2020 UT App 142
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
OSCAR BERMEJO,
Appellant.
Opinion
No. 20180985-CA
Filed October 22, 2020
Third District Court, Salt Lake Department
The Honorable Richard D. McKelvie
No. 171900190
Wendy Brown, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik,
Attorneys for Appellee
JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
APPLEBY, Judge:
¶1 Based on his involvement in a gang-related drive-by
shooting, Oscar Bermejo was convicted of, among other offenses,
aggravated assault and felony discharge of a firearm. He now
challenges his convictions, contending that his counsel was
constitutionally ineffective for a variety of reasons. He also
contends that the district court erred by allowing the jury to
have access to certain evidence during deliberations and by
denying his mistrial motion based on the prosecutor’s improper
comments. We affirm.
State v. Bermejo
BACKGROUND 1
¶2 On the afternoon of December 28, 2016, neighbors
observed a black BMW 2 slowly drive more than once past the
house of a family (Family) of known Sureños gang members. 3 As
it passed, one of the neighbors noted the BMW’s license plate
number.
¶3 Between the BMW’s passes, a sport utility vehicle (SUV)
stopped in front of the Family’s house. The SUV’s driver exited
the car with one child, while three other children, including the
nine-year-old victim (Victim), remained in the SUV. Shortly
after, the BMW passed again and stopped. Someone exited the
passenger side of the BMW and fired gunshots toward the SUV.
The passenger re-entered the BMW, and it drove away.
¶4 One of the shots struck Victim in the head. He was
airlifted to a hospital for surgery and survived.
¶5 Shortly after the shooting, police arrived on the scene, and
the Family’s neighbor gave police the BMW’s license plate
number, which matched that of a black BMW registered to
Bermejo. Approximately one hour after the shooting, a Salt Lake
City resident reported to police that a black BMW had been
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.”
State v. Barner, 2020 UT App 68, n.1, 464 P.3d 190 (quotation
simplified).
2. A BMW is a vehicle manufactured by Bayerische Motoren
Werke.
3. During trial, an expert testified that the Sureños are a Southern
California-based gang whose rival gangs include the Norteños.
He also testified that the Sureños and Norteños are two of the
“largest umbrella gangs” in the Salt Lake area.
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State v. Bermejo
abandoned near his house. At trial, one of the investigating
detectives testified that cell phone data indicated that
approximately twenty-five minutes after the shooting, Bermejo’s
phone had been in the area where the car was found.
¶6 Police located Bermejo the morning after the shooting and
arrested him. In the police interview, Bermejo denied having
been in Salt Lake City at all on the day of the shooting and stated
that his car went missing from Ogden where he left it at his
friend’s house, which the friend alerted him to between 1:00 p.m.
and 2:00 p.m. the day of the shooting.
¶7 The State charged Bermejo with felony discharge of a
firearm with serious bodily injury, a first-degree felony; felony
discharge of a firearm, a third-degree felony; obstructing justice,
a second-degree felony; aggravated assault, a second-degree
felony; and aggravated assault, a third-degree felony.
¶8 The case proceeded to a jury trial, but the State filed a
motion in limine 4 seeking permission to offer evidence under
rule 404(b) of the Utah Rules of Evidence of other bad acts
Bermejo had committed. The State intended to offer evidence of
Bermejo’s “gang membership and the gang connections of
persons in the victim’s social network, as well as gang practices
culturally relevant to the current case,” including evidence of
two gang-related jail incidents involving Bermejo. The State
asserted the evidence would be offered for the proper non-
character purposes of proving Bermejo’s intent, motive,
knowledge, lack of mistake, and modus operandi; the evidence
was relevant; and the evidence was not unfairly prejudicial. The
State also filed notice that it would present an expert (Expert) to
4. “A motion in limine is a procedure for obtaining a ruling on
the admissibility of evidence prior to or during trial, but before
the evidence has been offered.” 22A C.J.S. Criminal Procedure
& Rights of Accused § 349 (2016).
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State v. Bermejo
testify about “gang culture, gang related activities and local gang
rivalries.”
¶9 Bermejo acknowledged that, in general, the gang evidence
was relevant to the State’s theory of the case and was offered for
a proper non-character purpose. But before trial, he expressed
concerns about having an expert witness testify regarding
specific gang-related incidents, arguing that such testimony
would be inadmissible hearsay. The district court also voiced its
concerns about Expert testifying to specific incidents but
reserved ruling on the issue until trial.
¶10 At trial, the State advanced the theory that Bermejo was a
party to the shooting, and the jury was instructed accordingly.
For proof, the State relied on, among other things, cell phone
data, the undisputed presence of Bermejo’s car at the site of the
shooting, Bermejo’s membership in and identity with the
Norteños gang, and the history between the local Norteños and
the Family—a history that involved repeated shootings and
deaths among members of the local Norteños and Sureños
between October 2016 and September 2017. In contrast, the
defense advanced the theory that Bermejo was not involved in
the shooting itself, even if his car was. Bermejo did not dispute
that he was a member of the Norteños gang or the fact that his
car was used in the shooting, but he asserted that two senior
gang members took his car for the shooting and afterward left
him to deal with the repercussions of appearing to be guilty
because his car was involved. The defense also characterized as
socially motivated Bermejo’s choice to join and his involvement
in the gang, and asserted that, unlike most gang members,
Bermejo had no desire to engage in unlawful conduct.
¶11 During the third day of trial, the State called several
witnesses to testify about Bermejo’s affiliation with the Norteños
gang and about two specific incidents that occurred at the jail
after Bermejo had been taken into custody. Expert was also
called to testify, and he testified about the history between the
local Norteños and the Family and about gang culture in
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State v. Bermejo
general. Bermejo did not object to the testimony on these
subjects.
¶12 After the State rested its case, Bermejo testified as the only
defense witness. He said that after taking his girlfriend
(Girlfriend) to work on the morning of the shooting, he was “just
chilling” at a friend’s house in Taylorsville when two senior
Norteños members “just kind of showed up” and “start[ed]
asking” to “see the keys” to his car. Because they “kept on
insisting and insisting to the point where it kind of got
threatening,” Bermejo acquiesced. The two gang members took
his car and returned it about an hour later, telling Bermejo, “If I
were you, I wouldn’t drive your car for a while” because they
“just hit a scrap.” 5 Bermejo understood this to mean that they
had “just shot a Sureños.” At that point, Bermejo and his friend
drove the car to a house the friend knew of in Salt Lake City and
parked it at the “back of the street” so that “it wouldn’t be
noticeable,” and then Girlfriend picked up Bermejo. Police
arrested him the next day.
¶13 Bermejo admitted that at the time of the shooting, he was
a member of the Norteños gang and he had joined at the age of
thirteen “just to be accepted and just fit in” with his friends. He
denied having a desire to “move up and be part of the
management of the gang.” He also denied knowing the Family
or being involved in the shooting. And he admitted to not being
completely truthful with the police in his initial encounter with
them the day after the shooting, but explained that, at the time,
he believed dishonesty was “safer” than being truthful about the
gang members.
¶14 In rebuttal, the State recalled a detective (Detective)
involved in the investigation and, among other things,
questioned Detective about his determination during the
investigation that Girlfriend might have been “an important
5. Expert testified that “scrap” “is a putdown for Sureños.”
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State v. Bermejo
witness.” Detective testified that despite being subpoenaed,
Girlfriend did not appear in court the previous day and he spent
the morning “on a manhunt in a sense” trying to find her, but
she was “gone.” The State stipulated there was no evidence that
Bermejo directly contacted Girlfriend to tell her not to come to
court. But during cross-examination, Detective suggested that
even though there was no evidence in the recorded jail phone
calls that Bermejo directly told Girlfriend not to come to court,
“that doesn’t mean he doesn’t have an advocate working for
him.” In response, trial counsel asked, “That’s pure speculation,
though, isn’t it?” On redirect, the State asked Detective whether
it was “actually just speculation,” and trial counsel objected to
the question as being “beyond rebuttal.” The court sustained the
objection. Nevertheless, the prosecutor pressed, stating that trial
counsel “opened the door” and although trial counsel said it was
“just speculation[,] . . . he knew well that it’s not just
speculation.”
¶15 Later, outside the presence of the jury, the
prosecutor acknowledged his accusation about what trial
counsel knew was “inaccurate” and said he believed he
“need[ed] to correct that for the jury.” He suggested either
giving the jury an instruction or simply allowing him to tell the
jury that his statement gave a mistaken impression about what
trial counsel knew. Trial counsel declined the offer for a curative
instruction and instead moved for a mistrial, expressing concern
that correcting the statement would “draw[] attention to the
concept that there is some evidence there” when “there hasn’t
been any evidence presented,” and stating that either way “it’s a
situation that can harm the defense.” The court denied the
motion, reasoning that “there is an opportunity to correct the
record” and to give a curative instruction and, in its view, the
statement was “inadvertent” and “pretty fleeting” and was not
“an incident that would have called the jury’s attention.” The
court also noted trial counsel indicated he “maybe” intended to
address the issue in closing argument in lieu of a curative
instruction.
