STATE OF UTAH, Appellee, v. OSCAR BERMEJO, Appellant.
No. 20180985-CA
THE UTAH COURT OF APPEALS
Filed October 22, 2020
2020 UT App 142
The Honorable Richard D. McKelvie
No. 171900190
Wendy Brown, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 Based on his involvement in a gang-related drive-by shooting, Oscar Bermejo was convicted of, among other offenses, aggravated assault and felony discharge of a firearm. He now challenges his convictions, contending that his counsel was constitutionally ineffective for a variety of reasons. He also contends that the district court erred by allowing the jury to have access to certain evidence during deliberations and by denying his mistrial motion based on the prosecutor’s improper comments. We affirm.
20180985-CA 2 2020 UT App 142
BACKGROUND1
¶2 On the afternoon of December 28, 2016, neighbors observed a black BMW2 slowly drive more than once past the house of a family (Family) of known Sureños gang members.3 As it passed, one of the neighbors noted the BMW’s license plate number.
¶3 Between the BMW’s passes, a sport utility vehicle (SUV) stopped in front of the Family’s house. The SUV’s driver exited the car with one child, while three other children, including the nine-year-old victim (Victim), remained in the SUV. Shortly after, the BMW passed again and stopped. Someone exited the passenger side of the BMW and fired gunshots toward the SUV. The passenger re-entered the BMW, and it drove away.
¶4 One of the shots struck Victim in the head. He was airlifted to a hospital for surgery and survived.
¶5 Shortly after the shooting, police arrived on the scene, and the Family’s neighbor gave police the BMW’s license plate number, which matched that of a black BMW registered to Bermejo. Approximately one hour after the shooting, a Salt Lake City resident reported to police that a black BMW had been
¶55 Here, the jury was given four instructions regarding accomplice liability. Instruction 19 informed the jury:
A person can commit a crime as a “party” to the offense. In other words, a person can commit a criminal offense even though that person did not personally do all of the acts that make up the offense. If you find beyond a reasonable doubt that:
(1) the defendant had the mental state required to commit the offense, AND
(2) the defendant intentionally, knowingly, or recklessly solicited, requested, commanded, encouraged, or intentionally aided another to commit the offense, AND
(3) the offense was committed,
then you can find the defendant guilty of that offense.
Instruction 20 informed the jury that a “‘party to the offense’ need not act with the same mental state as the principal” or “have the same intent that the principal actor possessed as long as the party to the offense intended that an offense be
¶56 Additionally, for each of the charges in which Bermejo was charged as a party to the offense—two counts of felony discharge of a firearm, one count of obstructing justice, and two counts of aggravated assault—the jury was instructed on the elements of each crime, which included the required mental states. The aggravated assault instructions informed the jury that Bermejo committed one of the variant acts of aggravated assault “as a party to the offense” if he “did so knowingly, intentionally, or recklessly.” Likewise, the discharge of a firearm instructions told the jury that Bermejo acted “as a party to the offense” if he did so “knowing or having reason to believe that any person may be endangered by the discharge of the firearm,” “[w]ith intent to intimidate or harass another,” or “with intent to damage a habitable structure.” And the obstructing justice instruction provided that the jury had to find that Bermejo, “as a party to the offense,” took certain actions “with intent to hinder, delay, or prevent the investigation, apprehension, prosecution, conviction, or punishment of any person regarding conduct that constitutes a criminal offense.”
¶57 We conclude the accomplice liability instructions, in conjunction with the instructions outlining the statutory
¶58 Further, although the accomplice liability instructions—as well as the governing statute, see
¶59 “It is not deficient performance for counsel to agree to jury instructions that accurately and adequately inform the jury of the relevant law.” Eyre, 2019 UT App 162, ¶ 20. Because the instructions adequately informed the jury about the mens rea requirement for accomplice liability, counsel did not perform deficiently in forgoing an objection to them. Accordingly, Bermejo’s ineffective assistance of counsel claim on this issue fails.
¶60 Bermejo contends the district court erred under
¶61 After closing arguments, the court addressed whether the jury should have access during deliberations to the video of Bermejo’s police interview. Trial counsel relied on Cruz to argue the jury should not have access to it, but the court disagreed. The court observed that in Cruz, the recorded statement was a “recording of a child victim” that was “actually introduced as testimony of that child” during the trial and the interview involved “an inquiry akin to a direct examination,” not an interrogation. The court reasoned that under the circumstances in Cruz, it would seem “inappropriate to have [had] that video tape go back because it was . . . in essence . . . the jury having a recording of one witness’s testimony.” In contrast, the court observed the police interview video in this case was “an interrogation of an adverse party which is being introduced as both [an] admission and a[n] inconsistent statement,” not “for the purpose of testimony.” On this basis, the court concluded the interview was “substantive evidence that is not testimonial in nature” and that Cruz therefore was “not applicable.”
