State v. Guerro
| Decision Date | 09 December 2021 |
| Docket Number | 20190534-CA |
| Citation | 502 P.3d 338 |
| Parties | STATE of Utah, Appellee, v. Omar GUERRO, Appellant. |
| Court | Utah Court of Appeals |
Emily Adams, Freyja Johnson, Salt Lake City, Cherise M. Bacalski, and Benjamin Miller, Attorneys for Appellant
Sean D. Reyes and Jeffrey D. Mann, Salt Lake City, Attorneys for Appellee
Opinion
¶1 Omar Guerro contends that he was falsely accused and wrongly convicted of murder and kidnapping—even though multiple witnesses identified him as perpetrating these crimes. He claims that the trial court erred in admitting certain text messages into evidence and that his counsel rendered ineffective assistance in several ways. We reject Guerro's claims of error and ineffective assistance, and we affirm his convictions.
¶2 Guerro had recently moved to Moab, Utah, and had become acquainted with six individuals: Rojo, Jaime, Jorge, BreeAnna, Kevin, and Melina. One day, Guerro and Jaime purchased beer and brought it to Rojo's residence at a trailer park. As the others began to arrive, the group began drinking the beer and smoking methamphetamine. Melina went to a bedroom in the back of the trailer, while the others remained in the front living area near the kitchen.
¶3 After Jorge arrived, the mood became "tense." Guerro accused Kevin and Rojo of stealing drugs, and he then produced a handgun and demanded everyone turn over their cell phones. When Guerro questioned Kevin and Rojo about the drugs and the whereabouts of Guerro's family, Rojo claimed that he did not "know anything."
¶4 Guerro responded by calling Rojo a "dog," demanding, and, "[T]ell me what you know about my family." Rojo continued to say he did not know anything and looked to the others "like [he was] asking for help." Guerro then shot Rojo in the chest, puncturing his lung and breaking a rib. BreeAnna, Rojo's girlfriend, went to Rojo's aid, reiterated that he did not know anything, and pleaded for his life. Guerro responded by hitting Rojo on the head with the gun and then shooting him in the head from about a foot away, killing him instantly. Then Guerro asked, Kevin ran toward the back of the trailer, while Jaime stopped Guerro from pursuing him by telling Guerro that he needed to leave.
¶5 Guerro told the group that they "should do what he would tell [them] to do if [they] didn't want to happen to [them] what had happened to Rojo." Jorge, Jaime, and BreeAnna followed Guerro's "orders" to leave the trailer with him and flee the trailer park in Jorge's vehicle.
¶6 Another resident of the trailer park (Neighbor) was outside when he heard the gunshots and commotion. He recognized the voices of BreeAnna, Jorge, and Jaime as they were leaving the trailer, but he did not recognize the voice of a fourth person. Neighbor went into the trailer—after Guerro and company had left—and saw Rojo's body. Neighbor then heard a car pulling up, and he ran out of the trailer and hid in his backyard.
¶7 After only a few minutes, Guerro and the others had returned to retrieve drugs and cell phones they left in the trailer. Guerro ordered Jaime to collect these items from the trailer. Jaime put all the cell phones and drugs in a backpack, except for his own phone, which he placed in his pocket. After Jaime returned from the trailer, the group left again with Jorge driving, Guerro in the front passenger seat, and BreeAnna and Jaime in the back. A short time later, Jaime "made a sign to [Jorge] with [his] eyes ... telling him to slow down," and he jumped out of the car. The remaining trio attempted to return to the trailer to retrieve personal items and get Kevin and Melina, but as they approached, Guerro saw the police were there and ordered Jorge to stop. Guerro pointed the gun at Jorge and BreeAnna, threatening the pair to stay with him, but BreeAnna managed to escape by running toward a nearby crowd.
¶8 Guerro then called Jaime for a ride, threatening Jaime's family if he failed to help. Jaime's father showed up and took them to Jaime's uncle's house. From there, Guerro, Jaime, and Jorge went on the run for several days through southern Utah and Arizona. Arizona law enforcement eventually found their car and attempted to stop it, but Guerro sped away with Jaime and Jorge. The car ran out of gas and crashed after a brief chase. Jorge and Jaime were apprehended and explained that Guerro had kidnapped them. Guerro was apprehended about a quarter-mile from the car. He had a spent shell casing in his pants pocket at the time of his arrest. Police also found a gun, which Guerro had tossed out of the car before the crash, and a bag containing drugs and money.
