State v. Martinez , 2020 UT App 69 ( 2020 )

2020 UT App 69THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
GILBERTO MARTINEZ,
Appellant.
Opinion
No. 20180131-CA
Filed April 30, 2020
Fourth District Court, Provo Department
The Honorable Darold J. McDade
No. 171401154
Aaron P. Dodd, Attorney for Appellant
Sean D. Reyes and Lindsey Wheeler, Attorneys
for Appellee
JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES GREGORY K. ORME and KATE APPLEBY concurred.
HARRIS, Judge:
¶1 A jury convicted Gilberto Martinez of sodomizing his
five-year-old step-granddaughter (A.O.). Martinez now appeals
his convictions, asserting that his trial attorney rendered
constitutionally ineffective assistance. We disagree, and
therefore affirm.
State v. Martinez
BACKGROUND 1
¶2 In 2012, when A.O. was just a toddler, Martinez was
introduced to A.O.’s mother (Mother), and Martinez and Mother
became friends. After a while, Martinez let it be known that he
was interested in pursuing a romantic relationship with Mother.
Mother was (and still is) married to A.O.’s father, although he
resides in Costa Rica, and she told Martinez that she was not
interested in a romantic relationship. After that, Martinez
continued to spend time with A.O.’s family, and began taking
Mother’s mother—that is, A.O.’s grandmother (Grandmother)—
“out to eat,” to “go shopping” and to “do more stuff together.”
Eventually, Martinez (who was in his thirties) and Grandmother
(who was in her sixties) struck up a romantic relationship that
culminated in their marriage in or about 2016.
¶3 In 2014, after she and Martinez became romantically
involved, Grandmother invited him to move into the small
house that she shared with Mother, then-three-year-old A.O.,
and A.O.’s teenage brother (Brother). The house measured about
700 square feet, and had two bedrooms, a bathroom, a family
room, and a kitchen. Martinez and Grandmother shared one
bedroom, Mother and A.O. shared the other, and Brother slept in
the family room.
¶4 After Martinez moved into the house, he also began
spending more time with and around A.O. Mother described the
relationship between A.O. and Martinez as quasi-paternal,
testifying at trial that Martinez “was kind of like a father figure
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly,”
and “we present conflicting evidence only as necessary to
understand issues raised on appeal.” State v. Holgate, 2000 UT 74,
¶ 2, 10 P.3d 346 (quotation simplified).
20180131-CA 2 2020 UT App 69State v. Martinez
to [A.O.] so she was pretty close to him.” A.O. began referring to
Martinez as “uncle,” and would “go in [Martinez’s] room a lot
and play with him” when he first moved in with the family.
¶5 At some point after Martinez moved in, however, A.O.’s
behavior changed; according to Mother, A.O. became “very
clingy” and “very afraid.” In particular, she was scared to be left
alone. And although at that time she had been toilet-trained for
two years already and rarely had accidents, A.O. once again
started wetting the bed at night. She also began having frequent
nightmares and complaining of headaches and stomachaches.
She would even—without explanation—suffer high fevers.
Mother, understandably concerned, took A.O. to see a doctor,
but the doctor could not provide Mother an explanation for
A.O.’s symptoms. Mother also took A.O. to see a child
psychologist (Psychologist) to discuss her symptoms. A.O. had
about five visits with Psychologist, but apparently did not
disclose to Psychologist any events that could be said to have
caused the symptoms. At that point, Mother decided to quit her
job and care for A.O. herself, because she feared that if she did
not, A.O. “was going to end up in the hospital.”
¶6 In September 2016, about two months after quitting her
job, Mother found it necessary to travel to California to renew
her passport, and she was gone for five days. While she was
gone, Mother left A.O. in Grandmother’s care at the family
home. A few months later, in December 2016, Mother took her
children, including A.O., to Costa Rica to visit A.O.’s father.
While they were in Costa Rica, A.O.’s nightmares and
bedwetting stopped, but, according to Mother, they returned
again within a week of coming back to the house in Utah.
¶7 In or about March 2017, Mother approached A.O. and had
a series of discussions with her about whether anything “bad”
had happened to her. During those discussions, Mother asked
A.O. whether Martinez had ever “shown her his private parts,”
20180131-CA 3 2020 UT App 69State v. Martinez
and A.O. answered affirmatively. Mother then asked A.O. “what
kind of things [Martinez] would do with his private parts,” and
A.O. stated that Martinez “put his thing in her mouth” on
“maybe” two occasions, and that these events occurred in the
bedroom Martinez shared with Grandmother. Mother then took
A.O. back to see Psychologist, who advised Mother to contact
Child Protective Services.
¶8 Mother contacted Child Protective Services, which set up
an interview with A.O. on March 29, 2017, just a couple of days
later. A.O. told the interviewer (Interviewer) that her “uncle” put
his “private parts” in her mouth, and that it happened “two
times,” both while Mother was in California. A.O. acknowledged
to Interviewer that both Grandmother and Brother were at home
at the time, but stated that Grandmother was in the kitchen
“cooking for like ten hours,” and Brother was playing video
games. A.O. did not tell Mother or Interviewer that Martinez
committed any other acts of abuse; specifically, A.O. did not
mention to either Mother or Interviewer that Martinez had also
put his penis inside her vagina.
