State v. Gallegos

479 P.3d 631

STATE of Utah, Appellee,

v.Darrin James GALLEGOS, Appellant.

No. 20190029-CA

Court of Appeals of Utah.

Filed December 10, 2020

Opinion

HARRIS, Judge:

¶1 After searching the prison cell Darrin James Gallegos shared with a cellmate (Cellmate), guards found a shank hidden in a shoe. At first, Gallegos and Cellmate agreed that the shank belonged to Gallegos. But a few months later, after criminal charges were filed against Gallegos, they changed their stories and insisted the shank belonged to Cellmate. A jury later convicted Gallegos of possession of a dangerous weapon by a restricted person, a first-degree felony. Gallegos now appeals that conviction, and challenges the trial court's admission of three pieces of evidence: Gallegos's previous possession of a similar shank, Gallegos's and Cellmate's affiliation in gangs, and Gallegos's and Cellmate's sentences and parole statuses. Under the circumstances, the trial court did not abuse its discretion by admitting the gang evidence or evidence about their sentences and parole statuses at the time the shank was discovered. But evidence about the potential sentence Gallegos faced if convicted at trial should not have been admitted and, most significantly, we conclude that the trial court improperly allowed the jury to learn that Gallegos had previously possessed a similar shank. And we are persuaded that admission of the previous shank evidence, in particular, was not harmless. Accordingly, we reverse Gallegos's conviction and remand for a new trial.

BACKGROUND

¶2 Gallegos is an inmate at the Utah State Prison, and for a time he shared a cell with Cellmate. One day, prison officials were searching prisoners’ cells for contraband. While searching the cell shared by Gallegos and Cellmate, officers discovered a "homemade weapon," or "shank," located in an Adidas brand shoe. The shoe was located in a common area of the cell, on the floor between the two bunks and the toilet. The weapon was a nine-inch "piece of steel" cut from the frame of a bunk bed and "sharpened ... into a point" on one end.

¶3 After finding the shank, officers asked Gallegos and Cellmate "if either one of them wanted to claim ownership," and both initially denied knowing anything about it. Later that day, however, Gallegos admitted to one officer that the shank was his, and a few weeks later made the same admission to a different officer during a follow-up interview. The prison held separate internal disciplinary hearings about the incident for both Gallegos and Cellmate, and each of them stated, at their hearings, that the shank belonged to Gallegos, and that he would "accept accountability" for it. As a result, prison officials dismissed all internal disciplinary charges against Cellmate.

¶4 The State then filed a criminal charge against Gallegos, accusing him of one first-degree-felony count of possession of a dangerous weapon by a restricted person.¹ After that criminal charge was filed, Gallegos and Cellmate each changed their stories, and claimed that the shank had actually belonged to Cellmate, not to Gallegos. In recorded phone calls made from prison, Gallegos explained to a listener that he had originally claimed ownership of the shank because the likely internal prison punishment would be a fine, which did not matter to Gallegos because his prison account (referred to as his "books") was already so burdened with other fines and restitution that he had stopped using it. Cellmate's books, on the other hand, were clear, and Cellmate had been allowing Gallegos to use his prison account for deposits and purchases. If Cellmate were to be fined, it would have made using his prison account much more difficult for each of them. Moreover, Cellmate also testified that, at the time, he had just received his "level three" eligibility to be moved from the maximum-security section of the prison to general "population," and if the shank were determined to be his, he would have had to remain in maximum security.

¶5 As the case proceeded toward trial, the State made motions asking the trial court to admit three types of evidence. First, the State wanted to introduce evidence that, over four years earlier, Gallegos had been found to be in possession of a similar shank, also cut from the frame of a bunk bed—evidence the State considered relevant to the question of who possessed the shank on this occasion. Second, the State sought permission to inform the jury that Gallegos and Cellmate were members of affiliated gangs, and would therefore be more likely to protect each other. Third, the State intended to introduce evidence that Cellmate was in prison for murder and was serving a sentence of life without the possibility of parole (LWOP), while Gallegos, by contrast, was not only eligible for parole but, at the time the shank was discovered, had a parole hearing coming up. The State asserted that these last two categories of evidence were relevant to show why Gallegos and Cellmate would have changed their stories about ownership of the shank. Gallegos opposed the motions, asserting that the evidence about his previous shank possession was improper under rule 404(b) of the Utah Rules of Evidence, and that all of the evidence was unduly prejudicial under rule 403.

