State of Utah v. Maestas
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IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
State of Utah,
Plaintiff and Appellee,
v.
Gino Maestas,
Defendant and Appellant.
No. 970298
F I L E D
April 9, 1999
1999
UT 32
---
Third District Court, Salt Lake Dep't
The Honorable Pat B. Brian
Attorneys:
Jan Graham, Att'y. Gen., Kenneth
A. Bronston, Asst. Att'y. Gen., Salt Lake City, for Appellee
Roger S. Blaylock, Deputy District
Att'y, Salt Lake City, for Appellee
Joan C. Watt, Salt Lake Legal Defender,
for Appellant
---
DURHAM, Associate Chief Justice:
¶1
Gino Maestas appeals from convictions
on eight counts of aggravated robbery. Maestas asserts that he was denied
effective assistance of counsel, as guaranteed by the Sixth Amendment to
the United States Constitution and article I, section 7 of the Utah Constitution,
because his trial counsel failed to (1) request a cautionary eyewitness
identification instruction, (2) move to suppress the allegedly unreliable
eyewitness identifications, (3) move to sever charges stemming from robberies
at two different locations, (4) request a jury instruction limiting the
use of double hearsay, and (5) move to consolidate two robbery counts based
on the taking of property from one individual. Maestas argues that the
above omissions entitle him to a new trial.
¶2
On February 2, 1995, a lone assailant
robbed a Top Stop convenience store located at 488 East 100 South, and
a Pizza Hut restaurant located at 787 North Redwood Road, within a period
of one hour. According to the testimony at trial, a man entered the Top
Stop just after 8:00 p.m., wearing a mask, a baseball cap, and a two-tone
blue coat. The man walked to the counter, pulled out a gun, and demanded
that the clerk, Paul Harbrecht, give him the money from the cash register.
The robber also demanded that Harbrecht give up his wallet. Harbrecht complied,
placing all the money from the cash register, approximately thirty-five
dollars, and six dollars from his own wallet into a small off-white backpack
that the robber placed on the counter. The robber allowed Harbrecht to
keep his wallet and his identification. The robbery lasted approximately
two minutes.
¶3
Harbrecht testified at trial that
he pushed the store's "panic button" to alert police to the robbery, then
ran outside to watch the robber flee. The robber jogged down the street
for approximately half a block, then got into a gold-colored mid-80's Camaro.
Harbrecht stated that he was not afraid during the robbery because he had
been robbed only four months earlier. He concentrated on the robber's exposed
features--his eyes, eyebrows, and nose. Officer Rose Marie Jones responded
to the robbery call. Harbrecht described the robber as a Hispanic male
in his twenties, between 5'7" and 5'9" inches tall, with short dark hair
and dark eyes. He stated that the robber was wearing a white hat, blue
Levis, and a two-tone blue coat. Although the lighting outside was poor,
Harbrecht opined that the robber escaped in a gold-colored Camaro.
¶4
While Officer Jones was filling
out the robbery report, she and Harbrecht heard another robbery being reported
over her police radio involving a perpetrator with a description similar
to the Top Stop robber. Officer Jones responded to that call. As she left,
she told Harbrecht that she might return to pick him up so he could identify
the suspect. Later, Officer Jones did just that, stating, "they had caught
a suspect and [she] wanted [Harbrecht] to identify him." She drove Harbrecht
to where other officers had stopped Maestas. Maestas was surrounded by
police officers, wearing handcuffs, and standing with a spotlight and headlights
directed towards him. Harbrecht identified Maestas as the individual who
had robbed the Top Stop a short time earlier.
¶5
The second robbery (which accounts
for seven of the eight counts of aggravated robbery) occurred at a Pizza
Hut restaurant on Redwood Road at approximately 8:55 p.m. The robber wore
Levis, a bluish-green and gray jacket, brown hiking boots and a hat; a
dark mask covered his head and the lower part of his face. The robber entered
the restaurant and pulled out a gun. The robber approached Pizza Hut employee
Kurt Anderson, pushed the gun against Anderson's chest, and demanded that
he place the money from the cash register into a bag. Anderson was scared,
and his "life flashed before [his] eyes." Anderson gave the bag to the
Pizza Hut manager Jesse Baldwin and told him they were being robbed. The
robber then ordered Anderson to the floor. From the floor, Anderson could
no longer observe the robber or his interactions with the restaurant patrons.
