This opinion is subject to revision before final

publication in the Pacific Reporter

2013 UT 23

IN THE

SUPREME COURT OF THE STATE OF UTAH

STATE OF UTAH,

Plaintiff,

v.

MIGUEL MATEOS-MARTINEZ,

Defendant.

No. 20110431

Filed May 3, 2013

Third District, Salt Lake

The Honorable Deno G. Himonas

No. 071906003

Attorneys:

John E. Swallow, Att’y Gen., Marian Decker, Asst. Att’y Gen.,

for plaintiff

Samuel P. Newton, Ogden, for defendant

JUSTICE DURHAM authored the opinion of the Court in which

CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE NEHRING,

JUSTICE PARRISH, and JUSTICE LEE joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 Miguel Mateos-Martinez appeals his conviction and

sentence of life without parole on a charge of aggravated murder. He

argues that the prosecution’s decision to charge him with aggravated

murder and the district court’s denial of his motion to amend the

charge to murder violated his constitutional rights. He also argues

that the aggravated murder statute unconstitutionally provides

prosecutors with unbridled discretion to make charging decisions.

Finally, he argues that the admission of victim impact testimony at

his sentencing hearing violated his constitutional rights. We affirm.

BACKGROUND

¶2 On August 15, 2007, Mr. Mateos-Martinez entered a beauty

salon in Salt Lake City where Faviola Hernandez was cutting a
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friend’s hair.1

 Two younger siblings of Ms. Hernandez were also

present. Mr. Mateos-Martinez displayed a gun, ordered everyone to

get down on the floor, and demanded money. He instructed

Ms. Hernandez to go to the back room and retrieve any money that

might be there. She went into the back room, but she returned with

a gun of her own. Mr. Mateos-Martinez shot her once in the chest

and fled. Ms. Hernandez died within minutes.

¶3 Mr. Mateos-Martinez was eventually apprehended in 

Mexico and brought back to Utah by United States Marshals. As part

of the extradition negotiations, the State agreed not to seek the death

penalty. Mr. Mateos-Martinez was charged with aggravated murder,

two counts of aggravated robbery, and two counts of aggravated

assault. Prior to trial, he moved to amend the first count from

aggravated murder to murder. After a hearing, the district court

denied the motion.

¶4 A jury convicted Mr. Mateos-Martinez on all counts. At a

subsequent hearing, the State stipulated to the defense’s request that

one count of aggravated robbery be merged with the charge of

aggravated murder. The district court judge then conducted

sentencing proceedings. At these proceedings, the court heard

victim impact testimony from Ms. Hernandez’s mother and sister.

Defense counsel made no objection to this testimony at the time. The

district court judge sentenced the defendant to life without the

possibility of parole.

¶5 Mr. Mateos-Martinez timely appealed to this court. We

have jurisdiction under Utah Code section 78A-3-102(3)(i).

STANDARD OF REVIEW

¶6 “Constitutional issues, including questions regarding due

process, are questions of law that we review for correctness.” Chen

v. Stewart, 2004 UT 82, ¶ 25, 100 P.3d 1177.

ANALYSIS

¶7 Mr. Mateos-Martinez argues that the prosecution and the

district court violated his constitutional rights by charging him with

and trying him for aggravated murder instead of murder. He also

argues that the content of the victim impact testimony at his

sentencing hearing violated his constitutional rights.

1

 This court has already affirmed the aggravated robbery

conviction of Mr. Mateos-Martinez’s accomplice and getaway driver.

See generally State v. Jimenez, 2012 UT 41, 284 P.3d 640.

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I. DENIAL OF THE MOTION TO AMEND THE CHARGE

¶8 Mr. Mateos-Martinez suggests that the prosecution’s

decision to charge him with aggravated murder and the district

court’s denial of his motion to reduce the charge from aggravated

murder to murder violated his constitutional rights. First, he argues

that the charging decision violated both the Uniform Operation of

Laws Clause of article I, section 24 of the Utah Constitution and the

Equal Protection Clause of the Fourteenth Amendment of the United

States Constitution.2

 Second, he argues that the aggravated murder

statute unconstitutionally affords prosecutors unbridled discretion

to charge persons in his situation with aggravated murder.