¶62
¶63 “The law has ‘always excluded depositions and written testimony from being carried from the [courtroom] by the jury,’” and the rationale for doing so has been to “deny written evidence an ‘undue advantage.’” Cruz, 2016 UT App 234, ¶ 36 (quoting State v. Solomon, 87 P.2d 807, 811 (Utah 1939)); see also 2 McCormick on Evidence § 220 (8th ed. 2020) (stating that “writings which are testimonial in nature, such as depositions, dying declarations in writing, etc. are typically not taken in with the jury,” as “such writings, viewed as simply a different form of testimony, should not be unduly emphasized over oral testimony in the case”). As our supreme court explained in Solomon:
It may often happen that the testimony on one side is oral from witnesses produced before the jury, while the testimony for the other side on essential matters is in the form of depositions or in the transcript from testimony at a previous hearing. If the hearing lasts for any length of time and the jury takes the depositions or transcript to be read and discussed while the oral evidence contra has in a measure faded from the memory of the jurors, it is obvious that the side sustained by written evidence is given an undue advantage. The law does not permit depositions or witnesses to go to the jury room. Why should a witness be permitted to go there in the form of written testimony?
87 P.2d at 811. This court has since explained that the “concerns expressed by the Solomon court . . . about written testimony
¶64 As this court observed in Eyre, “Utah law has only extended this principle to recorded or transcribed testimony that substitutes a witness’s live testimony,” and “Utah appellate courts have not treated recordings of defendants’ police interviews as testimonial in nature for purposes of excluding them from the jury room.” 2019 UT App 162, ¶ 31 (quotation simplified). Bermejo asserts the police interview video at issue here is testimonial, likening it to the Children’s Justice Center (CJC) interview at issue in Cruz. Specifically, he asserts that, as in Cruz, the interview was “recorded,” “the video captured an interview with a witness who appeared and testified at trial,” and “the video was a recording of an interview with the police,” which was “taken by police for the purpose of prosecuting crime.” (Quotation simplified.)
¶65 But Bermejo does not acknowledge the key difference between the CJC interview in Cruz and his police interview: the video at issue in Cruz captured an out-of-court interview of a witness, while the video at issue here captured an out-of-court interview of a defendant. And as we noted in Eyre, although Utah courts have not decided this question, other jurisdictions considering the issue have “allow[ed] juries to have access” to recorded interviews capturing out-of-court statements by a defendant. 2019 UT App 162, ¶ 32; see also, e.g., Rael v. People, 2017 CO 67, ¶¶ 30–35, 395 P.3d 772 (en banc) (explaining that concerns related to “videotaped, out-of-court statements of child-victims” “do not apply to a defendant’s own out-of-court
¶66 The reasoning in Carter v. People, 2017 CO 59M, 398 P.3d 124, is particularly persuasive on the issue of whether during deliberations the jury should have access to a defendant’s
[i]n addition to having probative force for reasons more related to the adversary process than any narrative or testimonial value a defendant’s detrimental out-of-court statements may have, allowing the jury access to exhibits evidencing such statements simply does not implicate the same danger of undue emphasis inherent in permitting the jury access to some, but not all, of the testimonial evidence. Unlike testimonial evidence, the accuracy and veracity of which must be weighed in conjunction with all of the other admissible evidence, a criminal defendant’s out-of-court statement offered against him has value primarily as demonstrative evidence of conduct on his part that is contradictory of a position he takes at trial.
Id. ¶ 21; see also id. ¶¶ 18–19 (stating that “despite possibly having some narrative value, a party opponent’s out-of-court utterances offered against him have probative force simply as non-verbal or non-narrative conduct, which is assertedly in conflict with a position he takes at trial,” and that the use of such statements involves considerations of “adversarial fairness”). Thus, the court continued, “While a trial court may find grounds to restrict a jury’s access to such exhibits under particular circumstances, they would not typically be the same reasons that
¶67 We are persuaded by the reasoning of Carter and those jurisdictions that have concluded that a defendant’s recorded, out-of-court interview is not testimonial for purposes of determining whether to allow the jury to have access to it during deliberations. See id. ¶ 21. See generally Testimonial evidence, Black’s Law Dictionary (11th ed. 2019) (defining “testimonial evidence” as “[a] person’s testimony offered to prove the truth of the matter asserted; esp., evidence elicited from a witness”); Testimony, Black’s Law Dictionary (11th ed. 2019) (defining “testimony” as “[e]vidence that a competent witness under oath or affirmation gives at trial or in an affidavit or deposition”).
