State v. Maestas, No. 20000094.

CourtSupreme Court of Utah
Writing for the CourtDURHAM, Chief Justice
Citation63 P.3d 621,2002 UT 123
PartiesSTATE of Utah, Plaintiff and Appellee, v. Gino MAESTAS, Defendant and Appellant.
Decision Date20 December 2002
Docket NumberNo. 20000094.

63 P.3d 621
2002 UT 123

STATE of Utah, Plaintiff and Appellee,
Gino MAESTAS, Defendant and Appellant

No. 20000094.

Supreme Court of Utah.

December 20, 2002.

63 P.3d 622
Mark L. Shurtleff, Att'y Gen., Kenneth A. Bronston, Asst. Att'y Gen., Salt Lake City, for plaintiff

Scott C. Williams, Joan C. Watt, Salt Lake City, for defendant.

DURHAM, Chief Justice:

¶ 1 We granted Gino Maestas's petitions for interlocutory appeal from two pre-trial orders. The first order denied Maestas's motion to present expert testimony concerning eyewitness identification. The second concerned a previous trial on the same charges in which Maestas had been convicted of aggravated robbery, but his convictions were reversed on appeal. The district court granted the state's motion to introduce in the second trial Maestas's statements from his presentence report and his allocution from the first trial.

¶ 2 The following opinion is divided. As to the admission of expert testimony, a majority of the court—Associate Chief Justice Durrant with Justice Wilkins concurring and Justice Russon with Justice Howe concurring—holds that the trial court did not abuse its discretion in denying defendant's motion for the admission of expert testimony. Chief Justice Durham dissents.

¶ 3 As to the admission of defendant's inculpatory statements from his first trial, a majority of the court holds that such statements are inadmissible, and therefore reverses the trial court's ruling. There is unanimous agreement on the inadmissibility of the defendant's inculpatory statements contained in his presentence report. Regarding the inadmissibility of the defendant's allocution statement, Justice Russon and Justice Howe concur with Chief Justice Durham that it is inadmissible, but for different reasons. Associate Chief Justice Durrant and

63 P.3d 623
Justice Wilkins dissent as to the inadmissibility of the allocution statement


¶ 4 On the evening of February 20, 1995, two robberies were reported near downtown Salt Lake City.1 The first occurred at a Top Stop convenience store shortly after 8:00 p.m. The robber, dressed in a two-tone blue jacket and wearing a dark mask covering the lower part of his face, confronted a store clerk with a gun and demanded money. The robber took between thirty and forty dollars from the cash register and six dollars from the clerk's wallet. The store clerk reported that the robber jogged to a car parked approximately one block away. The clerk was unsure about his description of the car due to the rainy weather conditions and poor lighting, but thought it was a gold-colored, mid-1980's model Camaro.

¶ 5 Sometime between eight-thirty and nine on the same evening, a similarly-dressed person entered a Pizza Hut and robbed several persons. The robber took between $160 and $170 from the cash register, including approximately $10 in change, $15 to $20 from one employee, $6 from another employee, a day-planner pouch containing $15 in bills and change from one of the customers, and several crumpled dollar bills from another customer. The robber demanded that two other employees surrender their wedding rings, but they refused to do so. None of the victims of the robbery saw how the robber left the area, but a witness outside the Pizza Hut informed police that someone had driven from the parking lot in a blue 1977 or 1978 Camaro.2

¶ 6 At approximately nine p.m., an officer investigating the Pizza Hut robbery noticed Gino Maestas's (Maestas) blue 1978 Camaro parked in the driveway of an apartment building approximately three-and-a-half blocks from the Pizza Hut. The officer discovered the car's hood was still warm and that it contained a blue and green jacket and a few crumpled dollar bills. Watching from across the street, the officer observed Maestas and a friend, Mary Sisneros (Sisneros), come out of the apartment building and drive away in the Camaro. Shortly thereafter, police converged on the Camaro and arrested Maestas.

¶ 7 At trial, Maestas testified in his own defense. He asserted he had not committed the robberies, maintaining he had been at a family party at Sisneros's residence from about 5:30 p.m. until the time he and Sisneros attempted to go to a store but were stopped by the police. Although the robber wore a hat and mask over his mouth and nose, several witnesses positively identified Maestas at trial. Defense counsel did not request that the trial court give a cautionary instruction concerning the reliability of eyewitness identification testimony.

