State v. Juarez , 2021 UT App 53 ( 2021 )

2021 UT App 53THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
OSCAR EDUARDO GODINEZ JUAREZ,
Appellant.
Opinion
No. 20190123-CA
Filed May 20, 2021
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161909011
Brett J. DelPorto, Attorney for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which JUDGE
JILL M. POHLMAN and SENIOR JUDGE KATE APPLEBY concurred. 1
HARRIS, Judge:
¶1 A jury convicted Oscar Eduardo Godinez Juarez of
aggravated kidnapping, aggravated robbery, and aggravated
assault. Godinez Juarez 2 appeals those convictions, asserting that
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
2. Before the trial court, the attorneys, various witnesses, and the
court referred to the defendant as either “Mr. Godinez” or “Mr.
Godinez Juarez.” Yet in his briefing on appeal, the defendant is
referred to simply as “Juarez.” These discrepancies likely arise
from the differences between naming conventions used by
(continued…)
State v. Godinez Juarez
his trial attorney rendered constitutionally ineffective assistance
by agreeing to a “dual-jury” trial procedure, and asserting that
the trial court erred in denying his motion for mistrial related to
the prosecutor’s and witnesses’ use of the term “victims” in
referring to the complaining witnesses. We reject Godinez
Juarez’s arguments and affirm his convictions.
BACKGROUND 3
¶2 One evening, two seventeen-year-old boys (collectively,
Teens; individually, Teen 1 and Teen 2) went to Godinez Juarez’s
house—a place they had been “once or twice” before—to “hang
out.” When they arrived, Godinez Juarez was not home, but
Teens were greeted by another acquaintance (Codefendant),
with whom they socialized while waiting for Godinez Juarez.
When Godinez Juarez got home, he immediately confronted
Teen 1, “calling him a snitch,” and pointed a handgun “right in
(…continued)
individuals of non-Spanish European descent—who often
“have a first name, an optional middle name, and a single
last name inherited solely from the father”—and individuals
of Hispanic descent—who often “have two given names,
plus a paternal surname . . . and a maternal surname.”
See Naming customs of Hispanic America, Wikipedia,
https://en.wikipedia.org/wiki/Naming_customs_of_Hispanic_A
merica [https://perma.cc/R9JQ-N5S7]. To avoid confusion and to
recognize the defendant’s paternal and maternal surnames, in
this opinion we refer to him as “Godinez Juarez.”
3. “In reviewing a jury verdict, we view the evidence and all
reasonable inferences drawn therefrom in a light most favorable
to the verdict.” Noor v. State, 2019 UT 3, n.1, 435 P.3d 221(quotation simplified).
20190123-CA 2 2021 UT App 53State v. Godinez Juarez
[Teen 1’s] face.” Teen 1 first thought Godinez Juarez was joking
and pushed the gun away, but Godinez Juarez continued to
threaten Teen 1. Teen 2 attempted to intervene, but Codefendant
quickly “smacked” him, took away his cell phone, and produced
a rifle. While pointing the guns at Teens, Godinez Juarez and
Codefendant threatened to “smoke” them, and commanded
them to go downstairs into the basement.
¶3 Once they were downstairs, Godinez Juarez ordered
Teens to empty their pockets and “to get on [their] knees”; he
then struck Teen 2 on the head with the handgun, and he and
Codefendant began kicking Teens “everywhere on [their]
bodies.” After a while, Godinez Juarez and Codefendant left the
room and when they returned, Codefendant was holding some
“weed eater string” and Godinez Juarez had a “Fiji” brand
plastic water bottle that contained gasoline. Codefendant tied up
Teens with the weed eater string and Godinez Juarez poured the
gasoline onto both Teens. While pouring gasoline onto Teen 2,
Godinez Juarez pressed his foot to Teen 2’s face, causing him to
ingest some of the gasoline. Godinez Juarez then sprayed a
different substance—that Teens at first thought was “brake
fluid” but turned out to be “starter fluid”—into Teens’ ears.
After dousing Teens in flammable liquid, Codefendant held a lit
“blunt” 4 over Teen 1 and repeatedly brought it close to his body
as “if he was going to let it go.” Godinez Juarez and
Codefendant also picked up a chainsaw in an effort to further
torment Teens, but were unable to get it started.
¶4 Throughout the basement ordeal, Godinez Juarez and
Codefendant were intermittently laughing and repeatedly
4. “A blunt is a street term used to describe a cigar that has been
hollowed out, filled with marijuana, and smoked to ingest the
drug.” Robert S. v. Commissioner of Corr., 221 A.3d 493, 499 n.4
(Conn. App. Ct. 2019) (quotation simplified).
20190123-CA 3 2021 UT App 53State v. Godinez Juarez
threatening to kill Teens, suggesting more than once that they
were going to “take [them] somewhere,” “cut [them] up,” and
bury them. After “stomping and kicking” Teens some more,
Godinez Juarez and Codefendant told them to move into the
garage. In the process of getting up off the basement floor, Teen
1 was able to grab his cell phone, which Codefendant had
confiscated but left nearby, and conceal it in his waistband. Once
in the garage, Godinez Juarez and Codefendant forced Teens to
“roll over” and “lick the floor,” which was covered in dog feces.