A. Decision to Charge Mr. Mateos-Martinez with Aggravated Murder

¶9 “All laws of a general nature shall have uniform operation.” UTAH CONST. art. I, § 24. To determine whether a statute meets

this requirement, we apply a three-part test. We ask “(1) whether the

statute creates any classifications; (2) whether the classifications

impose any disparate treatment on persons similarly situated; and

(3) if there is disparate treatment, whether the legislature had any

reasonable objective that warrants the disparity.” State v. Robinson,

2011 UT 30, ¶ 17, 254 P.3d 183 (internal quotation marks omitted).

¶10 Mr. Mateos-Martinez argues that the decision to charge

him with aggravated murder was “a case of over-prosecution

against people in his class.” To support this argument, he offers a list

of eight other criminal defendants represented by the Salt Lake City

Legal Defender Assocation. These defendants were apparently all

charged with both murder and aggravated robbery, but in their

cases the aggravated robbery charges were not used to increase the

charge of murder to aggravated murder, as was done in Mr. MateosMartinez’s case.

¶11 He concedes that this list is not “a complete record of all

relevant prosecutions in the state.” We need not determine whether

it is even a representative record, however, because on its face the list

fails to provide sufficient information about these other defendants

for us to determine whether they are “persons similarly situated” to

Mr. Mateos-Martinez—a requirement for any claim that the uniform

2

 “Since our analysis under the uniform operation of laws

provision is at least as rigorous as it would be under the federal

equal protection provision, we accordingly limit our review to [the]

state constitutional claim.”ABCO Enters. v. Utah State Tax Comm’n,

2009 UT 36, ¶ 14, 211 P.3d 382 (internal quotation marks omitted).

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operation of laws clause has been violated. The list provides only the

names, case numbers, and races of the other defendants. We cannot

tell whether they were charged, as was Mr. Mateos-Martinez, with

multiple counts of aggravated robbery and with multiple other

aggravated felonies. Further, we know nothing about the circumstances surrounding their crimes, and cannot determine their

relative culpability, or discern what other factors may have informed

the prosecutorial decision not to charge them with aggravated

murder.

¶12 For example, one of the other listed defendants, Jesus

Jimenez, was recently the subject of an appeal to this court. He was,

it so happens, Mr. Mateos-Martinez’s getaway driver. See supra ¶ 2

n.1. Because he was only an accomplice to another’s crimes, he is not

“similarly situated” to Mr. Mateos-Martinez. The other listed

defendants may be similarly distinguishable. It is Mr. MateosMartinez’s burden to show that they are not. “[A] reviewing court

is not simply a depository in which [a] party may dump the burden

of argument and research . . . .” Broderick v. Apartment Mgmt.

Consultants, L.L.C., 2012 UT 17, ¶ 9, 279 P.3d 391 (second alteration

in original) (internal quotation marks omitted). Mr. Mateos-Martinez

has not shown that the decision to charge him with aggravated

murder “impose[d] any disparate treatment” on him, Robinson, 2011

UT 30, ¶ 17. He therefore cannot show that the charging decision

violated the Uniform Operation of Laws Clause. For the same

reason, he has not shown a violation of the federal Constitution. See

supra ¶ 8 n.2.

B. Aggravated Murder Statute

¶13 Mr. Mateos-Martinez argues in the alternative that the

aggravated murder statute is unconstitutional on its face because it

“offers prosecutors . . . unbridled discretion to choose arbitrarily

whether to file charges as aggravated murder (carrying as penalties

capital punishment and life without parole) or as murder (carrying

lower penalties).”

