State v. Salazar
2022 UT App 38
| Utah Ct. App. | 2022Background
- In October 2012 Shannon alleged she was sexually assaulted in a storage closet at a hookah lounge by Kevin Salazar and the lounge owner; a hospital exam showed severe genital/rectal injuries but the nurse testified such injuries could be consistent with consensual sex.
- Shannon delayed cooperation; police interviewed parties in 2015 and charges were filed in 2019. At trial Shannon was the State’s key witness but repeatedly testified she could not remember many details and required documents to refresh her memory.
- Salazar gave a recorded police interview containing both potentially exculpatory and inculpatory statements; on counsel’s advice he did not testify at trial. The jury convicted both defendants of aggravated sexual assault.
- After conviction Salazar, through new counsel, moved for a new trial alleging Trial Counsel was ineffective for failing to obtain/use Voxer voice messages (from Jan 2013) showing post‑incident contact between Shannon and Salazar and for other omissions; he submitted screenshots and a partial transcription.
- The trial court denied the new‑trial motion, finding counsel’s strategic choices reasonable (including avoiding potentially victim‑blaming witnesses and concern about a possible rape‑myth expert) and concluding Salazar failed to show prejudice from not using the Voxer messages.
- The Utah Court of Appeals reversed: it held trial counsel’s failure to introduce the Voxer messages was objectively unreasonable given the centrality of Shannon’s credibility, and that omission was prejudicial because the conviction rested largely on her testimony; the court remanded for a new trial.
Issues
| Issue | Salazar's Argument | State's Argument | Held |
|---|---|---|---|
| Whether trial counsel rendered ineffective assistance by not using Voxer voice messages to impeach Shannon | Voxer messages showed extensive post‑incident contact that directly contradicted Shannon’s trial and preliminary‑hearing statements that she had no further contact; counsel’s failure was unreasonable and prejudicial | Counsel reasonably omitted them given potential authentication issues and the risk the State would call a rape‑myth expert; even if admitted, messages would at best confirm some of Shannon’s testimony and not change outcome | Reversed: counsel’s omission was objectively unreasonable and prejudiced Salazar; new trial ordered |
| Whether authentication/foundation or technical barriers justified counsel’s omission | Messages were downloadable from an iPod given to counsel and could be authenticated (voice identification by witnesses or Shannon) | Authentication and foundation concerns meant counsel could reasonably decline to use them | Rejected: authentication was feasible and not a sufficient reason to omit clearly impeaching evidence |
| Whether threat of a rape‑myth expert justified not using the messages | N/A (Salazar stressed messages for impeachment only) | Presenting messages could invite a rape‑myth expert to explain counterintuitive post‑assault behavior, harming defense | Rejected: threat was overblown; messages could be limited to impeachment, and expert testimony would not negate impeachment value |
| Whether admission of Shannon’s refreshed testimony or denial of directed verdict requires reversal | Shannon had no independent memory for much of the event; denial of directed verdict/new‑trial was error because her testimony was essentially reconstructed from documents | State argued refreshment under Utah Rule of Evidence 612 was proper and corroborating testimony supported the verdict | Court did not adjudicate directed‑verdict claim as dispositive because new trial granted on ineffective‑assistance ground |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance standard: deficient performance and prejudice)
- Gregg v. State, 279 P.3d 396 (Utah 2012) (reversal for counsel’s failure to investigate/present impeachment evidence when case hinges on victim credibility)
- State v. Larrabee, 321 P.3d 1136 (Utah 2013) (prejudice found where little physical evidence and case turned on victim credibility)
- Archuleta v. Galetka, 267 P.3d 232 (Utah 2011) (reasonable‑probability prejudice standard under Strickland)
- State v. Scott, 462 P.3d 350 (Utah 2020) (assess counsel’s reasonableness under the circumstances at the time of conduct)
- State v. Torres‑Orellana, 493 P.3d 711 (Utah Ct. App. 2021) (discussed review standard and compared evidentiary weight of injuries)