State v. Crespo , 409 P.3d 99 ( 2017 )

2017 UT App 219THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SANTIAGO DIAZ CRESPO,
Appellant.
Opinion
No. 20150631-CA
Filed November 24, 2017
Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 131902928
Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES
DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
TOOMEY, Judge:
¶1 Faced with a rape accusation that he believed was
motivated by a disputed drug debt, Santiago Diaz Crespo asked
his associate (Codefendant) to offer the victim (Victim) cocaine
to “get him in the door” to talk to Victim about retracting the
rape accusation. Shortly after Victim let Codefendant into her
apartment to smoke crack cocaine and talk about the accusation,
Crespo appeared in her doorway, gun drawn, and fired three
shots. A few moments later, Crespo and Codefendant ran from
Victim’s apartment, leaving her dead. They were each charged
with murder; aggravated burglary; and purchase, transfer,
possession or use of a firearm by a restricted person. In exchange
for dismissing the murder charge against him, Codefendant
State v. Crespo
agreed to plead guilty to the other charges and to testify against
Crespo at trial.
¶2 Crespo was convicted and now appeals, claiming that his
conviction was not supported by sufficient evidence due to the
“self-serving and inconsistent testimony of a highly incentivized
snitch,” that defense counsel rendered ineffective assistance of
counsel when counsel failed to request a cautionary jury
instruction related to Codefendant’s testimony, and that the
district court erred in failing to properly inquire into the nature
of a conflict Crespo developed with defense counsel. We
conclude there was sufficient evidence to convict Crespo of all
charges, that defense counsel rendered effective assistance, and
that the district court adequately inquired into the nature of the
conflict between Crespo and his defense counsel. Accordingly,
we affirm.
BACKGROUND
The Murder
¶3 Crespo was a drug dealer who sold drugs to Victim. 1
Crespo and Victim were friends. But a few days before Victim’s
murder, she reported to the police that Crespo had raped her.
Codefendant, who dealt drugs for Crespo, testified that both he
and Crespo believed Victim’s accusation was an attempt to
avoid paying her drug debt to Crespo. Though Crespo had
informed Codefendant that he had already discussed the rape
accusation with Victim and that they worked out the issue, the
person who drove Crespo during his drug runs (Driver),
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted).
20150631-CA 2 2017 UT App 219State v. Crespo
testified that Crespo was angry about the accusation the day of
Victim’s murder. During one of their drives, Crespo called
Victim’s neighbor (Neighbor), another of his customers, to ask if
he could borrow a gun, but Neighbor did not have a gun to lend.
Neighbor testified that Crespo did not mention why he needed a
gun, but that reason soon became apparent. Crespo then made
another phone call, during which he expressed his anger about
Victim’s rape allegation and said, “Dead bitches can’t talk.”
¶4 On the night of the murder,2 Crespo, Codefendant,
Driver, and others met at a hotel to drink alcohol and use drugs.
During this time, Victim and Codefendant exchanged text
messages and phone calls related to her desire to buy drugs, the
drugs Codefendant had available, and when he would bring
them to Victim.
¶5 Before going to Victim’s apartment, Crespo and
Codefendant spoke with another individual at the hotel, Friend,
about guns and ammunition. Friend loaned a Phoenix .22 caliber
gun to Codefendant, assuming it was for safety or for use as a
scare tactic. Crespo, who had obtained a gun before meeting the
others at the hotel, offered Friend one hundred dollars’ worth of
cocaine in exchange for .22 caliber ammunition. After collecting
the guns and ammunition, Driver drove Crespo and
Codefendant to Victim’s apartment.
¶6 During the drive, Crespo told Codefendant to convince
Victim not to press charges for rape. He gave Codefendant
cocaine to give to Victim, free of charge, to entice her to allow
Codefendant inside her apartment for a conversation. Crespo
2. Victim’s murder occurred in the early morning hours of the
day, between 3:24 and 3:56 a.m. But because the events leading
to her murder began the evening before, this opinion refers to
the period surrounding the murder as the “night of the murder.”
20150631-CA 3 2017 UT App 219State v. Crespo
also said that while Codefendant met with Victim, Crespo would
visit another friend in the area, waiting to hear whether Victim
wanted to discuss the accusation with him further. Codefendant
continued to text Victim that he was on his way to her apartment
with the drugs she requested. At 3:24 a.m., Victim, still waiting,
sent a text asking, “Where are you?”
¶7 Just before reaching Victim’s street, Crespo told Driver to
park a block away from her apartment, even though he usually
parked in front of it. Codefendant and Crespo exited the car and,
at first, walked in opposite directions. According to Driver,
Crespo originally walked toward another friend’s house, but
after about thirty seconds turned around and walked toward
Victim’s apartment. Private security cameras installed on a
house where Driver parked his car corroborated Driver’s
account of this event.