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State v. Bermejo
¶16 Finally, after closing arguments, the court addressed
whether during deliberations the jury would have access to a
video of Bermejo’s police interview. Trial counsel argued
that under State v. Cruz, 2016 UT App 234, 387 P.3d 618, the
jury should not have access to the video because it “put
undue influence on what he told the police over the testimony
of what he said in court.” The court allowed the jury to
have access to the video during deliberations. It reasoned
that unlike the video at issue in Cruz that was “actually
introduced as testimony of [the witness],” see id. ¶ 38, the video
of Bermejo’s police interview was “introduced as both [an]
admission and as [a prior] inconsistent statement” and did not
have “the same indicia of being produced for the purpose of
testimony.”
¶17 The jury convicted Bermejo on all counts. He timely
appeals.
ISSUES AND STANDARDS OF REVIEW
¶18 Bermejo raises three main challenges to his convictions.
First, he argues his trial counsel was constitutionally ineffective
for failing to make certain objections to the evidence and to the
accomplice liability instructions. “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.” State v. Hatch, 2019 UT App 203, ¶ 24, 455 P.3d
1103 (quotation simplified).
¶19 Second, Bermejo argues the district court erred under
rule 17 of the Utah Rules of Criminal Procedure by allowing
the jury to have access during deliberations to the recording
of his police interview. “The interpretation of a rule of
procedure is a question of law that we review for correctness.”
State v. Cruz, 2016 UT App 234, ¶ 34, 387 P.3d 618 (quotation
simplified).
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State v. Bermejo
¶20 Third, Bermejo argues the district court erred by denying
his mistrial motion. Alternatively, he argues trial counsel
provided ineffective assistance of counsel by failing to object to
certain of the prosecution’s statements during closing
arguments. We review the denial of a mistrial motion for abuse
of discretion. See State v. Butterfield, 2001 UT 59, ¶ 46, 27 P.3d
1133. And, as discussed above, we decide an ineffective
assistance of counsel claim raised for the first time on appeal as a
matter of law. Hatch, 2019 UT App 203, ¶ 24. 6
ANALYSIS
I. Ineffective Assistance of Counsel
¶21 Bermejo contends his trial counsel provided
constitutionally ineffective assistance in three ways. First, he
argues counsel was ineffective for “failing to object to unfairly
prejudicial and needlessly cumulative gang evidence” presented
during trial. Second, he argues counsel was ineffective for
“failing to object to improper expert testimony.” Third, he
argues counsel was ineffective for “failing to object to the
accomplice liability instructions.”
¶22 To prevail on his ineffective assistance of counsel claims,
Bermejo must show that counsel performed deficiently and that
counsel’s performance prejudiced him. See Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). To establish deficient
performance, he “must show that counsel’s representation fell
6. Bermejo also argues his convictions should be reversed under
the cumulative error doctrine. But because we perceive no
errors, we have no occasion to apply the cumulative error
doctrine. See State v. Eyre, 2019 UT App 162, ¶ 11 n.3, 452 P.3d
1197 (stating that, where “there are no errors to accumulate, . . .
the cumulative error doctrine does not apply” (quotation
simplified)), cert. granted, 462 P.3d 797 (Utah 2020).)
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State v. Bermejo
below an objective standard of reasonableness.” Id. at 688; see
also State v. Ray, 2020 UT 12, ¶ 33, 469 P.3d 871. In this respect,
trial counsel “is strongly presumed to have rendered adequate
assistance and made all significant decisions in the exercise of
reasonable professional judgment.” Strickland, 466 U.S. at 690.
Further, counsel does “not have a Sixth Amendment obligation
to correct every error that might have occurred at trial,
regardless of whether it affected the defendant.” Ray, 2020 UT
12, ¶ 32. Rather, “[w]e must view a decision to not object in
context and determine whether correcting the error was
sufficiently important under the circumstances that failure to do
so was objectively unreasonable—i.e., a battle that competent
counsel would have fought.” Id.; see also Strickland, 466 U.S. at
690.
¶23 To show that “the deficient performance prejudiced the
defense,” Bermejo must demonstrate “there is a reasonable
probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland,
466 U.S. at 687, 694. A “reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id. at 694. In
this respect, “[i]t is not enough for the defendant to show that
the errors had some conceivable effect on the outcome of the
proceeding.” Id. at 693. “The demonstration of prejudice must be
a demonstrable reality, . . . not simply a speculative matter.” Ross
v. State, 2019 UT 48, ¶ 111, 448 P.3d 1203 (quotation simplified).
As a result, the prejudice element “is a relatively high hurdle to
overcome.” State v. Garcia, 2017 UT 53, ¶ 44, 424 P.3d 171. And a
reviewing court evaluating prejudice 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.” Id. ¶ 28 (quotation simplified).
¶24 We also note that because Bermejo must establish both
deficient performance and prejudice for each of his ineffective
assistance claims, “it is not necessary for us to address both
components of the inquiry if we determine that a defendant has
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State v. Bermejo
made an insufficient showing on one.” Menzies v. State, 2014 UT
40, ¶ 78, 344 P.3d 581 (quotation simplified).
¶25 Applying these principles, we now address each of
Bermejo’s ineffective assistance of counsel claims.
A. Gang and Jail Evidence
¶26 Bermejo contends trial counsel was “ineffective by failing
to object to unfairly prejudicial and needlessly cumulative gang
evidence” under rule 403 of the Utah Rules of Evidence.
Relatedly, he contends counsel was ineffective for failing to
object to evidence of the two jail incidents in which he was
involved because it was unfairly prejudicial under rule 403.
¶27 “Generally, relevant evidence is admissible.” State v.
Gonzalez, 2015 UT 10, ¶ 36, 345 P.3d 1168; see also Utah R. Evid.
402. But through rule 403, the Utah Rules of Evidence provide
“an exception to the general rule of admissibility by permitting
courts to exclude relevant evidence if its probative value is
substantially outweighed by a danger of unfair prejudice or
needlessly presenting cumulative evidence.” Gonzalez, 2015 UT
10, ¶ 36 (quotation simplified); see also Utah R. Evid. 403.
Evidence is unfairly prejudicial if it has “an undue tendency to
suggest decision on an improper basis.” State v. Maurer, 770 P.2d
981, 984 (Utah 1989) (quotation simplified); see also State v.
Downs, 2008 UT App 247, ¶ 11, 190 P.3d 17 (stating that an
“improper basis” for a decision is “commonly but not
necessarily an emotional one, such as bias, sympathy, hatred,
contempt, retribution or horror” (quotation simplified)).
1. Gang Evidence
¶28 Bermejo concedes “the State’s theory of the case arguably
required introduction of some gang evidence to establish an
alleged retaliatory motive.” Yet he argues counsel performed
deficiently by failing to limit “the quantity” of that evidence and
“ensure the gang evidence admitted was closely tied to offenses
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State v. Bermejo
charged or theories presented.” He argues the amount of gang
evidence introduced was harmful because it “encouraged the
jury to convict [him] based on a mountain of evidence
demonstrating he was a gang member.”
¶29 “Evidence that the crime charged is related to the
activities of a gang or a person’s gang membership has long been
admitted in Utah.” State v. High, 2012 UT App 180, ¶ 23, 282 P.3d
1046. “This court has previously acknowledged that there may
be some unfair prejudice inherent in making the jury aware of
gang affiliation in a criminal context,” State v. Garcia, 2017 UT
App 200, ¶ 33, 407 P.3d 1061 (quotation simplified), recognizing
that “guilt by association is a genuine concern whenever gang
evidence is admitted” and that “gang references may lead the
jury to attach a propensity for committing crimes to defendants
who are affiliated with gangs or allow its negative feelings
toward gangs to influence its verdict,” High, 2012 UT App 180,
¶ 26 (quotation simplified).
¶30 “Nevertheless, gang evidence is often admissible: in the
appropriate context, gang evidence has probative value
warranting its admission even over claims of prejudice.” Garcia,
2017 UT App 200, ¶ 33 (quotation simplified). “But even where
gang-related evidence is prejudicial, it is not necessarily unfairly
prejudicial and therefore should be admitted where it has high
probative value.” Gonzalez, 2015 UT 10, ¶ 37. Thus, even if some
of the gang-related evidence introduced at trial could be deemed
cumulative or prejudicial, Bermejo bears the burden of
demonstrating that had trial counsel objected to the evidence on
those grounds, there is a reasonable likelihood both that the
court would have sustained the objection and that the outcome
of the proceedings would have been different. See Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984); Garcia, 2017 UT App
200, ¶¶ 39, 42.
