State v. Nunez

Citation: 2021 UT App 86Docket: 20190317-CA

Court: Court of Appeals of Utah; August 12, 2021; Utah; State Appellate Court

Original Court Document: View Document

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Oscar Alonso Nunez was convicted of multiple child sex abuse charges involving his fiancée’s eight-year-old daughter, Kiara, who testified at trial. Her testimony was limited, only indicating that Nunez had inappropriately touched her and coerced her to touch him. Recognizing the inadequacy of her testimony to support the charges, the prosecution sought to introduce a video of Kiara's earlier interview at the Children’s Justice Center (CJC), which contained more comprehensive statements regarding the abuse. Nunez's defense argued that the entire video should not be admissible under Utah Rule of Evidence 801(d)(1)(A), which pertains to prior inconsistent statements. The trial court allowed only portions of the CJC interview that contradicted Kiara’s in-court testimony, requiring her to take the stand again to clarify or deny her previous statements. The CJC interviewer provided foundational testimony about the interview process. Ultimately, the jury viewed the CJC interview, where Kiara detailed incidents of rape, sodomy, and attempted sodomy, and she later affirmed most of her statements from the interview despite her memory lapses. Additionally, medical examinations of Kiara revealed injuries consistent with her claims of abuse. Nunez appealed on grounds of trial errors, but the court affirmed the conviction.

The State called Nunez’s daughter from a previous marriage to testify about her observations of interactions between Kiara and Nunez. A dispute arose regarding whether her testimony referenced accusations of abuse against Kiara from Wyoming, which had been previously agreed to be omitted. Defense counsel sought to clarify the living situations of Nunez to exclude the testimony but the trial court ruled that the State sufficiently demonstrated the relevance of the testimony to the current charges. The Witness recounted an incident where Kiara expressed distress regarding Nunez and alleged inappropriate touching, accompanied by fears of harm to herself and her family if she disclosed the information.

The trial court later agreed to strike portions of the Witness's testimony regarding Kiara's allegations but allowed another segment of Kiara's prior statements that contradicted the Witness’s testimony. Defense counsel, having introduced these contradictions, withdrew the motion to strike. 

Defense counsel also attempted to present evidence suggesting bias from the Witness due to hostility from her mother toward Nunez, implying that this could affect the Witness's credibility. However, the trial court rejected this evidence, stating it was too indirectly related to the facts of the case and lacked a proper foundation. The court noted that the Witness had not been impeached during her testimony, and introducing such evidence could unfairly prejudice the trial. The court emphasized that allowing this evidence could derail the proceedings, as it had not been adequately explored when the Witness was on the stand.

During closing arguments, the prosecutor highlighted that Kiara had previously testified without difficulty during her CJC interview shortly after the alleged abuse, asserting she had been "repeatedly abused" and "repeatedly raped." The prosecutor suggested that any discrepancies in Kiara's testimony were not inconsistencies but rather indicative of a consistent narrative. He emphasized the CJC's protocol aimed at obtaining reliable and detailed information. Defense counsel did not object to these statements.

As the jury began deliberations, they inquired about the process if they were to become "hung" and whether they could reach a verdict on some counts while being hung on others, to which the trial court affirmed the latter. The jury also requested an extended lunch to allow one juror, Juror 35, to gather her thoughts, expressing difficulty in deliberating while feeling isolated. Juror 35 requested a private discussion with the court and counsel before returning to the jury room. 

In a private discussion, the court informed Juror 35 that she could not disclose any specifics about the jury's deliberations. She revealed that she had a history of depression and anxiety, which she initially believed would not be an issue but was now affecting her in the jury room, causing her anxiety about the situation. Juror 35 struggled to articulate her concerns without breaching the confidentiality of the jury's discussions.

The trial court engaged with Juror 35 regarding her ability to continue participating in deliberations without suffering emotional harm. Initially, Juror 35 expressed confidence in her long-term well-being but sought clarification on legal questions, indicating a struggle with the slow pace of responses. The court reassured her support and suggested she might need a break due to the stress of decision-making. After lunch, Juror 35 requested to be dismissed, citing concerns over her mental health impacting her future. The court, along with both counsel, deliberated on whether to excuse her and replace her with an alternate juror, acknowledging the potential for appeal if not addressed.