¶8 Sometime between 3:24 and 3:56 a.m., Codefendant
arrived at Victim’s apartment. Crespo’s plan to offer her free
cocaine was successful, and she invited Codefendant inside to
smoke it. They began smoking, but their conversation about the
rape accusation did not get far. Victim said that “there [was] no
way in heaven to hell” she would ever talk to or see Crespo
again, and she refused to recant her accusation. Codefendant did
not push her on this and said he would let Crespo know how
she felt. But before he left, Crespo, who Codefendant testified
was waiting outside the door listening to the conversation, “flew
through the door with his gun drawn,” pointing it first at
Codefendant then at Victim. He walked closer to Victim and
started shooting. Codefendant claimed he “blacked out” when
the shooting began, and it was as though he “saw it but [did not]
remember seeing it.” The next thing he remembered was
standing at the front door and listening as more shots were fired
before Crespo pushed him, saying, “Come on, let’s get out of
here.”
20150631-CA 4 2017 UT App 219State v. Crespo
¶9 They both ran from the apartment toward a gas station
rather than back to Driver’s car. When Codefendant reached the
gas station, he deleted his text message conversation with Victim
but, at 3:56 a.m., sent her a final text saying, “I’m not coming” in
an effort “to hide the fact” that he was at Victim’s apartment
when she was murdered. Codefendant ordered a taxicab to drive
him and Crespo back to the hotel.
¶10 Neighbor heard the gunshots and went to Victim’s
apartment to check on her. He found her lying behind the front
door, bleeding from her head, and checked for a pulse while
calling 911. When the dispatcher asked Neighbor to attempt to
resuscitate Victim, he informed the dispatcher she had no pulse.
Victim was pronounced dead on the scene and had sustained
three gunshot wounds. She had been shot in the arm, the chest
(puncturing a lung and her heart and lodging in her spine), and
the head. The wounds to Victim’s chest and head were
independently lethal.
¶11 Meanwhile, Driver waited at his car for Crespo and
Codefendant for about forty-five minutes, unaware of the events
that had transpired or that Crespo and Codefendant had taken a
taxicab to the hotel. Driver eventually grew impatient and drove
past Victim’s apartment in an effort to find his companions, but
instead discovered police cars and an ambulance. When he
returned to the hotel room and saw Crespo and Codefendant
already there, he was upset and had “a million questions” about
what happened but refrained from asking them after Crespo
gave him a look that Friend interpreted as: “I’ll talk to you later.”
Crespo fell asleep soon after Driver returned to the hotel while
Codefendant attempted to create an alibi for everyone at the
hotel to agree upon.
¶12 The next day, Driver drove Friend to a fast food
restaurant and noticed that Friend’s gun, which he had allowed
Codefendant to borrow the night before, was on the floor of the
20150631-CA 5 2017 UT App 219State v. Crespo
car. Driver asked Friend why he would bring the gun, and
Friend responded, “I didn’t bring that.” Driver became worried
because Codefendant had not been in his car since the previous
evening. The two men suspected Codefendant might be trying to
frame Driver, so Driver decided to thoroughly search his car.
During his search, Driver found some keys that Codefendant
asked him to hold onto the night before, but he had refused to
do so. He also found women’s clothing he did not recognize and
had not been there the previous evening.
The Investigation
¶13 During the next few months, the police investigated
Victim’s murder. Codefendant contemplated turning himself in
but did not do so. And at trial, Codefendant admitted he had
been “rather deceitful” in his initial police interviews. In each
interview, Codefendant provided more details regarding the
events surrounding the murder. First, he claimed that he never
went into Victim’s apartment but had stayed outside and that
only Crespo went inside. In subsequent interviews, he admitted
bringing the gun he had borrowed from Friend to Victim’s
apartment. Then, in his final interview, he admitted he entered
her apartment to smoke crack cocaine and claimed that his
fingerprints were likely on the murder weapon because he had
loaded Crespo’s gun.
¶14 The police recovered the gun Codefendant had borrowed
from Friend, compared the ballistics from the crime scene, and
concluded it was not the murder weapon. The ballistics expert
testified that the casings recovered from the crime scene were .22
caliber casings and they were all fired from the same gun.
Crespo’s .22 caliber gun was never recovered. Neither was the
murder weapon.
¶15 Crespo was charged with murder; aggravated burglary;
and purchase, transfer, possession, or use of a firearm by a
restricted person. Codefendant was charged with murder;
20150631-CA 6 2017 UT App 219State v. Crespo
aggravated burglary; and obstruction of justice with a gun
enhancement for the possession of a firearm by a restricted
person. 3 Codefendant entered into a “conditional agreement”
with the State to testify truthfully against Crespo at trial and
pled guilty to the remaining charges in exchange for the State
dismissing his murder charge.