¶ 8 The jury convicted Maestas of eight counts of aggravated burglary. Prior to sentencing, as part of the presentence investigation, Maestas handwrote a "Statement of the Offense" for an Adult Probation and Parole (AP & P) investigator. In his statement, Maestas admitted committing the robberies and provided several details not adduced at trial: he stated he committed the robberies to get money "to get high" and that he used a toy gun. Maestas's statements were included in the presentence investigation report (presentence report).

¶ 9 The sentencing matrix in the presentence report indicated a prison sentence of seven years for each of the eight counts. When asked by the sentencing judge if he had anything to say before sentence was pronounced, Maestas, unaware that he would successfully appeal his convictions and win a new trial based on ineffective assistance of counsel, took the court's invitation to explain something about who he is and how he came to be in his unhappy situation. Specifically,

63 P.3d 624
he talked about his involvement with drugs, and stated "I wasn't going to hurt anybody.... I would like some leniency from the court on that. [Fifty-six] years, that's my whole life in prison. I can be changed. I have showed that before." During the course of his statement, Maestas said that he committed the robberies and that he felt remorse for the victims

¶ 10 The court then sentenced Maestas to five years to life for each of the eight counts of aggravated robbery, and added a firearm enhancement of one year to each count. In addition, the court ruled that count I, arising from the Top Stop robbery, and count II, arising from the robbery of one of the individuals at Pizza Hut, would run consecutively. The remaining six counts, all arising from the Pizza Hut robberies, would run concurrently with counts I and II.

¶ 11 On appeal, we reversed Maestas's convictions, holding that he had received ineffective assistance of counsel at his trial. Maestas I, 1999 UT 32 at ¶¶ 32-37, 984 P.2d 376. Specifically, we held that "trial counsel's failure to request a cautionary eyewitness instruction... [had] prejudiced Maestas." Id. at ¶ 37.

¶ 12 On remand to the district court for retrial, Maestas moved to suppress the eyewitness identifications provided by seven witnesses to the robberies. The court heard testimony from six of the seven witnesses and reviewed the testimony of all the witnesses in the transcripts of the first trial. With respect to three of the witnesses, the court granted Maestas's motion, concluding that the positive identifications provided by those witnesses were not sufficiently reliable. The court denied the motion as to the four remaining witnesses.

¶ 13 Maestas and the state also submitted a number of pre-trial motions to admit evidence. Specifically, Maestas moved to allow expert testimony relative to eyewitness identification and moved to suppress the inculpatory statements he made prior to sentencing in the first trial. The state moved to admit the statements. The court denied Maestas's motion to present expert testimony regarding the reliability of the eyewitness identifications, ruling that a jury instruction could sufficiently inform the jury of "concerns about and factors affecting accuracy of eyewitness identification." The court further concluded that "allowing an expert to testify on the unreliability of eyewitness testimony would have a significant tendency to cause the jury to abdicate its role as a fact finder."

¶ 14 With respect to inculpatory statements from the sentencing phase of his first trial, Maestas argued that admission of those statements on retrial would compromise his rights to allocution and appeal, would violate his Fifth Amendment right against self-incrimination, and would violate rule 24(d) of the Utah Rules of Criminal Procedure. The trial court rejected Maestas's arguments and ruled that his inculpatory statements were admissible on retrial in the prosecution's case-in-chief.

¶ 15 Maestas petitioned this court for permission to appeal both the order denying permission to present expert testimony and the order admitting his inculpatory statements from the presentence report and the sentencing hearing. The state concurred in this petition, and we granted Maestas permission to appeal both interlocutory orders.


¶ 16 We first note the scope of our review on interlocutory appeal. See Utah R.App. P. 5(e). We agreed to review the court's denial of Maestas's motion to admit expert testimony and the court's grant of the state's motion to admit evidence of Maestas's statements to AP & P and to the trial court at the time of sentencing. We do not address the court's decisions relating to the admissibility of specific witnesses' identifications of Maestas.


¶ 17 The first issue presented by Maestas is whether the trial court erred in refusing to allow expert testimony regarding eyewitness identifications. The court held that four of the eyewitnesses to the robberies will be permitted to testify that Maestas is the person who committed the robberies. As to the

63 P.3d 625
other eyewitnesses, the court held that they be allowed to relate other details of the robberies that they observed. Maestas argues that because the eyewitness identifications are critical to the state's case, the trial court erred in ruling that...

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