State v. Navarro

2019 UT App 2

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ERNESTO NAVARRO,
Appellant.

Opinion
No. 20151019-CA
Filed January 4, 2019

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 141907986

Nathalie S. Skibine, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Two groups of rival gang members encountered each
other and began shooting. When the shooting stopped, a man in
one group was dead, killed instantly by a bullet that hit his neck
and severed his spine. Defendant Ernesto Navarro was in the
other group and was convicted of several charges including
murder. He now challenges those convictions on two grounds.

¶2 Defendant contends that he received constitutionally
ineffective assistance of counsel because (1) his trial counsel
failed to object on hearsay grounds to a detective’s testimony
concerning another witness’s trial testimony and (2) his trial
counsel failed to correct a jury instruction that misstated the law
regarding imperfect self-defense. Because Defendant did not
 State v. Navarro

suffer prejudice from the detective’s testimony or the erroneous
jury instruction, we conclude that Defendant did not receive
constitutionally ineffective assistance of counsel. We therefore
affirm.

BACKGROUND

¶3 Victim, a gang member, was driving a stolen Chevrolet
Avalanche. His nephew (Nephew) was riding in the front
passenger seat while Victim’s two nieces sat in the back. The
group encountered a sedan containing four members of a rival
gang. Traveling in the sedan were Defendant, Driver, Passenger,
and another individual who did not testify at trial.

¶4 The sedan stopped to investigate a man wearing blue—
the color of a rival gang. According to Driver, if the person
belonged to a rival gang, “[they] would have got out and fought
with him or done anything, because if he’s a rival gang member,
then usually [they] go and . . . do something to him.” However,
the sedan occupants determined that the man was not from a
rival gang and continued driving. They then noticed that the
Avalanche was following them and that it was driven by
someone—Victim—wearing red, the color of another rival gang.

¶5 People in both vehicles, including Defendant, began using
hand gestures to signal their gang affiliation, commonly referred
to as “throwing up gang signs.” However, Driver refused to stop
the sedan because he sensed “something was going to happen”
and the sedan belonged to his mother. Eventually, Driver drove
down an alley to elude the pursuing Avalanche.

¶6 After losing the Avalanche, Driver parked the sedan at
Defendant’s apartment. They went inside “to get something to
drink” and turned on a video game console. When they decided
to leave the apartment, Defendant took his gun with him
because he “was concerned.” Defendant’s group continued on
foot. According to Defendant, they left to go to the store to buy

20151019-CA 2 2019 UT App 2
 State v. Navarro

some food and did not expect to meet the Avalanche occupants
again. But according to Driver, Defendant said, “Let’s go get
these fools,” and, according to Passenger, Defendant said, “We
got to do something about him if we see him again.”

¶7 Meanwhile, after losing sight of the sedan, Victim drove
off to pick up three of his brothers-in-law, two of whom were
members of his gang and at least one of whom had a gun on his
person. With these reinforcements, Victim then began driving
around, looking for the sedan or Defendant’s group intending to
fight them.

¶8 Victim eventually spotted the empty sedan. He continued
driving the Avalanche around until he found Defendant’s group
walking down an alley. Victim stopped the Avalanche at a right
angle to the alley.

¶9 Shortly thereafter, a flurry of gunfire erupted, drawing
the attention of other nearby witnesses. One of the shots killed
Victim. Another wounded Nephew. Everyone in the Avalanche,
except Victim, scrambled to get out of the vehicle and then fled.
Defendant’s group also ran away.

¶10 At least thirteen shots were fired. Police later found seven
spent bullet casings from Defendant’s .40 caliber firearm and five
spent casings from Passenger’s 9mm firearm in the alley where
Defendant’s group had been standing. Outside the driver’s side
passenger door of the Avalanche, police found one spent casing
and matched it to a 9mm gun found next to the driver’s seat
inside the Avalanche.

¶11 Defendant’s group returned to his apartment, where he
took a shower to remove any gunshot residue. He then left the
apartment, taking both his and Passenger’s guns, and attempted
to stash them where they would not be found by police.
According to Defendant, Passenger instructed him “to not talk to
the police,” and threatened that if Defendant did talk to police,
“that would mean danger [to Defendant’s] life or [his] family.”

