State v. Gallegos , 819 Utah Adv. Rep. 13 ( 2016 )

2016 UT App 172THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ISAAC ANTHONY GALLEGOS,
Appellant.
Opinion
No. 20140571-CA
Filed August 11, 2016
Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 121911467
Nathalie S. Skibine and Samuel J. Hanseen,
Attorneys for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGE GREGORY K. ORME and SENIOR JUDGE RUSSELL W. BENCH
CONCURRED. 1
VOROS, Judge:
¶1 Isaac Anthony Gallegos appeals his convictions for
murder, aggravated assault, and obstruction of justice stemming
from two stabbings—one fatal—outside a Salt Lake City club in
2012. Gallegos contends that the trial court erred in two ways:
first, by admitting unreliable eyewitness identification testimony
from one witness; and second, by refusing to declare a mistrial
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Gallegos
after a prosecution witness alluded to Gallegos’s alleged gang
ties. We affirm.
BACKGROUND
¶2 On a snowy November night in 2012, two people—a club
patron and a club bouncer—were stabbed outside a Salt Lake
City club during a parking lot brawl. The patron died at the
scene. The bouncer (Bouncer) survived.
¶3 Earlier that evening, a group of four patrons—the murder
victim (Victim) and three others—went to the club. A few hours
later, as the four prepared to leave, Gallegos, his girlfriend, and
another couple arrived, and their ID’s were scanned at the door.
Inside the club, Gallegos was introduced to one of the four
patrons (Patron) as “Smokey, from 18th Street.” The two
“exchanged words” and Gallegos hit Patron. A scuffle ensued
just inside the club’s front doors. A club manager (Manager)
alerted security. Club security apparently quelled the fight, but it
soon moved outside.
¶4 In the parking lot, the fight escalated into a brawl with a
crowd of people fighting on the ground. Bouncer began pulling
people off the pile surrounding Victim. A man then approached
Bouncer from behind and stabbed him at least twice. The man
also stabbed Victim. Bouncer survived, but Victim died at the
scene.
¶5 After the brawl, police arrived and investigated. Four
witnesses described the stabber as a bald Hispanic man with
short facial hair. A fifth witness described the stabber as a bald
man with a goatee. One of those witnesses, Patron, told police
that the stabber was introduced as “Smokey, from 18th Street”
earlier that night. A police database check for the moniker
“Smokey” returned Gallegos’s name and address.
¶6 Later that night, police began surveilling Gallegos’s
apartment. Outside his apartment, tire tracks in the snow led to a
20140571-CA 2 2016 UT App 172State v. Gallegos
parked brown or copper Chevy truck with its engine still warm.
Footprints from the truck led to Gallegos’s door. At about 1 a.m.,
two children left Gallegos’s apartment and carried two garbage
bags to a nearby dumpster. The bags contained a torn long-
sleeve dress shirt with a small blood stain, a white undershirt,
and a small knife blade without its handle. The blood on the
shirt was Gallegos’s own. The knife tested negative for blood.
Gallegos was charged with murder, aggravated assault, and
obstruction of justice.
Manager’s Eyewitness Testimony
¶7 Gallegos challenges Manager’s identification of Gallegos
as the stabber. Manager testified that while attempting to break
up the melee he saw one of the men “trying to work toward”
Bouncer. The man “reached into his pocket and he pull[ed] out a
knife.” The knife appeared to be a double-sided “black knife”
with a two-and-a-half to three-inch blade. Watching “the guy
with the knife,” Manager saw the man “start[] stabbing
[Bouncer],” “three, maybe four times.” Manager did not “know
if he connected on every single swing” but testified that the
stabber “definitely hit [Bouncer].” In response, Bouncer initially
“just shoved [the stabber] off like it was nothing” before
realizing he had been stabbed.
¶8 At this point Victim lay beneath a “dog pile” on the
ground. Manager testified that after the stabber struck Bouncer,
the stabber got on top of Victim and repeatedly stabbed him,
“between eight and ten times.” The stabber swung so many
times, Manager testified, that “all I saw was a blur.” Another
bouncer (Employee) pulled the stabber off of Victim, but could
not hold him. Manager testified that the stabber ended up
“looking straight at [him]” from only “a few feet away.” Still
looking at the stabber, Manager told the stabber to “just leave.”
The stabber and two other men ran to a truck and drove away.
Manager initially described the truck to police as a “big Ford
four-door truck” but later described the vehicle as a “reddish
brown” Chevy truck.
20140571-CA 3 2016 UT App 172State v. Gallegos
¶9 Manager testified that he had a clear view of the stabber’s
face because the fight occurred near the club’s illuminated
awning. Manager described the stabber as an average-size, bald,
Hispanic man about 30 years old with short, light facial hair.
And he described the stabber as “wearing a white T-shirt”
covered by a light “brownish” long-sleeve dress shirt.
¶10 As a former bouncer, Manager was trained to “memorize
what [a perpetrator] look[s] like” and “memorize if there is
anything that stands out, clothing, facial hair, tattoos,” when
something serious happens. Manager explained that bouncers
do this “so if police or any kind of liability-type issues were to
come up, bouncers would know the details.” Although Manager
admitted that he had watched the news the day after the
incident and heard that the police had arrested a suspect, he did
not “remember a picture.”