¶68 The State introduced the video of the police interview during the investigating detective’s testimony. The interview took place the day after the shooting. During the interview, Bermejo denied having been in Salt Lake City at all on the day of the shooting and stated that his car went missing from Ogden where he left it at his friend’s house, which the friend alerted him to between 1:00 p.m. and 2:00 p.m. the day of the shooting.
¶69 But during the defense’s case-in-chief, Bermejo testified he was untruthful with police during the interview, explained he was afraid of gang retaliation, and affirmed his opinion that it was safer to lie to the police than to be truthful about the gang members. Further, in their closing arguments, the State and the defense each reiterated and used Bermejo’s untruthfulness to police in the videotaped interview to support their respective positions. For its part, the State used Bermejo’s untruthfulness to generally attack his credibility and suggest he was lying when he testified about what happened on the day of the shooting. Trial counsel, on the other hand, used the same lack of candor in the interview to support the narrative that Bermejo was unwillingly “set up” by other gang members and was afraid—justifiably so, given the “serious, serious world” of gang membership—of the repercussions if he told the truth.
¶71 We agree with the district court that Bermejo’s police interview was not testimonial evidence. Accordingly, we conclude the court did not err, under
III. Mistrial Motion
¶72 Bermejo contends the district court exceeded its discretion by denying his mistrial motion. He also contends, in the alternative, trial counsel was constitutionally ineffective when he failed to object and renew his mistrial motion during the prosecutor’s closing argument. We address each issue below.
A. The Mistrial Motion
¶73 Bermejo argues the prosecutor made improper comments during the State’s rebuttal to the defense’s case-in-chief that “called attention to matters the jury was not justified in considering.” Specifically, he argues the prosecutor’s comments suggested that “[Bermejo] improperly encouraged [Girlfriend] not to testify at trial” and that “counsel knew about [Bermejo’s] conduct [and] was not forthright about [that] knowledge.” These comments, he argues, “insinuated additional evidence did exist”
¶74 Because “prosecutorial misconduct is not a standalone basis for independent judicial review,” “when a defendant has raised an alleged prosecutorial misconduct issue below, we review the district court’s ruling on that objection or motion.” State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d 1261 (quotation simplified); see also State v. Hummel, 2017 UT 19, ¶ 107, 393 P.3d 314 (“Appellate courts review the decisions of lower courts. We do not review the actions of counsel—at least not directly.”). Here, the relevant ruling is the district court’s denial of Bermejo’s mistrial motion.
¶75 “A mistrial is strong medicine.” State v. Whytock, 2020 UT App 107, ¶ 16, 469 P.3d 1150. “In view of the practical necessity of avoiding mistrials and getting litigation finished, the trial court should not grant a mistrial except where the circumstances are such as to reasonably indicate that a fair trial cannot be had and that a mistrial is necessary to avoid injustice.” State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (quotation simplified); accord State v. Dunne, 2020 UT App 56, ¶ 18, 463 P.3d 100. Once the district court “has exercised its discretion and made its judgment [about a mistrial motion], the prerogative of a reviewing court is much more limited.” Butterfield, 2001 UT 59, ¶ 46 (quotation simplified). “Because a district judge is in an advantaged position to determine the impact of courtroom events on the total proceedings, once a district court has exercised its discretion and denied a motion for a mistrial,” an appellate court “will not reverse the court’s decision unless it is plainly wrong in that the incident so likely influenced the jury that the defendant cannot be said to have had a fair trial.” State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quotation simplified). Further, Bermejo bears the burden of “showing that the
¶76 Evaluating a denial of a mistrial motion requires us to consider the totality of evidence against the defendant and the circumstances surrounding the improper statements. See State v. Milligan, 2012 UT App 47, ¶ 8, 287 P.3d 1 (looking to the circumstances surrounding the potentially prejudicial comments to determine whether the district court abused its discretion in denying a mistrial motion); see also Dunne, 2020 UT App 56, ¶ 19; State v. Yalowski, 2017 UT App 177, ¶ 22, 404 P.3d 53.