¶31 Conceding some of the evidence “likely should have been
admitted” given the State’s and the defense’s theories of the case,
Bermejo argues “gang evidence that did not speak to” his
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“membership and role in the Norteños, the targeted home’s
connection to Sureños, and that Norteños and Sureños were
rivals” “should have been excluded.” And he argues the “bulk of
the gang evidence should have been excluded as needlessly
cumulative,” particularly where, in his view, “many witnesses
who testified spoke to essentially the same singular fact” that he
is a Norteños gang member.
¶32 We conclude Bermejo has not established that the
admission of the full extent of the gang evidence was prejudicial.
See Strickland, 466 U.S. at 687, 694. Even if he could establish that
an objection to some of it would have been sustained, that
showing is not enough to establish prejudice under a claim for
ineffective assistance of counsel. Rather, he must “in addition
show a reasonable probability that the verdict would have been
different absent the excludable evidence in order to demonstrate
actual prejudice.” State v. Edgar, 2017 UT App 54, ¶ 13, 397 P.3d
656 (quotation simplified).
¶33 Bermejo attempts to make this showing by suggesting the
State “relied on gang evidence to paint [Bermejo] as a bad
person,” “to cast [Bermejo] as guilty by association,” and to
distract the jury from the “lack of other evidence” proving
Bermejo was a party to the shooting. But although gang-related
evidence was presented in the case and the prosecutor
emphasized Bermejo’s identity as a member of the Norteños
gang, any damage resulting from the potentially inadmissible
gang evidence “was likely already done by the admission of the
fact that [Bermejo] was a gang member, which he concedes was
proper,” and by the gang evidence about topics which he
concedes was acceptable. See State v. Percival, 2020 UT App 75,
¶ 43, 464 P.3d 1184; see also High, 2012 UT App 180, ¶¶ 51–52
(explaining that even if some of the objectionable gang evidence
had been excluded, “the jury would still have heard [other]
unchallenged and properly admitted gang evidence,” which
would have “lessen[ed] the impact of any improperly admitted
evidence” and “was unlikely to increase by any significant
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degree the negative impact of the properly admitted gang
evidence”).
¶34 Bermejo conceded the jury properly heard that he is a
junior Norteños gang member, that the Norteños and Sureños
are rivals, and that the Family had ties to the Sureños.
Additionally, the jury heard evidence tying Bermejo to the
shooting, at least circumstantially, which drew the narrative he
offered at trial into question. It heard the fact that his car was
undisputedly at the scene of the shooting; that he abandoned it
shortly after the shooting; that there were inconsistencies
between the timeline he offered and other forensic evidence
presented; and that in his initial interview with the police he lied
about where he was on the day of the shooting. Bermejo has not
explained how, given this evidence, the admission of potentially
inadmissible gang evidence over and above what was properly
before the jury specifically harmed his case. Rather, given the
evidence properly before the jury and the fact that much of the
gang-related evidence advanced both the State’s and the
defense’s theories, we are not confident there is a reasonable
probability that the jury’s verdict would have been different had
some of the gang-related evidence been excluded. See Edgar, 2017
UT App 54, ¶ 13.
¶35 For these reasons, we conclude that on balance, Bermejo
has not established that his trial counsel was ineffective for
failing to object to the admission of certain gang-related evidence
during trial.
2. Jail Evidence
¶36 Bermejo next contends his trial counsel was ineffective for
failing to object to evidence “of two specific instances of bad
acts” involving “two jail altercations that occurred after the
shooting.” He argues his counsel “should have objected” to this
evidence “under rule 403.” More specifically, he argues the
testimony about the incidents “lacked probative value” and was
unfairly prejudicial because it “focused the jury’s attention on
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[his] custody status.” And he asserts that without this evidence,
there is a reasonable probability the trial outcome would have
been different, because it was the only evidence suggesting “that
[he] was a violent criminal.”
¶37 During trial, three officers testified about two jail
incidents in which Bermejo was involved. Each occurred while
he was incarcerated after the shooting, and each involved gang
members who had been involved in the larger rivalry between
the local Norteños and Sureños. In the first incident, a Norteños
gang member, who was arrested after a drive-by shooting of the
Family in September 2017, fought another inmate who was a
Norteños dropout. One officer testified that before the fight
started, Bermejo told the gang member to “[g]et him” and the
gang member acknowledged Bermejo with a “head nod or
something,” at which point the fight between the two inmates
began. Another officer testified that once the inmates were
separated, the gang member “look[ed] toward[]” Bermejo’s cell,
where Bermejo was “standing at the window”; the gang member
“flash[ed] [Bermejo] a head nod”; and Bermejo responded, “Stay
up, man.” In the second incident, an officer observed Bermejo
being punched by three men, including a Sureños gang member
who was arrested for shooting a Norteños member in August
2017. The officer testified that as Bermejo was being escorted
from the area, Bermejo said, “Fuck scraps.”
¶38 We are not persuaded the jail incidents evidence
prejudiced Bermejo’s case. See Strickland, 466 U.S. at 687, 694. We
acknowledge that evidence of a defendant’s custody status can
carry a risk of prejudice. Indeed, our supreme court has
explained that “while there is little doubt that some prejudice
might result from the jury’s being informed . . . that a defendant
had formerly been in jail, the prejudice must be such that it is
unfair,” meaning the defendant “must make some showing that
the verdict was substantially influenced by the challenged
testimony.” See State v. Butterfield, 2001 UT 59, ¶ 47, 27 P.3d 1133
(quotation simplified); see also State v. Atkin, 2006 UT App 155,
¶ 20 n.6, 135 P.3d 894 (noting evidence of incarceration and
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probation status “may be prejudicial in certain cases”). But the
jury was informed that Bermejo was charged with, among other
things, being a party to two counts each of aggravated assault
and felony discharge of a firearm. In this respect, and given the
violent nature of the charges, it would not have been surprising
to the jury to learn Bermejo was incarcerated at the time of trial.
See Atkin, 2006 UT App 155, ¶ 20 n.6 (concluding that evidence
of the defendant’s probation and incarceration status was
harmless where evidence of the underlying charges that led to
the defendant’s probation revocation and incarceration was
properly before the jury).
¶39 Moreover, other evidence presented during trial, and not
challenged by Bermejo, generally alerted the jury to his custody
status. For example, the jury heard audio recordings of phone
calls Bermejo made from jail, and it was informed that Girlfriend
was supposed to have visited him in jail the night before the last
day of trial. During cross-examination of Expert, trial counsel
also brought up Bermejo’s custody status, confirming with
Expert that Bermejo was “arrested on December 29, 2016” and
had been “incarcerated pending trial ever since,” using his
custody status to distance Bermejo from the shootings involving
the Norteños and the Family. Thus, we are not persuaded the
admission of the jail incidents evidence was prejudicial—that is,
it seems unlikely that had the jail incidents been excluded, the
trial’s outcome would have been different. See Strickland, 466
U.S. at 687, 694.
¶40 Bermejo also suggests one officer’s reference to Bermejo
being housed in “maximum security” was particularly
prejudicial. The officer testified that at the time of the first
incident he was assigned to the “maximum unit of the jail” and
Bermejo was there. But the reference was fleeting, and the State
did not emphasize or mention it during the remainder of the
proceedings. See Butterfield, 2001 UT 59, ¶ 47 (rejecting argument
that a “fleeting” remark about obtaining the defendant’s photo
from a photo lineup from the jail “substantially influenced” the
verdict (quotation simplified)); see also Atkin, 2006 UT App 155,
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¶ 20 n.6 (noting evidence of incarceration and probation status
“may be prejudicial in certain cases” but not where the jury was
aware of the underlying charges related to the probation
revocation and incarceration). And we are not persuaded that
the impact of that single reference, particularly given the other
evidence before the jury about Bermejo’s custody status and the
nature of the charges against him, was sufficiently harmful to
create a reasonable probability that had counsel objected or
requested a curative instruction, the outcome of the trial would
have been different. See Strickland, 466 U.S. at 687, 694.
¶41 For these reasons, we are not persuaded the admission of
the jail incidents evidence prejudiced the defense. See Edgar, 2017
UT App 54, ¶ 13. Accordingly, Bermejo’s ineffective assistance of
counsel claim on this point fails.
B. Expert Testimony
¶42 Bermejo contends trial counsel was ineffective for failing
to object “to portions of [Expert’s] testimony that exceeded the
bounds of Utah’s expert-testimony rules.” We conclude Bermejo
has not established counsel was ineffective on this issue.
