State v. Ramos , 428 P.3d 334 ( 2018 )

2018 UT App 161THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
HARLIN ARGELIO RAMOS,
Appellant.
Opinion
No. 20160075-CA
Filed August 23, 2018
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 141904935
Debra M. Nelson, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 “Please don’t kill me. I have kids.” Victim’s plea was in vain,
as Defendant Harlin Argelio Ramos stabbed him eight times,
including a fatal thrust to the heart. After fleeing the scene,
police located and arrested Ramos. In his interview, Ramos
alleged that Victim had been the aggressor and that he had only
acted in self-defense. The State charged Ramos with murder. At
trial, the judge instructed the jury on both perfect and imperfect
self-defense, and on the lesser-included offense of imperfect-self-
defense manslaughter. One of those instructions was flawed, but
the error was not prejudicial. The jury convicted Ramos as
charged, and he timely appeals. We affirm.
State v. Ramos
BACKGROUND
The Murder
¶2 Shortly after 1:00 a.m. on a mid-April morning, Victim
and Friend had just finished watching a late movie at a movie
theater. Because they had driven separately, Victim walked
Friend to her car and she drove him back to his own. Before
parting ways, the two talked in the car. While they conversed,
Friend noticed two men—Ramos and his accomplice
(Accomplice)—walk in front of her car and look at her in a way
that “made [her] very uncomfortable.” The men’s behavior
alarmed her so much that she removed her Taser from the glove
compartment and rested it on the center console. Victim,
however, seemed unconcerned about the men and continued
their conversation.
¶3 Just as Victim was about to exit the vehicle, Ramos
suddenly opened the passenger door and thrust his “whole arm”
inside. Friend thought Ramos was reaching for her keys in an
attempt to rob her. Victim pushed Ramos away and the two
struggled outside of the car. Meanwhile, Friend closed her
passenger door and went to call 911, but accidentally dropped
her phone on the car floor. She then locked her car doors,
honked her horn, screamed for help, and tried to find her phone.
¶4 When Friend looked back up, Victim and Ramos were
no longer within eyesight, so she opened her door and
stepped out of her car to find them. She heard Victim
screaming “Please don’t kill me. I have kids. Please don’t
kill me.” Friend then grabbed her Taser and ran around to
the front of her car. She found Victim on the ground
with Ramos straddling Victim’s lower abdomen and upper legs.
She thought that Ramos was punching Victim, so
she approached Ramos from behind and applied her Taser to
the back of his pant leg, but it had no effect.
20160075-CA 2 2018 UT App 161State v. Ramos
¶5 Realizing that the Taser needed to contact skin, Friend
pulled down the collar of Ramos’s jacket and applied the Taser
to the back of his neck. Ramos tried to fight her off, and she ran
back to her car, locked her car doors, began honking her horn
and screaming for help. Having located her phone, she then
dialed 911. Ramos and Accomplice then fled the scene on foot
and were soon thereafter picked up by a taxi driver. 1 As Friend
waited for someone to answer her 911 call, she saw Victim
stagger in front of her car and fall near her door. Friend opened
her door and heard Victim say, “I’m dying. Please help me.”
¶6 As the 911 operator answered, an off-duty paramedic
(Paramedic) responded to Friend’s cries for help. Paramedic
testified that, as he approached, he saw Ramos “cross in front of
him and look directly at him.” Paramedic rolled Victim onto his
back to triage and treat his injuries, and soon thereafter he
started CPR.
¶7 Meanwhile, Witness, whose apartment overlooks the
crime scene, was watching television at home when he heard a
woman screaming for help. From his vantage point, Witness
saw two men assaulting another man and pinning him to
the ground. Thinking that a robbery was in progress,
Witness went to help, but by the time he arrived, Paramedic
had already begun treatment. Police and on-duty paramedics
soon arrived and took over, but Victim had already passed
away.
1. The taxi driver (Taxi Driver) and Ramos were well-
acquainted: Ramos used Taxi Driver’s service regularly, getting
rides approximately “two to three times a week,” and Taxi
Driver allowed Ramos to use Taxi Driver’s home address to
purchase a cell phone because Ramos lacked a permanent
address. The day before the murder, Taxi Driver also paid for
Ramos’s room at the motel where Ramos was later arrested by
police.
