State v. Gallegos

2018 UT App 192

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOHN E. GALLEGOS,
Appellant.

Opinion
No. 20150688-CA
Filed October 4, 2018

Second District Court, Ogden Department
The Honorable Mark R. DeCaria
No. 111900879

Samuel P. Newton, Attorney for Appellant
Sean D. Reyes and Daniel W. Boyer, Attorneys
for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGE GREGORY K. ORME concurred. JUDGE RYAN M. HARRIS
concurred in part and dissented in part, with opinion.

MORTENSEN, Judge:

¶1 A group was busy spray-painting a wall when
Victim interrupted their evening activity. Upset by the intrusion,
one of the group members stabbed Victim twice in the chest and
once in the back, while others threw rocks and beer cans
and unleashed two dogs to attack Victim. Police, with the help of
Witness, later identified defendant John E. Gallegos as the
one who stabbed Victim and arrested him that night.
Upon arresting Gallegos, police found blood on Gallegos’s
shirt, pants, and ear, as well as on a folding knife in his
pocket. Victim survived the attack and, after viewing a photo
lineup at the hospital, identified Gallegos as the person who
stabbed him. While in custody at the police station, Gallegos
 State v. Gallegos

kicked and spit at a police officer and also used a chair to smash
a hole in a wall.

¶2 For his involvement in the stabbing, Gallegos was
convicted of attempted murder, possession of a dangerous
weapon by a restricted person, using a dangerous weapon in a
fight, graffiti, and consumption of alcohol by a minor (the
Stabbing Charges). For his actions at the police station after his
arrest, Gallegos was also convicted of assault by a prisoner,
propelling a substance or object at a peace officer, and damaging
a jail (the Police Station Charges). He appeals, arguing that (1)
trial counsel was ineffective for not moving to sever the Stabbing
Charges and Police Station Charges and (2) police lacked
reasonable suspicion to stop him the night he was arrested.
Gallegos also seeks remand pursuant to rule 23B of the Utah
Rules of Appellate Procedure. We deny the rule 23B motion and
otherwise affirm.

BACKGROUND

¶3 Victim’s RV, in which he was staying, had broken down.
With the permission of a library security officer, Victim parked
the RV at the library lot for the night. Later that evening, Victim
heard someone using a spray can outside. Intending to pay the
vandals twenty dollars to leave his RV alone, Victim left his RV
and approached the bathroom of a nearby park, where he saw
someone spray painting the wall.

¶4 As Victim approached, a group of men emerged from
behind the bathroom and surrounded him. Gallegos began
yelling at Victim and threw what Victim thought were punches
at his chest. But when Victim suddenly began struggling to
breathe, he realized he had been stabbed.

¶5 The other men joined in the attack, throwing rocks, cans,
and other debris. As Victim tried to escape, a large rock hit
him on the head. Someone in the group yelled “Attack,” and

20150688-CA 2 2018 UT App 192
 State v. Gallegos

two dogs lunged at Victim, biting his leg. Victim continued to
retreat, dragging along the dog that had clamped down on his
leg. Gallegos again stabbed Victim, this time in the back. Just
before losing consciousness, Victim crawled to a nearby truck
and asked for help.

¶6 Witness, who was one of the truck’s occupants, testified
that he saw a group of men and dogs chasing Victim. Witness
saw Gallegos standing roughly ten feet in front of the group and
swinging something at Victim. The rest of the group stood
back and threw cans at Victim. 1 Witness exited the truck and
confronted Gallegos. Witness further testified that Gallegos
approached Witness with something shiny in his hand.
Gallegos came within ten feet of Witness and yelled, “You
want some too homey? Get the fuck back in the truck.” The
attackers fled when they realized one of the truck’s passengers
had called the police. Witness tended to Victim until the police
arrived.

¶7 The police first interviewed another witness (Bystander)
who had been at the park. Bystander reported seeing several
Hispanic men wearing white jerseys with dark numbers
run toward a nearby dead-end street, where a Toyota Camry
shortly emerged and headed away from the scene. After
reporting this information to the police, Bystander saw
the Camry return to the same street. Nearby officers were
alerted to look for Hispanic men, wearing white jerseys or shirts,
in a Camry on a dead-end street. Only later did the
police receive a more detailed description from Witness—
who had stood ten feet away from and was threatened by
Gallegos—that Gallegos was actually wearing dark clothes.

1. It is important to note that both Victim and Witness saw that
only a single person—Gallegos—was ever close enough to stab
Victim.

20150688-CA 3 2018 UT App 192
 State v. Gallegos

¶8 An officer arrived at the dead-end street and saw a
parked Camry with a man, Gallegos, wearing dark-colored
clothes, standing nearby with two women. Without activating
the patrol car’s overhead lights, the officer parked and got out.
The three people near the Camry began walking away and were
about to go behind a house. The officer, with his flashlight on,
yelled, “Hey, come back and talk to me.” The officer testified
that he yelled so Gallegos could hear him but did not command
Gallegos to comply. Gallegos returned to speak with the officer.

¶9 Not realizing that Gallegos was, in fact, the suspect in
the stabbing, the officer asked Gallegos what he was doing in
the area. Gallegos responded that he was on his way to a friend’s
house. The officer noticed tattoos on Gallegos’s hands and
asked if he was in a gang. Gallegos told the officer that he
used to be a member of the South Side Colonia 2 Chiques.
When another officer arrived, the first officer ran a
warrants check on Gallegos. The warrants check confirmed
Gallegos’s membership in the South Side Colonia Chiques.
The officer asked Gallegos if he was carrying any weapons, and
Gallegos answered that he was not. Responding to a
request from the officer, Gallegos agreed to be searched.
The officer found a five-inch folding knife in Gallegos’s
back pocket. At the time, the officer did not notice any blood on
the knife, which was folded closed. Having determined
during their discussion that Gallegos was intoxicated, the

2. The briefs and much of the record transcripts and
other documents refer to the gang as the South Side “Colonial”
Chiques. We believe this is a typographical error. At least
one presentence report identifies Gallegos’s gang as “La
Colonia Chiques Surrenos.” Further, “Colonia Chiques” is used
in informational materials supplied by the Salt Lake Area
Gang Project. See Gang Names & Alliances in the Salt Lake Area,
http://www.wvc-ut.gov/DocumentCenter/View/6752/Gang-
Handouts [https://perma.cc/58DC-MT9A].

20150688-CA 4 2018 UT App 192
 State v. Gallegos

officer said, “Being in your state right now, being a gang
member, you probably shouldn’t be carrying a knife.” Gallegos
responded, “Well, you can keep it.” The officer offered to hold
the knife at the police station until Gallegos was sober,
whereupon Gallegos could pick it up. Gallegos agreed and left in
the direction he had been walking earlier.