After a few minutes, Godinez Juarez and Codefendant left the
room, and Teen 1 was able to pull the cell phone out of his
waistband and dial 911. Once the operator answered, Teen 1
began to tell her about the situation, but Godinez Juarez
returned and Teen 1 had to hang up the phone.
¶5 On the other end of Teen 1’s 911 call, the operator at first
could not hear anything aside from “a lot of ruffling and some
talking,” but eventually was able to hear someone exclaim,
“[T]hey’re going to kill me.” Based on what the operator and
dispatcher could glean from the call, they informed the
responding officers that the caller was being held in a garage,
but were not able to give an exact address. As the phone call
continued, the operator was able to triangulate a general GPS
location based on the cell signal and updated the dispatcher with
an approximate address. One of the responding officers (Officer)
was travelling toward the approximate location given by the
dispatcher when he came across Godinez Juarez in an alleyway.
Officer identified himself as a police officer, prompting Godinez
Juarez to attempt to retreat. After Officer “grabbed ahold of
him,” Godinez Juarez looked in the direction of his house and
yelled, “Shut the garage, shut the garage.” At that point, Officer
looked toward the garage and saw that it was partially open, but
did not immediately notice anything out of the ordinary. A few
moments later, however, the garage “opened all the way” and
Teen 1 ran out, shouting expletives and exclaiming, “[T]hese
guys are trying to kill us.”
20190123-CA 4 2021 UT App 53State v. Godinez Juarez
¶6 Shortly thereafter, Teen 2 was able to partially free
himself and make his way out of the garage. After Teens had
exited the garage, and with Godinez Juarez in custody, Officer
used a bullhorn to command any other individuals to come out
based on the belief “that there was possibly another person in
the house, and that that person was probably armed and
dangerous.” After a few minutes, Codefendant exited the house
without further incident and was detained by police.
¶7 “[A]fter the residence was cleared,” officers searched the
house pursuant to a search warrant. During the search, officers
recovered evidence indicating that Godinez Juarez lived at the
house, including mail addressed to him, his student ID, and his
passport. The officers also found evidence that substantiated
many of the details given in Teens’ account of events, including
a “Fiji water bottle that contained a yellow-like substance,” a can
of “starter fluid,” a chainsaw, and a handgun and rifle hidden in
a ventilation grate. Finally, at least one responding officer
observed the condition of the garage, noting that he “could smell
the dog feces and urine” as soon as the garage door opened, and
described how “it was everywhere.”
¶8 Later that night, officers interviewed Godinez Juarez at
the police station. In the interview, Godinez Juarez admitted that
he lived in the house where Teens were found and that Teens
had been there multiple times before. Godinez Juarez also stated
that he believed Teens “were snitching on him,” and that “he
wanted to teach them a lesson” that night. He admitted to
binding Teens’ legs with “weed whacker wire,” and pouring
“clear liquid [on them] from a Fiji bottle,” although he claimed
that he did not realize the liquid was gasoline until he smelled
the fumes as he was pouring it. During the interview, Godinez
Juarez exhibited a “proud” demeanor, admitting that he
“slapped [Teens] around” and simultaneously demonstrating a
slapping motion while laughing.
20190123-CA 5 2021 UT App 53State v. Godinez Juarez
¶9 That same night, officers also interviewed Codefendant.
He was interviewed in a separate room from Godinez Juarez,
and they could not hear each other. During the course of the
interview, Codefendant at first denied any wrongdoing, but
eventually “admitted to tying [Teens] up” with “weed eater
cord” based on the belief that “one of [them] was a snitch.”
Codefendant also admitted to “handling the rifle,” and told
officers where they could find the guns in Godinez Juarez’s
house. Codefendant also told officers that Teens were not his
friends and “they didn’t like [him] and [he] didn’t like them.”
¶10 The State charged Godinez Juarez with two counts each of
aggravated kidnapping and aggravated robbery, all first-degree
felonies, and two counts of third-degree-felony aggravated
assault. 5 The State filed similar charges against Codefendant.
¶11 As the case proceeded toward trial, Godinez Juarez filed a
motion to sever his trial from Codefendant’s. In response, the
State filed a motion asking the trial court to employ a “dual jury
procedure” to resolve the apparent “Bruton problem” 6 posed by
the State’s intention to offer both defendants’ confessions into
evidence at trial. Rather than conduct two entirely separate
trials, the State proposed that just one trial be held, but that the
court empanel two separate juries—one specific to each
5. Godinez Juarez was also charged with several drug-related
offenses, but the State later voluntarily dismissed these charges
with prejudice.
6. See generally Bruton v. United States, 391 U.S. 123 (1968)
(holding that, in a criminal trial with two defendants, a
codefendant’s out-of-court statement implicating the defendant’s
guilt cannot be offered against the defendant because it violates
the defendant’s Sixth Amendment right to confront and cross-
examine witnesses).
