2019 UT App 2



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appell ee , v. E RNESTO N AVARRO , Appell ant

.

Opinion N o. 20151019

- CA Filed January 4, 2019

Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 141907986

Nathalie S. Skibine
, Attorney for Appellant Sean D. Reyes and Karen A. Klucznik, Attorney s for Appellee

J UDGE M ICHELE M. C HRISTIANSEN F ORSTER authored th is Opinion
, in which J UDGES J ILL M. P OHLMAN and D IANA H AGEN concurred

.

CHRISTIANSEN FORSTER
, Judge :

¶1 Two groups of rival gang members encountered each other and began shooting . When the shooting stopped, a man in one group was dead, killed instantl y by a bullet that hit his neck and severed his spine. Defendant Ernesto Navarro was in the other group and was convicted of several charges including murder. He now challenges those convictions on two grounds.

¶2 D efendant contends that he received constitutionally ineffective assistance of c ounsel because (1) his trial counsel failed to object on hearsay grounds to a detective’s testimony concerning another witness ’s trial testimony and (2) his trial counsel failed to correct a jury instruction that misstated the law regarding imperfect self

- defense . Because Defendant did notState v. Navar ro

20151019

- CA 2 2019 UT App 2 suffer prejudice from the d etective’s testimony or the erroneous jury instruction, we conclude that Defendant did not receive

c onstitutionally ineffective assistance of counsel . We therefore affirm.

BACKGROUND

¶3 Victim , a gang member, was driving a stolen Chevrolet Avalanche. His nephew ( Nep hew) was riding in the front passenger seat while Victim’s two nieces sat in the back . The gr oup encountered a sedan containing four members of a rival g ang

. Traveling in the sedan were Defendant, Driver, Passenger, and another individual who did not testify at trial

.
¶4 The sedan stopped to investiga te a man wearing blue

— the color of a rival gang. A ccording to Driver, if the person belonged to a rival gang, “ [they] would have got out and fought with him or done anything, because if he’s a rival gang member, then usually [they] go and

. . . do something to him.” However, the sedan occupants determined that the man was not from a rival gang and continued driving. They then noticed that the Avalanche was following them and that it was driven by

someone

— Victim

— wearing red, the color of a nother rival gang.

¶5 People in both vehicles, including Defendant, began using hand gestures to signal their gang affiliation, commonly referred to as “ throwing up gang signs. ” However, Driver refused to stop the sedan because he sensed “something was going to happen ” and the sedan belonged to his mother. Eventually, Driv er drove down an alley to elude the pursuing Avalanche.

¶6 After losing the Avalanche, Driver parked the sedan at Defendant’s apartment. They we nt inside “to get something to drink” and turned on a video game console

. When they decided to leave the apartment
, Defendant took his gun with him because he “was concerned

. ” Defendant’s group continued on foot

. A ccording to Defendant, they left to go to the store to buyState v. Navar ro

20151019

- CA 3 2019 UT App 2 some food and did not expect to meet the Avalanche occupants again

. But according to Driver, Defen dant said, “Let’s go get these fools,” and, according to Passenger, Defendant said
, “We got to do something about him if we see him again.”

¶7 Meanwhile, after losing sight of the sedan, Victim drove off to pick up three of his brothers

- in

- law , two o f whom we re members of his gang and at least one of whom had a gun on his person. With these reinforcements, Victim then began driving around, looking for the sedan or Defendant’s group intending to fight them.

¶8 Victim eventually spotted the empty sedan. He continued driving the Avalanche around until he found Defendant’s group walking down an alley . Victim stopped the Avalanche at a right angle to the alley.

¶9 Shortly thereafter, a flurry of gunfire erupted , drawing the attention of other nearby witnesses . One of the shots killed Victim. Another wounded Nephew. Everyone in the Avalanche, except Victim, scrambled to get out of the vehicle and then fled. Defendant’s group also ran away.

¶10 At least thirteen sho ts were fired. P olice later found seven spent bullet cas ings from Defendant’ s .40 caliber firearm and five spent casings from Passenger’s 9mm firearm in the alley where Defendant’s group had been standing

. Outside the driver’s side passenger door of the Avalanche, police found one spent casing and matc hed it to a 9mm gun found next to the driver’s seat inside the A valanche.