¶14 Section 76-5-202(1) of the Utah Code provides that

“[c]riminal homicide constitutes aggravated murder if the actor

intentionally or knowingly causes the death of another [and] . . . the

homicide was committed incident to an act, scheme, course of

conduct, or criminal episode during which the actor committed or

attempted to commit aggravated robbery.” Citing State v. Mohi, 901

P.2d 991 (Utah 1995), Mr. Mateos-Martinez argues that this statute

violates the Uniform Operation of Laws Clause because it does not

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constrain the prosecution’s discretion to charge a defendant with

aggravated murder.

¶15 In Mohi, this court held that certain provisions of the

Juvenile Courts Act violated that clause because it “permit[ted] two

identically situated juveniles . . . to face radically different penalties

and consequences without any statutory guidelines for

distinguishing between them.” Id. at 998. The provisions gave

prosecutors “direct-file” authority, under which “prosecutors [had]

discretion to file some charges against juveniles directly in adult

circuit or district court while leaving other similarly accused

offenders in juvenile court.” Id. at 994. Upon determining that there

was “no rational connection between the legislature’s objective of

balancing the needs of children with public protection and its

decision to allow prosecutors total discretion in deciding which

members of a potential class of juvenile offenders to single out for

adult treatment,” id. at 1002, we held the provisions

unconstitutional, id. at 1004.

¶16 Mohi is distinguishable from the instant case. Indeed, Mohi

explicitly distinguishes itself from the facts before us:

The type of discretion incorporated in the [Juvenile

Courts] Act is unlike traditional prosecutor discretion.

Selecting a charge to fit the circumstances of a

defendant and his or her alleged acts is a necessary step

in the chain of any prosecution. It requires a legal

determination on the part of the prosecutor as to which

elements of an offense can likely be proved at trial.

Moreover, such discretion is also beneficial to the

public; it allows prosecutors to plea-bargain with

offenders in some cases, saving the public the expense

of criminal prosecutions. However, none of these

benefits accompany the discretion to choose which

juveniles to prosecute in adult rather than in juvenile

court. The elements of the offense are determined by

the charging decision, and it is only the charging decision

that is protected by traditional notions of prosecutor

discretion.

Id. at 1002–03 (second emphasis added).

¶17 In our case, prosecutors exercised such “traditional

prosecutor discretion” in choosing to charge Mr. Mateos-Martinez

with aggravated murder. He committed murder in the course of

multiple aggravated felonies against multiple victims, including

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children. The decision to charge aggravated murder under such

circumstances is a classic exercise of prosecutorial discretion, and we

will not second-guess such a decision on the showing made before

us today. Similarly, we are not persuaded that the aggravated

murder statute is unconstitutional. Mohi held that to provide

prosecutors with unguided discretion to file the same charge against

a juvenile defendant in either juvenile or adult court violated the

Uniform Operation of Laws Clause. But aggravated murder is a

different crime than murder, with an additional element that must

be proved at trial. We reject Mr. Mateos-Martinez’s argument, and

affirm the district court’s denial of his motion to amend the charge.

II. SENTENCING HEARING

A. Constitutional Standards

¶18 Mr. Mateos-Martinez argues that the admission of

inflammatory victim impact statements at his sentencing hearing

violated the prohibitions against cruel and unusual punishments

located in article I, section 9 of the Utah Constitution and the Eighth

Amendment to the United States Constitution.3

¶19 “[T]he Eighth Amendment does not bar, per se, victim

impact evidence, but victim impact evidence may be inadmissible

if the evidence is so prejudicial that it makes sentencing

fundamentally unfair under the Due Process Clause.” State v. Ott,

2010 UT 1, ¶ 25, 247 P.3d 344 (citing Payne v. Tennessee, 501 U.S. 808,

823, 827 (1991)). Further, “evidence that addresses the defendant’s

character or expresses the victim’s opinion of the appropriate

sentence at the penalty phase of trial is inadmissible under the

Eighth Amendment.” Id. (citing Payne, 501 U.S. at 830 n.2).

Payne overturned Booth v. Maryland, which held the

Eighth Amendment barred victim impact evidence.