20190123-CA 6 2021 UT App 53State v. Godinez Juarez
defendant—and ask each defendant’s respective jury to leave the
courtroom when a codefendant’s out-of-court statement (or
other evidence admissible as to only one defendant) was
presented. In this way, each defendant’s confession would be
heard only by that defendant’s jury. The State asserted in its
motion that a dual-jury trial would serve judicial economy and
would require the witnesses—including Teens in particular—to
testify at only one trial rather than two. Eventually, through his
trial counsel (Trial Counsel), Godinez Juarez agreed to this
procedure and indicated that he did “not object to the State’s
request for dual juries.”
¶12 The trial court presided over a five-day jury trial, for
which it empaneled two separate juries. To ensure easy
identification of the jurors, the court required members of
Godinez Juarez’s jury to wear blue lanyards, and required
members of Codefendant’s jury to wear black lanyards. The
court also provided several instructions to ensure that the jurors
understood that their role was specific to adjudging their
respective defendant’s guilt, and not that of the other defendant.
¶13 On the second day of trial, Teen 2 testified extensively as
to the events outlined above. During the third day of trial, the
State presented testimony from Teen 1, but he indicated that he
could not remember the incident after two years, and stated that
he “blacked out.” The prosecutor then attempted to refresh his
recollection by presenting him with the police report from that
night, when the following exchange occurred:
Prosecutor: When you’ve had a chance to look at
that report, does that refresh your
recollection as to whether you told
the police . . . that [Godinez Juarez]
had accused you of being a snitch?
Teen 1: Yeah, somewhat.
20190123-CA 7 2021 UT App 53State v. Godinez Juarez
Prosecutor: Well—okay. Do you remember
[Godinez Juarez] telling you, you
were a snitch?
Teen 1: I don’t remember exactly who said
what, but it was something about . . .
being a snitch between me and
another victim.
Prosecutor: Okay. And who’s the other victim?
Teen 1: You said his name was—
At that point, Trial Counsel asked to approach the bench and
lodged an objection, asserting, “I don’t want to object before the
jury just to bring more attention to it, but I don’t think it’s proper
for the . . . witness [to say] victim, and I don’t think it’s proper
for the [prosecutor] to say—use the word ‘victim.’” The
prosecutor agreed, and indicated he would refrain from
referring to Teens as “victims.”
¶14 The State also presented testimony from several officers
and detectives, who testified about the actions they took upon
arriving at the scene. In this context, one officer stated, “I walked
over there because that was where I was directed where the
victims were.” Trial Counsel objected a few minutes later during
a sidebar conference, stating that the officer-witness had “used
the term ‘victim’ again. I would just ask the State . . . to inform
all of the witnesses before they call them not to use that term.”
The court observed that the State was already “aware of that.”
Later that day, a different officer—a detective—was testifying
about his post-incident interview with Teen 1 and, in describing
where the interview took place, referred to the location as “one
of our victim interview rooms.” And during cross-examination,
the detective referred to being in that room with “the victim.”
20190123-CA 8 2021 UT App 53State v. Godinez Juarez
¶15 This last reference prompted Trial Counsel to “move for a
mistrial on the repeated use of the word ‘victim’ by the State[]”
when referring to Teens. After making the motion, Trial Counsel
recounted each instance in which the word “victim” had been
used. Trial Counsel asserted that this constituted a “repeated
pattern” on the part of the State after there “was a very clear
directive from [the court] to the State to inform all of its
witnesses not to use that term.” Trial Counsel further argued
that repeatedly “calling people who are not legally established as
victims through a jury verdict as victims . . . invit[ed] prejudice
to the right to [a] fair trial for both defendants,” and that a
curative instruction would “bring[] more attention to the issue
than is necessary.” The trial court disagreed, opining that the
specific uses of the word “victim,” viewed in context, had been
inadvertent and not prejudicial. The court denied the motion for
mistrial, but offered to give the jury a curative instruction if Trial
Counsel requested one. Trial Counsel later agreed to a set of jury
instructions that included such an instruction and, after the close
of evidence, in connection with giving other instructions, the
court instructed the jury that “[c]ertain witnesses have referred
to [Teens] as victims in this case. This was done in error. It is up
to you, and you alone, to determine beyond a reasonable doubt
whether the crimes have been committed in this case.”
¶16 Also during the third day of trial—the final day of the
State’s case-in-chief—the State offered testimony from a
detective who served as the case manager for everyone
investigating Codefendant’s case (Case Manager). During direct
examination, Case Manager testified about his participation in
the search of Godinez Juarez’s house, the recovery of several
pieces of evidence, photographs of the evidence and certain
parts of the house, and the chain of custody over that evidence.