The Trial
¶16 Crespo’s jury trial lasted four days. On the second day of
trial, Crespo attempted to dismiss his two appointed defense
attorneys. He informed the court that he had received only
“half” of the “discovery papers,” had not had a chance to
examine a piece of evidence admitted at trial, specifically, a
hooded sweatshirt with blood on it that Codefendant wore the
night of the murder, and felt his counsel were his “enemies.” The
court explained that the hooded sweatshirt was in the State’s
possession and that he could have access to it during a break in
the trial. The court then asked Crespo what he thought he had
not received and asked how not having those items harmed him.
Crespo said only that he “want[ed] to know what[ was] going
on” in his case. Crespo insisted he did not want his counsel to
represent him, so the court engaged in a commonly used
colloquy for defendants who choose to represent themselves.
¶17 As the court began the colloquy, the State suggested that
Crespo have a “cooling down session” with his counsel. The
prosecutor then commented, “[T]hese two lawyers are fine
lawyers, some of the top lawyers in the state. [One of them] has
handled some of the top [capital murder] cases in this state.”
3. Driver was also charged with aggravated burglary, but those
charges were dropped due to a lack of evidence and because he
was willing to testify truthfully against “the more culpable
parties.”
20150631-CA 7 2017 UT App 219State v. Crespo
Crespo was adamant about not wanting to talk to his counsel,
but the court encouraged him to do so and provided him the
opportunity to view the hooded sweatshirt he claimed he had
not seen. After Crespo viewed the evidence and talked with his
counsel, the court said, “You do have a right to represent
yourself. Where are you at right now? What do you think?”
Crespo responded, “We proceed like this,” and defense counsel
continued to represent him through the remainder of the trial.
¶18 Before the case was submitted to the jury, defense counsel
moved for a directed verdict, arguing that the defense had
shown that Codefendant’s testimony was “inherently unreliable
and not credible.” Defense counsel explained that Codefendant
gave “numerous inconsistent statements” and, as a result of his
“deal to have his murder charge[] dismissed for testifying,” he
had motivation to fabricate his testimony. In making this
argument, defense counsel pointed to Codefendant’s concession
that he erased the text messages that informed Victim of his
imminent arrival with drugs and then, in an effort to hide that he
was in the apartment when she was murdered, sent her a
message saying, “I’m not coming.” In addition, other witnesses
testified Codefendant was the person who sought an alibi and
planted evidence in Driver’s car. The district court denied the
motion because Codefendant’s testimony was “corroborated by
not only the ballistics experts but the other individuals who were
there that night and discussed where everybody went at what
time, . . . who got picked up . . . , and then it was corroborated by
the texts and phone calls.”
¶19 During closing arguments, defense counsel highlighted
the inconsistencies in Codefendant’s testimony and explained
there was more evidence to suggest Codefendant murdered
Victim. Defense counsel also reviewed the witness credibility
jury instruction, line-by-line, and applied it directly to
Codefendant’s testimony. For example, defense counsel said:
20150631-CA 8 2017 UT App 219State v. Crespo
[T]here’s a whole list of things here to take into
account, but a few of them are like, does the
witness have something to gain or lose in this case?
Yeah. A lifetime in prison or not. Does the witness
have a reason to lie or slant his testimony? Yeah,
he’s the murderer. He’s going to plead guilty to
[aggravated burglary].
(Emphases added.) Defense counsel then asked,
“Was . . . [Codefendant’s] testimony consistent over time?” and
explained that even Codefendant “had to admit” that he
provided “a totally different story” at trial than he did in his
interviews with police. Defense counsel also pointed out that the
jury instruction allowed the jury to disbelieve part or all of the
testimony of any witness and encouraged the jury to completely
disregard Codefendant’s testimony. The remainder of defense
counsel’s closing argument focused on the inconsistencies
between the evidence and Codefendant’s testimony, and the
contradictions between his statements to the police, the trial
testimony, and the testimony of other witnesses. Defense counsel
concluded the argument by stating that the totality of the
evidence supported finding that Codefendant was the murderer
and that the jury should acquit Crespo.
¶20 The jury was unpersuaded and convicted Crespo of
murder and aggravated burglary.4 Crespo timely appealed.
4. The jury was instructed to return a verdict for only the murder
and aggravated burglary charges. Defense counsel submitted to
the district court that, based on the guilty verdicts as well as
Crespo’s prior felony convictions, the court should determine
whether Crespo was a restricted person in possession of a
firearm. The court found Crespo was a restricted person in
possession of a firearm. Crespo does not challenge this decision
and we therefore do not address whether it was appropriate.
