STATE OF UTAH, Appellee, v. ALFONSO MARGO VALDEZ, Appellant.
No. 20181015-CA
THE UTAH COURT OF APPEALS
Filed February 11, 2021
2021 UT App 13
Second District Court, Ogden Department
The Honorable Joseph M. Bean
No. 171901990
Emily Adams, Cherise M. Bacalski, and Freyja Johnson, Attorneys for Appellant
Sean D. Reyes and John J. Nielsen, Attorneys for Appellee
Opinion
HARRIS, Judge:
¶1 A jury convicted Alfonso Margo Valdez of kidnapping, robbery, and aggravated assault, after his ex-girlfriend (Ex-Girlfriend) testified that he forced her into his car with a gun, threatened her, hit her with the gun, cut her face with a knife, and stole her purse and phone. Valdez appeals his convictions, claiming that the trial court incorrectly—and in violation of the
BACKGROUND1
¶2 Valdez and Ex-Girlfriend dated and cohabited for a time in 2017 and, as Ex-Girlfriend recounted it, their relationship was a volatile one. She described Valdez as accusatory and violent, sometimes hitting and choking her, other times confining her in a locked room and once beating her so severely that her injuries required hospitalization. After their relationship ended, Ex-Girlfriend moved out of Valdez‘s apartment, but Valdez continued to contact her via phone and text message. Ex-Girlfriend maintained that, after they parted ways, she largely tried to keep her distance from Valdez but acknowledged that she had willingly seen him “a couple times” after their breakup, but before the incident at issue here occurred.
¶3 About two months after their relationship ended, Valdez sent Ex-Girlfriend a text message telling her he had some mail to give her and asking her to meet him. Although Ex-Girlfriend had concerns about meeting Valdez, she thought it was “nice of him” to reach out for the purpose of passing along her mail, and she “had hope” that their meeting “would be decent.” Ex-Girlfriend told Valdez to meet her early one morning near her workplace after she finished her night shift. When Valdez pulled up in an SUV, Ex-Girlfriend approached the passenger side of the vehicle. She later testified that when she leaned into the open passenger-side window to speak to Valdez, he pulled out a revolver and
¶4 After Ex-Girlfriend got in the vehicle, Valdez told her “how stupid [she] was” for agreeing to meet him before saying, “I hope you have talked to your kids today, because you are not going to get away from me this time.” Valdez also pulled out a twelve-inch knife, which he wedged, blade pointed upward, between Ex-Girlfriend and the vehicle‘s center console. Ex-Girlfriend testified that, as Valdez drove, he held the gun in his left hand, hit her in the head with it, and struck her “several times in the head and face” with his other hand. He also demanded that she give him her phone and purse, which she did, and that she take off her clothes, a demand she perceived as an attempt to prevent her from escaping. Other than beginning to unlace her shoes, she did not remove her clothing.
¶5 At one point, while the vehicle was stopped, Valdez dislodged the knife and ran it down Ex-Girlfriend‘s face, cutting her lip. Ex-Girlfriend testified that, soon thereafter, she went into “survival mode,” and began attempting to get out of the vehicle, an endeavor Valdez impeded by putting his hand around her throat and holding on to her hair. Eventually, Ex-Girlfriend was able to spin out of Valdez‘s grip, open the car door, and exit the vehicle. She then ran toward nearby houses, first knocking on a door and receiving no answer, and then attempting to flag down a passing vehicle. Finally, Ex-Girlfriend noticed a woman (Witness) standing on a nearby front porch and made her way toward that house.
¶6 Ex-Girlfriend explained to Witness that she was trying to escape from Valdez, and that Valdez had a knife and a gun and was trying to kill her. Ex-Girlfriend did not mention any injuries, and Witness did not see any blood on Ex-Girlfriend. Witness called the police, and a detective (First Detective) soon arrived and took statements from both Witness and Ex-Girlfriend. Much of First Detective‘s encounter with Witness and Ex-Girlfriend
¶7 The next day, police arrested Valdez and seized, among other things, an Android phone discovered on his person at the time of his arrest. Police later obtained a warrant to search the phone, but were unable to access its contents because they did not know the code to unlock the phone, which in this case was a “swipe code,” a “nine dot pattern.” According to the officer assigned to try to access the phone‘s contents, this particular phone would “only allow so many attempts” to unlock it “before completely locking you out of the phone or wiping or resetting the device and losing all of the data.” After obtaining a warrant to search the phone, officers asked Valdez “for his pass code” and explained that if he did not provide it then they would attempt “maneuver[s]” with the phone that could “destroy[]” it. An officer testified that Valdez “refused to give [him] the pass code and just told [him] to destroy the phone.” Officers were ultimately unable to access the phone‘s contents.