In a subsequent discussion, the court reiterated the importance of her mental state and the necessity for jurors to fully engage in deliberations, emphasizing the constitutional rights of both the defendant and the State to a functional jury. Juror 35 struggled to articulate her feelings, stating she felt unable to express her opinions freely and felt pressured during discussions, which led to her discomfort. The court sought to clarify her ability to deliberate without compromising her well-being, asking direct yes or no questions about her capacity to participate actively. Juror 35 indicated mixed feelings, expressing concern about being interrogated by other jurors, which contributed to her reluctance to share her viewpoints.

Juror 35 expressed feelings of emotional distress and a tendency to withdraw from jury discussions, indicating a struggle with past incidents and concern that ongoing questioning could exacerbate her suffering. Both defense and state counsel acknowledged her right to maintain her opinion despite feeling intimidated, but they recognized that her emotional state could hinder her ability to fulfill her duties as a juror. The trial court deliberated on her situation, weighing the potential for appeal issues if she remained on the jury or if she was replaced by an alternate juror. After a recess for discussion, both counsel agreed that Juror 35 should be dismissed due to her emotional unfitness. The court then replaced her with an alternate juror, ensuring compliance with the admonition to avoid discussing the case until a verdict was reached.

An alternate juror, temporarily excused but instructed to refrain from discussing the case, was requested to return, which is atypical. Both legal counsels consented to this replacement, and Nunez did not challenge this decision in his brief. According to Utah R. Crim P. 18(f), the court may retain alternate jurors post-deliberation commencement, ensuring the alternate does not discuss the case until replacing a juror or being discharged, and must instruct the jury to start deliberations anew if an alternate replaces a juror after deliberations have begun. After approximately ten hours of deliberation and the appointment of the alternate, the jury deliberated for an additional two and a half hours before convicting Nunez on all counts.

Nunez appeals these convictions, raising multiple issues. First, he argues that the trial court improperly admitted Kiara’s CJC interview, claiming procedural errors regarding Utah Rule of Criminal Procedure 15.5 and ineffective assistance of counsel for not ensuring adherence to this rule. Second, he contends the court erred in admitting testimony from a witness and in excluding his impeachment evidence against that witness. Third, Nunez asserts ineffective assistance of counsel for inviting him to testify about the witness's testimony foundation and for withdrawing a motion to strike parts of that testimony. Fourth, he claims the court erred by not entering a directed verdict of acquittal due to insufficient evidence, alternatively arguing ineffective assistance for failing to request such a verdict. Fifth, he alleges prosecutorial misconduct during closing arguments, asserting the court's failure to address it was plain error, and alternatively, that his counsel was ineffective for not objecting. Lastly, Nunez contends that the court inadequately addressed Juror 35's concerns and wrongfully dismissed them, also alleging ineffective assistance of counsel for not pursuing further discussions with Juror 35 or seeking a mistrial.

The standards of review for the claimed errors are outlined, emphasizing the trial court's discretion in evidence admission and the criteria for demonstrating plain error and ineffective assistance of counsel. Nunez must show that an obvious error occurred and that it was harmful, as well as that his counsel's performance fell below reasonable standards and caused prejudice.

Nunez alleges that the trial court erred in admitting evidence related to Kiara’s testimony and claims ineffective assistance due to failure to comply with Utah Rule of Criminal Procedure 15.5 for out-of-court statements by child victims. However, the court clarifies that compliance with rule 15.5 is not mandatory if the testimony is admissible under other evidentiary rules. The court references precedents indicating that rule 15.5 is permissive and not the exclusive avenue for admitting child testimony. It concludes that since Kiara’s statements were admissible under Utah Rule of Evidence 801(d)(1)(A), there was no plain error, nor did defense counsel provide ineffective assistance concerning her testimony. Furthermore, it highlights the difficulty Nunez faces in proving plain error when relying on a permissive rule, noting his failure to articulate how the trial court's actions constituted an obvious error.

Nunez argues against the prosecutor's use of the entire CJC interview under Utah Rule of Evidence 801(d)(1)(A), which permits non-hearsay admission of declarant's out-of-court inconsistent statements. However, the trial court effectively limited the portions of the interview presented to the jury, requiring the State to divide it into four segments to avoid including prior consistent statements. Nunez fails to demonstrate that the court erred in its application of rule 801(d)(1)(A) instead of rule 15.5.