¶77 Our supreme court has determined a mistrial is not required in circumstances where an improper statement is “vague” and “fleeting,” see Butterfield, 2001 UT 59, ¶ 47 (quotation simplified), “made in passing,” “relatively innocuous in light of all the testimony presented,” Allen, 2005 UT 11, ¶ 40, “very brief,” and “stat[es] no details of the circumstances” surrounding the subject of the comments, State v. Griffiths, 752 P.2d 879, 883 (Utah 1988), and where, following the statement, the proceedings “move[d] along without undue interruption and directed the jury’s attention to other matters,” State v. Decorso, 1999 UT 57, ¶ 39, 993 P.2d 837, abrogated on other grounds by State v. Thornton, 2017 UT 9, 391 P.3d 1016; see also Dunne, 2020 UT App 56, ¶ 23 (noting, in concluding that the district court did not abuse its discretion in denying a mistrial motion, that “the court immediately sustained [the defendant’s] objection” to the problematic questions and statements, and “no further reference was made” to them). Additionally, our appellate courts have considered the district court’s offers to cure any alleged harm and trial counsel’s response in evaluating whether the court’s mistrial motion decision was an abuse of discretion. See Allen, 2005 UT 11, ¶ 43 (supporting a conclusion that the district court had not abused its discretion in denying a mistrial motion with the district court’s offer “to give the jury a curative instruction regarding the [improper] reference, which [the defendant] declined”); accord Whytock, 2020 UT App 107, ¶¶ 20–21.
¶79 In cross-examination, trial counsel questioned Detective about the lack of evidence that Bermejo influenced Girlfriend’s decision to not appear at court, suggesting any assertion that Bermejo influenced her through “an advocate working for him” or “allegedly speaking for him” was “pure speculation.” On re-direct, the State initially focused on this point in the following exchange:
Q: [Defense counsel] suggested that your idea that other people would be trying to influence [Girlfriend’s] decision on his behalf was just speculation.
A: Yes, it’s just speculation.
Q: Is it actually just speculation?
A: No. We obtained a search warrant for—
Trial counsel objected, stating that the questioning had “gone beyond rebuttal”; the district court sustained the objection. The State responded, “Your Honor, he opened the door. He said that this was just speculation and he knew well that it’s not just speculation.” The prosecutor and trial counsel approached the
¶80 Later, after closing instructions, the prosecutor told the court that his statement that “Defense counsel knew full well” that it was not speculation was “inaccurate” and that he believed he “need[ed] to correct that for the jury.” The prosecutor suggested either a curative instruction or that he tell the jury that his statement inaccurately reflected his “impression he knew about something.”
¶81 In response, trial counsel said he was “torn” about how to address the issue with the jury because doing so would suggest that there was “some evidence” when none had been presented and that counsel “knew something.” He said he believed he “need[ed] to move for a mistrial” rather than address it with the jury because he considered the situation harmful to the defense either way. And he informed the court he intended to “handle” the “correction” suggested by the prosecutor “in closing.”
¶82 The district court denied the mistrial motion “primarily because . . . there is an opportunity to correct the record,” stating that “a curative instruction . . . would go a long way to correct the issue.” The court also stated it understood why trial counsel did not want to seek a curative instruction as a matter of strategy. And it determined the prosecutor’s statements “appeared to be inadvertent” and “pretty fleeting” and were “not an incident that would have called the jury’s attention” where “there was no exclamation point on it.”
¶83 Under these circumstances, the district court’s decision to deny the mistrial motion was not an abuse of discretion. To begin with, the prosecutor’s suggestion about Bermejo’s influence on Girlfriend and what trial counsel knew was innocuous in light of the trial testimony. The statements came at the end of a four-day trial, one in which nineteen witnesses testified. The statements also occurred in a short exchange
¶84 Trial counsel also promptly objected to the prosecutor’s line of questioning as beyond rebuttal. And immediately after a sidebar conference on the issue, the prosecutor resumed questioning on a completely different issue. See Decorso, 1999 UT 57, ¶ 39. And the district court offered trial counsel the option for a curative instruction, which counsel declined in favor of not highlighting the issue for the jury. See Allen, 2005 UT 11, ¶ 43.
¶85 Under these circumstances, “we cannot agree that the jury was so likely influenced” by the prosecutor’s suggestion that Bermejo pressured Girlfriend not to appear in court, and that trial counsel knew it, “that the court was plainly wrong to deny [Bermejo’s] mistrial motion.” See Dunne, 2020 UT App 56, ¶ 25 (quotation simplified). Thus, we conclude the district court did not abuse its discretion in denying Bermejo’s mistrial motion.