¶9 After A.O’s interview, police were contacted and
Martinez was arrested. Martinez’s native language is Spanish,
and he speaks and understands only “basic English.” At the time
of his arrest, one officer attempted to read him his Miranda 2
rights, but that officer’s Spanish language skills were limited, so
he was unable to complete the task, informing Martinez only of
his right to remain silent and that he had a “right to have an
attorney present but between questions or of any time, if you
want, an attorney to come it could be here.” 3 Another officer, for
2. Miranda v. Arizona, 384 U.S. 436 (1966).
3. The Miranda warnings given to Martinez, as well as the
entirety of his interview with police, were given and conducted
(continued…)
20180131-CA 4 2020 UT App 69State v. Martinez
whom Spanish was his native language, then took over the
interview, and advised Martinez, in Spanish, as follows:
You have the right to remain silent, any question
that you have, ah, anything you say can be used
against you in a court of law, you will have the
right to have an attorney present while we ask
questions, um, if you don’t have one the state can
provide you one to represent you, ok? After having
finished with your present rights, do you want to
speak with us now?
In response, Martinez stated that “I don’t know if I’m OK or in
trouble, but they said to me that I was going to speak with you
guys.” Martinez continued to answer questions, and did not seek
to terminate the interview or request an attorney.
¶10 As the interview progressed, officers asked Martinez if
A.O. had ever been inside his bedroom, and Martinez initially
stated that A.O. had “never been to [his] room, before.”
Immediately thereafter, however, after officers expressed
skepticism that the two of them could live in the same small
house for years and never be in the bedroom at the same time,
Martinez clarified that A.O. had, in fact, “maybe” been inside his
bedroom “once or twice.” But he denied that he had ever been
alone with A.O. inside his bedroom, stating that he made sure
that was the case because “he didn’t want to be accused of
something” that he did not do.
(…continued)
in Spanish. We quote here from a translation of that interview
into English that was submitted to the trial court and made part
of the record on appeal; no party takes issue with the linguistic
accuracy of that translation.
20180131-CA 5 2020 UT App 69State v. Martinez
¶11 After completing its investigation, the State charged
Martinez with two counts of sodomy on a child, both first-
degree felonies, and the case proceeded to a two-day jury trial in
August 2017. The State called six witnesses: Mother, A.O.,
Interviewer, Psychologist, and two police officers. During
Interviewer’s testimony, the State also played for the jury a
video recording of A.O.’s interview at Child Protective Services.
¶12 During her time on the witness stand, A.O.—who was six
years old at the time of trial—told the jury, as she had previously
told Mother and Interviewer, that Martinez put his penis in her
mouth while Mother was in California. This time, however, she
stated that he had done this “five times” instead of just two,
even stating at one point that Martinez might have done this five
times in a single day. Also, during her trial testimony, A.O.
stated, for the first time on record, that Martinez had put his
“private part” not only into her mouth, but also into her “private
part” “between [her] legs.”
¶13 Mother testified about the symptoms that A.O. had been
experiencing, and described her efforts to figure out what might
have been causing them. Martinez’s trial counsel (Trial Counsel)
cross-examined Mother extensively, focusing on some of the
leading questions that she had asked A.O. during her initial
questioning, and establishing that Mother had not received any
training about how to interview victims of child abuse. The State
also called Psychologist as an expert witness to testify about
some of the symptoms exhibited by children who have been
sexually abused, and to testify that children sometimes delay
disclosure of abuse.
¶14 One of the law enforcement officers—the one who was a
native Spanish speaker—testified about Martinez’s police
interview, and told the jury that Martinez initially had denied
that A.O. had ever been in his room, but then later “changed” his
story and admitted that A.O. had been inside his room on a few
20180131-CA 6 2020 UT App 69State v. Martinez
occasions. Trial Counsel cross-examined the officer with a
transcript of the interview, and established that Martinez’s
clarification occurred in “the sentence after” he made his initial
statement, rather than toward the end of the interview.
¶15 Trial Counsel cross-examined all of the State’s witnesses
but, after the conclusion of the State’s case-in-chief, he elected
not to call any witnesses. Specifically, he decided not to call
Martinez to testify in his own defense, and—despite the fact that
he had mentioned in his opening statement that she would
testify—decided not to call Grandmother. Trial Counsel’s cross-
examination of the State’s witnesses, as well as his closing
argument, focused especially on inconsistencies in A.O.’s version
of events, and on the theory that Mother had coached A.O. to
testify as she did or, at minimum, asked enough improper
leading questions of A.O. to put ideas in her head of events that
may not actually have happened. Trial Counsel called into
question the credibility of both Mother and A.O., and asked the
jury not to credit their testimony. But after deliberation, the jury
found Martinez guilty on both charged counts.