20160075-CA 3 2018 UT App 161State v. Ramos
¶8 Victim suffered nine sharp-force injuries: three to his
chest, two to his upper back, two to his abdomen, one to his
armpit, and one to the back of his right hand that was consistent
with a defensive injury. All wounds were likely inflicted by a
single-edged knife. The blade had entered Victim’s chest and
penetrated completely through his heart, “fully perforat[ing]”
his “right ventricle.” This was “a lethal injury” that stopped
Victim’s heart “within minutes.” Victim’s left lung was
punctured twice, once from the front and once from the back,
which hastened his death.
The Arrest
¶9 Before police arrived, Ramos and Accomplice 2 fled the
scene as Victim bled out. On arrival, police found two backpacks
on site, one of which contained a cell phone receipt with Ramos’s
name on it, as well as his identification card. Police eventually
located Ramos at a motel and arrested him. In the motel room,
police found a t-shirt, a black jacket, and black athletic pants—all
bloodstained—in the trash can in Ramos’s room. DNA testing
revealed Victim’s blood on the t-shirt, jacket, and pants.
Additionally, Ramos’s fingerprint was on the front passenger
door of Friend’s car.
¶10 Ramos was given his Miranda warnings 3 and agreed to be
interviewed by police. He informed police that he did not speak
English, so the interview was conducted in Spanish. His
interview resulted in several conflicting accounts. Initially,
Ramos said that he and Accomplice had planned to meet a “taxi”
from “someone who had a white sedan” and had mistaken
2. Accomplice never contacted police about the case, nor were
the police ever able to find him.
3. See generally Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16
L.Ed.2d 694 (1966).
20160075-CA 4 2018 UT App 161State v. Ramos
Friend’s car for the taxi. He further alleged that as he
approached the door, Victim had jumped out and started hitting
him in the head, grabbed his throat, and lifted him completely
off of the ground. Ramos stated that as Victim hit him, Ramos
said “‘sorry, sorry,’ and ‘no problem,’” in English, but Victim
continued to choke Ramos until he “became desperate” because
he was “being asphyxiated.” Ramos said he exclaimed, “Help
me, help me, he is going to kill me,” and then pulled out his
knife and stabbed Victim.
¶11 When a detective told Ramos to “tell the truth,” Ramos
responded by claiming he was “confused” and maintained that
he was attacked by Victim. But he then stated that he believed
that Victim was somehow associated with a violent street gang
and feared that they had come to harm him.
¶12 When the detective again asked Ramos to tell the truth,
Ramos gave yet another version of the events, claiming that he
had approached the vehicle because “he was selling drugs and
he thought the people in the car wanted some.” He continued to
state that Victim had exited the car, began hitting and choking
him, and because Ramos had drugs in his mouth that night, he
spit them out when he was choked. But police did not recover
any drugs at the murder scene or in Ramos’s backpack or motel
room. Ramos also told police initially that he dropped the knife
as he fled the scene, but later said that he “may have thrown it
away” with his clothing. Despite a thorough search, police did
not find a knife in the area.
The Taxi Driver
¶13 Three days after the murder, the police interviewed Taxi
Driver. He also testified at trial, but his two accounts differ
significantly. During his police interview, Taxi Driver told police
that Ramos called him “around 1:00 a.m., 1:30 a.m., or 1:40 a.m.”
But when police asked to see Taxi Driver’s phone log, he said
that he had deleted it. A review of Ramos’s phone records
20160075-CA 5 2018 UT App 161State v. Ramos
showed no outgoing calls to Taxi Driver during the 1:00 a.m.
hour. Instead, Ramos’s log showed only that Taxi Driver had
called him at 1:08 a.m. that morning. Taxi Driver testified that
after he got Ramos’s call, it took him “fifteen or twenty minutes
to drive from his West Valley home to [the murder scene], and
that he parked and waited another fifteen or twenty minutes
before [Ramos] and [Accomplice] ‘arrived.’” Taxi Driver also
initially told police that he did not see the fight and that Ramos
claimed to have been hit, but did not mention being strangled.