¶6 After briefing and argument, the trial court granted the State's motions, and allowed the State to introduce all three types of evidence. The court offered to give a limiting instruction regarding the gang evidence and the parole status evidence, but Gallegos declined that offer. Gallegos did seek, and the court gave, a limiting instruction regarding Gallegos's possession of a shank on a previous occasion, instructing the jury that it could consider Gallegos's possession of a previous shank,

if at all, for the limited purpose of: [considering] [w]hether there was a sufficient nexus (relationship) between [Gallegos] and the weapon ... for you to determine that [Gallegos] had both the power and intent to exercise dominion and control over any allegedly dangerous weapon in this case. This evidence is not admitted to prove a character trait of [Gallegos] or to show that he acted in a manner consistent with such a trait. Keep in mind that [Gallegos] is on trial for the crimes charged in this case, and for those crimes only. You may not convict a person simply because you believe [he] may have committed some other acts at another time.

¶7 At trial, the State called several witnesses during its case-in-chief, all of whom were officers or investigators affiliated with the prison. The officers who found the shank in the shoe testified, as did a different officer who found a similar shank in Gallegos's possession more than four years earlier. The State also called a prison investigator who specializes in gangs, who testified about the specific affiliated gangs to which Gallegos and Cellmate belonged, and that members of these gangs have a duty to "have some sort of weapon" and to be ready to defend other gang members. The investigator also testified that fellow gang members sometimes agree to take charges for one another, particularly where a charge would mean a harsher sentence for one gang member as opposed to another. In connection with this testimony, the State introduced evidence of Gallegos's and Cellmate's tattoos to establish their gang affiliations.

¶8 A different prison investigator testified about recorded phone calls Gallegos made from the prison, as well as about Gallegos's and Cellmate's prison accounts and parole statuses. With regard to parole status, the investigator testified that Cellmate was serving a LWOP sentence and had no possibility of being paroled, but that Gallegos, by contrast, was eligible for parole and "in theory" could be paroled at any time. Indeed, the investigator noted that, at one point, Gallegos had a parole hearing scheduled for a date ten months after the shank was discovered, and that his parole status could "depend in part on his conduct while in prison." In connection with this evidence, the jury heard Gallegos (on a recorded phone call) mention that he was facing "five-to-life" in this case. Although the State made no further mention of the potential sentence Gallegos might receive if convicted, Gallegos's attorney mentioned the issue in cross-examination and in closing argument, implying that five years to life was an overly long and unjust sentence for being caught with a shank in a shoe.

¶9 Gallegos elected not to testify, but he called Cellmate, who testified that both the Adidas shoes and the shank were his, and did not belong to Gallegos; he even described in some detail the manner in which he had cut the shank from the bed frame. Cellmate also testified that, like Gallegos, he had been caught with a shank on one previous occasion, before he shared a cell with Gallegos; in his case, the previous episode occurred about a year before the shank was discovered in their shared cell.

¶10 After deliberation, the jury convicted Gallegos of possessing the shank. Outside the presence of the jury, the trial court found that Gallegos was a restricted person and a habitual violent offender, and that Gallegos therefore was guilty of a first-degree felony. The court later sentenced Gallegos to prison for five years to life, to run consecutive to the sentence he was already serving.

ISSUE AND STANDARD OF REVIEW

¶11 Gallegos appeals, challenging the trial court's admission of the three types of evidence discussed above. We review for abuse of discretion the court's decision to admit this evidence. See Met v. State , 2016 UT 51, ¶ 96, 388 P.3d 447 (stating that a trial court's decision to admit evidence pursuant to rule 403 is reviewed for abuse of discretion, which occurs when the court "applies the wrong legal standard or its decision is beyond the limits of reasonability" (quotation simplified)); see also State v. Allen , 2005 UT 11, ¶ 15, 108 P.3d 730 ("When examining a [trial] court's decision to admit evidence under ...