State v. Alzaga , 787 Utah Adv. Rep. 6 ( 2015 )

2015 UT App 133_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
CRISTIAN A. ALZAGA,
Defendant and Appellant.
Opinion
No. 20120742-CA
Filed May 29, 2015
Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 101401263
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Jeanne B. Inouye, Attorneys
for Appellee
JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which
JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred.
VOROS, Judge:
¶1 Cristian A. Alzaga was convicted of murder, aggravated
assault, and aggravated robbery. All the crimes occurred in
connection with a drug deal under a bridge on the Jordan
Parkway. The State claimed that the victims were at the bridge to
sell marijuana; Alzaga claimed they were there to buy heroin.
On appeal Alzaga challenges certain of the trial court’s
evidentiary rulings, its instructions to the jury on self-defense,
and its denial of his motion for a new trial. He also contends that
his trial counsel rendered constitutionally ineffective assistance.
We affirm.
State v. Alzaga
BACKGROUND1
The Drug Deal
¶2 Hannah and her boyfriend, Mark,2 lived together in a tent
near the Jordan River Parkway Trail in Midvale, Utah. The two
scraped by; each sold marijuana, while Mark received food
stamps and donated his blood plasma.
¶3 In May 2010, one of the couple’s regular customers
contacted Hannah to purchase an ounce of marijuana. Hannah
and Mark agreed to meet the customer for the sale at a spot
where they had met before, on a footbridge by the Jordan River
near 3900 South (the Footbridge). When Mark and Hannah
arrived for the sale, they crossed the Footbridge and spotted the
customer. With him was ‚a bigger guy‛ who acted as a lookout.
Mark also spotted a third man talking on a cell phone and
pacing back and forth on a larger bridge spanning the Jordan
River nearby (the Jordan River Bridge). Mark described this
third man, the defendant, as having spiked black hair, ‚kind of
crown shaped,‛ and wearing a white shirt. Mark did not
immediately connect Alzaga with the customer and the lookout.
However, Mark felt concerned that the lookout had
accompanied the customer to the drug deal; Mark and the
customer ‚had kind of an agreement that you didn’t bring
anybody with you when you came to buy marijuana,‛ because
1. ‚On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (citation and internal quotation marks omitted).
2. We use pseudonyms to protect the privacy of the victims and
their families.
20120742-CA 2 2015 UT App 133State v. Alzaga
‚anything could happen when you meet new people.‛ But
Hannah felt comfortable because she had known the customer
for ‚*p+retty much her entire life.‛
¶4 Mark and Hannah decided to go ahead with the deal. The
customer asked Mark and Hannah to weigh the marijuana, and
Hannah climbed down onto a ledge under the Footbridge to do
so. The customer stood against a post above Hannah, and the
lookout made ‚sure that nobody was coming while *Hannah+
weighed the marijuana.‛ Alzaga approached, still talking on his
cell phone. When he and the customer argued briefly, Alzaga
pulled what appeared to be a gun and pointed it at the customer.
The customer looked under the Footbridge at Hannah; Alzaga
then pointed the gun at her and said, ‚You give me all your
shit.‛
The Stabbings
¶5 Hannah backed up under the Footbridge. Alzaga jumped
down after her, and Mark followed. Mark saw that Alzaga and
Hannah ‚were kind of close together‛ and saw Hannah jump
back from Alzaga ‚like she was trying to get away from
something.‛ Mark then grabbed Alzaga by the shoulder from
behind. Alzaga wheeled around, pointed the gun at Mark, and
said, ‚You can give me all your shit, too.‛ Mark thought that the
gun looked fake and batted it away from Alzaga.3 But Alzaga
also had a knife. Alzaga slashed at Mark, who jumped back and
yelled at Hannah to run. Hannah walked slowly up the hill and
said that she had been stabbed. Both Alzaga and Mark ran
toward Hannah. Mark then heard the customer yell, ‚Forget it.
It’s done. Let’s go. Let’s go. Let’s go.‛ The customer and the
lookout fled the scene toward 3900 South.
3. Police later found the gun in some brush by the path that
crossed the Footbridge. It was in fact a toy gun.
20120742-CA 3 2015 UT App 133State v. Alzaga
¶6 Alzaga reached Hannah before Mark did and began
pulling at her purse. Mark caught up to Hannah and Alzaga and
stepped between them to shield Hannah from Alzaga. Mark told
Hannah to let go of the purse. As Mark and Alzaga ‚struggled
over the purse‛ Alzaga slashed at Mark and struck him in the
eye. Alzaga had wounded both Mark and Hannah; Mark’s eye
was swollen shut, and Hannah told Mark that she could not
breathe. Mark then relinquished the purse to help Hannah, and
Alzaga took off running. Hannah threw away the marijuana she
had in her pocket and lay down on the ground, struggling to
breathe. Mark grabbed Hannah’s phone and dialed 911. Hannah,
eighteen years old, died at the hospital of a stab wound to the
abdomen.
Alzaga’s Version of Events
¶7 Alzaga described quite a different encounter. He
maintained that he did not kill Hannah and that he stabbed
Mark in self-defense. Alzaga testified that he, the customer, and
the lookout agreed to meet Mark and Hannah at the Footbridge
to sell them a large amount—fifty-two grams—of heroin. The
three drove together to the Jordan River Parkway Trail, walked
to the Footbridge, and after meeting up with Mark and Hannah,
Alzaga weighed a plastic-wrapped package of heroin the size of
a tennis ball and worth $6,000. After Alzaga confirmed its
weight, he claimed that Mark suddenly ‚just grab*bed+ the ball
of heroin‛ and handed it to Hannah, who ‚start*ed+ running.‛
¶8 Alzaga then testified that Mark began punching him on
the left side of his face and neck. As Mark assaulted him, Alzaga
observed the customer running across the Footbridge and
‚noticed *the lookout+ chasing after *Hannah+.‛ Alzaga told the
jury that he was ‚high on *e+cstasy‛ and ‚just felt terrified‛ by
Mark’s assault. Alzaga absorbed Mark’s punches for a time but
then started to fall over, and ‚that’s when‛ Alzaga ‚felt the
knife‛ in his pocket. Alzaga then pulled the knife out of his
pocket, and as Mark punched him, he ‚countered back with a
20120742-CA 4 2015 UT App 133State v. Alzaga
right hook‛ and slashed Mark in the eye. Mark backed away
while the lookout returned with Hannah’s purse in hand. The
lookout gave the purse to Alzaga, and both fled the scene.
¶9 Alzaga was convicted of murder, a first-degree felony,
Utah Code Ann. § 76-5-203(3) (LexisNexis Supp. 2010);
aggravated robbery, a first-degree felony, id. § 76-6-302
(LexisNexis 2008); and aggravated assault, a second-degree
felony, id. § 76-5-103. He appeals.
ISSUES
¶10 First, Alzaga contends that the trial court erroneously
admitted Mark’s testimony that Hannah had a life philosophy of
peace and nonviolence and that she consumed no drugs other
than marijuana.
¶11 Second, Alzaga contends that the trial court erroneously
excluded evidence pertaining to the details of Mark’s prior drug
convictions.
¶12 Third, Alzaga contends that the trial court erroneously
admitted a prison recording of a conversation between Alzaga
and his girlfriend during which he made derogatory remarks
about Hannah and did not deny killing her.
¶13 Fourth, Alzaga contends that the trial court erroneously
admitted photographs of the crime scene taken in February 2012
that did not accurately reflect the view of the scene when the
crimes occurred in May 2010.
¶14 Fifth, Alzaga contends that the trial court erroneously
instructed the jury on the standard for self-defense.
¶15 Sixth, Alzaga contends that his trial counsel ineffectively
failed to present expert testimony challenging Mark’s eyewitness
identification of him.
20120742-CA 5 2015 UT App 133State v. Alzaga
¶16 Finally, Alzaga contends that the trial court erroneously
denied his motion for a new trial, which he made on the basis of
newly discovered exculpatory evidence.
ANALYSIS
I. Hannah’s Character for Peacefulness
¶17 Alzaga contends that the trial court ‚abused its discretion
when it admitted evidence of *Hannah’s+ character for
peacefulness and aversion to serious drugs.‛ Alzaga argues that
this evidence was inadmissible character evidence under rules
404 and 405 of the Utah Rules of Evidence. In the alternative,
Alzaga contends that the trial court plainly erred in admitting
the evidence. The State counters that Alzaga inadequately
briefed his plain error claim and that, in any event, he fails to
carry the burden of persuasion because the error, if any, was
neither obvious nor prejudicial.