¶14 Taxi Driver testified differently at trial. There, he stated
that he operated a private taxi service and that on the night of
the murder, Ramos called him in the early morning for a ride.
Taxi Driver claimed that he saw both Ramos and Accomplice
getting into a car. He then saw an angry man get out of that car
and heard Ramos say in Spanish, “This isn’t the right car,
sorry.” 4 Taxi Driver said that the man refused to accept the
apology and fought with Ramos. Taxi Driver further testified
that he never saw Ramos with a knife but did see a woman try to
tase Ramos. Taxi Driver stated that Ramos looked “dizzy” and
fell, and that he “was bleeding all over [the left side of] his face,”
but photographs taken upon Ramos’s arrest show only one
abrasion on his forehead and no other injury to his face.
¶15 When asked about the discrepancies in his accounts,
Taxi Driver testified that he was “nervous” during the
police interview and “might have omitted a few details
here and there.” Taxi Driver asserted that he had testified to
“the truth”—that he witnessed the fight, including Ramos
being choked, and that Ramos had asked for help because
the man was “killing him.”
4. Taxi Driver arrived in his car, a white Nissan Versa. The Versa
was a hatchback without tinted windows. Friend’s car was a
white four-door Toyota Corolla sedan with tinted rear windows.
20160075-CA 6 2018 UT App 161State v. Ramos
The Strangulation Evidence
¶16 Ramos suffered minor injuries. At the time of his arrest,
he had scratches on his neck, a scrape on his forehead, and one
abrasion above his left clavicle. At trial, two experts testified to
his injuries, Defense Expert and Medical Examiner. Medical
Examiner testified that he did not see evidence of petechial
hemorrhaging 5 or other signs of strangulation, and opined that
“[y]ou’d expect to see damage both externally as well as
internally” if a person were lifted completely off the ground by
their neck. In contrast, Defense Expert testified that Ramos
showed signs of strangulation—abrasions on his neck and
petechiae on his skin. 6 Her opinion was founded on her review
of police photographs taken when they arrested Ramos, as well
as her own examination and interview of Ramos more than
thirteen months after the murder. However, Defense Expert
conceded that the scratches could have been consistent with
having been tased on the neck by Friend.
Summary of Proceedings
¶17 The State charged Ramos with one count of murder. At
trial, Friend testified that she heard Victim screaming, “Please
5. Petechial hemorrhaging is caused by significant strangulation.
State v. Lopez, 789 P.2d 39, 41 n.2 (Utah Ct. App. 1990). “High
pressure arterial blood continues to pump into the head from the
heart while blood is unable to leave the head through the veins
because of the ligature. As the pressure builds, blood vessels
burst, resulting in hemorrhaging in the skin and the whites of
the eyes.” Id.
6. When medical personnel examined him the day of his arrest,
Ramos did not mention, much less complain, that he had been
strangled. He also showed no difficulty eating or drinking and
never asked police for any medical treatment.
20160075-CA 7 2018 UT App 161State v. Ramos
don’t kill me. I have kids. Please don’t kill me.” Thereafter, the
prosecutor asked Friend what kind of cell phone Victim had and
whether she knew “what was on the screen of his cell phone?”
Friend responded, “He had a picture of his two little boys.”
When the prosecutor asked, “A picture of his two little boys?”
Friend nodded her head affirmatively. The prosecutor never
introduced the picture of Victim’s two boys.