¶10 Having concluded his encounter with Gallegos, the officer
drove to the park where the stabbing occurred. There, the officer
learned from other officers that the attacker was, in fact, a
member of the South Side Colonia Chiques gang and wore dark
clothing instead of white. Realizing that Gallegos matched the
updated description, the officer inspected Gallegos’s knife more
closely, unfolding it and finding blood on the blade. The officer
reported his encounter, and Gallegos was apprehended shortly
thereafter. 3

3. The dissenting opinion highlights Witness’s identification of
Gallegos as problematic evidence, in part because Witness
identified Gallegos as the attacker during a police “showup.”
Infra ¶ 62. Witness told the police that he could “[w]ithout a
doubt” identify the stabber. Officers drove Witness to the street
where Gallegos had been arrested. An officer shined a spotlight
on Gallegos, the only suspect present, and Witness indicated that
Gallegos was the attacker who confronted him at the park.
We agree with the sentiment expressed by the dissent that
this type of identification is problematic. See State v. Ramirez, 817
P.2d 774, 784 (Utah 1991) (explaining that the “blatant
suggestiveness” of a showup where the defendant identified
“was the only person at the showup who was not a police
officer,” “stood with his hands cuffed,” and had “headlights of
several police cars . . . trained on him” is “troublesome”).
Because we recognize the problems inherent with this type of
identification, we are careful not to emphasize this evidence in
our determination of the strength of the evidence overall. Our
(continued…)

20150688-CA 5 2018 UT App 192
 State v. Gallegos

¶11 Upon arresting Gallegos, the officers found drops of
blood by Gallegos’s ear and on his hands, along with blood
stains on his shirt and pants. He also had blue residue on his
hands. Gallegos explained that he had been boxing that day and
had also fallen while running away from police earlier that
night. While all of the blood samples were not tested, lab results
showed that the blood on Gallegos’s knife, shirt, pants, and ear
matched Victim’s DNA.

¶12 While in custody at the police station, Gallegos noticed
photographs of fellow gang members on the wall. Gallegos
became angry and, while in handcuffs, started to walk away
from officers. An officer caught him at the door, and Gallegos
kicked the officer in the leg before being subdued. Officers led
Gallegos to an interview room where he spit in an officer’s face.
Alone in the room, Gallegos began yelling and banging on the
walls. Officers returned to the room to find chairs overturned
and a fresh hole in the wall.

¶13 The next day, officers went to the hospital to interview
Victim about the stabbing and to show him a photo lineup.
Victim had not taken medication for five hours and confirmed to
the officers that he was thinking clearly during the interview.
Based on the photo lineup, Victim identified Gallegos as the man
who stabbed him.

¶14 The State charged Gallegos for his involvement in the
stabbing and for his violent behavior at the police station. The
case proceeded to trial, and Gallegos moved to suppress
evidence stemming from the encounter Gallegos had with the
officer on the dead-end street, arguing that the officer lacked
reasonable suspicion to stop Gallegos.

(…continued)
conclusion that the evidence against Gallegos is overwhelming is
only minimally buttressed by Witness’s identification.

20150688-CA 6 2018 UT App 192
 State v. Gallegos

¶15 The trial court ruled that Gallegos’s conversation with the
officer was a consensual encounter and thus did not require the
officer to have reasonable suspicion. In doing so, the court
acknowledged that “under certain circumstances an officer
yelling at someone to stop . . . immediately conveys a sort of
Level 2 . . . scenario,” but that an encounter with police is
“entirely fact intensive and [yelling] hey come back and talk to
me isn’t necessarily stop, police.” Rather, it “actually invites a
voluntar[y] return.” The court concluded,

[W]hen you look at the entire circumstances in
addition to [the police officer’s statement to
Gallegos], that he was talked to, he wasn’t placed
in custody, there weren’t lights going on, there
weren’t sirens, he didn’t have his gun drawn, there
weren’t other officers around, [and] his ingress and
egress wasn’t blocked by a show of force . . . this
was a consensual encounter . . . even to the point
where [Gallegos] allows the officer to search him.

The court further reasoned that it was “consensual to the point
where the officer established enough of a rapport with
[Gallegos] to say you shouldn’t be carrying this knife in your
condition and . . . instead of arresting him for possession of a
weapon while intoxicated or something like that he gave him the
option of just coming down to the police station the next day and
picking it up.” And the fact that Gallegos told the officer to just
keep the knife, in the view of the court, “convey[ed] nothing
more than a consensual conversation between the two
individuals.”

¶16 Prior to trial, Gallegos personally addressed the court
regarding issues he was having with his trial counsel and his
desire to sever the charges against him. Because all of the
charges stemmed from “one joint act,” Gallegos’s trial counsel
believed the charges could not be severed. The trial court agreed
to hear Gallegos but explained to him that it “usually will not
consider severing charges unless grounds can be stated for

20150688-CA 7 2018 UT App 192
 State v. Gallegos

severance.” Gallegos explained his frustration with counsel, but
his counsel argued that Gallegos wanted the charges severed
because there was little evidence on some of the charges, such as
his graffiti charge. The court denied the motion to sever and
explained, “It may actually even be that prior to submission to
the jury, the Court may determine that there [is] a reasonable
doubt on the graffiti charge and it may not send that to the jury.”

¶17 After the court denied the motion to suppress and the
motion to sever, the case went to trial, and Gallegos was
convicted on all charges. Gallegos appeals.

ISSUES AND STANDARDS OF REVIEW

¶18 Gallegos raises three issues for our review. First, Gallegos
filed a motion for remand under rule 23B of the Utah Rules of
Appellate Procedure. “A remand under rule 23B is available
only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.” State v. Crespo,
2017 UT App 219, ¶ 24, 409 P.3d 99 (cleaned up).

¶19 Second, Gallegos contends that his trial counsel was
ineffective for failing to move for severance of the Stabbing
Charges and the Police Station Charges. 4 “When a claim of

4. Gallegos also argues in the alternative that the trial court erred
in denying his motion to sever. At trial, Gallegos’s argument to
the court was that evidence supporting his graffiti conviction
was weak compared to the other charges and thus should be
severed. On appeal, Gallegos contends that the Stabbing Charges
should have been severed from the Police Station Charges.
Because the argument before the trial court was substantially
different from what is argued on appeal, and because trial
counsel argued only why he thought a motion to sever would
fail, we conclude that the issue is unpreserved. See 438 Main St.
(continued…)

20150688-CA 8 2018 UT App 192
 State v. Gallegos

ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (cleaned up).

¶20 Third, Gallegos contends that “the police lacked
reasonable suspicion to stop [Gallegos] because he did not match
the description of the alleged suspect.” This presents a mixed
question of law and fact.

We review a trial court’s decision to grant or deny
a motion to suppress for an alleged Fourth
Amendment violation as a mixed question of law
and fact. While the court’s factual findings are
reviewed for clear error, its legal conclusions are
reviewed for correctness, including its application
of law to the facts of the case. Accordingly, we
review as a matter of law whether a specific set of
facts gives rise to reasonable suspicion.

State v. Sanchez-Granado, 2017 UT App 98, ¶ 2, 400 P.3d 1110 (per
curiam) (cleaned up).

ANALYSIS

I. Rule 23B Motion

¶21 Gallegos has filed a motion for remand under rule 23B of
the Utah Rules of Appellate Procedure, seeking remand for five

(…continued)
v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (“In order to
preserve an issue for appeal, the issue must be presented to the
trial court in such a way that the trial court has an opportunity to
rule on that issue.” (cleaned up)).

20150688-CA 9 2018 UT App 192
 State v. Gallegos

issues: (1) failure to call an eyewitness expert who had been
retained and who had submitted a report; (2) failure to call a
forensics expert; (3) failure to move to sever the Stabbing
Charges from the Police Station Charges; (4) failure to move to
“sever” evidence of gang association; and (5) an opportunity to
“explore” a variety of other complaints contained in an affidavit
of Gallegos (including claims of excessive force, lost blood
evidence, failure to provide unspecified documents, improper
closing arguments by the prosecutor, and arguing that the
prosecutor “visibly, but not audibly” coached witnesses). 5

¶22 We have reviewed Gallegos’s motion, the associated
affidavits, and the State’s response. We deny the motion. We
address Gallegos’s issue regarding severance because the
relevant facts are already in the record. The other assertions fail
because Gallegos has not explained how the evidence would
have likely changed the result of the trial. Specifically, Gallegos
does not squarely confront the majority of the evidence
supporting the verdict. 6

¶23 To be successful, a rule 23B motion (1) must be supported
by an affidavit alleging facts outside the existing record, (2) those
facts must be non-speculative, and (3) the alleged facts must, if
true, support a determination that counsel’s ineffectiveness

5. In his rule 23B motion, Gallegos asserts that the root of his
counsel’s ineffectiveness was in failing to meet with Gallegos
often enough to “gather evidence in support of [Gallegos’s]
claims.”

