part, 2022
UT 30. Imperfect self-defense applies where the jury finds that the
defendant had “a reasonable belief that the circumstances
provided a legal justification or excuse for the conduct although
the conduct was not legally justifiable or excusable under the
existing circumstances.” Utah Code Ann. § 76-5-203(4)(a)
(LexisNexis 2017). Imperfect self-defense reduces the murder
charge to manslaughter. Id. § 76-5-203(4)(c)(i). Because both
perfect self-defense and imperfect self-defense are affirmative
defenses that negate an element of the offense, the State must

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State v. Flynn

disprove them beyond a reasonable doubt. Bonds, 2019 UT App
156, ¶ 45. Thus, to find either perfect self-defense or imperfect self-
defense, the jury was required to find that the State failed to
disprove that Flynn reasonably believed that using deadly force
was necessary to protect himself from death or serious harm.

¶16 Under the version of the statute in effect at the time of the
events in this case, 5 a finding of extreme emotional distress
required proof that the defendant acted “under the influence of
extreme emotional distress for which there is a reasonable
explanation or excuse.” Utah Code Ann. § 76-5-205.5(1)(b)
(LexisNexis 2012). Like a finding of imperfect self-defense, a
finding of extreme emotional distress reduces a murder
conviction to manslaughter. Id. § 76-5-205.5(5)(b)(iii). However, it
is the defendant’s burden to prove extreme emotional distress by
a preponderance of the evidence. Id. § 76-5-205.5(5)(a). Extreme
emotional distress has both an objective component and a
subjective component. State v. Sanchez, 2018 UT 31, ¶ 36, 422 P.3d
866. The objective component requires proof that the distress was
such that “a reasonable person’s self-control and ability to make a
rational choice would be overwhelmingly and substantially
undermined.” Id. ¶ 45 (quotation simplified). The subjective
component requires proof that the defendant’s “extreme
emotional reaction caused a loss of self-control and that his or her
reason was overborne by intense feelings, such as passion, anger,
distress, grief, excessive agitation, or other similar emotions.” Id.
¶ 41 (quotation simplified).

¶17 The State maintains that “counsel made a deliberate
strategic choice to eschew lesser-included offenses and to pursue
an ‘all-or-nothing’ strategy” and that “counsel could reasonably

5. The “extreme emotional distress” mitigation defense is still
available, but the relevant section has been significantly amended.
Compare Utah Code Ann. § 76-5-205.5 (LexisNexis 2012), with id.
(Supp. 2021).

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State v. Flynn

decide” that asking for an extreme emotional distress instruction
“would detract from his strategy.” The district court agreed that
“[o]bjectively reasonable trial counsel could strategize to rely
solely on [Flynn’s] claim of self-defense and not raise an extreme
emotional distress argument because it would undermine
[Flynn’s] claim that he was deliberately standing his ground.” We
agree.

¶18 “A defendant is entitled to a jury instruction on a lesser
included offense, so long as the evidence would permit a jury
rationally to find [the defendant] guilty of the lesser offense and
acquit [them] of the greater.”6 State v. Hull, 2017 UT App 233, ¶ 15,
414 P.3d 526 (quotation simplified). “However, even when there
is a basis for a lesser-included-offense instruction, counsel can
reasonably decide not to request one.” Id. ¶ 16. “This is because,
depending on the facts of a particular case, counsel may have
perfectly valid tactical reasons to forgo the instruction and to
instead present an all or nothing defense that entails avoiding a
lesser-included offense instruction in the hopes the jury will find
the defendant totally innocent of any wrongdoing.” Id. (quotation
simplified). We must therefore consider whether “in the
circumstances of this case, trial counsel could have reasonably
decided not to have the jury instructed” regarding extreme

6. Flynn spends a good portion of his briefing arguing that he was
entitled to request that the jury be instructed on extreme
emotional distress, and the State counters that a reasonable
attorney could have concluded that Flynn’s testimony at trial did
not show that he was so overwhelmed by emotions that he lost
control of his actions. Because the threshold level of evidence
required for a special mitigation instruction is low and we
ultimately determine that counsel’s decision to pursue a complete
acquittal was reasonable, see infra ¶ 28, we assume without
deciding that Flynn would have been entitled to such an
instruction had he requested one.