¶8 After investigation, the State charged Valdez with aggravated assault, aggravated kidnapping, and aggravated robbery. The case first proceeded to a jury trial in August 2018, but the court declared a mistrial when the State‘s first witness—Ex-Girlfriend—told the jury, in contravention of a pretrial order, that Valdez had previously spent time in prison. About two months later, a new jury was empaneled and a second trial was
¶9 In the second trial, the State called as its first witness First Detective, who gave a lengthy and detailed narrative account of his interaction with Ex-Girlfriend at Witness‘s house on the day of the incident. After First Detective offered his observations of Ex-Girlfriend‘s appearance—that she had a small cut on her top lip and a broken hair clip, but no other apparent injuries—the prosecutor asked him whether Ex-Girlfriend had “provide[d] any details about how [the] kidnapping had occurred.” First Detective answered in the affirmative, and spent the next five transcript pages describing in narrative fashion what Ex-Girlfriend had said to him about her encounter with Valdez. As First Detective began to describe Ex-Girlfriend‘s account of how she escaped from Valdez‘s vehicle, Valdez‘s attorney lodged a hearsay objection, stating that First Detective‘s testimony may have “fit within an [exception] up until this point,” but that his description of her escape from the vehicle was no longer “showing any effect on this officer and how he conducted the investigation.” The court overruled the objection, explained to the jury that the testimony was admissible “under a hearsay exception where it tells us why the officer acted in his investigation the way he did,” and instructed the jury that First Detective‘s testimony in this vein was not to be considered “for the truth of the matter asserted.” First Detective then completed his narrative description of what Ex-Girlfriend had told him, taking another two pages of trial transcript to do so. First Detective also described his interaction with Witness, but in much less detail.
¶10 After First Detective‘s testimony, Witness and Ex-Girlfriend testified about the incident, as recounted above. The State also called two additional police officers, who—among other things—testified that police were never able to find Ex-
¶11 The State called Second Detective as its final witness. One of the other officers had already testified that police were unable to access the contents of Valdez‘s phone, but had not described Valdez‘s refusal to provide the swipe code. As Second Detective began describing Valdez‘s refusal, Valdez‘s attorney objected, asserting that Valdez had a “Fifth Amendment [r]ight” not to provide the swipe code, and that the State should not be able to present any evidence of Valdez‘s refusal to provide it. The court overruled the objection, and allowed Second Detective to inform the jury that Valdez “refused to [provide] the passcode and just told [Second Detective] to destroy the phone.”
¶12 The State also asked Second Detective about interviewing Ex-Girlfriend at the police station, and it played for the jury a video recording of the entire interview. Second Detective testified, without objection, that he had received training on how to “detect deception” on the part of interviewees, and he explained that one of his techniques for detecting deception—and one that he used with Ex-Girlfriend in this case—was to ask the interviewee to tell his or her story in reverse. He explained: “If you can remember [your story] in reverse,” then it is “most likely, in [my] experience and training, . . . the truth.” And he further testified that, when he asked Ex-Girlfriend to give her account in reverse, she was able to do so in a “consistent” manner. On cross-examination, Second Detective acknowledged that, while it took Ex-Girlfriend forty-five minutes to tell her story chronologically, it took her only a minute or two to recap her account in reverse. Valdez‘s attorney then asked Second Detective whether that one-minute reverse recap was “sufficient
¶13 On redirect examination, the State asked Second Detective if he expected the reverse telling to be as detailed as the original telling, and he explained that he did not. The State then asked him for his “assessment” of Ex-Girlfriend‘s testimony, and he stated that he “believe[d] she was telling [him] the truth,” and that he reached that conclusion because her “story matched what she told [First Detective] on-scene,” “matched what she told [W]itness,” and “was consistent with” the account she gave in “reverse order.” After a few more questions, the State finished its redirect examination, and the court—without being prompted—asked counsel to approach the bench. After a sidebar discussion, the court issued a “corrective instruction,” explaining to the jury that evidentiary rules “bar[] the admission of . . . expert testimony as to the truthfulness of a witness on a particular occasion,” and prevent one witness from “vouch[ing] for the credibility of another.” The court struck Second Detective‘s testimony “as far as saying that [Second Detective] believed the alleged victim in this matter was telling the truth,” and instructed the jury to “disregard . . . that specific part of [Second Detective‘s] testimony as far as his belief that [Ex-Girlfriend] was telling the truth.” The court also later gave the jury a written instruction, stating as follows: “You are instructed to disregard the portion of the testimony of [Second Detective] that deals with his opinion of the truthfulness of the alleged victim in this case.”