20151019-CA 3 2019 UT App 2
 State v. Navarro

¶12 Police officers eventually located and arrested Defendant.
When he was arrested, Defendant gave a false name. At trial,
Defendant admitted that he had lied to the arresting officers. For
example, he acknowledged that although he had owned his gun
for about six months, he told the arresting officers that he had
only received his gun on the day he was arrested. Defendant
further acknowledged that he lied to police by telling them he
had never been to the apartment even though he had lived there
for two months, and by telling them that he had been working at
a hospital on the day of the shooting.

¶13 Defendant was charged with murder, obstruction of
justice, and felony discharge of a firearm. Following a jury trial,
he was convicted on all counts.

ISSUE AND STANDARD OF REVIEW

¶14 Defendant contends that he was deprived of his
constitutional right to effective assistance of counsel. See generally
Strickland v. Washington, 466 U.S. 668, 686 (1984) (“The
benchmark for judging any claim of ineffectiveness must be
whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.”). “When a claim of
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.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).

ANALYSIS

¶15 Defendant contends that he was deprived of the effective
assistance of counsel in two ways. First, he asserts that his trial
counsel was ineffective for failing to object to certain testimony

20151019-CA 4 2019 UT App 2
 State v. Navarro

he characterizes as hearsay. Second, he asserts his counsel was
ineffective for failing to object to an erroneous jury instruction.

¶16 To demonstrate ineffective assistance of counsel, a
defendant must show that counsel’s performance was deficient
and that the deficient performance prejudiced the defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both
deficient performance and resulting prejudice are requisite
elements for a claim of ineffective assistance of counsel, failure to
prove either element necessarily defeats the claim. Id. at 697;
State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769.

I. Hearsay

¶17 Defendant first contends that his trial counsel “should
have objected to hearsay statements” elicited from a detective
“concerning prior consistent statements by the State’s key
witnesses”—Nephew and one of Victim’s nieces. Specifically, he
argues that the State was allowed “to ask a string of questions
bolstering the credibility of [Nephew] and another witness from
his group on the most contested issue at trial: who shot first.”

¶18 A statement is hearsay when the declarant makes the
statement outside of court and the statement is offered into
evidence at trial to prove the truth of the matter asserted. See
Utah R. Evid. 801(c). However, as relevant here, when the
declarant is subject to in-court cross-examination, such a
statement will be considered non-hearsay when the statement
“is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive
in so testifying.” Id. R. 801(d)(1)(B).

¶19 At trial, Nephew testified that Defendant’s group had
fired first and that no shots had been fired by Victim’s group.
Nephew admitted that after picking up reinforcements, the
Avalanche occupants went “looking for them guys, the guys that
were in front of [Victim’s group] in the green sedan.” When

20151019-CA 5 2019 UT App 2
 State v. Navarro

asked why, he testified, “I believe we were going to go fight
them.” And despite believing that at least one of his companions
had a gun, Nephew claimed that they planned to fight “[w]ith
our fists.” According to Nephew, they encountered Defendant’s
group shortly after finding the empty sedan. Nephew stated that
Defendant’s group had at least two guns visible and that no one
in the Avalanche had a gun out. Victim stopped the Avalanche,
and without words being exchanged, “firing happened.” When
pressed on who shot first, Nephew answered that “[t]he first
shot came from the right side . . . of the vehicle” “from the alley.”
Nephew further testified that no shots were fired from the
Avalanche.

¶20 During Nephew’s cross-examination, Defendant’s counsel
asserted that this account departed from the version Nephew
initially told to the police. Counsel asked Nephew whether he
had told “the police that originally [Victim] was taking [two
occupants of the Avalanche] home, and then you guys were
going to take [Victim’s nieces] to dinner before the run in with
[Defendant’s Group] took place.” Counsel also asked Nephew
whether he remembered telling police that one of the Avalanche
occupants “actually had a gun and that [he] heard it go off.”
Nephew denied that he had so informed the police.