¶11 Approximately 30 days after the stabbings, Manager was
shown a photo array by the lead detective on the case. Another
officer had assembled the physical photographs, but the
detective knew which photo showed the suspect. The photo
array itself consisted of an instruction sheet and a stack of six
black-and-white photos: one photo of Gallegos, and five “filler
photos” of other men who shared Gallegos’s birth year and
physical characteristics—bald or with very short hair and facial
hair. Although the detective later testified that the photos were
limited to “the exact same age, within the same ethnicity of the
[suspect],” two of the men did not have Hispanic surnames and
the parties disagree about the exact ethnicity of each person. The
suspects appear to have similar skin tones. The selection criteria
for the photo array stated “white male.” 2
2. “Based on the definitions created by the Office of Management
and Budget and the U.S. Census Bureau, the concepts of race and
ethnicity are mutually independent, and respondents to the
census and other Census Bureau surveys are asked to answer
both questions. Hispanicity is independent and thus not the
(continued…)
20140571-CA 4 2016 UT App 172State v. Gallegos
¶12 The detective conducted the photo array at the police
station. He began the procedure by handing Manager the
instruction sheet and asking him to read it; the sheet contained
four instructions:
You are about to be shown a group of photographs.
Before you view these photographs, please read
the following carefully.
1) Because a police officer is showing you a
group of photographs, this should not
influence your judgment in any way.
2) The person who committed the crime may
or may not be in the group of photographs.
3) You are in no way obligated to identify
anyone.
4) Study each photograph carefully before
making any comments. Consider that the
photographs could be old or new, that hair
styles change, and that persons can alter
their identity by growing or shaving facial
hair.
¶13 The detective testified that he made no comments or
gestures while Manager read the instructions. After Manager
finished reading the instruction sheet, he signed his name to it.
Next, the detective handed Manager a stack of six black-and-
(…continued)
same as race, and constitutes an ethnicity category, as opposed
to a racial category, the only one of which that is officially
collated by the U.S. Census Bureau. For the Census Bureau,
Ethnicity distinguishes between those who report ancestral origins
in Spain or Hispanic America (Hispanic and Latino Americans),
and those who do not (Non-Hispanic Americans).” See White
Hispanic and Latino Americans, https://en.wikipedia.org/wiki/
White_Hispanic_and_Latino_Americans (emphasis in original)
[https://perma.cc/Z9AQ-QLSC].
20140571-CA 5 2016 UT App 172State v. Gallegos
white photographs; Gallegos’s photo was third in the stack.
Although each photo was printed on a page of the same physical
dimensions, the size of Gallegos’s photo was smaller than the
others Also, each photo included a URL, but the URL on
Gallegos’s photo was different from the URL that appeared on
the other photos. No one told Manager the names of the men in
the photo array.
¶14 Due to a dead battery, the video recorder did not record
the comments made at the photo array. However, the detective
testified that Manager “essentially went through [the photos]
one at a time.” After viewing each photo, Manager handed
Gallegos’s photo to the detective and stated, “This is him.” The
detective asked Manager “how positive he was”; Manager
responded, “A hundred percent positive and I will testify.”
Other Eyewitness Testimony
¶15 Although only Manager testified to seeing both stabbings,
five other witnesses testified to seeing one or the other of the
stabbings. A club promoter (Promoter) and Patron witnessed
Victim’s stabbing, and Bouncer, Bouncer’s brother (Brother), and
Employee witnessed Bouncer’s stabbing. Gallegos does not
challenge their testimony, but we outline it in some detail
because it bears on the question of prejudice.
¶16 First, Promoter testified that he arrived at the club as the
bouncers were moving the brawlers outside. Promoter testified
that a man who looked “really pissed off” walked by him while
a woman tried to grab the man’s arm, saying, “no, no, no don’t.”
Promoter then saw this same man make “jabbing motions”
towards Victim’s chest. Promoter was standing four feet away
and had a profile view of the man and Victim. When Victim fell
to the ground bleeding, Promoter realized that the man had
stabbed Victim. Promoter attempted to restrain him, but the
stabber took off running.
¶17 Later that night, Promoter described the stabber as a bald
Hispanic man. He identified Gallegos as the stabber from a
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police photo array. Promoter also identified Gallegos as the
stabber from a photo of Gallegos taken shortly before Gallegos’s
visit to the club.
¶18 Second, Patron testified that while he was at the club, a
man, introduced earlier as “Smokey,” hit him. During the
scuffle, Patron also saw “Smokey” hitting Victim. Patron
described “Smokey” as a bald Hispanic man with facial hair.
Following the brawl, Patron picked Gallegos from the same
police photo array shown to Manager. However, Patron could
not identify Gallegos at trial.
¶19 Third, Brother, also a bouncer, was working at the club on
the night of the stabbings. Brother testified that, while taking a
break at the club’s front entrance, he saw a dark red or burgundy
Chevy truck pull up. Brother spoke to the driver, a bald
Hispanic man wearing a white long-sleeve shirt, and held the
door for the driver and his female companion as they entered the
club. During the brawl, Brother saw the same bald Hispanic man
run up behind Bouncer and hit him in the side with his right
hand. Brother later testified he remembered the fight but his
memory of the night was “rusty.” Brother did not participate in
any photo array or in-trial identification and was not asked to
identify the stabber at trial.
¶20 Fourth, Employee testified that he saw a group of three
men and two women enter the club. One member of the group, a
bald man with a goatee, took off his long-sleeve shirt, exposing a
tank top. Employee asked the man to put his shirt back on, and
the man complied. But before he did, Employee noticed the
man’s tattoos on his shoulders and arms. About fifteen minutes
later, Employee heard breaking glass and saw “a huge fight”
near where the bald man’s group had been sitting earlier.
