State v. Dominguez, 447 P.3d 1224

Background

Four men (including Dominguez) and several friends met the victim at a club, then went to the victim’s apartment where a fight broke out after the victim allegedly harassed one of the women.
The victim fled to his bedroom and locked the door; the four defendants broke down the bedroom door and beat the victim; one woman (Witness) later testified the women were not in the bedroom when the door was breached.
All four defendants were charged with aggravated burglary (and related assault/robbery counts for some); the defense claimed they entered to protect the two women (defense of others).
At trial, defense counsel used a paraphrase of Witness’s police statement to impeach her; Dominguez later claimed the actual recording differed and sought a Rule 23B remand to supplement the record.
A police officer inadvertently referred to identifying Dominguez by a ‘‘mug shot’’ despite a motion in limine excluding his criminal record; the trial court denied a mistrial, and Dominguez was later impeached with his felony convictions after he testified.
The jury convicted all four of aggravated burglary; Dominguez appealed alleging ineffective assistance (jury instructions and impeachment), error in denying mistrial, and sought Rule 23B remand.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counsel was ineffective for not requesting an instruction explicitly linking defense-of-others to aggravated burglary	Dominguez: counsel should have requested an instruction or placement tying the affirmative defense to the burglary charge to avoid jury confusion	State: instructions read together and counsel’s approval and closing arguments made applicability clear	No ineffective assistance; instructions read as a whole adequately informed jury that defense-of-others applied to aggravated burglary
Whether counsel was ineffective for paraphrasing Witness’s police statement and failing to present the recording; whether Rule 23B remand is warranted	Dominguez: the recorded statement materially differed and could have undermined Witness’s credibility; remand to add recording could show prejudice	State: variations are subtle and ambiguous; paraphrase was not likely to affect outcome	Denied Rule 23B remand; distinctions too subtle and record insufficient to show prejudice
Whether the court erred in denying mistrial after officer’s reference to a ‘‘mug shot’’	Dominguez: reference unfairly prejudiced jury by implying criminal history	State: remark was inadvertent, fleeting, and innocuous; later impeachment admitted defendant’s convictions anyway	No abuse of discretion; comment was harmless and any prejudice was negated when convictions were later admitted for impeachment
Cumulative error claim	Dominguez: combined errors require reversal	State: no significant individual errors to cumulate	Rejected; no individual errors of consequence identified

Key Cases Cited

State v. Painter, 339 P.3d 107 (Utah Ct. App. 2014) (jury instructions may be read separately and together; burden to disprove affirmative defense need not be in elements instruction)
State v. Lee, 318 P.3d 1164 (Utah Ct. App. 2014) (affirmative-defense instruction assessed in context with other instructions and counsel’s arguments)
State v. Laine, 618 P.2d 33 (Utah 1980) (elements need not be contained in a single instruction)
State v. Lambdin, 424 P.3d 117 (Utah 2017) (counsel argument can clarify applicability of an instruction)
State v. Griffin, 441 P.3d 1166 (Utah 2015) (Rule 23B remand requires nonspeculative proffer that could show ineffective assistance)
State v. Allen, 108 P.3d 730 (Utah 2005) (mistrial unnecessary for an inadvertent, fleeting statement)
State v. Wach, 24 P.3d 948 (Utah 2001) (standard for reviewing denial of mistrial)
State v. Butterfield, 27 P.3d 1133 (Utah 2001) (fleeting reference to jail/photo insufficient for mistrial)
State v. Cruz, 387 P.3d 618 (Utah Ct. App. 2016) (testimonial audio not allowed in jury deliberation room)
State v. Jones, 345 P.3d 1195 (Utah 2015) (cumulative error requires identifiable harmful errors)