¶16 After his conviction, Martinez obtained new counsel, and
filed a motion to arrest judgment or, in the alternative, to grant a
new trial, pursuant to rules 23 and 24 of the Utah Rules of
Criminal Procedure. In the motion, Martinez asserted that Trial
Counsel had rendered ineffective assistance in three ways: (1) he
failed to move to suppress the officer’s testimony about
Martinez’s police interview, on grounds that Martinez’s Miranda
rights had been violated; (2) he did not call Grandmother as a
witness at trial; and (3) he did not call Martinez to testify in his
own defense. The motion was supported by a sworn declaration
from Grandmother in which she averred that, had she been
called as a witness, she would have testified, among other
things, that (contrary to Mother’s testimony) A.O.’s symptoms
did not increase after September 2016, and that she did not see
Martinez and A.O. alone together during the five days she cared
20180131-CA 7 2020 UT App 69State v. Martinez
for A.O. in September 2016. Martinez also submitted a
declaration in connection with the reply brief in support of the
motion, and therein averred that, had he taken the stand, he
would have “let everyone know that [he was] innocent of the
charges.” The State opposed the motion, and the trial court
convened an evidentiary hearing, at which Trial Counsel
appeared and testified.
¶17 At the hearing, Trial Counsel testified that, although he
had been practicing law for only two years at the time of trial,
this case was his third trial in less than a year in which his client
had been accused of sexually abusing a child. One of the other
two cases resulted in a not-guilty verdict, and the other settled
via plea agreement midway through trial. During his testimony,
Trial Counsel stated that, with the help of a Spanish-speaking
legal assistant, he had met with Martinez “at least a dozen”
times prior to trial to discuss the case and develop strategy; had
reviewed and discussed the discovery with Martinez; and had
independently investigated the case, including interviewing
witnesses and visiting the family home.
¶18 With regard to the specific issues raised by Martinez in
his motion, Trial Counsel testified that he had reviewed the
transcript of Martinez’s police interview and analyzed it for
Miranda problems, but that he “didn’t find an issue there.” As
for Grandmother, Trial Counsel stated that he and Martinez had
discussed “numerous times” and “at great length” the question
of whether Grandmother should testify. At times, Martinez even
suggested specific questions that Grandmother might be asked,
and Trial Counsel then met personally with Grandmother to
discuss Martinez’s suggestions. In all, Trial Counsel met with
Grandmother “numerous times,” both in person and on the
phone; indeed, he testified that Grandmother “visited [his] office
almost on a weekly basis from the time [he was] retained until
the time up until trial,” and in addition Trial Counsel had “been
to [Grandmother’s] home” and had “spoken [with her] on the
20180131-CA 8 2020 UT App 69State v. Martinez
phone numerous times.” After repeatedly meeting with
Grandmother and preparing for trial, counsel made an initial
determination “that it would be helpful to have her” testify in
Martinez’s defense.
¶19 But as trial proceeded, Trial Counsel ultimately “decided
it would not be beneficial to the case to put her on the stand.” He
offered several reasons that contributed to his ultimate decision.
First, he became concerned about some of the “extreme
positions” Grandmother was taking in the answers to some of
the questions Trial Counsel put to her, and in addition identified
“many contradictions” in those answers. Moreover, he
recognized that Grandmother had an “obvious bias” given her
relationship to Martinez, and knew that she often tended to be
“very emotional.” For all of these reasons, Trial Counsel
“personally found [Grandmother’s testimony] to be not
credible,” and he worried that “if [he] was having doubts” about
her credibility, a jury likely would too.
¶20 Second, Trial Counsel was extremely concerned with the
optics of the relationship and age disparity between
Grandmother and Martinez. As he explained it,
[t]he concern was that the allegations were sexual
abuse of a child and in my opinion, I was
concerned that seeing a man in his 30s married to a
woman in her 60s would [raise] great concerns in
the jurors, whether warranted or not. When I had
spoken with anyone about the case being very
general and saying hypothetically if you heard [a]
35-ish year old man with a 60 year old woman and
he’s been charged with allegations of sexual abuse
of a child does that raise concerns on its face? And
it was almost a unanimous yes.
Trial Counsel then clarified that, specifically, he was concerned
that jurors would wonder “where[ Martinez is] at sexually.” He
20180131-CA 9 2020 UT App 69State v. Martinez
acknowledged that the jury was already aware, from testimony,
of the age difference between Grandmother and Martinez, but
felt that putting Grandmother on the stand would visually
emphasize the age difference and “blatantly” put the issue “in
their face,” something he thought would be detrimental.
¶21 Third, after the conclusion of the State’s case-in-chief,
Trial Counsel felt that Martinez was well-positioned to win an
acquittal. Trial Counsel was especially persuaded by the fact that
A.O. “gave a different testimony than she had previously given,”
testimony which was “contradictory” to her previous interviews.
Chiefly for this reason, he believed that the jury likely would
acquit Martinez, and that further testimony from Grandmother
(or from Martinez) might upset that balance.
