State v. Garrido

314 P.3d 1014

745 Utah Adv. Rep. 17

STATE of Utah, Plaintiff and Appellee,

v.Gustavo Demetrio GARRIDO, Defendant and Appellant.

No. 20100789–CA.

Court of Appeals of Utah.

Oct. 10, 2013.

Ronald Fujino, for Appellant.

John E. Swallow and John J. Nielsen, for Appellee.

Judge GREGORY K. ORME authored this Opinion, in which Judges CAROLYN B. McHUGH and J. FREDERIC VOROS Jr. concurred.

Opinion

ORME, Judge:

¶ 1 Defendant Gustavo Demetrio Garrido appeals from convictions for one count of assault, a third degree felony, seeUtah Code Ann. § 76–5–102 (LexisNexis 2012); five counts of domestic violence in the presence of a child (three third degree felonies and two class B misdemeanors), see id. § 76–5–109.1(2), (3); one count of aggravated burglary, a first degree felony, see id.§ 76–6–203; one count of aggravated kidnapping, a first degree felony, see id. § 76–5–302; one count of aggravated assault, a third degree felony, see id. § 76–5–103 (2008); ¹ and one count of violating a protective order, a class A misdemeanor, see id. § 76–5–108 (2012).² Defendant argues that (1) this court improperly remanded his case back to the trial court to supplement the record, (2) the trial court erred in determining that a witness was unavailable and subsequently violated his Sixth Amendment rights by permitting preliminary testimony to be admitted, (3) the trial court admitted irrelevant and prejudicial hearsay statements, (4) the trial court failed to adequately inquire into Defendant's request for new counsel, and (5) the trial court improperly instructed the jury by failing to merge some of the offenses. We affirm.

BACKGROUND ³

¶ 2 During a separation from his on-again-off-again girlfriend (Girlfriend), Defendant dated the primary victim (Victim) in this case. By December 2009, Victim was several months pregnant with Defendant's child, but Defendant had left Victim and moved back in with Girlfriend. Victim and Defendant remained in contact as Victim's due date approached. Shortly after Christmas, Defendant went to Victim's house, where she was home with her two children, and asked her for a key to her house. She refused, and Defendant “started punching her in the ribs and in the back of the head,” “over and over again.” Defendant told Victim to “stay put” or else he would “fuck the house up.” Victim called the police once Defendant left, but he could not be located. Victim suffered a head injury and bruises on her ribs and back.

¶ 3 About a week later, Defendant returned to Victim's house late at night. Using a key he took without permission during the previous incident, he entered the house and demanded to see Victim's phone, accusing her of having someone else staying in her home. When she refused to turn over her phone, he threatened to kill her and grabbed a knife from the kitchen. Holding the knife to her throat, he again threatened to kill her. Defendant “grabbed her by the hair[,] threw her to the ground,” and “began to jump up and down on her face,” hitting her repeatedly and continuing to threaten her with the knife. Defendant also punctured the back of her hand with the knife. After he finished beating her, Defendant stayed the night, refusing to let Victim out of his sight and telling her that he would kill her if she tried to leave. Victim's two children were in the home during the incident, as was another child. Early the next morning, Victim was able to flee to her neighbor's house, and the police were called. Defendant, however, fled before they arrived. The police officers found Victim with scrapes on her forehead, shoe marks on her face, a puncture wound on her hand, and bruises on her arm. Defendant was eventually located and charged with multiple offenses, and a preliminary hearing was scheduled in due course.

¶ 4 A protective order was entered against Defendant in favor of Victim. Despite this order, and shortly before the first scheduled preliminary hearing, Defendant called Victim from jail and told her that the case against him would be dismissed if no one showed up to testify against him. Victim failed to appear both at that scheduled hearing and the next one. She contacted the prosecutor by phone, insisting that she just wanted the charges to “go away” and stating, “I'm not going to testify if you can't guarantee that you won't put [Defendant] away for life. I don't want to be looking over my shoulder for the rest of my life.” The prosecutor used a speakerphone, and the conversation was overheard by a paralegal.

¶ 5 The third time the preliminary hearing was scheduled, Victim finally appeared. She testified that she did not remember many of the events that were the source of Defendant's charges, and the details she did remember often contradicted statements she had made to police. Defendant's counsel was given the opportunity to cross-examine Victim but elected not to do so.

