State v. Gallegos

463 P.3d 641

STATE of Utah, Respondent,

v.John Edward GALLEGOS, Petitioner.

No. 20180890

Supreme Court of Utah.

Heard November 12, 2019

Filed April 29, 2020

Sean D. Reyes, Att'y Gen., Jeffrey S. Gray, Asst. Solic. Gen., Salt Lake City, for respondent

Emily Adams, Bountiful, Cherise Bacalski, Orem, for petitioner

Justice Pearce authored the opinion of the Court, in which Chief Justice Durrant, Associate Chief Justice Lee, Justice Himonas, and Justice Petersen joined.

On Certiorari to the Utah Court of Appeals

Justice Pearce, opinion of the Court:

INTRODUCTION

¶1 A jury convicted John Gallegos of attempted murder. Gallegos asked the court of appeals to overturn that conviction, arguing that his trial counsel rendered ineffective assistance by, among other things, failing to call an expert whom his prior counsel had previously identified and disclosed. This uncalled expert would have testified about the problems inherent in eyewitness identifications. Gallegos also moved the court to remand under Utah Rule of Appellate Procedure 23B so that he could supplement the record with facts concerning the uncalled expert and explore the reasons his trial counsel declined to use the witness at trial.

¶2 The court of appeals affirmed Gallegos's conviction. A partially dissenting member of that court opined that he would have granted the rule 23B motion to allow Gallegos to try and establish that he was prejudiced by his trial counsel's deficient performance. We granted a petition for certiorari to address whether the court of appeals erred by: (1) denying the rule 23B motion; and (2) concluding that trial counsel's failure to call the eyewitness testimony expert did not result in ineffective assistance. We affirm the court of appeals.

BACKGROUND¹

¶3 On a dark night, the victim (Victim) parked his RV next to Lester Park in Ogden, intending to spend the evening. While in his RV, Victim heard the unmistakable hiss of an aerosol can and the rumpus that sometimes accompanies tagging. Concerned that his RV might be used as a canvas for someone's street art, Victim ventured outside to protect his vehicle.

¶4 Victim saw a group of men spray painting a building about fifty feet away. As soon as the group spotted Victim, they sprinted toward him. Victim tried to back away, but the group encircled him. Before Victim had a chance to say anything, one member of the group repeatedly struck Victim. While that man was attacking Victim, the others in the group began throwing rocks, cans, and garbage at Victim. The men were accompanied by dogs that they permitted to attack and bite Victim.

¶5 Throughout the attack, Victim's primary assailant stood about four feet away. The assailant would step forward to punch Victim, retreat four or five feet, and then repeat the attack. Victim experienced trouble breathing and realized that he was being stabbed. Victim testified that when he "grabbed [his] chest ... the blood skirted out." Victim was facing the attacker, and the attacker was the only person near Victim in that direction. Victim later testified that if blood were found on any person in the group, it would be on the attacker.

¶6 At least four eyewitnesses saw the attack. Three of these witnesses—N.G., K.C., and D.L.—were driving by the park together when they saw the altercation. D.L. jumped out of the vehicle to assist Victim. He yelled at the group of men and started to approach the crowd. One of the men in the group, who held something in his hand, shouted at D.L., "You want some too homey? Get the fuck back in the truck." D.L. ran back to the truck and yelled for N.G. to call the police. This apparently motivated the group who had been attacking Victim to flee.

¶7 Police and paramedics arrived within five minutes of N.G.’s call. R.S., who had been in the park with his girlfriend during the attack, told an officer that Victim's assailant was wearing a white shirt. R.S. also told the officer that he saw some of the group get into a car to leave the park. By apparent coincidence, as R.S. was speaking to the officer, he saw that same car drive past. R.S. alerted the officer.

¶8 Additional officers arrived. One left to investigate the car that R.S. identified. The officer saw Gallegos walking away from a vehicle matching the description R.S. had provided. The officer talked to Gallegos and searched his name for warrants. He testified that he saw Gallegos's age when he ran the search and realized that Gallegos was under the legal drinking age; a fact that assumed importance because Gallegos appeared to be intoxicated.

¶9 The officer asked if Gallegos was a gang member. Gallegos said he was. In response to the officer's question, Gallegos indicated he did not have any weapons on him. After the officer received Gallegos's permission to search him, the officer found a knife in Gallegos's back pocket. The officer told Gallegos that since Gallegos seemed quite intoxicated, the officer would hold onto the knife, and Gallegos could retrieve it from the police station after he sobered up. Since Gallegos did not match the initial description of the suspect—wearing a white shirt—the officer did not detain him. The officer did not notice any blood on the knife or on Gallegos.