¶18 The judge then instructed the jury on both perfect and
imperfect self-defense, and on the lesser-included offense of
imperfect-self-defense manslaughter. While the imperfect-self-
defense instruction correctly instructed the jury on the State’s
burden of proof, both parties agree that the instruction on
imperfect-self-defense manslaughter misstated that burden. 7
Instruction 34, which defined the elements of imperfect-self-
7. The State concedes that Instruction 34 was flawed. The three
other related instructions were correctly given. First, Instruction
33 correctly stated the elements instruction for murder,
informing the jury that to convict Ramos of murder, the State
had to prove beyond a reasonable doubt that Ramos
intentionally or knowingly killed Victim without any legal
justification. Second, Instruction 39 correctly explained the
State’s burden to disprove self-defense, stating, “Once self-
defense is raised by the defendant, it is the prosecution’s burden
to prove beyond a reasonable doubt that the defendant did not
act in self-defense.” Instruction 39 continued, “The defendant
has no particular burden [of] proof but is entitled to an acquittal
if there is any basis in the evidence sufficient to create reasonable
doubt.” Finally, Instruction 48 correctly instructed the jury on
the State’s burden of proof on imperfect self-defense. It
explained that the defense applies when a “defendant caused the
death of another while incorrectly, but reasonably, believing that
his conduct was legally justified or excused.” It also explained
that if the State did not carry its burden, Ramos could “only be
convicted of Manslaughter Involving a Dangerous Weapon.”
20160075-CA 8 2018 UT App 161State v. Ramos
defense manslaughter, contradicted Instruction 48 and
misinformed the jury about the State’s burden to disprove
imperfect self-defense. Instruction 34 incorrectly told the jury
that it could convict Ramos of imperfect-self-defense
manslaughter only if it found, beyond a reasonable doubt, that
the defense applied. The instruction stated,
You may consider the lesser included offense of
“Manslaughter Involving a Dangerous Weapon.”
To do so you must find from all of the evidence
and beyond a reasonable doubt each and every one
of the following elements of that offense. That on
or about April 19, 2014, in Salt Lake County, Utah:
1. The defendant . . . individually or as a
party to the offense;
2. Either:
(a) Recklessly caused the death of
[Victim]; or
(b) Caused the death of [Victim]
under circumstances where the
defendant reasonably believed the
circumstances provide a legal
justification or excuse for his conduct,
although the conduct was not legally
justifiable or excusable under the
existing circumstances; and
3. A dangerous weapon was used in the
commission or furtherance of this act.
After you carefully consider all the evidence in this
case, if you are convinced that each and every
element has been proven beyond a reasonable
20160075-CA 9 2018 UT App 161State v. Ramos
doubt, then you must find the defendant GUILTY
of Manslaughter Involving a Dangerous Weapon.
On the other hand, if you are not convinced that
one or more of these elements has been proven
beyond a reasonable doubt, then you must find the
defendant NOT GUILTY of Manslaughter
Involving a Dangerous Weapon.
¶19 The jury was further instructed that it could consider the
offense of manslaughter under Ramos’s imperfect-self-defense
theory only if it found “from all of the evidence and beyond a
reasonable doubt each and every one of the . . . elements of that
offense.” These statements impermissibly shifted the burden to
Ramos because they either infer that the burden rests upon
Ramos or they are vague concerning which party bears the
burden of proof. 8
¶20 The jury convicted Ramos of murder, and he timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 Ramos brings two claims on appeal. He first contends
that his trial counsel was constitutionally ineffective for failing
to object (1) to the erroneous imperfect-self-defense
manslaughter jury instruction and (2) to the prosecutor’s
questions regarding photos of Victim’s children on his cell
phone. “When a claim of ineffective assistance of counsel is
raised for the first time on 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
8. Jury instructions should, at all times, clearly express that the
State bears the burden of proof. See State v. Lee, 2014 UT App 4,
¶ 27, 318 P.3d 1164.
20160075-CA 10 2018 UT App 161State v. Ramos
law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587(cleaned up).
¶22 Ramos also argues that the cumulative effect of trial
counsel’s error “should undermine this Court’s confidence in the
jury’s verdict.” “Under the cumulative error doctrine, we will
reverse only if the cumulative effect of the several errors
undermines our confidence that a fair trial was had.” State v.
Kohl, 2000 UT 35, ¶ 25, 999 P.2d 7 (cleaned up).
ANALYSIS
I. Ramos’s Counsel Was Not Constitutionally Ineffective
¶23 “To ensure a fair trial, the Sixth Amendment of the U.S.