However, to the extent Payne overruled Booth, Booth

retained viability for its holding that victim impact

3

 Mr. Mateos-Martinez only cites authority in support of his

Eighth Amendment argument, and does not provide an independent

analysis of article I, section 9 of the Utah Constitution. We therefore

confine our analysis to the federal Constitution. See Zissi v. State Tax

Comm’n, 842 P.2d 848, 858 (Utah 1992) (“As a threshold matter, we

note that because [the appellant] has cited no authority and made no

separate cruel and unusual argument under the state constitution,

we will address this issue only in the context of the federal

Constitution.”).

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evidence that addresses the defendant’s character or

expresses the victim’s opinion of the appropriate

sentence at the penalty phase of trial is inadmissible

under the Eighth Amendment.

Id. (citations omitted).

¶20 Both Payne and Booth limit their holdings to capital

sentencing proceedings. Payne, 501 U.S. at 817 (“This Court held [in

Booth] by a 5-to-4 vote that the Eighth Amendment prohibits a jury

from considering a victim impact statement at the sentencing phase

of a capital trial.” (emphasis added)); Booth v. Maryland, 482 U.S. 496,

508 – 09 (1987) (“The admission of these emotionally charged

opinions as to what conclusions the jury should draw from the

evidence clearly is inconsistent with the reasoned decisionmaking

we require in capital cases. . . . We conclude that the introduction of

a [victim impact statement] at the sentencing phase of a capital

murder trial violates the Eighth Amendment . . . .” (emphases

added)).

¶21 To reiterate: while Booth held that the Eighth Amendment

prevents the introduction of any victim impact evidence at the

sentencing phase of a capital sentencing hearing, Payne overruled

that absolute bar and limited it to a prohibition on “victim impact

evidence that addresses the defendant’s character or expresses the

victim’s opinion of the appropriate sentence at the penalty phase of

trial.” Ott, 2010 UT 1, ¶ 25.

¶22 The State argues that our decision in Ott is distinguishable

in two ways. First, the State suggests that Mr. Mateos-Martinez’s

sentencing proceeding was not a capital sentencing proceeding, and

therefore that the doctrine of Payne simply does not apply. Second,

the State argues that because Mr. Mateos-Martinez was sentenced by

a judge, rather than by a jury (as was the case in Ott), this court

should apply a rebuttable presumption that judges are not influenced by inappropriate or irrelevant information.

¶23 For his part, Mr. Mateos-Martinez first argues that the

Eighth Amendment analysis of Payne should be extended to

sentencing proceedings where life without possibility of parole

(LWOP) is the maximum sentence available to the sentencing

authority. Second, he argues that the identity of the sentencing

authority is irrelevant.

¶24 We agree with the State that Ott is distinguishable from the

instant case. We understand Payne to apply only to capital

sentencing proceedings; the proceedings in Ott were, as we explain

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below, capital. Today we hold that the Eighth Amendment doctrine

of Payne, which establishes an absolute bar on certain types of victim

impact testimony, does not apply to sentencing proceedings where

death is not an option.

¶25 First, we address the differences between the proceedings

in Ott and those in the case before us today. In Ott, we referred to

Mr. Ott’s sentence of LWOP as having emerged from a “capital

sentencing hearing.” Id. ¶ 26. This determination informed our

determination that Payne applied to that case. See id. ¶ 25. Mr. Ott,

in fact, entered a guilty plea “in exchange for the State’s agreement

not to pursue the death penalty,” id. ¶ 9, and Mr. Mateos-Martinez

argues that this fact makes his case indistinguishable from Ott’s,

since in both cases the State agreed not to seek the death sentence

and the sentencing authority never had the option to impose death.

¶26 But as a matter of statutory definition, at all relevant times

leading up to Mr. Ott’s sentencing, all aggravated murder charges

were designated “capital,” whether or not the prosecution ever

requested the imposition of capital punishment. The criminal code

has since been amended,4

 and now defines aggravated murder as a

“capital felony” only if the state has filed “a notice of intent to seek

the death penalty.” Compare UTAH CODE § 76-5-202(3)(a)-(b) (“If a

notice of intent to seek the death penalty has been filed, aggravated

murder is a capital felony. . . . If a notice of intent to seek the death

penalty has not been filed, aggravated murder is a noncapital first

degree felony . . . .” (emphasis added)), with id. § 76-5-202(2) (Supp.