He did, however, hear the robber demand, in a Spanish accent, the money
from the cash register and the safe, and from the other restaurant patrons.
Anderson later described the robber as wearing a bluish-green and gray
jacket and hiking boots and walking with a "limp."
¶6
With Anderson on the floor, Baldwin
complied with the robber's request, placing approximately $170 from the
cash register, including $10 in loose change, into the bag. During the
delay, while the safe's timing cycle was operating, the robber collected
money from the store employees and two restaurant customers. Anderson gave
the robber six dollars from his wallet and Baldwin gave him between $15
and $20. The robber allowed both Anderson and Baldwin to keep their wallets.
¶7
Baldwin observed the robber for
a total of approximately four minutes, sometimes from as far away as forty
feet. Baldwin described the robber as in his twenties, weighing 180 pounds,
with dark brown eyes, thick eyebrows, and a wrinkled forehead. He stated
that the robber spoke with an accent, walked with a distinctive gait, and
had an "odd" posture. According to Baldwin, the robber wore a black mask
which extended all around his head, a white baseball cap, a "green, greenish-gray,
greenish blue" coat, and navy-blue or black pants.
¶8
Shortly after the robbery, Officer
Richard Findlay took Anderson and Baldwin to view a possible suspect located
about a block from the restaurant. Maestas was handcuffed and standing
in a spotlight between several patrol cars with their emergency lights
activated. Anderson and Baldwin discussed the similarities and differences
between Maestas and the robber. Baldwin thought the eyes were the same
as the robber's. Anderson thought Maestas wore the same shoes. Both Anderson
and Baldwin identified the jacket taken from Maestas' car as the one worn
by the robber. Although initially unsure, after viewing the jacket, both
identified Maestas as the robber.
¶9
Candace Hsiao and her daughter Kara
were customers in the Pizza Hut during the robbery. They testified that
while they were eating and talking, a Hispanic male wearing a black muffler
over his head and face approached, pointed a gun at them, and asked for
their purses. Candace and Kara were terrified. Candace "blocked out" everything
except the gun. Candace gave the robber $15 in cash and bills and the money
pouch in her day planner. Kara gave him five crumpled dollar bills.
¶10
Kara described the robber as wearing
a white sweatshirt and hiking boots. According to Kara, the robber was
polite and spoke with a slight accent. Later, at the show-up, neither Candace
nor Kara could positively identify Maestas as the robber.(1)
¶11
Pizza Hut employees Shelby and Leslie
Kurys were cleaning their work stations when Shelby saw the robber with
a gun pointed at Anderson's back. The robber ordered Shelby and Leslie
to the ground and asked for their wallets and wedding rings. The couple
refused to give up their rings and did not have wallets. They did not see
much because they remained on the floor until the robber left. However,
they noted that the robber had a black mask, thick eyebrows and brown or
hazel eyes. Both Shelby and Leslie described the robber as having a distinctive
gait.
¶12
At the line-up, after viewing Maestas
at the show-up, Harbrecht, Anderson, and Baldwin all identified Maestas
as the robber. Candace and Kara Hsiao did not choose Maestas from the line-up,
although they did identify him as a possibility. Leslie and Shelby Kurys
both chose individuals other than Maestas from the lineup.
¶13
At trial, Harbrecht, Baldwin, and
Anderson, all of whom had viewed Maestas at the show-up, identified Maestas
as the robber. Kara and Candace Hsiao, who also had seen Maestas at the
show-up but could not pick him out of a line-up, testified that they thought,
but were not sure, that Maestas was the person who robbed them. Leslie
and Shelby Kurys, after choosing different individuals from the line-up,
identified Maestas as the robber at trial. There were similar inconsistencies
at trial in the testimony identifying the coat recovered by police from
Maestas' car as that worn by the robber. Some witnesses recognized it,
others did not.
¶14
At trial, in addition to the eyewitness
accounts described above, the following evidence was offered: Officer Donald
Cole testified that shortly after the Pizza Hut robbery he received a description
of the suspect: "male Hispanic, dark hair, dark eyes, wearing a . . . blue
and green jacket." An updated description included the fact that the suspect
might be driving a blue late 70's Camaro. [id] Approximately 3 1/2 blocks
from the Pizza Hut, Officer Cole observed a blue Camaro parked in an apartment
driveway. The hood felt warm, indicating that the car had recently been
driven. From outside the car, Officer Cole observed crumpled dollar bills
on the passenger seat and a blue and green jacket in the backseat.
