State v. Bermejo, 476 P.3d 148

Background

Dec. 28, 2016: a drive-by shooting targeted a SUV; a nine-year-old was shot in the head and survived. Witnesses recorded the BMW license plate later linked to Oscar Bermejo.
Cell-site data placed Bermejo’s phone near where the abandoned BMW was found; police arrested Bermejo the next day. He denied being in Salt Lake and said his car had been taken by other gang members.
The State charged Bermejo with multiple felonies, including aggravated assault and felony discharge of a firearm; it presented gang-membership evidence and an expert on gang culture.
Bermejo testified that senior Norteños took his car and returned it after a shooting; he admitted gang membership but denied participating in the shooting.
The jury was allowed to view a recorded police interview of Bermejo during deliberations; the jury convicted on all counts. Bermejo appealed asserting: ineffective assistance of counsel (various failures), error under Rule 17 in allowing the interview video in deliberations, and denial of a mistrial for prosecutor misconduct.

Issues

Issue	State's Argument	Bermejo's Argument	Held
1) IAC for failing to object to gang and jail-incident evidence (Rule 403)	Evidence was relevant to motive, identity, and context of gang rivalry; probative value outweighed prejudice.	Counsel should have limited or excluded cumulative, unfairly prejudicial gang and jail evidence; failure was deficient and prejudicial.	No IAC: much gang evidence was admissible and cumulative admissible evidence and other circumstantial ties made prejudice unlikely.
2) IAC for failing to object to Expert’s testimony recounting gang-history incidents (Rules 702, 703)	Expert testimony was permissible to give context; excluding it likely would have led to more fact witnesses.	Expert impermissibly relayed hearsay and facts; counsel should have objected to prevent admission of State’s motive theory.	No IAC: counsel could reasonably decline to object as a strategic choice because evidence likely would be presented anyway and helped the defense narrative.
3) IAC for failing to object to accomplice-liability jury instructions	Instructions, read together with elements instructions, properly required mens rea for accomplice liability.	Instructions failed to clearly require that defendant have the mens rea for the underlying offense.	No IAC: instructions correctly stated the law (including a verbatim statutory instruction) and adequately conveyed mens rea.
4) Rule 17: allowing police-interview video to go back to jury during deliberations	Defendant’s recorded statements are party admissions/non-testimonial and may go to the jury room.	Video was testimonial like recorded witness testimony (Cruz) and should not have gone to jury.	No error: defendant’s custodial interview was non-testimonial admission; Cruz (recorded witness testimony) is distinguishable.
5) Denial of mistrial for prosecutor’s insinuations about missing witness (Girlfriend) and IAC for not objecting in closing	Statements were fleeting/speculative; court offered curative options; objections/mistrial not warranted.	Prosecutor improperly suggested Bermejo influenced witness absence and trial counsel failed to protect the record; mistrial or objecting on appeal is required.	No abuse of discretion and no IAC: remarks were fleeting/innocuous in context; counsel reasonably declined to highlight issue or pursue futile motions.

Key Cases Cited

Strickland v. Washington, 466 U.S. 668 (establishes two-prong ineffective assistance standard)
State v. Cruz, 387 P.3d 618 (Utah Ct. App.) (distinguishes recorded testimonial witness statements from other recordings)
State v. Eyre, 452 P.3d 1197 (Utah Ct. App.) (discusses Rule 17 and jury access to exhibits)
Carter v. People, 398 P.3d 124 (Colo.) (persuasive reasoning that defendant’s recorded admissions are non-testimonial and may go to jury)
State v. Jeffs, 243 P.3d 1250 (Utah) (accomplice-liability mens rea principles)
State v. Butterfield, 27 P.3d 1133 (Utah) (standards for granting a mistrial)