¶43 In an initial trial setting, 7 the district court expressed
concerns with the State’s intention to use Expert to testify with
respect to, among other things, the history between the local
Norteños and Sureños. In particular, the court stated its belief
that the relevant rules—specifically, rules 702 and 703 of the
Utah Rules of Evidence 8—did not anticipate using an expert to
7. This case initially was set for trial in June 2018. After the jury
had been selected, but before it was sworn in, trial was
continued at the State’s request. The trial actually took place in
September 2018 with a new jury.
8. Rule 702 provides that “a witness who is qualified as an expert
by knowledge, skill, experience, training, or education may
(continued…)
20180985-CA 16 2020 UT App 142
State v. Bermejo
testify regarding “a whole wealth of very violent, very serious
criminal activity . . . under circumstances where [a defendant]
has no opportunity to cross-examine the underlying witnesses.”
Rather, the court stated that allowing Expert to testify regarding
the specific incidents of criminal activity essentially permitted
the State to “bootstrap an entire portion of [its] evidence without
subjecting it to cross-examination” and use “an expert witness as
an opportunity to do an end run around the hearsay rule.”
¶44 In response, the State indicated that Expert “was a
detective involved in the investigation of the other drive-by
shooting at the [Family’s] house” and “was involved in the
arrest of several of those defendants.” The court determined that
Expert therefore could “testify as a fact witness with respect to
that, . . . assuming that his testimony is otherwise not in violation
of a Rule of Evidence.”
¶45 During trial, Expert testified about and described the
history between local Norteños and Sureños in the months
preceding and following the shooting, which included
describing particular incidents and the persons involved in
them. This placed the shooting in context and strongly suggested
it was part of the larger local conflict between the two gangs—
and between the Norteños and the Family in particular. Trial
counsel did not object to this testimony.
(…continued)
testify in the form of an opinion or otherwise if the expert’s
scientific, technical, or other specialized knowledge will help the
trier of fact to understand the evidence or to determine a fact in
issue.” Utah R. Evid. 702(a). Rule 703 instructs that an expert
“may base an opinion on facts or data in the case that the expert
has been made aware of or personally observed,” but that “if the
facts or data would otherwise be inadmissible, the proponent of
the opinion may disclose them to the jury only if their probative
value in helping the jury evaluate the opinion substantially
outweighs their prejudicial effect.” Id. R. 703.
20180985-CA 17 2020 UT App 142
State v. Bermejo
¶46 Bermejo contends Expert’s testimony about “the history
of conflict between local Norteños and Sureños” was improper
expert testimony because it constituted fact evidence presented
through inadmissible hearsay in violation of the evidence rules
applicable to expert testimony. And he argues counsel’s failure
to object was harmful because if counsel had objected, the
district court likely would have excluded the evidence, which
would have “remov[ed] from the State’s case its theory of motive
for the shooting.”
¶47 To show deficient performance, Bermejo must “rebut the
strong presumption that under the circumstances, the challenged
action might be considered sound trial strategy.” State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (quotation simplified).
“When viewing the variety of circumstances faced by defense
counsel, a conscious choice not to object to arguably
inadmissible testimony may, at times, fall within the range of
legitimate decisions regarding how best to represent a criminal
defendant.” State v. Gray, 2015 UT App 106, ¶ 44, 349 P.3d 806
(quotation simplified); see also State v. Squires, 2019 UT App 113,
¶ 43, 446 P.3d 581. In this respect, a defendant must do more
than argue that counsel failed to object to potentially
inadmissible testimony. Gray, 2015 UT App 106, ¶ 44.
¶48 Here, we conclude Bermejo has not established that his
counsel’s failure to object constituted deficient performance.
Even assuming Expert’s testimony was hearsay, counsel
reasonably could have determined that an objection likely would
not have prevented the local history evidence from being
presented to the jury. The State asked for a continuance on the
day trial was first set specifically to find additional witnesses “to
get in some of the information that was discussed” in that
hearing, which was granted. And in response to the court’s
concerns during the initial trial setting, the State called several
witnesses to testify specifically about the two jail incidents in
which Bermejo was involved. Viewed in this context, counsel
reasonably could have concluded that objecting to Expert’s
recounting of the specific history between the local Norteños and
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State v. Bermejo
Sureños would have triggered more testimony from more fact
witnesses rather than prevented presentation of the evidence
altogether. As a result, counsel reasonably could have decided to
allow Expert to relate the history instead of having several
witnesses attest to the same incidents.
¶49 Moreover, the evidence of the local history between the
gangs provided a backdrop for a major part of the defense’s
theory of the case: that the State’s case was built primarily on
guilt by association rather than on evidence of Bermejo’s actual
participation in the shooting. In its closing argument, the State
used the local history to suggest Bermejo participated in the
shooting because the gang was “his family” and it was “who he
want[ed] to be.” In response, trial counsel highlighted that
notwithstanding Bermejo’s gang membership, the State lacked
evidence tying him to the crime scene; showing his knowledge,
intent, and opportunity related to the shooting; and generally
connecting him to this particular shooting. Counsel also
emphasized the evidence that Bermejo joined the gang for social
reasons and pointed out there was no evidence suggesting that
he had a history of participating in similar violence, that he was
the “mastermind” of and planned the shooting, or that he
desired to participate in criminal activity as opposed to enjoying
the social opportunities the gang afforded. Thus, given the
defense’s theory of the case and counsel’s attempt to establish
reasonable doubt by suggesting that other, senior gang members
carried out the shooting, counsel could have made a reasonable
tactical choice not to object to Expert’s recounting of the local
history. See State v. Clark, 2004 UT 25, ¶ 7, 89 P.3d 162
(concluding counsel made a reasonable tactical decision by not
objecting to potentially inadmissible testimony where, among
other things, counsel “primarily drew upon [the] testimony in
formulating its strategic defense”).
¶50 For these reasons, Bermejo has not established that
counsel performed deficiently in failing to object to Expert’s
testimony, and his claim for ineffective assistance on this point
accordingly fails.
20180985-CA 19 2020 UT App 142
State v. Bermejo
C. Accomplice Liability Instructions
¶51 Bermejo contends trial counsel was ineffective for failing
to object to the accomplice liability instructions. “To evaluate
whether trial counsel performed deficiently in failing to object to
the jury instructions, we must first consider whether those
instructions were legally correct.” State v. Liti, 2015 UT App 186,
¶ 12, 355 P.3d 1078; accord State v. Eyre, 2019 UT App 162, ¶ 14,
452 P.3d 1197, cert. granted, 462 P.3d 797 (Utah 2020). “If the
instruction was correct, [Bermejo] cannot establish deficient
performance for failing to object to it.” See State v. Powell, 2020
UT App 63, ¶ 24, 463 P.3d 705; see also State v. Lee, 2014 UT App
4, ¶ 22, 318 P.3d 1164.
¶52 “Jury instructions must be read and evaluated as a whole.
They must accurately and adequately inform a criminal jury as
to the basic elements of the crime charged.” State v. Augustine,
2013 UT App 61, ¶ 9, 298 P.3d 693 (quotation simplified). “Even
if one or more of the instructions, standing alone, are not as full
or accurate as they might have been, counsel is not deficient in
approving the instructions as long as the trial court’s instructions
constituted a correct statement of the law.” Lee, 2014 UT App 4,
¶ 23 (quotation simplified).
¶53 Bermejo asserts the accomplice liability instructions were
incorrect because “they failed to make clear the requirement that
[he] act with the intent that the underlying crimes be
committed” and thus allowed the “jury to convict based on
abstract notions of intent.” More specifically, he argues the
instructions “erroneously suggested that the intentional mental
state applied only to the actions of ‘solicited, requested,
commanded, encouraged,’ or intentionally aided.” (Quotation
simplified.) The State disagrees, contending the instructions
“expressly included” the requirement that Bermejo act with the
required mental state for the underlying offense and that the
instructions “as a whole are consistent” with Utah law. We agree
with the State.
20180985-CA 20 2020 UT App 142
State v. Bermejo
¶54 “Accomplice liability adheres only when the accused acts
with the mens rea to commit the principal offense.” State v. Jeffs,
2010 UT 49, ¶ 43, 243 P.3d 1250 (quotation simplified). This
“essential principle” of accomplice liability is reflected in the
accomplice liability statute, see id. ¶¶ 43–44, which provides,
“Every person, acting with the mental state required for the
commission of an offense . . . , who solicits, requests, commands,
encourages, or intentionally aids another person to engage in
conduct which constitutes an offense shall be criminally liable as
a party for such conduct,” Utah Code Ann. § 76-2-202
(LexisNexis 2017).