20150631-CA 9 2017 UT App 219State v. Crespo
ISSUES AND STANDARDS OF REVIEW
¶21 Crespo raises four issues on appeal. First, he contends the
district court erred in denying his motion for a directed verdict
because “the evidence was insufficient to warrant conviction.”
“We will reverse a guilty verdict only when the evidence . . . is
sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” State v. MacNeill, 2017 UT App 48, ¶ 51, 397 P.3d 626(citation and internal quotation marks omitted).
¶22 Second, Crespo contends that “[d]efense counsel
ineffectively failed to request an instruction that the jury should
cautiously view [Codefendant’s] testimony.” 5 “When a claim of
ineffective assistance of counsel is raised for the first time on
5. Crespo also maintains the district court plainly erred in failing
to sua sponte offer the cautionary jury instruction. Because
defense counsel stated that he did not have any objections to the
jury instructions at trial, the invited error doctrine precludes us
from reviewing this claim under plain error. See State v. Winfield,
2006 UT 4, ¶¶ 14–15, 128 P.3d 1171 (“[U]nder the doctrine of
invited error, we have declined to engage in even plain error
review when counsel, either by statement or act, affirmatively
represented to the [district] court that he or she had no objection
to the [proceedings].” (third alteration in original) (citation and
internal quotation marks omitted)); see also State v. Hamilton, 2003
UT 22, ¶ 54, 70 P.3d 111 (explaining that we are precluded from
reviewing a jury instruction under the manifest injustice
exception “if counsel, either by statement or act, affirmatively
represented to the court that he or she had no objection to the
jury instruction”). Therefore, we address the asserted error with
respect to the cautionary jury instruction only in the context of
Crespo’s ineffective assistance of counsel claim.
20150631-CA 10 2017 UT App 219State v. Crespo
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Craft, 2017 UT
App 87, ¶ 15, 397 P.3d 889 (citation and internal quotation marks
omitted). To prevail on a claim of ineffective assistance of
counsel, the defendant must demonstrate “that counsel’s
performance was deficient” and that the “deficient performance
was prejudicial—i.e., that it affected the outcome of the case.” See
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)).
¶23 Third, Crespo contends the “[district] court plainly erred
in failing to properly inquire into the nature of the conflict
between defense counsel and [Crespo].” “To demonstrate plain
error, a defendant must establish that (i) an error exists; (ii) the
error should have been obvious to the [district] 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.” State
v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation and internal
quotation marks omitted).
¶24 Finally, Crespo has filed a rule 23B motion to remand the
case to the district court to “supplement the record with
evidence regarding [his] dissatisfaction with [defense] counsel.”
A remand under rule 23B is “available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Utah R. App. P. 23B(a).
ANALYSIS
I. Sufficiency of the Evidence
¶25 Crespo contends the district court erred in denying his
motion for a directed verdict because the evidence was
insufficient to support his murder conviction. Specifically,
20150631-CA 11 2017 UT App 219State v. Crespo
Crespo maintains the only evidence presented that placed him in
Victim’s apartment and as the person who fired the gun came
from the “inconsistent testimony of a highly incentivized
snitch”—Codefendant. When considering a sufficiency of the
evidence claim, “we review the evidence and all inferences
which may reasonably be drawn from it in the light most
favorable to the verdict of the jury.” State v. Nielsen, 2014 UT 10,
¶ 46, 326 P.3d 645 (citation and internal quotation marks
omitted). This court “must sustain the [district] court’s judgment
unless it is against the clear weight of the evidence, or if the
appellate court otherwise reaches a definite and firm conviction
that a mistake has been made.” State v. Larsen, 2000 UT App 106,
¶ 10, 999 P.2d 1252 (citation and internal quotation marks
omitted).
¶26 Crespo argues this court should reverse his conviction
because Codefendant’s testimony “‘suffered from multiple
inconsistencies,’” conflicted with other evidence, and was thus
“‘incredibly dubious and . . . apparently false.’” (Quoting State v.
Robbins, 2009 UT 23, ¶¶ 8, 18, 210 P.3d 288.)
¶27 In Robbins, a minor alleged that her stepfather sexually
abused her, but at trial, her “recollection of the alleged sexual
abuse incident suffered from multiple inconsistences,” including
changing “the age at which the abuse occurred,” her description
of what she was wearing, and the purported threats her
stepfather made if she told anyone about the abuse. Robbins, 2009
UT 23, ¶¶ 1, 8–9. To compensate for the inconsistencies, the
minor said “she had a hearing problem like her grandfather,”
which was “objectively not true.” Id. ¶ 8. A jury convicted
Robbins, and this court affirmed the conviction, holding that the
district court “could not disregard her testimony as inherently
improbable.” Id. ¶ 2 (citing State v. Robbins, 2006 UT App 324,
¶¶ 11, 19, 142 P.3d 589). Our supreme court reversed the
conviction and clarified the “inherent improbability standard” to
allow judges to reassess the credibility of a witness’s testimony
20150631-CA 12 2017 UT App 219State v. Crespo
when it is “the sole evidence that a crime was even committed”
and “there is a complete lack of circumstantial evidence.” Id.