6. The dissenting opinion agrees that the rule 23B motion should
be denied except as it pertains to trial counsel’s (1) failure to
meet with Gallegos for more than a few minutes until three
weeks before trial and (2) decision not to call an expert on
eyewitness identification who had been retained by predecessor
counsel. See infra ¶ 60.

20150688-CA 10 2018 UT App 192
 State v. Gallegos

prejudiced the result. State v. Tirado, 2017 UT App 31, ¶ 14, 392
P.3d 926. Specifically, a defendant must present the “court with
the evidence he intends to present on remand and explain how
that evidence supports both prongs of the ineffective assistance
of counsel test.” State v. Christensen, 2013 UT App 163, ¶ 4,
305 P.3d 222 (per curiam) (cleaned up); see Strickland v.
Washington, 466 U.S. 668, 687–88 (1984) (articulating the prongs
of the ineffective assistance of counsel test as (1) showing
counsel’s performance fell below an “objective standard of
reasonableness” and (2) that the “deficient performance
prejudiced the defense”)

¶24 When analyzing evidence under the Strickland standard,

[a] court must consider the totality of the evidence
before the judge or jury and then ask if the
defendant has met the burden of showing that the
decision reached would reasonably likely have
been different absent the errors. Thus, the
defendant must show that there is a reasonable
probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have
been different. Ultimately, a reasonable probability
is a probability sufficient to undermine confidence
in the outcome.

State v. Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (cleaned up). The
United States Supreme Court has held that “[t]he likelihood of a
different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011). And our supreme
court has observed, “Strickland’s requirement of a reasonable
probability of a different outcome is a relatively high hurdle to
overcome.” Garcia, 2017 UT 53, ¶ 44 (cleaned up).

¶25 Gallegos’s rule 23B motion fails to meet the Strickland
standard. Gallegos does not acknowledge in his motion that

20150688-CA 11 2018 UT App 192
 State v. Gallegos

Victim’s blood was found on his knife, shirt, pants, and ear. 7 He
does not acknowledge that Witness gave a detailed description
of Gallegos, whom Witness saw from ten feet away, which
description enabled officers to locate Gallegos quickly. Gallegos
does concede that he and trial counsel discussed the potential
testimony of the retained eyewitness expert, and that trial
counsel determined that the expert would not be helpful—a fact
that undercuts his ineffective assistance claim. See State v. Alzaga,
2015 UT App 133, ¶ 86, 352 P.3d 107 (“Counsel’s decision to call
or not to call an expert witness is a matter of trial strategy, which
will not be questioned and viewed as ineffectiveness unless there
is no reasonable basis for that decision.” (cleaned up)). The
motion acknowledges that Gallegos does not actually know
what the “forensic” expert would have testified. And the
hodgepodge of other complaints made by Gallegos in his rule
23B affidavit is exactly the unsubstantiated fishing expedition
that precedent has previously indicated will not sustain a rule
23B motion. See State v. Griffin, 2015 UT 18, ¶ 19 (“The mere hope
that an individual may be able to provide information if
subpoenaed to testify is not sufficient. An affiant must submit

7. The dissenting opinion characterizes “the eyewitness accounts
of both Victim and Witness” as “some of the most powerful
evidence at the State’s disposal.” Infra ¶ 62. While compelling,
the eyewitness accounts are not the most powerful evidence in
this case. The most powerful evidence is that Gallegos possessed
a knife with Victim’s blood on it and was otherwise covered
with Victim’s blood when arrested—facts that remain
unchallenged in Gallegos’s rule 23B motion and arguments on
appeal. This blood evidence is especially compelling where both
Victim and Witness testified that there was only one attacker
who was in close proximity to Victim. The other attackers were
described as “st[anding] back.” Thus, the unrefuted evidence of
Victim’s blood in several locations on Gallegos’s person becomes
even more compelling—and untainted by any issues of false
identification.

20150688-CA 12 2018 UT App 192
 State v. Gallegos

specific facts and details that relate to specific relevant
occurrences.”). Upon review, Gallegos’s motion fails to establish
facts that, if true, would have likely changed the result here.
Given the fact that forensic evidence overwhelmingly tied
Gallegos to the crime, that Victim identified Gallegos as the
assailant, and that Gallegos’s trial counsel determined that
calling an eyewitness expert would not be helpful, any
testimony offered by the eyewitness expert would not have
likely changed the result.

¶26 We further comment on Gallegos’s inability to carry his
burden in demonstrating that his counsel was deficient for not
calling an eyewitness expert. Trial counsel is not required to call
an eyewitness expert to testify. See State v. King, 2017 UT App 43,
¶ 23 n.3, 392 P.3d 997 (“[R]ule 702 of the Utah Rules of Evidence
governs only the admissibility of expert testimony, and [Utah
precedent does] not transform admissible expert testimony into
required expert testimony.”). “To demonstrate that his counsel
was ineffective in retaining and presenting expert witnesses, a
defendant must rebut the strong presumption that under the
circumstances, counsel’s action might be considered sound trial
strategy.” 8 Alzaga, 2015 UT App 133, ¶ 86 (cleaned up). In other

8. The dissenting opinion resists this strong presumption,
remarking that an affidavit from another attorney asserts that
trial counsel’s contract to provide indigent defense services had
been terminated for failure to complete work assigned to him on
an unrelated case. See infra ¶ 61 n.14. Our task, however, is not to
allow trial counsel’s reputation to color our conclusions, but to
determine only whether counsel performed deficiently in this
instance. See Anderson v. Collins, 18 F.3d 1208, 1215 (5th Cir. 1994)
(“Both prongs of the Strickland test . . . require examination of the
specific conduct and decisions made by counsel in the particular
case; [the defendant] cannot establish that the representation he
received was constitutionally inadequate merely from evidence
about [trial counsel’s] reputation or conduct in other cases.”).
(continued…)

20150688-CA 13 2018 UT App 192
 State v. Gallegos

(…continued)
Evidence of substandard performance by Gallegos’s
counsel in another case does not inform us of any specific
conduct or decision in the matter at hand. We do not downplay
this affidavit as the dissent suggests. See infra ¶ 61 n.14. Instead,
we view the affidavit under the established standard applicable
to a rule 23B motion, a standard that the dissent overlooks: Is
there evidence that, if presented after it is established on
remand, would support both prongs of the Strickland test—
deficient performance and prejudice? See State v. Griffin, 2015 UT
18, ¶ 17. The burden on the movant to make this showing has
been described by our supreme court as a “high bar.” Id. The
dissent essentially says, “Well, let’s see what the defendant
comes up with on remand.” The dissent thereby relieves
Gallegos of his high-bar-burden and, if established as precedent,
such an approach would so dilute the burden as to render a rule
23B remand nearly automatic when any attorney does not meet
with his client. Instead, because Gallegos fails to explain—in fact,
he makes literally no attempt to explain—how the failure of his
attorney to meet with him had any impact on the trial in this
case, the motion for remand on this basis must be denied.
Specifically, Gallegos points to no evidence on the issue of
trial counsel’s failure to meet with him that he anticipates
eliciting on remand, but he is required to do so: “[T]he defendant
must provide allegations of fact that are not speculative.” Id.
¶ 19. Speculative facts are those which are the fruit of mere
guesswork or conjecture. Id. This is all Gallegos offers as it
pertains to trial counsel not meeting with him until weeks before
trial. Gallegos does not claim, for example, that the failure to
meet with him resulted in available evidence not being
investigated or offered, nor does he claim a witness existed who
was not contacted, nor does he claim that an alternate defense
theory was not somehow explored. Because Gallegos identifies
no specific evidence and offers no explanation as to how the
evidence would inform the issue of ineffective assistance, the
(continued…)

