State of Utah v. Gutierrez

State v. Gutierrez

IN THE UTAH COURT OF APPEALS

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State of Utah,

Plaintiff and Appellee,

v.

Jacob Gutierrez,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)
 

Case No. 20010633-CA
 

F I L E D
(September 18, 2003)
 

2003 UT App 310

 

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Third District, Salt Lake Department

The Honorable Judith S. Atherton

Attorneys: Stephanie Ames, Salt Lake City, for Appellant

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee

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Before Judges Davis, Greenwood, and Thorne.

GREENWOOD, Judge:

Jacob Gutierrez (Defendant) appeals his conviction of unlawful distribution of a controlled substance in violation of Utah Code Ann. § 58-37-8(1)(a)(ii) (2002). Defendant argues his trial counsel was ineffective for failing to seek a reliability hearing and for failing to object to eyewitness identification testimony and the sufficiency of the evidence at trial.

To establish ineffective assistance of counsel, Defendant must show that "his trial counsel's performance was deficient, in that it 'fell below an objective standard of reasonableness.'" State v. Winward, 941 P.2d 627, 635 (Utah Ct. App. 1997) (quoting Strickland v. Washington, 466 U.S. 668, 687-88, 104 S. Ct. 2052, 2064 (1984)). Defendant must also show that "the deficient performance prejudiced the outcome of the trial." Id. (citing Strickland, 466 U.S. at 687-88, 104 S. Ct. at 2064). "'If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed.'" State v. Silva, 2000 UT App 292,¶22, 13 P.3d 604 (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

Although on appeal Defendant cites testimony to undermine witness Officer Cole's credibility, Defendant fails to demonstrate that Officer Cole's eyewitness identification would have been excluded had trial counsel requested a reliability hearing or objected to Officer Cole's testimony at trial. For example, although there were several other Hispanics in the house, Defendant was readily recognizable because of his teardrop tattoo. Although Officer Cole did not mention the teardrop tattoo in his written report, he testified that he asked the arresting officer over the transmitter if the person about to be taken into custody had a teardrop tattoo. Officer Amott corroborated Officer Cole's testimony and testified that Officer Cole mentioned the teardrop tattoo in his description of Defendant. Also, while the "buy money" was not found on Defendant's person, Officer Cole witnessed Defendant make two other drug sales in his presence, and testified that he gave the cash to Sherry Bodily. Finally, Officer Cole observed Defendant inside the house for fifteen to twenty minutes, at a distance of five to six feet.

Given the detail and circumstances of Officer Cole's identification testimony, we conclude his testimony would have been admitted even if Defendant's trial counsel had requested a reliability hearing prior to trial or objected to witness reliability at trial. See State v. Ramirez, 817 P.2d 774, 781 (Utah 1991) (naming five factors trial court should consider to determine identification reliability). Consequently, Defendant was not prejudiced by his trial counsel's failure to request a reliability hearing or object at trial; thus, Defendant's trial counsel was not ineffective. See Winward, 941 P.2d at 635.(1) Furthermore, given the reliability of Officer Cole's testimony, "any objection to the sufficiency of the evidence at trial would have been denied,[therefore,] Defendant's trial counsel was not deficient for failing to raise it." State v. Yanez, 2002 UT App 50,¶19, 42 P.3d 1248. Because Defendant was not prejudiced by
his counsel's performance, we need not address whether that performance was deficient.

Affirmed.

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Pamela T. Greenwood, Judge

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WE CONCUR:

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James Z. Davis, Judge

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William A. Thorne Jr., Judge

1. Additionally, trial counsel's actions are not deficient if, "under the circumstances, the challenged action 'might be considered sound trial strategy.'" Strickland v. Washington, 466 U.S. 668, 689, 104 S. Ct. 2052, 2065 (1984) (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S. Ct. 158, 164 (1955)). Defendant's trial counsel conducted an extensive cross-examination of Officer Cole and also presented "countervailing testimony" in order to demonstrate that Officer Cole's identification was unreliable. State v. Bullock, 791 P.2d 155, 158 (Utah 1989).