¶55 Here, the jury was given four instructions regarding
accomplice liability. Instruction 19 informed the jury:
A person can commit a crime as a “party” to the
offense. In other words, a person can commit a
criminal offense even though that person did not
personally do all of the acts that make up the
offense. If you find beyond a reasonable doubt
that:
(1) the defendant had the mental state required to
commit the offense, AND
(2) the defendant intentionally, knowingly, or
recklessly solicited, requested, commanded,
encouraged, or intentionally aided another to
commit the offense, AND
(3) the offense was committed,
then you can find the defendant guilty of that
offense.
Instruction 20 informed the jury that a “‘party to the offense’
need not act with the same mental state as the principal” or
“have the same intent that the principal actor possessed as long
as the party to the offense intended that an offense be
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State v. Bermejo
committed.” See Jeffs, 2010 UT 49, ¶ 49 (“It is not necessary for
the accomplice to have the same intent that the principal actor
possessed as long as the accomplice intended that an offense be
committed.” (quotation simplified)). Instruction 21 provided,
“While mere presence at the scene of a crime affords no basis for
a conviction, presence, companionship, and conduct before and
after the offense are circumstances from which one’s
participation in the criminal intent may be inferred.” And
Instruction 22 quoted the governing statute, reciting, “Every
person, acting with the mental state required for the commission
of an offense who directly commits the offense, who solicits,
requests, commands, encourages, or intentionally aids another
person to engage in conduct which constitutes an offense shall
be criminally liable as a party for such conduct.” See Utah Code
Ann. § 76-2-202.
¶56 Additionally, for each of the charges in which Bermejo
was charged as a party to the offense—two counts of felony
discharge of a firearm, one count of obstructing justice, and two
counts of aggravated assault—the jury was instructed on the
elements of each crime, which included the required mental
states. The aggravated assault instructions informed the jury that
Bermejo committed one of the variant acts of aggravated assault
“as a party to the offense” if he “did so knowingly, intentionally,
or recklessly.” Likewise, the discharge of a firearm instructions
told the jury that Bermejo acted “as a party to the offense” if he
did so “knowing or having reason to believe that any person
may be endangered by the discharge of the firearm,” “[w]ith
intent to intimidate or harass another,” or “with intent to
damage a habitable structure.” And the obstructing justice
instruction provided that the jury had to find that Bermejo, “as a
party to the offense,” took certain actions “with intent to hinder,
delay, or prevent the investigation, apprehension, prosecution,
conviction, or punishment of any person regarding conduct that
constitutes a criminal offense.”
¶57 We conclude the accomplice liability instructions, in
conjunction with the instructions outlining the statutory
20180985-CA 22 2020 UT App 142
State v. Bermejo
elements of the various underlying crimes, adequately and
correctly instructed the jury about the mens rea required to
convict Bermejo as an accomplice to the charged crimes. See Eyre,
2019 UT App 162, ¶¶ 17–19. To begin with, Instruction 22 is a
verbatim recitation of the statute addressing accomplice liability,
Utah Code section 76-2-202. Like the statutory provision,
Instruction 22 told the jury that to be “criminally liable as a
party,” a person must “act[] with the mental state required for
the . . . offense.” See Utah Code Ann. § 76-2-202; see also State v.
Clark, 2014 UT App 56, ¶¶ 52, 55, 322 P.3d 761 (concluding the
jury instructions adequately instructed on accomplice liability
where, among other things, one of the relevant instructions “was
copied nearly verbatim from Utah’s accomplice liability
statute”). In addition, Instruction 19 plainly instructed the jury
that to find that Bermejo “commit[ted] a crime as a ‘party’ to the
offense,” the jury had to “find beyond a reasonable doubt
that . . . the defendant had the mental state required to commit
the offense” and that this requirement was in addition to finding
that the defendant acted with the required mental state for
aiding the commission of the offense.
¶58 Further, although the accomplice liability instructions—as
well as the governing statute, see Utah Code Ann. § 76-2-202—
perhaps could have been more precise in their seemingly
interchangeable use of the phrases “an offense” and “the
offense” when referring to the principal offense as requiring the
accompanying mental state, 9 when read with the elements
9. For example, although Instruction 22 is a verbatim statement
of the accomplice liability provision under Utah Code section
76-2-202, the statutory provision speaks both of “the offense”
and “an offense” in setting out what is required for a person to
be “criminally liable as a party” for certain conduct. Utah Code
Ann. § 76-2-202 (LexisNexis 2017). Our supreme court has
employed similar language. See State v. Jeffs, 2010 UT 49, ¶ 49,
243 P.3d 1250 (“It is not necessary for the accomplice to have the
same intent that the principal actor possessed as long as the
(continued…)
20180985-CA 23 2020 UT App 142
State v. Bermejo
instructions, the mens rea requirement for accomplice liability
was adequately explained to the jury. See Jeffs, 2010 UT 49, ¶ 49;
Eyre, 2019 UT App 162, ¶ 19. Here, one of the instructions was
taken verbatim from the governing statute, and another is in line
with Jeffs. In addition, the accompanying elements instructions
included language regarding the mental state required for
committing each particular offense with which Bermejo was
charged as a party. And reading the elements instructions along
with the accomplice liability instructions—especially
Instructions 19 and 22—the jury thereby was informed it had to
find beyond a reasonable doubt both that Bermejo acted with the
specific mental state required for each of the charged offenses
and that he “intentionally, knowingly, or recklessly solicited,
requested, commanded, encouraged, or intentionally aided
another to commit” those offenses. See Clark, 2014 UT App 56,
¶¶ 54–55; Augustine, 2013 UT App 61, ¶ 10.
¶59 “It is not deficient performance for counsel to agree to
jury instructions that accurately and adequately inform the jury
of the relevant law.” Eyre, 2019 UT App 162, ¶ 20. Because the
instructions adequately informed the jury about the mens rea
requirement for accomplice liability, counsel did not perform
deficiently in forgoing an objection to them. Accordingly,
Bermejo’s ineffective assistance of counsel claim on this issue
fails.
(…continued)
accomplice intended that an offense be committed.” (emphasis
added) (quotation simplified)). Nevertheless, this language can
be confusing, and we urge district courts to use jury instructions
employing language that makes clear that an accomplice must
act with the mental state required for the commission of the
offense in question (the offense) and may not be convicted as an
accomplice to that offense if he had only the intent that a
different (usually lesser) offense was to be committed.
20180985-CA 24 2020 UT App 142
State v. Bermejo
II. Police Interview Video Recording
¶60 Bermejo contends the district court erred under rule 17 of
the Utah Rules of Criminal Procedure by allowing the jury to
have access during deliberations to a video recording of his
police interview. Relying on State v. Cruz, 2016 UT App 234, 387
P.3d 618, he argues the interview “constituted a testimonial
exhibit that should not have been available in the jury room.”
And he argues the video’s availability during deliberations was
harmful because it was an exhibit “that captured [his] lie” and
allowed the jury to have access to an exhibit that “was the focal
point of the State’s closing.” We disagree.
¶61 After closing arguments, the court addressed whether the
jury should have access during deliberations to the video of
Bermejo’s police interview. Trial counsel relied on Cruz to argue
the jury should not have access to it, but the court disagreed. The
court observed that in Cruz, the recorded statement was a
“recording of a child victim” that was “actually introduced as
testimony of that child” during the trial and the interview
involved “an inquiry akin to a direct examination,” not an
interrogation. The court reasoned that under the circumstances
in Cruz, it would seem “inappropriate to have [had] that video
tape go back because it was . . . in essence . . . the jury having a
recording of one witness’s testimony.” In contrast, the court
observed the police interview video in this case was “an
interrogation of an adverse party which is being introduced as
both [an] admission and a[n] inconsistent statement,” not “for
the purpose of testimony.” On this basis, the court concluded the
interview was “substantive evidence that is not testimonial in
nature” and that Cruz therefore was “not applicable.”
¶62 Rule 17 generally permits the jury to have access to most
exhibits. It provides, “Upon retiring for deliberation, the jury
may take with them the instructions of the court and all exhibits
which have been received as evidence, except exhibits that
should not, in the opinion of the court, be in the possession of
the jury, such as exhibits of unusual size, weapons or
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State v. Bermejo
contraband.” Utah R. Crim. P. 17(k); see also Allen v. Friel, 2008
UT 56, ¶ 32, 194 P.3d 903. “Although this rule permits the jury to
take most exhibits into the deliberations[,] exhibits which are
testimonial in nature should not be given to the jury during its
deliberations.” State v. Eyre, 2019 UT App 162, ¶ 30, 452 P.3d
1197 (quotation simplified), cert. granted, 462 P.3d 797 (Utah
2020).
