State v. Reyos

402 P.3d 113

STATE of Utah, Appellee,

v.Frank Paul REYOS, Appellant.

No. 20150338-CA.

Court of Appeals of Utah.

Filed July 28, 2017

Herschel Bullen, Salt Lake City, Attorney for Appellant.

Sean D. Reyes, Salt Lake City, and William M. Hains, Attorneys for Appellee.

Judge Kate A. Toomey authored this Opinion, in which Judges Stephen L. Roth and Michele M. Christiansen concurred.

Opinion

TOOMEY, Judge:

¶ 1 A sixteen-year-old boy (Victim) was shot and killed, and his body was left in a ditch by people he considered friends. In connection with Victim's death, Frank Paul Reyos was convicted of aggravated murder and possession or use of a firearm by a restricted person. He appeals his convictions, and we affirm.

BACKGROUND

¶ 2 Late one Saturday night,¹ Mary² texted Victim from a party at an East Side Salt Lake City residence to tell him she was being harassed about a tattoo identifying her as a West Side resident. At the time he received this text, Victim was driving around with Reyos and Sarah. They drove to the party, and Sarah remained in the car while Reyos and Victim got out. A fight erupted in front of the house, and as many as twenty gunshots were fired. When Sarah heard the shots and saw Victim run past her car, she drove closer to the house to retrieve Reyos, who was surrounded and being beaten by several people. Reyos was able to escape and get into the car. Sarah suggested they try to find Victim, but Reyos responded, "F him. He left me."

¶ 3 Sarah and Reyos went to a motel where Sarah had been staying, and she helped him clean up. After that, Sarah drove Reyos to a friend's house and then returned to the motel. Around 7:00 a.m. on Sunday morning, Victim arrived at the motel and a nervous Sarah cautioned him to "lay low for a little while" because Reyos was "upset" that Victim had abandoned him during the fight. She repeated the warning because Victim did not appear to take it seriously, ominously adding that Reyos was "not just going to forget about it." Victim remained unconcerned, explaining he ran away because his gun had jammed and he "didn't want those fools to take it away." Victim called Mary around 10:00 a.m. to ask for a ride home, but Mary put him off.

¶ 4 Around midday, Victim was still at the motel when Reyos and Michael arrived by car. Sarah was nervous and scared that something might "go down." Reyos and Victim argued briefly but then acted as though they were "cool." After the four smoked methamphetamine, Reyos announced that he, Victim, and Michael would go to a shooting range to figure out what was wrong with Victim's gun. Reyos did not want Sarah to accompany them but relented after Sarah insisted on going. Sarah did this because she "had a bad feeling" and felt she needed to accompany them. They left the motel, with Michael at the wheel, but instead of going to a shooting range, they drove around, ostensibly looking for something to steal. Reyos eventually directed Michael to pull onto a dirt alley running through the middle of a block in the Sugar House neighborhood of Salt Lake City.

¶ 5 Reyos and Victim emerged from the car while Michael remained behind the wheel. Sarah tried to follow, but Reyos prevented her from getting out. Victim and Reyos walked between two fences concealed by a grove of trees and separated by a small, shallow ditch. There, Reyos put a gun to Victim's head and shot him, leaving Victim lying in the ditch. Sarah did not see Reyos shoot Victim, but she heard the gunfire and knew what had happened. A smirking Reyos returned to the car, and the three left the scene, eventually parting company with one another.

¶ 6 Sarah was afraid of Reyos and attempted to avoid him, but Reyos nevertheless managed to speak to her, directing her not to disclose what happened and offering a story she could tell people if questioned. When the police interviewed Sarah about Victim's death, she initially denied knowing anything, then gave the story Reyos suggested, and finally, about two weeks later, told them Reyos had killed Victim. Sarah testified she finally disclosed the real story because lying about it was "eating at" her and causing her nightmares. She also testified she "couldn't lie anymore" and wanted closure for Victim's family.