¶18 ‚Evidence of a person’s character or character trait is not
admissible to prove that on a particular occasion the person
acted in conformity with the character or trait.‛ Utah R. Evid.
404(a)(1). Rule 404(a)(2) sets out exceptions to this general
prohibition that apply to defendants and alleged victims in
criminal cases:
(A) a defendant may offer evidence of the
defendant’s pertinent trait, and if the evidence
is admitted, the prosecutor may offer evidence
to rebut it;
(B) subject to the limitations in Rule 412, a
defendant may offer evidence of an alleged
victim’s pertinent trait, and if the evidence is
admitted, the prosecutor may:
i. offer evidence to rebut it; and
20120742-CA 6 2015 UT App 133State v. Alzaga
ii. offer evidence of the defendant’s same
trait; and
(C) in a homicide case, the prosecutor may offer
evidence of the alleged victim’s trait of
peacefulness to rebut evidence that the victim
was the first aggressor.
Id. R. 404(a)(2). Evidence of a person’s character may be
introduced by opinion or reputation testimony:
When evidence of a person’s character or character
trait is admissible, it may be proved by testimony
about the person’s reputation or by testimony in
the form of an opinion. On cross-examination of
the character witness, the court may allow an
inquiry into relevant specific instances of the
person’s conduct.
Id. R. 405(a).
¶19 At trial, Mark testified that Hannah was ‚just like kind of
a modern-day hippie‛; that she ‚smoked weed, yes, but that’s
the only drug she did‛; and that she did not ‚even want to try
anything else like hallucinogens, nothing else like that.‛ Mark
also testified that Hannah ‚loved the peace sign‛ and that she
believed in the philosophy of ‚PLUR . . . peace, love, unity, and
respect.‛ Mark added that he had a peace-sign tattoo on his
shoulder and that ‚*e+very time *he+ would find something with
a peace sign on it, *he+ would buy it for her.‛
¶20 Alzaga argues that Mark’s testimony violated rule
404(a)(1) because it constituted evidence of Hannah’s character
trait offered to prove that she acted in conformity with that trait.
Alzaga further argues that Mark’s testimony violated rule
404(a)(2) because ‚*Mark+ was the first witness to testify, and . . .
Alzaga’s opening statement could not open the door to the
introduction of positive character evidence.‛ Because opening
20120742-CA 7 2015 UT App 133State v. Alzaga
statements ‚do not constitute evidence and cannot open the door
to character evidence,‛ State v. Leber, 2009 UT 59, ¶ 16, 216 P.3d
964, Alzaga maintains that the trial court erred in admitting
rehabilitative character evidence before Hannah’s character was
attacked. Alzaga further argues that Mark’s testimony violated
rule 405(a) because ‚the State did not offer reputation or opinion
testimony, but rather, specific instances of . . . *Hannah’s+
conduct.‛
¶21 The State responds that Alzaga failed to preserve this
claim in the trial court. To preserve an issue for appeal, ‚the
issue must be presented to the trial court in such a way that the
trial court has an opportunity to rule on that issue.‛ 438 Main St.
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and
internal quotation marks omitted). ‚*I+f a party makes an
objection at trial based on one ground, this objection does not
preserve for appeal any alterative grounds for objection.‛ State v.
Low, 2008 UT 58, ¶ 17, 192 P.3d 867. Counsel objected to Mark’s
testimony on relevance grounds, but Alzaga does not argue
relevance on appeal.4 He instead argues that his relevance
objection was sufficient to preserve his rule 404 and rule 405
claims and that, in any event, the trial court plainly erred in
admitting the character evidence.
¶22 We agree with the State that Alzaga’s objection on
relevance grounds did not preserve his appellate claim. His
objection did not convey to the trial court that Alzaga believed
the testimony, though relevant, constituted improper character
evidence. Accordingly, we analyze his rule 404 and rule 405
claims under the plain error standard.
4. In fact, the reply brief acknowledges that if, as Mark testified,
Hannah did not use hard drugs, ‚then she was less likely to have
arranged a heroin transaction, as Mr. Alzaga testified.‛
20120742-CA 8 2015 UT App 133State v. Alzaga
¶23 To demonstrate plain error, a defendant must establish
that (1) the trial court committed error, (2) the error should have
been obvious to the court, and (3) the error was harmful. State v.
Dunn, 850 P.2d 1201, 1208 (Utah 1993). ‚To establish that the
error should have been obvious to the trial court, [an appellant]
must show that the law governing the error was clear at the time
the alleged error was made.‛ State v. Dean, 2004 UT 63, ¶ 16, 95
P.3d 276; State v. Ross, 951 P.2d 236, 239 (Utah Ct. App. 1997).
Thus, an obvious error is one that contravenes ‚settled appellate
law,‛ Ross, 951 P.2d at 239, or ‚the plain language of the relevant
statute,‛ Low, 2008 UT 58, ¶ 41. An error is prejudicial if ‚absent
the error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence
in the verdict is undermined.‛ Dunn, 850 P.2d at 1208–09
(footnote omitted).
¶24 Alzaga has not established plain error. First, any possible
error in admitting testimony that Hannah smoked marijuana
was not obvious under rule 404(a)(1). Rule 404(a)(1) declares
evidence ‚of a person’s character or character trait‛ offered ‚to
prove that on a particular occasion the person acted in
conformity with the character or trait‛ inadmissible. Utah R.
Evid. 404(a)(1). Here, we do not think it obvious that testimony
that Hannah ‚smoked weed, yes, but that’s the only drug she
did‛ describes a ‚character trait.‛ And even if it did, the
obviously prohibited use would be to show that Hannah acted in
conformity with this character trait on this occasion. Acting in
conformity with the ‚character trait‛ of smoking marijuana
would be to smoke marijuana. But the State’s theory was not that
Hannah smoked marijuana on this or any other occasion but that
she went to the meeting place to sell marijuana. And it is not
obvious that selling marijuana constitutes acting in conformity
with the ‚character trait‛ of smoking it. See R. Collin Mangrum
& Dee Benson, Mangrum & Benson on Utah Evidence 191–92
(2014–2015 ed.). Accordingly, whether the State did or did not
‚offer evidence of an alleged victim’s pertinent trait‛ under rule
404(a)(2)(B) is of no moment.
20120742-CA 9 2015 UT App 133State v. Alzaga
¶25 Even if admission of the testimony was obvious error,
Alzaga has not shown prejudice. At most, the testimony that
Hannah smoked marijuana corroborated more directly relevant
testimony. Mark testified without objection that he and Hannah
dealt marijuana and that they went to the rendezvous that day to
sell some to the customer. Given this direct evidence that
Hannah and Mark sold marijuana, the admission of additional
evidence that Hannah smoked marijuana, from which the jury
might infer that Hannah also sold marijuana, does not
undermine our confidence in the verdict. See Dunn, 850 P.2d at
1208–09.
¶26 The same is true for testimony that Hannah did not use
other drugs, i.e. heroin. It is far from obvious that not using
heroin is a ‚character trait‛ and that not arranging to buy heroin
constituted acting in conformity with that character trait on this
occasion. Nor has Alzaga demonstrated a reasonable likelihood
of a more favorable trial outcome absent testimony that Hannah
‚smoked weed, yes, but that’s the only drug she did.‛
¶27 Finally, we cannot agree that Mark’s testimony that
Hannah’s ‚philosophy of life was PLUR, . . . peace, love, unity
and respect‛ obviously violated rule 404(a). While this testimony
may well describe a character trait, Alzaga has not shown that
the State offered the testimony to prove that Hannah acted in
conformity with that character trait on a particular occasion.
While the defense argued that Mark attacked Alzaga, no one
claimed that Hannah acted other than peacefully throughout the
encounter.5
5. On appeal, Alzaga does not challenge Mark’s testimony that
he shared Hannah’s philosophy of life. Instead, Alzaga argues
that the trial court abused its discretion ‚when it admitted
evidence of *Hannah’s+ character for peacefulness and aversion
(continued...)
