State v. Guzman

Decision Date24 June 2004
Docket NumberNo. 20030019-CA.,20030019-CA.
Citation95 P.3d 302,2004 UT App 211
PartiesSTATE of Utah, Plaintiff and Appellee, v. Luis A. GUZMAN, Defendant and Appellant.
CourtUtah Court of Appeals

Heather Johnson, Salt Lake City, for Appellant.

Mark L. Shurtleff, Atty. Gen., and Jeffrey S. Gray, Asst. Atty. Gen., Salt Lake City, for Appellee.

Before BENCH, Associate P.J., ORME and THORNE, Jr., JJ.

OPINION

ORME, Judge:

¶ 1 Defendant appeals his conviction for aggravated robbery, a first degree felony, in violation of Utah Code Ann. § 76-6-302 (2003), and aggravated kidnaping, a first degree felony, in violation of Utah Code Ann. § 76-5-302 (2003),1 growing out of a home invasion robbery. Defendant primarily challenges the trial court's decision to let the victim testify how certain she was of her several identifications of Defendant. We affirm.

BACKGROUND

¶ 2 On April 18, 2001, the victim in this case, a young woman, was driving home from work to her South Salt Lake townhouse, where she lived with three roommates. Meanwhile, Defendant and six others, including Fernando Fernandez and a woman named Miguella, met at a park where they ingested cocaine and methamphetamine. The group decided they were going to raid a "known" drug house for cocaine and money. Defendant and Miguella were to gain entry first and then telephone the others to follow. The group parked down the street from the targeted house, and Defendant and Miguella walked toward the house while the others remained in the van.

¶ 3 As the victim approached her townhouse and turned into the driveway, she saw a man and woman, who were later identified as Defendant and Miguella, walking along the road toward her house. The victim pulled into her garage, shut off the engine of her car, and gathered her belongings. Defendant and Miguella entered the victim's garage, and Defendant knocked on the driver's side window of her car. The victim rolled down her window, and Defendant demanded money and drugs, showed her a handgun, and told her to shut the garage door. Defendant opened the car door, showed the victim that the gun was loaded, and put the gun to her head as he ordered her out of the car.

¶ 4 After the victim exited the car, Defendant took her cell phone and cigarettes, then pushed her onto the garage floor, and Miguella tied her hands and feet together while Defendant continued to point the gun at her and demand money and drugs. The victim offered the six dollars in her wallet and tried to explain that only she and her roommates lived there, and they had no money or drugs.

¶ 5 Unpersuaded, Defendant went inside the house, leaving Miguella in the garage with the victim. Soon thereafter, the victim heard several other people moving around inside her house. Three of those individuals, one of whom had a "clown-jester-type" tattoo and was later identified as Fernandez, came to the doorway of the garage and peeked at the victim. After fifteen to twenty minutes of rummaging through the house, the group determined they were in the wrong house. They finally departed, taking some jewelry and an old cell phone. They left the victim tied up in the garage, and she eventually worked herself free, went inside to the kitchen, and vomited.

¶ 6 The victim reported the incident to the police, and an officer arrived, gathered some information, and enlisted the services of a crime scene technician. On May 23, 2001, more than a month after the incident, Detective Jewkes met with the victim and showed her a group of photographs. She promptly identified Defendant as the gunman. At trial, the victim testified that at the time of the identification she rated her confidence in her identification as a "10" on a scale of one to ten, and she stated that "[she] will never forget his face." She further testified that the man in the photo she picked had one eye that was "just kind of deformed," like the gunman's, and that "[e]verything about his face" was consistent with her memory of the gunman. Additionally at trial, Jewkes testified that at the time of the identification, the victim stated she was "100 percent positive" of her identification.

¶ 7 From a second photo array, the victim identified another man, Fernandez, as one of the robbers who had stood in the doorway of the garage. At trial, the victim testified that at the time of the photo lineup, she rated her confidence in this identification as a "six or seven," because she "didn't get to see his face very long," but added that she "will never forget [his] tattoo." Eight months later, the victim went to an in-person lineup at the police station, and she again identified Defendant as the gunman. At trial, she testified that she was "100 percent" certain of this identification and was able to identify Defendant within "[s]econds, as soon as he walked out."

¶ 8 Both Fernandez and Defendant were originally charged with aggravated robbery and aggravated kidnaping, with weapons and "gang" enhancements. Fernandez entered into a plea agreement, and pursuant to the agreement, he pled guilty to one count of simple robbery in exchange for his testimony against Defendant.