¶21 Defendant’s counsel then questioned Nephew about his
statement to the police that he had recognized some of the
people who had been firing at him, and Nephew admitted that
this statement had been false:

Q. You were interviewed at least three times,
correct?

A. Yes.

Q. And it was the second day that you gave them
the false information about three suspects that
were totally innocent?

20151019-CA 6 2019 UT App 2
 State v. Navarro

A. Yes.

Q. And your explanation of why you gave them
three suspects was because you felt pressured by
the police?

A. Yes.

Q. And instead of saying ‘I don’t know who they
were,’ you gave [inaudible] people?

A. I did tell them I didn’t know who they were.

Q. And you also told them that one of the
individuals goes by a street name of Radio, correct?

A. Yes, sir.

¶22 Defendant’s counsel later called the detective to the stand
to testify regarding Nephew’s police report. The detective
testified that after Nephew implicated Radio, the detective
discovered Radio had been two and a half hours away from the
shooting when it happened. According to the detective, when he
confronted Nephew about Radio’s alibi, Nephew admitted that
Radio had not been involved, that Nephew had simply named a
person with whom he had past dealings, and that Nephew had
made up the name of one of the other people he had identified
as a suspect. The State then questioned the detective:

Q. [Nephew] was consistent that [Victim] was the
driver?

A. Yes.

Q. He was consistent that he was the passenger?

A. Yes.

20151019-CA 7 2019 UT App 2
 State v. Navarro

Q. He was consistent that there was another group
throwing gang signs . . . that they encountered?

A. Correct.

Q. And he was consistent that there [were] men in
the alley?

A. Yes.

Q. That those men in the alley had shot at his truck
he was in first?

A. That’s correct.

Q. He was consistent that he was hit in the arm and
close to his hip?

A. Yes.

Q. Those are the type of facts that most related to
your investigation, the shooting?

A. Yes. Those facts were everything related to the
shooting, yes.

...

Q. Did [Victim’s niece] ever deviate that the men
from the alley shot first at the truck?

A. No.

¶23 Defendant contends that his counsel should have objected
to this line of questioning. “The purpose of rule 801(d)(1)(B) is to
admit statements that rebut a charge of recent fabrication or
improper influence or motive, not to bolster the believability of a
statement already uttered at trial.” State v. Bujan, 2008 UT 47,

20151019-CA 8 2019 UT App 2
 State v. Navarro

¶ 11, 190 P.3d 1255. Thus, even where testimony is properly
admitted for rehabilitative purposes, it should be limited to
“testimony that directly rebuts charges of recent fabrication,”
and not necessarily admitted in its entirety. Id. ¶ 10. Our
supreme court has also suggested that a limiting instruction may
be necessary to inform the jury that the testimony should be
considered only for rehabilitative purposes. See id. ¶ 9.
Defendant asserts that the string of questions calling out all of
Nephew’s prior consistent statements went beyond the scope of
admissibility under rule 801(d)(1)(B) and inappropriately
bolstered Nephew’s testimony rather than merely rebutting a
charge of prior inconsistent statements, particularly in the
absence of a limiting instruction.

¶24 But even assuming Defendant’s counsel performed
deficiently by failing to object to this line of questioning
or failing to request a limiting instruction, we ultimately
conclude that Defendant cannot demonstrate prejudice resulting
from this testimony. Defendant asserts that in the absence of
the detective’s testimony, “the State would [have been] hard
pressed to meet its burden to prove beyond a reasonable
doubt that [Defendant] did not act in self-defense.” But we
are not convinced that the introduction of Nephew’s prior
consistent statements had any significant impact on the ultimate
verdict.

¶25 The Utah Supreme Court has recently explained that an
appellate 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.’” State v.
Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (quoting Strickland v.
Washington, 466 U.S. 668, 695–96 (1984)). Accordingly, an
appellate court must “examine the record as a whole” to
determine whether the court’s confidence in the jury’s verdict is
undermined. Id. ¶ 45.

20151019-CA 9 2019 UT App 2
 State v. Navarro

¶26 While the detective’s testimony may have reinforced
Nephew’s testimony to some degree, other credibility issues
with his testimony remained—notably his admitted lies to police
in the course of the investigation and his motivation to fabricate
testimony both at the time he spoke to police and at the time of
trial. Further, there was much more to the question of
self-defense in this case than who shot first. A defendant cannot
claim self-defense when he was “attempting to commit” or
“committing . . . a felony” or “was the aggressor or was engaged
in a combat by agreement.” Utah Code Ann. § 76-2-402(2)(a)
(LexisNexis 2012).