20120742-CA 10 2015 UT App 133State v. Alzaga
¶28 In sum, the challenged testimony was not obviously
inadmissible, but even if it had been, we cannot say that this
evidence undermines our confidence in the verdict. See id.II. Mark’s Prior Drug Convictions
¶29 Alzaga contends that the trial court abused its discretion
by excluding the details of Mark’s prior drug convictions under
rule 609 of the Utah Rules of Evidence.
¶30 On direct examination, Mark admitted to three prior drug
convictions, two for possession and one for possession with
intent to distribute. After the prosecution rested, defense counsel
announced her intention to recall Mark as a witness.
Anticipating that defense counsel would inquire further into the
specifics of Mark’s prior drug convictions—in particular, which
drugs formed the bases for those convictions—the prosecutor
objected to the inquiry as impermissible under rule 609. Because
Mark had ‚not denied or tried to explain away those *drug+
convictions,‛ the prosecutor argued, any inquiry ‚should be
limited to the nature of the crime, the date of the conviction, and
the punishment.‛ Defense counsel countered that she wanted to
explore the specifics of the drug convictions to impeach Mark.
¶31 The trial court sustained the prosecutor’s objection,
reasoning that because Mark never testified that he used only
marijuana, rule 609 prohibited questions related to the details of
his prior drug convictions. Alzaga challenges this ruling on
appeal. We review a trial court’s evidentiary rulings for an abuse
of discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311 P.3d 538.
(2015 UT App 133State v. Alzaga
We review a trial court’s interpretation of evidentiary rules for
correctness. State v. Richardson, 2013 UT 50, ¶ 32, 308 P.3d 526.
¶32 Rule 609 permits a party to attack a witness’s character for
truthfulness using evidence of a criminal conviction. Where, as
here, Mark’s convictions were punishable by imprisonment for
more than one year, ‚the evidence must be admitted, subject to
Rule 403, . . . in a criminal case in which the witness is not a
defendant.‛ Utah R. Evid. 609(a)(1)(A).
¶33 ‚Rule 609 does not provide a clear answer to whether an
examiner can inquire for impeachment purposes into the nature
of the conviction, the details of the crime, or the circumstances of
the sentence . . . .‛ R. Collin Mangrum & Dee Benson, Mangrum
& Benson on Utah Evidence 485 (2014–2015 ed.). However, caselaw
makes clear that ‚it is permissible to inquire into the fact and
nature of the prior conviction, but not the details or
circumstances surrounding the event, absent unusual
circumstances.‛ State v. Colwell, 2000 UT 8, ¶ 33, 994 P.2d 177.
Generally, an examining attorney ‚may not parade the details of
the prior crime in front of the jury.‛ State v. Tucker, 800 P.2d 819,
822 (Utah Ct. App. 1990).
¶34 But there ‚is an exception to the Rule 609(a) ‘mandate’
that inquiry be confined to the nature, date and punishment of
past convictions.‛ Id. at 823. When a witness on direct
examination ‚attempts to explain away the effect of the
conviction or to minimize his guilt,‛ he may be ‚cross-examined
on any facts which are relevant to the direct examination.‛ Id.(citation and internal quotation marks omitted). Thus, ‚when a
*witness+ seeks to mischaracterize a prior conviction,‛ the
examining attorney may use the conviction to contradict the
inaccurate testimony. State v. Levin, 2004 UT App 396, ¶ 26, 101
P.3d 846; see also Tucker, 800 P.2d at 823 (holding that an
examining attorney could inquire into specific details of a
witness’s prior crimes after the witness attempted to minimize
his guilt for those crimes).
20120742-CA 12 2015 UT App 133State v. Alzaga
¶35 Alzaga claims the benefit of this exception. He argues that
Mark ‚conveyed the impression to the jury that both he and . . .
*Hannah+ were ‘modern day hippies’ who smoked weed but
avoided other drugs‛ and who ‚shared a life philosophy of
peace and respect.‛ This testimony, Alzaga argues, ‚left the jury
with the impression that [Mark] was a marijuana dealer, and
that the prior convictions . . . Alzaga used to impeach *Mark’s+
credibility likely related to his admitted use and distribution of
marijuana.‛ Alzaga argues that the trial court should have
allowed counsel to question Mark about the details of the
convictions because Mark ‚mischaracterize*d+ a prior
conviction.‛ See Levin, 2004 UT App 396, ¶ 26. The State counters
that Mark did not mislead the jury and therefore the trial court
acted within its discretion in excluding the evidence. We agree
with the State.
¶36 Mark testified that he had three prior drug convictions.
But he never testified that he used only marijuana or otherwise
attempted to minimize his culpability for the prior drug
convictions. Instead, he testified to only Hannah’s drug use,
stating that she ‚smoked weed, yes, but that’s the only drug she
did,‛ and that she did not ‚even want to try anything else like
hallucinogens, nothing else like that.‛ Mark’s silence concerning
his own past drug use informs the analysis. In State v. Levin, a
defendant was charged with marijuana possession. 2004 UT App
396, ¶ 1, 101 P.3d 846. Before trial, the trial court granted the
defendant’s motion to exclude evidence of a prior conviction for
marijuana possession. Id. ¶ 5. But the defendant then testified on
direct examination, ‚I don’t smoke marijuana, and I haven’t
smoked marijuana.‛ Id. ¶ 24. The trial court then permitted the
State to present evidence of his prior conviction because his
testimony about not smoking marijuana could have misled the
jury. Id. We affirmed. Id. ¶ 27.
¶37 But here, Mark made no misleading statements about his
drug use or drug convictions that would have opened the door
to detailed questioning. We do not agree with Alzaga that
20120742-CA 13 2015 UT App 133State v. Alzaga
Mark’s claimed devotion to the principles of ‚peace, love, unity,
and respect‛ or his peace-sign tattoo said anything about his
prior drug convictions. Mark did not ‚mischaracterize a prior
conviction,‛ see id. ¶ 26, or ‚attempt*+ to explain away the effect
of the conviction or to minimize his guilt,‛ see Tucker, 800 P.2d at
823 (citation and internal quotation marks omitted). And his
testimony that Hannah was a ‚modern-day hippie‛ who only
‚smoked weed‛ was too attenuated from Mark’s convictions to
open the door to further cross-examination concerning them.
Accordingly, the trial court acted within its discretion in
excluding detailed testimony about Mark’s past drug
convictions.
¶38 Alzaga next contends that the trial court erred in
excluding the details of Mark’s prior drug convictions under
rules 404(a) and 405(a) of the Utah Rules of Evidence. Alzaga
reasons that, while Mark did not directly testify that he used
only marijuana, he opened the door by suggesting that
purchasing heroin would have been contrary to his and
Hannah’s past behavior and character. Thus, Alzaga should
have been allowed on cross-examination to inquire into specific
instances of Mark’s drug use to contradict ‚the misleading
testimony concerning his character in this case.‛
¶39 Rule 404(a) allows a criminal defendant to ‚offer evidence
of an alleged victim’s pertinent trait.‛ Utah R. Evid. 404(a)(2)(B).
And when the State introduces testimonial evidence of a victim’s
positive character or character trait, rule 405(a) allows the
defendant ‚to discredit the testimony . . . by ‘inquir*ing+ into
relevant specific instances of conduct’ that might contradict‛ the
witness’s assessment of the victim’s character. State v. Martin,
2002 UT 34, ¶ 38, 44 P.3d 805 (alteration in original) (quoting
Utah R. Evid. 405(a)). The State maintains that Alzaga did not
preserve this claim at trial.
¶40 We agree with the State that Alzaga did not preserve this
claim. To preserve an issue for appeal, ‚the issue must be
20120742-CA 14 2015 UT App 133State v. Alzaga
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.‛ 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal
quotation marks omitted). Among other things, this standard
requires that the issue be ‚specifically raised.‛ See id. ‚*I+f a party
makes an objection at trial based on one ground, this objection
does not preserve for appeal any alternative grounds for
objection.‛ State v. Low, 2008 UT 58, ¶ 17, 192 P.3d 867. Because
Alzaga ‚did not preserve his claims before the trial court, he
must establish plain error, ineffective assistance of counsel, or
exceptional circumstances to warrant review by this court.‛ State
v. Kozlov, 2012 UT App 114, ¶ 28, 276 P.3d 1207 (citing Low, 2008
UT 58, ¶ 19). Alzaga did not object to the trial court’s decision to
exclude details of Mark’s prior drug convictions on rule 404(a) or
rule 405(a) grounds. Accordingly, this claim is unpreserved.