20150688-CA 14 2018 UT App 192
 State v. Gallegos

words, “[t]his presumption may be overcome only if there is a
lack of any conceivable tactical basis for counsel’s actions.” State
v. King, 2012 UT App 203, ¶ 14, 283 P.3d 980 (cleaned up). 9 And

(…continued)
only purpose of remand on this issue would be to establish that
his attorney had not met with him—a fact that the dissent ably
points out is already in the record, see infra ¶ 61, and therefore is
not a proper basis for remand, see Griffin, 2015 UT 18, ¶ 18. While
we in no way endorse or fail to appreciate the substandard
nature of trial counsel’s repeated failure to meet with his client,
the dissent’s approach fails to require the correct showing, as
established by our rules and precedent.

9. The dissenting opinion takes exception to our analysis of
whether defense counsel was deficient, stating that “the majority
speculates about some of the reasons why counsel might have
reached this conclusion but, at least at this point, I find those
potential reasons unconvincing. We simply do not know, on this
record, why trial counsel elected not to call the expert.” Infra
¶ 68. However, the long-established standard—whether there
was “any conceivable tactical basis for counsel’s actions”—invites,
if not requires, an appellate court to speculate and does not
require that defense counsel’s actual reason for not calling an
expert be articulated. State v. King, 2012 UT App 203, ¶ 14, 283
P.3d 980 (emphasis added) (cleaned up). And while the
dissenting opinion does not find convincing the reasons we
conceive for counsel’s decision not to call the retained expert
witness, our supreme court has expressly acknowledged such
realities. State v. Clopten, 2009 UT 84, ¶ 20, 223 P.3d 1103
(“[W]here a witness sees the perpetrator under favorable
conditions, expert testimony actually makes jurors more likely to
convict.”); State v. Long, 721 P.2d 483, 492 n.5 (Utah 1986) (noting
that research indicates giving cautionary instruction in
conjunction with strong eyewitness testimony serves to bolster
the identification testimony).
(continued…)

20150688-CA 15 2018 UT App 192
 State v. Gallegos

given this “strong presumption of competence, we need not
come to a conclusion that counsel, in fact, had a specific strategy
in mind. Instead, we need only articulate some plausible
strategic explanation for counsel’s behavior. This calls for an
inquiry into the objective reasonableness of counsel’s
performance, not counsel’s subjective state of mind.” Jackson v.
State, 2015 UT App 217, ¶ 15, 359 P.3d 659 (cleaned up).

¶27 Here, there was a conceivable basis for trial counsel’s
decision. Trial counsel could have reasonably calculated that
putting this expert on the stand carried too significant a
possibility that cross-examination by the State would serve only
to solidify and repeatedly highlight the State’s arguments
concerning factors that made the eyewitness identification
credible. Gallegos’s rule 23B motion fails to address this or other

(…continued)
The “strong presumption” in favor of finding trial
counsel’s assistance adequate, coupled with an express burden
on a defendant to persuade the appellate court that there is no
conceivable tactical basis for a decision, can only be
conscientiously administered post trial when an appellate court
attempts to conceive of an appropriate strategy. State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162 (explaining that courts “will not
question such decisions unless there is no reasonable basis
supporting them” (emphasis added) (cleaned up)); State v.
Garcia, 2017 UT App 200, ¶ 19, 407 P.3d 1061 (explaining that a
defendant must “overcome the strong presumption that his trial
counsel rendered adequate assistance by persuading the court
that there was no conceivable tactical basis for counsel’s actions”
(cleaned up); State v. Bryant, 965 P.2d 539, 542–44 (Utah Ct. App.
1998) (accepting the State’s suggested conceivable tactical bases
and therefore concluding that the defendant had not overcome
the strong presumption that counsel’s performance was not
deficient).

20150688-CA 16 2018 UT App 192
 State v. Gallegos

reasonable bases trial counsel may have considered in deciding
not to call the eyewitness expert.

¶28 The rule 23B motion is denied.

II. Ineffective Assistance for Not Moving to Sever

¶29 Gallegos argues that his trial counsel was ineffective for
not moving to sever the Stabbing Charges from the Police
Station Charges. Because the Stabbing Charges were neither
connected in their commission nor part of a common scheme or
plan with the Police Station Charges, we agree that a motion to
sever would have likely been successful. We further agree that
Gallegos’s attorney performed below an objectively reasonable
standard by not moving to sever. However, Gallegos was not
prejudiced by his counsel’s deficient performance. 10

¶30 The Sixth Amendment guarantees defendants the right to
effective assistance of counsel. U.S. Const. amend. VI; Strickland
v. Washington, 466 U.S. 668, 684–86 (1984). To succeed on a claim
of ineffective assistance of counsel, a defendant must show
(1) “that counsel’s performance was deficient,” that is, falling
below an “objective standard of reasonableness,” and (2) “that
the deficient performance prejudiced the defense.” Id. at 687–88.
We examine these requirements in turn.

10. Typically, where “it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, we will do so
without analyzing whether counsel’s performance was
professionally unreasonable.” Archuleta v. Galetka, 2011 UT 73,
¶ 41, 267 P.3d 232; see also State v. Hill, 2018 UT App 140, ¶ 14.
This would have been our course here because we anticipated
the State would concede deficient performance on the severance
issue. However, far from conceding the point, the State has
vigorously opposed any claim of deficient performance.
Therefore, we deem it advisable to address the issue fully.

20150688-CA 17 2018 UT App 192
 State v. Gallegos

A. Deficient Performance

¶31 When challenging trial counsel’s failure to make a motion,
part of a defendant’s burden under the deficient performance
prong is to show that the motion would have been successful
had it been made. See State v. Bond, 2015 UT 88, ¶ 63, 361 P.3d
104 (explaining that failure to raise a futile motion does not
amount to ineffective assistance). Further, a defendant must
otherwise establish “that the challenged actions cannot be
considered sound strategy under the circumstances.” Menzies v.
State, 2014 UT 40, ¶ 76, 344 P.3d 581 (cleaned up).

1. Successful Claim for Severance

¶32 We first examine whether Gallegos’s motion to sever
would have been successful, and we conclude that it likely
would have.

¶33 Utah law allows the joinder of offenses in
some circumstances. Specifically, “joinder of multiple offenses is
appropriate if the requirements of Utah Code section 77-8a-1(1)
are met and neither the defendant nor the prosecution
is prejudiced as a result of the joinder.” State v. Balfour, 2008
UT App 410, ¶ 18, 198 P.3d 471. Utah Code section 77-8a-1 states,

(1) Two or more felonies, misdemeanors, or both,
may be charged in the same indictment or
information if each offense is a separate count
and if the offenses charged are:

(a) based on the same conduct or are otherwise
connected together in their commission; or

(b) alleged to have been part of a common
scheme or plan.

...

20150688-CA 18 2018 UT App 192
 State v. Gallegos

(4) (a) If the court finds a defendant or the
prosecution is prejudiced by a joinder of
offenses or defendants in an indictment or
information or by a joinder for trial together,
the court shall order an election of separate
trials of separate counts, grant a severance of
defendants, or provide other relief as justice
requires.