2006) (“Aggravated murder is a capital felony.”); see also Tillman v.

State, 2012 UT App 289, ¶ 1 n.2, 288 P.3d 318 (“Aggravated murder

was previously labeled [m]urder in the first degree and classified as

a capital offense, regardless of the penalty sought. Under the current

statute, aggravated murder is a capital felony only if the State

pursues the death penalty.” (alteration in original) (citation omitted)

(internal quotation marks omitted)). Therefore, while Mr. Ott’s

sentencing proceeding was treated as “capital” even though death

was never “on the table,” Mr. Mateos-Martinez is clearly not eligible

for such treatment.

4

 The statute was amended in 2007, with an effective date of April

30 of that year. Aggravated Murder Amendments, ch. 275, § 3, 2007

Utah Laws 1150, 1153. Mr. Ott committed his crime the summer of

2002. Ott, 2010 UT 1, ¶ 1. Mr. Mateos-Martinez committed his in

August 2007. Therefore, the old version of the statute applied to

Mr. Ott’s case and the new version applies to this case.

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¶27 The new version of the aggravated murder statute differs

from the old in more than just the label it applies. Although the State

in Mr. Ott’s case never asked for the death penalty, the sentencing

decision in that case—a choice between LWOP and a lesser

sentence—was made by a jury. Ott, 2010 UT 1, ¶ 10. But the same

bill that amended the aggravated murder statute created a new

statutory section in the sentencing chapter of the criminal code.

Aggravated Murder Amendments, ch. 275, §§ 2, 3, 2007 Utah Laws

1152–53. This section provides that “[a] person who has pled guilty

to or been convicted of first degree felony aggravated murder under

Section 76-5-202 shall be sentenced by the court. . . . The sentence

under this section shall be life in prison without parole or an

indeterminate prison term of not less than 25 years and which may

be for life.” UTAH CODE § 76-3-207.7(1)–(2).

¶28 The State’s two arguments for distinguishing Ott—that Ott

dealt with a capital sentencing proceeding, while this case does not,

and that Mr. Ott was sentenced by a jury, while Mr. MateosMartinez was sentenced by a judge—thus both relate to these

changes in the law. The legislature has said that aggravated murder

is only a “capital felony” if the State files a notice of intent to seek

death. UTAH CODE § 76-5-202(3)(a). Mr. Mateos-Martinez was

extradited from Mexico pursuant to an agreement that the State

would not do so. His sentencing proceeding was therefore not “the

sentencing phase of a capital trial,” Payne, 501 U.S. at 817.

Furthermore, Mr. Mateos-Martinez was sentenced by the court

pursuant to section 76-3-207.7.

¶29 For these reasons, the Eighth Amendment’s absolute ban

on victim impact evidence that addresses the defendant’s character

or expresses the victim’s character or expresses the victim’s opinion

of the appropriate sentence, established by Booth and limited by

Payne, does not apply to Mr. Mateos-Martinez’s sentencing

proceeding. Accordingly, we must consider whether to extend that

absolute ban to noncapital sentencing proceedings conducted by a

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judge pursuant to section 76-3-207.7 as a matter of federal law.5

 For

the following reasons, we decline to do so.

¶30 Mr. Mateos-Martinez urges that we extend the ban against

these types of victim impact evidence to all sentencing proceedings

where LWOP is an available penalty. To support this position, he

refers us to Ott. But, as noted above, that case examined proceedings

that were statutorily deemed “capital.” He further argues that the

United States Supreme Court has recently suggested that LWOP

implicates similar Eighth Amendment concerns to those treated in

Booth and Payne, citing Graham v. Florida, 130 S. Ct. 2011, 2027 (2010)

(“It is true that a death sentence is unique in its severity and

irrevocability, yet life without parole sentences share some

characteristics with death sentences that are shared by no other

sentences.” (emphasis added) (internal quotation marks omitted)).

