State v. Bermejo

• Decision Date: 22 October 2020
• Docket Number: No. 20180985-CA,20180985-CA
• Citation: 476 P.3d 148
• Parties: STATE of Utah, Appellee, v. Oscar BERMEJO, Appellant.
• Court: Utah Court of Appeals

476 P.3d 148

STATE of Utah, Appellee,

v.Oscar BERMEJO, Appellant.

No. 20180985-CA

Court of Appeals of Utah.

Filed October 22, 2020

Wendy Brown, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

Judge Kate Appleby authored this Opinion, in which Judges Gregory K. Orme and Ryan M. Harris concurred.

Opinion

APPLEBY, Judge:

¶1 Based on his involvement in a gang-related drive-by shooting, Oscar Bermejo was convicted of, among other offenses, aggravated assault and felony discharge of a firearm. He now challenges his convictions, contending that his counsel was constitutionally ineffective for a variety of reasons. He also contends that the district court erred by allowing the jury to have access to certain evidence during deliberations and by denying his mistrial motion based on the prosecutor's improper comments. We affirm.

BACKGROUND¹

¶2 On the afternoon of December 28, 2016, neighbors observed a black BMW² slowly drive more than once past the house of a family (Family) of known Sureños gang members.³ As it passed, one of the neighbors noted the BMW's license plate number.

¶3 Between the BMW's passes, a sport utility vehicle (SUV) stopped in front of the Family's house. The SUV's driver exited the car with one child, while three other children, including the nine-year-old victim (Victim), remained in the SUV. Shortly after, the BMW passed again and stopped. Someone exited the passenger side of the BMW and fired gunshots toward the SUV. The passenger re-entered the BMW, and it drove away.

¶4 One of the shots struck Victim in the head. He was airlifted to a hospital for surgery and survived.

¶5 Shortly after the shooting, police arrived on the scene, and the Family's neighbor gave police the BMW's license plate number, which matched that of a black BMW registered to Bermejo. Approximately one hour after the shooting, a Salt Lake City resident reported to police that a black BMW had been abandoned near his house. At trial, one of the investigating detectives testified that cell phone data indicated that approximately twenty-five minutes after the shooting, Bermejo's phone had been in the area where the car was found.

¶6 Police located Bermejo the morning after the shooting and arrested him. In the police interview, Bermejo denied having been in Salt Lake City at all on the day of the shooting and stated that his car went missing from Ogden where he left it at his friend's house, which the friend alerted him to between 1:00 p.m. and 2:00 p.m. the day of the shooting.

¶7 The State charged Bermejo with felony discharge of a firearm with serious bodily injury, a first-degree felony; felony discharge of a firearm, a third-degree felony; obstructing justice, a second-degree felony; aggravated assault, a second-degree felony; and aggravated assault, a third-degree felony.

¶8 The case proceeded to a jury trial, but the State filed a motion in limine⁴ seeking permission to offer evidence under rule 404(b) of the Utah Rules of Evidence of other bad acts Bermejo had committed. The State intended to offer evidence of Bermejo's "gang membership and the gang connections of persons in the victim's social network, as well as gang practices culturally relevant to the current case," including evidence of two gang-related jail incidents involving Bermejo. The State asserted the evidence would be offered for the proper non-character purposes of proving Bermejo's intent, motive, knowledge, lack of mistake, and modus operandi; the evidence was relevant; and the evidence was not unfairly prejudicial. The State also filed notice that it would present an expert (Expert) to testify about "gang culture, gang related activities and local gang rivalries."

¶9 Bermejo acknowledged that, in general, the gang evidence was relevant to the State's theory of the case and was offered for a proper non-character purpose. But before trial, he expressed concerns about having an expert witness testify regarding specific gang-related incidents, arguing that such testimony would be inadmissible hearsay. The district court also voiced its concerns about Expert testifying to specific incidents but reserved ruling on the issue until trial.