¶11 Defendant’s group returned to his apartment, where he took a shower to remove any gunshot residue . He then left the apartment, taking both his and Passenger’s guns, and attempted to stash the m where they would not be found by police. According to Defendant , Passenger instruc ted him “to not talk to the pol ice , ” and threatened that if Defendant did talk to police, “that would mean danger [ to Defendant’s] life or [his] family

. ”State v. Navar ro

20151019

- CA 4 2019 UT App 2 ¶12 Police officers e ventually located and arrested Defendant

. When he was arrested, Defendant gave a false name

. A t trial, Defendant admitted that he had lied to the arresting officers. Fo r example, he acknowledged that a lthough he had owned his gun for about six months, he t old the arresting officers that he had only received hi s gun on the day he was arrested. Defendant further acknowledged that he lied to police by telling them he had never been to the apartment even though he had lived there for two months
, and by telling them that he had been working at a hospital on the day of the shooting.

¶13 Defendant was charged with murder, obstruction of justice , and felony discharge of a firearm. Following a jury trial, he was convicted on all counts.

ISSUE AND STANDARD O F REVIEW

¶14 Defe ndant contends that he was deprived of his constitutional right to effective assistance of counsel. See generally Strickland v. Washington , 466 U.S. 668, 686 (1984) (“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.”)

. “When a claim of ineffective assistance of counsel is raised for the first time on appeal , there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law.” Layton City v. Carr , 2014 UT App 227, ¶ 6, 336 P.3d 587 ( quotation simplified ).

ANALYSIS

¶15 Defendant contends that he was deprived of the effective assistance of counsel in two ways. First, he asserts that his trial counsel was ineffective for failing to object to certain tes timonyState v. Navar ro

20151019

- CA 5 2019 UT App 2 he characterizes as hearsay . Second, he asserts his counsel was ineffective for failing to object to an erroneous jury instruction.

¶16 To demonstrate ineffective assistance of counsel, a defendant must show that counsel’s performance wa s deficient and that the deficient performance prejudiced the defense. S trickland v. W ashington , 466 U.S. 668, 687 (1984)

. Because both deficient performance and resulting prejudice are requisite elements for a claim of ineffective assistance of counsel, failure to prove either element necessarily defeats the claim. I d. at 697; State v. Har ds , 2015 UT App 42, ¶ 18, 345 P.3d 769.

I. Hearsay

¶17 D efendant first contends that his trial counsel “should have objected to hearsay statements” elicited from a d etective “concerning prior consistent statements by the State’s key witnesses”

— Nephew and one of Victim’s nieces. Specifically, he argues that the State was allowed “to ask a string of questions bolstering the credibility of [Nephew] and another witness from his group on the most contested issue at trial: who shot first.”

¶18 A statement is hearsay when t he declarant makes the statement outside of court and the statement is offered into evidence at trial to prove the truth of the matter asserted. See Utah R. Evid. 801(c). However, as relevant here, when the declarant is subject to in

- court cross

- examinatio n, such a statement will be considered non

- hearsay when the statement “is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying.” Id. R. 801(d)(1)(B).

¶19 At trial, Nephew testified that Defendant’s group had fired first and that no shots had been fired by Victim’s group

. Nephew admitted that after picking up reinforcements, the Avalanche occupants went “looking for them guys, the guys that were in front of [Victim’s group] in the green sedan.” WhenState v. Navar ro

20151019

- CA 6 2019 UT App 2 asked why, he testified
, “I believe we were going to go fight them.” And despite believing that at least one of his companions had a gun, Nephew claimed that they pla nned to fight “[w]ith our fists.” According to Nephew, they encountered Defendant’s group shortl y after finding the empty sedan . Nephew stated that Defendant’s grou p had at least two guns visible and that no one in the Avalanche had a gun out. Victim stopp ed the Avalanche
, and without words being exchanged, “firing happened.” When pressed on who shot first, Nephew answered that “[t]he first shot cam e from the right side . . . of the vehicle” “from the alley.” Nephew further testified that no shots were fire d from the Avalanche.

¶20 During Nep hew’s cross

- examination, Defendant’s counsel asserted that this account departed from the version Nephew initially told to the police. C ounsel asked Nephew whether he had told “the police that originally [ Victim ] was taking [two occupants of the Avalanche] home, and th en you guys were going to take [Victim’s nieces] to dinner before the run in with [ Defendant’s Group ] took place. ” C ounsel also asked Nephew whether he remembered telling police that one of the Avala nche occupants “actually had a g un and that [he] heard it go off. ” Nephew denied that he had so informed the police.