¶63 “The law has ‘always excluded depositions and written
testimony from being carried from the [courtroom] by the jury,’”
and the rationale for doing so has been to “deny written
evidence an ‘undue advantage.’” Cruz, 2016 UT App 234, ¶ 36
(quoting State v. Solomon, 87 P.2d 807, 811 (Utah 1939)); see also 2
McCormick on Evidence § 220 (8th ed. 2020) (stating that “writings
which are testimonial in nature, such as depositions, dying
declarations in writing, etc. are typically not taken in with the
jury,” as “such writings, viewed as simply a different form of
testimony, should not be unduly emphasized over oral
testimony in the case”). As our supreme court explained in
Solomon:
It may often happen that the testimony on one side
is oral from witnesses produced before the jury,
while the testimony for the other side on essential
matters is in the form of depositions or in the
transcript from testimony at a previous hearing. If
the hearing lasts for any length of time and the jury
takes the depositions or transcript to be read and
discussed while the oral evidence contra has in a
measure faded from the memory of the jurors, it is
obvious that the side sustained by written evidence
is given an undue advantage. The law does not
permit depositions or witnesses to go to the jury
room. Why should a witness be permitted to go
there in the form of written testimony?
87 P.2d at 811. This court has since explained that the “concerns
expressed by the Solomon court . . . about written testimony
20180985-CA 26 2020 UT App 142
State v. Bermejo
apply with equal force to video recorded testimony” because “a
video recording of this type poses the same danger of undue
emphasis as would the transcript of the witness’s live trial
testimony.” Cruz, 2016 UT App 234, ¶ 39 (quotation simplified).
Nevertheless, we emphasized in Cruz “that this rule does not
apply to all video recordings; many video recordings shown in
court are not testimonial in nature and so would ordinarily be
permitted in the jury room unless they should not, in the opinion
of the court, be in the possession of the jury.” Id. ¶ 40 (quotation
simplified).
¶64 As this court observed in Eyre, “Utah law has only
extended this principle to recorded or transcribed testimony that
substitutes a witness’s live testimony,” and “Utah appellate
courts have not treated recordings of defendants’ police
interviews as testimonial in nature for purposes of excluding
them from the jury room.” 2019 UT App 162, ¶ 31 (quotation
simplified). Bermejo asserts the police interview video at issue
here is testimonial, likening it to the Children’s Justice Center
(CJC) interview at issue in Cruz. Specifically, he asserts that, as in
Cruz, the interview was “recorded,” “the video captured an
interview with a witness who appeared and testified at trial,”
and “the video was a recording of an interview with the police,”
which was “taken by police for the purpose of prosecuting
crime.” (Quotation simplified.)
¶65 But Bermejo does not acknowledge the key difference
between the CJC interview in Cruz and his police interview: the
video at issue in Cruz captured an out-of-court interview of a
witness, while the video at issue here captured an out-of-court
interview of a defendant. And as we noted in Eyre, although Utah
courts have not decided this question, other jurisdictions
considering the issue have “allow[ed] juries to have access” to
recorded interviews capturing out-of-court statements by a
defendant. 2019 UT App 162, ¶ 32; see also, e.g., Rael v. People,
2017 CO 67, ¶¶ 30–35, 395 P.3d 772 (en banc) (explaining that
concerns related to “videotaped, out-of-court statements of
child-victims” “do not apply to a defendant’s own out-of-court
20180985-CA 27 2020 UT App 142
State v. Bermejo
statements”); State v. Castelli, 101 A. 476, 480 (Conn. 1917)
(“Writings made or subscribed by the accused are ordinarily
admitted as exhibits. If these writings were harmful, it was not
because any rule of procedure was violated, but because the
accused had furnished harmful evidence against themselves.”);
Lucas v. State, 34 So. 3d 195, 196 (Fla. Dist. Ct. App. 2010)
(concluding the court did not abuse its discretion in allowing the
“videotape of [the defendant’s] voluntary statement to the
police” to go with the jury into deliberations because the
videotaped statement “was not a substitute for [the defendant’s]
live testimony at trial”); State v. Robinson, 903 P.2d 1289, 1293–94
(Haw. 1995) (explaining that a defendant’s “taped confession is a
tangible exhibit which is non-testimonial in character,” and
holding that “a videotape of a defendant’s confession . . . may be
taken into the jury room during deliberations” (quotation
simplified)); State v. Cheloha, 907 N.W.2d 317, 326–27 (Neb. Ct.
App. 2018) (concluding there was no abuse of discretion in
allowing the jury access to a videotape of the defendant’s police
interrogation, where the video was properly characterized as
“substantive, nontestimonial evidence”); State v. Dugas, 782 A.2d
888, 896 (N.H. 2001) (rejecting argument that the court erred in
submitting audiotapes of “two police interviews with the
defendant,” reasoning such exhibits “are not testimonial”).
Indeed, allowing written or recorded confessions or admissions
by a defendant to go with the jury into deliberations appears to
be the majority view. See McAtee v. Commonwealth, 413 S.W.3d
608, 624 & n.11 (Ky. 2013) (stating “the majority of jurisdictions
allow a recorded confession—written or electronic—to go to the
jury room during deliberations” and collecting cases); see also 2
McCormick on Evidence § 220 (8th ed. 2020); Jonathan M. Purver,
Annotation, Permitting Documents or Tape Recordings Containing
Confessions of Guilt or Incriminating Admissions to be Taken into
Jury Room in Criminal Case, 37 A.L.R.3d 238 (1971) (updated
2012).
¶66 The reasoning in Carter v. People, 2017 CO 59M, 398 P.3d
124, is particularly persuasive on the issue of whether during
deliberations the jury should have access to a defendant’s
20180985-CA 28 2020 UT App 142
State v. Bermejo
recorded confessions or admissions. There, the Colorado
Supreme Court concluded the trial court did not abuse its
discretion by allowing the jury to access during its deliberations
a video of the defendant’s custodial interrogation. Id. ¶¶ 16–24.
The court first explained that “out-of-court statements of a party
offered against that party have . . . never been considered
primarily testimonial in nature,” id. ¶ 18, and that similarly,
“confessions or out-of-court statements by criminal defendants
sufficiently harmful to be offered into evidence by the
prosecution have historically been allowed into the jury room,”
id. ¶ 19. This is so, the court reasoned, because:
[i]n addition to having probative force for reasons
more related to the adversary process than any
narrative or testimonial value a defendant’s
detrimental out-of-court statements may have,
allowing the jury access to exhibits evidencing such
statements simply does not implicate the same
danger of undue emphasis inherent in permitting
the jury access to some, but not all, of the
testimonial evidence. Unlike testimonial evidence,
the accuracy and veracity of which must be
weighed in conjunction with all of the other
admissible evidence, a criminal defendant’s out-of-
court statement offered against him has value
primarily as demonstrative evidence of conduct on
his part that is contradictory of a position he takes
at trial.
Id. ¶ 21; see also id. ¶¶ 18–19 (stating that “despite possibly
having some narrative value, a party opponent’s out-of-court
utterances offered against him have probative force simply as
non-verbal or non-narrative conduct, which is assertedly in
conflict with a position he takes at trial,” and that the use of such
statements involves considerations of “adversarial fairness”).
Thus, the court continued, “While a trial court may find grounds
to restrict a jury’s access to such exhibits under particular
circumstances, they would not typically be the same reasons that
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State v. Bermejo
might lead it to caution the jury concerning the use of, or limit its
access to, testimonial exhibits.” Id. ¶ 22.
¶67 We are persuaded by the reasoning of Carter and those
jurisdictions that have concluded that a defendant’s recorded,
out-of-court interview is not testimonial for purposes of
determining whether to allow the jury to have access to it during
deliberations. See id. ¶ 21. See generally Testimonial evidence,
Black’s Law Dictionary (11th ed. 2019) (defining “testimonial
evidence” as “[a] person’s testimony offered to prove the truth of
the matter asserted; esp., evidence elicited from a witness”);
Testimony, Black’s Law Dictionary (11th ed. 2019) (defining
“testimony” as “[e]vidence that a competent witness under oath
or affirmation gives at trial or in an affidavit or deposition”).
¶68 The State introduced the video of the police interview
during the investigating detective’s testimony. The interview
took place the day after the shooting. During the interview,
Bermejo denied having been in Salt Lake City at all on the day of
the shooting and stated that his car went missing from Ogden
where he left it at his friend’s house, which the friend alerted
him to between 1:00 p.m. and 2:00 p.m. the day of the shooting.