¶¶ 18, 23.
¶28 The Robbins inherent improbability test does not apply
here. First, there was circumstantial evidence presented to the
jury that supported finding Crespo had perpetrated the crimes
charged. Cf. id. ¶ 18. Although Codefendant was the only
witness to identify Crespo as Victim’s murderer, there were
other “testifying witnesses that the jury could have relied upon
in reaching its verdict.” See Moore v. State, 27 N.E.3d 749, 757–58
(Ind. 2015) (concluding that “the first factor of the incredible
dubiosity rule has not been met because there were multiple
testifying witnesses that the jury could have relied upon in
reaching its verdict”). Driver testified that, on the day Victim
was murdered, Crespo was angry about the rape accusation and
told an acquaintance over the phone, “Dead bitches can’t talk.”
After that, Crespo called Neighbor who testified that Crespo
asked if Neighbor had a gun he could lend Crespo, but to no
avail. Later that same day, Crespo told Codefendant that
Codefendant had to get a gun for their next drug run, which he
obtained from Friend. Friend also gave Crespo extra .22 caliber
ammunition for the gun he had obtained. Shortly after that,
Driver drove Crespo and Codefendant near Victim’s apartment;
but instead of parking in front of her apartment as usual, Crespo
asked Driver to park one block away. Crespo then told Driver
and Codefendant he was going to visit a different friend while
Codefendant visited Victim. But Driver, who stayed with the car,
watched Crespo walk toward Victim’s apartment rather than in
the direction of his other friend’s house. When Crespo and
Codefendant did not return to the car after about forty-five
minutes, Driver returned to the hotel room, where Crespo and
Codefendant were waiting.
¶29 Not only were there witnesses who testified that Crespo
had a gun and went to Victim’s apartment the night of the
20150631-CA 13 2017 UT App 219State v. Crespo
murder, other evidence corroborated that testimony. For
example, a video recording from nearby security cameras
corroborated Driver’s and Codefendant’s testimony about
Crespo walking toward Victim’s apartment. At trial, the State
played portions of the video, and Codefendant identified the
three of them as the men who appeared in the video recording.
¶30 The ballistics evidence was also critical because it
excluded Codefendant’s gun as the murder weapon. The expert
ballistics witness examined the three cartridge casings and
confirmed they were fired from the same gun, but not
Codefendant’s borrowed gun. Crespo’s gun was never found; no
murder weapon was recovered.
¶31 Because other circumstantial evidence existed to
corroborate Codefendant’s account of the events, the Robbins
improbability test does not apply.
¶32 Crespo nonetheless argues that Codefendant’s testimony
was “purchased” by the State’s dismissal of the murder charge
against him and was inconsistent because Codefendant changed
his account of the events each time he was interviewed by police
and added new information to his account during the trial.
Crespo also argues that Codefendant’s testimony was
inconsistent with that of other witnesses. Though there may
have been some inconsistencies between each witness’s
testimony and Codefendant’s, the key pieces of information—
Crespo’s asking Neighbor for a gun, Crespo’s possession of a
gun the night of the murder, Crespo’s asking Friend for extra
ammunition and a gun for Codefendant, Crespo’s providing
cocaine to entice Victim to allow Codefendant into her
apartment, Crespo’s directing Driver to park in an unusual
location, and Crespo’s walking toward Victim’s apartment
minutes before the murder—were all corroborated through the
testimony of other witnesses at trial.
20150631-CA 14 2017 UT App 219State v. Crespo
¶33 Crespo argues that Codefendant’s testimony was “self-
serving,” “inherently improbable, biased, and incredibly
dubious,” but he admits that, although it was corroborated to
some extent, the evidence “did not actually link Crespo to the
shooting itself, but very well could have been perceived by the
jury that way.” It is the “exclusive function of the jury to weigh
the evidence and to determine the credibility of the witnesses,”
and “[s]o long as there is some evidence, including reasonable
inferences, from which findings of all the requisite elements of
the crime can reasonably be made,” we will not overturn a jury’s
verdict. State v. Davis, 2014 UT App 77, ¶ 4, 324 P.3d 678 (citation
and internal quotation marks omitted). In this case, the
circumstantial and other evidence presented to the jury was
sufficient for it to reasonably infer that Crespo committed the
murder and aggravated burglary.6
II. Defense Counsel’s Failure to Request a Cautionary
Jury Instruction
¶34 Crespo contends defense counsel “ineffectively failed to
request” a cautionary jury instruction relating to Codefendant’s
testimony. To prevail on a claim of ineffective assistance of
counsel, a defendant must show “counsel’s performance was
deficient” and that the “deficient performance was prejudicial—
i.e., that it affected the outcome of the case.” See State v.