Constitution guarantees the right to effective assistance
of counsel.” State v. Campos, 2013 UT App 213, ¶ 23, 309 P.3d
1160; see also U.S. Const. amend. VI. To prevail on an
ineffective assistance of counsel claim, a defendant must (1)
“identify specific acts or omissions demonstrating that
counsel’s representation failed to meet an objective standard
of reasonableness,” and (2) show that “but for counsel’s
deficient performance there is a reasonable probability that
the outcome of the trial would have been different.” State v.
Montoya, 2004 UT 5, ¶¶ 23–24, 84 P.3d 1183 (cleaned up). In
other words, to show constitutional ineffectiveness, Ramos
must prove both deficient performance and prejudice. See
Strickland v. Washington, 466 U.S. 668, 687–89, 694 (1984); State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. 9
9. Ramos also argues that the court’s failure to ensure proper
jury instruction constitutes plain error. But a party to an appeal
cannot take advantage of an error that it invited the trial court to
commit. See Pratt v. Nelson, 2007 UT 41, ¶ 17, 164 P.3d 366. Thus,
(continued…)
20160075-CA 11 2018 UT App 161State v. Ramos
A. Failure to Object to the Flawed Jury Instruction
¶24 Because imperfect self-defense is an affirmative
defense, Ramos was entitled to the benefit of it—reduction of a
murder conviction to manslaughter—unless the State
proved beyond a reasonable doubt that the defense did not
apply. See State v. Low, 2008 UT 58, ¶ 45, 192 P.3d 867; State v. Lee,
2014 UT App 4, ¶ 27, 318 P.3d 1164; Campos, 2013 UT App 213,
¶ 38. The State concedes that sufficient evidence exists in the
record to support the trial court’s giving of a self-defense
instruction. Thus, Ramos was entitled to a proper self-
defense instruction. Accordingly, Ramos contends that his
trial counsel was constitutionally ineffective by failing to
object to the flawed jury instruction.
¶25 A court need not review the deficient performance
element before examining the prejudice element. See
State v. Galindo, 2017 UT App 117, ¶ 7, 402 P.3d 8. “If it is
easier to dispose of an ineffectiveness claim on the ground
of lack of sufficient prejudice, that course should be followed.”
Id. (cleaned up). Here, we follow that course because
Ramos cannot carry the heavy burden of demonstrating that
the erroneous instruction prejudiced him.
(…continued)
“a jury instruction may not be assigned as error even if such
instruction constitutes manifest injustice if counsel, either by
statement or act, affirmatively represented to the court that he or
she had no objection to the jury instruction.” State v. Geukgeuzian,
2004 UT 16, ¶ 9, 86 P.3d 742 (cleaned up). Here, Ramos did not
merely fail to object; he agreed to the instruction. When the court
discussed the proposed jury instruction for imperfect-self-
defense manslaughter, trial counsel stated, “We don’t have an
issue with this instruction, Judge.” Counsel therefore invited the
error in the instruction and precluded any plain error review.
20160075-CA 12 2018 UT App 161State v. Ramos
¶26 To prove prejudice, Ramos must demonstrate “a
reasonable probability” that but for counsel’s performance, “the
result of the proceeding would have been different.” Strickland,
466 U.S. at 694. “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. Thus,
even when a jury instruction is erroneous, the error may
nevertheless be harmless given the evidence. See State v.
Hutchings, 2012 UT 50, ¶¶ 24–28, 285 P.3d 1183; see also Green v.
Louder, 2001 UT 62, ¶ 17, 29 P.3d 638 (noting that an erroneous
jury instruction is harmless if “we are not convinced that
without this instruction the jury would have reached a different
result”).
¶27 Ramos argues that we must presume prejudice because
there is “a reasonable basis for the jury to conclude that
imperfect self-defense applied,” and therefore “there is
necessarily a reasonable probability . . . that, but for counsel’s
error, the result would have been different.” (quoting State v.