Utah Code Ann. § 77-8a-1 (LexisNexis 2017). 11

¶34 Pursuant to the joinder statute, to determine whether a
motion to sever would be successful, we must decide whether
the Stabbing Charges and the Police Station Charges were based
on the same conduct or were otherwise connected in their
commission. We then must decide whether the charges were
part of a common scheme or plan.

a. The Offenses Were Not Connected in their Commission

¶35 The statute governing joinder requires only that the
offenses be “connected together in their commission.” Id.
§ 77-8a-1(a). We have held that crimes are connected in their
commission where the later crime is “precipitated by an earlier
one, such as where a later crime facilitates flight after the earlier
one.” State v. Benson, 2014 UT App 92, ¶ 13, 325 P.3d 855 (cleaned
up). After examining other jurisdictions’ application of the term
“otherwise connected in their commission,” we have concluded
that “precipitation cases” from other jurisdictions “seem to share
as a common element of their analysis the conclusion that most
of the evidence admissible in proof of one offense is also

11. Because the statutory provisions in effect in 2015—when
Gallegos alleges his counsel failed to file a motion to sever the
Stabbing Charges from the Police Station Charges—do not differ
in any material way from those now in effect, we cite the current
version of the Utah Code for convenience.

20150688-CA 19 2018 UT App 192
 State v. Gallegos

admissible in proof of the other.” State v. Smith, 927 P.2d 649, 653
(Utah Ct. App. 1996) (cleaned up). Even where offenses “are not
strictly precipitated by one another,” we have held that sufficient
connection exists where “the events are so related in time,
location, and purpose that they are directly connected in a
legally significant way.” State v. Burke, 2011 UT App 168, ¶ 24,
256 P.3d 1102 (cleaned up). In Burke, this court reasoned that
separate sexual offenses against multiple victims were
sufficiently connected where “the offenses are closely related in
time and place, occurring on the same night, within hours of
each other, in the same house, and even in the same room on the
same couch,” and where the actions “illustrate a distinct
behavioral arc of increasingly aggressive and opportunistic
transgressions of sexual boundaries.” Id. ¶¶ 22–23.

¶36 On the other hand, we have concluded that the
commission of certain crimes was not sufficiently connected
where “[o]ther than the fact that all of the conduct was
committed by [a defendant], the charges were not directly
related to one another.” State v. Hildreth, 2010 UT App 209, ¶ 32,
238 P.3d 444. In Hildreth, a chiropractor was charged for sexually
assaulting four women on separate occasions under the guise of
providing chiropractic care. Id. ¶ 2. This court reasoned that the
charges were neither “precipitated by the commission of the
others, nor were any of the charges committed in an attempt to
conceal the others,” and thus concluded that “the charges were
not connected in their commission as contemplated by section
77-8a-1(1)(a).” Id. ¶ 32.

¶37 The case before us is far more analogous to Hildreth than
to the others. Gallegos stabbed Victim in a park and was later
apprehended. Then, while at the police station, Gallegos acted
violently, resulting in additional charges. Gallegos’s violent
behavior at the police station did not “facilitate[] flight” from the
earlier attack, nor could the later crimes be characterized as “a
single [violent] spree,” as we would characterize a string of
robberies, for example. See Benson, 2014 UT App 92, ¶¶ 13–14.

20150688-CA 20 2018 UT App 192
 State v. Gallegos

Neither do Gallegos’s crimes demonstrate “a distinct
behavioral arc of increasingly aggressive and opportunistic
transgressions.” Burke, 2011 UT App 168, ¶ 24. Instead, this case
is more like Hildreth, where the defendant committed a sequence
of offenses, but those offenses were not otherwise related to each
other. See 2010 UT App 209, ¶ 32. Here, the stabbing at the park
and the violent behavior at the police station are so independent
that one does not provide any legally significant context to the
other. Burke, 2011 UT App 168, ¶ 24. They therefore do not
“share as a common element of their analysis the conclusion that
most of the evidence admissible in proof of one offense is also
admissible in proof of the other.” Smith, 927 P.2d at 653 (cleaned
up).

¶38 To be sure, this case is unlike Hildreth in that the
charged acts here occurred on the same night, and there is an
abstract connection between the charged offenses in
that Gallegos was detained at the police station for his
involvement in the stabbing. The State argues that the
charges were connected due to the fact that Gallegos was
tagging gang territory when he attacked Victim and “continued
in this aggressive arc” after seeing pictures of gang members
on the wall at the police station. But that abstract connection, in
our view, is not the type of distinct connection described in
our previous cases. See Burke, 2011 UT App 168, ¶ 24. Instead,
the connection in this case is akin to that in Hildreth, where a
chiropractor used his office and position to sexually
assault multiple victims, but the separate incidents did not
support joinder of the offenses at trial. 2010 UT App 209, ¶ 32.
The fact that Gallegos committed the crimes on the same night
and debatably in defense of his gang is not enough to
demonstrate that “the events [were] so related in time, location,
and purpose that they are directly connected in a legally
significant way.” Burke, 2011 UT App 168, ¶ 24. We therefore
conclude that “the charges were not connected in their
commission as contemplated by section 77-8a-1(1)(a).” Hildreth,
2010 UT App 209, ¶ 32.

20150688-CA 21 2018 UT App 192
 State v. Gallegos

b. Common Scheme or Plan

¶39 We next examine the second prong of Utah code section
77-8a-1(1)—whether the charged conduct was part of a common
plan or scheme. Utah Code Ann. § 77-8a-1 (LexisNexis 2017). “To
be classified as a common plan or scheme it is not necessary for
the crimes to have been perpetrated in an absolutely identical
manner, so long as the court perceives a visual connection
between the crimes.” State v. Hildreth, 2010 UT App 209, ¶¶ 33,
238 P.3d 444 (cleaned up). This usually means that the charged
crimes should share “striking similarities.” Id. ¶¶ 33, 36.
Additionally, we have held that the crimes sharing a common
scheme or plan also have a similar proximity in time. Id. ¶ 34.

¶40 We conclude that the Stabbing Charges and the Police
Station Charges do not share a common scheme or plan. The
only similarity in the conduct is that Gallegos acted violently in
both situations. But this is not strikingly similar conduct, such as
where a person carries out multiple crimes similar in minute
detail. See State v. Lee, 831 P.2d 114, 118 (Utah Ct. App. 1992)
(concluding that joinder was appropriate under common scheme
where the defendant’s conduct included targeting gay men at
bars, playing pool with them, convincing them to leave the bar
and ride on his motorcycle, driving each victim to a remote
location in the same canyon, robbing his victims by holding a
knife to their throats, ordering them to disrobe, and scattering
their clothes before driving away, with all incidents occurring
within five days of each other).

¶41 In the first instance, Gallegos stabbed a person for
intruding on his efforts to spray paint a bathroom wall. In the
second, Gallegos attacked and spit on a police officer and put a
hole in a wall while confined at a police station. Other than a
broad category of violence, there is no “visual connection
between the crimes.” Hildreth, 2010 UT App 209, ¶ 33 (cleaned
up). The State again argues that the common plan or scheme
between the crimes was Gallegos’s desire to defend his gang’s

20150688-CA 22 2018 UT App 192
 State v. Gallegos

territory and members. But this is a broad and abstract
similarity, not one in which the commission was strikingly
similar. Thus, the charged conduct was not part of a common
scheme or plan.

¶42 Having determined that the Stabbing Charges and the
Police Station Charges were unconnected in their commission
and not part of a common scheme or plan, we conclude that a
motion to sever would have succeeded at trial. See id. ¶ 37
(concluding that a trial court “exceeded its permissible range of
discretion in denying [a] motion for severance” where the
charges were not connected in their commission nor part of a
common scheme or plan).