Employee, Bouncer, and the other bouncers followed the
combatants outside. Standing behind Bouncer, Employee saw
the bald man step between them and make a “forward motion”
toward Bouncer. Employee “went on instinct and just grabbed”
the man, but the man slipped away. In a police photo array that
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night and at trial, Employee identified Gallegos as the bald man
who stabbed Bouncer. Further, after viewing a shirtless photo of
Gallegos which showed his tattoos, Employee confirmed that the
photo matched the appearance of the man that Employee had
asked to put his shirt back on at the club—the same man
Employee identified as the stabber.
¶21 Fifth, Bouncer described his own stabbing. As Bouncer
pulled combatants off the heap, he looked behind him and saw a
bald Hispanic man approach, lunge forward, and hit him on his
lower right side. Bouncer initially “just shoved [the stabber] off
like it was nothing,” but after lifting up his shirt, touching the
wound, and seeing his hand covered in blood, Bouncer realized
he had been stabbed. Bouncer could not identify Gallegos as his
stabber at the preliminary hearing but did identify Gallegos as
his stabber at trial.
Trial
¶22 Gallegos was charged with murder, aggravated assault,
and obstruction of justice. Before trial, he moved to suppress
Manager’s photo array identification, but the court denied the
motion. The trial court stated that although the photo array was
“perhaps not done in what is the ideal situation,” it did not
violate Gallegos’s rights. At a preliminary hearing and again at
trial, Manager pointed out Gallegos, who was sitting in the
courtroom, as the stabber. Manager also identified Gallegos in a
photo taken before Gallegos went to the club that night.
¶23 At trial, Gallegos called an expert to testify about
eyewitness identification. She testified that several different
factors, including time, stress, weapon-focus, lighting, and race,
can affect eyewitness identifications. She testified that the photo
array met many of the National Institute of Justice standards for
photo arrays, including the presence of “at least five” filler
photos, a warning “that the perpetrator may or may not be” in
the photo array, and a statement that the suspect’s appearance
may have changed. But other aspects of the identification
procedure concerned the expert, such as the lack of a double-
20140571-CA 8 2016 UT App 172State v. Gallegos
blind procedure—the detective presenting the array knew that
Gallegos was a suspect. Other factors which concerned the
expert included the comparatively smaller size of Gallegos’s
photo within the same-sized page and the different URL listed
beneath it. She also testified that an alternative explanation of
Manager’s positive identification of Gallegos might be that
Manager saw Gallegos at the club that night (unrelated to the
stabbings) or saw Gallegos’s picture in media coverage
following the stabbings.
¶24 The police sergeant who surveilled Gallegos’s house after
the stabbings also testified at trial. Before he took the stand, the
parties agreed that he would not mention Gallegos’s alleged
gang ties. However, in the course of testifying, the sergeant
made three statements that could have suggested a connection
between Gallegos and gang activity. First, he stated that his
current assignment included investigating “crimes, violent street
crimes, [and] gang crimes.” Second, he testified that he learned
of the stabbings when “he was called out from Kearns as a
member of the gang unit.” Third, he stated that he heard “that
witnesses had observed, or had heard the suspect say: ‘I’m
Smokey from 18th street.”
¶25 Following the sergeant’s statements, Gallegos moved for a
mistrial on the ground that the statements were unfairly
prejudicial. The trial court denied the motion, stating that
reference to any gang evidence “was de minimis” at most. The
trial court offered to give a curative instruction, but cautioned
that an instruction might draw attention to the challenged
testimony. Gallegos declined the curative instruction.
¶26 The jury convicted Gallegos as charged.
ISSUES AND STANDARDS OF REVIEW
¶27 Gallegos asserts two claims of error on appeal. First, he
contends that the trial court erred by denying his motion to
suppress Manager’s eyewitness identification. Whether a pretrial
20140571-CA 9 2016 UT App 172State v. Gallegos
photo array violates due process presents a question of law
reviewed for correctness. State v. Hubbard, 2002 UT 45, ¶ 22, 48
P.3d 953 (citing State v. Ramirez, 817 P.2d 774, 781 (Utah 1991)).
However, a challenge to a subsidiary factual determination
presents a question of fact reviewed under the clearly erroneous
standard. Id. We apply this dual standard of review to both the
federal and state analyses. Id.¶28 Second, Gallegos contends that the trial court erred by
denying his motion for a mistrial after a police sergeant made
gang-related references in his testimony. “A trial court’s denial
of a motion for a mistrial will not be reversed absent an abuse of
discretion.” State v. Wach, 2001 UT 35, ¶ 45, 24 P.3d 948.
ANALYSIS
I. Eyewitness Identification
¶29 Gallegos first contends that the trial court erred by
admitting Manager’s eyewitness identification testimony.
Gallegos argues that under Utah’s due process clause, Manager’s
identification was unreliable and was the product of suggestive
State conduct—namely, the police photo array. Gallegos brings
his challenge only under Utah’s due process clause, not the
federal due process clause. “[T]he Utah standard is both more
rigorous and better suited to the facts of this case,” Gallegos
argues, because the Utah standard includes a single “totality of
the circumstances” test more stringent than the two-step federal
test.
¶30 The State responds that Manager’s identification of
Gallegos as the stabber was constitutionally reliable under both
the federal and state due process standards. The State argues
that “[n]either federal nor state due process is implicated absent
suggestive State conduct.” And here, according to the State,
because the photo array given to Manager was not suggestive,
his testimony was constitutionally reliable and thus admissible.
Next, the State argues that even if the photo array was
20140571-CA 10 2016 UT App 172State v. Gallegos
arguably suggestive, it presented no substantial likelihood of
misidentification. Finally, the State argues that Gallegos’s
challenge “fails for lack of prejudice.”