¶10 At trial, the State advanced the theory that Bermejo was a party to the shooting, and the jury was instructed accordingly. For proof, the State relied on, among other things, cell phone data, the undisputed presence of Bermejo's car at the site of the shooting, Bermejo's membership in and identity with the Norteños gang, and the history between the local Norteños and the Family—a history that involved repeated shootings and deaths among members of the local Norteños and Sureños between October 2016 and September 2017. In contrast, the defense advanced the theory that Bermejo was not involved in the shooting itself, even if his car was. Bermejo did not dispute that he was a member of the Norteños gang or the fact that his car was used in the shooting, but he asserted that two senior gang members took his car for the shooting and afterward left him to deal with the repercussions of appearing to be guilty because his car was involved. The defense also characterized as socially motivated Bermejo's choice to join and his involvement in the gang, and asserted that, unlike most gang members, Bermejo had no desire to engage in unlawful conduct.

¶11 During the third day of trial, the State called several witnesses to testify about Bermejo's affiliation with the Norteños gang and about two specific incidents that occurred at the jail after Bermejo had been taken into custody. Expert was also called to testify, and he testified about the history between the local Norteños and the Family and about gang culture in general. Bermejo did not object to the testimony on these subjects.

¶12 After the State rested its case, Bermejo testified as the only defense witness. He said that after taking his girlfriend (Girlfriend) to work on the morning of the shooting, he was "just chilling" at a friend's house in Taylorsville when two senior Norteños members "just kind of showed up" and "start[ed] asking" to "see the keys" to his car. Because they "kept on insisting and insisting to the point where it kind of got threatening," Bermejo acquiesced. The two gang members took his car and returned it about an hour later, telling Bermejo, "If I were you, I wouldn't drive your car for a while" because they "just hit a scrap."⁵ Bermejo understood this to mean that they had "just shot a Sureños." At that point, Bermejo and his friend drove the car to a house the friend knew of in Salt Lake City and parked it at the "back of the street" so that "it wouldn't be noticeable," and then Girlfriend picked up Bermejo. Police arrested him the next day.

¶13 Bermejo admitted that at the time of the shooting, he was a member of the Norteños gang and he had joined at the age of thirteen "just to be accepted and just fit in" with his friends. He denied having a desire to "move up and be part of the management of the gang." He also denied knowing the Family or being involved in the shooting. And he admitted to not being completely truthful with the police in his initial encounter with them the day after the shooting, but explained that, at the time, he believed dishonesty was "safer" than being truthful about the gang members.

¶14 In rebuttal, the State recalled a detective (Detective) involved in the investigation and, among other things, questioned Detective about his determination during the investigation that Girlfriend might have been "an important witness." Detective testified that despite being subpoenaed, Girlfriend did not appear in court the previous day and he spent the morning "on a manhunt in a sense" trying to find her, but she was "gone." The State stipulated there was no evidence that Bermejo directly contacted Girlfriend to tell her not to come to court. But during cross-examination, Detective suggested that even though there was no evidence in the recorded jail phone calls that Bermejo directly told Girlfriend not to come to court, "that doesn't mean he doesn't have an advocate working for him." In response, trial counsel asked, "That's pure speculation, though, isn't it?" On redirect, the State asked Detective whether it was "actually just speculation," and trial counsel objected to the question as being "beyond rebuttal." The court sustained the objection. Nevertheless, the prosecutor pressed, stating that trial counsel "opened the door" and although trial counsel said it was "just speculation[,] ... he knew well that it's not just speculation."

¶15 Later, outside the presence of the jury, the prosecutor acknowledged his accusation about what trial counsel knew was "inaccurate" and said he believed he "need[ed] to correct that for the jury." He suggested either giving the jury an instruction or simply allowing him to tell the jury that his statement gave a mistaken impression about what trial counsel knew. Trial counsel declined the offer for a curative instruction and instead moved for a mistrial, expressing concern that correcting the statement would "draw[ ] attention to the concept that there is some evidence there" when "there hasn't been any evidence presented," and stating that either way "it's a situation that can harm the defense." The court denied the motion, reasoning that "there is an opportunity to correct the record" and to give a curative instruction and, in its view, the statement was "inadvertent" and "pretty fleeting" and was not "an incident that would have called the jury's attention." The court also noted trial counsel indicated he "maybe" intended to address the issue in closing argument in lieu of a curative instruction.

¶16 Finally, after closing arguments, the court addressed whether during deliberations the jury would have access to a video of Bermejo's police interview. Trial counsel argued that under State v. Cruz , 2016 UT App 234, 387 P.3d 618, the jury should not have access to the video because it "put...