¶9 The firearm that the police found, a .40 caliber handgun, had a round chambered and several other unspent rounds in the magazine. The brass and aluminum casings of those rounds matched the ammunition—two bullets and two casings—that was collected at the scene of Rojo's murder. The casing found in Guerro's pocket was also .40 caliber. Guerro's fingerprint was recovered from the gun's magazine.
¶10 Guerro was charged with murder, three counts of aggravated kidnapping, and one count of possession of a firearm by a restricted person.
¶11 At trial, BreeAnna, Jorge, and Jaime, among others, testified for the State, recounting the events as described above. See supra ¶¶ 2–8. Kevin's preliminary hearing testimony was admitted by stipulation at the trial because he was unavailable to testify due to being incarcerated out of state. We highlight other testimony and evidence relevant to the issues on appeal as follows.
¶12 The State called Neighbor to testify. During cross-examination, Guerro's attorney (Counsel) asked Neighbor about texts that he had received from his sister. These text messages had been sent by Kevin to the sister shortly after the murder. The sister, in turn, sent screenshots of those text messages to Neighbor. Counsel asked Neighbor, "[A]t that time immediately after the offense in question, Kevin identified Jaime as the shooter?" Neighbor answered, On redirect, the prosecutor asked Neighbor about the text messages, and Neighbor said that he "didn't read over them, [but he] just got them and ... sent them to the detective." Neighbor again said that "Kevin was actually saying that [Jaime] was the shooter."
¶13 The prosecutor then sought to admit screenshots of the text messages that the sister received from Kevin and that she subsequently sent to Neighbor. The text messages were written in Spanish and translated by a court certified interpreter. Counsel promptly objected on the grounds that the text messages could not be authenticated and that Kevin was unavailable to testify about the messages. The prosecutor responded that the State had not intended to introduce the text messages, but it did so because the "defense is the one that brought this issue of these texts up." Because Counsel "raised an issue" that "Kevin identified Jaime as the shooter" in the text messages, the prosecutor argued that "[t]his is the response that we have, [screenshots] that were made that night in question." He added,
¶14 The court ruled "that as far as authentication goes, the evidence is that [Neighbor had] identified that those are in fact the messages that he received." The court later clarified that the text messages were admissible under rule 806 of the Utah Rules of Evidence. See Utah R. Evid. 806 ().
¶15 The prosecutor then reviewed with Neighbor the text messages in question. The prosecutor asked Neighbor about the following exchange between his sister and Kevin:
The prosecutor then asked Neighbor, "Is that correct?" And Neighbor testified, "Yes." Another text message exchanged between Kevin and the sister similarly indicated that the individual who killed Rojo was "[t]he one that was with [Jaime]" and that Kevin did not "know his [i.e., the shooter's] name." Nowhere in the text messages reviewed with Neighbor was there any indication that Kevin stated Jaime was the shooter.
¶16 The State also called a fingerprint examiner (Examiner) who had inspected the fingerprints on the gun. She testified that Guerro's fingerprint was found on the gun's magazine and that it was the only usable print on the gun; in other words, it was the only one that "contained enough detail" to make an identification.
¶17 On cross-examination, Counsel asked Examiner about DNA swabs she had taken from the gun, bullet casings, and a cell phone. She explained that part of her job was to collect possible sources of DNA from items, but the samples were sent to a different laboratory for analysis. Examiner further noted that while she was aware that a DNA report was completed, she did not "have any actual training on the analysis of the reports" or on making "conclusions or giv[ing] much detail regarding the nature of [DNA] reports." When Counsel began to ask about the DNA report, the State objected, asserting that the DNA report should not be admitted because there was nobody present to testify about it. Nevertheless, Counsel stated that he intended to "make [Examiner] familiar with [the DNA report] and see if she can answer some questions based on what [he] show[ed] her, since [the...
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