State of Utah v. Vasquez

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

Phillip Vasquez,
Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 971526-CA

F I L E D
(December 21, 2000)

2000 UT App 373 -----

Third District, Salt Lake Department
The Honorable Timothy R. Hanson
 

Attorneys:
Hakeem Ishola and Todd A. Utzinger, Salt Lake City, for Appellant
Jan Graham and Kenneth A. Bronston, Salt Lake City, for Appellee

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Before Judges Greenwood, Billings, and Davis.

DAVIS, Judge:

Phillip Vasquez (Vasquez) argues that he was denied his constitutional right to effective assistance of counsel because his attorney failed to interview two potential defense witnesses and presented an incoherent defense. Vasquez also argues that the trial court erred when it enhanced his sentences pursuant to Utah Code Ann. § 76-3-203.1 (1999).
Upon remand from this court,(1) the trial court held an evidentiary hearing and entered findings of fact regarding Vasquez's ineffective assistance of counsel claim. "[W]here a trial court has previously heard a motion based on ineffective assistance of counsel, reviewing courts are free to make an independent determination of a trial court's conclusions. The factual findings of the trial court, however, shall not be set aside on appeal unless clearly erroneous." State v. Templin, 805 P.2d 182, 186 (Utah 1990) (footnotes omitted).

"To bring a successful ineffective assistance of counsel claim, 'a defendant must show that trial counsel's performance was deficient in that it "fell below an objective standard of reasonableness," and that the deficient performance prejudiced the outcome of the trial.'" State v. Gallegos, 967 P.2d 973, 976 (Utah Ct. App. 1998) (quoting State v. Garrett, 849 P.2d 578, 579 (Utah Ct. App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S. Ct. 2052, 2064 (1984))). This court may reject an ineffective assistance claim if the defendant fails to meet either prong of the Strickland test; however, "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Strickland, 466 U.S. at 697; see also State v. Arguelles, 921 P.2d 439, 441 (Utah 1996) ("Unless [defendant] has demonstrated that he was prejudiced by his trial counsel's performance, we need not decide whether that performance was deficient."). "To show prejudice under the second component of the test, a defendant must proffer sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (quoting Strickland, 466 U.S. at 694).

Based on its findings, upon which Vasquez relies, the trial court concluded that Vasquez was not prejudiced by his counsel's failure to call two potential witnesses.(2) We agree with the trial court. As for the witness Nichole Lopez (Lopez), the trial court concluded that Vasquez was not prejudiced by trial counsel's failure to call Lopez as a witness. The trial court based this conclusion on the fact that Lopez could only have testified about the conduct of other participants in the offense. Vasquez argues that Lopez's testimony, though concerning the acts of other alleged participants, would have thoroughly discredited the State's primary witness, thereby creating a reasonable probability that the result of the proceeding would have been different. In support of his argument, Vasquez refers to State v. Templin, 805 P.2d 182 (Utah 1990). In Templin, "the State's case rested upon the testimony of one person." Id. at 188. The court noted that "because [the testimony of the potential defense witnesses] affects the credibility of the only witness who gave direct evidence of the defendant's guilt, the testimony affects the 'entire evidentiary picture.'" Id. (quoting Strickland, 466 U.S. at 696). Consequently, the court concluded that there was "a reasonable probability that if these witnesses had been called at trial, the outcome of the trial would have been different." Id.

The present case is distinguishable from Templin because the evidence of Vasquez's guilt was substantially corroborated by testimony independent of the witness whom Lopez may have impeached. Moreover, it was undisputed that Vasquez was present at the scene of the crime, and the jury was presented with ample evidence, other than the testimony of the State's primary witness, by which they could find Vasquez guilty as an accomplice to the crimes. See Utah Code Ann. § 76-2-202 (1999). Therefore,

even had the jury been apprised of the facts bearing on the [witness's] credibility, it would not have altogether disregarded his testimony because it was corroborated by the testimony of other witnesses. The failure of defendant's trial counsel to impeach the [witness's] credibility, then, does not undermine our confidence in defendant's convictions.

State v. Maestas, 2000 UT App 22,¶19, 997 P.2d 314, cert denied, 4 P.3d 128 (Utah 2000). Furthermore, both Vasquez's counsel and co-defendant's counsel thoroughly attacked the witness's credibility during cross-examination. Thus, the trial court did not err when it concluded that Vasquez was not prejudiced by his trial counsel's failure to interview and call Lopez as a witness.

