State v. Montoya

• Citation: 2004 UT 5,84 P.3d 1183
• Decision Date: 23 January 2004
• Docket Number: No. 20010458.,20010458.
• Parties: STATE of Utah, Plaintiff and Appellee, v. Peter Victor MONTOYA, Defendant and Appellant.
• Court: Supreme Court of Utah

84 P.3d 1183

2004 UT 5

STATE of Utah, Plaintiff and Appellee, v. Peter Victor MONTOYA, Defendant and Appellant.

No. 20010458.

Supreme Court of Utah.

January 23, 2004.

Mark L. Shurtleff, Att'y Gen., Joanne C. Slotnik, J. Frederic Voros, Jr., Asst. Att'ys Gen., Carlos Esqueda, Cy Castle, Deputy Salt Lake Dist. Att'ys, Salt Lake City, for plaintiff.

Sharon Preston, Salt Lake City, for defendant.

DURRANT, Associate Chief Justice:

¶ 1 Defendant Peter Victor Montoya was tried and convicted on one count of criminal homicide, a first degree felony, and two counts of attempted criminal homicide. On appeal, defendant argues that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Alternatively, defendant argues that he received ineffective assistance of counsel because the contested evidence was not produced at trial. Defendant also contends that the trial court erred in denying his motion for a directed verdict based on insufficiency of the evidence. We affirm.

BACKGROUND

¶ 2 "We view the facts in the light most favorable to the jury verdict and recite them accordingly." State v. Loose, 2000 UT 11, ¶ 2, 994 P.2d 1237. On the night of May 16, 1997, sixteen-year-old Kelly Seal drove his younger brother, Matt Seal, and his friend, Greg Ulibarri, to Beck Street to watch drag races. During the course of the evening, the boys stopped at a combination Amoco station and Rainbo Mart to buy drinks and use the restroom. While there, Matt Seal noticed a red GMC truck squealing its tires as it maneuvered into position at the gas pump. The driver of the truck, identified as Russell Thornwall, exited the vehicle and began pumping gas. Matt Seal recalled that Thornwall was "throwing up his hands" and yelling "VLT," which Matt understood to be a gang reference.

¶ 3 The three boys left the gas station and began to drive back to the races, but returned shortly in order for Kelly Seal to use a payphone to respond to a page that he had received. Kelly Seal exited the car to use the phone, and Ulibarri soon joined him. Matt Seal stayed in the back seat of the car. Ulibarri and Matt Seal both noticed Thornwall still gesturing with his hands and yelling. Kelly Seal quickly finished his phone call, and he and Ulibarri returned to the car. By this time, Thornwall had pulled his truck behind the boys' Honda Civic and was revving the engine. At this point, the defendant exited the Rainbo Mart, crossed between the truck and the Honda, and entered the truck through the front passenger door. Matt Seal testified that he noticed a third passenger in the truck who appeared to be sitting in the back seat.¹

¶ 4 As Kelly Seal drove toward the station exit, the red truck came up along the right side of the boys' car and swerved towards them. Kelly reacted to avoid a collision. Matt Seal and Ulibarri saw the defendant leaning over the driver of the truck, looking directly into the Honda, and yelling. The boys testified that they heard two or three voices yelling "VLT" and "pussies." The truck moved behind the Honda again, following very closely with its headlights shining directly into the boys' car. Evidence produced at trial showed that the truck was a manual stick-shift and that Thornwall, the driver, was right-handed.

¶ 5 As Kelly Seal exited the station and began to turn left onto Beck Street, at least two² shots were fired from the truck, shattering the back window of the Honda and piercing the back right pillar of the body of the car. One bullet ripped through the right passenger seat and hit Ulibarri in his lower, right back. Another bullet struck Kelly Seal in the back of the head, killing him. The Honda coasted to a stop in the middle of Beck Street, and the red truck sped off to the right, squealing its tires. Matt Seal heard someone yell, "VLT rules."

¶ 6 On May 25, 1999, defendant was charged with one count of criminal homicide, a first degree felony, and two counts of attempted criminal homicide.³ During the jury trial, after the presentation of the state's case-in-chief, defendant moved for a directed verdict. The trial court deferred ruling on this motion until defendant had presented his case, at which point, defendant moved to dismiss. The trial court took the motion under advisement. After the jury convicted defendant as charged, the trial court considered and then denied defendant's motions for a directed verdict and to dismiss.

¶ 7 The trial court sentenced defendant to a term of imprisonment of five years to life on Count I and a term of one-to-fifteen years each on Counts II and III, the sentences to run consecutively, with a one-year firearm enhancement on each count. On January 22, 2001, defendant moved for a new trial based on newly discovered evidence. This motion was also denied by the trial court. Defendant appeals.