¶21 Defendant’s counsel then questioned Nephew about his
statement to the police that he had recognized some of the people who had been firing at him , and Nephew admitted that
t his statement had been false :

Q. You were interviewed at least three times, correct?

A. Yes

. Q. And it was the second day that you gave them the false information about three suspects that were totally innocent?State v. Navar ro

20151019

- CA 7 2019 UT App 2 A. Yes.

Q. And your explanation of why you gave them three suspects was because you felt pressured by the police?

A. Yes.

Q. And instead of saying ‘I don’t know who they were,’ you gave [inaudible] people?

A. I did tell them I didn’t know who they were.

Q. And you also told them that one of the individuals goes by a street name of Radio, correct?

A. Yes, sir.

¶22 Defendant’s counsel later called the d etective to the stand to testify regarding Nephew’s police report. The d etective testified that after Nephew implicat ed Radio
, the d etective discovered Radio had been two and a half hours away from the shooting when it happened . According to the d etective, when he confronted Nephew about Radio’s alibi, Nephew admitted that Radio had not b een involved, that Nephew had simpl y named a person with whom he had past dealings, and that Nephew had made up the name of one of the other people he had identified as a suspect. The State then questioned the d etective:
Q. [Nephew] was consistent that [Victim] was the driver?

A. Yes.

Q. He was consistent that he was the passenger?

A. Yes.State v. Navar ro

20151019

- CA 8 2019 UT App 2 Q. He was consistent that there was another group throwing gang signs

. . . that they encounte re d?

A. Correct.

Q. And he was consistent that there [were] men in the alley?

A. Yes.

Q. That those men in the alley had shot at his truck he was in first?

A. That’s correct.

Q. He was consistent that he was hit in the arm and close to his hip?

A. Yes.

Q. Those are the type of facts that most related to your investigation, the shooting?

A. Yes. Those facts were eve rything related to the shooting, yes.

. . . Q. Did [Victim’s niece] ever deviate that the men from the alley shot first at the truck?

A. No.

¶23 Defendant contends that his counsel should have objected to this line of questioning. “The purpose of rule 801(d)( 1)(B) is to admit statements that rebut a charge of recent fabrication or improper influence or motive, not to bolster the believability of a statement already uttered at trial.” State v. Bujan , 2008 UT 47,State v. Navar ro

20151019

- CA 9 2019 UT App 2 ¶ 11 , 190 P.3d 1255. Thus, even where testimony i s properl y admitted for rehabilitative purposes, it should be limited to “testimony that directly rebuts charges of recent fabrication,” and not necessarily admitted in its entirety. I d. ¶ 10. Our supreme court has also suggested that a limiting instruction may be necessary to inform the jury that the testimony should be considered only for rehabilitative purposes. See id. ¶ 9. Defendant asserts that the string of questions calling out al l of Nephew’s prior consistent statements went beyond the scope of admissibility under rule 801(d)(1)(B) and inappropriately bolstered Nephew’s testimony rather than merely rebutting a charge of prior inconsistent statements, particularly in the absence of a limiting instruction.

¶24 But even assuming Defendant’s counsel performed deficiently by failing to object to this line of questioning

or failing to request a limiting instruction, we ultimately conclude that Defendant cannot demonstrate prejudice resultin g from this testimony. Defendant asserts that in the absence of the d etective’s testimony, “the State would [have been] hard pressed to meet its burden to prove beyond a reasonable doubt that [Defendant] did not act in self

- defense.” But we

are not conv inced that the introduction of Nephew’s prior consistent statements had any significant impact on the ultimate verdict.

¶25 The Utah Supreme Court has recently explained that an appellate court “must ‘consider the totality of the evidence before the judge or jury’ and then ‘ask if the defendant has met the burden of showing that the decision reached would reasonably likely have been different absent the errors.’” State v. Garcia , 2017 UT 53, ¶ 42 , 424 P.3d 171 (quoting Strickland v. Washington , 466 U.S. 668, 6 95

– 96 (1984)). Accordingly, an appellate court must “examine the record as a whole” to determine whether the court’s confidence in the jury’s verdict is undermined. Id. ¶ 45.State v. Navar ro

20151019

- CA 10 2019 UT App 2 ¶26 While the d etective’s testimony may have reinforced Nephew’s testimony to some de gree, other credibility issues with his testimony remained

— notably his admitted lies to police in the course of the investigation and his motivation to fabricate testimony both at the time he spoke to police and at the time of trial. Further, there was mu c h more to the question of self

- defense in this case than who shot first. A defendant cannot claim self

- defense when he was “attempting to commit” or “committing . . . a felony” or “was the aggressor or was engaged in a combat by agreement.” Utah Code Ann. § 76

- 2

- 402(2)(a) (LexisNexis 2012).