¶ 7 During an interview with police, John, an acquaintance of Reyos, stated he had a conversation in which Reyos admitted killing Victim. Reyos told John that he shot Victim because Victim "set him up" the night of the fight. At the conclusion of the interview, John signed a document attesting to the veracity of his statement. But at trial, John testified he had no recollection of making the statement to the police or signing the document, even after listening to a recording of the interview the week before trial. He admitted, however, that the signature on the document looked like his and the voice on the recording sounded like him. John also testified he had no recollection of the conversation with Reyos. After John finished testifying, the State played a recording of John's police interview and asked the interviewing detective about it. Although defense counsel had cross-examined John about the interview, they chose not to ask the detective any questions about it.³

¶ 8 John's girlfriend testified that although she had not been present when John signed the written statement, the signature looked like his. The lead detective, however, testified that John's girlfriend was present when John signed the statement, as were three other people. Reyos objected to the admission of any of John's statements to the police, but the trial court overruled the objection on the ground that they were admissible as non-hearsay under rule 801 of the Utah Rules of Evidence.

¶ 9 After the jury determined Reyos intentionally or knowingly caused Victim's death, the State submitted evidence that Reyos had previously been convicted of aggravated robbery. In light of the aggravating offense, the jury convicted Reyos of aggravated murder.⁴ The jury also convicted Reyos of possession or use of a firearm by a restricted person.

¶ 10 The trial court sentenced Reyos to life in prison without the possibility of parole for the aggravated murder and a consecutive term of one to fifteen years in prison for possession of a dangerous weapon. Reyos filed a timely appeal.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Reyos raises three issues on appeal but pursues only two of them: whether the trial court erred in admitting evidence of John's police interview in violation of Reyos's constitutional right to confrontation and whether the applicable sentencing scheme is constitutional.⁵ "Whether testimony was admitted in violation of [Reyos's] right to confrontation is a question of law," which we review for correctness. State v. Calliham , 2002 UT 87, ¶ 31, 57 P.3d 220. The second issue was not preserved, but Reyos asserts this court may consider it under the exceptional circumstances exception to the preservation requirement.

¶ 12 The State contends the second issue does not present exceptional circumstances, and therefore we should decline to review it. In the State's view, Reyos cannot make an exceptional circumstances claim because he could have raised the issue below but simply chose not to pursue it. The State relies on State v. Holgate , 2000 UT 74, 10 P.3d 346, in which our supreme court stated, "[A] defendant should not be permitted to forego making an objection with the strategy of enhanc[ing] the defendant's chances of acquittal and then, if that strategy fails, ... claim[ing] on appeal that the Court should reverse." Id. ¶ 11 (alterations and omission in original) (citation and internal quotation marks omitted).

¶ 13 Irrespective of the State's argument, under rule 22(e) of the Utah Rules of Criminal Procedure, "[t]he court may correct an illegal sentence, or a sentence imposed in an illegal manner, at any time." Utah R. Crim. P. 22(e) (2016). And, as our supreme court has explained, constitutional challenges to a defendant's sentence "fall[ ] within the narrow scope of rule 22(e)'s exception to the preservation of claims," so long as such challenges "attack the sentence itself and not the underlying conviction, and ... do so as a facial challenge rather than an as-applied inquiry." State v. Houston , 2015 UT 40, ¶¶ 16, 26, 353 P.3d 55 (footnote omitted). Reyos's constitutional claims meet that standard, and we therefore "treat [his] claims as if they had been preserved." See id. ¶ 16. Whether a statute is unconstitutional is a question of law reviewed for correctness. State v. Poole , 2010 UT 25, ¶ 8, 232 P.3d 519.

ANALYSIS

I. Admissibility of John's Out-of-Court Statements

¶ 14 Reyos contends the admission of John's out-of-court statements violated his Sixth Amendment right of confrontation because John had "absolutely no memory" of his interview with police. In Reyos's view, John's "amnesia" made him unavailable because defense counsel could not meaningfully examine him about his out-of-court statements. We disagree.

¶ 15 The Sixth Amendment's Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI. The Supreme Court discussed the contours of the Confrontation Clause in the landmark case Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and specifically addressed whether the rule it had articulated in Ohio v. Roberts , 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), strayed "from the original meaning of the Confrontation Clause." Crawford , 541 U.S. at 42, 124 S.Ct. 1354.

¶ 16 In Roberts , the Court held that out-of-court statements of unavailable witnesses may be admitted if they bear "adequate indicia of reliability." 448 U.S. at 66, 100 S.Ct. 2531 (internal quotation marks omitted). To meet the Roberts test, the evidence must "fall[ ] within a firmly rooted hearsay exception" or bear "particularized guarantees of trustworthiness." Id. ; accord Cra...