ANALYSIS

¶ 8 Defendant argues on appeal that the trial court erred in denying his motion for a new trial based on newly discovered evidence. Alternatively, he argues that he received ineffective assistance of counsel due to his counsel's failure to introduce certain evidence at trial. Defendant also contends that the trial court erred in denying his motion for a directed verdict, arguing that the evidence was insufficient to support the convictions. We will address the issues in the order presented.

I. DENIAL OF DEFENDANT'S MOTION FOR A NEW TRIAL

¶ 9 Approximately one month following the conclusion of the jury trial, defendant filed a motion for a new trial, asserting that critical new evidence had become known to defense counsel. This "new evidence" consisted of statements from two witnesses: (1) a confidential witness, who would not reveal his identity but claimed to be the third person in the truck on the night of the shooting, and (2) Jason Thornwall, Russell Thornwall's older brother. The confidential witness was purportedly too frightened to come forward but told a defense investigator that it was he, not Peter Montoya, who was the front seat passenger on the night in question and that Russell Thornwall was the shooter. The second witness, Jason Thornwall, stated that his brother, Russell, had talked to him about the incident and told him, "Pete [Montoya]'s in [jail] for something I did."

A. Standard of Review

¶ 10 We afford trial judges "a wide range of discretion" in determining whether newly discovered evidence warrants the grant of a new trial. State v. James, 819 P.2d 781, 793 (Utah 1991). Thus, "[w]e review the denial of a motion for a new trial based on newly discovered evidence on the same basis as any other denial of a new trial motion—whether the trial court abused its discretion." State v. Loose, 2000 UT 11, ¶ 16, 994 P.2d 1237.

¶ 11 Evidence must meet three criteria in order to constitute grounds for a new trial: "(1) [i]t must be such as could not with reasonable diligence have been discovered and produced at the trial; (2) it must not be merely cumulative; [and] (3) it must be such as to render a different result probable on the retrial of the case." James, 819 P.2d at 793; see also State v. Goddard, 871 P.2d 540, 545 (Utah 1994)

("All three of these criteria must be met."). Since we conclude that the statements of both witnesses are inadmissible, these statements do not constitute evidence that would "render a different result probable" on retrial. Thus, the statements fail to fulfill the third requirement for granting a new trial.

B. Statement of the Confidential Witness

¶ 12 In his motion for a new trial, defendant claimed that "following the trial, the defense was able to locate the actual third occupant of Russell Thornwall's truck." Defendant sought to introduce statements from this witness through the testimony of a defense investigator, Dennis Couch, because the witness was purportedly "tremendously frightened" to come forward. According to Mr. Couch's affidavit, the witness stated that, though he had not been involved in the shooting, it was he, not Peter Montoya, who was the front seat passenger in the truck and that Russell Thornwall was the shooter.

¶ 13 Since the witness himself refused to testify, the testimony of Mr. Couch consists of out-of-court statements being "offered in evidence to prove the truth of the matter asserted," and thus is paradigmatic hearsay. Utah R. Evid. 801. The statements of the confidential witness, therefore, are inadmissible unless they fall within the ambit of one of the hearsay exceptions.

¶ 14 Defendant suggests that the confidential witness's statements satisfy the "statement against interest" exception because, by so attesting, the witness places himself in the same position in the truck as the defendant, and consequently opens himself up to possible criminal prosecution. See Utah R. Evid. 804. However, the statement against interest exception, as with all of the exceptions under Utah Rule of Evidence 804, initially requires the unavailability of the witness. See Utah R. Evid. 804(a). Defendant has not shown that the confidential witness is unavailable for purposes of this hearsay exception.

¶ 15 We have previously stated that "for a witness to be constitutionally unavailable, it must be practically impossible to produce the witness in court. It is not enough to show that the witness would be uncomfortable on the stand or that testifying would be stressful. Every reasonable effort must be made to produce the witness." State v. Webb, 779 P.2d 1108, 1113 (Utah 1989) (citations omitted). This requires the proponent of the out-of-court statement to do his utmost to "procure the declarant's attendance by process or other reasonable means." Utah R. Evid. 804(a)(5).

¶ 16 Thus, in general, a witness will not be found unavailable until the proponent of the evidence demonstrates that he has used all reasonable means at his disposal to secure the attendance of the witness. See State v. White, 671 P.2d 191, 193 (Utah 1983)

(finding witness was not unavailable where defense counsel merely...