State of Utah v. Lopez

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State of Utah,
Plaintiff and Appellee,

v.

Gilbert Lopez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 981085-CA

F I L E D
September 30, 1999
  1999 UT App 272 -----

Third District, Salt Lake Department
The Honorable Leslie A. Lewis

Attorneys:
Robert K. Heineman, Salt Lake City, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

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Before Judges Bench, Davis, and Jackson.

JACKSON, Judge:

"Because new counsel represents [Lopez] in this appeal and because we believe the record is adequate to review his claims of ineffective assistance of counsel on direct appeal, we will review those claims as a matter of law." State v. Maestas, 367 Utah Adv. Rep. 15, 17 (Utah 1999).

To show ineffective assistance of counsel, Lopez must bear the weighty burden of establishing that "(1) trial counsel rendered deficient performance which fell below an objective standard of reasonable professional judgment, and (2) counsel's deficient performance prejudiced him." State v. Chacon, 962 P.2d 48, 50 (Utah 1998). Counsel's failure to bring motions that would have been futile does not equal ineffective assistance. See Parsons v. Barnes, 871 P.2d 516, 525 (Utah 1994).

After carefully reviewing the record here vis-a-vis the factors identified and developed in State v. Ramirez, 817 P.2d 774, 782-84 (Utah 1991) (affirming trial court's denial of motion to suppress eyewitness identification), and its progeny, see, e.g., State v. Rivera, 954 P.2d 225, 228-29 (Utah Ct. App. 1998) (applying Ramirez factors to determine reliability in probable cause context); State v. Perry, 899 P.2d 1232, 1236-38 (Utah Ct. App. 1995); State v. Mincy, 838 P.2d 648, 656-58 (Utah Ct. App. 1992), we conclude that a motion to suppress, as constitutionally unreliable, the eyewitness identifications in this case would have been futile.(1)

First, the witnesses' opportunity to view Lopez during the robbery compares favorably with the witness's opportunity to view the defendant in Ramirez. See Ramirez, 817 P.2d at 782-83. The witnesses here could view Lopez's unobstructed face for several seconds from just a few feet away. See id. at 782. The lighting was apparently not ideal, but then the lighting in Ramirez may not have been any better. See id. at 783. The record is devoid of information about noises or activities that may have distracted the witnesses' attention. See id. at 782; Perry, 899 P.2d at 1237.

Second, the witnesses in this case appear to have focused a sufficient "degree of attention" to Lopez. Ramirez, 817 P.2d at 783. As in Ramirez, the witnesses were "fully aware that a robbery was taking place." Id. Before the robbery even occurred, Donny had apparently already seen Lopez leaving the gas station across the street, guessed his intentions, and warned the other two witnesses.

Third, the witnesses appeared to have even greater capacity to observe the defendant during the robbery than the witness in Ramirez did. See id. Unlike the Ramirez witness, the witnesses here had not been hurt by a suspect. See id. The record shows no impairment of the witnesses' capacity to observe Lopez other than the "heightened degree of stress" presumed to accompany such an event. Id.; see Rivera, 954 P.2d at 228. Lopez's suggestion that Rick's capacity to observe was impaired by his possible prejudice toward Hispanics is tempered by the fact that both Rick's wife and his business partner were Hispanic.

Fourth, the witnesses' identifications were sufficiently spontaneous and consistent to be admissible. A relatively short time passed between the robbery and the showup. See Ramirez, 817 P.2d at 783. The witnesses never failed to identify Lopez as one of the robbers. See id. Some inconsistencies exist between the witnesses' descriptions and actual physical characteristics,(2) as well as between initial descriptions and later descriptions. Also, the witnesses were exposed to each other's opinions at the showup. However, under the "totality of the circumstances," id. at 781, these concerns do not persuade us that the identifications were inadmissibly unreliable. See id. at 783-84; Perry, 899 P.2d at 1237-38; Mincy, 838 P.2d at 658; cf. Rivera, 954 P.2d at 228 (holding inconsistencies did not make identification "so inherently unreliable that it could not support a showing of probable cause").

Finally, the showup was troublesome, but not as "blatant[ly] suggestive[]" as the one in Ramirez. Ramirez, 817 P.2d at 784. Lopez was not the only suspect in the showup, nor was he the only suspect in handcuffs. See id. Other of the showup's troubling features are quite similar to those of Ramirez, in which the identification was admitted. See id.; Perry, 899 P.2d at 1238; cf. Rivera, 954 P.2d at 229 (upholding identification for probable cause purposes although noting circumstances of showup were "remarkably similar to those in Ramirez").

Accordingly, we conclude a motion to suppress would have been futile. Thus, Lopez's ineffective assistance claim fails. Affirmed.
 
 
 
 

______________________________
Norman H. Jackson, Judge

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WE CONCUR:
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge

1. We further note that counsel might reasonably have chosen not to move to suppress the identifications as part of a valid trial strategy to exploit and attack the inconsistencies in the witnesses' testimonies.

2. In State v. Mincy, 838 P.2d 648 (Utah Ct. App. 1992), we noted that the difference between a witness's original description of a defendant to the police and the defendant's actual appearance bears on the witness's credibility and on the weight the jury may give that testimony, but does not by itself render the identification inadmissible. See id. at 658.