Both juries were present for the State’s direct examination of
Case Manager. At the conclusion of the State’s direct
examination, the court excused both juries for a short break, but
after the break invited only Codefendant’s jury—and not
20190123-CA 9 2021 UT App 53State v. Godinez Juarez
Godinez Juarez’s jury—back to the courtroom to hear cross-
examination of Case Manager by Codefendant’s counsel. While
cross-examining Case Manager, Codefendant’s counsel asked a
series of questions designed to cast more of the blame on
Godinez Juarez than on Codefendant. For instance, Case
Manager offered his view that Codefendant was only a “short
term” visitor at the house, that the house appeared to be
Godinez Juarez’s residence, and that police had no reason to
believe that many of the items discovered during the search of
the house belonged to Codefendant. Following the cross-
examination by Codefendant’s counsel, the State chose not to
conduct a redirect examination, the court informed
Codefendant’s jury that the State had rested its case against
Codefendant, and Codefendant’s jury was excused for the day.
Trial Counsel then indicated that he was not going to cross-
examine Case Manager with respect to Godinez Juarez’s case.
Godinez Juarez’s jury then returned to the courtroom, and Case
Manager was excused from the witness stand. Thus, Godinez
Juarez’s jury was not present for any testimony offered by Case
Manager on cross-examination.
¶17 After calling one more witness to testify against Godinez
Juarez, the State rested its case against him. On the afternoon of
the trial’s third day, Godinez Juarez presented his case-in-chief,
during which he called one witness, but elected not to testify in
his own defense. At the end of the day, after Godinez Juarez
rested his case, the court informed Godinez Juarez’s jury that it
would be excused for the entire fourth day of trial, because that
day would exclusively involve “matters [for] the other jury.”
¶18 On the fourth trial day, outside the presence of Godinez
Juarez’s jury, Codefendant presented his case-in-chief and
testified in his own defense. In his testimony, Codefendant
admitted to his own involvement by describing how he
threatened Teens with the rifle, but emphasized that Godinez
Juarez was the primary perpetrator and suggested that he was
20190123-CA 10 2021 UT App 53State v. Godinez Juarez
an unwilling participant and was himself intimidated by
Godinez Juarez. Codefendant also testified about his confession
during his police station interview, describing how he had at
first denied any wrongdoing, but “[e]ventually . . . ended up
telling [police] that [he] was the one that tied [Teens] up and
[told police] where they could find the guns.” After Codefendant
rested his case, the State called, as a rebuttal witness, one of the
detectives who interviewed Codefendant; that detective gave
additional testimony about Codefendant’s confession. But as
noted, Godinez Juarez’s jury did not hear any of this
testimony—neither Codefendant’s in-court testimony nor any
testimony about his confession the night of the crime—because it
was not present during the entire fourth day of trial.
¶19 Also during the fourth trial day, after Codefendant had
rested his case, the court heard argument—outside the presence
of either jury—regarding finalization of the jury instructions for
the two cases. During this discussion, Trial Counsel objected to a
proposed instruction “suggest[ing] that if a jury finds the
evidence proof beyond a reasonable doubt, they must convict.”
(Emphasis added.) Trial Counsel characterized his objection as
“[e]ssentially a jury nullification argument,” and asserted that
“both the Utah Constitution and the Federal Constitution, when
they were adopted, contemplated the ability of a jury to reject
charges simply because they disagreed with them.” In particular,
Trial Counsel asked the court to change the language of the
relevant instruction from “must” to “may.” Trial Counsel’s sole
argument in this regard was constitutional; he made no statutory
argument and cited no case law; indeed, he acknowledged that
“the weight of the case law [wa]s against” his argument. The
trial court overruled the objection.
¶20 At the conclusion of the trial, Godinez Juarez’s jury
returned a guilty verdict on all counts, and the trial court later
sentenced Godinez Juarez to prison.
20190123-CA 11 2021 UT App 53State v. Godinez Juarez
ISSUES AND STANDARDS OF REVIEW
¶21 Godinez Juarez now appeals, raising two principal issues
for our review. First, he asserts that Trial Counsel rendered
ineffective assistance by agreeing to the dual-jury trial
procedure. An ineffective assistance of counsel claim “raised for
the first time on appeal presents a question of law, which we
consider de novo.” State v. King, 2018 UT App 190, ¶ 11, 437 P.3d
425 (quotation simplified).
¶22 Second, he challenges the trial court’s decision to deny his
motion for mistrial related to the prosecutor’s and certain
witnesses’ use of the term “victim.” The “denial of a motion for
mistrial” is reviewed “under an abuse of discretion standard.”
State v. Vallejo, 2019 UT 38, ¶ 35, 449 P.3d 39. 7
7. In addition to the two principal issues addressed herein,
Godinez Juarez also argues that the trial court erred by denying
his request for a jury instruction that would have advised jurors
that they had the ability to acquit even if the State had proved its
case beyond a reasonable doubt. Such an instruction is forbidden
by statute in Utah, as jurors “are bound to follow the law as
stated by the court.” Utah Code Ann. § 77-17-10(2) (LexisNexis
2019). And statutes are binding on courts unless proven to be
unconstitutional. Cf. Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22,
27 (1987) (“If Congress intended to reach the issue before the
district court, and if it enacted its intention into law in a manner
that abides with the Constitution, that is the end of the matter;
federal courts are bound to apply rules enacted by Congress
with respect to matters over which it has legislative power.”