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State v. Flynn

emotional distress, and “[w]e will conclude that counsel’s
performance was deficient only if it can be said that no
objectively competent attorney would have” made that decision.
See id. ¶ 17.

¶19 “[C]ounsel does not perform deficiently by failing to
request a lesser included offense instruction that is inconsistent
with the defense presented at trial.” State v. Powell, 2020 UT App
63, ¶ 43, 463 P.3d 705. And although self-defense and extreme
emotional distress may be “asserted together,” they are at least
“arguably inconsistent,” and counsel may make a strategic
decision not to pursue both defenses. State v. Campos, 2013 UT
App 213, ¶¶ 35–36, 309 P.3d 1160. Because of “the heavy measure
of deference we apply to counsel’s judgments,” “pursuing one
middle-ground defense and choosing to [forgo] another that was
arguably inconsistent with [the defendant’s] version of events” is
not unreasonable. Id. ¶ 36 (quotation simplified).

¶20 Flynn attempts to distinguish Campos by asserting that
Campos “involved [a] strategic decision[] to avoid an [extreme
emotional distress] strategy altogether,” whereas counsel in this
case “developed evidence that supported a theory of extreme
emotional distress and repeatedly elicited testimony from Flynn
concerning his highly emotional state and the circumstances
giving rise to Flynn’s distress.” Flynn asserts that “counsel never
advanced a theory of mitigation by arguing that Flynn had
reasonably believed that he was legally justified or excused” and
instead “argued that Flynn had been overwhelmed by
circumstance and had not had time for reflective thought.” He
further asserts that counsel’s arguments that Flynn’s fear and
stress had “deprived him of ‘time to think, . . . time to strategize’”
undermined the argument that Flynn acted reasonably, as
required for the jury to find perfect self-defense or imperfect self-
defense. We do not consider this to be a fair reading of the
evidence counsel elicited or the arguments he advanced.

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State v. Flynn

¶21 First, we think Flynn has overstated the significance of
counsel’s statements that Flynn “didn’t have time to think,”
“didn’t have time to strategize,” and “didn’t have time.” Read in
context, these statements actually appear to be a response to the
State’s suggestion that there were other reasonable actions Flynn
could have taken, such as calling 911, getting help from a
security guard, or firing a warning shot. Thus, counsel appears to
have made the statements to help demonstrate the reasonableness
of Flynn’s belief that deadly force was necessary to protect
himself.

¶22 We also disagree with Flynn’s assertion that counsel did
not argue that Flynn reasonably believed he was legally justified
or excused. In fact, counsel focused extensively on the
reasonableness of Flynn’s actions. He elicited evidence indicating
that after having been physically assaulted, Flynn was followed
and verbally threatened with deadly force by a group of men. In
closing argument, he walked the jury through Flynn’s actions and
all the attempts he made to retreat and to get Tafua and his friends
to leave him alone. He emphasized Flynn’s delay before shooting
Tafua and his multiple verbal warnings for the group to stay away
from him and not come any closer. He also detailed the
aggressions of Tafua and his friends toward Flynn.

