State v. Alzaga

• Decision Date: 29 May 2015
• Docket Number: No. 20120742–CA.,20120742–CA.
• Citation: 2015 UT App 133,352 P.3d 107
• Parties: STATE of Utah, Plaintiff and Appellee, v. Cristian A. ALZAGA, Defendant and Appellant.
• Court: Utah Court of Appeals

352 P.3d 107

2015 UT App 133

STATE of Utah, Plaintiff and Appellee

v.Cristian A. ALZAGA, Defendant and Appellant.

No. 20120742–CA.

Court of Appeals of Utah.

May 29, 2015.

Samuel P. Newton, Attorney for Appellant.

Sean D. Reyes and Jeanne B. Inouye, Salt Lake City, Attorneys for Appellee.

Judge J. FREDERIC VOROS JR. authored this Opinion, in which Judges GREGORY K. ORME and STEPHEN L. ROTH concurred.

Opinion

VOROS, Judge:

¶ 1 Cristian A. Alzaga was convicted of murder, aggravated assault, and aggravated robbery. All the crimes occurred in connection with a drug deal under a bridge on the Jordan Parkway. The State claimed that the victims were at the bridge to sell marijuana; Alzaga claimed they were there to buy heroin. On appeal Alzaga challenges certain of the trial court's evidentiary rulings, its instructions to the jury on self-defense, and its denial of his motion for a new trial. He also contends that his trial counsel rendered constitutionally ineffective assistance. We affirm.

BACKGROUND¹

The Drug Deal

¶ 2 Hannah and her boyfriend, Mark,² lived together in a tent near the Jordan River Parkway Trail in Midvale, Utah. The two scraped by; each sold marijuana, while Mark received food stamps and donated his blood plasma.

¶ 3 In May 2010, one of the couple's regular customers contacted Hannah to purchase an ounce of marijuana. Hannah and Mark agreed to meet the customer for the sale at a spot where they had met before, on a footbridge by the Jordan River near 3900 South (the Footbridge). When Mark and Hannah arrived for the sale, they crossed the Footbridge and spotted the customer. With him was “a bigger guy” who acted as a lookout. Mark also spotted a third man talking on a cell phone and pacing back and forth on a larger bridge spanning the Jordan River nearby (the Jordan River Bridge). Mark described this third man, the defendant, as having spiked black hair, “kind of crown shaped,” and wearing a white shirt. Mark did not immediately connect Alzaga with the customer and the lookout. However, Mark felt concerned that the lookout had accompanied the customer to the drug deal; Mark and the customer “had kind of an agreement that you didn't bring anybody with you when you came to buy marijuana,” because “anything could happen when you meet new people.” But Hannah felt comfortable because she had known the customer for “[p]retty much her entire life.”

¶ 4 Mark and Hannah decided to go ahead with the deal. The customer asked Mark and Hannah to weigh the marijuana, and Hannah climbed down onto a ledge under the Footbridge to do so. The customer stood against a post above Hannah, and the lookout made “sure that nobody was coming while [Hannah] weighed the marijuana.” Alzaga approached, still talking on his cell phone. When he and the customer argued briefly, Alzaga pulled what appeared to be a gun and pointed it at the customer. The customer looked under the Footbridge at Hannah; Alzaga then pointed the gun at her and said, “You give me all your shit.”

The Stabbings

¶ 5 Hannah backed up under the Footbridge. Alzaga jumped down after her, and Mark followed. Mark saw that Alzaga and Hannah “were kind of close together” and saw Hannah jump back from Alzaga “like she was trying to get away from something.” Mark then grabbed Alzaga by the shoulder from behind. Alzaga wheeled around, pointed the gun at Mark, and said, “You can give me all your shit, too.” Mark thought that the gun looked fake and batted it away from Alzaga.³ But Alzaga also had a knife. Alzaga slashed at Mark, who jumped back and yelled at Hannah to run. Hannah walked slowly up the hill and said that she had been stabbed. Both Alzaga and Mark ran toward Hannah. Mark then heard the customer yell, “Forget it. It's done. Let's go. Let's go. Let's go.” The customer and the lookout fled the scene toward 3900 South.

¶ 6 Alzaga reached Hannah before Mark did and began pulling at her purse. Mark caught up to Hannah and Alzaga and stepped between them to shield Hannah from Alzaga. Mark told Hannah to let go of the purse. As Mark and Alzaga “struggled over the purse” Alzaga slashed at Mark and struck him in the eye. Alzaga had wounded both Mark and Hannah; Mark's eye was swollen shut, and Hannah told Mark that she could not breathe. Mark then relinquished the purse to help Hannah, and Alzaga took off running. Hannah threw away the marijuana she had in her pocket and lay down on the ground, struggling to breathe. Mark grabbed Hannah's phone and dialed 911. Hannah, eighteen years old, died at the hospital of a stab wound to the abdomen.