¶31 The admissibility of eyewitness identification testimony is
governed by the due process clauses of both the federal and
Utah constitutions. See Perry v. New Hampshire, 132 S. Ct. 716,
720, 728–29 (2012); State v. Ramirez, 817 P.2d 774, 779 (Utah 1991).
Gallegos does not argue that Manager’s testimony violated the
federal due process clause. He asserts that the admission of
Manager’s testimony violated only Utah’s “more rigorous”
standard. However, because an understanding of the federal
standard aids our analysis under Utah’s standard, we begin by
examining the federal standard.
A. Admissibility Under the Federal Due Process Clause
¶32 The Fourteenth Amendment to the United States
Constitution provides “a due process check on the admission of
eyewitness identification, applicable when the police have
arranged suggestive circumstances leading [a] witness to
identify a particular person as the perpetrator of a crime.” Perry,
132 S. Ct. at 720. The federal model for the admissibility of
eyewitness testimony has two steps.
¶33 At step one, the court determines whether the
identification was the product of “unnecessarily suggestive” law
enforcement procedures. Id. at 722; see Neil v. Biggers, 409 U.S.
188, 197–99 (1972). If “unnecessarily suggestive” identification
procedures were not used, the due process inquiry ends. Perry,
132 S. Ct. at 720, 724–25. But if “unnecessarily suggestive”
procedures were used, the court proceeds to step two. At step
two, the court determines “whether under the ‘totality of the
circumstances’ the identification was reliable even though the
confrontation procedure was suggestive.” Biggers, 409 U.S. at
199. The court considers a variety of factors, “includ[ing] the
opportunity of the witness to view the criminal at the time of the
crime, the witness’[s] degree of attention, the accuracy of the
witness’ prior description of the criminal, the level of certainty
20140571-CA 11 2016 UT App 172State v. Gallegos
demonstrated by the witness at the confrontation, and the length
of time between the crime and the confrontation.” Id. at 199–200. 3
B. Admissibility Under the Utah Due Process Clause
¶34 The due process clause of the Utah Constitution also
limits admission of eyewitness identifications. Ramirez, 817 P.2d
at 778 (citing Utah Const. art. I, § 7). In State v. Ramirez, our
supreme court explained the standard Utah courts use to
analyze the admissibility of eyewitness identifications. Id. at 779,
781–82; see also State v. Lujan, 2015 UT App 199, ¶ 10, 357 P.3d 20,
cert. granted, 364 P.3d 48 (Utah 2015). 4 The prosecution bears the
3. We note, however, that the witness-certainty factor “has come
under withering attack as not relevant to the reliability
analysis. While acknowledging that under current law an
eyewitness’s level of certainty in his identification remains a
relevant factor in assessing reliability, many courts question its
usefulness in light of considerable research showing that an
eyewitness’s confidence and accuracy have little correlation.”
United States v. Greene, 704 F.3d 298, 309 n.4 (4th Cir. 2013)
(collecting authorities).
4. Lujan contains a lengthy footnote in which this court explains
that, while we decided the appeal “within the framework
established by State v. Ramirez, 817 P.2d 774 (Utah 1991),” we
“have every reason to believe . . . that Ramirez must be revisited.”
State v. Lujan, 2015 UT App 199, ¶ 10 n.1, 357 P.3d 20. We
surveyed recent scientific literature discussing eyewitness
identification credibility and the progression of Utah case law on
the subject before concluding with a plea “for our Supreme
Court to reconsider Ramirez”—a point with which Lujan’s dissent
agreed. Our supreme court granted certiorari. See State v. Lujan,
2015 UT App 199, ¶ 10, 357 P.3d 20, cert. granted, 364 P.3d 48(Utah 2015). However, because Ramirez remains the standard by
which we evaluate eyewitness identification evidence, id., we
apply it here.
20140571-CA 12 2016 UT App 172State v. Gallegos
burden of demonstrating the admissibility of eyewitness
identification evidence. To satisfy this burden, the prosecution
must “lay a foundation upon which the trial court can make any
necessary preliminary factual findings and reach any necessary
legal conclusions.” Ramirez, 817 P.2d at 778. Next, the trial court
must act “as gatekeeper” and “carefully scrutinize” the evidence
for constitutional defects before admitting or excluding the
evidence from the jury. Id.
¶35 Our supreme court has clarified that “[e]ven if law
enforcement procedures are appropriate and do not violate due
process, eyewitness identification testimony must still pass the
gatekeeping function of the trial court and be subject to a
preliminary determination—whether the identification is
sufficiently reliable to be presented to the jury.” State v. Hubbard,
2002 UT 45, ¶ 26, 48 P.3d 953. Thus, the single focus of a Utah
trial court’s constitutional admissibility analysis “is whether,
under the totality of the circumstances, the identification was
reliable.” Ramirez, 817 P.2d at 781.
¶36 Gallegos argues that Utah’s due process analysis for
eyewitness identifications is thus “more rigorous” than the
federal model. Specifically, Gallegos asserts that Utah’s model
does not contain a two-step approach like the federal model.
Under the Utah approach, Gallegos maintains, suggestiveness is
not a threshold consideration but merely one factor to be
weighed in determining reliability.