¶23 While defense counsel also elicited isolated statements
from Flynn that he was “afraid,” “overwhelmed,” “boxed in,” and
“panicked,” these statements alone do not suggest that counsel
was setting up an extreme emotional distress defense. And in fact,
counsel made no argument either that these emotions were so
strong as to make a reasonable person lose self-control or that
Flynn was personally so overwhelmed by his emotions that he
lost self-control or the ability to reason. Nor did Flynn testify that
his emotions overcame his reason. To the contrary, Flynn recalled
his actions in great detail and explained his thought process and
reasoning as he took each step. For example, he retrieved the gun
from the car because he “thought it would be a deterrent enough

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State v. Flynn

to keep people from continuing to move toward” him. He “pulled
the action again to cause that live round to fly out” to “show them
it was loaded.” He took steps backward “to try to put a little
distance between” himself and the group. He made multiple
verbal warnings to the group to back up and leave him alone
without firing any shots. He explained at trial that the reason he
did not call 911 was that he believed there was an “imminent
threat at that moment” and police would not respond quickly
enough to help him. And when he finally shot Tafua, he did so
“because [Tafua] was trying to grab [Flynn’s] gun.”

¶24 In short, we do not agree with Flynn’s characterization of
the evidence and defense counsel’s strategy. Counsel elected to
focus on perfect self-defense, and with the jury having been
instructed on “one middle-ground defense” of imperfect self-
defense, counsel chose “to [forgo] another that was arguably
inconsistent with” his chosen defense. See Campos, 2013 UT App
213, ¶ 36 (quotation simplified).

¶25 Flynn nevertheless asserts that “counsel did not and could
not have reasonably advanced an all-or-nothing trial strategy”
because “counsel had advised Flynn to reject the State’s plea offer
because counsel considered a manslaughter conviction to be a
reasonable worst-case scenario.” But defense counsel did not
allow the murder charge to go to the jury without any instruction
on the lesser-included offense of manslaughter. Although defense
counsel was not the one to request the lesser-included offense
instruction, the jury was instructed on imperfect self-defense and
given the opportunity to convict Flynn of manslaughter based on
imperfect self-defense. In fact, by leaving it to the State to request
this instruction, defense counsel was able to get Flynn the benefit
of an imperfect self-defense instruction while also adamantly
maintaining that Flynn should be acquitted based on perfect self-
defense. Counsel was able to tell the jury, “[I]t’s the State that
introduced those lesser includeds. It’s not me, it’s not the Court,
it’s the State.” And counsel used the fact to his advantage by

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State v. Flynn

likening Flynn to the mother in the King Solomon story who was
willing to give up her baby rather than see it killed—suggesting
that Flynn so genuinely believed that he was acting in self-defense
that he was willing to risk a murder conviction.

¶26 If counsel instead had to advocate for a manslaughter
conviction based on extreme emotional distress, it could have
easily undermined his adamant declaration that Flynn was acting
in self-defense and should be acquitted. Since the State requested
the instruction on the lesser-included offense, defense counsel
was able to argue his self-defense theory to the fullest extent while
still allowing the jury the middle-ground option of convicting
Flynn of manslaughter if it concluded that Flynn’s conduct was
not legally justified.

¶27 Furthermore, counsel could have reasonably concluded
that the jury was more likely to accept the affirmative defense of
imperfect self-defense than to find mitigation based on extreme
emotional distress. First, the evidence supporting imperfect self-
defense was consistent with his principal theory of perfect self-
defense and was much stronger than the evidence of extreme
emotional distress. There was little, if any, evidence to suggest
that Flynn experienced a loss of self-control or that the
circumstances were such that a reasonable person would have lost
control. Instead, evidence regarding the confrontation and
Flynn’s own testimony regarding his state of mind tended to
support the defense theory that Flynn reasonably believed that
lethal force was necessary to protect himself. Second, the burden
of proof on the extreme emotional distress claim was higher, as
the State was required to disprove imperfect self-defense beyond
a reasonable doubt, while Flynn would have had to prove extreme
emotional distress by a preponderance of the evidence.

¶28 It is not a stretch to determine that reasonable counsel,
having considered all these factors, would conclude that it was

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better to forgo the extreme emotional distress instruction and
focus on a self-defense strategy.

CONCLUSION

¶29 Because counsel’s decision to forgo an extreme emotional
distress instruction was a reasonable strategic decision, we are not
convinced that counsel performed deficiently. Accordingly, we
affirm Flynn’s conviction.

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