¶27 The totality of the evidence includes the testimony of
Defendant and his companions, Driver, and Passenger.
Defendant testified that his group left the apartment to buy some
food, not to seek out the Avalanche or Victim’s group. He also
explained his decision to retrieve his gun and take it with him;
he testified that he took it because he “was concerned.” But
Driver testified that Defendant stated, “Let’s go get these fools,”
and Passenger testified that Defendant said, “We got to do
something about him if we see him again.” See supra ¶ 6. Thus,
two of Defendant’s own companions testified that the group left
the apartment seeking a confrontation. His companions also
testified “they always do something to” members of rival gangs
when they see them; that Defendant had been “[t]hrowing up
gang signs;” that Defendant had his gun out even before the
Avalanche arrived in the alley; and that it was possible
Defendant had fired first. This testimony was consistent with
other testimony presented by the State, discussed above,
suggesting that Defendant’s group began the firefight.

¶28 Additionally, Defendant’s actions and initial statements to
police were evasive and designed to frustrate an investigation
into his role in Victim’s death. Defendant’s companions testified
that upon returning to the apartment, he attempted to hide the
gun, remove gun residue from his person, and he expressed
excitement that he could now get his gang tattoo as a result of

20151019-CA 10 2019 UT App 2
 State v. Navarro

the shooting. Upon his arrest several days after the shooting,
Defendant did not claim to have acted in self-defense. Instead,
he first gave police a false name, denied driving the sedan, and
denied having been anywhere in the area for years. Defendant
also claimed to have been staying at a hotel but could not
remember the hotel’s name. Later, Defendant admitted he had
been to the apartment, but only to feed some dogs; however, he
could not name the owner of the dogs. Defendant also claimed
that he had been working at a hospital on the day of the
shooting. And still later, Defendant admitted that he had been
staying at the apartment but denied having been present at the
shooting. Finally, Defendant admitted that he had witnessed the
shooting but denied firing his gun. It was not until trial that
Defendant admitted he had fired his gun at the Avalanche, but
only in self-defense. Defendant’s evolving and uncorroborated
account likely made it difficult for the jury to credit his trial
testimony.

¶29 All this evidence amply supports a conclusion that
Defendant actively sought a fight with Victim rather than acting
in self-defense. Thus, we are not convinced that “there is a
reasonable probability that . . . the result of the proceeding
would have been different” without the detective’s testimony.
See Strickland, 466 U.S. at 694. Defendant therefore cannot show
that he was deprived of the effective assistance of counsel with
regard to the detective’s testimony.

II. Jury Instruction

¶30 Defendant also contends that his trial counsel was
constitutionally ineffective for failing to object to an erroneous
jury instruction. Specifically, he argues that his counsel
“approv[ed] a jury instruction stating that [Defendant] could be
convicted of manslaughter only if the jury found beyond a
reasonable doubt that imperfect self-defense applied” instead of
stating that “[Defendant] could be convicted of manslaughter

20151019-CA 11 2019 UT App 2
 State v. Navarro

only if the State failed to disprove imperfect self-defense beyond
a reasonable doubt.”

¶31 Utah law provides that a murder charge may be reduced
to a manslaughter charge when the defendant erroneously
believed that the killing was legally justified, such as in
self-defense:

It is an affirmative defense to a charge of
murder . . . that the defendant caused the death of
another . . . under a reasonable belief that the
circumstances provided a legal justification or
excuse for the conduct although the conduct was
not legally justifiable or excusable under the
existing circumstances.

Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2012). “Once a
defendant has produced some evidence of imperfect
self-defense, the prosecution is required to disprove imperfect
self-defense beyond a reasonable doubt.” State v. Lee, 2014 UT
App 4, ¶ 27, 318 P.3d 1164 (quotation simplified). “Because the
burden of proof for an affirmative defense is counterintuitive,
instructions on affirmative defenses must clearly communicate
to the jury what the burden of proof is and who carries the
burden.” Id. (quotation simplified).

¶32 Here, the jury received three instructions regarding the
burden of proof. Instruction 55 explained that “[t]he defendant is
not required to prove that the defense [of imperfect self-defense]
applies. Rather, the State must prove beyond a reasonable doubt
that the defense does not apply.” And Instruction 71 explained,
“The laws of Utah do not require the defendant to prove
self-defense. Once self-defense or imperfect self-defense is raised
by the defendant, it is the prosecution’s burden to prove beyond
a reasonable doubt that the defendant did not act in
self-defense.” These instructions correctly stated the relevant
law.