(quotation simplified)). Although Godinez Juarez made a
constitutional argument to the trial court, he makes no such
argument here, and does not otherwise explain why the
governing statute should not control. Under these
(continued…)
20190123-CA 12 2021 UT App 53State v. Godinez Juarez
ANALYSIS
I
¶23 “Defendants charged together with committing the same
offense are generally tried together,” but “[s]eparate trials may
be required when one defendant’s incriminating out-of-court
statements” would be offered in evidence at trial, and those
statements are “admissible against the declarant but not against
other codefendants.” Elizabeth Williams, Annotation, Propriety of
Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal
Criminal Prosecution, 40 A.L.R. Fed. 3d Art. 4, § 2 (2019). This is
because of the United States Supreme Court’s decision in Bruton
v. United States, 391 U.S. 123 (1968), in which the Court held that,
in a joint trial, admission of a codefendant’s out-of-court
statements that tend to incriminate the other defendant violate
the other defendant’s “right of cross-examination secured by the
Confrontation Clause of the Sixth Amendment” because the
codefendant cannot be cross-examined without violating the
codefendant’s Fifth Amendment right against compelled self-
incrimination. Id. at 126–27. One potential solution to the
quandary posed by Bruton is holding a joint trial with multiple
juries, one for each defendant. See 40 A.L.R. Fed. 3d Art. 4, § 2.
“In such cases, both or all of the juries generally hear all of the
evidence, but the jury determining one codefendant’s guilt is not
permitted to hear the statement introduced against another
(…continued)
circumstances, Godinez Juarez has not carried his appellate
burden of persuasion on this issue, and we decline to address it
further. See Kendall v. Olsen, 2017 UT 38, ¶¶ 9, 15, 424 P.3d 12(affirming “on the basis of [the appellant]’s failure to carry his
burden of persuasion on appeal,” without necessarily reaching
the merits of the underlying issue).
20190123-CA 13 2021 UT App 53State v. Godinez Juarez
codefendant if it would not be admissible against the first
codefendant.” Id.
¶24 In this case, the State asked the trial court to employ a
dual-jury trial procedure in trying Godinez Juarez and
Codefendant, and Trial Counsel eventually stipulated to that
request. Godinez Juarez argues that Trial Counsel rendered
constitutionally ineffective assistance by acquiescing to the
State’s dual-jury proposal.
¶25 “Ineffective assistance of counsel claims arise under the
Sixth Amendment to the United States Constitution, and we
evaluate them under the standard articulated by the United
States Supreme Court in Strickland v. Washington, 466 U.S. 668(1984).” State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350 (quotation
simplified). Under Strickland, to establish that Trial Counsel was
constitutionally ineffective, Godinez Juarez must satisfy two
elements: (1) that “counsel’s performance was deficient,” and (2)
that this “deficient performance prejudiced the defense” by
giving rise to “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” 466 U.S. at 687, 694. “A reasonable probability is
a probability sufficient to undermine [our] confidence in the
outcome.” See id. at 694; accord Scott, 2020 UT 13, ¶ 43.
¶26 “In practice,” however, “we often skip the question of
deficient performance when a defendant cannot show
prejudice.” State v. Roberts, 2019 UT App 9, ¶ 23, 438 P.3d 885;
accord Strickland, 466 U.S. at 697 (“If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient
prejudice, . . . that course should be followed.”). This is because a
defendant asserting an ineffective assistance of counsel claim
“must make a sufficient showing on both parts of this test in
order to establish that counsel provided ineffective assistance,”
and therefore “it is unnecessary to address both components of
the inquiry if we determine that [the defendant] has made an
20190123-CA 14 2021 UT App 53State v. Godinez Juarez
insufficient showing on one.” See State v. Delgado, 2020 UT App
121, ¶ 25, 473 P.3d 234 (quotation simplified).