¶15
Officer Cole then saw two people
exit the apartment and get into the Camaro and drive off. Officer Cole
stopped the car a few blocks away. Between five and seven other officers
assisted him in the stop. Maestas was driving the Camaro; Mary Sisneros
was the passenger. About $53 was recovered from the Camaro and officers
found a blue and green jacket in the back seat. According to Officer Cole
at trial, "all" the robbery victims positively identified Maestas as the
robber and "all" recognized the jacket as the one worn by the robber.
¶16
Officer Cole transported Maestas
to the police department, while other officers conducted a search of Sisneros'
apartment. The search located a dark neck gator, a head band, and a hat.
No money or clothing matching the robber's was found.
¶17
Maestas testified in his own defense
that on the evening of the robberies, he went to a family party at Sisneros'
residence. He claimed he arrived at the apartment at approximately 5:30
p.m. and remained there until about 9:00 p.m. During that time, Maestas
testified, he helped Sisneros clean up from dinner and watched some television.
He claimed he did not leave the apartment at all during the evening until
the time of his arrest. Maestas also pointed out that, in contrast to the
descriptions offered by the eyewitnesses: (1) at the time of the robbery,
he weighed only 135-40 pounds, not 180; (2) he had green, not brown, eyes;
(3) he did not speak with an accent; and (4) he did not walk with a limp
or a distinctive gait. Furthermore, Maestas testified that he was wearing
sweat pants and a hooded sweatshirt at the time of his arrest, not the
clothing described by the robbery victims, and that he had not changed
his clothes that evening.
¶18
Sisneros corroborated Maestas' testimony,
confirming that he was at her home from approximately 5:30 p.m. until 9:00
p.m., that he helped her clean up after dinner, watched television, drank
some beer, and that he did not leave during that interval.
¶19
On rebuttal, Detective Dalling testified
that Sisneros told him that she had spent a considerable amount of time
that evening cleaning other parts of the apartment and, therefore, she
would not necessarily have known if Maestas had left the apartment. Detective
Dalling also testified that, during the search, he found food throughout
the kitchen, giving it the appearance that it had not been cleaned. Sisneros
claimed
at the trial that she did not remember telling the above to Dalling.
I. STANDARD OF REVIEW
¶20
Because new counsel represents Maestas
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. See State v. Chacon,
962 P.2d 48, 50 (Utah 1998). To establish that he received ineffective
assistance of counsel, Maestas must show that his counsel "rendered deficient
performance which fell below an objective standard of reasonable professional
judgment" and that "counsel's deficient performance prejudiced him." Id.
To do this, Maestas must "identify specific acts or omissions that fell
outside the wide range of professional assistance and illustrate that,
absent those acts or omissions, there is a 'reasonable probability' of
a more favorable result." Id. (quoting Parsons v. Barnes,
871 P.2d 516, 522 (Utah 1994)). To determine whether there is a reasonable
probability of a more favorable outcome, we consider "the totality of the
evidence taking into account such factors as whether the errors affect
the entire evidentiary picture or have an isolated effect and how strongly
the verdict is supported by the record." State v. Hovater, 914 P.2d 37, 39-40 (Utah 1996). Finally, in reviewing counsel's performance, we
give trial counsel wide latitude in making tactical decisions and not question
those tactical decisions unless there is no reasonable basis supporting
them. See Taylor v. Warden, 905 P.2d 277, 282 (Utah 1995).
¶21
Maestas asserts that he received
ineffective assistance of counsel because his trial counsel failed to seek
suppression of the blatantly suggestive eyewitness identifications and
because counsel failed to request a cautionary eyewitness instruction at
trial, which would have informed the jury of the weaknesses inherent in
such identifications. Maestas argues that the case against him turned on
the eyewitness identification; thus, had the jury received an appropriate
instruction, it is probable that they would have returned a more favorable
verdict. Alternatively, Maestas suggests that had trial counsel moved to
suppress the eyewitness identifications made by the robbery victims at
the show-up, the trial court would have granted that request with respect
to at least some of the eyewitnesses, thus reducing the number of eyewitnesses
identifying him at trial and significantly diluting the strength of the
State's case against him.
II. FAILURE TO REQUEST CAUTIONARY EYEWITNESS INSTRUCTION
¶22
Maestas asserts that trial counsel
performed deficiently by failing to request a cautionary instruction regarding
the eyewitness testimony.