2. Sound Trial Strategy

¶43 Next, to determine if Gallegos’s counsel performed
deficiently, we analyze whether failing to file a motion to sever
could conceivably advance a sound trial strategy. We see no
legitimate strategy under the circumstances, and neither party
asserts that Gallegos’s trial counsel refrained from objecting to
advance a particular strategy. And, as discussed above, a motion
to sever would have succeeded had counsel made the motion.
Counsel’s performance was therefore deficient. See State v.
Hallett, 796 P.2d 701, 706 (Utah Ct. App. 1990) (concluding that
“a motion to sever . . . would likely have been granted had the
motion been made” and, therefore, “counsel’s performance was
deficient since he did not make such a motion”).

B. Probability of a Different Result

¶44 Having determined that trial counsel’s performance was
deficient, we turn to the second Strickland requirement, which
obligates a defendant to show that “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington, 466 U.S. 668, 694 (1984). “A reasonable probability is

20150688-CA 23 2018 UT App 192
 State v. Gallegos

a probability sufficient to undermine confidence in the
outcome.” Id.

¶45 Under this standard, we conclude that Gallegos was not
prejudiced by his counsel’s deficient performance. Because there
is strong evidence against the charged conduct, our confidence
in the outcome of the trial is not undermined.

¶46 First, the evidence against Gallegos in relation to the
Stabbing Charges was overwhelming. On the night of the
stabbing, Gallegos was arrested with Victim’s blood on his
clothes and behind his ear. An officer found a knife covered in
Victim’s blood in Gallegos’s pocket. Victim identified Gallegos
as the person who stabbed him based on a photo lineup. We
admit that evidence of Gallegos spitting at an officer, kicking an
officer, and putting a hole in a wall at the police station would
certainly not endear Gallegos to a jury. But evidence of
Gallegos’s violent behavior at the police station could not
reasonably have impacted Gallegos’s conviction on the Stabbing
Charges in the sense that it made the difference in the jury’s
decision to convict; the evidence against him was simply too
great. And Gallegos offers no persuasive explanation of how
severing his charges would have produced a different outcome
at trial, further supporting our conclusion that severing the
charges would not have made a difference. 12 See Hallett, 796 P.2d
at 707.

12. The dissent is “not necessarily persuaded that the prejudicial
effect of the failure to sever, standing alone, would have raised a
‘significant possibility’ of a different outcome, given the relative
strength of the State’s evidence.” Infra ¶ 70. Rather, the dissent
would prefer to wait and see whether Gallegos is able to
demonstrate his attorney’s lack of preparation and ineffective
assistance in calling an eyewitness expert before making a
prejudice determination on severance. This approach, however,
(continued…)

20150688-CA 24 2018 UT App 192
 State v. Gallegos

¶47 Second, we similarly conclude that evidence of the
Stabbing Charges did not prejudice Gallegos in his convictions
stemming from the Police Station Charges. Even though the
Stabbing Charges are more gruesome and serious, the evidence
supporting convictions for the Police Station Charges was
overwhelming. Multiple officers witnessed Gallegos’s violent
behavior at the police station, and Gallegos points to no
meaningful dispute of that evidence. Thus, even though those
charges were tried in conjunction with another potentially
inflammatory set of charges, the amount of evidence against
him, coupled with the apparent lack of any meaningful
disagreement concerning that evidence, sustains our confidence
in the ultimate outcome.

¶48 Because Gallegos has not shown that a more favorable
outcome at trial was likely had the charges been severed, we
reject his ineffective assistance of counsel argument.

III. Reasonable Suspicion

¶49 Gallegos argues that the trial court erred in denying his
motion to suppress because it “base[d] its finding on whether
[Gallegos] was arrested, where the critical inquiry was whether
the officer had reasonable suspicion to make the stop.” We
disagree. Even assuming the encounter was a level two stop, as

(…continued)
is little more than a fishing license for Gallegos. See supra Part I.
To repeat, on a rule 23B motion, it is a defendant’s burden to
show that non-speculative facts would support a determination
that counsel’s ineffectiveness prejudiced the result. State v.
Tirado, 2017 UT App 31, ¶ 14, 392 P.3d 926. A defendant must
present the “court with the evidence he intends to present on
remand and explain how that evidence supports both prongs of
the ineffective assistance of counsel test.” State v. Christensen,
2013 UT App 163, ¶ 4, 305 P.3d 222 (per curiam) (cleaned up).

20150688-CA 25 2018 UT App 192
 State v. Gallegos

Gallegos argues, the officer had reasonable, articulable suspicion
to temporarily seize Gallegos.

¶50 The Fourth Amendment to the United States Constitution
guarantees the “right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. In determining whether a
seizure is reasonable under the Fourth Amendment, courts
analyze the three constitutionally permissible levels of police
stops. See State v. Johnson, 805 P.2d 761, 763 (Utah 1991). “A level
one encounter occurs when a police officer approaches a citizen
and asks questions, but the person is not detained against his
will and remains free to leave.” State v. Biggs, 2007 UT App 261,
¶ 10, 167 P.3d 544 (cleaned up). “A level two encounter occurs
when a police officer temporarily seizes an individual because
the officer has a reasonable, articulable suspicion that the person
has committed or is about to commit a crime.” Id. (cleaned up).
“Finally, a level three stop occurs when a police officer has
probable cause to believe that a crime has been committed and
effects an arrest of the suspect.” Id.

¶51 Our supreme court has stated,

It is settled law that a police officer may detain and
question an individual when the officer has
reasonable, articulable suspicion that the person
has been, is, or is about to be engaged in criminal
activity. To detain an individual under such
circumstances, the officer’s suspicion must be
supported by specific and articulable facts and
rational inferences, and cannot be merely an
inchoate and unparticularized suspicion or hunch.

State v. Simons, 2013 UT 3, ¶ 21, 296 P.3d 721 (cleaned up). “The
standard for reasonable suspicion is relatively low. Indeed, the
likelihood of criminal activity need not rise to the level required
for probable cause, and it falls considerably short of satisfying a

20150688-CA 26 2018 UT App 192
 State v. Gallegos

preponderance of the evidence standard.” State v. Morris, 2011
UT 40, ¶ 29, 259 P.3d 116 (cleaned up).

¶52 Here, the officer was instructed, based on eyewitness
accounts, to look for Hispanic males wearing white clothes in a
Toyota Camry on a specific dead-end street. The officer arrived
at the dead-end street within a minute or two of receiving the
description. Gallegos was wearing dark clothes instead of white
and was standing with two women instead of other men.
Nevertheless, he was (1) standing next to a Toyota Camry, (2) on
the dead-end street where the attackers had fled and where the
Camry returned, and (3) engaged with the officer within minutes
of the officer receiving an instruction from dispatch to
investigate the area. A reasonable officer, seeing the parked
Camry, could conclude that Gallegos had been in the vehicle, or
at least knew its occupants, because he stood next to it.

¶53 The case law Gallegos relies on to support his argument is
inapposite. In State v. Swanigan, 699 P.2d 718 (Utah 1985), the
primary case on which Gallegos bases his argument, our
supreme court explained that a stop “based solely on a
description by a fellow officer who had observed [two men]
walking along the street at a late hour in an area where recent
burglaries had been reported” could not form the basis of
reasonable suspicion. Id. at 719. Similarly, in State v. Steward, 806
P.2d 213 (Utah Ct. App. 1991), this court held that officers had no
reasonable basis to stop a person’s truck as he entered a
cul-de-sac where they had recently executed warrants on meth
houses. Id. at 216.

