2016 UT App 69
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JESSE A. SAENZ,
Appellant.
Memorandum Decision
No. 20141147-CA
Filed April 7, 2016
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 131800328
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee
JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGE J. FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL W.
BENCH concurred. 1
ROTH, Judge:
¶1 Jesse A. Saenz appeals his convictions for murder, a first
degree felony; theft, a second degree felony; and possession of a
firearm by a restricted person, a second degree felony. Because
Saenz has not demonstrated that the trial court’s alleged error
prejudiced him, we affirm.
¶2 Saenz’s convictions resulted from events that transpired
on April 21, 2013. In a series of text messages that morning with
1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
State v. Saenz
the victim, E.O., Saenz asked if E.O. would take him from his
apartment in Roosevelt to his grandfather’s home in Fort
Duchesne for $20. E.O. agreed. He arrived at Saenz’s apartment
complex around noon, driving a black Mazda that he co-owned
with his mother. E.O.’s body was discovered by Saenz’s mother
and sister a few hours later on Saenz’s grandfather’s property.
E.O. had been shot multiple times. Expended bullet casings were
discovered beneath E.O.’s body and in the nearby parking area.
Saenz’s grandfather’s revolver and coin collection were missing
from the house. E.O.’s missing cell phone was later discovered
discarded on the road between Saenz’s apartment and his
grandfather’s property.
¶3 Saenz had been wearing an ankle monitor on the day of
the events. GPS data from the unit indicated that at the
approximate time E.O. picked him up, Saenz was “in
movement.” Around 12:30 p.m., GPS data located Saenz at his
grandfather’s property in Fort Duchesne and indicated that
Saenz then returned to his apartment in Roosevelt along the
route where E.O.’s cell phone was later found. After receiving a
tampering alarm around 1:00 p.m., law enforcement officers
discovered Saenz’s ankle monitor, the strap cut through, on the
floor of his apartment; Saenz was nowhere to be found.
¶4 Late the next day, officers of the United States Marshals
Service apprehended Saenz in a parking lot in Phoenix, Arizona.
He was in E.O.’s black Mazda, and his grandfather’s coins and
the revolver were in the car. A text message sequence on Saenz’s
cell phone mirrored the exchange on E.O.’s cell phone from the
previous morning. Further, during trial, a ballistics expert
testified that, in his opinion, the bullet casings found at the crime
scene were “fired from [the] revolver” stolen from Saenz’s
grandfather’s house and later found in E.O.’s vehicle.
¶5 Also at trial, the court instructed the jury before opening
statements that “[t]he prosecution must prove each element
beyond a reasonable doubt. Until then, you must presume that
the defendant is not guilty. The defendant does not have to
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State v. Saenz
prove anything. He does not have to testify, call witnesses, or
present evidence.” After the State rested and defense counsel
stated that he would call no witnesses, the court questioned
Saenz in the presence of the jury about whether he desired
to testify:
THE COURT: Mr. Saenz, I need to ask you a
question just to make sure. You understand that
you have the absolute right to testify or not testify?
MR. SAENZ: Yes, your Honor.
THE COURT: If you choose not to testify, the jury
cannot consider that in their deliberations.
MR. SAENZ: Yes, your Honor.
THE COURT: You also are the one that controls
that right. Your attorneys can’t compel you or
coerce you or force you or threaten you or do
anything to cause you not to testify. Do you
understand that?
MR. SAENZ: Yes, your Honor.
THE COURT: Is this your voluntary decision not to
testify?
MR. SAENZ: Yes, your Honor.
THE COURT: All right, thank you.
¶6 Before closing argument, the trial court explicitly
instructed the jurors regarding Saenz’s decision not to testify:
A person accused of a crime may choose whether
or not to testify. In this case the defendant chose
not to testify. Do not hold that choice against the
defendant. Do not try to guess why the defendant
chose not to testify. Do not consider it in your
deliberations. Decide the case only on the basis of
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State v. Saenz
the evidence. The defendant does not have to
prove that he or she is not guilty. The prosecution
must prove the defendant’s guilt beyond a
reasonable doubt.