¶10 Within thirty minutes after the encounter with Gallegos, a police officer interviewed D.L., who had been occupied tending to Victim's injuries. Unlike R.S., D.L. recalled that the primary assailant was wearing dark clothes. D.L., according to the testimony of two police officers, also told the officers that Victim's assailant had tripped and fallen to his hands and knees while running away.²

¶11 The officers updated the suspect's description. After hearing the updated description, the officer that initially stopped Gallegos examined the knife that he had taken from Gallegos and saw, for the first time, blood. Another officer was then sent to find the dark-shirt wearing Gallegos.

¶12 A few minutes later, the officer apprehended Gallegos near the park, close to a vehicle matching the description R.S. had provided. Another officer noticed that Gallegos had what appeared to be blood on his ears, knuckles, palms, shirt, and pants. Yet another officer observed that Gallegos's pants were torn at the knee, that blood, dirt, and black material were on Gallegos's knee, and that Gallegos had scrape marks on his palms.

¶13 Shortly after officers had detained Gallegos, and while still near the park, an officer drove D.L. to a curb where Gallegos sat, uncuffed, with a spotlight shining on him. While sitting in the car, D.L. identified Gallegos as Victim's primary assailant. D.L. also identified Gallegos later that evening at the police station.

¶14 After D.L.’s identification, the police placed Gallegos in handcuffs and read him his Miranda rights. Gallegos waived his rights and spoke to the officers. An officer testified that Gallegos explained the blood on his hands as a vestige of having been "boxing with a homey" earlier in the day. Gallegos explained his torn pants and scraped hands and knees as the result of having tripped while running from the police prior to having arrived at the park.³

¶15 The following day, Victim, from his hospital bed, was shown a photo lineup of six men. From that group of photographs, Victim identified Gallegos as his attacker.

¶16 DNA tests showed that the blood found on Gallegos, Gallegos's clothes, and the knife Gallegos was carrying in his back pocket was Victim's.

¶17 The State charged Gallegos with, among other things, attempted murder.⁴

¶18 Gallegos had multiple court-appointed attorneys and at one point was self-represented.⁵ Gallegos's first trial attorney saw the need to have the jury hear from an expert on eyewitness identifications and moved the court to appoint Dr. Julie Buck as an expert on the topic. The court obliged. Dr. Buck prepared a report on problems that can arise when eyewitnesses are asked to identify specific suspects. Dr. Buck also discussed issues with the line-up procedures police employed that, she opined, biased the process against Gallegos. The attorney who secured Dr. Buck's appointment ceased representing Gallegos.

¶19 Seven months before trial, the district court appointed the attorney who would represent Gallegos at trial. According to an affidavit Gallegos submitted in support of his rule 23B motion, roughly three weeks before trial, trial counsel visited Gallegos at the prison. During that visit, Gallegos asked trial counsel about Dr. Buck. Trial counsel had previously told Gallegos that he did not know that Dr. Buck had been retained. However, on the day of this visit, trial counsel told Gallegos that he had read Dr. Buck's report and had concluded that her testimony would not be helpful.

¶20 At trial, the State introduced the testimony of a number of witnesses to the attack, including Victim, D.L., N.G., K.C., and R.S. Victim and D.L. both testified that they identified Gallegos as the assailant. As he had informed Gallegos, trial counsel elected not to put on any expert testimony regarding the limitations of eyewitness identification.

¶21 The jury convicted Gallegos on all seven counts. Applying gang and weapons enhancements, the district court sentenced Gallegos to serve nine years to life for the attempted murder conviction.⁶

¶22 Gallegos appealed, arguing, among other things, that his trial counsel rendered ineffective assistance. Gallegos moved under Rule of Appellate Procedure 23B to supplement the record with facts concerning his trial counsel's alleged ineffective assistance. In addition to his own affidavit, Gallegos supported his motion with two others.

¶23 Michael D. Bouwhuis, trial counsel's supervisor, averred that while trial counsel was representing Gallegos, he was also assisting Bouwhuis in a capital murder case. Bouwhuis assigned trial counsel to interview and prepare trial subpoenas for twenty witnesses. Trial counsel assured Bouwhuis that he was performing his assigned tasks. However, Bouwhuis later learned that trial cou...