¶14 After the State rested, Valdez moved for a mistrial on the basis that Second Detective, in describing his interview of Valdez, testified that he had read Valdez his Miranda3 rights and that Valdez had thereafter refused to answer further questions. The court denied the motion, but offered to give an instruction
¶15 Valdez then called several witnesses of his own, although he elected not to testify himself. The first was his ex-wife (Ex-Wife), who lived next door to Valdez, in the same duplex, and shared a wall with him. During her testimony, Ex-Wife testified that the apartment walls were thin, and she never heard screaming, yelling, or any signs of trouble coming from Valdez‘s apartment, even during the time that Ex-Girlfriend lived with Valdez; this testimony was corroborated by testimony from Valdez‘s daughter, who lived with Ex-Wife. Ex-Wife also characterized Ex-Girlfriend as a “guest that never left” and was “hard to get rid of.” Ex-Wife was acquainted with Ex-Girlfriend not only because of their common association with Valdez, but also because she and Ex-Girlfriend worked for the same company. Ex-Wife testified that on the morning of the incident in question, while both of them were at work, Ex-Girlfriend had shown her a series of text messages between Valdez and herself that were “sexual” and appeared to indicate that the two of them wanted to “make[] up.”
¶16 Valdez also attempted to call his aunt (Aunt) to the stand. Aunt was prepared to testify that—contrary to Ex-Girlfriend‘s assertions that she largely avoided Valdez after their breakup—Ex-Girlfriend had, in fact, often attempted to see Valdez in the
¶17 After Valdez rested, the court instructed the jury. Valdez asked the court to provide instructions about lesser-included offenses regarding the aggravated kidnapping and aggravated robbery counts, but did not ask for a lesser-included-offense instruction with regard to the aggravated assault count. The court instructed the jury as Valdez requested.
¶18 During closing argument, the State emphasized (among other things) Valdez‘s refusal to disclose the swipe code to his phone, and did so in connection with an attempt to rebut Ex-Wife‘s testimony about the sexual text messages. Specifically, the prosecutor argued as follows:
Now, you heard [Ex-Wife] say that she saw some texts. They were going to get back together and do sexual things. The State was very interested. You heard testimony from [several] witnesses about the efforts that were taken to get into [Valdez‘s] phone to determine what, if any, communication happened between the two of them. . . . The only way [the State] could get into that phone to see what these text messages said was by getting the
code from [Valdez]. And he chose to decline to do that. . . . .
The [S]tate made and took a lot of effort to see what communications had gone on between them. Instead of providing any proof of text messages, they bring in . . . [Ex-Wife] to say that she, we didn‘t have a good relationship with [Ex-Girlfriend], happened to see the text between them was of a sexual nature. Think of the motive she had to lie. Her investment in this case. Ladies and gentlemen, use your common sense. Those texts [aren‘t4] here today.
¶19 At the conclusion of the trial, the jury convicted Valdez of aggravated assault, but declined to convict him of aggravated kidnapping and aggravated robbery, instead convicting him of lesser-included offenses, namely, kidnapping and robbery.
ISSUES AND STANDARDS OF REVIEW
¶20 Valdez now appeals, and asks us to consider several issues. We first address Valdez‘s assertion that his rights under the
¶21 In addition to his constitutional claim, Valdez raises several other issues. He claims that his attorney rendered constitutionally ineffective assistance of counsel in several respects, including when he (a) failed to object to Second Detective‘s testimony pertaining to the veracity of Ex-Girlfriend‘s statements, and (b) failed to object to the length and detail with which First Detective described the events leading to his investigation of the incident. And he claims that the trial court erred by refusing to allow Aunt to testify. Because we find merit in Valdez‘s Fifth Amendment argument and reverse on that ground, we need not reach the merits of these other arguments, although we provide some limited guidance in the hope it may be useful on remand.
ANALYSIS
I.