¶22 With regard to the decision not to call Martinez to testify
in his own defense, Trial Counsel testified that he discussed
“many times” with Martinez the fact that Martinez had the right
to testify. Trial Counsel told Martinez that, as he “investigated
and prepared the defense,” he “would be giving [Martinez] a
recommendation and advising him whether he should or
shouldn’t testify, but ultimately it was his right.” Trial Counsel
met with Martinez at the jail on the night before the second day
of the two-day trial, and “indicated” to Martinez that he was
“leaning towards advising him not to take the stand at trial.”
Martinez did not give “much of a reaction” to that statement,
and did not appear to be “upset.” The next day, after the State
finished its case-in-chief, Trial Counsel gave Martinez his final
recommendation: that Martinez “shouldn’t take the stand.”
Again, Martinez did not offer “much of a reaction,” and did not
protest or appear upset. As noted above, at that point Trial
Counsel believed that an acquittal was likely, and he thought
that Martinez’s testimony would “open[] the door to hurtful
things in the case,” including cross-examination about his police
interview and about the time he spent with A.O. Trial Counsel
20180131-CA 10 2020 UT App 69State v. Martinez
never told Martinez that he could not testify, and Martinez did
not insist on taking the stand.
¶23 A few weeks after this evidentiary hearing, the trial court
held oral argument on the motion. At the conclusion of the
argument, the court issued an oral ruling. 4 In that ruling, the
court agreed with Martinez that Trial Counsel had rendered
deficient performance with regard to the Miranda-based
ineffective assistance claim, concluding that the statements made
by the second police officer to Martinez were “ambiguous” and
“deficient” because they spoke only of a future right to counsel
(“you will have the right to have an attorney present”) rather
than a present right to counsel. But the court nevertheless
determined that Martinez’s Miranda claim failed because
Martinez had not demonstrated prejudice, concluding that even
if the police interview had been suppressed, its absence from the
record would not have changed the outcome of the trial.
¶24 With regard to Martinez’s other two claims of ineffective
assistance, the court determined that Trial Counsel had not
performed deficiently. The court stated that Trial Counsel’s
decision to not call Martinez or Grandmother to testify at trial
was a “strategic decision” dependent upon “numerous factors,”
and noted that Trial Counsel “did not believe that the testimony
from [Grandmother] or [Martinez] . . . was necessary in order to
avoid a conviction.” Additionally, the court noted that “any
testimony by either would have been subject to cross
examination, which could have potentially harmed the
defendant’s case,” and concluded that “in light of the standards
4. At the conclusion of its oral ruling, the trial court asked the
State to “prepare findings and an order consistent with” the
ruling, but the record submitted to us does not contain any
written memorialization of the oral ruling. We therefore
presume that the oral ruling is the complete ruling of the court.
20180131-CA 11 2020 UT App 69State v. Martinez
set by Strickland[5] . . . these decisions were reasonable under the
circumstances.” Accordingly, the trial court denied Martinez’s
motion to arrest judgment or, in the alternative, for a new trial.
ISSUE AND STANDARD OF REVIEW
¶25 Martinez now appeals, and asserts that Trial Counsel
rendered constitutionally ineffective assistance. In most cases in
which we must weigh in on the adequacy of counsel’s assistance,
we confront the issue for the first time on appeal, and therefore
we often recite that “there is no lower court ruling to review and
we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” See Layton City
v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation
simplified). But this case is unusual in that Martinez did not
raise his ineffective assistance claim for the first time on appeal;
indeed, he raised this claim in a post-trial motion before the trial
court, and the court held an evidentiary hearing before issuing a
decision from the bench. In a case like this one, where “a trial
court has heard a motion based on ineffectiveness of counsel”
and that court’s ruling is up for review on appeal, we “afford the
trial court’s conclusions no deference” and “review them for
correctness,” but we set aside its factual findings “only if they
are clearly erroneous.” State v. Hay, 859 P.2d 1, 4–5 (Utah 1993).
ANALYSIS
¶26 Martinez asks us to consider the same three issues he
raised in his motion to arrest judgment before the trial court: he
asserts that Trial Counsel rendered constitutionally ineffective
assistance by (1) failing to move to suppress Martinez’s police
interview on the basis of allegedly insufficient Miranda
5. Strickland v. Washington, 466 U.S. 668 (1984).
20180131-CA 12 2020 UT App 69State v. Martinez
warnings; (2) failing to call Grandmother to testify during the
trial; and (3) failing to call Martinez to testify in his own defense,
or at least obtain Martinez’s affirmative waiver of his right to
testify. We first discuss the legal principles that govern claims
for ineffective assistance of counsel, and then we apply these
principles to each of Martinez’s claims.
A
¶27 To establish an ineffective assistance claim, a defendant
must make a two-part showing: (1) that his counsel’s
performance was deficient, in that it “fell below an objective
standard of reasonableness,” and (2) that this “deficient
performance prejudiced the defense” such that there is “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984).