¶54 But Gallegos was not merely in a neighborhood where
crimes had been reported. He was, only minutes after the crime
was reported, standing next to the suspect vehicle on the very
street to which witnesses reported seeing the attackers and their
vehicle flee. Furthermore, neither of the cases Gallegos cites
relied on eyewitness accounts. Here, the officer knew, based on
eyewitness reports, that (1) he was looking for Hispanic males

20150688-CA 27 2018 UT App 192
 State v. Gallegos

who had recently fled down the dead-end street, (2) a Camry
had picked up the suspects, and (3) the Camry had just returned
to the dead-end street. These are articulable facts giving rise to
reasonable suspicion that Gallegos—who is Hispanic and was
right next to the Camry, on the dead-end street, minutes after the
officer had received the report—was involved with the fleeing
suspects. See State v. Markland, 2005 UT 26, ¶¶ 20–21, 112 P.3d
507 (holding that a police officer’s detention of a defendant “was
justified at its inception by a reasonable suspicion that crime was
afoot and that [the defendant] was connected to that crime”
where the officer arrived at an apartment complex in the early
morning hours—just minutes after receiving a report of someone
screaming—and defendant was the only person on the dead-end
street); see also Sanchez v. Florida, 199 So. 3d 472, 475 (Fla. Dist. Ct.
App. 2016) (analyzing whether an officer had reasonable
suspicion based on a report from dispatch by considering “the
length of time and distance from the offense, route of flight,
specificity of the description of the vehicle and its occupants, and
the source of the . . . information” (cleaned up)).

¶55 We conclude that even if the officer’s encounter with
Gallegos was a level two stop, the officer had reasonable,
articulable suspicion that supported briefly detaining Gallegos.
Thus, the trial court did not err in denying the motion to
suppress.

CONCLUSION

¶56 We deny Gallegos’s rule 23B motion with respect to the
failure to call an eyewitness expert and issues related to evidence
because there was a conceivable basis for his trial counsel’s
strategy and because Gallegos was not prejudiced by these
alleged deficiencies. We also conclude that, even though
Gallegos’s counsel performed deficiently by failing to make a
motion to sever the Stabbing Charges from the Police Station
Charges, counsel’s failure does not undermine our confidence in
the result at trial. We further conclude that the trial court

20150688-CA 28 2018 UT App 192
 State v. Gallegos

properly denied Gallegos’s motion to suppress because the
officer had reasonable, articulable suspicion to temporarily seize
Gallegos. We therefore affirm Gallegos’s convictions.

HARRIS, Judge (concurring in part and dissenting in part):

¶57 I concur with the majority’s analysis in Section III in its
entirety. I also concur with the majority’s analysis in Section II.A.
I disagree, however, with the conclusions the majority reaches in
much of Section I and most of Section II.B, and due to this
disagreement I cannot join in the majority’s resolution of this
appeal, at least not at this stage of the proceedings.

¶58 The majority persuasively explains that Gallegos’s trial
counsel performed deficiently by failing to seek a separate trial
for the Police Station Charges. The majority concludes, however,
that his attorney’s deficient performance did not prejudice
Gallegos, because “the evidence against him [on the Stabbing
Charges] was simply too great.” See supra ¶ 46. While I certainly
acknowledge that the State introduced several pieces of
powerful evidence at trial that indicated Gallegos’s guilt, at this
point I cannot agree—at least not where Gallegos has raised
other questions about the effectiveness of his attorney in a rule
23B motion that, in my view, must first be resolved—that there is
no “reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
See Strickland v. Washington, 466 U.S. 668, 694 (1984).

¶59 As an initial matter, I note that Strickland’s “reasonable
probability” standard is not the same as the “more likely than
not” standard applied in civil cases. Our supreme court has
stated that the “more likely than not” standard is “more
demanding” than the “reasonable probability” standard. See
Tillman v. State, 2005 UT 56, ¶ 29 n.7, 128 P.3d 1123 (quoting
Strickler v. Greene, 527 U.S. 263, 297–300 (1999) (Souter, J.,
concurring and dissenting)), superseded in part by statute on other
grounds as stated in Gordon v. State, 2016 UT App 190, ¶ 32 n.8,

20150688-CA 29 2018 UT App 192
 State v. Gallegos

382 P.3d 1063. The reasonable probability standard is “more akin
to a ‘significant possibility’ of a different result.” Id. (citation
omitted). A “reasonable probability of a different result occurs”
when a court’s “confidence in the outcome of the trial” is
undermined. Id. ¶ 29 (cleaned up). In other words, in order to
win reversal, Gallegos does not have to convince us that there is
a greater than 50% chance that the outcome of his trial would
have been different. Instead, he must simply raise issues that
undermine our confidence in the outcome of Gallegos’s trial, and
persuade us that there is a “significant possibility” of a different
result. At this point in the proceedings, before a court
adjudicates the issues Gallegos has raised in his rule 23B motion,
my confidence in the outcome of Gallegos’s trial is not solid
enough to warrant affirmance under this standard.

¶60 Aside from the one irregularity that the majority and I
agree upon—counsel’s failure to seek severance—I am also
concerned with two of the issues 13 Gallegos raises in his rule 23B
motion, and I would accordingly grant that motion and remand
for resolution of those two issues. First, I am concerned that
counsel did not pay enough attention to this case. Second, I am
concerned with counsel’s failure to introduce expert testimony
regarding the infirmities inherent in eyewitness identification
testimony.

¶61 With regard to the first issue, Gallegos avers in his rule
23B affidavit that his trial counsel was appointed to represent
him in August 2014, but that counsel did not meet with him
(outside of a handful of brief discussions in the courthouse
holding cell) until May 18, 2015, less than three weeks before
trial. In this case, it is impossible to dismiss these averments as
the self-serving statements of an imprisoned defendant, because
trial counsel himself admitted to these facts on the record at a

13. I agree with the majority’s analysis with regard to the other
three issues raised in the rule 23B motion.

20150688-CA 30 2018 UT App 192
 State v. Gallegos

pretrial hearing just a few weeks prior to trial. After Gallegos
complained to the court that he had only spent a grand total of
“five[] [or] six minutes in ten months” with his counsel, despite
having “tried sending him letters” and “calling him,” trial
counsel did not dispute Gallegos’s account, stating on the record
that he had been busy with a capital murder case and that “[j]ust
because I haven’t met with him doesn’t mean I’m not prepared
for trial.” 14 The trial court then ordered counsel to meet with
Gallegos, astutely noting that “sometimes defendants have a
keener apprehension of the facts than anyone else because they
were present or at least allegedly present when the matter
occurred,” and that failing to give the defendant the opportunity
to “go over all the discovery” and otherwise participate in the
preparation of the case “can disable the defense.” On May 18,
2015, a few days after the court ordered him to meet with his
client, trial counsel held his first substantive meeting with
Gallegos. This was less than three weeks prior to trial. It should
go without saying that failure to hold even one substantive

14. Gallegos has also produced an affidavit from another
attorney who worked with trial counsel on the same capital
murder case by which counsel was supposedly distracted, and
this other attorney avers that trial counsel failed to do the work
assigned to him on that capital murder case and that as a result
“his contract . . . to provide indigent defense services has been
terminated.” The majority downplays this affidavit, on the
ground that “[e]vidence of substandard performance by
Gallegos’s counsel in another case” sheds no light on his
performance in this case, and because ineffective assistance of
counsel cannot be established by evidence of an attorney’s poor
general reputation. See supra ¶ 26 n.8. But this was not merely a
reputational issue; indeed, according to trial counsel’s own
statement to the court, counsel’s performance in the two cases
are directly connected, because counsel’s explanation for not
meeting with Gallegos in this case was that he was ostensibly too
busy with the other one.