¶22 We first address Valdez‘s claim that his Fifth Amendment rights were violated when the State presented evidence that he refused to provide the swipe code to his cell phone, and then relied on that evidence in urging the jury to infer that there were no conciliatory and sexual text messages between Valdez and Ex-Girlfriend. We begin by engaging in a general discussion of governing Fifth Amendment legal principles. We then confront the particular question of whether communicating a cell phone swipe code to law enforcement is a “testimonial” act protected by the Fifth Amendment, and conclude that it is. Next, we analyze the applicability of the so-called “foregone conclusion exception” to testimoniality, and conclude that the exception does not apply in this case. We then determine that the State made more than an innocuous use of the evidence, and that the
A. General Fifth Amendment Principles
¶23 The Self-Incrimination Clause of the
¶24 Many communications fall under the ambit of the Fifth Amendment‘s protection, see State v. Gallup, 2011 UT App 422, ¶ 14, 267 P.3d 289, but the Fifth Amendment does not protect defendants from disclosures of every kind, see Doe, 487 U.S. at 212. Rather, the amendment “protects a person only against being incriminated by his own compelled testimonial communications.” Id. at 207 (quotation simplified). Thus, courts have often stated that communications merit Fifth Amendment protection only if they share three characteristics: (1) the communication is compelled, (2) the communication is
¶25 In this case—as in several similar cases, see, e.g., Doe, 487 U.S. at 207; Davis, 220 A.3d at 543—the elements of compulsion and incrimination are not contested. The State implied at trial that Valdez had an obligation to provide the swipe code to the investigating officers, and that he had no right to refuse. And it has “long been settled that [the Fifth Amendment‘s self-incrimination] protection encompasses compelled statements that lead to the discovery of incriminating evidence even though the statements themselves are not incriminating and are not introduced into evidence.” United States v. Hubbell, 530 U.S. 27, 37 (2000); see also id. at 38 (stating that the Fifth Amendment protects “against the prosecutor‘s use of incriminating information derived directly or indirectly from the compelled testimony” of the defendant). Thus, even though the State might not have planned to introduce the actual swipe code into evidence, and even though the code was not itself evidence of a crime, that code could have led to the “discovery of incriminating evidence” on Valdez‘s phone, and therefore is properly categorized as at least indirectly “incriminating” for Fifth Amendment purposes. See id. at 37–38.
¶26 In this case, the only contested element is whether providing the swipe code to officers would have been “testimonial,” as that term is used in the Fifth Amendment context. The State contends that it would not or, at least, that an exception to testimoniality applies here. Valdez, by contrast,
B. Testimoniality
¶27 “[I]n order to be testimonial, an accused‘s communication must itself, explicitly or implicitly, relate a factual assertion or disclose information.” Doe, 487 U.S. at 210. The “touchstone” used to mark whether a communication “is testimonial is whether the government compels the individual to use ‘the contents of his own mind’ to explicitly or implicitly communicate some statement of fact.” See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1345 (11th Cir. 2012) (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)); see also Doe, 487 U.S. at 211 (“It is the extortion of information from the accused, the attempt to force him to disclose the contents of his own mind, that implicates the Self-Incrimination Clause.” (quotation simplified)). “Whatever else it may include, the definition of ‘testimonial’ must encompass all responses to questions that, if asked of a sworn suspect during a criminal trial, could place the suspect in the cruel trilemma” of “self-accusation, perjury, or contempt.” See Pennsylvania v. Muniz, 496 U.S. 582, 596–97 (1990) (quotation simplified).
¶28 “The most common form” of testimonial communication “is verbal or written communications—the vast amount of which will fall within the privilege” provided by the Fifth Amendment. Eunjoo Seo v. State, 148 N.E.3d 952, 955 (Ind. 2020). Indeed, the United States Supreme Court has made clear that “[t]here are very few instances in which a verbal statement, either oral or written, will not convey information or assert facts,” and that therefore “[t]he vast majority of verbal statements thus will be testimonial.” See Doe, 487 U.S. at 213.
¶29 On the other hand, citizens may be compelled to take various nonverbal actions without implicating the Fifth
¶30 Likewise, “a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the [Fifth Amendment] privilege.” Hubbell, 530 U.S. at 35–36; see also id. at 36 (stating that a person “could not avoid compliance with [a] subpoena served on him merely because the demanded documents contained incriminating evidence, whether written by others or voluntarily prepared by himself“). However, although voluntarily created documents are not themselves protected by the Fifth Amendment, its self-incrimination principles may be implicated when a suspect is asked to participate in the production of such documents, because “the act of production itself may implicitly communicate statements of fact” that the government may not already know, such as the fact that the documents “existed, were in his possession or control, and were authentic.” Id. at 36 (quotation simplified); see also Muniz, 496 U.S. at 595 n.9 (explaining that “nonverbal conduct contains a testimonial component whenever the conduct reflects the actor‘s
¶31 In his noteworthy dissenting opinion in Doe, Justice Stevens offered an example of the difference between a verbal testimonial communication and a nonverbal nontestimonial action, stating that a person “may in some cases be forced to surrender a key to a strongbox containing incriminating documents,” but that person cannot “be compelled to reveal the combination to his wall safe—by word or deed.” See 487 U.S. at 219 (Stevens, J., dissenting). The majority opinion in Doe agreed with Justice Stevens‘s formulation, stating that it did “not disagree with the dissent that ‘[t]he expression of the contents of an individual‘s mind’ is testimonial communication,” but held that the act of “compulsion” at issue in that case “is more like ‘being forced to surrender a key to a strongbox containing incriminating documents’ than it is like ‘being compelled to reveal the combination to [a] wall safe.‘” Id. at 210 n.9 (majority opinion) (quoting id. at 219 (Stevens, J., dissenting)). And in Hubbell, in a majority opinion authored by Justice Stevens, the Supreme Court fully endorsed the combination safe/strongbox key distinction, holding that requiring a suspect to identify and assemble “the hundreds of documents responsive to the requests in [a] subpoena” was testimonial because it was “like telling an inquisitor the combination to a wall safe, not like being forced to surrender the key to a strongbox.” See Hubbell, 530 U.S. at 43 (citing Doe, 487 U.S. at 210 n.9). Thus, according to the United States Supreme Court, a statement—by word or deed—communicating a combination to a wall safe is testimonial, but the act of handing over a key to a strongbox is nontestimonial. See Davis, 220 A.3d at 547 (“[T]he Supreme Court has made, and continues to make, a distinction between physical production and testimonial production.“).