¶7 The jury returned verdicts of guilty on all counts. The
court later sentenced Saenz to the statutory prison terms of
fifteen years-to-life for the first degree felony, and one-to-fifteen
years for both of the second degree felonies. It ordered that all
sentences run consecutively. Saenz timely appealed.
¶8 On appeal, Saenz argues that the trial court erred by
questioning him in the presence of the jury regarding whether
he wanted to testify. Saenz concedes that this issue was not
preserved below and has been raised for the first time on appeal.
“[I]n general, appellate courts will not consider an issue,
including constitutional arguments, raised for the first time on
appeal unless the trial court committed plain error or the case
involves exceptional circumstances.” State v. Dean, 2004 UT 63,
¶ 13, 95 P.3d 276. Saenz argues this issue under the plain error
exception to the preservation requirement. “To demonstrate
plain error, a defendant must establish that (i) an error exists;
(ii) the error should have been obvious to the trial court; and
(iii) the error is harmful, i.e., absent the error, there is a
reasonable likelihood of a more favorable outcome for the
appellant.” Id. ¶ 15 (citation and internal quotation marks
omitted). Importantly, “[i]f any one of these requirements is
not met, plain error is not established.” Id. (citation and internal
quotation marks omitted).
¶9 The Fifth Amendment to the United States Constitution
provides, “No person . . . shall be compelled in any criminal case
to be a witness against himself.” U.S. Const. amend. V. 2 In the
2. The Fifth Amendment privilege against self-incrimination is
applicable to the states through the Fourteenth Amendment.
Malloy v. Hogan, 378 U.S. 1, 3, 6 (1964); see also Jeffrey Bellin,
(continued…)
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State v. Saenz
context of statements made regarding a defendant’s exercise of
his right to silence during trial, the United States Supreme Court
has held that the Fifth Amendment “forbids either comment by
the prosecution on the accused’s silence or instructions by the
court that such silence is evidence of guilt.” Griffin v. California,
380 U.S. 609, 615 (1965). Along those lines, our own supreme
court has indicated that even “[i]ndirect references to a
defendant’s failure to testify are constitutionally impermissible if
the comments were manifestly intended to be or were of such a
character that the jury would naturally and necessarily construe
them to be a comment on the defendant’s failure to testify.”
State v. Tillman, 750 P.2d 546, 554 (Utah 1987); see also State v.
Nelson-Waggoner, 2004 UT 29, ¶ 31, 94 P.3d 186 (“[A] prosecutor
commits constitutional error when his statement is manifestly
intended or [is] of such character that a jury would naturally and
necessarily construe it to amount to a comment on the failure of
the accused to testify.” (second alteration in original) (citation
and internal quotation marks omitted)).
¶10 However, “the mere mention” of a defendant’s decision
not to testify “does not prima facie establish a due process
violation.” State v. Harmon, 956 P.2d 262, 268 (Utah 1998). Rather,
“‘the defendant’s silence [must be used] to undermine the
exercise of those rights guaranteed by the Fourteenth
Amendment.’” State v. Baker, 963 P.2d 801, 806 (Utah Ct. App.
1998) (quoting Harmon, 956 P.2d at 267–68). Indeed, the United
States Supreme Court noted in Griffin that the evil to be avoided
in this context is the implication that “such silence is evidence of
guilt.” 380 U.S. at 615; see also Harmon, 956 P.2d at 268 (“[T]he
State must, in some way, use the defendant’s silence to
undermine the exercise of those rights guaranteed by the
(…continued)
Reconceptualizing the Fifth Amendment Prohibition of Adverse
Comment on Criminal Defendants’ Trial Silence, 71 Ohio St. L.J. 229,
245 (2010) (briefly discussing Malloy’s holding).
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State v. Saenz
Fourteenth Amendment before it can be said that such rights
have been violated.”).