As for the witness Sonya Pacheco (Pacheco), the trial court concluded that Pacheco could not have provided any testimony that was admissible. Vasquez has not attempted to demonstrate how he was prejudiced by his counsel's failure to interview or call Pacheco as a witness. Therefore, the trial court did not err when it concluded that Vasquez was not prejudiced by his counsel's failure to call Pacheco as a witness.

Vasquez also argues that he was denied effective assistance of counsel because his trial counsel presented contradictory defense theories. Specifically, Vasquez asserts that his trial counsel admitted that Vasquez was present at the scene of the crime but did not participate in the beatings; whereas, defense counsel later challenged one of the victim's identification of Vasquez--implying that Vasquez was not actually at the scene of the crime. Vasquez argues that he was prejudiced by these inconsistent defense theories. We disagree. Although counsel's cross-examination of the victim and comments during closing could be interpreted as presenting the jury with conflicting defense theories, defense counsel's questions and comments could also have bolstered the theory that Vasquez was merely present at the scene of the crime, rather than a participant in the crime. Specifically, the victim testified that he saw defendant exit the car, and that defendant was part of the group of men that approached him, demanded money, and brandished weapons. The four terse questions during cross-examination, together with comments at closing, focused only on the victim's ability to identify defendant from photos during the initial police investigation. In the context of a four day trial, the questions and comments amounted to a general attack on the victim's credibility. Therefore, when defense counsel challenged the victim's ability to identify Vasquez from photos, he also called into question the victim's testimony pertaining to Vasquez's participation in the robbery. Consequently, we are not persuaded that defense counsel's questions and comments concerning the witness's ability to identify Vasquez were the product of a deficient performance or that they prejudiced defendant. Finally, Vasquez argues that the trial court improperly enhanced his convictions of aggravated robbery and attempted homicide. Specifically, Vasquez asserts that the trial court erred in imposing enhanced minimum sentences pursuant to Utah Code Ann. § 76-3-203.1 (1999) (the gang enhancement statute), because the court, rather than the jury, determined that all the elements of the gang enhancement statute were proved beyond a reasonable doubt. "[T]he gang enhancement statute creates a new and separate offense and, therefore, the Code requires each element of this crime be proved beyond a reasonable doubt." State v. Lopes, 1999 UT 24,¶22, 980 P.2d 191. Furthermore, "[t]he relationship between the jury function in convicting defendants of the additional element required for the enhancement and the inferences that can be properly drawn by a judge from pleas to other crimes, even conspiracy or attempt, is simply too attenuated to satisfy the concerns we articulated in Lopes." State v. Helmick, 2000 UT 70,¶15, 9 P.3d 164. Here, the jury did not make any findings pertaining to the elements set forth in the gang enhancement statute. Instead, the trial court applied the gang enhancement statute based on its own findings of fact. Consequently, we agree with Vasquez that the trial court improperly enhanced Vasquez's sentences and we vacate those sentences.

We hold that even if Vasquez's trial counsel did not have any good reason not to interview Lopez and Pacheco, Vasquez did not "proffer sufficient evidence to support 'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" Parsons v. Barnes, 871 P.2d 516, 522 (Utah 1994) (citation omitted). We further hold that the trial court erred in applying section 76-3-203.1, thus we vacate the enhanced portions of Vasquez's sentences and remand for resentencing on Vasquez's convictions.(3)
 
 
 

______________________________
James Z. Davis, Judge

----- WE CONCUR:
 
 
 

______________________________
Pamela T. Greenwood,
Presiding Judge
 
 

______________________________
Judith M. Billings, Judge

1. This case was remanded after Vasquez filed a Rule 23B motion. See Utah R. App. P. 23B.

2. Although contained within the trial court's findings of fact, this "finding" is more appropriately reviewed as a conclusion of law, and we will make an independent determination regarding this conclusion. See Gillmor v. Wright, 850 P.2d 431, 433 (Utah 1993) ("On appeal, we disregard the labels attached to findings and conclusions and look to the substance. . . . Therefore, that which a trial court labels a 'finding of fact' may be in actuality a conclusion of law, which we review for correctness.").

3. "Our remand does not place the defendant in double jeopardy, because the failure to prove an essential element of the gang enhancement charge was 'trial error.'" Lopes 1999 UT 24 at ¶21.