Additionally, Nunez claims the State improperly invoked Utah Rule of Evidence 613 regarding prior inconsistent statements to justify the interview's admission. The court countered this by stipulating that admission was contingent upon Kiara testifying, allowing her to explain or deny the interview's contents. The court's application of rule 613 did not reflect any abuse of discretion.

To establish an ineffective assistance of counsel claim, Nunez must show that his attorney's representation fell below an objective standard of reasonableness. The analysis considers all circumstances and presumes that counsel's actions were within a reasonable range of professional assistance. Nunez does not meet this standard; his counsel's decision to forego a rule 15.5 challenge was reasonable, as rule 15.5 is permissive and the admission of the interview under rule 801(d)(1)(A) made a challenge seem futile. The defense counsel's strategy was sound, as they recognized the trial court had previously ruled the interview justified for trial. Therefore, pressing for compliance with rule 15.5 could have led to the entire interview being admitted, rather than just the inconsistent sections. This tactical choice allowed for a more favorable outcome for the defense.

Nunez argues that the CJC interviewer improperly enhanced Kiara’s credibility by stating that interviewers require children to promise to tell the truth, and claims that his counsel was ineffective for not objecting to this testimony. However, the court finds that an objection would have been futile, as there is no evidence that the interviewer improperly bolstered Kiara’s credibility. 

Regarding Witness's testimony, Nunez contends it was "incompetent" and should have been excluded under Utah Rules of Evidence 403 and 602, claiming it lacked knowledge, relevance, and clarity. The court disagrees, determining that Witness provided testimony based on her personal experiences, which was relevant to the case. Although her testimony may not have been perfectly clear, any deficiencies related to its weight, not admissibility, and could actually benefit the defense.

Nunez also challenges the exclusion of evidence intended to impeach Witness, arguing that the trial court abused its discretion. The court, however, found that Nunez did not adequately establish a foundation for the evidence of hostility between him and Witness's mother, nor did he address this during their testimonies. Citing State v. Cox, the court emphasized that evidence offered to show bias must be properly laid out, and since Nunez failed to do so, the exclusion was justified and not overly prejudicial.

Exclusion of evidence was deemed appropriate by the trial judge, who exercised discretion under Utah Rule of Evidence 403. Nunez sought to introduce evidence to imply that Witness, who is his ex-wife's child, might lie due to animosity between him and her mother. The court found this line of reasoning speculative and insufficiently grounded, emphasizing that Nunez provided no evidence indicating that any hostility was communicated to Witness. Furthermore, Witness had expressed fond feelings for Nunez, undermining the basis for suggesting she had motives to lie. The court ruled that admitting the evidence would distract from the case, mislead the jury, and waste time, thus excluding it as both inadmissible under Rules 403 and 608.

Additionally, Nunez claimed ineffective assistance of counsel, criticizing the decision to place him on the stand to discuss the home's layout and the subsequent withdrawal of a motion to strike parts of Witness’s testimony. However, the court concluded that these actions could have been reasonable strategic decisions by defense counsel. Nunez failed to demonstrate that counsel's performance was deficient under the legal standard established in State v. Ray.

Defense counsel's decision to call Nunez as a witness aimed to undermine the foundation of another witness’s testimony, asserting the testimony was about a home in Wyoming rather than Utah. Despite this strategy backfiring, resulting in the trial court concluding that a foundation was laid, it does not indicate deficient performance. The assessment of deficient performance hinges on whether a competent lawyer could have reasonably chosen the employed strategy in the trial's context, as established in *State v. Gallegos*. Even if the court sees no strategic merit in the challenged approach, it does not automatically imply deficiency, per *State v. Scott*. In this case, there was a reasonable strategic rationale for the defense's actions, attempting to counter the foundation of the witness’s testimony, making the strategy reasonable despite its unsuccessful outcome. 

Additionally, the decision to withdraw a motion to strike hearsay statements from the witness was also deemed objectively reasonable. Nunez's argument that this decision was inexplicable was countered by the defense's need to highlight inconsistencies in Kiara’s statements, which were crucial for their defense strategy. The trial court recognized this strategy, affirming its clarity.