B. Ineffective Assistance of Counsel During Closing Arguments
¶86 In the alternative, Bermejo argues his trial counsel provided ineffective assistance by not renewing his objection
¶87 During closing argument, in talking about Bermejo’s version of events and the fact that he claimed to have dropped off Girlfriend at work the morning before the shooting, the State reviewed the evidence about her work schedule, especially the fact that her time clock records showed she arrived that day hours after the shooting, not in the morning. The State then stated:
Defense counsel asked, “Well, do people cover for each other?”
I mean, I guess everybody is like his client and makes up stories. His client admitted he lied to the police. I guess now he wants us to believe that somebody lied on a time card. Because if somebody lied on a time card, then his client is telling the truth. But [Girlfriend] had just started working there eight days before. Was she already taking vacation and somebody was clocking in a time? No.
When you come into this courtroom, your commonsense does not stay out in the hallway.
What makes sense? What makes sense as to why, with a warrant, the State cannot get [Girlfriend]. Cannot get her here to come in and testify. And it’s true, the defendant does not have to produce any evidence. It is the State’s burden. And we have tried to get [Girlfriend] to come in here.
We have pinged her phone. We have gotten a warrant for her. We have knocked on doors. And she does not want to come in here and testify. Ask yourselves why. What did she say back in 2016? What would she be forced to say now? Why doesn’t she want to be here? It doesn’t fit.
Bermejo argues these statements, along with the previous questioning and commentary about Girlfriend’s absence, “could only be interpreted as meaning that [Bermejo] had influenced [Girlfriend’s] decision not to come” and suggested that trial counsel was “intentionally misleading the jury” on the issue. (Quotation simplified.) He asserts counsel provided ineffective assistance by not objecting to these statements.
¶88 “In closing counsel have considerable latitude in the points they may raise.” State v. Hummel, 2017 UT 19, ¶ 110, 393 P.3d 314 (quotation simplified). Counsel “have the right to fully discuss from their perspectives the evidence and all inferences and deductions it supports,” and “a prosecutor has the duty and right to argue the case based on the total picture shown by the evidence.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55 (quotation simplified). “When we review an attorney’s failure to object to a prosecutor’s statements during closing argument, the question is not whether the prosecutor’s comments were proper, but whether they were so improper that counsel’s only defensible choice was to interrupt those comments with an objection.” State v. Hulse, 2019 UT App 105, ¶ 44, 444 P.3d 1158 (quotation simplified). And “the law recognizes the prerogative of opposing counsel to swallow their tongue instead of making an objection that might have the risk of highlighting problematic
¶89 Here, although the prosecutor’s comments during closing arguments may well have been at least in part improper, particularly in their tendency to suggest counsel played some part in Girlfriend’s absence, Bermejo has not carried his burden of demonstrating that counsel performed deficiently by not objecting and renewing his mistrial motion. As a matter of strategy, counsel reasonably could have concluded a mistrial motion would not be granted, especially given the district court’s reasoning in denying the previous mistrial motion. See State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (“Because the decision not to pursue a futile motion is almost always a sound trial strategy, counsel’s failure to make a motion that would be futile if raised does not constitute deficient performance.” (quotation simplified)); see also State v. Ray, 2020 UT 12, ¶¶ 31, 34, 469 P.3d 871 (stating that “the reasonableness of counsel’s challenged conduct” must be judged “on the facts of the particular case, viewed as of the time of counsel’s conduct” and that “if it appears counsel’s actions could have been intended to further a reasonable strategy, a defendant has necessarily failed to show unreasonable performance” (quotation simplified)).
¶90 Counsel also reasonably could have decided that rather than highlight the overall issue for the jury, he instead would “reserve for himself the right to argue inferences from the evidence during his own closing argument.” See State v. Roberts, 2019 UT App 9, ¶ 20, 438 P.3d 885; see also Hummel, 2017 UT 19, ¶ 110. Indeed, in addressing the timeline of events, trial counsel stated that even though the prosecution wanted the jury to believe that Bermejo “totally made . . . up” what had occurred in the hours before the shooting, including “seeing his girlfriend,” the evidence “corroborates and verifies what [Bermejo is] actually saying. There aren’t any exceptions. It’s all there.”
¶91 We conclude Bermejo has not shown the prosecutor’s comments were so improper that trial counsel’s “only defensible
CONCLUSION
¶92 Bermejo has not shown that trial counsel rendered constitutionally ineffective assistance of counsel on any of the grounds asserted, that the district court erred in allowing the police interview video to go with the jury during deliberations, or that the court abused its discretion in denying the mistrial motion. Accordingly, we affirm.