¶37 The State responds that Utah’s due process analysis
requires a “conditional two-step analysis” similar to the federal
model. According to the State, “Ramirez criticized the federal
model, but did not eliminate—or take issue with—the
conditional two-step federal approach.” In the State’s view,
“Ramirez ‘depart[ed] from federal case law only to the
degree that . . . the federal analytical model [is] scientifically
20140571-CA 13 2016 UT App 172State v. Gallegos
unsupported.’” (quoting Ramirez, 817 P.2d at 780). 5 Thus, the
State argues, an eyewitness identification does not violate state
due process guarantees absent some unnecessarily suggestive
police act.
¶38 The trial court did not treat the potential suggestiveness
of the photo array as a threshold step, but instead as one of the
five factors for assessing reliability introduced by State v. Long,
721 P.2d 483 (Utah 1986). After discussing each of the Long
factors, the court ruled that Manager’s identification of Gallegos
as the stabber was constitutionally admissible.
¶39 We first determine if Utah’s test for the admissibility of
eyewitness evidence requires a preliminary finding of
suggestibility similar to the federal approach.
1. Suggestive Police Conduct Is Not a Threshold
Requirement in Utah.
¶40 Ramirez remains Utah’s model for the constitutional
admissibility of eyewitness identification testimony. And, as
Justice Thomas Lee has noted, “Ramirez did not expressly
establish police misconduct as a threshold requirement.” State v.
Clopten, 2015 UT 82, ¶ 73, 362 P.3d 1216 (Lee, A.C.J, concurring
in part and concurring in the result) (urging adoption of police
misconduct as a threshold requirement). And although the Utah
Supreme Court “has never squarely addressed the question,” it
5. Both parties assert that they prevail under either construction
of the Utah model; Gallegos argues that, in any event,
“the identification array procedure was suggestive,” and the
State argues that “even if the photo array was arguably
suggestive, there was no substantial likelihood of irreparable
misidentification.” However, because we determine that Utah’s
model departs from the federal two-step model and does not
require suggestive procedures as a threshold step, we do not
discuss the parties’ alternative arguments.
20140571-CA 14 2016 UT App 172State v. Gallegos
has applied the Long factors in “cases in which suggestive police
activity is missing.” Id. ¶¶ 73–74. For example, in State v.
Hubbard, our supreme court cited Ramirez and stated, “Even if
law enforcement procedures are appropriate and do not violate
due process, eyewitness identification testimony must still pass
the gatekeeping function of the trial court and be subject to a
preliminary determination—whether the identification is
sufficiently reliable to be presented to the jury.” 2002 UT 45,
¶ 26, 48 P.3d 953. On this state of the law, we conclude that the
Utah Constitution does not require police misconduct—
improper suggestiveness—as a threshold requirement in
eyewitness identification cases. Instead, the Utah standard
focuses on a single “totality of the circumstances” determination
for “reliability,” using each of the five Long factors, as discussed
in State v. Ramirez. See 817 P.2d 774, 781 (Utah 1991).
¶41 We next consider whether under the totality of the
circumstances Manager’s identification was reliable. Id. at 778.
2. Manager’s Identification Was Reliable.
¶42 To analyze the reliability of an eyewitness identification, a
trial court must consider the five factors originally outlined in
State v. Long:
(1) The opportunity of the witness to view the actor
during the event; (2) the witness’s degree of
attention to the actor at the time of the event;
(3) the witness’s capacity to observe the event,
including his or her physical and mental acuity; (4)
whether the witness’s identification was made
spontaneously and remained consistent thereafter,
or whether it was the product of suggestion; and
(5) the nature of the event being observed and the
likelihood that the witness would perceive,
remember and relate it correctly. This last area
includes such factors as whether the event was an
ordinary one in the mind of the observer during
20140571-CA 15 2016 UT App 172State v. Gallegos
the time it was observed, and whether the race of
the actor was the same as the observer’s.
Ramirez, 817 P.2d at 781 (citing Long, 721 P.2d at
493).
These factors offer guidance concerning which considerations
may bear on the reliability of an eyewitness identification. But
they offer no guidance on how reliable an identification must be
to pass constitutional scrutiny. The holding of Ramirez suggests
the bar is not high.
¶43 In Ramirez, two robbers—both wearing white scarves
across their faces—attacked a Pizza Hut employee, her husband,
and her brother as they were leaving the store around 1 a.m.
Ramirez, 817 P.2d at 776. The first robber hit the brother with a
metal pipe, instructed the second robber to shoot the brother if
he moved, and ordered the employee to retrieve a bank bag from
the restaurant. Id. She retrieved the bag and gave it to the
robbers, who fled. Id. The victims called police. They “described
the robbers to the police, but the descriptions were somewhat
conflicting.” Id. Two officers ultimately detained Ramirez as a
suspect. Id. at 777.
¶44 One of the three victims identified Ramirez under
showup circumstances the supreme court described as
“blatant[ly] suggestive[],” id. at 784:
It was approximately one o’clock in the morning.
Ramirez, a dark-complexioned Apache Indian, was
handcuffed to a chain link fence. He was the only
suspect present and was surrounded by police
officers. The police turned the headlights and
spotlights from the police cars on Ramirez to
provide enough light. The witnesses viewed
Ramirez by looking at him from the back seat of a
police car. Of the three witnesses, only [the
employee’s brother] identified Ramirez as the
masked man with the gun; the other two witnesses
20140571-CA 16 2016 UT App 172State v. Gallegos
were unable to identify him as one of the robbers.
Following the identification, Ramirez was placed
under arrest and was charged with the robbery.
Id. at 777. None of the witnesses, including the brother, were
able to see his face during the robbery. Id. at 782. The brother
identified Ramirez at the showup and at trial as the masked
gunman. Id. at 777.