¶32 There are several ways in which law enforcement officers might go about gaining access to a suspect‘s locked cell phone, once a search warrant for that phone has been procured. Among them are these: (a) asking the suspect to communicate the access code to law enforcement officers, or (b) asking the suspect to personally unlock the phone, whether through biometric means (e.g., a fingerprint) or through entry of numbers or a swipe pattern, and then turn over the unlocked phone. In scenario (a), the suspect is asked to tell the officers what the code is, the officers learn that code, and may later enter the code into the phone themselves; in scenario (b), by contrast, the suspect is not asked to, and does not, communicate the code to law enforcement officers.
¶33 Scenario (a) is very much akin to revealing the combination to a wall safe, and is dissimilar from surrendering the key to a strongbox. See Hubbell, 530 U.S. at 43; Doe, 487 U.S. at 210 n.9. Indeed, while we are aware of no Utah law on this topic, various courts and commentators have recognized that, by asking a suspect to—orally or in writing—communicate the actual passcode to a cell phone, law enforcement officers seek a response that is testimonial in ways that simply turning over an unlocked phone is not, because such a request asks for the code itself. See, e.g., Davis, 220 A.3d at 548 (explaining that “the revealing of a computer password is a verbal communication, not merely a physical act that would be nontestimonial in nature,” and that “one cannot reveal a passcode without revealing the contents of one‘s mind“); United States v. Kirschner, 823 F. Supp. 2d 665, 669 (E.D. Mich. 2010) (noting that “forcing [a defendant] to reveal the password for the computer communicates that factual assertion to the government, and thus, is testimonial—it requires [a defendant] to communicate ‘knowledge,’ unlike the production of a handwriting sample or a voice exemplar” (quoting Doe, 487 U.S. at 217)); see also United States v. Spencer, No. 17-CR-00259-CRB-1, 2018 WL 1964588, at *2 (N.D. Cal. Apr. 26, 2018) (stating that “the government could not compel [the defendant] to state the password itself, whether
¶34 In this case, Second Detective testified that he explained to Valdez that he “had a search warrant” for the phone and that he “was asking for [Valdez‘s] pass code,” and that Valdez responded by “refus[ing] to give [Second Detective] the pass code.” We acknowledge that, during trial, Second Detective was not directly queried about whether he asked Valdez to provide the government with the swipe code, or whether he merely asked Valdez to input the swipe code himself and hand over the unlocked phone; we also acknowledge that Second Detective did not specify whether he asked Valdez to provide the swipe code via verbal description or by writing it down on paper. Nevertheless, we think the best reading of the record is that Second Detective asked Valdez to tell him, by word or deed, what the swipe code was. Second Detective stated that he “asked for” the passcode, and that Valdez refused “to give [him] the pass code.” We therefore proceed with the understanding that scenario (a), above, applies here: that the government asked
¶35 By making such a request, Second Detective asked Valdez to make an affirmative verbal statement, whether orally or in writing, that would have unquestionably been testimonial. To put it in Justice Stevens‘s terms, the government was asking Valdez to provide the equivalent of “the combination to [his] wall safe,” a request that asked Valdez to reveal to the government the “contents of his own mind.” See Doe, 487 U.S. at 210 n.9, 211 (quotation simplified). This “verbal statement,” whether it took oral or written form, would have “convey[ed] information or assert[ed] facts” to the State that it could have used to further its investigation and prosecution of Valdez. Id. at 213 (“The vast majority of verbal statements thus will be testimonial and, to that extent at least, will fall within the [Fifth Amendment‘s] privilege.“); see also Davis, 220 A.3d at 548. Accordingly, the request the State made of Valdez asked for a response that would have been testimonial in nature.