¶27 The totality of the evidence includes the testimony of Defendant and his companions, Driver
, and Passenger. Defendant testified that his group left the apartment to buy some food, not to seek out the Avalanche or Victim’ s group . He also explained his decision to retrieve his gun and take it with him; he testified that he took it because he “was concerned.” But Driver testified that Defendant stated, “Let’s go get these fools,” and Passenger testified that Defendant said, “We got to do something about him if we see him again.” See supra ¶ 6. Thus, two of Defendant’s own companions testified that the group left the apartment seeking a confrontation. His companions also testified “they always do something to” members of rival gangs when they see them ; that Defendant had been “[t]hrowing up gang signs; ” that Defendant had his gun out even before the Avalanche arrived in the alley ; and that it was possible Defendant had fired first. This testimony was consistent with other testimony presented by the State, discussed above, suggesting that Defendant’s group began the fire fight.

¶28 Additionally, Defendant’s actions and initial statements to police were evasive and designed to frustrate an investigation into his role in Victim’s death

. Defendant’s companions testified that upon returning to the apartment, he attempted to hide the gun , remove gun residue from his person
, and he expressed excitement that he could now get his gang tattoo as a result ofState v. Navar ro

20151019

- CA 11 2019 UT App 2 the shooting. Upon his arrest s everal days after the shooting, Defendant did not claim to have acted in self

- defense. Instead, he first gave police a false name, denied driving the sedan, and denied having been anywhere in the area for years. Defendant also claimed to have been staying at a hotel but could not remember the hotel’s name. Later, Defendant admitted he had been to the apartment, but only to feed some dogs; however, he could not name the owner of the dogs. Defendant also claimed that he had been working at a hospital on the d ay of the shooting. And still later, Defendant admitted that he ha d been staying at the apartment but denied having been present at the shooting. Finally, Defendant admitted that he had witnessed the shooting but denied firing his gun. It was not until tri al that Defendant admitted he had fired his gun at the Avalanche, but only in self

- defense. Defendant’s evolving and uncorroborated account likely made it difficult for the jury to credit his trial testimony.

¶29 All this evidence amply supports a conclusion t hat Defendant actively sought a fight with Victim rather than acting in self

- defense . Thus, we are not convinced that “there is a reasonable probability that . . . the result of the proceeding woul d have been different” without the d etective’s testimony. S ee Strickland , 466 U.S. at 694. Defendant therefore cannot show that he was deprived of the effective assist ance of counsel with regard to the d etective’s testimony.

II. Jury Instru c tion

¶30 Defendant also contends that his trial counsel was constitutionally ineff ective for failing to object to an erroneous jury instruction. Specifically, he argues that his counsel “approv[ed] a jury instruction stating that [Defendant] could be convicted of manslaughter only if the jury found beyond a reasonable doubt that imperfe ct self

- defense applied ” instead of stating that “[Defendant] could be convicted of manslaughterState v. Navar ro

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- CA 12 2019 UT App 2 only if the State failed to disprove imperfect self

- defense beyond a reasonable doubt.”

¶31 Utah law provides that a murder charge may be reduced to a manslaughter charge when the defendant erroneously believed that the killing was leg ally justified, such as in self

- defense:

It is an affirmative defense to a charge of murder

. . . that the defendant caused the death of another

. . . under a reasonable belief that th e 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 2012 ). “Once a defendant has produced some evidence of imperfect self

- defense, the prosecution is required to disprove imperfect self

- defense beyond a reasonable doubt.” State v. Lee , 2014 UT App 4, ¶ 27, 318 P.3d 1164 ( quotation simplified ). “Because the burden of proof for an affirmative defense is counterintuitive, instructions on affirmative defenses must clearly communicate to the jury what the burden of proof is and who carries the burden.” Id. ( quotation simplified ).