¶28 Both of these elements require a substantial showing,
because reviewing courts “indulge a strong presumption that
counsel’s conduct [fell] within the wide range of reasonable
professional assistance,” id. at 689, and because a defendant
attempting to show a “reasonable probability of a different
outcome” had trial counsel not erred faces “a relatively high
hurdle to overcome,” see State v. Garcia, 2017 UT 53, ¶ 44, 424
P.3d 171. And because a defendant must satisfy both parts of this
test in order to establish his claim, it is unnecessary for us “to
address both components of the inquiry if we determine that a
defendant has made an insufficient showing on one.” Archuleta
v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (quotation simplified).
¶29 In examining whether counsel’s performance was
deficient under the first part of the test, we apply “the deficiency
standard announced in Strickland” and ask whether counsel’s
actions “fell below an objective standard of reasonableness.”
State v. Scott, 2020 UT 13, ¶ 31 (quotation simplified). “To
prevail, a defendant must show . . . that his counsel rendered a
20180131-CA 13 2020 UT App 69State v. Martinez
deficient performance in some demonstrable manner,” and that
counsel’s “performance fell below an objective standard of
reasonable professional judgment.” Archuleta, 2011 UT 73, ¶ 38
(quotation simplified). Courts have long recognized that “[t]here
are countless ways to provide effective assistance in any given
case,” and that “[e]ven the best criminal defense attorneys would
not defend a particular client in the same way.” Strickland, 466
U.S. at 689. Therefore, we must “indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id.¶30 One factor courts examine, in evaluating whether an
attorney performed deficiently, is whether the attorney had a
strategic reason for taking the action in question. See Scott, 2020
UT 13, ¶ 35 (stating that “the performance inquiry will often
include an analysis of whether there could have been a sound
strategic reason for counsel’s actions”). If the court determines
that the attorney had a valid strategic reason for his actions, then
“it follows that counsel did not perform deficiently.” Id.; see also
State v. Ray, 2020 UT 12, ¶ 34 (“If it appears counsel’s actions
could have been intended to further a reasonable strategy, a
defendant has necessarily failed to show unreasonable
performance.”).
¶31 But our supreme court has recently clarified that, despite
some language to the contrary in prior cases, the “converse is not
true.” Ray, 2020 UT 12, ¶ 34. A court’s determination that an
attorney did not have a valid strategic reason for his actions does
not automatically mean that the attorney performed deficiently.
Id. (“Even if an omission is inadvertent and not due to a
purposeful strategy, relief is not automatic.” (quotation
simplified)); see also Scott, 2020 UT 13, ¶ 36 (stating that “even
where a court cannot conceive of a sound strategic reason for
counsel’s challenged conduct, it does not automatically follow
that counsel was deficient”). In that situation, the court must still
“ask whether, in light of all the circumstances, the attorney
20180131-CA 14 2020 UT App 69State v. Martinez
performed in an objectively reasonable manner.” Ray, 2020 UT
12, ¶ 34 (quotation simplified); see also id. ¶ 36 (stating that, even
after concluding that “there was no strategic reason” for
counsel’s actions, “the deficiency analysis was not at an end,”
because “a reviewing court must always base its deficiency
determination on the ultimate question of whether counsel’s act
or omission fell below an objective standard of reasonableness”
(quotation simplified)).
¶32 In evaluating prejudice under the second part of the test,
we assess whether there exists a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently. See Garcia, 2017 UT 53, ¶¶ 34–38. This
“reasonable probability” standard is “less exacting” than the
“more likely than not standard,” and is “more akin to a
significant possibility of a different result.” See State v. Popp, 2019
UT App 173, ¶ 58, 453 P.3d 657 (quotations simplified). “A
reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Strickland, 466
U.S. at 694. In assessing whether a defendant has met this
standard, we “consider the totality of the evidence before the
judge or jury and then ask if the defendant has met the burden
of showing that the decision reached would reasonably likely
have been different absent the errors.” Garcia, 2017 UT 53, ¶ 28
(quotation simplified).
B
¶33 Martinez’s first complaint about Trial Counsel’s
performance is that Trial Counsel failed to seek suppression of
his police interview on Miranda grounds. On this issue, we
conclude that—even assuming, without deciding, that Martinez
could show that Trial Counsel performed deficiently—Martinez
has failed to show prejudice. We agree with the trial court that,
even if Martinez had been able to suppress the contents of his
20180131-CA 15 2020 UT App 69State v. Martinez
police interview, there is not a reasonable probability that the
outcome of his trial would have been any different.
¶34 We agree with the State’s assertion that Martinez’s police
interview did little to further the State’s case against Martinez. In
that interview, Martinez gave no confession or any other
admission of crucial facts necessary to the State’s case. He did,
however, initially claim that A.O. had never been in his
bedroom, only to clarify, immediately thereafter, that she had
“maybe” been inside his bedroom “once or twice” over the
years. At trial, the second officer testified that, during the
interview, Martinez had “changed” his story on this point, and
the State later argued from this testimony that the jury should
give more weight to A.O.’s account than to Martinez’s. But on
cross-examination, Trial Counsel used an actual transcript of the
police interview—rather than relying solely upon the second
officer’s recollection of it, as the State had during its
examination—and elicited from the second officer an
acknowledgment that Martinez’s clarification about whether
A.O. had ever been in his bedroom came “immediately” and “in
the sentence after” Martinez first stated that A.O. had never been
there. Trial Counsel then argued that Martinez’s second
statement was in the nature of an immediate clarification, and
should not carry any negative connotations for his credibility.