¶11 Saenz argues that the tone and content of the court’s
colloquy with him about whether he would testify so focused
the jury’s attention on his decision not to testify that, in effect,
the colloquy amounted to “an impermissible comment on [his]
invocation of his right to remain silent.” He states that the trial
court’s “presentation of [the] invocation [of the right against self-
incrimination] was direct and explicit” and argues that the trial
court should have known that “placing such undue emphasis on
[his] decision not to testify” was error. In particular, he contends
that “[t]he prohibition against commentary on the right to
silence is grounded in the improper suggestion it leaves with the
jury, the courting of nagging speculation about what would
have been said.” In this regard, he asserts that his case was
“particularly susceptible to Jury prejudice against him for not
testifying” because, despite “overwhelming evidence” of his
guilt, there was no “information regarding motive” and, thus,
the “total absence of any indication of motive would have left
the Jury wishing for some rationale, justification, excuse, or
explanation from [him].” Saenz asserts that in such
circumstances, the “Court’s showcasing” of his decision not to
testify was “unfair commentary” of constitutional significance
that amounted to plain error.
¶12 While we have concerns about the trial court’s decision to
question Saenz about his invocation of his right to silence in
front of the jury, we do not reach the issue of whether the
colloquy was obvious error, because Saenz has failed to
demonstrate prejudice, the third prong of our plain error
review. 3 See State v. Dunn, 850 P.2d 1201, 1224 (Utah 1993)
3. Although we do not reach the question of whether the trial
court’s colloquy regarding Saenz’s invocation of his right not to
testify was error in this case, it seems problematic to engage in
this kind of inquiry in the presence of the jury. We held in State
(continued…)
20141147-CA 6 2016 UT App 69
State v. Saenz
(“If there is no prejudice, we have no reason to reach the other
elements of the [plain error] analysis.”).
¶13 Saenz asserts that “[b]ecause of the fundamental right of
the accused not to have such improper comment made
regarding his decision not to testify, the err[or] is of
constitutional magnitude, and the same can never be viewed as
(…continued)
v. Brooks, 833 P.2d 362 (Utah Ct. App. 1992), that a “trial court
bears no affirmative duty sua sponte to engage in an on-the-
record colloquy with defendant at the time of trial to ensure a
valid waiver of the right to testify.” Id. at 365; accord Cramer v.
State, 2006 UT App 492, ¶ 11, 153 P.3d 782 (same). In Brooks, we
also noted some reasons why an on-the-record colloquy is
problematic, including that it presents the dangers of
“introduc[ing] error into the trial,” “interfer[ing] with defense
strategy,” and “influenc[ing] the defendant to waive his right not
to testify.” Brooks, 833 P.2d at 365 (citation and internal quotation
marks omitted); accord, e.g., State v. Breeden, 304 P.3d 660, 673
(Kan. 2013) (“There is a danger that by asking a defendant if he
or she is aware of his right to testify, a trial court may
inadvertently influence a defendant to waive the equally
fundamental right against self-incrimination.” (citation and
internal quotation marks omitted)); State v. Edwards, 173 S.W.3d
384, 386 (Mo. Ct. App. 2005) (noting that while a trial court has
“no duty to inquire” whether a defendant will testify, if the
circumstances suggest that a colloquy should occur, “the more
prudent course of action is for the trial court to voir dire the
defendant, on the record, and outside the presence of the jury”);
State v. Jackson, 23 N.E.3d 1023, 1052–55 (Ohio 2014) (observing
that “a sua sponte inquiry from the trial judge regarding the
defendant’s choice to testify might impede on an appropriate
defense strategy, might lead the defendant to believe that
defense counsel has been insufficient, or might inappropriately
influence the defendant to waive the Fifth Amendment right not
to testify” (citation and internal quotation marks omitted)).