¶32 Here, the jury received three instructions regarding the burden of proof. In struction 55 explained that “[t]he defendant is not required to prove that the defense [of imperfect self

- defense] applies. Rather, the State must prove beyond a reasonable doubt that the defense does not apply.” And Instruction 71 explained, “The laws of Utah do not requ ire the defendant to prove self

- defense. Once self

- defense or imperfect self

- defense is raised by the defendant, it is the prosecution’s burden to prove beyond a reasonable doubt that the defendant did not act in self

- defense.” These instru ctions correctly stated the relevant law.State v. Navar ro

20151019

- CA 13 2019 UT App 2 ¶33 However, Instruction 53 , to which Defendant’s counsel acquiesced, erroneously placed the burden on Defendant to prove that imperfect self

- defense applied beyond a reasonable doubt:

You cannot convict the Defendant, Ernesto Navarro, of the offense of Manslaughter unless you find from all the evidence, and beyond a reasonable doubt , each and every one of the following elements : 1. That the defendant, Ernesto Navarro,

. . . 2. committed the offense of Murder under circ umstances amounting to imperfect self

- defense

. . . . (Emphases added). The State concedes that Instruction 53 was erroneous but argues that Defendant was not prejudiced by the

error because he was not entitled to claim imperfect self

- defense

.
¶34 In the Stat e’s view , Defendant was not entitled to claim imperfect self

- defense be cause he could not have acted “ ‘ under a reasonable, but legally mistaken, belief that his use of deadly force was justified. ’ ” (Quoting Lee , 2014 UT A pp 4, ¶ 29 .) As discussed above, a d efendant cann ot claim self

- defense when the d efendant is engaged in committing a felony, is the aggressor, or is engaged in combat by agreement. See Utah Code Ann. § 76

- 2

- 402(2)(a)

.
¶35 Defendant was the only witness to testify that his group had not sought to confront Victim’s group after leaving the apartment, and hi s uncorroborated account contradicted the testimony o f other witnesses credited by the jury. The jury apparently found that Defendant’s group had left the apartment in the hope s of confronting V ictim’s group. Given the overwhelming evidence that Defendant was the aggressor , there is no reasonable probability that the jury would have convicted Defendant of the lesser offense of manslaughter if Instruction 53 had properly explained the burden of pr oof

. Because the evidence failed to establish a claim of imperfect self

- defense
,State v. Navar ro

20151019

- CA 14 2019 UT App 2 Defendant did not suffer prejudice when one of the three instructions misstated the burden of proof. 1

¶36 Because Defendant has not shown how the erroneous instruction prejudiced his case, he has failed to demonstrate that his counsel’s assistance fell below the constitutional ly required level. See Strickland v. Washington , 466 U.S. 668, 687 (1984) ( holding that a defendant must prove both counsel’s deficient performance and result ing prejudice to succeed on a claim of ineffective assistance of counsel); see also State v. Hards , 2015 UT App 42, ¶ 18, 345 P.3d 769 (“Because both deficient performance and resulting prejudice are requisite elements of an ineffective assistance of counsel claim, a failure to prove either element defeats the claim.”).

III. Cumulative Error

¶37 In Defendant’s reply brief, he asserts that “the two errors worked together

— both the inadmissible hearsay and the faulty

1 . Our conclusion on this point is reinforced by the fact that the jury did not ask the court to reconcile or explain the conflicting instructions regarding the burden of proof for a claim of imperfect self

- defense , suggesting that the jury did not believe that imperfect self

- defense applied
, regardless of who bore the burden of proof. It is also worth noting that both the State and the defense attempted to steer the jury away from manslaughter. The State implored the jury, “We are not [asking you to consider manslaughter]. We are asking you to convict the defendant of murder because that’s what he did.” The de fense likewise eschewed a manslaughter request, stating, “We’re not asking you to find him guilty of manslaughter. We’re asking you to find

. . . . [t]hat he was justified in defending himself. . . . Please find him not guilty.” Thus, the jury may have pai d very little attention to the manslaughter instruction that contained the

erroneous language

.State v. Navar ro

20151019

- CA 15 2019 UT App 2 instruction prevented the jury from considering imperfect self

- defense.” However, “issues raised by an appellant in the reply brief that were not presented in the opening brief are considered waived and will not be considered by the appellate court.” Allen v. Friel , 2008 UT 56, ¶ 8, 194 P.3d 903 ( quota tion simplified ). Thus, Defendant has waived his cumulative

- error claim

.

CONCLUSION

¶38 Defendant’s trial counsel’s failure to object on hearsay grounds to testimony regarding Nephew’ s initial statement to a d etective and counsel’s failure to object to the err oneous jury instruction did not lead to any discernable prejudice. We therefore conclude that Defendant has not demonstrated that his counsel’s assistance was constitutionally ineffective.

¶39 Affirmed.