¶35 In our view, neither Martinez’s statement that A.O. might
have been in his room on a few occasions over the years, nor the
fact that this statement was slightly different than one he had
just made in the previous sentence of his interview, was
important enough to have changed the outcome of the trial. The
statement itself was relatively innocuous, and in line with what
one would expect of individuals living in close quarters over a
lengthy period of time. And the fact that the statement
represented an immediate clarification of a statement Martinez
had just made does not strike us as the sort of thing that
materially impacts a witness’s credibility.
20180131-CA 16 2020 UT App 69State v. Martinez
¶36 Moreover, the second officer’s testimony about Martinez’s
police interview formed but a small part of the State’s case,
which was otherwise supported by the testimony of A.O.,
Mother, Investigator, Psychologist, and another police officer.
After examining the totality of the circumstances, our
“confidence in the outcome” of the trial is not significantly
undermined by the testimony about the police interview, see
Strickland, 466 U.S. at 694, and therefore we conclude that
Martinez has not demonstrated a reasonable probability that the
outcome of his trial would have been different had the police
interview been excluded. Because Martinez cannot establish the
second requisite element of this ineffective assistance claim, we
have no need to address the first. See Archuleta, 2011 UT 73, ¶ 41.
C
¶37 Martinez’s second complaint about Trial Counsel’s
performance is that Trial Counsel decided not to call
Grandmother as a witness for the defense. On this issue, we
conclude that Martinez has failed to demonstrate that Trial
Counsel performed deficiently, because Trial Counsel articulated
several reasonable and informed strategic reasons for electing
not to call Grandmother as a witness.
¶38 As noted, as part of evaluating an attorney’s performance
in the context of an ineffective assistance claim, we look at
whether the attorney had an informed strategic reason for taking
the action in question. If the attorney can articulate such a
reason, that attorney has not performed deficiently. See Ray, 2020
UT 12, ¶ 34 (“If it appears counsel’s actions could have been
intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”).
¶39 This is especially true when the matter at issue concerns a
decision to introduce a particular piece of evidence, choose
which defense theory to emphasize, or call a particular witness.
See State v. Tyler, 850 P.2d 1250, 1256 (Utah 1993) (stating that
20180131-CA 17 2020 UT App 69State v. Martinez
“trial tactics and strategies including what witnesses to call,
what objections to make, and by and large what defenses to put
forth are within the prerogative of counsel and are generally left
to counsel’s professional judgment”); accord Adams v. State, 2005
UT 62, ¶ 25, 123 P.3d 400; State v. Curtis, 2013 UT App 287, ¶ 39,
317 P.3d 968. In particular, an attorney’s decision about whether
a witness should be called to the stand “is a matter of trial
strategy, which will not be questioned and viewed as
ineffectiveness unless there is no reasonable basis for that
decision.” See Tyler, 850 P.2d at 1256.
¶40 In this case, Trial Counsel—during his testimony at the
post-trial evidentiary hearing—articulated three separate
strategic reasons why he ultimately chose not to call
Grandmother as a witness. First, Trial Counsel was concerned
about Grandmother’s credibility. In his many interviews and
meetings with her, Trial Counsel had noticed that Grandmother
sometimes took unwarranted “extreme positions” on issues, and
that there were “many contradictions” in the information she
provided to him. He also recognized that she had an “obvious
bias” given her relationship to Martinez, and knew that she
tended to be a “very emotional” person. For all of these reasons,
Trial Counsel “personally found [Grandmother’s testimony] to
be not credible,” and he worried that “if [he] was having
doubts” about her credibility, jurors might feel the same way.
¶41 Second, Trial Counsel was extremely concerned with the
optics of the age disparity between Grandmother and Martinez.
Even though the jurors already knew, from testimony, that
Martinez was in his thirties and Grandmother was in her sixties,
Trial Counsel was concerned that placing Grandmother on the
witness stand would serve as a powerful visual reminder of the
age difference, and might cause jurors to wonder about
Martinez’s sexual proclivities.
20180131-CA 18 2020 UT App 69State v. Martinez
¶42 Finally, after the conclusion of the State’s case-in-chief,
Trial Counsel felt strongly that Martinez was well-positioned to
win an acquittal, given that A.O.’s trial testimony differed from
what she previously told Interviewer. Counsel was concerned
that calling additional witnesses, including Grandmother, might
result in snatching defeat from the jaws of victory.
¶43 In this context, we may second-guess Trial Counsel’s
proffered strategic reasons only if those reasons have “no
reasonable basis.” See Tyler, 850 P.2d at 1256; see also Archuleta,
2011 UT 73, ¶ 96 (stating that “reasonably informed strategic
choices are almost unassailable,” and that “strategic choices
made after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable” (quotation
simplified)); State v. Wright, 2013 UT App 142, ¶ 20, 304 P.3d 887(stating that “once counsel has investigated the underlying facts,
strategic decisions regarding those facts cannot be deemed
deficient except where there is no reasonable basis for them”). In
this case, not even Martinez suggests that Trial Counsel’s
decision not to call Grandmother was uninformed; indeed, Trial
Counsel met with Martinez and Grandmother “numerous times”
to discuss her potential testimony, and he had a very good idea
of what she would say if she were called as a witness.
