State v. Gallegos

• Decision Date: 04 October 2018
• Docket Number: No. 20150688-CA,20150688-CA
• Citation: 437 P.3d 388
• Parties: STATE of Utah, Appellee, v. John E. GALLEGOS, Appellant.
• Court: Utah Court of Appeals

437 P.3d 388

STATE of Utah, Appellee,

v.John E. GALLEGOS, Appellant.

No. 20150688-CA

Court of Appeals of Utah.

Filed October 4, 2018

Opinion

MORTENSEN, Judge:

¶1 A group was busy spray-painting a wall when Victim interrupted their evening activity. Upset by the intrusion, one of the group members stabbed Victim twice in the chest and once in the back, while others threw rocks and beer cans and unleashed two dogs to attack Victim. Police, with the help of Witness, later identified defendant John E. Gallegos as the one who stabbed Victim and arrested him that night. Upon arresting Gallegos, police found blood on Gallegos's shirt, pants, and ear, as well as on a folding knife in his pocket. Victim survived the attack and, after viewing a photo lineup at the hospital, identified Gallegos as the person who stabbed him. While in custody at the police station, Gallegos kicked and spit at a police officer and also used a chair to smash a hole in a wall.

¶2 For his involvement in the stabbing, Gallegos was convicted of attempted murder, possession of a dangerous weapon by a restricted person, using a dangerous weapon in a fight, graffiti, and consumption of alcohol by a minor (the Stabbing Charges). For his actions at the police station after his arrest, Gallegos was also convicted of assault by a prisoner, propelling a substance or object at a peace officer, and damaging a jail (the Police Station Charges). He appeals, arguing that (1) trial counsel was ineffective for not moving to sever the Stabbing Charges and Police Station Charges and (2) police lacked reasonable suspicion to stop him the night he was arrested. Gallegos also seeks remand pursuant to rule 23B of the Utah Rules of Appellate Procedure. We deny the rule 23B motion and otherwise affirm.

BACKGROUND

¶3 Victim's RV, in which he was staying, had broken down. With the permission of a library security officer, Victim parked the RV at the library lot for the night. Later that evening, Victim heard someone using a spray can outside. Intending to pay the vandals twenty dollars to leave his RV alone, Victim left his RV and approached the bathroom of a nearby park, where he saw someone spray painting the wall.

¶4 As Victim approached, a group of men emerged from behind the bathroom and surrounded him. Gallegos began yelling at Victim and threw what Victim thought were punches at his chest. But when Victim suddenly began struggling to breathe, he realized he had been stabbed.

¶5 The other men joined in the attack, throwing rocks, cans, and other debris. As Victim tried to escape, a large rock hit him on the head. Someone in the group yelled "Attack," and two dogs lunged at Victim, biting his leg. Victim continued to retreat, dragging along the dog that had clamped down on his leg. Gallegos again stabbed Victim, this time in the back. Just before losing consciousness, Victim crawled to a nearby truck and asked for help.

¶6 Witness, who was one of the truck's occupants, testified that he saw a group of men and dogs chasing Victim. Witness saw Gallegos standing roughly ten feet in front of the group and swinging something at Victim. The rest of the group stood back and threw cans at Victim.¹ Witness exited the truck and confronted Gallegos. Witness further testified that Gallegos approached Witness with something shiny in his hand. Gallegos came within ten feet of Witness and yelled, "You want some too homey? Get the fuck back in the truck." The attackers fled when they realized one of the truck's passengers had called the police. Witness tended to Victim until the police arrived.

¶7 The police first interviewed another witness (Bystander) who had been at the park. Bystander reported seeing several Hispanic men wearing white jerseys with dark numbers run toward a nearby dead-end street, where a Toyota Camry shortly emerged and headed away from the scene. After reporting this information to the police, Bystander saw the Camry return to the same street. Nearby officers were alerted to look for Hispanic men, wearing white jerseys or shirts, in a Camry on a dead-end street. Only later did the police receive a more detailed description from Witness—who had stood ten feet away from and was threatened by Gallegos—that Gallegos was actually wearing dark clothes.

¶8 An officer arrived at the dead-end street and saw a parked Camry with a man, Gallegos, wearing dark-colored clothes, standing nearby with two women. Without activating the patrol car's overhead lights, the officer parked and got out. The three people near the Camry began walking away and were about to go behind a house. The officer, with his flashlight on, yelled, "Hey, come back and talk to me." The officer testified that he yelled so Gallegos could hear him but did not command Gallegos to comply. Gallegos returned to speak with the officer.