¶41 Alzaga argues in the alternative that his trial counsel
rendered ineffective assistance by not preserving this claim for
appeal. See State v. Weaver, 2005 UT 49, ¶ 18, 122 P.3d 566(identifying plain error and ineffective assistance of counsel as
two exceptions to the preservation rule). The State responds that
Alzaga’s ineffective-assistance-of-counsel claim is inadequately
briefed. Again, we agree with the State.
¶42 An appellant’s brief ‚shall contain the contentions and
reasons of the appellant with respect to the issues
presented, . . . with citations to the authorities, statutes, and parts
of the record relied on.‛ Utah R. App. P. 24(a)(9). Briefs require
‚not just bald citation to authority but development of that
authority and reasoned analysis based on that authority.‛ State v.
Thomas, 961 P.2d 299, 305 (Utah 1998). ‚An issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court.‛ State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770(citation and internal quotation marks omitted).
20120742-CA 15 2015 UT App 133State v. Alzaga
¶43 Here, Alzaga has not demonstrated that his trial counsel
rendered ineffective assistance. In a footnote, Alzaga states, ‚To
the extent that defense counsel did not specifically argue that
Rule 405(a) . . . allowed for the introduction of this evidence she
was ineffective.‛ In support, he directs us to sections of his brief
in which he discusses error and prejudice as it relates to his
discussion of Hannah’s character for peacefulness. Even if a
generalized reference to other sections of his brief otherwise
satisfied our briefing requirements, Alzaga fails to develop any
meaningful analysis of his argument as it relates to the evidence
at issue—Mark’s prior drug convictions. Under the
circumstances, Alzaga has inadequately briefed this claim.
Accordingly, Alzaga has failed to meet his burden of persuasion
on appeal. See Simmons Media Group, LLC v. Waykar, LLC, 2014
UT App 145, ¶ 37, 335 P.3d 885.
III. The Prison Recording
¶44 On appeal, Alzaga challenges the admission of a
recording of a prison telephone conversation between himself
and his girlfriend. In that call, Alzaga told his girlfriend about
his altercation with another inmate who had accused him of
killing Hannah:
Alzaga: And then I got into a fuckin’ *fight+.
....
Girlfriend: Why?
Alzaga: Cause that fool was like, ‚Hey, you’re the
one who killed my fuckin’ home girl‛ like, ‚I don’t
give a fuck, fool, fuck that bitch,‛ and that fool
fuckin’ tried to head butt me and shit.
At trial, Alzaga argued that the recording was irrelevant because
it had no tendency to prove or disprove the elements of the
20120742-CA 16 2015 UT App 133State v. Alzaga
crimes charged. In the alternative, he argued that any relevant
probative value was substantially outweighed by a risk of unfair
prejudice to him because of the language he used. The State
responded that the recording was highly probative because by
not denying the stabbing, Alzaga gave ‚nearly a confession to
the crime.‛
¶45 The trial court denied Alzaga’s motion to exclude the
recording. It ruled that the recording was relevant and that
because the language Alzaga used constituted ‚fairly common
talk in lots of venues,‛ the recording was not substantially more
prejudicial than probative.
¶46 On appeal, Alzaga argues that the recording was
substantially more prejudicial than probative and therefore
should have been excluded under rule 403 of the Utah Rules of
Evidence. The State counters that the trial court acted within its
discretion under rule 403 because the jury ‚could reasonably
have understood *Alzaga’s+ not denying that he killed *Hannah+
to be a tacit admission that he did.‛ Thus, the State argues, the
recording’s probative value exceeded any risk of unfair
prejudice. We review a trial court’s evidentiary rulings for an
abuse of discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311
P.3d 538.
¶47 ‚The court may exclude relevant evidence if its probative
value is substantially outweighed by a danger of . . . unfair
prejudice . . . .‛ Utah R. Evid. 403. Alzaga argues that this rule, as
applied in State v. Maurer, requires that we reverse the trial
court’s ruling admitting the prison recording. 770 P.2d 981 (Utah
1989).
¶48 In Maurer, our supreme court reversed a murder
conviction based on the State’s introduction at trial of an
inflammatory letter written by the defendant to his victim’s
father. Id. at 987. The letter taunted the victim’s father, stating,
‚You might have prevented *the murder]. I hope you feel guilt
20120742-CA 17 2015 UT App 133State v. Alzaga
over it.‛ Id. at 982. The defendant wrote that ‚*i+t was a great
feeling to watch her die.‛ Id. The letter ‚display*ed+ his
callousness toward the killing‛ in ‚profane and vulgar
language‛ manifesting ‚complete insensitivity to this tragedy.‛
Id. at 983. Our supreme court held that even though portions of
the letter were relevant to the defendant’s guilt, the trial court
erred in admitting the entire letter because much of it contained
‚little or no relevance to the central issues.‛ Id. The court
concluded that any relevance the balance of the letter had was
‚clearly outweighed‛ by the ‚repulsiveness of *the defendant’s+
expressions toward the victim.‛ Id. (citation and internal
quotation marks omitted). The court noted the risk of ‚a
conviction based on a generalized assessment of character‛
when ‚the conversation include*d+ obscenities, ethnic slurs, and
otherwise coarse language.‛ Id. at 985 (emphasis, citation, and
internal quotation marks omitted). The court thus concluded that
admission of the entire letter was improper under rule 403.
¶49 Alzaga argues that here, as in Maurer, the prison
recording risked ‚provoking an emotional response from the
jury‛ and triggering its ‚instinct to punish,‛ making ‚a
conviction based on a generalized assessment of character
likely.‛ We disagree.
¶50 The recording in this case had substantial probative value.
Evidence is relevant ‚if it has any tendency to make a fact more
or less probable than it would be without the evidence.‛ Utah R.
Evid. 401(a). The short exchange between Alzaga and another
inmate, as recounted by Alzaga to his girlfriend, centered on the
identity of Hannah’s killer, a central question in the case. When
Alzaga told his girlfriend that another inmate said to him,
‚*Y+ou’re the one who killed my . . . girl,‛ the jury could have
concluded that the other inmate had accused him of killing
Hannah. And the jury could have interpreted Alzaga’s non-
denial as consistent with guilt.
20120742-CA 18 2015 UT App 133State v. Alzaga
¶51 More importantly, unlike in Maurer, the trial court did not
exceed its discretion in concluding that the danger of unfair
prejudice did not substantially outweigh the probative value of
the recording. True, Alzaga employed coarse language. But as
the trial court observed, the words he used have lost much of
their shock value in contemporary culture. These words alone
were unlikely to induce the jury to return ‚a conviction based on
a generalized assessment of character.‛ See Maurer, 770 P.2d at
985 (citation and internal quotation marks omitted). Moreover,
the core concern with the letter in Maurer was not so much the
letter’s language but what it revealed about the defendant’s
character: he wrote it to inflict additional emotional pain upon
the victim’s father, literally to add insult to injury. Alzaga’s
prison comments lack this quality. Thus, even if Alzaga’s choice
of words risked some unfair prejudice, we cannot conclude that
the trial court abused its discretion in ruling that the recording’s
probative value was not substantially outweighed by the danger
of unfair prejudice. See Utah R. Evid. 403.
IV. Winter Photographs of the Crime Scene
¶52 Alzaga contends that the trial court abused its discretion
by admitting three photographs of the crime scene taken in
February 2012, even though the crimes took place in May 2010.
He argues that the photographs should have been excluded as
irrelevant and unfairly prejudicial. He also argues that the
photographs lacked proper authentication.
¶53 The issue concerns whether leafy branches present in May
when the crimes occurred, but absent in the February
photographs, would have blocked an eyewitness’s view of the
crime. Mark testified that when he met the customer on the
Footbridge, he observed Alzaga walking across the Jordan River
Bridge. An eyewitness to the crimes testified that he could not
see the Jordan River Bridge from the crime scene, while the
detective recalled being able to see the Jordan River Bridge from
the crime scene when he investigated the crime. Despite the
20120742-CA 19 2015 UT App 133State v. Alzaga
foliage, the detective could see ‚at least a fourth or a third‛ of
the Jordan River Bridge’s span, and he could see the top and
bottom of the Jordan River Bridge. To demonstrate this, the
detective took photographs of the view of the Jordan River
Bridge from the Footbridge on the second day of trial, in
February.