¶69 But during the defense’s case-in-chief, Bermejo testified
he was untruthful with police during the interview, explained he
was afraid of gang retaliation, and affirmed his opinion that it
was safer to lie to the police than to be truthful about the gang
members. Further, in their closing arguments, the State and the
defense each reiterated and used Bermejo’s untruthfulness to
police in the videotaped interview to support their respective
positions. For its part, the State used Bermejo’s untruthfulness to
generally attack his credibility and suggest he was lying when
he testified about what happened on the day of the shooting.
Trial counsel, on the other hand, used the same lack of candor in
the interview to support the narrative that Bermejo was
unwillingly “set up” by other gang members and was afraid—
justifiably so, given the “serious, serious world” of gang
membership—of the repercussions if he told the truth.
20180985-CA 30 2020 UT App 142
State v. Bermejo
¶70 Thus, the jury was informed by the State, the defense, and
by Bermejo himself, that his statements during his initial
interview were not credible. In this respect, we agree with the
district court that, rather than being introduced as testimony,
Bermejo’s police interview primarily was introduced and used
as an admission and a prior inconsistent statement. Indeed,
given that the State and the defense each used the video, the jury
had little reason to credit Bermejo’s statements on the video as
testimony about the events to be weighed for their truthfulness
rather than view them as “demonstrative evidence of [Bermejo’s]
capacity for fabrication and self-preservation” and “of conduct
on his part that is contradictory of a position he takes at trial.”
See Carter, 2017 CO 59M, ¶¶ 21, 24.
¶71 We agree with the district court that Bermejo’s police
interview was not testimonial evidence. Accordingly, we
conclude the court did not err, under rule 17 of the Utah Rules of
Criminal Procedure, by allowing the jury to have access during
deliberations to the video.
III. Mistrial Motion
¶72 Bermejo contends the district court exceeded its discretion
by denying his mistrial motion. He also contends, in the
alternative, trial counsel was constitutionally ineffective when he
failed to object and renew his mistrial motion during the
prosecutor’s closing argument. We address each issue below.
A. The Mistrial Motion
¶73 Bermejo argues the prosecutor made improper comments
during the State’s rebuttal to the defense’s case-in-chief that
“called attention to matters the jury was not justified in
considering.” Specifically, he argues the prosecutor’s comments
suggested that “[Bermejo] improperly encouraged [Girlfriend]
not to testify at trial” and that “counsel knew about [Bermejo’s]
conduct [and] was not forthright about [that] knowledge.” These
comments, he argues, “insinuated additional evidence did exist”
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that Bermejo “had influenced [Girlfriend’s] decision not to
appear and testify at trial.” And he asserts that given the nature
of the comments, the “only adequate remedy was a mistrial”
because trial counsel was left with “no good option” for
adequately dealing with the harm flowing from the comments.
We disagree.
¶74 Because “prosecutorial misconduct is not a standalone
basis for independent judicial review,” “when a defendant has
raised an alleged prosecutorial misconduct issue below, we
review the district court’s ruling on that objection or motion.”
State v. Reid, 2018 UT App 146, ¶ 40, 427 P.3d 1261 (quotation
simplified); see also State v. Hummel, 2017 UT 19, ¶ 107, 393 P.3d
314 (“Appellate courts review the decisions of lower courts. We
do not review the actions of counsel—at least not directly.”).
Here, the relevant ruling is the district court’s denial of
Bermejo’s mistrial motion.
¶75 “A mistrial is strong medicine.” State v. Whytock, 2020 UT
App 107, ¶ 16, 469 P.3d 1150. “In view of the practical necessity
of avoiding mistrials and getting litigation finished, the trial
court should not grant a mistrial except where the circumstances
are such as to reasonably indicate that a fair trial cannot be had
and that a mistrial is necessary to avoid injustice.” State v.
Butterfield, 2001 UT 59, ¶ 46, 27 P.3d 1133 (quotation simplified);
accord State v. Dunne, 2020 UT App 56, ¶ 18, 463 P.3d 100. Once
the district court “has exercised its discretion and made its
judgment [about a mistrial motion], the prerogative of a
reviewing court is much more limited.” Butterfield, 2001 UT 59,
¶ 46 (quotation simplified). “Because a district judge is in an
advantaged position to determine the impact of courtroom
events on the total proceedings, once a district court has
exercised its discretion and denied a motion for a mistrial,” an
appellate court “will not reverse the court’s decision unless it is
plainly wrong in that the incident so likely influenced the jury
that the defendant cannot be said to have had a fair trial.” State v.
Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quotation simplified).
Further, Bermejo bears the burden of “showing that the
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challenged incident substantially influenced the verdict.” State v.
Murphy, 2019 UT App 64, ¶ 37, 441 P.3d 787 (quotation
simplified).
¶76 Evaluating a denial of a mistrial motion requires us to
consider the totality of evidence against the defendant and the
circumstances surrounding the improper statements. See State v.
Milligan, 2012 UT App 47, ¶ 8, 287 P.3d 1 (looking to the
circumstances surrounding the potentially prejudicial comments
to determine whether the district court abused its discretion in
denying a mistrial motion); see also Dunne, 2020 UT App 56, ¶ 19;
State v. Yalowski, 2017 UT App 177, ¶ 22, 404 P.3d 53.
¶77 Our supreme court has determined a mistrial is not
required in circumstances where an improper statement is
“vague” and “fleeting,” see Butterfield, 2001 UT 59, ¶ 47
(quotation simplified), “made in passing,” “relatively innocuous
in light of all the testimony presented,” Allen, 2005 UT 11, ¶ 40,
“very brief,” and “stat[es] no details of the circumstances”
surrounding the subject of the comments, State v. Griffiths, 752
P.2d 879, 883 (Utah 1988), and where, following the statement,
the proceedings “move[d] along without undue interruption and
directed the jury’s attention to other matters,” State v. Decorso,
1999 UT 57, ¶ 39, 993 P.2d 837, abrogated on other grounds by State
v. Thornton, 2017 UT 9, 391 P.3d 1016; see also Dunne, 2020 UT
App 56, ¶ 23 (noting, in concluding that the district court did not
abuse its discretion in denying a mistrial motion, that “the court
immediately sustained [the defendant’s] objection” to the
problematic questions and statements, and “no further reference
was made” to them). Additionally, our appellate courts have
considered the district court’s offers to cure any alleged harm
and trial counsel’s response in evaluating whether the court’s
mistrial motion decision was an abuse of discretion. See Allen,
2005 UT 11, ¶ 43 (supporting a conclusion that the district court
had not abused its discretion in denying a mistrial motion with
the district court’s offer “to give the jury a curative instruction
regarding the [improper] reference, which [the defendant]
declined”); accord Whytock, 2020 UT App 107, ¶¶ 20–21.
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¶78 Applying these principles, we conclude the district court
did not abuse its discretion in denying the mistrial motion.
During its rebuttal to the defense’s case-in-chief, the State
recalled Detective, who affirmed that after initial interviews with
Girlfriend and Bermejo following the shooting, he expected
Girlfriend to be “an important witness in th[e] case.” The State
questioned Detective about his efforts to find Girlfriend when
she did not appear in court, which included obtaining a “search
warrant to ping her phone” and conducting “a manhunt in a
sense” to find her, all without success. The State then stipulated
there was “no evidence of [Bermejo] making direct contact to
[Girlfriend] to tell her directly,” “[o]r even indirectly,” “not to
come to court.”
¶79 In cross-examination, trial counsel questioned Detective
about the lack of evidence that Bermejo influenced Girlfriend’s
decision to not appear at court, suggesting any assertion that
Bermejo influenced her through “an advocate working for him”
or “allegedly speaking for him” was “pure speculation.” On re-
direct, the State initially focused on this point in the following
exchange:
Q: [Defense counsel] suggested that your idea that
other people would be trying to influence
[Girlfriend’s] decision on his behalf was just
speculation.
A: Yes, it’s just speculation.
Q: Is it actually just speculation?
A: No. We obtained a search warrant for—
Trial counsel objected, stating that the questioning had “gone
beyond rebuttal”; the district court sustained the objection. The
State responded, “Your Honor, he opened the door. He said that
this was just speculation and he knew well that it’s not just
speculation.” The prosecutor and trial counsel approached the
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bench for a sidebar conference and then, once again on the
record before the jury, the State questioned Detective on an
entirely different issue.
¶80 Later, after closing instructions, the prosecutor told the
court that his statement that “Defense counsel knew full well”
that it was not speculation was “inaccurate” and that he believed
he “need[ed] to correct that for the jury.” The prosecutor
suggested either a curative instruction or that he tell the jury that
his statement inaccurately reflected his “impression he knew
about something.”
¶81 In response, trial counsel said he was “torn” about how to
address the issue with the jury because doing so would suggest
that there was “some evidence” when none had been presented
and that counsel “knew something.” He said he believed he
“need[ed] to move for a mistrial” rather than address it with the
jury because he considered the situation harmful to the defense
either way. And he informed the court he intended to “handle”
the “correction” suggested by the prosecutor “in closing.”
