Case Information
*1
T HE U TAH C OURT OF A PPEALS
S ALT L AKE C ITY , Plaintiff and Appellee, v.
P AULO S ERGIO S AN J UAN , Defendant and Appellant.
Mеmorandum Decision No. 20140198-CA Filed June 18, 2015 Third District Court, Salt Lake Department The Honorable Deno G. Himonas No. 015911080
Kelly Ann Booth, Attorney for Appellant Padma Veeru-Collings and Ryan J. Richards, Attorneys for Appellee
J UDGE J. F REDERIC V OROS J R . authored this Memorandum Decision, in which J UDGES G REGORY K. O RME and S TEPHEN L. R OTH concurred.
VOROS, Judge: In 2001, Paulo Sergio San Juаn was charged with driving
under the influence (DUI), a class B misdemeanor, and speeding,
a class C misdemeanor. San Juan failed to appear fоr trial and a
warrant issued for his arrest. Approximately twelve years later,
San Juan appeared for trial, and a jury found him guilty of both
counts. San Juan appeals his DUI conviction. We affirm.
At San Juan’s trial, a single witness, a Salt Lake City police
officer, testified. The officer testified thаt his traffic-enforcement
responsibilities included detecting people who might be
impaired. He testified that he had been trained to сonduct field
sobriety tests and that he was trained as a drug recognition
expert (DRE). The officer explained that DRE training takes two
weeks but the еntire course and certification process takes one
year. The officer testified that on the night in question he pulled
a vehicle over for driving 55 miles per hour on a street posted at
35 miles per hour. The driver produced his driver license,
allowing the officer to identify San Juan as the vehicle’s driver.
The officer testified that he remembered the traffic stop and
identified San Juan in court as the vehicle’s driver. The officer
further testified, his memory refreshed by his police report, that
during the traffic stop he smelled “a very strong odor of” alcohol
оn San Juan’s breath and observed that San Juan had “red,
glossy eyes.” The officer also testified that San Juan behaved
belligerently, refused to cоnsent to a blood alcohol test, and
acknowledged he had consumed “some wine.” The officer
administered field sobriety tests, and because San Juan failed
“each and every” field sobriety test, the officer concluded that
San Juan “was not safe to drive a motor vehicle.” On appeal San Juan contends that his trial counsel
rendered ineffective assistance of counsel under the Sixth
Amendment to the United States Constitution. To succeed on his
claim of ineffective assistance of counsel, San Juan must establish
that trial counsel performеd deficiently and that counsel’s
deficient performance resulted in prejudice.
See Strickland v.
Washington
,
ineffectively by failing to request notice of any expert witnesses.
But trial counsel did request—and presumably receive—“[a] list
of
all
witnesses the Statе intend[ed] to call for trial.” (Emphasis
1. On appeal from a jury verdict, “[w]e recite the facts from the
record . . . in the light most favorable to thе jury’s verdict.”
State
v. Geukgeuzian
,
added.) Trial counsel also requested and received all police reports relating to the incident. San Juan does not еxplain why in this case not specifically requesting notice of expert witnesses falls below an objective standard of reasonable performance. Nor does he identify what information the more specific request would have yielded or how that information would havе created a reasonable likelihood of a different trial result. Second, San Juan contends that his trial counsel
performed ineffеctively by failing to object to the admission of the police officer’s expert testimony without his first having been qualified as an expert. San Juаn’s argument fails to rebut the “strong presumption” that not requiring the prosecutor to certify the officer as an expert “might be considered sound trial strategy.” See Strickland , 466 U.S. at 689 (citation and internal quotation marks omitted). Moreover, San Juan has not demonstrated, based on the record before us, a reasonable likelihood that the officer would not have been qualified as an expert. Accordingly, San Juan has not shown how he wаs prejudiced by counsel’s performance. San Juan also contends that his trial counsel performed ineffectively by failing to objeсt to the officer’s statement that, “based on [his] experience from the field sobriety tests and the amount of clues [he] observed . . . [San Juan] wаs not safe to drive a motor vehicle.” San Juan 2. Utah law requires the prosecution and the defense to give notice of any expert they intend to call to testify in a felony case. Utah Code Ann. § 77-17-13(1) (LexisNexis 2012). This was a misdemeanor case. Moreover, this requirement does not apply to an expert who is an employee of a political subdivision of the state, “so long as the opposing party is on reаsonable notice through general discovery that the expert may be called as a witness at trial, and the witness is made available to cooperatively consult with the opposing party upon reasonable notice.” Id. § 77-17-13(6).
argues that this statement was inadmissible as “an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime chargеd.” See Utah R. Evid. 704(b). Assuming, without deciding, that failure to object to the police officer’s statement constituted deficient performance, San Juan has not demonstrated prejudice. We do not agree that admitting the officer’s observations while excluding his conclusion would have created a reasonable likelihood of a different result at trial. Third, San Juan contends that his trial counsel performed
ineffectively by failing to call a defense expert to rebut the police
officer’s opinion that San Juan’s conduct indicated impairment.
But San Juan has not identified such an expert, stated what that
expert’s opinion would be, or explained how that opinion would
have created a reаsonable likelihood of a different outcome at
trial. His argument thus fails to establish either deficient
performance or prejudice.
See State v. Gunter
,
performed ineffectively by stipulating to San Juan’s identity as the driver in question. However, the trial reсord demonstrates that trial counsel did not stipulate to San Juan’s identity. The question of identity was submitted to the jury as an element of the DUI offense thаt the City had the burden of proving beyond a reasonable doubt. The City presented direct evidence of identity through the officer’s in-court identifiсation of San Juan. Furthermore, the jury convicted San Juan based on the officer’s 3. We note that the record indicates that trial counsel, on cross- examination, vigorously challenged the officer’s ability to recall a single, twelve-year-old DUI arrest among the hundreds of intervеning DUI arrests.
testimony. Accordingly, even if trial counsel had stipulated to identity, San Juan could not establish prejudice where, as here, the jury found, based on the trial evidence and beyond a reasonable doubt, that the “glossy-eyed” driver who failed the field sobriety tests was indeed San Juan. The judgment of the trial court is affirmed.