State v. Maestas, 970298.

• Decision Date: 09 April 1999
• Docket Number: No. 970298.,970298.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Gino MAESTAS, Defendant and Appellant.
• Court: Utah Supreme Court

984 P.2d 376

1999 UT 32

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

No. 970298.

Supreme Court of Utah.

April 9, 1999.

Jan Graham, Att'y. Gen., Kenneth A. Bronston, Asst. Att'y. Gen., Roger S. Blaylock, Deputy District Att'y, Salt Lake City, for Appellee

Joan C. Watt, Salt Lake Legal Defender, for Appellant

DURHAM, Associate Chief Justice:

¶1 Gino Maestas appeals from convictions on eight counts of aggravated robbery. Maestas asserts that he was denied effective assistance of counsel, as guaranteed by the Sixth Amendment to the United States Constitution and article I, section 7 of the Utah Constitution, because his trial counsel failed to (1) request a cautionary eyewitness identification instruction, (2) move to suppress the allegedly unreliable eyewitness identifications, (3) move to sever charges stemming from robberies at two different locations, (4) request a jury instruction limiting the use of double hearsay, and (5) move to consolidate two robbery counts based on the taking of property from one individual. Maestas argues that the above omissions entitle him to a new trial.

¶2 On February 2, 1995, a lone assailant robbed a Top Stop convenience store located at 488 East 100 South, and a Pizza Hut restaurant located at 787 North Redwood Road, within a period of one hour. According to the testimony at trial, a man entered the Top Stop just after 8:00 p.m., wearing a mask, a baseball cap, and a two-tone blue coat. The man walked to the counter, pulled out a gun, and demanded that the clerk, Paul Harbrecht, give him the money from the cash register. The robber also demanded that Harbrecht give up his wallet. Harbrecht complied, placing all the money from the cash register, approximately thirty-five dollars, and six dollars from his own wallet into a small off-white backpack that the robber placed on the counter. The robber allowed Harbrecht to keep his wallet and his identification. The robbery lasted approximately two minutes. ¶3 Harbrecht testified at trial that he pushed the store's "panic button" to alert police to the robbery, then ran outside to watch the robber flee. The robber jogged down the street for approximately half a block, then got into a gold-colored mid-80's Camaro. Harbrecht stated that he was not afraid during the robbery because he had been robbed only four months earlier. He concentrated on the robber's exposed features — his eyes, eyebrows, and nose. Officer Rose Marie Jones responded to the robbery call. Harbrecht described the robber as a Hispanic male in his twenties, between 5'7" and 5'9" inches tall, with short dark hair and dark eyes. He stated that the robber was wearing a white hat, blue Levis, and a two-tone blue coat. Although the lighting outside was poor, Harbrecht opined that the robber escaped in a gold-colored Camaro.

¶4 While Officer Jones was filling out the robbery report, she and Harbrecht heard another robbery being reported over her police radio involving a perpetrator with a description similar to the Top Stop robber. Officer Jones responded to that call. As she left, she told Harbrecht that she might return to pick him up so he could identify the suspect. Later, Officer Jones did just that, stating, "they had caught a suspect and [she] wanted [Harbrecht] to identify him." She drove Harbrecht to where other officers had stopped Maestas. Maestas was surrounded by police officers, wearing handcuffs, and standing with a spotlight and headlights directed towards him. Harbrecht identified Maestas as the individual who had robbed the Top Stop a short time earlier.

¶5 The second robbery (which accounts for seven of the eight counts of aggravated robbery) occurred at a Pizza Hut restaurant on Redwood Road at approximately 8:55 p.m. The robber wore Levis, a bluish-green and gray jacket, brown hiking boots and a hat; a dark mask covered his head and the lower part of his face. The robber entered the restaurant and pulled out a gun. The robber approached Pizza Hut employee Kurt Anderson, pushed the gun against Anderson's chest, and demanded that he place the money from the cash register into a bag. Anderson was scared, and his "life flashed before [his] eyes." Anderson gave the bag to the Pizza Hut manager Jesse Baldwin and told him they were being robbed. The robber then ordered Anderson to the floor. From the floor, Anderson could no longer observe the robber or his interactions with the restaurant patrons. He did, however, hear the robber demand, in a Spanish accent, the money from the cash register and the safe, and from the other restaurant patrons. Anderson later described the robber as wearing a bluish-green and gray jacket and hiking boots and walking with a "limp."