¶44 But Martinez suggests that Trial Counsel’s proffered
strategic grounds for not calling Grandmother were nevertheless
unreasonable, and that Trial Counsel was “not credible” during
his testimony at the evidentiary hearing. Although the trial court
made no specific finding as to Trial Counsel’s credibility, it did
credit Trial Counsel’s explanations as to the reasons he chose not
to call Grandmother, specifically stating during its oral ruling
that Trial Counsel made a “strategic decision[]” not to call
Grandmother, and that this decision was “reasonable under the
circumstances.” To the extent this determination is entitled to
deference, see Sawyer v. Department of Workforce Services, 2015 UT
33, ¶¶ 19–21, 345 P.3d 1253 (noting that some “reasonableness”
20180131-CA 19 2020 UT App 69State v. Martinez
determinations are “law-like” and reviewed non-deferentially,
while others are fact-like and reviewed for clear error), Martinez
cannot demonstrate that the trial court’s determination is clearly
erroneous. 6 Under that standard, we reverse a lower court’s
determination only if it is “against the clear weight of the
evidence or if we otherwise reach a definite and firm conviction
that a mistake has been made.” See Layton City v. Carr, 2014 UT
App 227, ¶ 5, 336 P.3d 587 (quotation simplified). Ample
evidence, including Trial Counsel’s own testimony, supports the
trial court’s determination of reasonableness, and therefore that
determination is not clearly erroneous.
¶45 But even if we were to review the court’s reasonableness
determination without deference to the trial court, Martinez still
cannot demonstrate that the court erred, especially given the
“wide latitude” given to attorneys to make strategic decisions on
behalf of their clients. See Strickland, 466 U.S. at 689; see also
Menzies v. Galetka, 2006 UT 81, ¶ 89, 150 P.3d 480 (stating that
“judicial scrutiny of counsel’s performance must be highly
deferential” in any instance, because “it is all too easy for a court,
examining counsel’s performance after it has proved
unsuccessful, to conclude that a particular act or omission of
counsel was unreasonable” (quotation simplified)). While under
oath at the evidentiary hearing, Trial Counsel articulated three
colorable reasons why he decided not to call Grandmother, any
one of which—if reasonable—would be sufficient to support a
determination that he did not perform deficiently. And on the
record before us, Trial Counsel’s proffered strategic reasons each
appear plausible and reasonable. Indeed, our supreme court has
6. The parties did not brief the question of how deferentially we
should review a trial court’s determination, in the ineffective
assistance context, that an attorney’s actions were reasonable.
Because the outcome of this case does not depend on the answer
to this question, we offer no opinion on the subject.
20180131-CA 20 2020 UT App 69State v. Martinez
“recognized that counsel’s conduct is not unreasonable when he
chooses not to call a potential witness whom he deems to be
inconsistent and lacking credibility.” State v. Griffin, 2015 UT 18,
¶ 55, 441 P.3d 1166.
¶46 The fact that at least one of Trial Counsel’s proffered
reasons—that he thought he had the case won—later turned out
to be wrong is not something we may hold against him. Indeed,
“[a] fair assessment of attorney performance requires that every
effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the
time.” Strickland, 466 U.S. at 689; see also State v. Perry, 899 P.2d
1232, 1239 (Utah Ct. App. 1995) (“[A] reviewing court defers to
counsel’s choices regarding trial strategy, even if in hindsight his
or her choices were incorrect.”). 7
¶47 In short, on this record, and given Trial Counsel’s sworn
explanation for his decisions, Martinez has fallen short of
demonstrating that Trial Counsel’s decision not to call
Grandmother was objectively unreasonable. Accordingly,
7. Martinez also complains about the fact that Trial Counsel told
the jury, during opening statement, that Grandmother would
testify, and then neither called Grandmother nor explained to
the jury why he had not. But Trial Counsel gave a reasonable
explanation, during his testimony at the post-trial hearing, why
he initially thought he would call Grandmother, but then
changed his mind as trial progressed. As discussed herein, Trial
Counsel had informed and reasonable grounds for making his
decisions about whether to call Grandmother, and we are not in
a position to second-guess those decisions. Neither are we in a
position to second-guess his decision not to draw further
attention to Grandmother’s absence by explaining that decision
to the jury during closing argument.
20180131-CA 21 2020 UT App 69State v. Martinez
Martinez’s second claim of ineffective assistance fails on the first
part of the test, because Martinez has not succeeded in showing
that Trial Counsel rendered deficient performance. Because
Martinez cannot establish the first requisite element of this
ineffective assistance claim, we have no need to address the
second. See Archuleta, 2011 UT 73, ¶ 41.