¶45 Ramirez contended that introducing the eyewitness
identification violated his due process rights under the Utah
Constitution. Id. at 778. After examining each of the Long factors,
the Ramirez court found it “to be an extremely close case.” Id. at
784. The court found the “blatant suggestiveness of the array”
troubling. Id. But after “[c]onsidering the facts in the light most
favorable to the trial court’s decision and giving due deference to
the trial judge’s ability to appraise demeanor evidence,” the
court could not say that the challenged testimony was “legally
insufficient when considered in light of the other circumstances
to warrant a preliminary finding of reliability and, therefore,
admissibility.” Id.
¶46 The eyewitness identification here is by any measure at
least as reliable as that in Ramirez. We view this eyewitness
identification through the lens of the five Long factors, as
discussed by Ramirez. Factor four addresses the witness’s later
identification of the suspect; the other factors address the
witness’s observation of the event.
¶47 “The first factor, to be considered in determining the
reliability of the identification is the opportunity of the witness
to view the actor during the event. Here, pertinent circumstances
include the length of time the witness viewed the actor; the
distance between the witness and the actor; whether the witness
could view the actor’s face; the lighting or lack of it; whether
there were distracting noises or activity during the observation;
and any other circumstances affecting the witness’s opportunity
to observe the actor.” Id. at 782 (citing State v. Long, 721 P.2d 483,
493) (Utah 1986).
20140571-CA 17 2016 UT App 172State v. Gallegos
¶48 In this case, Manager testified that the fight lasted less
than ten minutes. The fight occurred outside of the club at night
and during a snow storm, but lights from the club’s awning
illuminated the area. After watching Gallegos stab both victims,
Manager “looked straight at” Gallegos’s uncovered face from
only “a few feet away” and told him to “just leave.” These facts
indicate that Manager had an adequate opportunity to view the
stabber during the melee.
¶49 The second factor considers “the witness’s degree of
attention to the actor at the time of the event.” Id. at 783. Here,
Manager stood a few feet behind the brawl and saw Gallegos
stab both victims. Manager saw Gallegos hit Bouncer, then saw
Gallegos get on top of Victim and stab him “between eight and
ten times.” After the stabbings, Gallegos looked “straight at”
Manager. Part of Manager’s training as a bouncer required him
to “memorize what [a perpetrator] look[s] like” in order to aid
later criminal investigations. And Manager testified that on the
night in question, he was “focusing and memorizing what [the
stabber] looked like.” During the night’s events, no one
threatened or attacked Manager. These facts indicate that
Manager paid close attention to the stabber’s identity.
¶50 The third factor is “the witness’s capacity to observe the
event, including his or her physical and mental acuity.” Id. at 781
(citing Long, 721 P.2d at 492). This factor “includes considering
whether the witness’s capacity to observe was impaired by stress
or fright, personal motivations, biases, prejudices, uncorrected
visual defects, fatigue, injury, drugs, or alcohol.” State v. Lujan,
2015 UT App 199, ¶ 11, 357 P.3d 20, cert. granted, 364 P.3d 48(Utah 2015).
¶51 No one attacked or threatened Manager during the fight.
And although he described the situation as “traumatic,”
Manager’s job duties routinely involved dealing with fights and
aggressive patrons. On the night of the stabbings, Manager
followed appropriate club protocol by separating the sparring
groups. Manager was not under the influence of alcohol or drugs
20140571-CA 18 2016 UT App 172State v. Gallegos
when he witnessed the stabbings; there is no indication in the
record the he was suffering from any visual defects or fatigue
that night; and nothing in the record shows that Manager’s
capacity to observe the stabbings was impaired by any personal
motivations, biases, or prejudices. These facts indicate that
Manager had the physical and mental capacity to observe
Gallegos during the brawl.
¶52 The fourth factor considers “whether the witness’s
identification was made spontaneously and remained consistent
thereafter or whether it was a product of suggestion [and]
includes considering the length of time that passed between the
witness’s observation at the time of the event and the
identification of the defendant, the witness’s mental capacity and
state of mind at the time of the identification, the witness’s
exposure to information from other sources, instances when the
witness failed to identify the defendant, instances when the
witness gave descriptions that were inconsistent with the
defendant, and the circumstances under which the defendant
was presented to the witness for identification.” Lujan, 2015 UT
App 199, ¶ 11 (citing Ramirez, 817 P.2d at 783).
¶53 In this case, Manager identified Gallegos in a photo array
30 days after the incident. Manager arrived during the day and
nothing in the record shows that he was fatigued, stressed, or
under the influence of alcohol or drugs at the time. Manager
testified that he watched the news the day after the stabbings
and heard that police had arrested a suspect; however, he did
not “remember a picture.” The procedure was not “double-
blind,” meaning that the detective who administered the
identification procedure knew which of the pictured men was
the suspect. And the array was not recorded.
¶54 Manager was shown six black-and-white photos: one of
Gallegos and five “filler photos” of other men who shared
Gallegos’s birth year and physical characteristics—bald or with
very short hair and facial hair. The size of Gallegos’s photo was
smaller than the others and contained a different URL at the
20140571-CA 19 2016 UT App 172State v. Gallegos
bottom of the page. Gallegos also argues that three of the men
were not Hispanic—Gallegos’s ethnicity. Although all of the
men had similar physical characteristics, Gallegos was
completely bald whereas some of the other men had discernible
hair. Manager went through all six photos before making his
selection, rather than following a standardized sequential
procedure which requires the eyewitness to respond “yes,” “no,”
or “not sure” to each photo individually.