6. We acknowledge that the evidence presented could have led
the jury to acquit Crespo, but it is within the province of the jury
to weigh the evidence and the credibility of each witness, and we
will not second-guess the jury’s conclusion. See State v. Maama,
2015 UT App 235, ¶ 43, 359 P.3d 1272 (“[I]n reviewing the
sufficiency of the evidence, we refuse to re-evaluate the
credibility of witnesses or second-guess the jury’s conclusion.”
(alteration in original) (citation and internal quotation marks
omitted)).
20150631-CA 15 2017 UT App 219State v. Crespo
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687–88 (1984)). To show that defense
counsel’s performance was deficient, the defendant must
persuade the court “that there was no conceivable tactical basis for
counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162(citation and internal quotation marks omitted).
¶35 In this case, Crespo has failed to demonstrate that defense
counsel’s failure to request a cautionary jury instruction was
deficient. Crespo asserts, “Utah law requires the jury to be
instructed that an accomplice’s ‘uncorroborated testimony
should be viewed with caution’ if that testimony is ‘self[-]
contradictory, uncertain or improbable.’” (Quoting Utah Code
Ann. § 77-17-7(2) (LexisNexis 2012)). We agree with Crespo but
note such a cautionary instruction is not required if the district
court does not find the accomplice’s uncorroborated testimony
to be “self[-]contradictory, uncertain, or improbable.” Utah Code
Ann. § 77-17-7(2). It falls within the district court’s discretion to
instruct the jury to view uncorroborated testimony with caution
if no such findings are made. See id.
¶36 Here, the district court did not find that Codefendant’s
testimony was self-contradictory, uncertain, or improbable. To
the contrary, when defense counsel moved for a directed verdict
arguing that Codefendant’s testimony was “inherently
unreliable and not credible,” the court denied the motion,
finding the testimony was “corroborated by not only the
ballistics experts but the other individuals who were there that
night.” It was therefore within the district court’s discretion to
deny a cautionary jury instruction. See id.; see also Mulder v. State,
2016 UT App 207, ¶ 23, 385 P.3d 708 (explaining that “even if
trial counsel had requested a cautionary instruction, the [district]
court could have exercised its discretion and denied such a
request”). Moreover, this court has previously concluded that,
where the “testimony is corroborated, we would of course be
especially reluctant to find an abuse of discretion in the failure to
20150631-CA 16 2017 UT App 219State v. Crespo
give [a cautionary] instruction.” State v. Guzman, 2004 UT App
211, ¶ 36, 95 P.3d 302.
¶37 In Guzman, this court determined that, even without a
cautionary instruction, the jury was “adequately apprised that
[the accomplice’s] testimony was to be taken with a grain of salt”
because the “need for caution was evident from [the
accomplice’s] own testimony” and the jury received a general
instruction evaluating witness credibility. Id. ¶¶ 38–39. There,
the accomplice admitted that he “lied to the police on numerous
occasions” and that “he was allowed to plead guilty to reduced
charges in exchange for his testimony at trial against [Guzman].”
Id. ¶ 37. Similarly to Guzman, Codefendant testified that he lied
to the police in his interviews and that he received a favorable
plea deal, amounting to a dismissal of the murder charge against
him, in exchange for testifying against Crespo. Crespo’s jury was
also furnished with a general instruction related to witness
credibility. We conclude that Crespo’s jury was adequately
apprised of the issues it might consider with respect to the
reliability of Codefendant’s testimony.
¶38 In closing argument, defense counsel covered the same
points as a cautionary jury instruction related to witness
credibility would have covered. Counsel referred to the general
witness-credibility instruction, then read and applied the
substantive questions within the instruction to Codefendant’s
testimony:
[D]oes the witness have something to gain or lose
in this case? Yeah. A lifetime in prison or not. Does
the witness have a reason to lie or slant his
testimony? Yeah, he’s the murderer. [Codefendant] is
going to plead guilty to entering her home with
intent to commit an assault with a gun.
(Emphases added.) Defense counsel then asked rhetorically
whether the “witness’s testimony was consistent over time.”