¶54 Defense counsel objected to the admission of the
photographs on relevance grounds. She argued that the
photographs were irrelevant because the charged crimes took
place in May, whereas the photographs were taken in February.
They would present a misleading view of the crime scene, she
argued, because the February photographs did not show the
May foliage that purportedly obscured the view between the
Jordan River Bridge and the Footbridge.
¶55 The trial court overruled the objection. First, it concluded
that the photographs satisfied rule 402’s relevance requirement
because Mark and the detective each testified that the foliage
had not blocked their views. Second, the trial court concluded
that under rule 403 the probative value of the photographs,
while limited, was not substantially outweighed by any unfair
prejudice, because the detective testified, and the jury
understood, that he took the photographs in February 2012, not
in May 2010.
¶56 On appeal, Alzaga contends that the photographs
inaccurately depicted the view of the crime scene and ‚likely
misled the jury into crediting *Mark’s+ disputed testimony.‛
Because, ‚*a+s the judge noted, the probative value of the
evidence was extremely low‛ and, Alzaga claims, ‚its tendency
to mislead the jury was high,‛ Alzaga argues that the trial court
should have excluded the photographs under rules 402 and 403.
The State responds that the trial court acted within its discretion
in admitting the photographs because they were relevant and
because their probative value was not substantially outweighed
by the danger of unfair prejudice. We review a trial court’s
20120742-CA 20 2015 UT App 133State v. Alzaga
evidentiary rulings for an abuse of discretion. State v. Davis, 2013
UT App 228, ¶ 13, 311 P.3d 538.
¶57 Evidence is relevant if ‚it has any tendency to make a fact
more or less probable than it would be without the evidence.‛
Utah R. Evid. 401(a). Under rule 402, relevant evidence is
admissible unless barred by a constitution, statute, or other rule.
See id. R. 402. ‚Together these rules establish a very low bar that
deems evidence with even the slightest probative value relevant
and presumptively admissible.‛ Richardson, 2013 UT 50, ¶ 24
(citation and internal quotation marks omitted). Here, in light of
conflicting testimony regarding whether a clear sight line existed
between the Jordan River Bridge and the Footbridge, the trial
court acted within its discretion in ruling the photographs
relevant. The photographs had some ‚tendency to make a fact
more or less probable than it would be without the evidence‛
because they tended to demonstrate whether from his position
on the Footbridge Mark could have seen Alzaga on the Jordan
River Bridge. See Utah R. Evid. 401.
¶58 Rule 403 allows the trial court to exclude relevant
evidence if its ‚probative value is substantially outweighed by a
danger of . . . unfair prejudice.‛ Id. R. 403. Here, the photographs
posed little risk of unfair prejudice. Although the photographs
depicted the view of the Jordan River Bridge from the
Footbridge as it existed in February 2012, not in May 2010, the
detective explained this fact to the jury. Further, the photographs
show the reach of the tree limbs and suggest where the foliage
may have obscured the view. Thus, even if the photographs
posed some slight danger of unfair prejudice, we cannot agree
that the trial court exceeded its discretion in determining that
such danger did not substantially outweigh the probative value.
See Utah R. Evid. 403.
¶59 Alzaga next argues that the trial court erred in admitting
the photographs because they were not properly authenticated
under rule 901 of the Utah Rules of Evidence. The State
20120742-CA 21 2015 UT App 133State v. Alzaga
challenges the claim as unpreserved, and contends that in any
event witness testimony authenticated the photographs. We
agree with the State that the claim is unpreserved and reject it on
that ground. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51,
99 P.3d 801.
¶60 In any event, we detect no error in the admission of the
photographs. Evidence must be properly authenticated or
identified before it is admitted into evidence at trial:
To satisfy the requirement of authenticating or
identifying an item of evidence, the proponent
must produce evidence sufficient to support a
finding that the item is what the proponent claims
it is.
Utah R. Evid. 901(a). Rule 901’s authentication requirement
applies to photographs. State v. Horton, 848 P.2d 708, 714 (Utah
Ct. App. 1993). ‚*I+f a competent witness with personal
knowledge of the facts represented by a photograph testifies that
the photograph accurately reflects those facts, it is admissible.‛
State v. Purcell, 711 P.2d 243, 245 (Utah 1985) (citation omitted).
¶61 Here, the State produced evidence—the detective’s
testimony—sufficient to support a finding that the photographs
were of what the State claimed they were, namely, depictions of
the crime scene as it appeared in February 2012. The detective
did not testify, nor did the State claim, that the photographs
depicted the crime scene as it appeared in May of 2010.
Accordingly, the trial court acted within its discretion in
admitting the photographs under rule 901. See Utah R. Evid.
901(a).
V. Self-Defense Jury Instructions
¶62 Alzaga contends that the trial court instructed the jury
erroneously on self-defense relating to the aggravated assault
against Mark. The trial court instructed the jury that a person
20120742-CA 22 2015 UT App 133State v. Alzaga
may use force reasonably necessary to defend against another’s
imminent use of unlawful force. The court then explained that a
person may not lawfully use defensive force when ‚attempting
to commit, committing, or fleeing after the commission, or the
attempted commission of a felony.‛ The court also instructed the
jury that Alzaga did not have to prove self-defense but that if
any evidence created a reasonable doubt as to his guilt, the jury
should acquit:
Defendant does not have to prove he acted in self-
defense but if any evidence shown on the question
of self-defense creates a reasonable doubt in your
mind whether he is guilty of Aggravated
Assault . . . , you are to find him not guilty of that
count. If the evidence of self-defense creates a
reasonable doubt in your mind about his guilt, he
is entitled to an acquittal on [the Aggravated
Assault count].
Defense counsel approved this instruction.
¶63 The court orally supplemented the initial instruction by
telling the jury that ‚distribution of a controlled substance,
heroin, is a felony.‛ Defense counsel objected to the
supplemental instruction at sidebar but stated no legal basis for
the objection on the record. After closing arguments, and after
the jury began deliberations, counsel stated on the record a
rationale for her objection: the supplemental instruction allowed
the jury to find that Alzaga committed a felony offense—
distribution of heroin—without first finding the elements of that
offense beyond a reasonable doubt. The prosecutor countered
that the instruction was a correct statement of the law and that
Alzaga had testified to distributing heroin. The trial court
overruled the objection.
¶64 Alzaga challenges the jury instructions on four grounds.
First, he argues that the oral instruction violated his right to self-
20120742-CA 23 2015 UT App 133State v. Alzaga
defense under Article I, section 1 of the Utah Constitution. ‚All
men,‛ that provision declares, ‚have the inherent and
inalienable right to enjoy and defend their lives and
liberties . . . .‛ Utah Const. art. 1, § 1. Alzaga contends that the
court’s oral instruction abridged his right to defend his life in
two respects. First, it precluded self-defense even if the felony he
was committing at the time of the aggravated assault—
distribution of heroin—was nonviolent. Second, the instruction
drew no causal connection between the distribution of heroin
and the victim’s use of force. The State responds that Alzaga did
not preserve his constitutional claim, and in that any event, any
error was harmless.
¶65 Under Utah’s self-defense statute, a person is justified in
using lethal force ‚only if the person reasonably believes that
force is necessary to prevent death or serious bodily injury to the
person or a third person as a result of another person’s imminent
use of unlawful force, or to prevent the commission of a forcible
felony.‛ Utah Code Ann. § 76-2-402(1)(b) (LexisNexis Supp.
2010). But a person ‚is not justified‛ in using any defensive force
‚if the person is attempting to commit, committing, or fleeing
after the commission or attempted commission of a felony.‛ Id.
§ 76-2-402(2)(a)(ii).