20150688-CA 31 2018 UT App 192
 State v. Gallegos

meeting with one’s client for nine months following retention,
and postponing any such meeting until less than three weeks
prior to trial—and only after it was ordered by the court— is
substandard attorney conduct in a case as serious as this one.

¶62 With regard to the second issue, some of the most
powerful evidence at the State’s disposal was the eyewitness
accounts of both Victim and Witness, who both (in varying
ways) identified Gallegos as the stabber. Witness did so at a
police “showup” that took place on the night in question, in
which Gallegos was the only potential suspect for Witness to
choose from. Victim did so the next day, by way of a photo
lineup.

¶63 Our supreme court has acknowledged that eyewitness
identification evidence can be problematic, because jurors tend
to overvalue it while overlooking its inherent flaws. See State v.
Clopten, 2009 UT 84, ¶¶ 15–29, 223 P.3d 1103. “Decades of study
. . . have established that eyewitnesses are prone to identifying
the wrong person as the perpetrator of a crime, particularly
when certain factors are present.” Id. ¶ 15. For instance, and
among other factors, people tend to “identify members of their
own race with greater accuracy than they do members of a
different race.“ Id. “[T]here is little doubt that juries are generally
unaware of these deficiencies in human perception and memory
and thus give great weight to eyewitness identifications.” Id. To
overcome these “inherent deficiencies” in eyewitness
identification testimony, “expert testimony is generally
necessary to adequately educate a jury” about the subject. Id.
¶ 16.

¶64 It does not follow from Clopten, however, that counsel’s
failure to call an eyewitness identification expert “presumptively
renders counsel ineffective without regard for the circumstances
of a particular case.” See State v. Willey, 2011 UT App 23, ¶ 19,
248 P.3d 1014. If a particular case is “among those cases ‘in
which a witness viewed the perpetrator under such ideal

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conditions that an expert would not be able to identify factors
that could have contributed to a misidentification,’” counsel
cannot be said to act ineffectively by declining to call an
eyewitness identification expert. See State v. Heywood, 2015 UT
App 191, ¶ 28, 357 P.3d 565 (quoting Clopten, 2009 UT 84, ¶ 33).
Moreover, “such expert testimony does not always benefit the
defendant,” and “when an eyewitness-identification expert’s
testimony is likely to reinforce the credibility of identifications
made by eyewitnesses, declining to bring the expert to the
witness stand may be sound trial strategy.” See State v. King, 2017
UT App 43, ¶ 19, 392 P.3d 997.

¶65 In this case, conditions were certainly not entirely ideal,
and various factors militate in both directions. Indeed, trial
counsel was actually in possession of a draft report from a
potential expert witness who identified several factors that
might militate in Gallegos’s favor and undermine Witness’s
eyewitness identification. Clopten’s first category of factors
“pertains to the observer” and his ability to perceive the events
in question. See Heywood, 2015 UT App 191, ¶ 19 (quoting
Clopten, 2009 UT 84, ¶ 32 n.22). Where the witness has vision
issues, or is tired, injured, or intoxicated, the witness’s
perceptive abilities may be impaired. Id. Also, where the witness
is a different race than the suspect, the witness’s ability to
accurately identify the suspect may be impaired. Id. Some of
these factors are (or may be) helpful to the defense, including the
cross-racial identification factor.

¶66 The second category of factors pertains to the “event
witnessed” and the “circumstances of the observation,”
including such things as whether the event is high-stress,
lighting and visibility issues, distance, distractions, and whether
a weapon was present. Id. ¶ 20 (cleaned up). The presence of any
of these factors would tend to undermine the credibility of an
eyewitness’s identification. Many of these factors are present
here—the event was high-stress; it was dark, and the scene was
variably lit; and a weapon was present.

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 State v. Gallegos

¶67 The third category of factors “pertains to the eyewitness’s
later identification of the suspect,” including the length of time
between observation and identification, and whether the
identification occurred at an in-person lineup, photo lineup, or
showup, and what procedures the officers used in staging the
lineup or showup. Id. ¶ 23. Some of these factors are present
here, at least with regard to one of the eyewitnesses—Witness’s
identification occurred after a one-man showup similar to the
one effectuated in State v. Ramirez, 817 P.2d 774, 784 (Utah 1991).

¶68 One of Gallegos’s previous attorneys had identified and
retained an expert who could testify at trial and explain to the
jury the limitations of eyewitness identification testimony. Trial
counsel, however, elected not to call that (or any other) expert
regarding eyewitness identification testimony, apparently
because trial counsel determined that the expert would not be
helpful. In its opinion, the majority speculates about some of the
reasons why counsel might have reached this conclusion but, at
least at this point, I find those potential reasons unconvincing.
We simply do not know, on this record, why trial counsel elected
not to call the expert, and in a case like this one where both
(a) eyewitness identification testimony was so important and
(b) there are legitimate questions about trial counsel’s level of
preparedness, I would grant the rule 23B motion so that more
information can be gained about trial counsel’s reason for
making what might seem to be a questionable decision. See King,
2017 UT App 43, ¶¶ 16–24 (granting a rule 23B motion, but
eventually determining—after a remand in which the trial court
had made a factual finding that counsel had “made an informed,
reasonable strategic decision” based on many factors “that an
eyewitness identification expert would not be helpful to the
defense but would instead likely end up hurting it”—that
counsel had not acted ineffectively (cleaned up)).

¶69 Finally, I am persuaded that the jury, in determining
Gallegos’s guilt on the Stabbing Charges, was—at least to some
degree—affected by hearing the evidence of the Police Station

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 State v. Gallegos

Charges. 15 Gallegos’s primary defense to the Stabbing Charges
was that he was present at the scene of the stabbing, but that he
was not the stabber. The jury heard testimony from several
police officers that, after he was apprehended, he kicked a police
officer, tried to run away from a police officer, yelled and
screamed at police officers, spit on police officers, and gouged a
large hole in the wall of one of the rooms at the police station by
throwing or kicking a chair into the wall. This evidence—which
the trial court should have severed and kept from the jury
deciding Gallegos’s guilt on the Stabbing Charges—no doubt
made it easier for the jury to believe that Gallegos was a person
inclined to violence, and no doubt had some effect on the jury’s
decision to convict Gallegos on the Stabbing Charges.

¶70 I am not necessarily persuaded that the prejudicial
effect of the failure to sever, standing alone, would have raised a
“significant possibility” of a different outcome, given the
relative strength of the State’s evidence. But I am not
comfortable definitively answering the “prejudice” question in
this case until after the rule 23B motion is resolved. Even
the majority acknowledges that Witness’s identification of
Gallegos at the police showup “is problematic.” See supra ¶ 10
n.3. It is possible that Gallegos might be able to demonstrate a
“significant possibility” of a different result, depending upon
the outcome of his rule 23B motion. If Gallegos is eventually
able to demonstrate that his attorney was unprepared, or that his
attorney acted ineffectively by failing to call an
eyewitness identification expert, the contours of the “prejudice”
inquiry may look a lot different.

15. I agree with the majority’s analysis, supra ¶ 47, that there is
not a reasonable probability that the outcome of a severed trial
on the Police Station Charges would have been different,
because the evidence of Gallegos’s guilt on the Police Station
Charges was overwhelming.

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 State v. Gallegos

¶71 Accordingly, I cannot join in the result that the majority
reaches here. I would grant the rule 23B motion and, after
reviewing the outcome of the proceedings on remand, at that
point revisit the question of prejudice—that is, whether there is a
“significant possibility” of a different outcome, and whether my
confidence in the outcome of the trial is undermined.

20150688-CA 36 2018 UT App 192