¶23
The original identification in this
case occurred at night with Maestas handcuffed and surrounded by police
cars with their lights shining on him. The officers told the eyewitnesses
that they had caught a suspect. Additionally, Harbrecht heard a report
over the radio that the suspect was involved in another robbery, increasing
the likelihood that he would believe Maestas also committed the robbery
to which he was a witness. Furthermore, the suggestive nature of the show-up
in this case is compounded by the fact that none of the witnesses ever
saw the full face of the robber. All the witnesses testified that in both
the Top Stop and Pizza Hut robberies the robber wore a mask covering his
nose and mouth, and a cap covering his head.
¶24
There are additional factors that
call into question the plausibilty of the individual eyewitness identifications
in this case. Most of the witnesses had limited opportunity to observe
the robber. Many were frightened. Baldwin and Anderson discussed Maestas'
similarities to and differences from the robber at the show-up, suggesting
that either Baldwin's or Anderson's degree of certainty that Maestas was
the robber was bolstered by comments made by the other. The descriptions
given by the eyewitnesses also varied widely. The robber was described
by different witnesses as having wrinkles, weighing 180 pounds, having
a limp, having no limp, speaking with an accent or no accent, having brown
eyes or green. The witnesses also disagreed about the clothing the robber
wore. Some claimed the jacket found by police in Maestas' car was the one
worn by the robber; others were unable to identify it. Some could identify
the hat confiscated from Sisneros' apartment; others could not. Finally,
and perhaps most persuasively, only three of the seven eyewitnesses could
positively identify Maestas in a line-up when asked to choose among him
and six other Hispanic males.
¶25
The only defense available to Maestas
at trial was the unreliability of the eyewitness identifications. Our cases
have summarized the empirical studies questioning the reliability of eyewitness
identification. See Ramirez, 817 P.2d 774, 779-80 (Utah 1991);
Long, 721 P.2d 483, 488-92 (Utah 1986). "The studies all lead inexorably
to the conclusion that human perception is inexact and that human memory
is both limited and fallible." Long, 721 P.2d at 488.
¶26
In Long we concluded that,
if requested, a trial court must give a cautionary eyewitness identification
instruction in every case where identification is a central issue. See
id. at 492. Our conclusion was based on research showing that juries
have a fundamental misunderstanding of the reliability of eyewitness identifications.
We noted that because jurors do not appreciate the fallibility of such
identifications, they often give eyewitness testimony undue weight. See
id. at 490.
¶27
Although research has convincingly
demonstrated the weaknesses inherent in eyewitness identification, jurors
are, for the most part, unaware of these problems. People simply do not
accurately understand the deleterious effects that certain variables can
have on the accuracy of the memory process of an honest eyewitness. Moreover,
the common knowledge that people do possess often runs contrary to documented
research findings. Seeid. at 490.
¶28
Our decision in Long leads
to the conclusion that, unless obvious tactical reasons exist to forego
an instruction, trial counsel faced with seven eyewitnesses who, with varying
degrees of certainty and consistency, all identify his client as the perpetrator,
should request a cautionary eyewitness instruction. Such an instruction
would, as pointed out in Long, apprise the jury of the inherent
limitations in eyewitness identification. See Long, 721 P.2d
at 492.
¶29
The State asserts that competent
counsel may have reasonably refrained from requesting a cautionary instruction
because the instruction would "bolster" the stronger eyewitness identifications,
making the jury more likely to convict Maestas. See id. at
492 n.5. The State's argument is unpersuasive. First, none of the identifications
in this case were impervious to attack under the criteria set forth in
Long. All of the witnesses had a limited opportunity to observe
the robber; the robberies were completed quickly and the robber's face
and head were covered. Additionally, at least some of the witnesses were
making a cross-racial identification. Some of the witnesses testified to
being very afraid or fixating on the weapon rather than on the robber.
Furthermore, as set forth above, most, if not all, the witnesses' identifications
were tainted by a highly suggestive show-up prior to the line-up in which
they selected him.
¶30
Trial counsel did nothing to focus
the jury's attention on the limitations of eyewitness identification. He
did not educate the jury with respect to the factors set forth in
Long,
which affect eyewitness identification, nor did he argue how each of those
factors could have affected particular eyewitnesses. Counsel did not present
expert testimony regarding the unreliability of eyewitness identification.
In sum, the record is devoid of evidence or argument that would adequately
inform the jury regarding the problems inherent in eyewitness identifications.