C. The Foregone Conclusion Exception
¶36 The State does not strenuously resist the conclusion that the statement Valdez was asked to make was, at least to some degree, testimonial. Instead, it asserts that, even if the requested statement could be considered to have testimonial aspects, Fifth Amendment protections do not apply; the State contends that the statement Valdez was asked to make had “minimal testimonial significance” because the things the statement would have revealed were “foregone conclusions.” Stated another way, the State, citing Fisher, 425 U.S. at 410–13, invokes what it refers
¶37 In Fisher, the Supreme Court was not concerned with a verbal communication. Id. at 409 (analyzing the testimoniality of the act of responding to “a documentary summons“). As noted, verbal statements almost always “convey information or assert facts” and are nearly always “testimonial.” See Doe, 487 U.S. at 213. But when the communication in question is the act of producing documents or other tangible goods, the question of testimoniality becomes much closer. See Fisher, 425 U.S. at 410–13. As the Fisher court noted, even an act of production might have “communicative aspects of its own, wholly aside from the contents of the papers produced,” such as, for instance, conceding “the existence of the papers demanded and their possession or control by” the subpoenaed party. Id. at 410.
¶38 But on the facts of Fisher, the Court determined that the communicative aspects of the act of production required of the subpoenaed party were too insignificant to warrant Fifth Amendment protection. In reaching that conclusion, the Court noted that, while the party‘s act of producing the documents would reveal the existence of the documents as well as the fact that copies of them were in the party‘s custody, those pieces of information were “a foregone conclusion and . . . add[ed] little or nothing to the sum total of the [g]overnment‘s information.” Id. at 411. In Fisher, the government already knew exactly which documents it was seeking, and it already knew that the subpoenaed party possessed them. Id. at 393–94. Thus, the party‘s act of producing the documents would reveal nothing to the government that it did not already know, and therefore the Court held that the party‘s “Fifth Amendment privilege [was] not violated because nothing [the party] has said or done is deemed to be sufficiently testimonial.” Id. at 411.
¶39 After Fisher, the Supreme Court has mentioned the foregone conclusion exception only once more, in Hubbell, again
¶40 Since Hubbell, lower courts have taken various approaches in their application of the foregone conclusion exception. Some courts and commentators have been reluctant to expand the scope of the exception, given the Supreme Court‘s own apparent view that the exception is limited. See, e.g., Garcia v. State, 302 So. 3d 1051, 1056–57 (Fla. Dist. Ct. App. 2020), review granted, No. SC20-1419, 2020 WL 7230441 (Fla. Dec. 8, 2020); G.A.Q.L. v. State, 257 So. 3d 1058, 1065–66 (Fla. Dist. Ct. App. 2018) (Kuntz, J., concurring); State v. Andrews, 234 A.3d 1254, 1287–88 (N.J. 2020) (LaVecchia, J., dissenting), petition for cert. filed, No. 20-937 (Jan. 7, 2021); Davis, 220 A.3d at 548–49; see also LaFave, 3 Criminal Procedure § 8.13(a) (stating that “requir[ing] the subpoenaed party to reveal a passcode that would allow [the government] to perform the decryption . . . would require a testimonial communication standing apart from the act of production, and therefore make unavailable the foregone conclusion doctrine“). These authorities emphasize the fact that, in both Fisher and Hubbell—the only times the Supreme Court has mentioned the foregone conclusion exception—the Court was analyzing the testimoniality of an act of production of documents, and not the testimoniality of a verbal statement. In Davis, for instance, the Pennsylvania Supreme Court described the “foregone conclusion gloss on a Fifth Amendment analysis” as “an extremely limited exception” to Fifth Amendment self-incrimination principles, and noted that the Supreme Court had “never applied or considered the foregone conclusion exception” outside the context of analyzing the testimoniality of the act of producing “business and financial records.” See 220 A.3d at 549; see also G.A.Q.L., 257 So. 3d at 1066 (Kuntz, J., concurring) (noting
¶41 Other courts and commentators have taken a different approach, and have proceeded to analyze, on the merits, the applicability of the foregone conclusion exception to situations in which a suspect is forced to disclose the passcode to a cell phone. See, e.g., Andrews, 234 A.3d at 1273 (referring to a statement communicating a passcode as “a testimonial act of production,” and proceeding to analyze, on the merits, whether the foregone conclusion exception applied to the facts of the case); Davis, 220 A.3d at 553–57 (Baer, J., dissenting) (referring to “the compulsion of [the suspect‘s] password” as “an act of production,” and urging the court to conclude that “the foregone conclusion exception may potentially apply to cases involving the compelled disclosure of a computer password“). These authorities appear to recognize that the foregone conclusion exception has been applied by the Supreme Court only in the context of analyzing the testimoniality of acts of production of documents, but they nevertheless conclude that the act of communicating one‘s passcode to the government falls into the category of an “act of production.”