20151019-CA 12 2019 UT App 2
 State v. Navarro

¶33 However, Instruction 53, to which Defendant’s counsel
acquiesced, erroneously placed the burden on Defendant to
prove that imperfect self-defense applied beyond a reasonable
doubt:

You cannot convict the Defendant, Ernesto
Navarro, of the offense of Manslaughter unless you
find from all the evidence, and beyond a reasonable
doubt, each and every one of the following
elements: 1. That the defendant, Ernesto
Navarro, . . . 2. committed the offense of Murder under
circumstances amounting to imperfect self-defense . . . .

(Emphases added). The State concedes that Instruction 53 was
erroneous but argues that Defendant was not prejudiced by the
error because he was not entitled to claim imperfect self-defense.

¶34 In the State’s view, Defendant was not entitled to claim
imperfect self-defense because he could not have acted “‘under a
reasonable, but legally mistaken, belief that his use of deadly
force was justified.’” (Quoting Lee, 2014 UT App 4, ¶ 29.) As
discussed above, a defendant cannot claim self-defense when the
defendant is engaged in committing a felony, is the aggressor, or
is engaged in combat by agreement. See Utah Code Ann.
§ 76-2-402(2)(a).

¶35 Defendant was the only witness to testify that his group
had not sought to confront Victim’s group after leaving the
apartment, and his uncorroborated account contradicted the
testimony of other witnesses credited by the jury. The jury
apparently found that Defendant’s group had left the apartment
in the hopes of confronting Victim’s group. Given the
overwhelming evidence that Defendant was the aggressor, there
is no reasonable probability that the jury would have convicted
Defendant of the lesser offense of manslaughter if Instruction 53
had properly explained the burden of proof. Because the
evidence failed to establish a claim of imperfect self-defense,

20151019-CA 13 2019 UT App 2
 State v. Navarro

Defendant did not suffer prejudice when one of the three
instructions misstated the burden of proof.1

¶36 Because Defendant has not shown how the erroneous
instruction prejudiced his case, he has failed to demonstrate that
his counsel’s assistance fell below the constitutionally required
level. See Strickland v. Washington, 466 U.S. 668, 687 (1984)
(holding that a defendant must prove both counsel’s deficient
performance and resulting prejudice to succeed on a claim of
ineffective assistance of counsel); see also State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769 (“Because both deficient performance
and resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.”).

III. Cumulative Error

¶37 In Defendant’s reply brief, he asserts that “the two errors
worked together—both the inadmissible hearsay and the faulty

1. Our conclusion on this point is reinforced by the fact that the
jury did not ask the court to reconcile or explain the conflicting
instructions regarding the burden of proof for a claim of
imperfect self-defense, suggesting that the jury did not believe
that imperfect self-defense applied, regardless of who bore the
burden of proof. It is also worth noting that both the State and
the defense attempted to steer the jury away from manslaughter.
The State implored the jury, “We are not [asking you to consider
manslaughter]. We are asking you to convict the defendant of
murder because that’s what he did.” The defense likewise
eschewed a manslaughter request, stating, “We’re not asking
you to find him guilty of manslaughter. We’re asking you to find
. . . . [t]hat he was justified in defending himself. . . . Please find
him not guilty.” Thus, the jury may have paid very little
attention to the manslaughter instruction that contained the
erroneous language.

20151019-CA 14 2019 UT App 2
 State v. Navarro

instruction prevented the jury from considering imperfect
self-defense.” However, “issues raised by an appellant in the
reply brief that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (quotation
simplified). Thus, Defendant has waived his cumulative-error
claim.

CONCLUSION

¶38 Defendant’s trial counsel’s failure to object on hearsay
grounds to testimony regarding Nephew’s initial statement to a
detective and counsel’s failure to object to the erroneous jury
instruction did not lead to any discernable prejudice. We
therefore conclude that Defendant has not demonstrated that his
counsel’s assistance was constitutionally ineffective.

¶39 Affirmed.

20151019-CA 15 2019 UT App 2