20141147-CA 7 2016 UT App 69
State v. Saenz
harmless.” Saenz asks us, in essence, to presume prejudice
merely because his claimed error is rooted in a constitutional
right. However, as the State points out, our supreme court has
recently held in State v. Bond, 2015 UT 88, 361 P.3d 104, that
“unpreserved federal constitutional claims are not subject to a
heightened review standard but are to be reviewed under our
plain error doctrine.” Id. ¶ 44. In Bond, the defendant argued that
it was plain error for the trial court to have permitted the
prosecution to treat his co-defendant as hostile and ask “leading
questions” because it violated his constitutional right under the
Confrontation Clause. Id. ¶¶ 30–35. Instead of demonstrating
prejudice, however, the defendant argued that “where there is a
constitutional violation, the burden to prove harm under plain
error shifts to the State to demonstrate that the error was
harmless beyond a reasonable doubt.” Id. ¶ 35. The court
rejected that argument, and held that “the defendant retains the
burden to show harm for unpreserved federal constitutional
claims” under the plain error exception to the preservation
requirement. Id. The court reasoned that its holding “comports
with the aims of preservation” by “‘encourag[ing] timely
objections and reduc[ing] wasteful reversals by demanding
strenuous exertion to get relief for unpreserved error.’” Id. ¶ 45
(quoting United States v. Dominguez Benitez, 542 U.S. 74, 82
(2004)). It also noted that “requiring a defendant to demonstrate
prejudice on an unpreserved claim harmonizes the prejudice
inquiries under the plain error and ineffective assistance of
counsel doctrines,” both of which “serve as exceptions to our
preservation rules.” Id. ¶ 46.
¶14 Bond is dispositive in this case. Saenz does not attempt to
demonstrate that “absent the error, there is a reasonable
likelihood of a more favorable outcome”—in other words, that
the error was harmful. See State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d
276 (citation and internal quotation marks omitted). Rather, the
entirety of his prejudice demonstration is one sentence where he
asserts, as did the defendant in Bond, that because the error is of
“constitutional magnitude,” it “can never be viewed as
harmless.” Under Bond, this is insufficient. In the context of a
20141147-CA 8 2016 UT App 69
State v. Saenz
plain error claim, prejudice must still be shown, even if the
alleged error implicates constitutional rights. See Bond, 2015 UT
88, ¶¶ 44–46.
¶15 Accordingly, because Saenz has failed to establish
prejudice, a necessary element of his plain error claim, we must
affirm his convictions. 4 See Dunn, 850 P.2d at 1209 (“If any one of
these requirements is not met, plain error is not established.”).
4. We also question whether Saenz could prove prejudice, given
the evidence of guilt in this case and the trial court’s
statement during the colloquy and later instruction to the jury
that it could not hold Saenz’s decision not to testify against
him. Indeed, Saenz concedes that the evidence against him is
“overwhelming.” And our supreme court has stated that ample
evidence of guilt and a curative instruction are considerations
that, if present, can actually render an error related to allegedly
impermissible commentary on a defendant’s decision not to
testify harmless. See generally State v. Maestas, 2012 UT 46,
¶¶ 161–65, 299 P.3d 892 (noting that the prosecutor’s comment
on defendant’s decision not to testify was harmless where it was
“unclear whether the prosecution was referring to Mr. Maestas
or to his codefendants,” where the jury was “explicitly instructed
that it should not consider a defendant’s choice not to testify,”
and where there was a “wealth of evidence implicating Mr.
Maestas in [the victim’s] murder”); State v. Tillman, 750 P.2d 546,
555 (Utah 1987) (“In the face of overwhelming evidence of
defendant’s guilt, together with the fact that the comments were
isolated as opposed to extensive and the fact that the trial judge
specifically instructed the jury ‘that no presumption adverse to
[defendant Tillman] is to arise from the mere fact that he does
not place himself upon the witness stand,’ we do not hesitate in
holding any error was harmless beyond a reasonable doubt.”
(alteration in original) (footnotes omitted)).
20141147-CA 9 2016 UT App 69