20150631-CA 17 2017 UT App 219State v. Crespo
Counsel explained that the witnesses, including Codefendant,
testified Codefendant gave “a totally different story” at trial
compared to his initial interviews with the police. Defense
counsel concluded his jury instruction discussion by stating that
the instruction allowed the jurors to believe as much or as little
of each witness’s testimony as it deemed appropriate and asked
the jurors to completely disregard Codefendant’s testimony. He
supported this by saying, “I can’t imagine a . . . stronger
incentive to fabricate a story than [‘]we’ll either send you to
prison for life or . . . dismiss the charge.[’]” He then directed the
jury to the evidence of the text messages between Codefendant
and Victim, reiterating that Codefendant texted Victim in the
hours preceding her murder to let her know that he would bring
her the drugs she wanted, then deleted those messages after her
murder and sent one final text saying, “I’m not coming.”
Defense counsel spent the remainder of the closing argument
demonstrating that the evidence supported finding that
Codefendant was the murderer, not Crespo, and that
Codefendant was not a credible witness.
¶39 Because defense counsel effectively explained the same
details of a cautionary instruction by applying specific evidence
as well as Codefendant’s testimony directly to the general
witness credibility instruction, we do not see how his failure to
request a cautionary instruction was deficient. See Guzman, 2004
UT App 211, ¶ 38. For the same reason, we cannot conclude
defense counsel’s performance prejudiced Crespo’s trial. 7
7. Crespo did not address the prejudice element other than to
state that, absent a cautionary instruction, “the jury likely gave
[Codefendant’s testimony] greater weight than they are entitled
to under the law. This error cannot be harmless given that
[Codefendant’s] testimony was the only evidence sustaining
Crespo’s conviction.” As we have explained, see supra ¶¶ 28–33,
Codefendant’s testimony was not the only evidence supporting
(continued…)
20150631-CA 18 2017 UT App 219State v. Crespo
III. Crespo’s Dissatisfaction with Defense Counsel
¶40 Crespo contends the district court “[plainly] erred in
failing to properly inquire into the nature of the conflict [with]
defense counsel.” He claims that he received only “half of the
discovery paperwork,” that he did not see a particular piece of
physical evidence before trial, and that counsel did not ask
“specific questions” that he wanted them to ask. He asserts that
the court “did not take sufficient steps to apprise itself of the
nature of the conflict and engaged in only perfunctory
questioning.”
¶41 To demonstrate plain error, Crespo must show “(i) an
error exists; (ii) the error should have been obvious to the
[district] 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.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276(citation and internal quotation marks omitted). Because we
conclude that no error existed, we address only the first prong of
the plain error test.
¶42 When dissatisfaction with appointed counsel is expressed,
“the court must make some reasonable, non-suggestive efforts to
determine the nature of the defendant’s complaints and to
apprise itself of the facts necessary to determine whether the
defendant’s relationship with his or her appointed attorney has
(…continued)
his conviction, and the jury is entitled to give as much weight to
a witness’s testimony as it deems appropriate, see State v. Davis,
2014 UT App 77, ¶ 4, 324 P.3d 678 (“So long as there is some
evidence, including reasonable inferences, from which findings
of all the requisite elements of the crime can reasonably be made,
our inquiry stops.” (citation and internal quotation marks
omitted)).
20150631-CA 19 2017 UT App 219State v. Crespo
deteriorated to the point that sound discretion requires
substitution” in order to comply with the right to counsel
guaranteed by the Sixth Amendment to the United States
Constitution. State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.
1987). This is a fact-intensive inquiry; indeed, we have declined
to “prescribe a checklist which [district] courts must run through
if any indicia of dissatisfaction should emerge.” Id.
¶43 In the jury’s presence, Crespo said, “I don’t want these
people to represent me. I don’t want them to defend me.” The
district court immediately excused the jury and inquired into
Crespo’s concerns. Crespo advised the court he was upset that
he had not personally received all of the discovery to which his
defense was entitled and had not yet had the chance to look at
some of the physical evidence. The only piece of physical
evidence Crespo was concerned about was Codefendant’s
hooded sweatshirt that had blood on it. The court explained that
it was in the State’s possession as one of its exhibits and that
Crespo would have the opportunity to look at it during the
break. 8
¶44 As Crespo further expressed his concern about having not
received all of the paperwork, the court asked him why he felt
that a failure to receive certain paperwork had harmed him.
Crespo responded that he did not feel that he knew what was
going on with his case and that his counsel were his “enemies.”
The court explained that, if Crespo chose to fire appointed
counsel, it would have to declare a mistrial, and he would have
to wait months for another trial. The district court began the
colloquy, but the State interrupted and recommended a “cooling
off” period. The court agreed it would be best to give Crespo
8. The court seemed to imply that, because defense counsel did
not have possession of the hooded sweatshirt, this was not a
reason for Crespo to be upset with his counsel.
