Case Information
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T HE U TAH C OURT OF A PPEALS
S TATE OF U TAH , Appellee, v.
J ESSE A. S AENZ , Appellant.
Memorandum Decision No. 20141147-CA Filed April 7, 2016 Eighth District Court, Vernal Department The Honorable Clark A. McClellan No. 131800328 Colleen K. Coebergh, Attorney for Appellant Sean D. Reyes and Marian Decker, Attorneys for Appellee
J UDGE S TEPHEN L. R OTH authored this Memorandum Decision, in which J UDGE J. F REDERIC V OROS J R . and S ENIOR J UDGE R USSELL W.
B ENCH concurred.
ROTH, Judge: Jesse A. Saenz appeals his convictions for murder, a first
degree felony; theft, a second degree felony; and possession of a firearm by a restricted person, a second degree felony. Because Saenz has not demonstrated that the trial court’s alleged error prejudiced him, we affirm. Saenz’s convictions resulted from events that transpired
on April 21, 2013. In a series of text messages that morning with 1. Senior Judge Russell W. Bench sat by special assignment as authorized by law. See generally Utah R. Jud. Admin. 11-201(6). the victim, E.O., Saenz asked if E.O. would take him from his apartment in Roosevelt to his grandfather’s home in Fort Duchesne for $20. E.O. agreed. He arrived at Saenz’s apartment complex around noon, driving a black Mazda that he co-owned with his mother. E.O.’s body was discovered by Saenz’s mother and sister a few hours later on Saenz’s grandfather’s property. E.O. had been shot multiple times. Expended bullet casings were discovered beneath E.O.’s body and in the nearby parking area. Saenz’s grandfather’s revolver and coin collection were missing from the house. E.O.’s missing cell phone was later discovered discarded on the road between Saenz’s apartment and his grandfather’s property.
¶3 Saenz had been wearing an ankle monitor on the day of the events. GPS data from the unit indicated that at the approximate time E.O. picked him up, Saenz was “in movement.” Around 12:30 p.m., GPS data located Saenz at his grandfather’s property in Fort Duchesne and indicated that Saenz then returned to his apartment in Roosevelt along the route where E.O.’s cell phone was later found. After receiving a tampering alarm around 1:00 p.m., law enforcement officers discovered Saenz’s ankle monitor, the strap cut through, on the floor of his apartment; Saenz was nowhere to be found. Late the next day, officers of the United States Marshals Service apprehended Saenz in a parking lot in Phoenix, Arizona. He was in E.O.’s black Mazda, and his grandfather’s coins and the revolver were in the car. A text message sequence on Saenz’s cell phone mirrored the exchange on E.O.’s cell phone from the previous morning. Further, during trial, a ballistics expert testified that, in his opinion, the bullet casings found at the crime scene were “fired from [the] revolver” stolen from Saenz’s grandfather’s house and later found in E.O.’s vehicle. Also at trial, the court instructed the jury before opening
statements that “[t]he prosecution must prove each element beyond a reasonable doubt. Until then, you must presume that the defendant is not guilty. The defendant does not have to prove anything. He does not have to testify, call witnesses, or present evidence.” After the State rested and defense counsel stated that he would call no witnesses, the court questioned Saenz in the presence of the jury about whether he desired to testify:
THE COURT: Mr. Saenz, I need to ask you a question just to make sure. You understand that you have the absolute right to testify or not testify? MR. SAENZ: Yes, your Honor.
THE COURT: If you choose not to testify, the jury cannot consider that in their deliberations. MR. SAENZ: Yes, your Honor.
THE COURT: You also are the one that controls that right. Your attorneys can’t compel you or coerce you or force you or threaten you or do anything to cause you not to testify. Do you understand that?
MR. SAENZ: Yes, your Honor.
THE COURT: Is this your voluntary decision not to testify?
MR. SAENZ: Yes, your Honor.
THE COURT: All right, thank you. Before closing argument, the trial court explicitly instructed the jurors regarding Saenz’s decision not to testify:
A person accused of a crime may choose whether or not to testify. In this case the defendant chose not to testify. Do not hold that choice against the defendant. Do not try to guess why the defendant chose not to testify. Do not consider it in your deliberations. Decide the case only on the basis of the evidence. The defendant does not have to prove that he or she is not guilty. The prosecution must prove the defendant’s guilt beyond a reasonable doubt.