¶27 In this instance, to demonstrate prejudice Godinez Juarez
must persuade us that there exists a “reasonable probability”
that the result of his case “would have been different” had he
been tried through a standard jury trial, severed from
Codefendant’s, rather than through the dual-jury trial employed
here. See Strickland, 466 U.S. at 694. To satisfy this part of
Strickland’s test, Godinez Juarez must show particularized
prejudice in his specific case; allegations of structural prejudice,
or prejudice per se, are generally insufficient in the context of an
ineffective assistance claim. See State v. Garcia, 2017 UT 53, ¶ 36,
424 P.3d 171 (stating that nearly all claims for ineffective
assistance “are subject to a general requirement that the
defendant affirmatively prove prejudice,” and that the United
States Supreme Court “has even been hesitant to forgo the
prejudice analysis where the ineffective assistance resulted in a
‘structural error’” (quotation simplified)). And because we agree
with the State’s position that Godinez Juarez cannot demonstrate
prejudice under the Strickland test, we proceed directly to that
part of the test, without fully addressing deficient performance. 8
8. Although we do not reach the merits of Godinez Juarez’s
argument that Trial Counsel performed deficiently by agreeing
to a dual-jury trial, we recognize the strength of the State’s
argument that a trial attorney’s choice to seek (or stipulate to) a
dual-jury trial will, in many cases, constitute the sort of strategic
decision that we are loath to second-guess in the context of an
ineffective assistance claim. See State v. Ray, 2020 UT 12, ¶ 34, 469
P.3d 871 (“If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”); see also
State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993) (stating that “trial
(continued…)
20190123-CA 15 2021 UT App 53State v. Godinez Juarez
¶28 In attempting to demonstrate prejudice, Godinez Juarez
makes two arguments. First, he complains that the dual-jury
procedure was inefficient, and took longer than a single-jury trial
would have taken, because of the additional logistics of moving
juries in and out of the courtroom, and because of occasional
instances of testimony having to be repeated for each jury. But as
(…continued)
tactics and strategies” are “within the prerogative of counsel and
are generally left to counsel’s professional judgment”). We
acknowledge that some state courts have been critical of
multiple-jury trials. See, e.g., State v. Corsi, 430 A.2d 210, 213 (N.J.
1981) (“[T]he multiple jury procedure . . . can involve substantial
risks of prejudice to a defendant’s right to a fair trial. . . . [T]here
are too many opportunities for reversible error to take place. We
do not recommend it. If it is to be used at all, it should be in
relatively uncomplicated situations which will not require the
excessive moving of juries in and out of the courtroom and
where physical separation of the juries during the entire trial
proceedings can be insured.”). But every federal circuit to
consider the matter has ruled dual-jury trials acceptable and
constitutional, see Elizabeth Williams, Annotation, Propriety of
Use of Multiple Juries at Joint Trial of Multiple Defendants in Federal
Criminal Prosecution, 40 A.L.R. Fed. 3d Art. 4, § 2 & n.17 (2019)
(collecting cases), and they have been recognized as a viable
option by the American Bar Association, see Am. Bar Ass’n,
Principles for Juries and Jury Trials § 13(J) (2016),
https://www.americanbar.org/content/dam/aba/administrative/a
merican_jury/2016_jury_principles.pdf [https://perma.cc/HP5T-
V3DY]. Without making any pronouncement about how we
would review a trial court’s contested decision to impose a dual-
jury trial procedure over a defendant’s objection, we simply note
that it may be reasonable for attorneys to ask for (or stipulate to)
dual-jury trials in individual cases, and where that is the case,
deficient performance is not present.
20190123-CA 16 2021 UT App 53State v. Godinez Juarez
the State notes, this argument misses the point: even if Godinez
Juarez’s assertion about inefficiency is true, at best it
demonstrates that the same result could have been achieved more
quickly through a single-jury trial, not that the “result of the
proceeding would have been different.” See Strickland, 466 U.S. at
694 (emphasis added).
¶29 Second, Godinez Juarez asserts that he was prejudiced by
certain testimony presented at trial. But the only specific
testimony he identifies in support of this argument is testimony
offered by Case Manager during cross-examination. Godinez
Juarez asserts that, through this testimony, Codefendant
“blamed [Godinez] Juarez for the drugs police seized because
they were discovered at [Godinez] Juarez’s home,” and notes
that Codefendant “pointed to [Godinez] Juarez as the person
who poured gasoline on [Teens] because [Codefendant’s]
fingerprints were not on the water bottle containing gasoline.”
But as noted, supra ¶ 16, Godinez Juarez’s jury was not in the
courtroom to hear Codefendant’s counsel cross-examine Case
Manager, and therefore that testimony could not have affected
the result in Godinez Juarez’s case.
¶30 Indeed, our review of the record indicates that the trial
court took great care to make sure neither jury heard evidence
that was not meant for its consideration. The juries wore
different colored lanyards for easy identification and separation.
Furthermore, the court ensured that each jury left the courtroom
whenever examination of a witness might potentially present a
Bruton issue; indeed, Godinez Juarez acknowledges that “cross-
examination almost always had to be conducted separately
before each defendant’s respective jury.” In particular, the court
excused Godinez Juarez’s jury from the courtroom for the entire
fourth day of trial, when Codefendant testified.
¶31 Finally, our review of the record also indicates that the
evidence against Godinez Juarez—that any jury, even in a single-
20190123-CA 17 2021 UT App 53State v. Godinez Juarez
jury scenario, would have heard—was convincing: strong
evidence indicated that Godinez Juarez lived at the house where
Teens were found; both Teens implicated Godinez Juarez in
police interviews (although at trial Teen 1 claimed not to be able
to recall certain events); Teen 2’s trial testimony strongly
implicated Godinez Juarez; several pieces of physical evidence
found in the house corroborated Teens’ narrative; and, perhaps
most significant, Godinez Juarez confessed to police that he
“slapped [Teens] around,” bound their legs with “weed whacker
wire,” and poured “clear liquid [onto them] from a Fiji bottle.”