D
¶48 Martinez’s final complaint about Trial Counsel’s
performance is that Trial Counsel did not call Martinez himself
to testify in his own defense, and did not obtain from Martinez
an affirmative waiver of his right to testify. On this issue, we
conclude that Martinez has failed to demonstrate that Trial
Counsel performed deficiently, because Trial Counsel articulated
reasonable and informed strategic reasons for electing not to call
Martinez, and because Martinez had every opportunity to
express his desire to testify, but never did.
¶49 During the days prior to trial, Trial Counsel discussed
“many times” with Martinez the fact that Martinez had the right
to testify, and that when the time came, Trial Counsel would
give Martinez a recommendation as to whether he should testify.
But Trial Counsel told Martinez that, regardless of the
recommendation, the final decision about whether to testify was
Martinez’s to make. The night before the last day of trial, Trial
Counsel “indicated” to Martinez that he was “leaning towards
advising him not to take the stand at trial,” and Martinez did not
state any disagreement with this assessment. The next day, after
the State finished its case-in-chief, Trial Counsel gave Martinez
his final recommendation: that Martinez “shouldn’t take the
stand.” Trial Counsel reached this decision because, as noted
above, he believed an acquittal was likely, and he thought that
Martinez’s testimony would “open[] the door to hurtful things in
the case,” including cross-examination about his police interview
and about the time he spent with A.O., and therefore believed
20180131-CA 22 2020 UT App 69State v. Martinez
that Martinez’s testimony could potentially be harmful. When
Trial Counsel delivered his final recommendation to Martinez,
Martinez did not offer “much of a reaction,” and did not protest
or appear upset. Trial Counsel never told Martinez that he could
not testify, and Martinez never insisted on taking the stand.
¶50 As with Trial Counsel’s reasons for choosing not to call
Grandmother, we agree with the trial court that Trial Counsel’s
reasons for recommending that Martinez not testify were
informed and reasonable. Trial Counsel believed, albeit
incorrectly, that an acquittal was likely, and viewed the risks of
putting Martinez on the stand as relatively high. Trial Counsel
was especially concerned about the State’s ability to cross-
examine Martinez on various topics, including his police
interview and the time he spent with A.O. Trial Counsel had met
with Martinez numerous times, and had discussed his potential
testimony, and knew what Martinez was likely to say if called as
a witness. In this case, Trial Counsel’s decision to recommend
that Martinez not testify was reasonable. See Archuleta, 2011 UT
73, ¶ 96 (stating that “reasonably informed strategic choices are
almost unassailable,” and that “strategic choices made after
thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable” (quotation simplified)).
Accordingly, Trial Counsel did not perform deficiently by
recommending to Martinez that he not testify.
¶51 And neither did Trial Counsel act improperly by
presuming from Martinez’s silence that Martinez agreed with his
recommendation not to testify. Trial Counsel informed Martinez
that the ultimate decision was Martinez’s to make, but that Trial
Counsel’s recommendation was that Martinez not testify. In
response, Martinez did not offer “much of a reaction,” and did
not express disagreement. In this situation, an attorney may
properly infer, from his client’s silence, that the client has
acquiesced in the decision and agreed to waive his right to
testify. See United States v. Joelson, 7 F.3d 174, 177 (9th Cir. 1993)
20180131-CA 23 2020 UT App 69State v. Martinez
(stating that a defendant “is presumed to assent to his attorney’s
tactical decision not to have him testify,” and that a “waiver of
the right to testify may be inferred from the defendant’s conduct
and is presumed from the defendant’s failure to testify or notify
the court of his desire to do so”); United States v. Teague, 953 F.2d
1525, 1535 (11th Cir. 1992) (upholding a trial court’s finding of
waiver where the defendant “was advised of his right to testify,
was advised that he should not exercise that right, and did not
protest” (quotation simplified)); see also United States v. Williams,
139 Fed. App’x 974, 976 (10th Cir. 2005) (“When a defendant
does not alert the trial court of a disagreement with his counsel
regarding his right to testify, waiver of the right to testify may be
inferred from the defendant’s conduct.” (quotation simplified));
cf. State v. Brooks, 833 P.2d 362, 365 (Utah Ct. App. 1992) (holding
that a trial court “bears no affirmative duty sua sponte to engage
in an on-the-record colloquy with defendant at the time of trial
to ensure a valid waiver of the right to testify”). Accordingly,
Trial Counsel did not perform deficiently by inferring from
Martinez’s silence, in the wake of his recommendation, that
Martinez was in agreement with the recommendation and did
not wish to testify.
¶52 We therefore conclude that Trial Counsel did not perform
deficiently in advising Martinez not to testify. Thus, Martinez’s
final claim of ineffective assistance fails on the first part of the
test. Because Martinez cannot establish the first requisite element
of this ineffective assistance claim, we have no need to address
the second. See Archuleta, 2011 UT 73, ¶ 41.
CONCLUSION
¶53 Martinez has not carried his burden of demonstrating that
Trial Counsel rendered constitutionally ineffective assistance.
Accordingly, we affirm Martinez’s convictions.
20180131-CA 24 2020 UT App 69