¶82 The district court denied the mistrial motion “primarily
because . . . there is an opportunity to correct the record,” stating
that “a curative instruction . . . would go a long way to correct
the issue.” The court also stated it understood why trial counsel
did not want to seek a curative instruction as a matter of
strategy. And it determined the prosecutor’s statements
“appeared to be inadvertent” and “pretty fleeting” and were
“not an incident that would have called the jury’s attention”
where “there was no exclamation point on it.”
¶83 Under these circumstances, the district court’s decision to
deny the mistrial motion was not an abuse of discretion. To
begin with, the prosecutor’s suggestion about Bermejo’s
influence on Girlfriend and what trial counsel knew was
innocuous in light of the trial testimony. The statements came at
the end of a four-day trial, one in which nineteen witnesses
testified. The statements also occurred in a short exchange
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covering half a page in more than 800 pages of transcript. See
Allen, 2005 UT 11, ¶ 40 (concluding improper statements that are
“made in passing” and “relatively innocuous in light of all the
testimony presented” do not warrant a mistrial); cf. Murphy, 2019
UT App 64, ¶ 39 (reasoning, in concluding that the district court
did not abuse its discretion in denying a mistrial motion, that the
improper testimony at issue was “made in passing” and
“consisted of a single sentence in a trial transcript that exceeds
1,000 pages”); State v. White, 2016 UT App 241, ¶ 44, 391 P.3d 311
(concluding that two objectionable statements “were relatively
innocuous in light of all the other testimony presented,” where
the witness who offered the statements “was one of nearly a
dozen witnesses who testified at trial over a period of three
days” and the “statements—or references to them—appear on
just two of more than 800 transcript pages”).
¶84 Trial counsel also promptly objected to the prosecutor’s
line of questioning as beyond rebuttal. And immediately after a
sidebar conference on the issue, the prosecutor resumed
questioning on a completely different issue. See Decorso, 1999 UT
57, ¶ 39. And the district court offered trial counsel the option
for a curative instruction, which counsel declined in favor of not
highlighting the issue for the jury. See Allen, 2005 UT 11, ¶ 43.
¶85 Under these circumstances, “we cannot agree that the jury
was so likely influenced” by the prosecutor’s suggestion that
Bermejo pressured Girlfriend not to appear in court, and that
trial counsel knew it, “that the court was plainly wrong to deny
[Bermejo’s] mistrial motion.” See Dunne, 2020 UT App 56, ¶ 25
(quotation simplified). Thus, we conclude the district court did
not abuse its discretion in denying Bermejo’s mistrial motion.
B. Ineffective Assistance of Counsel During Closing
Arguments
¶86 In the alternative, Bermejo argues his trial counsel
provided ineffective assistance by not renewing his objection
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during closing arguments when the prosecutor again raised the
issue of Girlfriend’s absence. 10 We disagree.
¶87 During closing argument, in talking about Bermejo’s
version of events and the fact that he claimed to have dropped
off Girlfriend at work the morning before the shooting, the State
reviewed the evidence about her work schedule, especially the
fact that her time clock records showed she arrived that day
hours after the shooting, not in the morning. The State then
stated:
Defense counsel asked, “Well, do people cover for
each other?”
I mean, I guess everybody is like his client and
makes up stories. His client admitted he lied to the
police. I guess now he wants us to believe that
somebody lied on a time card. Because if
somebody lied on a time card, then his client is
telling the truth. But [Girlfriend] had just started
working there eight days before. Was she already
taking vacation and somebody was clocking in a
time? No.
When you come into this courtroom, your
commonsense does not stay out in the hallway.
10. Trial counsel did not object during the prosecutor’s closing
argument when the prosecutor again addressed the issue of
Girlfriend’s absence. Accordingly, Bermejo asks that we review
this issue under the ineffective assistance of counsel exception to
our preservation requirement. See generally State v. Johnson, 2017
UT 76, ¶¶ 18–19, 416 P.3d 443 (stating that “[a] failure to
preserve an issue in the trial court generally precludes a party
from arguing that issue in an appellate court, absent a valid
exception,” and identifying ineffective assistance of counsel as a
valid exception).
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What makes sense? What makes sense as to why,
with a warrant, the State cannot get [Girlfriend].
Cannot get her here to come in and testify. And it’s
true, the defendant does not have to produce any
evidence. It is the State’s burden. And we have
tried to get [Girlfriend] to come in here.
We have pinged her phone. We have gotten a
warrant for her. We have knocked on doors. And
she does not want to come in here and testify. Ask
yourselves why. What did she say back in 2016?
What would she be forced to say now? Why
doesn’t she want to be here? It doesn’t fit.
Bermejo argues these statements, along with the previous
questioning and commentary about Girlfriend’s absence, “could
only be interpreted as meaning that [Bermejo] had influenced
[Girlfriend’s] decision not to come” and suggested that trial
counsel was “intentionally misleading the jury” on the issue.
(Quotation simplified.) He asserts counsel provided ineffective
assistance by not objecting to these statements.
¶88 “In closing counsel have considerable latitude in the
points they may raise.” State v. Hummel, 2017 UT 19, ¶ 110, 393
P.3d 314 (quotation simplified). Counsel “have the right to fully
discuss from their perspectives the evidence and all inferences
and deductions it supports,” and “a prosecutor has the duty and
right to argue the case based on the total picture shown by the
evidence.” State v. Houston, 2015 UT 40, ¶ 76, 353 P.3d 55
(quotation simplified). “When we review an attorney’s failure to
object to a prosecutor’s statements during closing argument, the
question is not whether the prosecutor’s comments were proper,
but whether they were so improper that counsel’s only
defensible choice was to interrupt those comments with an
objection.” State v. Hulse, 2019 UT App 105, ¶ 44, 444 P.3d 1158
(quotation simplified). And “the law recognizes the prerogative
of opposing counsel to swallow their tongue instead of making
an objection that might have the risk of highlighting problematic
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evidence or even just annoying the jury.” Hummel, 2017 UT 19,
¶ 110; see also Hulse, 2019 UT App 105, ¶ 45.
¶89 Here, although the prosecutor’s comments during closing
arguments may well have been at least in part improper,
particularly in their tendency to suggest counsel played some
part in Girlfriend’s absence, Bermejo has not carried his burden
of demonstrating that counsel performed deficiently by not
objecting and renewing his mistrial motion. As a matter of
strategy, counsel reasonably could have concluded a mistrial
motion would not be granted, especially given the district
court’s reasoning in denying the previous mistrial motion. See
State v. Torres, 2018 UT App 113, ¶ 16, 427 P.3d 550 (“Because the
decision not to pursue a futile motion is almost always a sound
trial strategy, counsel’s failure to make a motion that would be
futile if raised does not constitute deficient performance.”
(quotation simplified)); see also State v. Ray, 2020 UT 12, ¶¶ 31,
34, 469 P.3d 871 (stating that “the reasonableness of counsel’s
challenged conduct” must be judged “on the facts of the
particular case, viewed as of the time of counsel’s conduct” and
that “if it appears counsel’s actions could have been intended to
further a reasonable strategy, a defendant has necessarily failed
to show unreasonable performance” (quotation simplified)).
¶90 Counsel also reasonably could have decided that rather
than highlight the overall issue for the jury, he instead would
“reserve for himself the right to argue inferences from the
evidence during his own closing argument.” See State v. Roberts,
2019 UT App 9, ¶ 20, 438 P.3d 885; see also Hummel, 2017 UT 19,
¶ 110. Indeed, in addressing the timeline of events, trial counsel
stated that even though the prosecution wanted the jury to
believe that Bermejo “totally made . . . up” what had occurred in
the hours before the shooting, including “seeing his girlfriend,”
the evidence “corroborates and verifies what [Bermejo is]
actually saying. There aren’t any exceptions. It’s all there.”
¶91 We conclude Bermejo has not shown the prosecutor’s
comments were so improper that trial counsel’s “only defensible
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choice was to interrupt those comments with an objection.”
Hulse, 2019 UT App 105, ¶ 44 (quotation simplified). Rather, as a
matter of reasonable strategy counsel could have decided to
forgo an objection and renewal of his mistrial motion. On this
basis, Bermejo has not established that trial counsel performed
deficiently, and therefore, his claim of ineffective assistance is
unavailing.
CONCLUSION
¶92 Bermejo has not shown that trial counsel rendered
constitutionally ineffective assistance of counsel on any of the
grounds asserted, that the district court erred in allowing the
police interview video to go with the jury during deliberations,
or that the court abused its discretion in denying the mistrial
motion. Accordingly, we affirm.
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