¶ 6 Victim had been extremely uncooperative and had attempted to avoid service multiple times. Once the case moved to trial, the trial court granted the State's request to admit Victim's preliminary hearing testimony at trial should she fail to appear, as had been her frequent practice. The trial court agreed that under those circumstances it would also admit the paralegal's testimony regarding Victim's statements to the prosecutor. As expected, Victim was not present at trial when called to testify, and the trial court found that she was unavailable. However, just as her testimony from the preliminary hearing was about to be read aloud by a stand-in, Victim appeared in the back of the courtroom, shouted that she refused to testify, and fled from the courtroom. The stand-in then read Victim's preliminary hearing testimony.

¶ 7 Defendant was convicted by the jury and sentenced by the trial court. ⁴ This appeal followed, in the course of which we remanded for supplementation of the record.

ISSUES AND STANDARDS OF REVIEW

¶ 8 Defendant first argues that we improperly remanded this case for supplementation of the record under rule 11 of the Utah Rules of Appellate Procedure. A decision to remand for supplementation of the record is a matter entrusted to our sound discretion. See, e.g., Stone Flood & Fire Restoration, Inc. v. Safeco Ins. Co. of Am., 2011 UT 83, ¶ 22 n. 5, 268 P.3d 170;Pratt v. Nelson, 2005 UT App 541, ¶ 5 n. 2, 127 P.3d 1256.

¶ 9 Second, Defendant argues that Victim's preliminary hearing testimony was improperly admitted at trial. Defendant alleges that the trial court did not make adequate findings to support a determination that Victim was unavailable. “ ‘The failure to enter adequate findings of fact on material issues may be reversible error.’ ” Keene v. Bonser, 2005 UT App 37, ¶ 5, 107 P.3d 693 (alteration omitted) (quoting Reid v. Mutual of Omaha Ins. Co., 776 P.2d 896, 899 (Utah 1989)). “Failure of the trial court to make findings on all material issues is reversible error unless the facts in the record are clear, uncontroverted, and capable of supporting only a finding in favor of the judgment.” Stonehocker v. Stonehocker, 2008 UT App 11, ¶ 16, 176 P.3d 476 (citation and internal quotation marks omitted). Defendant also argues that the admission of Victim's preliminary hearing testimony violated his Sixth Amendment right to confrontation. Whether a defendant's confrontation rights have been violated is a question of law, reviewed for correctness. State v. Poole, 2010 UT 25, ¶ 8, 232 P.3d 519. Defendant also contends that his trial counsel was ineffective for failing to cross-examine Victim at the preliminary hearing. Ineffective assistance of counsel claims that are raised for the first time on appeal present questions of law, reviewed for correctness. State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶ 10 Third, Defendant argues that the trial court improperly admitted Victim's hearsay statements through a paralegal who worked in the prosecutor's office. “When reviewing rulings on hearsay, we review ‘[l]egal questions regarding admissibility ... for correctness, ... questions of fact ... for clear error,’ and the final ‘ruling on admissibility for abuse of discretion.’ ” State v. Jackson, 2010 UT App 328, ¶ 9, 243 P.3d 902 (alteration and omissions in original) (quoting State v. Rhinehart, 2006 UT App 517, ¶ 10, 153 P.3d 830). Defendant also contends that trial counsel was ineffective for not keeping this evidence out and for not requesting a limiting instruction focused on this evidence. As just noted, ineffective assistance of counsel claims raised for the first time on appeal present questions of law that we review for correctness. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.

¶ 11 Fourth, Defendant asserts that the trial court failed in its duty to adequately inquire into Defendant's request for new counsel. “Whether a trial court should have inquired further into a defendant's dissatisfaction with counsel is reviewed for an abuse of discretion.” State v. Hall, 2013 UT App 4, ¶ 8, 294 P.3d 632.

¶ 12 Finally, Defendant argues that the jury instructions were improper. His argument centers on questions related to merger. “Because merger questions are legal in nature, we review them for correctness.” State v. Lee, 2006 UT 5, ¶ 26, 128 P.3d 1179.

ANALYSIS

I. Remand and Record Supplementation

¶ 13 After Defendant filed his opening brief in this appeal, the State moved to stay the proceedings so that the record could be supplemented under rule 11 of the Utah Rules of Appellate Procedure. Rule 11 states:

If any difference arises as to whether the record truly discloses what occurred in the trial court, the difference shall be submitted to and settled by that court and the record made to conform to the truth. If anything material to either party is omitted from the record by error or accident or is misstated, the parties by stipulation, the trial court, or the appellate court, either before or after the record is transmitted, may direct that the omission or misstatement be corrected and if necessary that a...