20150631-CA 20 2017 UT App 219State v. Crespo
time to discuss his concerns with his counsel before finishing the
colloquy.
¶45 The court also asked defense counsel specific questions
related to Crespo’s concerns. Defense counsel explained,
“[T]here’s pages in the discovery that have no value to a
defendant . . . that he didn’t get, but he certainly has . . . access to
what I consider to be substantial discovery.” After Crespo spoke
with his counsel and had an opportunity to view the hooded
sweatshirt, the district court informed Crespo that he had the
right to represent himself then asked, “Where are you at right
now? What do you think?” Crespo responded, “We proceed like
this,” and defense counsel represented him for the remainder of
the trial.
¶46 Based on the record, we cannot agree with Crespo that the
district court “made virtually no inquiry” into the nature of the
conflict with defense counsel. Instead, the record shows the
court made reasonable efforts to apprise itself of the basis for
Crespo’s complaints to determine whether the relationship had
“deteriorated to the point that sound discretion require[d]
substitution” of counsel. See Pursifell, 746 P.2d at 273. We
therefore conclude there was no plain error.
IV. The Rule 23B Remand
¶47 Crespo filed a Utah Rule of Appellate Procedure 23B
motion to remand to “supplement the record with evidence
regarding Mr. Crespo’s dissatisfaction with counsel.” A remand
under rule 23B is “available upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.”
Utah R. App. P. 23B(a). The motion (1) “must be supported by
affidavits alleging facts outside the existing record,” State v.
Tirado, 2017 UT App 31, ¶ 14, 392 P.3d 926, (2) “the alleged facts
must be non-speculative,” id., and (3) “these allegations could
support a determination that counsel’s ineffectiveness prejudiced
20150631-CA 21 2017 UT App 219State v. Crespo
the result,” State v. Griffin, 2015 UT 18, ¶ 30. Our supreme court
has explained that, “[i]n the context of rule 23B, speculative
allegations are those that have little basis in articulable facts but
instead rest on generalized assertions.” Id. ¶ 19. Crespo’s motion
and supporting affidavit amount to speculative allegations.
¶48 Crespo asserts that the “record needs to be developed as
to what paperwork defense counsel admittedly failed to give Mr.
Crespo, whether counsel prepared the case for trial with Mr.
Crespo[,] and what the parties discussed outside the
courtroom.” But he has failed to provide non-speculative facts to
support the need for a remand. For example, Crespo and his
appellate counsel have had access to the record for this appeal,
including the “discovery papers,” but have not provided
examples of discovery he did not receive or how this could have
affected the result of his trial. 9 In addition, his affidavit explains
that, based on conversations with counsel, off the record, he felt
coerced into “giving [counsel] another chance” and to not testify
on his own behalf at trial. But he has not explained the nature of
9. Crespo explained in his affidavit that he “did not receive some
of the police interviews from witnesses, including one where
[Codefendant] says that we came back to the hotel separately,
where he testified we came back together.” He asserts that, if he
had had this information, he could have told counsel “much of
the evidence they needed to present or question witnesses
about.” We cannot find this interview in the record. But, now
that he is aware of this interview, Crespo has still failed to
provide us with any “additional evidence [counsel] needed to
present” or questions he could have provided for counsel to ask
the witnesses, much less how this could have changed the result
of his trial. And as explained previously, counsel managed to get
Codefendant to repeatedly concede he lied to the police in his
initial interviews and that his trial testimony differed from those
interviews in many respects.
20150631-CA 22 2017 UT App 219State v. Crespo
those conversations or what was said that made him feel
coerced.
¶49 The purpose of a remand is not to allow for a “fishing
expedition” to discover new, non-record facts but to provide the
opportunity to supplement the record with facts already
discovered that could support a claim of ineffective assistance of
counsel. See id. ¶¶ 19, 29–30 (concluding remand was proper
because the allegations and supporting affidavits “could support
a determination that counsel’s ineffectiveness prejudiced the
result”). Crespo’s claims are purely speculative and do not
support a rule 23B remand. Accordingly, we deny the motion.
CONCLUSION
¶50 We conclude there was sufficient evidence for a jury to
convict Crespo on all three charges. Even though Codefendant’s
testimony changed over time, his testimony was corroborated by
key pieces of evidence at trial. We also conclude that Crespo’s
defense counsel was not ineffective for failing to request a
cautionary jury instruction because it was not required under
Utah law, and defense counsel’s closing arguments had the same
effect as if the court provided the jury with such an instruction
regarding, specifically, Codefendant’s credibility. Finally, we
conclude that the district court adequately inquired into the
nature of Crespo’s dissatisfaction with his defense counsel.
¶51 Affirmed.
20150631-CA 23 2017 UT App 219