¶32 In short, Godinez Juarez has not undermined our
confidence in the result of his trial. See Strickland, 466 U.S. at 694;
Scott, 2020 UT 13, ¶ 43. Under these circumstances, Godinez
Juarez has fallen far short of persuading us that there exists a
reasonable probability that the outcome of his trial would have
been different if the trial had been conducted in a more
traditional single-jury format. Because Godinez Juarez has not
shown prejudice, he cannot demonstrate that Trial Counsel
rendered constitutionally ineffective assistance, and we reject his
claim on that basis.
II
¶33 Godinez Juarez next asserts that the trial court abused its
discretion by denying his mistrial motion based on four uses of
the word “victim” by witnesses and one follow-up reference by
the prosecutor. Although the court denied the motion, it offered
to give a curative instruction, and Godinez Juarez later agreed to
a set of jury instructions that included a curative instruction. An
appellate court “will not reverse a trial court’s denial of a motion
for mistrial absent an abuse of discretion.” State v. Vallejo, 2019
UT 38, ¶ 98, 449 P.3d 39 (quotation simplified). And we will find
an abuse of discretion in this context only if our “review of the
record shows that the incident so likely influenced the jury that
20190123-CA 18 2021 UT App 53State v. Godinez Juarez
the defendant cannot be said to have had a fair trial.” Id.(quotation simplified).
¶34 Our supreme court has “recognize[d] the gravity of
referring to witnesses as victims during a trial.” See id. ¶ 102. We
of course share this view. But as we explain below, the level of
judicial concern over the use of the term “victim” during trial
depends on the circumstances of the particular case at issue,
including the nature of the defendant’s defense to the charges,
and the context of the individual uses of the term “victim.”
¶35 First, if it is clear from the undisputed facts—an analysis
partly driven by the defendant’s defense to the charges—that the
complaining witness was in fact the victim of a crime, our
concern with the use of the term “victim” during trial is
generally low. Take, for instance, a situation in which a
complaining witness was undoubtedly assaulted, as evidenced
by obvious physical injuries, and the defendant defends the case
not on the ground that no assault occurred but, instead, on the
ground that he or she was not the assailant. In such a scenario,
there is often no dispute that the complaining witness was the
victim of a crime; the only question presented for the jury’s
consideration is whether the defendant is the one who
committed that crime. Under such circumstances, use of the term
“victim” usually will be appropriate, even during trial before the
jury has reached a verdict. See Jackson v. State, 600 A.2d 21, 24
(Del. 1991) (noting that “[t]he term ‘victim’ is used appropriately
during trial when there is no doubt that a crime was committed
and simply the identity of the perpetrator is in issue”), cited with
approval in State v. Devey, 2006 UT App 219, ¶ 17, 138 P.3d 90. On
the other hand, use of the term “victim” usually will be
inappropriate when the defendant defends the case on grounds
that no crime was committed and, concomitantly, that there is no
victim in the case at all. See Devey, 2006 UT App 219, ¶ 17 & n.5
(stating that “where a defendant claims that the charged crime
did not actually occur, and the allegations against that defendant
20190123-CA 19 2021 UT App 53State v. Godinez Juarez
are based almost exclusively on the complaining witness’s
testimony,” participants in the trial, including “the trial court,
the State, and all witnesses, should be prohibited from referring
to the complaining witness as ‘the victim’”). In other words,
because it has not yet been conclusively established, prior to the
verdict, that there is in fact a victim in such cases, reference to
the complaining witness as a “victim” can be problematic. See id.
¶ 17 (noting that the term “victim” is defined as “the person who
is the object of a crime,” and use of that term might imply that a
crime has been committed (quotation simplified)). One fact
pattern in which this scenario often arises is where a
complaining witness testifies to a nonconsensual sexual assault,
and the defendant defends the case by asserting that the
interactions were consensual. See id.
¶36 Second, the context of the specific testimony in which the
term “victim” is used can make a difference. For instance, the
identity of the speaker matters, and statements by a trial court
are perhaps most concerning, given that juries tend to view
statements by the court as neutral and authoritative. See Vallejo,
2019 UT 38, ¶ 99 & n.18 (stating that “improper statements made
by the court are serious” and “could give a jury an impression of
partiality”). And statements referring to the particular
complaining witness in the case as a “victim” often are more
concerning than general statements referring to victims of crime
across a particular population. See id. ¶¶ 95, 103 (differentiating
between references to the complaining witnesses as “victims,”
on the one hand, and “more general” uses of the term, on the
other hand, such as references regarding the “generalized
experience” of individuals who work with crime victims).
¶37 In this case, we cannot say that the trial court abused its
discretion by denying Godinez Juarez’s motion for mistrial
related to use of the term “victim.” First, the manner in which
Godinez Juarez defended the case made it clear that Teens were
indeed the victims of some sort of crime. Godinez Juarez
20190123-CA 20 2021 UT App 53State v. Godinez Juarez
admitted, in his police interview, that he believed Teens “were
snitching on him,” and that “he wanted to teach them a lesson.”