¶55 The photo array violated best practices in several ways:
the size difference in the photos, the different URLs, the lack of a
double blind procedure, the lack of a recording, and the delay
between the events in question and the identification. However,
we cannot say that this identification procedure was more
suggestive than the identification procedure at issue in Ramirez.
¶56 In Ramirez, the three eyewitnesses were asked to identify
a single suspect who was handcuffed to a chain link fence in the
middle of the night, illuminated by police car headlights. The
witnesses sat in the back of a police car. Police told the witnesses
that they had located a suspect who matched the description of
the robber the witnesses saw earlier that night. Only one of the
three witnesses was able to identify the suspect as Ramirez. See
State v. Ramirez, 817 P.2d 774, 783 (Utah 1991).
¶57 By contrast, here Manager identified Gallegos from a
photo array conducted at the police station. The Manager was
given six different options—rather than one—and told that the
stabber may or may not be among the photos. Moreover, the
“fillers” matched the witnesses’ descriptions of the stabber as a
man with bald or very short hair and short facial hair. Although
Gallegos argues that three of the men were not of Hispanic
origin, each of the men appeared to have similar skin tones. And
the Utah Supreme Court has held “[t]he key” for eyewitness
identification reliability “is whether the descriptions of the
subjects in the photo array match the description of the suspect”;
20140571-CA 20 2016 UT App 172State v. Gallegos
thus, “matching the subjects by skin tone [is] sufficient.” State v.
Lopez, 886 P.2d 1105, 1112 (Utah 1994). 6 Although we are
troubled by the lack of a double-blind procedure and the fact
that Gallegos’s photograph was sized differently and listed a
different URL than the others, we cannot say the photo array in
this case was more suggestive than the one-man showup in
Ramirez.
¶58 The fifth factor considers “the nature of the event being
observed and the likelihood that the witness would perceive,
remember, and relate it correctly.” Ramirez, 817 P.2d at 781
(citing State v. Long, 721 P.2d 483, 493 (Utah 1986)). This factor
includes considering “whether the event was an ordinary one in
the mind of the observer during the time it was observed, and
whether the race of the actor was the same as the observers.” Id.¶59 Manager is Polynesian, Gallegos is Hispanic. But
Manager testified that he was trained to remember faces during
emergency situations and that he employed this training on the
night of the stabbings. That training, and Manager’s conscious
effort to remember the suspect’s face on this occasion, suggest
that Manager was likely to perceive, remember, and relate the
stabbings to law enforcement.
¶60 Having considered Manager’s identification of Gallegos
under each of the five Long factors, we conclude that, though
flawed in several ways, under a “totality of the circumstances,
the identification procedure was reliable.” See id. The trial court
thus properly performed its gatekeeping function in admitting
the evidence. We accordingly affirm on this ground.
6. State v. Lopez analyzed the suggestibility of a photo array
under the federal due process clause. See 886 P.2d 1105, 1111–13.
Because the state due process protocol also includes
suggestibility, Lopez is instructive insofar as it analyzed a photo
array’s suggestibility. See id.20140571-CA 21 2016 UT App 172State v. Gallegos
3. Admitting Manager’s Eyewitness Identification
Testimony Was Harmless Beyond a Reasonable
Doubt.
¶61 Our holding that the trial court properly performed its
gatekeeping role under Ramirez could end our analysis of this
issue. However, in Lujan, we urged our supreme court to
“reconsider Ramirez,” and indeed the court granted a writ of
certiorari in that case. See State v. Lujan, 2015 UT App 199, ¶ 10
n.1, 357 P.3d 20, cert. granted, 364 P.3d 48 (Utah 2015). The
standard for admissibility of eyewitness testimony may thus be
clarified in the near future. Consequently, in the present case we
continue our analysis to the question of harm. We conclude that,
even if the trial court erred by admitting Manager’s eyewitness
identification testimony, we would nevertheless affirm on the
ground that admitting Manager’s testimony was harmless.
¶62 What standard of harm applies here, however, is unclear.
Under the federal standard, “the State bears the burden of
convincing us that the improperly admitted eyewitness
identifications were harmless beyond a reasonable doubt.” Id.
¶ 16; see also Chapman v. California, 386 U.S. 18, 24 (1967)
(“[B]efore a federal constitutional error can be held harmless, the
court must be able to declare a belief that it was harmless
beyond a reasonable doubt.”). Whether an error is harmless
beyond a reasonable doubt in a particular case depends on a
host of factors, including “the importance of the witness’[s]
testimony in the prosecution’s case, whether the testimony was
cumulative, the presence or absence of evidence corroborating or
contradicting the testimony of the witness on material points, the
extent of cross-examination otherwise permitted, and, of course,
the overall strength of the prosecution’s case.” Delaware v. Van
Arsdall, 475 U.S. 673, 684 (1986); see also Lujan, 2015 UT App 199¶ 17 (citing State v. Villarreal, 889 P.2d 419, 425–26 (Utah 1995)).
¶63 However, Gallegos contends that the trial court violated
the state constitution, not the federal constitution. Utah courts
have not determined whether the harmless-beyond-a-reasonable-
20140571-CA 22 2016 UT App 172State v. Gallegos
doubt standard applies to violations of the Utah Constitution. See
State v. Bell, 770 P.2d 100, 106 n.12 (Utah 1988) (“[T]his Court has
never squarely decided whether violations of the Utah
Constitution must be addressed under the federal constitutional
standard of ‘harmless beyond a reasonable doubt.’”). We need
not resolve that question here, because we conclude that
admission of the challenged testimony was harmless even under
the higher beyond-a-reasonable-doubt standard.
