STATE of Utah, Plaintiff and Appellee, v. Cristian A. ALZAGA, Defendant and Appellant.
No. 20120742-CA.
Court of Appeals of Utah.
May 29, 2015.
2015 UT App 133, 352 P.3d 107
Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.
Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.
Opinion
¶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.
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 “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
¶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 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,
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.
¶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
¶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.”
(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
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.”4 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 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 alternative 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. He instead argues that his relevance
¶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.
¶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, 192 P.3d 867. 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.
¶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 peace-
¶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. 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.”
¶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....” 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).
¶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
¶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 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.”
¶40 We agree with the State that Alzaga did not preserve this claim. 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). 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. Kozlow,
¶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.”
¶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 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
¶47 “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice....”
¶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.”
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.
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.