¶9 Not realizing that Gallegos was, in fact, the suspect in the stabbing, the officer asked Gallegos what he was doing in the area. Gallegos responded that he was on his way to a friend's house. The officer noticed tattoos on Gallegos's hands and asked if he was in a gang. Gallegos told the officer that he used to be a member of the South Side Colonia² Chiques. When another officer arrived, the first officer ran a warrants check on Gallegos. The warrants check confirmed Gallegos's membership in the South Side Colonia Chiques. The officer asked Gallegos if he was carrying any weapons, and Gallegos answered that he was not. Responding to a request from the officer, Gallegos agreed to be searched. The officer found a five-inch folding knife in Gallegos's back pocket. At the time, the officer did not notice any blood on the knife, which was folded closed. Having determined during their discussion that Gallegos was intoxicated, the officer said, "Being in your state right now, being a gang member, you probably shouldn't be carrying a knife." Gallegos responded, "Well, you can keep it." The officer offered to hold the knife at the police station until Gallegos was sober, whereupon Gallegos could pick it up. Gallegos agreed and left in the direction he had been walking earlier.

¶10 Having concluded his encounter with Gallegos, the officer drove to the park where the stabbing occurred. There, the officer learned from other officers that the attacker was, in fact, a member of the South Side Colonia Chiques gang and wore dark clothing instead of white. Realizing that Gallegos matched the updated description, the officer inspected Gallegos's knife more closely, unfolding it and finding blood on the blade. The officer reported his encounter, and Gallegos was apprehended shortly thereafter.³

¶11 Upon arresting Gallegos, the officers found drops of blood by Gallegos's ear and on his hands, along with blood stains on his shirt and pants. He also had blue residue on his hands. Gallegos explained that he had been boxing that day and had also fallen while running away from police earlier that night. While all of the blood samples were not tested, lab results showed that the blood on Gallegos's knife, shirt, pants, and ear matched Victim's DNA.

¶12 While in custody at the police station, Gallegos noticed photographs of fellow gang members on the wall. Gallegos became angry and, while in handcuffs, started to walk away from officers. An officer caught him at the door, and Gallegos kicked the officer in the leg before being subdued. Officers led Gallegos to an interview room where he spit in an officer's face. Alone in the room, Gallegos began yelling and banging on the walls. Officers returned to the room to find chairs overturned and a fresh hole in the wall.

¶13 The next day, officers went to the hospital to interview Victim about the stabbing and to show him a photo lineup. Victim had not taken medication for five hours and confirmed to the officers that he was thinking clearly during the interview. Based on the photo lineup, Victim identified Gallegos as the man who stabbed him.

¶14 The State charged Gallegos for his involvement in the stabbing and for his violent behavior at the police station. The case proceeded to trial, and Gallegos moved to suppress evidence stemming from the encounter Gallegos had with the officer on the dead-end street, arguing that the officer lacked reasonable suspicion to stop Gallegos.

¶15 The trial court ruled that Gallegos's conversation with the officer was a consensual encounter and thus did not require the officer to have reasonable suspicion. In doing so, the court acknowledged that "under certain circumstances an officer yelling at someone to stop ... immediately conveys a sort of Level 2 ... scenario," but that an encounter with police is "entirely fact intensive and [yelling] hey come back and talk to me isn't necessarily stop, police." Rather, it "actually invites a voluntar[y] return." The court concluded,

[W]hen you look at the entire circumstances in addition to [the police officer's statement to Gallegos], that he was talked to, he wasn't placed in custody, there weren't lights going on, there weren't sirens, he didn't have his gun drawn, there weren't other officers around, [and] his ingress and egress wasn't blocked by a show of force ... this was a consensual encounter ... even to the point where [Gallegos] allows the officer to search him.

The court further reasoned that it was "consensual to the point where the officer established enough of a rapport with [Gallegos] to say you shouldn't be carrying this knife in your condition and ... instead of arresting him for possession of a weapon while intoxicated or something like that he gave him the option of just coming down to the police station the next day and picking it up." And the fact that Gallegos told the officer to just keep the knife, in the view of the court, "convey[ed] nothing more than a consensual conversation between the two individuals."

¶16 Prior to trial, Gallegos personally addressed the court regarding issues he was having with his trial counsel and his desire to sever the charges against him....