Garcia, 2016 UT App 59, ¶ 25, 370 P.3d 970, aff'd in part, rev'd in
part, 2017 UT 53). When assessing the “reasonable probability
that the jury would have returned a more favorable verdict . . . if
properly instructed,” Lee, 2014 UT App 4, ¶ 33, the court must
“consider the totality of the evidence” before the jury, see
Hutchings, 2012 UT 50, ¶ 28. When we consider the totality of the
evidence here, we do not find a reasonable probability that the
result would have been different had the jury been properly
instructed.
¶28 In State v. Garcia, 2017 UT 53, our supreme court held that,
based on the totality of the evidence, the defendant was not
prejudiced by a similarly worded, erroneous imperfect-self-
defense instruction. Id. ¶ 45 (“When we examine the record as a
whole, counsel’s error does not undermine our confidence in the
jury’s verdict finding [Defendant] guilty of attempted murder
rather than attempted manslaughter. The evidence [in favor of
attempted murder] overwhelmed the evidence that [Defendant]
acted in imperfect self-defense.”).
20160075-CA 13 2018 UT App 161State v. Ramos
¶29 Like Ramos’s jury instruction, the instruction in Garcia
incorrectly stated that the jury “needed to find beyond a
reasonable doubt that imperfect self-defense did not apply in
order to convict [Defendant] of attempted manslaughter.” Garcia,
2016 UT App 59, ¶ 11. This instruction was erroneous because it
“improperly placed the burden upon [Defendant] to prove his
affirmative defense beyond a reasonable doubt rather than
correctly placing the burden on the State to disprove the defense
beyond a reasonable doubt.” See State v. Lee, 2014 UT App 4,
¶ 27, 318 P.3d 1164.
¶30 But on appeal, our supreme court concluded that the
defendant suffered no prejudice because counsel’s error did not
undermine the court’s confidence in the jury’s verdict. “The
evidence that [Defendant] was motivated by a desire to kill . . .
overwhelmed the evidence that [Defendant] acted in imperfect
self-defense.” Garcia, 2017 UT 53, ¶ 45. Said another way, just
because there was enough evidence to justify giving the
imperfect-self-defense instruction does not mean that the jury
would have found that it applied. The State’s evidence against
Garcia was so overwhelming that even had the proper
instruction been given, there was not a reasonable probability
that the outcome would have been different, since the jury could
not “reasonably have found that Garcia acted in imperfect self-
defense such that a failure to instruct the jury properly
undermines confidence in the verdict.” Id. ¶¶ 42–44.
¶31 Similarly, Ramos suffered no prejudice because there was
no reasonable probability that but for his counsel’s performance,
“the result of the proceeding would have been different” such
that the error “undermine[s] [our] confidence in the outcome.”
Strickland v. Washington, 466 U.S. 668, 694 (1984); see also Lee, 2014
UT App 4, ¶¶ 29–33 (holding that even erroneous affirmative-
defense instructions do not cause prejudice where
overwhelming evidence against the defendant demonstrates that
there is no reasonable probability that the jury would have
20160075-CA 14 2018 UT App 161State v. Ramos
found that defendant acted reasonably or with legal
justification).
¶32 The evidence against Ramos was so overwhelming that
there was no “reasonable probability” that but for counsel’s
performance regarding the jury instruction, “the result of the
proceeding would have been different.” Strickland, 466 U.S. at
694. Ramos alleged imperfect self-defense, but several factors
weigh heavily against his claim. Victim was stabbed not once,
but nine times; Ramos was not alone, but attacked Victim with
the help of Accomplice; Ramos’s injuries, in comparison to
Victim’s, were minimal; and after repeatedly and fatally stabbing
Victim, Ramos did not seek or await law enforcement, but
instead fled. Finally, when Ramos was apprehended and talked
to law enforcement, he gave significantly inconsistent stories
about what happened.
¶33 Furthermore, because Instruction 48 more plainly and
separately outlines the burden of proof, it is not reasonably
likely that the jury was confused as to the burden of proof, such
that the outcome of the case would have been different.
Instruction 48 read,
Imperfect self-defense is a partial defense to the
charge of Murder. It applies when the defendant
caused the death of another while incorrectly, but
reasonably, believing that his conduct was legally
justified or excused. The effect of the defense is to
reduce the crime of Murder to Manslaughter
Involving a Dangerous Weapon.