¶31
Furthermore, in addition to failing
to request a cautionary instruction, defense counsel did not object to
Detective Dallings' inaccurate testimony regarding eyewitness identification.
Detective Dalling explained the discrepancies in the eyewitnesses' descriptions
of the robber by testifying without foundation that it is possible to identify
a person when a witness sees the person, but to be unable to describe the
person accurately. Defense counsel did not cross examine Detective Dalling
regarding this statement, or in any way attempt to correct the impression
of the reliable nature of eyewitness identification that the detective's
testimony presented.
¶32
In sum, under the facts of this
case, trial counsel rendered objectively deficient performance by failing
to request a cautionary eyewitness identification instruction that would
have informed the jury of the unreliability of eyewitness identifications.(2)
The record does not reveal any reasonable tactic that would ameliorate
or explain that deficiency.
III. PREJUDICE
¶33
The State asserts that even if we
find that Maestas' trial counsel rendered objectively deficient performance
in failing to request a cautionary eyewitness instruction, Maestas was
not prejudiced by that failure. The State claims that any error was harmless
because there was an "abundance" of evidence supporting Maestas' conviction.
¶34
We conclude, however, that the absence
of a cautionary instruction seriously undermined the fairness of this trial.
See State v. Young, 853 P.2d 327, 367 (Utah 1993). Counsel's
omission went to the heart of the defense -- the theory that Maestas was
mistakenly identified as the robber. An appropriate jury instruction would
have highlighted the weaknesses in the remaining identifications for the
jury, which might well have changed the verdict.
¶35
We do not find the other evidence
supporting the conviction conclusive. Harbrecht observed the robber getting
into a Camaro -- the same make of automobile driven by Maestas at the time
of his arrest. Hot air and a warm hood indicated that the Camaro had recently
been driven, contrary to Maestas' testimony that he remained at Sisneros'
apartment all evening. Officer Cole recovered "several" crumpled dollar
bills from the front seat of Maestas' Camaro -- the robber took (exactly)
five crumpled dollar bills from Kara Hsiao during the Pizza Hut robbery.
Some of the witnesses identified the coat found in Maestas' car as the
one worn by the robber. A search of Sisneros' apartment revealed a dark
neck gator capable of being used as a mask and a hat that some of the eyewitnesses
claimed the robber wore.
¶36
The foregoing circumstantial evidence
is inconclusive when viewed in light of what the officers did not
find. Each eyewitness testified that the robber used a gun. No gun was
found. The Pizza Hut employees indicated that the robber stole at least
$15 in loose change. No change was found on Maestas or Sisneros, in his
car, or in Sisneros' apartment. Only $53 was recovered from Sisneros and/or
from Maestas' car, whereas over $200 was taken in the robberies. No money
was found in the apartment. The officers also did not find the bags used
in the robberies or the day planner pouch stolen from Candace Hsiao. Maestas
was not wearing clothing consistent with the descriptions of the robber
at the time of his arrest, nor did the searches of Maestas' car and Sisneros'
apartment locate such clothing. Maestas' car, although the same make as
the one used in the Top Stop robbery, was a low-rider with chrome wheels;
it did not match the description of the car seen leaving the Top Stop as
to year and color. On balance, we find that the circumstantial evidence
against Maestas is not overwhelming or conclusive. Thus, absent defense
counsel's deficient performance, there is a reasonable likelihood that
a more favorable result would have been reached.
¶37
We hold that trial counsel's failure
to request a cautionary eyewitness instruction rendered his performance
constitutionally deficient and prejudiced Maestas. Maestas is entitled
to a new trial. Reversed and remanded.
---
Chief Justice Howe, Justice Stewart, Justice Zimmerman, and Justice Russon concur in Associate Chief Justice Durham's opinion.
1. The record is unclear regarding whether Candace or Leslie and Shelby Kurys were at the show-up. Officer Cole testified at trial that he had Officer Findlay transport the Pizza Hut victims to the show-up. Officer Cole further testified that all the Pizza Hut victims positively identified Maestas as the robber at the show-up. Thus, although not specifically mentioned in the record, a reasonable inference is that all the victims participated in the show-up.
2. We do not wish to imply that in every case in which eyewitness identification is an issue, trial counsel's performance is per se deficient if a cautionary instruction is not requested. The facts in another case might provide a plausible justification for such a tactic. The record in this case, however, does not.
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