But Graham considered LWOP only in the context of juvenile

defendants. Id. at 2017–18 (“The issue before the Court is whether

the Constitution permits a juvenile offender to be sentenced to life

in prison without parole for a nonhomicide crime.”). Graham does

not hold that LWOP is identical to death in its constitutional

implications and does not discuss victim impact testimony. As such,

we do not understand Ghraham to establish an absolute ban on the

presentation of certain types of victim impact testimony in

noncapital sentencing proceedings for adult offenders.

¶31 Our reluctance to extend the Eighth Amendment per se

ban to noncapital proceedings is strengthened by the identity of the

sentencing authority in this case. Mr. Mateos-Martinez was sentenced by a judge. “A sentencing judge is not required to articulate

whether specific information was inappropriate for consideration,

and the mere introduction of potentially improper information is not

sufficient to establish reliance.” State v. Moa, 2012 UT 28, ¶ 40, 282

5

 “[W]e have never addressed what limitations, if any, the state

constitution places on the use of victim impact evidence during the

penalty phase of a capital trial.” State v. Maestas, 2012 UT 46, ¶ 307,

299 P.3d 892. For the reasons explained herein, the sentencing

proceeding at issue here was noncapital. We need not and do not

determine whether the state constitution places any limitations on

the use of victim impact testimony in such noncapital proceedings, 

because no independent constitutional argument is before us. See

supra ¶ 18 n.3. We consider only whether the Eighth Amendment, as

interpreted by the United States Supreme Court in Payne and

applied by this court in Ott, has the same implications for noncapital

sentencing proceedings as for capital ones.

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P.3d 985. Judges “are presumably conditioned by education, training

and experience to render service of a professional character under

a discipline which should involve a high degree of integrity.” Ellis

v. Gilbert, 429 P.2d 39, 41 (Utah 1967); see also State v. Joubert, 455

N.W.2d 117, 130 (Neb. 1990), cert. denied, 499 U.S. 931 (1991) (“Booth

is . . . distinguishable from this case in that the sentence in Booth was

imposed by a jury of laypersons and, here, the sentences were

imposed by a panel of jurists. . . . [I]t is presumed that judges

disregard evidence which should not have been admitted.”)

¶32 We therefore hold that there is no Eighth Amendment bar

to certain types of victim impact testimony in noncapital, adult

sentencing proceedings before a judge. Further, it does not appear

to us that the Eighth Amendment speaks at all to the use of such

testimony in such cases.

B. Ineffectiveness of Counsel and Plain Error

¶33 In light of our conclusion that the federal Constitution does

not preclude the admission of victim impact testimony in noncapital

cases, there is no basis on which we could hold that defense counsel’s failure to object to the testimony constituted ineffective

assistance of counsel. Nor, obviously, can we deem the trial court’s

admission of such evidence plain error.

¶34 Mr. Mateos-Martinez does advance general arguments in

his brief regarding the relevance of the testimony and its highly

inflammatory character, citing Utah Code section 77-38-4(4)-(5) (The

“court shall have the right to limit any victim’s statement to matters

that are relevant to the proceeding” and not “disruptive.”).

However, his only claims in this regard relate to his position that

federal constitutional law prohibits such evidence; they do not

appear to advance a separate attack on the use of this evidence.

¶35 As noted above, we reject Mr. Mateos-Martinez’s Eighth

Amendment claims today. Evidentiary, statutory, or other

constitutional problems that may exist with victim impact testimony

of this kind in noncapital cases are open questions for another day.

CONCLUSION

¶36 Mr. Mateos-Martinez has not shown that the district court

erred in denying his motion to amend the charge against him from

aggravated murder to murder. Further, we hold that the

introduction of the victim impact testimony in this case did not

violate the Eighth Amendment; therefore, its admission could not

have been plain error, nor could it have been ineffective assistance

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of counsel to fail to object to it. The conviction and sentence are

affirmed.

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