The defendant is not required to prove that the
defense applies. Rather, the State must prove
beyond a reasonable doubt that the defense does
not apply. The State has the burden of proof at all
times. If the State has not carried this burden, the
20160075-CA 15 2018 UT App 161State v. Ramos
defendant may only be convicted of Manslaughter
Involving a Dangerous Weapon.
¶34 Where the instructions contained an express statement
correctly identifying the party who bore the burden of proof, we
find it unlikely that the jury misapplied the law. In the parlance
of Strickland, we do not believe that the misstatement of the law
changed the outcome in this case and we remain unpersuaded
that correcting the instruction would likely change the result
here.
¶35 Ramos’s contention that he was prejudiced based solely
on his entitlement to a correctly drafted imperfect-self-defense
instruction fails. Because Ramos has not shown any error that
undermines our confidence in the jury’s verdict, we conclude
that he did not receive ineffective assistance of counsel.
B. Failure to Object to Questioning Regarding Victim’s
Children
¶36 Ramos also argues that his trial counsel was
constitutionally ineffective by failing to object to Friend’s
testimony that Victim had a picture of his two sons on his cell
phone. As discussed, to show that his counsel was ineffective,
Ramos must prove both that his counsel performed deficiently
and that he was prejudiced as a result. See Strickland v.
Washington, 466 U.S. 668, 687–89, 694 (1984). Because there were
multiple strategic reasons not to object, Ramos cannot
demonstrate that no reasonable attorney would have failed to
object, and his contention fails.
¶37 First, counsel could have reasonably concluded that the
testimony was relevant. Evidence is relevant if it has “any
tendency to make a fact more or less probable than it would be
without the evidence” and “the fact is of consequence in
determining the action.” Utah R. Evid. 401(a). Counsel could
have reasonably concluded that the testimony that Victim had a
20160075-CA 16 2018 UT App 161State v. Ramos
picture of his boys on his cell phone cleared this low threshold
by helping corroborate Friend’s account of the stabbing,
including her testimony that Victim begged for his life because
he had children.
¶38 Second, trial counsel could have reasonably concluded
that the testimony about the cell phone picture was cumulative.
The jury already knew from Friend’s testimony that Victim was
a father. Therefore, trial counsel could have reasonably chosen
not to object based on the fact that the information was not new
to the jury.
¶39 In sum, counsel had valid reasons not to object to the
testimony Ramos now claims counsel should have opposed.
Ramos therefore has not rebutted the presumption that his
counsel’s performance was objectively reasonable. See Strickland,
466 U.S. at 687–89. Because he fails to demonstrate deficient
performance, we need not address prejudice, and his argument
fails.
II. Cumulative Error Doctrine Is Unavailing
¶40 Ramos’ final contention is that because “the evidence that
[he] was guilty of murder . . . was not overwhelming” the
cumulative errors in his trial undermine the jury verdict. We are
not persuaded, having concluded that the only error that
occurred at trial was harmless.
¶41 The cumulative error doctrine applies only when
“collective errors rise to a level that undermine[s] [an appellate
court’s] confidence in the fairness of the proceedings.” See State
v. Perea, 2013 UT 68, ¶ 105, 322 P.3d 624. Here, we have not
found any prejudicial error, and therefore the application of the
cumulative error doctrine is inapplicable. See State v. Killpack,
2008 UT 49, ¶ 56, 191 P.3d 17, abrogated on other grounds by State v.
Wood, 2018 UT App 98.
20160075-CA 17 2018 UT App 161State v. Ramos
CONCLUSION
¶42 Ramos’s trial counsel did not provide constitutionally
ineffective assistance in failing to object to the flawed imperfect-
self-defense manslaughter jury instruction. Further, counsel did
not provide ineffective assistance in not objecting to testimony
regarding the picture of Victim’s children on his cell phone.
Finally, based on the lack of multiple errors, the requirements of
the cumulative error doctrine have not been met.
¶43 Affirmed.
20160075-CA 18 2018 UT App 161