¶64 Gallegos argues that the State has not met its burden
under this standard. Specifically, Gallegos asserts that the State
has not refuted potentially exculpatory evidence: that no blood
was detected on Gallegos’s knife, that Gallegos’s shirt only
contained his own blood, and that another eyewitness saw
Victim fighting with a man who did not look like Gallegos.
¶65 The State responds that because “five other witnesses saw
one or the other of the two stabbings and three of the five—
[Promoter], [Employee], and [Bouncer]—similarly identified
[Gallegos] as the stabber at trial . . . even absent [Manager’s]
identification, . . . any error in the admission of [Manager’s]
identification here was harmless.”
¶66 The State’s response is convincing. Even without
Manager’s eyewitness identification testimony, the evidence that
Gallegos stabbed the victims allowed for no reasonable doubt.
Three witnesses (Brother, Employee, and Bouncer) saw Gallegos
stab Bouncer; two witnesses (Promoter and Patron) saw Gallegos
stab Victim; and three witnesses (Promoter, Employee, and
Bouncer) identified Gallegos as the stabber at trial. Four of the
five witnesses (Promoter, Patron, Brother, and Bouncer)
described the stabber as a bald Hispanic man, and the fifth
(Employee) described the stabber a bald man with a goatee.
These descriptions match Gallegos. Moreover, the truck
observed at Gallegos’s apartment after the stabbings matched
Brother’s descriptions of Gallegos’s truck as “dark red or
burgundy” and was consistent with the club’s surveillance video
showing a Chevy truck entering and exiting the parking lot that
20140571-CA 23 2016 UT App 172State v. Gallegos
night. Furthermore, although the shirt Gallegos threw away that
night tested positive only for Gallegos’s own blood, those
bloodstains suggest Gallegos’s involvement in a bloody fight.
And the shirt’s light color and collared style matched the
description of the stabber’s clothing given by Employee,
Bouncer, and Brother.
¶67 Ultimately, because the eyewitness testimony from five
other witnesses and other physical evidence admitted at trial all
pointed to Gallegos as the stabber, the admission of Manager’s
eyewitness testimony was harmless beyond a reasonable doubt.
II. Gang References
¶68 Gallegos also contends that “[t]he [trial] court erred when
it denied his motion for a mistrial after the introduction of highly
prejudicial gang evidence.”
¶69 The trial court admitted the police sergeant’s responses to
three questions at trial: what his current assignment was, where
he was when dispatch called for help after the stabbing, and if he
identified a suspect that night. Despite an agreement “not to say
anything about” Gallegos’s alleged gang involvement, the
sergeant responded to each of the questions as follows: that he
investigated “crimes, violent street crimes, [and] gang crimes,”
that he responded to the club because “they were requesting
members of the Metro Gang Unit to respond,” and that he heard
“that witnesses had observed, or had heard the suspect say: ‘I’m
Smokey from 18th Street . . . .’”
¶70 The trial court denied Gallegos’s request for a mistrial,
ruling that reference to any gang evidence “was de minimis” at
most. The trial court offered to give Gallegos a curative
instruction, but cautioned that an instruction might actually
draw attention to the comments.
¶71 The State argues that Gallegos cannot prove a substantial
likelihood that he would have been acquitted absent the
statements, that the responses were unprompted and made in
20140571-CA 24 2016 UT App 172State v. Gallegos
passing, and that the fact that Gallegos’s trial counsel chose to
forgo a curative instruction shows that the sergeant’s comments
did not require a mistrial.
¶72 “A trial court’s denial of a motion for a mistrial will not be
reversed absent an abuse of discretion.” State v. Wach, 2001 UT
35, ¶ 45, 24 P.3d 948. “Unless the record clearly shows that the
trial court’s decision ‘is plainly wrong in that the incident so
likely influenced the jury that the defendant cannot be said to
have had a fair trial, we will not find that the court’s decision
was an abuse of discretion.’” State v. Butterfield, 2001 UT 59, ¶ 46,
27 P.3d 1133 (quoting State v. Robertson, 932 P.2d 1219, 1231
(Utah 1997)).
¶73 First, only two of the sergeant’s three statements
necessarily referred to gangs. The sergeant stated that he was
told “the suspect sa[id]: ‘I’m Smokey from 18th Street,’” but it is
not obvious that jurors would know that the term “18th Street”
referred to the “18th Street Gang” rather than a physical location.
As for the sergeant’s other two statements, both were made in
passing by the witness and not elicited by the prosecutor. The
court offered to give a curative instruction, but Gallegos’s trial
counsel declined. Further, these comments connected the officer,
but not necessarily Gallegos, to gang activity.
¶74 Because the jury heard ample evidence of Gallegos’s guilt,
we cannot say that the admission of two passing comments
referencing Gallegos’s alleged gang ties “so likely influenced the
jury that [Gallegos] cannot be said to have had a fair trial.” See id.(quoting State v. Robertson, 932 P.2d 1219, 1231 (Utah 1997)).
Hence, we affirm the trial court’s denial of Gallegos’s motion for
a mistrial.
CONCLUSION
¶75 We conclude that the admission of Manager’s eyewitness
identification was proper under State v. Ramirez. But even if it
was not, the admission was harmless beyond a reasonable
20140571-CA 25 2016 UT App 172State v. Gallegos
doubt. We also conclude that the trial court did not abuse its
discretion in refusing to declare a mistrial after a prosecution
witness alluded to Gallegos’s alleged gang ties at trial. The
judgment of the trial court is affirmed.
20140571-CA 26 2016 UT App 172