¶7 The jury returned verdicts of guilty on all counts. The court later sentenced Saenz to the statutory prison terms of fifteen years-to-life for the first degree felony, and one-to-fifteen years for both of the second degree felonies. It ordered that all sentences run consecutively. Saenz timely appealed. On appeal, Saenz argues that the trial court erred by
questioning him in the presence of the jury regarding whether he wanted to testify. Saenz concedes that this issue was not preserved below and has been raised for the first time on appeal. “[I]n general, appellate courts will not consider an issue, including constitutional arguments, raised for the first time on appeal unless the trial court committed plain error or the case involves exceptional circumstances.” State v. Dean , 2004 UT 63, ¶ 13, 95 P.3d 276. Saenz argues this issue under the plain error exception to the preservation requirement. “To demonstrate plain error, a defendant must establish that (i) an error exists; (ii) the error should have been obvious to the trial court; and (iii) the error is harmful, i.e., absent the error, there is a reasonable likelihood of a more favorable outcome for the appellant.” Id. ¶ 15 (citation and internal quotation marks omitted). Importantly, “[i]f any one of these requirements is not met, plain error is not established.” Id. (citation and internal quotation marks omitted). The Fifth Amendment to the United States Constitution
provides, “No person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V. In the 2. The Fifth Amendment privilege against self-incrimination is applicable to the states through the Fourteenth Amendment. Malloy v. Hogan , 378 U.S. 1, 3, 6 (1964); see also Jeffrey Bellin,
(continued…)
context of statements made regarding a defendant’s exercise of
his right to silence during trial, the United States Supreme Court
has held that the Fifth Amendment “forbids either comment by
the prosecution on the accused’s silence or instructions by the
court that such silence is evidence of guilt.”
Griffin v. California
,
380 U.S. 609, 615 (1965). Along those lines, our own supreme
court has indicated that even “[i]ndirect references to a
defendant’s failure to testify are constitutionally impermissible if
the comments were manifestly intended to be or were of such a
character that the jury would naturally and necessarily construe
them to be a comment on the defendant’s failure to testify.”
State v. Tillman
, 750 P.2d 546, 554 (Utah 1987);
see also State v.
Nelson-Waggoner
,
not to testify “does not prima facie establish a due process
violation.”
State v. Harmon
,
Reconceptualizing the Fifth Amendment Prohibition of Adverse Comment on Criminal Defendants’ Trial Silence , 71 Ohio St. L.J. 229, 245 (2010) (briefly discussing Malloy ’s holding).
Fourteenth Amendment before it can be said that such rights have been violated.”). Saenz argues that the tone and content of the court’s
colloquy with him about whether he would testify so focused the jury’s attention on his decision not to testify that, in effect, the colloquy amounted to “an impermissible comment on [his] invocation of his right to remain silent.” He states that the trial court’s “presentation of [the] invocation [of the right against self- incrimination] was direct and explicit” and argues that the trial court should have known that “placing such undue emphasis on [his] decision not to testify” was error. In particular, he contends that “[t]he prohibition against commentary on the right to silence is grounded in the improper suggestion it leaves with the jury, the courting of nagging speculation about what would have been said.” In this regard, he asserts that his case was “particularly susceptible to Jury prejudice against him for not testifying” because, despite “overwhelming evidence” of his guilt, there was no “information regarding motive” and, thus, the “total absence of any indication of motive would have left the Jury wishing for some rationale, justification, excuse, or explanation from [him].” Saenz asserts that in such circumstances, the “Court’s showcasing” of his decision not to testify was “unfair commentary” of constitutional significance that amounted to plain error. While we have concerns about the trial court’s decision to
question Saenz about his invocation of his right to silence in front of the jury, we do not reach the issue of whether the colloquy was obvious error, because Saenz has failed to demonstrate prejudice, the third prong of our plain error review. See State v. Dunn , 850 P.2d 1201, 1224 (Utah 1993) 3. Although we do not reach the question of whether the trial court’s colloquy regarding Saenz’s invocation of his right not to testify was error in this case, it seems problematic to engage in this kind of inquiry in the presence of the jury. We held in State
(continued…) (“If there is no prejudice, we have no reason to reach the other elements of the [plain error] analysis.”). Saenz asserts that “[b]ecause of the fundamental right of
the accused not to have such improper comment made regarding his decision not to testify, the err[or] is of constitutional magnitude, and the same can never be viewed as (…continued)
v. Brooks
, 833 P.2d 362 (Utah Ct. App. 1992), that a “trial court
bears no affirmative duty sua sponte to engage in an on-the-
record colloquy with defendant at the time of trial to ensure a
valid waiver of the right to testify.”
Id.
at 365;
accord Cramer v.
State
,
demonstrate that “absent the error, there is a reasonable
likelihood of a more favorable outcome”—in other words, that
the error was harmful.
See State v. Dean
,
prejudice, a necessary element of his plain error claim, we must
affirm his convictions.
See Dunn
,
4. We also question whether Saenz could prove prejudice, given
the evidence of guilt in this case and the trial court’s
statement during the colloquy and later instruction to the jury
that it could not hold Saenz’s decision not to testify against
him. Indeed, Saenz concedes that the evidence against him is
“overwhelming.” And our supreme court has stated that ample
evidence of guilt and a curative instruction are considerations
that, if present, can actually render an error related to allegedly
impermissible commentary on a defendant’s decision not to
testify harmless.
See generally State v. Maestas
, 2012 UT 46,
¶¶ 161–65, 299 P.3d 892 (noting that the prosecutor’s comment
on defendant’s decision not to testify was harmless where it was
“unclear whether the prosecution was referring to Mr. Maestas
or to his codefendants,” where the jury was “explicitly instructed
that it should not consider a defendant’s choice not to testify,”
and where there was a “wealth of evidence implicating Mr.
Maestas in [the victim’s] murder”);
State v. Tillman
,