¶42 We find the more limited approach to be more consistent with governing, binding case law. No Utah appellate court has considered the reach of the foregone conclusion exception. And
¶43 Moreover, given the vintage of the foregone conclusion cases, and the fact that the Supreme Court issued Fisher decades before cell phones were in widespread use, we have our doubts about whether the Supreme Court would extend the foregone conclusion concept to verbal statements that convey to the government the passcode to a modern cell phone. Such devices “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Riley v. California, 573 U.S. 373, 393 (2014); see also United States v. Djibo, 151 F. Supp. 3d 297, 310 (E.D.N.Y. 2015) (noting that a modern smartphone can contain, in digital form, the “combined footprint of what has been occurring socially, economically, personally, psychologically, spiritually, and sometimes even sexually, in the owner‘s life“). And in a pair of recent cases, the Supreme Court has expressed hesitancy in applying analog-era legal rules to our fast-paced
¶44 Accordingly, we conclude that the foregone conclusion exception has no potential application here, where Valdez was asked to provide his swipe code to Second Detective, and was not merely asked to turn over an unlocked phone.6 Valdez‘s
verbal response—whether oral or written—to Second Detective‘s request would have been testimonial in nature, in that it would have conveyed to the government information contained in Valdez‘s mind, namely, the pattern of his swipe code. And as already stated, it is not contested here that the statement may have been at least indirectly incriminating, and that the State implied at trial that Valdez had an obligation to provide the swipe code. Thus, all three prerequisites for Fifth Amendment protection are present here: compulsion, testimoniality, and self-incrimination.
D. The State‘s Use of the Evidence
¶45 “The mere mention” of a defendant‘s decision to remain silent, however, does not violate that defendant‘s constitutional rights. State v. Saenz, 2016 UT App 69, ¶ 10, 370 P.3d 1278 (quotation simplified). Instead, what the
¶46 Here, the State did more than merely mention Valdez‘s refusal to provide the swipe code. One of Valdez‘s main defenses was his claim—supported by Ex-Wife‘s trial testimony—that his encounter with Ex-Girlfriend had been friendly rather than adversarial, and had been preceded by a sexually charged text message exchange discussing reconciliation. During its closing argument, the State attempted to rebut this defense by pointing out that no such text messages were in evidence, and by urging the jury to disbelieve Ex-Wife‘s account of the text messages she claimed to have seen. In so doing, the State described the “efforts that were taken to get into [Valdez‘s] phone to determine what, if any, communication happened between” him and Ex-Girlfriend, and noted that Valdez had been given an opportunity to allow officers to access his cell phone—on which such messages could presumably be found—and that he “chose to decline to” provide the passcode.7
¶47 In its closing narrative, the State quite clearly invited the jury to draw an inference of guilt from Valdez‘s silence. And 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). In this vein, the Utah Supreme Court has declared that “a prosecutor commits constitutional error” by making a statement that is “of such character that a jury would naturally and necessarily construe it to amount to a comment on the failure of the accused” to speak. State v. Nelson-Waggoner, 2004 UT 29, ¶ 31, 94 P.3d 186 (quotation simplified).
¶48 In sum, Valdez had a
¶49 But not “all federal constitutional errors, regardless of their nature or the circumstances of the case, require reversal of a judgment of conviction.” Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). And “in the context of a particular case, certain constitutional errors, no less than other errors, may have been ‘harmless.‘” Id. However, when the error in question is “constitutional in nature, . . . its harmlessness is to be judged by a higher standard.” See State v. Villarreal, 889 P.2d 419, 425 (Utah 1995) (quotation simplified). Under that higher standard, “reversal is required unless the error is harmless beyond a reasonable doubt,” State v. Drommond, 2020 UT 50, ¶ 105, 469 P.3d 1056 (quotation simplified), and—at least for preserved claims of constitutional error—“the burden to demonstrate harm [or lack thereof] . . . shifts from the defendant to the State when a constitutional error is alleged,” see State v. Bond, 2015 UT 88, ¶ 37, 361 P.3d 104; see also Chapman v. California, 386 U.S. 18, 24 (1967) (stating that “constitutional error . . . casts on someone other than the person prejudiced by it a burden to show that it was harmless“).
¶50 Under this harmless error standard, we must attempt to “determine the probable impact of the testimony on the minds of the average juror.” Drommond, 2020 UT 50, ¶ 105 (quotation simplified). In undertaking this inquiry, we “evaluate several factors,” including “the importance of the witness‘s testimony in the prosecution‘s case, whether the testimony was cumulative, the presence or absence of evidence collaborating or contradicting the testimony of the witness on material points, the extent of cross-examination permitted, and, of course, the overall strength of the prosecution‘s case.” Id. (quotation simplified). If we “may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt,” then the conviction will be affirmed despite the error. See State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (quotation simplified). On the other hand, “we cannot declare federal constitutional
¶51 Under the circumstances presented here, the State has not carried its burden of demonstrating that its improper use of evidence that Valdez refused to provide his swipe code was harmless beyond a reasonable doubt. Valdez‘s chief defense to the charges was that the entire encounter with Ex-Girlfriend had not been a kidnapping or an assault, but instead had been voluntary on her part, and even a mutual effort toward reconciliation. And Ex-Wife‘s testimony describing sexually charged text messages between Ex-Girlfriend and Valdez on the morning of the incident was an important part of Valdez‘s defense. Indeed, the State recognized the importance of Ex-Wife‘s testimony by discussing it—and attempting to rebut it—during closing argument by arguing that Valdez‘s refusal to provide the swipe code indicated that no such text messages existed. See State v. Ellis, 2018 UT 2, ¶ 43, 417 P.3d 86 (stating that one factor leading to the conclusion that the admission of the evidence was not harmless was that “[t]he prosecution emphasized [it] during closing argument“).