He admitted that he “slapped [Teens] around,” and that he had
bound their legs with “weed whacker wire,” and poured liquid
on them from a Fiji water bottle. Constrained by this evidence,
Trial Counsel acknowledged during closing argument that
something had happened to Teens, stating, “That’s not to say that
nothing occurred in the house.” Trial Counsel then appeared to
concede that Godinez Juarez was in the house when the events
in question occurred, and suggested that “had the State charged
different crimes,” those might have been “a better fit.” Indeed, as
the State accurately points out, “[t]here was no dispute” at trial
that Teens “were the ‘victims’ of something,” and “[t]he only
question—as argued to the jury—was whether there was
sufficient evidence to convict Godinez Juarez of the specific
crimes” of which he was accused. Under circumstances like this,
use of the term “victim” is not inappropriate.
¶38 Moreover, the context of the specific references to
“victims” indicates that the references were largely innocuous,
and unlikely to have so “influenced the jury that the defendant
cannot be said to have had a fair trial.” See id. ¶ 98 (quotation
simplified). Two of the references were made by a detective,
who explained, without being prompted, that he interviewed
Teen 1 in a “victim interview room.” Another reference—also
unsolicited—was made by one of the responding officers, who
stated that, upon arriving at the scene, he walked over to “where
the victims were.” And another reference came unsolicited from
Teen 1, who during his testimony stated that someone had called
him and “another victim” snitches, apparently referring to Teen
2. The only other reference was by the prosecutor, who
reflexively responded to Teen 1’s use of the phrase “another
victim” by asking who that “other victim” was. We agree with
the trial court that, in the context of this five-day trial, these five
instances were inadvertent, cursory utterances that were
unlikely to have materially influenced the jury’s view of the case,
20190123-CA 21 2021 UT App 53State v. Godinez Juarez
especially given the strength of the State’s evidence. Cf. id. ¶ 100(holding that, “given the context of the single statement” when
the court used the word “victim,” the “court did not abuse its
discretion by denying the motion for a new trial” (emphasis
added)); Devey, 2006 UT App 219, ¶ 18 (concluding that, “even if
the trial court erred by denying” the defendant’s “motion in
limine to prohibit the State and its witnesses from referring to
the [complaining witness] as ‘the victim,’” “the solitary reference
to the [complaining witness] as ‘the victim,’ in this case was not
prejudicial . . . and constituted harmless error”).
¶39 Finally, we note that the trial court gave a curative
instruction, a tool that can sometimes, depending upon the
“context” in which the statements were made, mitigate any
prejudice caused by the use of the term “victim.” See Vallejo, 2019
UT 38, ¶¶ 99–100. In Vallejo, the defendant faced several counts
of forcible sexual abuse and moved for a mistrial based on
multiple references by witnesses and the trial court itself using
the word “victim.” Id. ¶¶ 90–97. Specifically, “a police officer
used the term ‘victim’ three times while testifying,” an expert
witness used the term “a total of nine times,” and the judge
“referred to [one of the complaining witnesses] as a ‘victim’
while responding to an objection.” Id. ¶¶ 25, 28, 29. Our supreme
court, while cautioning that “improper statements made by the
court are serious,” held that this was not reversible error in part
because the trial “court gave a curative instruction.” Id. ¶¶ 99–
100. In Godinez Juarez’s trial, the five references and uses of
“victim” were much less frequent and egregious than those in
Vallejo—where the word was uttered a total of thirteen times, see
id. ¶ 91—particularly because here the trial court itself never
referred to either of the complaining witnesses as “the victim.”
And because these comparatively more severe circumstances in
Vallejo could properly be mitigated by a curative instruction, we
have no reason to conclude differently here. See State v. Wright,
2013 UT App 142, ¶ 42, 304 P.3d 887 (stating that, “in the absence
of any circumstances suggesting otherwise, courts presume that
20190123-CA 22 2021 UT App 53State v. Godinez Juarez
the jury follows [jury] instructions” (quotation simplified));
accord Marshall v. Lonberger, 459 U.S. 422, 438 n.6 (1983) (“The
crucial assumption underlying the system of trial by jury is that
juries will follow the instructions given them by the trial judge.”
(quotation simplified)).
¶40 For all of these reasons, the trial court did not abuse its
discretion by denying Godinez Juarez’s motion for mistrial
because it is not reasonably likely that the five sporadic and
unintentional uses of the word “victim” influenced the jury to a
level that put the trial’s fairness in question.
CONCLUSION
¶41 Godinez Juarez has failed to carry his burden of
demonstrating that he suffered prejudice from the use of a dual-
jury trial procedure in this case, and on that basis we reject his
claim that Trial Counsel rendered constitutionally ineffective
assistance by stipulating to that procedure. And the trial court
did not abuse its discretion in denying Godinez Juarez’s motion
for mistrial resulting from five uses of the term “victim” at trial.
¶42 Affirmed.
20190123-CA 23 2021 UT App 53