¶ 9 Before trial, Defendant filed a motion in limine seeking to preclude testimony about the victim's level of confidence in her two pretrial identifications of Defendant. The trial court heard oral arguments on this issue and denied the motion, concluding that the witness's confidence in her identifications was a factor that the jury could legitimately consider in evaluating the evidence.

¶ 10 At the close of trial, the court refused to give a jury instruction, requested by Defendant, concerning the jury's evaluation of Fernandez's testimony.2 The trial court determined that the instruction would direct the jury to pay special attention to a particular witness and, therefore, use of the jury instruction would be improper. However, the court did include an instruction regarding the jury's role in evaluating and weighing the credibility of all the witnesses.3 After due deliberation, the jury returned a verdict of guilty on both the aggravated kidnaping and the aggravated robbery charges. It also found that Defendant used a firearm and acted in concert with two or more persons, subjecting him to enhanced penalties under Utah Code Ann. §§ 76-3-203 and -203.1 (Supp.2000).4 Defendant was subsequently sentenced to consecutive terms of six years to life imprisonment for aggravated robbery and fifteen years to life for aggravated kidnaping. This appeal followed.

ISSUES AND STANDARDS OF REVIEW

¶ 11 Defendant argues that it was error to allow the victim and Detective Jewkes to testify as to the certainty of the victim's identifications of Defendant. The standard for

reviewing a trial court's decision to admit eyewitness identification testimony requires us to consider the record evidence and determine whether the admission of the identification is consistent with the due process guarantees of the Fourteenth Amendment of the United States Constitution and article I, section 7 of the Utah Constitution.

State v. Hubbard, 2002 UT 45,¶ 22, 48 P.3d 953. Thus, our review employs "a correctness standard, which incorporates a clearly erroneous standard for the review of subsidiary factual determinations." State v. Ramirez, 817 P.2d 774, 782 n. 3 (Utah 1991). This standard of review applies to both federal and state due process analysis. See Hubbard, 2002 UT 45

at ¶ 22, 48 P.3d 953.

¶ 12 Defendant also contends that the prejudicial effect of allowing the jury to hear the certainty testimony substantially outweighs its probative value. See Utah R. Evid. 403. "[B]alancing of the probative value against any prejudicial effect must necessarily rest within the sound discretion of the trial court; and the determination [it] makes thereon should not be disturbed on appeal unless there was clear abuse of discretion." State v. Gibson, 565 P.2d 783, 786-87 (Utah 1977) (footnote omitted).

¶ 13 Finally, Defendant argues that Utah and federal case law support the inclusion of a cautionary jury instruction regarding an accomplice's credibility when he testifies as part of a plea bargain. A trial court's giving of a special cautionary instruction relating to corroborated accomplice testimony "is entirely discretionary with the [trial] court, [[5] and we will reverse only when it has abused that discretion." State v. Pierce, 722 P.2d 780, 782 (Utah 1986).

ANALYSIS
A. Certainty Testimony

¶ 14 On appeal, Defendant's primary argument is that the trial court erred in denying his motion to preclude any reference to the victim's level of confidence in her pretrial identifications of Defendant as the gunman. Defendant argues that there is no correlation between how certain a person feels about her identification and the actual accuracy of the identification. Therefore, he argues, certainty testimony should not be admitted given its inherent unreliability. Defendant contends that the admission of such testimony at trial constituted prejudicial error, violated his due process rights under the Utah and United States Constitutions, and also violated Utah Rule of Evidence 403.

¶ 15 In considering Defendant's argument, we must keep in mind the separate and distinct roles that the judge and the jury play in determining the reliability of eyewitness testimony under the due process clauses of the United States and Utah Constitutions. "The judge, `as arbiter of the constitutional admissibility of an identification,' is required to scrutinize proffered evidence for constitutional defects." State v. Nelson, 950 P.2d 940, 943 (Utah Ct.App.1997) (quoting State v. Ramirez, 817 P.2d 774, 778 (Utah 1991)). The judge "must preliminarily determine whether the identification is sufficiently reliable that its admission and consideration by the jury will not deny the defendant due process." Id. Then, "if reliable and therefore admissible, the jury determines the credibility of that identification." Id.

¶ 16 "We apply separate...

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