¶52 And while the prosecution‘s case was certainly supported by some persuasive evidence, we do not consider its case to have been so overwhelming as to render the error harmless beyond a reasonable doubt. Ex-Girlfriend‘s testimony was corroborated, in part, by Witness‘s account, especially Witness‘s perception that Valdez had been attempting to prevent Ex-Girlfriend from leaving the vehicle. But other portions of Ex-Girlfriend‘s testimony were unsupported by other evidence. Indeed, the physical evidence pointed to a more minor altercation than the one Ex-Girlfriend reported. Ex-Girlfriend had a broken hair clip and a small cut on her lip, but no other signs of injury.
¶53 Given the total evidentiary picture presented here, we have reasonable doubt about whether the improperly admitted evidence made a difference in the outcome of this case. Accordingly, the State has not carried its burden of demonstrating that the error was harmless beyond a reasonable doubt. On this basis, we reverse Valdez‘s conviction and remand for further proceedings, including potentially a new trial.
II.
¶54 Valdez also raises a number of additional claims on appeal. First, he argues that his attorney rendered ineffective assistance of counsel in several respects, including the following: by failing to object to Second Detective‘s testimony opining on the veracity of Ex-Girlfriend‘s statements, and by failing to object to the length and detail of First Detective‘s narrative of the incident. Second, Valdez asserts that the trial court erred when it excluded Aunt‘s testimony. Because we reverse and remand for a new trial solely on the basis of the
¶55 The testimony the State elicited from Second Detective regarding his opinion of the veracity of Ex-Girlfriend‘s statements was improper and inadmissible “vouching” testimony, and the trial court was correct to step in, of its own
¶56 In addition, we are concerned about the State‘s—and the trial court‘s—conception of the scope of the so-called “police investigation exception” to the usual ban on hearsay testimony. In State v. Collier, 736 P.2d 231 (Utah 1987), our supreme court held that a police officer was allowed to testify that a confidential informant had told him, prior to a raid on a house, that an occupant was “armed and would not be taken alive.” Id. at 233 (quotation simplified). The court held that this brief testimony, though consisting of another declarant‘s out-of-court statement that might otherwise be considered hearsay, was admissible because it “was not admitted to prove the truth of the information“—that the occupant of the house was in fact armed and refused to be taken alive—but “rather to explain the conduct of the police in setting up an armed stakeout of the [house].” Id. at 234. Other jurisdictions have likewise recognized that limited
¶57 Finally, we make brief mention of Valdez‘s assertion that Aunt should have been allowed to testify. On appeal—but not before the trial court—Valdez argues, citing State v. Thompson, 2014 UT App 14, ¶ 29, 318 P.3d 1221 (stating that rule 608(b) does not bar “evidence used to directly rebut a witness‘s testimony or other evidence“), that Aunt‘s testimony should have been allowed as ordinary impeachment evidence,
CONCLUSION
¶58 Valdez‘s
Notes
Even if we were to conclude that the foregone conclusion exception could apply to verbal statements, or that Valdez‘s statement was an act of production to which the exception could conceivably apply, it would not necessarily follow that the facts of this case fit within the exception‘s ambit. Courts and commentators are deeply split about which conclusions must be clear and foregone in order for the exception to apply. Some have concluded that the exception applies only if the government can show that it already knew, prior to requesting access to the cell phone, exactly which limited set of documents it was seeking and that those documents were to be found on the phone. See, e.g., In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670 F.3d 1335, 1346 (11th Cir. 2012) (concluding that the foregone conclusion exception did not apply where the government could not show that it knew “whether any files exist and are located on the hard drives“); People v. Spicer, 125 N.E.3d 1286, 1291 (Ill. App. Ct. 2019) (“We consider that the proper
At oral argument, the State asserted that, even if it was not permitted to comment on Valdez‘s silence, it was permitted to emphasize Valdez‘s additional statement that officers should “destroy the phone.” On the record before us, we disagree. As an
To establish ineffective assistance of counsel, Valdez would have to show that his attorney‘s representation “fell below an objective standard of reasonableness” and that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).