¶6 With Anderson on the floor, Baldwin complied with the robber's request, placing approximately $170 from the cash register, including $10 in loose change, into the bag. During the delay, while the safe's timing cycle was operating, the robber collected money from the store employees and two restaurant customers. Anderson gave the robber six dollars from his wallet and Baldwin gave him between $15 and $20. The robber allowed both Anderson and Baldwin to keep their wallets.

¶7 Baldwin observed the robber for a total of approximately four minutes, sometimes from as far away as forty feet. Baldwin described the robber as in his twenties, weighing 180 pounds, with dark brown eyes, thick eyebrows, and a wrinkled forehead. He stated that the robber spoke with an accent, walked with a distinctive gait, and had an "odd" posture. According to Baldwin, the robber wore a black mask which extended all around his head, a white baseball cap, a "green, greenish-gray, greenish blue" coat, and navy-blue or black pants.

¶8 Shortly after the robbery, Officer Richard Findlay took Anderson and Baldwin to view a possible suspect located about a block from the restaurant. Maestas was handcuffed and standing in a spotlight between several patrol cars with their emergency lights activated. Anderson and Baldwin discussed the similarities and differences between Maestas and the robber. Baldwin thought the eyes were the same as the robber's. Anderson thought Maestas wore the same shoes. Both Anderson and Baldwin identified the jacket taken from Maestas' car as the one worn by the robber. Although initially unsure, after viewing the jacket, both identified Maestas as the robber.

¶9 Candace Hsiao and her daughter Kara were customers in the Pizza Hut during the robbery. They testified that while they were eating and talking, a Hispanic male wearing a black muffler over his head and face approached, pointed a gun at them, and asked for their purses. Candace and Kara were terrified. Candace "blocked out" everything except the gun. Candace gave the robber $15 in cash and bills and the money pouch in her day planner. Kara gave him five crumpled dollar bills.

¶10 Kara described the robber as wearing a white sweatshirt and hiking boots. According to Kara, the robber was polite and spoke with a slight accent. Later, at the show-up, neither Candace nor Kara could positively identify Maestas as the robber.¹

¶11 Pizza Hut employees Shelby and Leslie Kurys were cleaning their work stations when Shelby saw the robber with a gun pointed at Anderson's back. The robber ordered Shelby and Leslie to the ground and asked for their wallets and wedding rings. The couple refused to give up their rings and did not have wallets. They did not see much because they remained on the floor until the robber left. However, they noted that the robber had a black mask, thick eyebrows and brown or hazel eyes. Both Shelby and Leslie described the robber as having a distinctive gait.

¶12 At the line-up, after viewing Maestas at the show-up, Harbrecht, Anderson, and Baldwin all identified Maestas as the robber. Candace and Kara Hsiao did not choose Maestas from the line-up, although they did identify him as a possibility. Leslie and Shelby Kurys both chose individuals other than Maestas from the lineup.

¶13 At trial, Harbrecht, Baldwin, and Anderson, all of whom had viewed Maestas at the show-up, identified Maestas as the robber. Kara and Candace Hsiao, who also had seen Maestas at the show-up but could not pick him out of a line-up, testified that they thought, but were not sure, that Maestas was the person who robbed them. Leslie and Shelby Kurys, after choosing different individuals from the line-up, identified Maestas as the robber at trial. There were similar inconsistencies at trial in the testimony identifying the coat recovered by police from Maestas' car as that worn by the robber. Some witnesses recognized it, others did not.

¶14 At trial, in addition to the eyewitness accounts described above, the following evidence was offered: Officer Donald Cole testified that shortly after the Pizza Hut robbery he received a description of the suspect: "male Hispanic, dark hair, dark eyes, wearing a ... blue and green jacket." An updated description included the fact that the suspect might be driving a blue late 70's Camaro. [id] Approximately 3 ½ blocks from the Pizza Hut, Officer Cole observed a blue Camaro parked in an apartment driveway. The hood felt warm, indicating that the car had recently been driven. From outside the car, Officer Cole observed crumpled dollar bills on the passenger seat and a blue and green jacket in the backseat.

¶15 Officer Cole then saw two people exit the apartment and get into the Camaro and drive off. Officer Cole stopped the car a few blocks away. Between five and seven other officers assisted him in the stop. Maestas was driving the Camaro; Mary Sisneros was the passenger. About $53 was recovered from the Camaro and officers found a blue and green jacket in the back seat. According to Officer Cole at trial, "all" the robbery victims positively identified Maestas as the robber and "all" recognized the jacket as the one worn by the robber.

¶16 Officer Cole transported Maestas...