¶66 Alzaga does not dispute that he was dealing heroin at the
time of the aggravated assault. Nor does he dispute that dealing
heroin qualifies as a felony. Rather, he argues that it is not a
forcible felony and that only attempting to commit, committing,
or fleeing after committing forcible felonies should bar a
defendant from invoking self-defense. He acknowledges that the
statutory text does not contain this limitation but argues that
failure to read ‚felony‛ as ‚forcible felony‛ produces absurd
results. Cf. In re Z.C., 2007 UT 54, ¶ 11, 165 P.3d 1206 (‚*A+ court
should not follow the literal language of a statute if its plain
meaning works an absurd result.‛ (citation and internal
quotation marks omitted)). ‚If the statute were read literally,‛
20120742-CA 24 2015 UT App 133State v. Alzaga
Alzaga reasons, ‚a man guilty of theft of utility services could
not defend himself in his own home.‛
¶67 We agree with the State that any possible error in the oral
jury instruction was harmless. See Utah R. Crim. P. 30(a). Any
possible error here was harmless because the jury found Alzaga
guilty of a forcible felony. A ‚forcible felony‛ includes ‚arson,
robbery, and burglary as defined in Title 76, Chapter 6 [of the
Utah Code], Offenses Against Property,‛ as well as ‚*a+ny other
felony offense which involves the use of force or violence against
a person so as to create a substantial danger of death or serious
bodily injury.‛ Utah Code Ann. § 76-2-402(4)(a), (b). Title 76,
Chapter 6 includes the crime of aggravated robbery. The jury
convicted Alzaga of aggravated robbery, and he does not argue
on appeal that the facts presented at trial were insufficient to
support that conviction. We have previously held that a
defendant who kills another while committing an aggravated
robbery cannot avail himself of the self-defense statute. State v.
Soules, 2012 UT App 238, ¶ 4, 286 P.3d 25.6 Thus, Alzaga’s first
self-defense claim fails under any applicable standard of review.
¶68 Second, Alzaga argues that instructing the jury that
distribution of heroin is a felony allowed the jury to find him
ineligible for self-defense without first requiring the jury to find
all of the elements of heroin distribution, an uncharged offense,
beyond a reasonable doubt. The trial court orally instructed the
jury, ‚I’m instructing you further that distribution of a controlled
substance, heroin, is a felony.‛ The State responds that Alzaga
did not timely preserve this claim and that he fails to assert any
6. Alzaga did not argue self-defense to the charge of aggravated
robbery. Indeed, ‚*t+he premise*+ of an accused being permitted
to raise the defense of self-defense to the charge of robbery
borders on the absurd.‛ Sutton v. State, 776 A.2d 47, 71 (Md. Ct.
Spec. App. 2001).
20120742-CA 25 2015 UT App 133State v. Alzaga
exception to the preservation rule on appeal. And even if Alzaga
timely preserved his claim, the State argues, any error was
harmless.
¶69 This claim fails for the same reason that Alzaga’s first
challenge to the instruction failed: any possible error was
harmless. ‚Any error, defect, irregularity or variance which does
not affect the substantial rights of a party shall be disregarded.‛
Utah R. Crim. P. 30(a). As explained above, because Alzaga
committed a forcible felony—aggravated robbery—he was ‚not
justified in using force‛ against Mark. See Utah Code Ann.
§ 76-2-402(2)(a). Accordingly, any error in instructing the jury
that distribution of heroin is a felony was harmless.
¶70 Third, Alzaga argues that the court’s written self-defense
instruction did not adequately convey the State’s burden to
disprove self-defense beyond a reasonable doubt. He argues that
counsel performed ineffectively for failing to correct this error.
The State responds that Alzaga has inadequately briefed this
claim and that he has therefore not satisfied his burden of
persuasion on his ineffective-assistance-of-counsel claim. ‚In
determining a claim of ineffective assistance of counsel raised for
the first time on appeal, we must decide whether [the] defendant
was deprived of the effective assistance of counsel as a matter of
law.‛ State v. Aguirre-Juarez, 2014 UT App 212, ¶ 6, 335 P.3d 896(alteration in original) (citation and internal quotation marks
omitted); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶71 To succeed on an ineffective-assistance-of-counsel claim,
an appellant must show that (1) ‚counsel’s performance was
deficient in that it ‘fell below an objective standard of
reasonableness’‛ and (2) ‚counsel’s performance was prejudicial
in that ‘there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.’‛ Menzies v. Galetka, 2006 UT 81, ¶ 87, 150 P.3d
480 (quoting Strickland v. Washington, 466 U.S. 668, 688, 694
(1984)). An appellant must rebut ‚a strong presumption that
20120742-CA 26 2015 UT App 133State v. Alzaga
counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.‛ Strickland, 466
U.S. at 689 (citation and internal quotation marks omitted).
Therefore, any ambiguities or deficiencies in the appellate record
‚simply will be construed in favor of a finding that counsel
performed effectively.‛ State v. Litherland, 2000 UT 76, ¶ 17, 12
P.3d 92. ‚*P+roof of ineffective assistance of counsel cannot be a
speculative matter but must be a demonstrable reality.‛ Allen v.
Friel, 2008 UT 56, ¶ 21, 194 P.3d 903 (alteration in original)
(citation and internal quotation marks omitted).
¶72 The trial court’s instruction explained that Alzaga had no
burden to prove self-defense and that the existence of reasonable
doubt concerning whether he acted in self-defense required
acquittal:
Defendant does not have to prove he acted in self-
defense but if any evidence shown on the question
of self-defense creates a reasonable doubt in your
mind whether he is guilty of Aggravated
Assault . . . , you are to find him not guilty of that
count. If the evidence of self-defense creates a
reasonable doubt in your mind about his guilt, he
is entitled to an acquittal on [the Aggravated
Assault count].
Alzaga complains on appeal that this instruction does not state
explicitly that the State bore the burden of disproving self-
defense beyond a reasonable doubt.
¶73 ‚*T+he failure of counsel to make motions or objections
which would be futile if raised does not constitute ineffective
assistance.‛ Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983)
(citation and internal quotation marks omitted). Here, a trial
20120742-CA 27 2015 UT App 133State v. Alzaga
objection would have been futile because the jury instructions
adequately instructed the jury on the burden of proof.
¶74 Our supreme court’s decision in State v. Knoll supports
this conclusion. 712 P.2d 211 (Utah 1985). In Knoll, the trial court
approved an instruction that did not state explicitly that the
State retained the burden of disproving self-defense beyond a
reasonable doubt:
[I]f upon the whole of the evidence, including that
produced by the defendant, . . . or otherwise
shown in evidence, the jury entertains a
reasonable doubt as to the defendant’s guilt of any
element necessary to constitute the charged
[offense] or one included therein, the defendant is
entitled to an acquittal.
Id. at 215. The court held that even though ‚the trial court did not
give an instruction that stated that the prosecution had to prove
the absence of self-defense beyond a reasonable doubt,‛ the
instruction nevertheless ‚constituted a correct statement of the
law.‛ Id. The instruction clearly conveyed that the jury should
consider any evidence of self-defense, that the burden of proof
remained with the State at all stages of the trial, and that ‚if the
jury entertained a reasonable doubt about whether defendant
acted in self-defense, it should acquit.‛ Id.
¶75 Here, as in Knoll, even though the instruction did not
expressly state that the prosecution had to prove the absence of
self-defense beyond a reasonable doubt, it made clear that the
jury must consider the defense, that the burden of proof
remained with the State, and that Alzaga did ‚not have to prove
he acted in self-defense.‛ And in stating that ‚if any evidence
shown on the question of self-defense creates a reasonable doubt
in your mind‛ Alzaga was ‚entitled to an acquittal,‛ the
instruction correctly conveyed that the State retained the burden
of proof of disproving self-defense beyond a reasonable doubt.
20120742-CA 28 2015 UT App 133State v. Alzaga
Accordingly, because the instruction correctly allocated the
burden of proof under controlling precedent, counsel did not
perform deficiently in not objecting to it.
¶76 Finally, Alzaga argues that the verdict form did not
identify the State’s burden of proving aggravated assault, and
disproving self-defense, beyond a reasonable doubt. Because this
claim is unpreserved, he argues that the trial court plainly erred
and that his trial counsel ineffectively failed to correct this error.
The State responds that Alzaga has inadequately briefed his
claim and thus has not met his burden of persuasion on appeal.
¶77 ‚We review the jury instructions, including the jury
verdict forms, for correctness.‛ State v. Johnson, 2014 UT App
161, ¶ 11, 330 P.3d 743, cert. granted, 343 P.3d 708 (Utah 2015); cf.