Alzaga's Version of Events

¶ 7 Alzaga described quite a different encounter. He maintained that he did not kill Hannah and that he stabbed Mark in self-defense. Alzaga testified that he, the customer, and the lookout agreed to meet Mark and Hannah at the Footbridge to sell them a large amount—fifty-two grams—of heroin. The three drove together to the Jordan River Parkway Trail, walked to the Footbridge, and after meeting up with Mark and Hannah, Alzaga weighed a plastic-wrapped package of heroin the size of a tennis ball and worth $6,000. After Alzaga confirmed its weight, he claimed that Mark suddenly “just grab[bed] the ball of heroin” and handed it to Hannah, who “start[ed] running.”

¶ 8 Alzaga then testified that Mark began punching him on the left side of his face and neck. As Mark assaulted him, Alzaga observed the customer running across the Footbridge and “noticed [the lookout] chasing after [Hannah].” Alzaga told the jury that he was “high on [e]cstasy” and “just felt terrified” by Mark's assault. Alzaga absorbed Mark's punches for a time but then started to fall over, and “that's when” Alzaga “felt the knife” in his pocket. Alzaga then pulled the knife out of his pocket, and as Mark punched him, he “countered back with a right hook” and slashed Mark in the eye. Mark backed away while the lookout returned with Hannah's purse in hand. The lookout gave the purse to Alzaga, and both fled the scene.

¶ 9 Alzaga was convicted of murder, a first-degree felony, Utah Code Ann. § 76–5–203(3) (LexisNexis Supp.2010); aggravated robbery, a first-degree felony, id. § 76–6–302 (LexisNexis 2008); and aggravated assault, a second-degree felony, id. § 76–5–103. He appeals.

ISSUES

¶ 10 First, Alzaga contends that the trial court erroneously admitted Mark's testimony that Hannah had a life philosophy of peace and nonviolence and that she consumed no drugs other than marijuana.

¶ 11 Second, Alzaga contends that the trial court erroneously excluded evidence pertaining to the details of Mark's prior drug convictions.

¶ 12 Third, Alzaga contends that the trial court erroneously admitted a prison recording of a conversation between Alzaga and his girlfriend during which he made derogatory remarks about Hannah and did not deny killing her.

¶ 13 Fourth, Alzaga contends that the trial court erroneously admitted photographs of the crime scene taken in February 2012 that did not accurately reflect the view of the scene when the crimes occurred in May 2010.

¶ 14 Fifth, Alzaga contends that the trial court erroneously instructed the jury on the standard for self-defense.

¶ 15 Sixth, Alzaga contends that his trial counsel ineffectively failed to present expert testimony challenging Mark's eyewitness identification of him.

¶ 16 Finally, Alzaga contends that the trial court erroneously denied his motion for a new trial, which he made on the basis of newly discovered exculpatory evidence.

ANALYSIS

I. Hannah's Character for Peacefulness

¶ 17 Alzaga contends that the trial court “abused its discretion when it admitted evidence of [Hannah's] character for peacefulness and aversion to serious drugs.” Alzaga argues that this evidence was inadmissible character evidence under rules 404 and 405 of the Utah Rules of Evidence. In the alternative, Alzaga contends that the trial court plainly erred in admitting the evidence. The State counters that Alzaga inadequately briefed his plain error claim and that, in any event, he fails to carry the burden of persuasion because the error, if any, was neither obvious nor prejudicial.

¶ 18 “Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait.” Utah R. Evid. 404(a)(1). Rule 404(a)(2) sets out exceptions to this general prohibition that apply to defendants and alleged victims in criminal cases:

(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;

(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

i. offer evidence to rebut it; and

ii. offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

Id. R. 404(a)(2). Evidence of a person's character may be introduced by opinion or reputation testimony:

When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

Id. R. 405(a).

¶ 19 At trial, Mark testified that Hannah was “just like kind of a modern-day hippie”; that she “smoked weed, yes, but that's the only drug she did”; and that she did not “even want to try anything else like hallucinogens, nothing else like that.” Mark also testified that Hannah “loved the peace sign” and that she believed in the philosophy of “PLUR ... peace, love, unity, and respect.” Mark added that he had a peace-sign tattoo on his shoulder and that “[e]very time [he] would find something with a peace sign on it, [he] would buy it for her.”

¶ 20 Alzaga argues that Mark's...