State v. Houskeeper, 2002 UT 118, ¶ 11, 62 P.3d 444. To
demonstrate plain error, a defendant must establish that (1) an
error exists, (2) the error should have been obvious to the trial
court, and (3) the error was harmful; that is, ‚absent the error,
there is a reasonable likelihood of a more favorable outcome for
the appellant, or phrased differently, our confidence in the
verdict is undermined.‛ State v. Dunn, 850 P.2d 1201, 1208–09
(Utah 1993). ‚In determining a claim of ineffective assistance of
counsel raised for the first time on appeal, we must decide
whether [the] defendant was deprived of the effective assistance
of counsel as a matter of law.‛ State v. Aguirre-Juarez, 2014 UT
App 212, ¶ 6, 335 P.3d 896 (alteration in original) (citation and
internal quotation marks omitted); see also State v. Clark, 2004 UT
25, ¶ 6, 89 P.3d 162.
¶78 ‚*F+ailure to adequately instruct the jury ‘concerning the
burden of proof as to self-defense,’ is reversible error and
requires a new trial.‛ State v. Garcia, 2001 UT App 19, ¶ 18, 18
P.3d 1123 (quoting State v. Torres, 619 P.2d 694, 696 (Utah 1980)).
‚The duty to properly instruct the jury applies to the verdict
form.‛ State v. Campos, 2013 UT App 213, ¶ 42, 309 P.3d 1160.
‚*W+hen reviewing an alleged error in the jury instructions, ‘we
20120742-CA 29 2015 UT App 133State v. Alzaga
look at the jury instructions in their entirety.’‛ Id. ¶ 64 (quoting
State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892). ‚*I+f taken as a
whole the[] [jury instructions] fairly instruct the jury on the law
applicable to the case, the fact that one of the instructions,
standing alone, is not as accurate as it might have been is not
reversible error.‛ Id. (first alteration in original) (citation and
internal quotation marks omitted).
¶79 Here, the verdict form read in isolation did not explain
the State’s burden of disproving self-defense beyond a
reasonable doubt:
We, the jury . . . unanimously find the
defendant . . . [a]s to Count 3, AGGRAVATED
ASSAULT:
__ NOT GUILTY
__ GUILTY
If you find the defendant Guilty, by finding he
committed the assault . . . answer these questions:
Did the State prove beyond a reasonable
doubt that defendant intentionally inflicted
serious bodily injury on [Mark]? If YES, stop and
sign the verdict form. If NO, answer the next
question.
__ YES
__ NO
Did the State prove beyond a reasonable
doubt that defendant assaulted [Mark] and used a
dangerous weapon:
__ YES
__ NO
20120742-CA 30 2015 UT App 133State v. Alzaga
¶80 Alzaga cites State v. Campos in support of his contention
that the trial court plainly erred in approving the instruction and
that counsel ineffectively failed to correct the error. 2013 UT App
213, 309 P.3d 1160. In Campos, we held that the verdict form at
issue affirmatively, but erroneously, instructed the jury on the
burden of proof for self-defense. Id. ¶ 43. The instructions stated
that if the jury found Campos guilty of attempted murder with
resulting injury, they should then decide whether ‚beyond a
reasonable doubt, . . . the defense of Imperfect Self Defense applies
in this case.‛ Id. ¶ 39. We explained that ‚*t+he fundamental
problem with the verdict form‛ was ‚that it require[d] an
affirmative defense to be established beyond a reasonable
doubt.‛ Id. ¶ 41. But under Utah law, ‚*a+ defendant need only
produce enough evidence to raise a reasonable basis for the
affirmative defense.‛ Id. ‚Once that initial showing is made, the
burden shifts to the [S]tate to prove to the jury, beyond a
reasonable doubt, that the defense lacks merit.‛ Id. (citation and
internal quotation marks omitted).
¶81 Here, unlike in Campos, the verdict form did not convey
that an affirmative defense requires the defendant to prove self-
defense beyond a reasonable doubt. Indeed, the verdict form did
not address the burden of proof with respect to self-defense at
all. But, as explained above, the jury instructions elsewhere
adequately conveyed the State’s burden with respect to Alzaga’s
claim of self-defense. The verdict form instructed the jury to
decide ‚yes‛ or ‚no‛ only as to whether ‚the State proved
beyond a reasonable doubt‛ that Alzaga committed aggravated
assault with a dangerous weapon. That statement incorporates
the State’s burden of proof pertaining to self-defense because the
jury could have found Alzaga guilty beyond a reasonable doubt
only after concluding that his evidence of self-defense did not
create a reasonable doubt as to this guilt.
¶82 Accordingly, the trial court did not plainly err in
approving the verdict form, nor did counsel perform
ineffectively by not objecting to it.
20120742-CA 31 2015 UT App 133State v. Alzaga
VI. Mark’s Eyewitness Identification
¶83 Alzaga next contends that counsel ‚ineffectively failed to
present key expert testimony which would have established
reasonable doubt of . . . Alzaga’s involvement.‛ Alzaga seeks a
new trial ‚so that he may present this testimony.‛ The State
responds that Alzaga’s claim fails because ‚by the time of trial,
counsel had reasonably opted to concede that [Alzaga] was at
the crime scene and argue[d] that he was the victim, rather than
that he had been misidentified.‛ ‚In determining a claim of
ineffective assistance of counsel raised for the first time on
appeal, we must decide whether [the] defendant was deprived
of the effective assistance of counsel as a matter of law.‛ State v.
Aguirre-Juarez, 2014 UT App 212, ¶ 6, 335 P.3d 896 (alteration in
original) (citation and internal quotation marks omitted); see also
State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶84 During the investigation, Mark described Alzaga to police
officers as ‚5-foot 11, 130–140 pounds, skinny, tall, [with] spikey
*sic+ hair . . . *that+ looked like a crown.‛ A few days after the
attacks, Mark examined a six-person photo array prepared by
police with ‚as many consistencies . . . with the suspect‛ as
possible. Mark identified Alzaga from the photo lineup, but only
after having taken a narcotic painkiller and feeling ‚a little bit
loopy‛ and after having looked at the photos for ‚quite some
time‛ and ‚certainly *for+ longer than most take to look at a
lineup.‛
¶85 At trial, defense counsel challenged the identification as
‚unreliable and unduly suggestive,‛ but the trial court denied
the motion. Counsel did not request an instruction advising the
jury of the factors relevant in evaluating eyewitness
identifications, nor did she challenge the identification with
expert testimony or cross-examination.
¶86 ‚‘*C+ounsel’s decision to call or not to call an expert
witness is a matter of trial strategy, which will not be questioned
20120742-CA 32 2015 UT App 133State v. Alzaga
and viewed as ineffectiveness unless there is no reasonable basis
for that decision.’‛ State v. Houston, 2015 UT 40, ¶ 80 (alteration
in original) (quoting State v. Tyler, 850 P.2d 1250, 1256 (Utah
1993)). ‚Thus, to demonstrate that his counsel was ineffective in
retaining and presenting expert witnesses, [a defendant] must
‘rebut the strong presumption that under the circumstances,
*counsel’s] action might be considered sound trial strategy.’‛ Id.(second alteration in original) (quoting Taylor v. State, 2007 UT
12, ¶ 73, 156 P.3d 739). ‚This is because there are ‘countless ways
to provide effective assistance in any given case,’ and ‘[e]ven the
best criminal defense attorneys would not defend a particular
client in the same way.’‛ Id. (alteration in original) (quoting
Strickland v. Washington, 466 U.S. 668, 689 (1984)).
¶87 On appeal, Alzaga argues that counsel’s failure to call an
expert witness to challenge Mark’s eyewitness identification
tracks the facts in State v. Maestas, where our supreme court held
that defense counsel ineffectively failed to challenge eyewitness
identifications. 1999 UT 32, ¶ 31, 984 P.2d 376. There, shortly
after the crime was committed by a man wearing a mask and a
cap covering his head, witnesses identified the defendant, who
was handcuffed and surrounded by police cars with their lights
shining on him. Id. ¶¶ 2, 23. The defendant’s sole defense ‚was
the unreliability of the eyewitness identifications.‛ Id. ¶ 25. The
court noted that all of the witnesses’ ‚identifications were
tainted by a highly-suggestive show-up.‛ Id. ¶ 29. The court held
that ‚unless obvious tactical reasons exist to forego an
instruction, trial counsel . . . should request a cautionary
eyewitness instruction.‛ Id. ¶ 28.
¶88 The present case bears little resemblance to Maestas. Here,
obvious tactical considerations prompted counsel’s decision to
forego a misidentification defense. First, multiple witnesses, not
just Mark, placed Alzaga around and at the scene of the crime. In
addition, police found Alzaga’s toy gun, bearing his fingerprints,
in brush adjacent to the Footbridge where eyewitnesses saw him
discard it. This evidence supports counsel’s reasonable strategic
20120742-CA 33 2015 UT App 133State v. Alzaga
choice to abandon any defense that Alzaga was not present at
the scene.
¶89 Most important, at trial Alzaga acknowledged on the
stand that he had been present at the crime scene. 7 He admitted
to stabbing Mark but maintained that he acted in self-defense.
This defense was incompatible with, and at least as reasonable
as, a misidentification defense. ‚*C+ounsel’s decision to choose
one of two alternative, reasonable trial strategies is not grounds
for an ineffective assistance of counsel ruling.‛ State v. Lucero,
2014 UT 15, ¶ 53, 328 P.3d 841. We thus cannot conclude that
Alzaga’s counsel performed deficiently in not calling an
eyewitness expert. Accordingly, Alzaga has not demonstrated
ineffective assistance of counsel.
VII. New Trial Motion
¶90 Finally, Alzaga contends that the trial court abused its
discretion in denying his motion for a new trial. He argues that
he ‚must receive a new trial based on newly discovered
exculpatory evidence, [specifically, his] cell phone, which had
text messages advertising a sale of heroin on the day of the
murder.‛ He argues that ‚the cell phone, and its contents,
rendered a different result probable.‛ The State responds that
the trial court acted within its discretion because Alzaga ‚has not
adequately challenged the trial court’s findings that he did not
exercise reasonable diligence in trying to produce the evidence,
that the evidence was merely cumulative, and that the evidence
would not have altered the outcome.‛ ‚When reviewing a trial
7. The decision whether to testify lies exclusively with the
accused. See Menzies v. State, 2014 UT 40, ¶ 118 n.119, 344 P.3d
581; see also Utah R. Prof’l Conduct 1.2(a) (‚In a criminal case, the
lawyer shall abide by the client’s decision, after consultation
with the lawyer, as to . . . whether the client will testify.‛).
20120742-CA 34 2015 UT App 133State v. Alzaga
court’s denial of a motion for a new trial, we will not reverse
absent a clear abuse of discretion by the trial court.‛ State v.
Pinder, 2005 UT 15, ¶ 20, 114 P.3d 551 (citation and internal
quotation marks omitted). We review the legal standards
applied by the trial court for correctness and its factual findings
for clear error. Id.
¶91 The jury convicted Alzaga of aggravated robbery,
aggravated assault for stabbing Mark, and murder for killing
Hannah. Alzaga filed a timely motion for a new trial, arguing
that newly discovered exculpatory evidence—text messages on
his cell phone—corroborated his testimony that he distributed
heroin on the day of the crimes. The text messages suggested
that Alzaga was selling drugs around the time of the crimes. One
message, sent to ten different people, offered to sell heroin.
Other text messages contained offers to buy and sell cocaine,
‚pills,‛ and ‚hash.‛
¶92 Alzaga told his defense counsel about the text messages
approximately a month before the trial. Alzaga told counsel he
believed that his girlfriend had the cell phone and that she
would produce it. Alzaga’s girlfriend did not produce the cell
phone at that time. About two weeks before trial, counsel again
met with Alzaga, who said that his girlfriend would deliver the
phone in a couple of days; again, she failed to do so. The State
informed Alzaga’s counsel that Alzaga’s girlfriend went to
California to avoid being subpoenaed for trial. Counsel did not
request the trial court’s assistance in procuring the cell phone,
nor did she request a continuance.
¶93 The day after Alzaga was convicted on all charges, his
girlfriend dropped the cell phone off with counsel. In his motion
for a new trial, Alzaga argued that because he ‚had no ability to
force his girlfriend to produce the phone,‛ the trial court
‚abused its discretion in refusing to grant a new trial.‛ The State
responded that the text messages were not newly discovered. In
denying Alzaga’s motion for a new trial, the court found that (1)
20120742-CA 35 2015 UT App 133State v. Alzaga
with reasonable diligence, Alzaga could have discovered and
produced the text messages at trial; (2) the text messages were
cumulative of Alzaga’s own testimony and other corroborative
evidence that he sold heroin; and (3) admission of the text
messages at trial would not have made a different result
probable.
¶94 A trial court may grant a new trial motion based on newly
discovered evidence. See e.g., State v. Martin, 2002 UT 34, ¶ 45, 44
P.3d 805; see also Utah R. Crim. P. 24(a). Newly discovered
evidence warrants a new trial only if it (1) ‚could not with
reasonable diligence have been discovered and produced at the
trial,‛ (2) is not ‚merely cumulative,‛ and (3) would ‚render a
different result probable on the retrial of the case.‛ Pinder, 2005
UT 15, ¶ 66 (citation and internal quotation marks omitted). In
assessing a motion for a new trial, we review the trial court’s
factual findings for clear error. State v. Billingsley, 2013 UT 17,
¶ 9, 311 P.3d 995. And in determining whether newly discovered
evidence warrants granting a new trial, we ‚afford trial judges a
wide range of discretion.‛ Pinder, 2005 UT 15, ¶ 66 (citation and
internal quotation marks omitted).
¶95 Here, Alzaga fails to demonstrate that the trial court’s
factual findings were clearly erroneous. To begin with, Alzaga
does not marshal the evidence supporting the trial court’s denial
of his motion for a new trial. A ‚party who fails to identify and
deal with supportive evidence will never persuade an appellate
court to reverse under the deferential standard of review.‛ State
v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645. In any event, the record
supports each of the trial court’s factual findings. Accordingly,
Alzaga fails, as a matter of law, to satisfy his burden of
persuasion.
¶96 First, the record supports the trial court’s finding that
Alzaga could have discovered and produced the text messages
at trial. As the trial court observed, Alzaga knew about the cell
phone, its contents, and its whereabouts for nearly two years
20120742-CA 36 2015 UT App 133State v. Alzaga
before trial, but he failed to notify counsel about the phone until
mere weeks before trial. Thus, even though Alzaga attempted to
retrieve the phone in the weeks preceding trial, he failed to
exercise reasonable diligence under the circumstances when he
did not attempt to retrieve it, or tell his attorney about it, earlier.
Furthermore, the clear weight of the evidence does not
contravene the trial court’s finding that counsel did not exercise
reasonable diligence in retrieving the cell phone. Though aware
of the cell phone before trial, counsel nevertheless did not
request a continuance or seek to enlist the court’s assistance in
procuring the cell phone. Accordingly, because the record
supports the trial court’s factual findings, it did not clearly err by
finding that the defense did not exercise reasonable diligence in
producing the cell phone at trial.
¶97 Second, the record supports the trial court’s finding that
the text messages were cumulative of Alzaga’s own testimony
and other evidence that he sold heroin. Alzaga testified that he
sold heroin, and other evidence corroborated that testimony. For
instance, text messages recovered from Alzaga’s girlfriend’s
phone corroborated his testimony that he sold heroin in the days
preceding the crimes. Accordingly, the trial court did not clearly
err in finding that the text messages on Alzaga’s phone were
cumulative of evidence already presented to the jury.
¶98 Finally, the record supports the trial court’s finding that
retrying the case with the text messages in evidence would not
make a different result probable. Alzaga’s testimony—and the
text messages on Alzaga’s girlfriend’s phone—supported his
contention that he dealt heroin. But no party disputed that
Alzaga dealt heroin. The case centered on who committed the
crimes and under what circumstances, not whether one or more
of the principals dealt drugs. Alzaga’s text messages provide no
evidence about who committed the crimes. Furthermore, given
the abundance of other evidence tending to prove Alzaga’s guilt,
the text messages would not have made a different result more
probable. Accordingly, the trial court did not clearly err by
20120742-CA 37 2015 UT App 133State v. Alzaga
finding that the text messages would not have made a different
result probable.
¶99 Because Alzaga has failed to show that the trial court
clearly erred in its factual findings, he cannot demonstrate that
the trial court exceeded its wide discretion by denying his
motion for a new trial.
CONCLUSION
¶100 In sum, Alzaga has failed to carry the burden of
persuasion on the claims he has raised on appeal. We therefore
affirm his convictions.
20120742-CA 38 2015 UT App 133