Regarding the sufficiency of the evidence, Nunez claimed the State failed to present substantial evidence for his convictions, conceding he did not preserve this argument and asserting the court erred by not granting a directed verdict. He contended that Kiara’s lack of direct testimony on the charged offenses and the lower quality of the CJC interview evidence warranted this claim. However, upon review of relevant case law, it was concluded that Nunez did not demonstrate that an error had occurred.

An out-of-court hearsay statement, later denied by the declarant during testimony, was deemed insufficient to support a conviction, as established in the Ramsey case. The court concluded that a conviction cannot rely solely on such a statement. However, the case at hand differs from Ramsey in three significant ways: (1) the conviction was supported by additional evidence including witness and medical expert testimony; (2) the CJC interview was admitted as non-hearsay under Utah Rule of Evidence 801(d)(1)(A), thus not qualifying as hearsay; and (3) unlike in Ramsey, the declarant, Kiara, did not deny the CJC interview's content. The distinctions were reinforced by references to State v. Seale and State v. Stricklan, which clarified that corroborated testimonies or non-denied statements could sustain a conviction. Seale emphasized that a videotaped interview could be sufficient for conviction when the victim does not recant. Furthermore, Stricklan indicated that the sufficiency of evidence should be evaluated based on all evidence presented, allowing for the jury to assess the credibility of testimonies. Ultimately, the jury was tasked with determining whether the totality of evidence supported a conviction beyond a reasonable doubt, affirming that even an uncorroborated out-of-court statement could support a conviction if it was not denied.

An undenied, out-of-court, non-hearsay statement, supported by additional evidence, is sufficient to uphold the convictions, and the trial court did not err in refusing to grant a directed verdict in favor of Nunez based on evidence insufficiency. Nunez's claim of ineffective assistance of counsel is unfounded; defense counsel did not move for a directed verdict after the State's presentation, as reasonable evidence existed to support a jury verdict. Counsel's failure to make what would be a futile motion does not constitute ineffective assistance. The trial court’s performance is not deficient for refraining from such motions. 

Nunez also alleges prosecutorial misconduct during closing arguments, asserting that the court should have intervened or that defense counsel should have objected. However, these claims lack merit as the prosecutor did not engage in misconduct, and the court had no grounds for remediation. The prosecutor’s comments, including observations about Kiara's testimony and the effects of time on her memory, were appropriate inferences supported by evidence and did not improperly influence the jury. The distinction made between "incomplete" and "inconsistent" testimony was relevant and permissible for jury consideration.

Nunez contends that the prosecutor improperly referenced the testimony of the CJC interviewer, claiming it was an attempt to elicit detailed and accurate information from the child. The court found that the prosecutor's comments were not new evidence, nor did they constitute improper vouching or personal opinion; they merely reminded the jury of the testimony they had heard. Nunez also criticized the prosecutor for making statements about Kiara being "repeatedly abused" and "repeatedly raped," arguing these were uncorroborated and unreliable. However, the court noted that these statements aligned with the charges of multiple counts of rape and sodomy, as they indicated that the abuse occurred more than once.

Regarding jury deliberations, Nunez claimed that the court erred by limiting Juror 35's ability to detail her challenges during deliberations, failing to recognize a deadlocked jury, and not declaring a mistrial. He also argued that defense counsel was ineffective for not objecting to these issues. The court, however, concluded that any alleged error was invited by defense counsel's actions and that counsel provided reasonable assistance. Juror 35 faced difficulties adhering to the court's instructions not to discuss jury deliberations, and her emotional distress did not indicate she was a holdout or that her removal would influence the verdict. The jury had inquired about potential next steps if they were hung, suggesting deliberations were ongoing.

Juror 35 expressed discomfort and a lack of clarity during deliberations, feeling she would be interrogated and badgered. Despite this, the court noted that she did not disclose any specific outcome of the deliberations. Following discussions between defense counsel, Nunez, and his father, the defense counsel recommended releasing Juror 35, stating there was agreement on this course of action. The court found no error in this decision, as the defense counsel had invited the action by not objecting and affirmatively endorsing the restrictions on Juror 35’s discussion of deliberations. 

The document references the legal principle of "invited error," indicating that a party can’t claim error if they have previously agreed to or invited it. Nunez challenged the trial court's restrictions on Juror 35’s deliberation discussions, citing Utah Rule of Evidence 606, which restricts juror testimony post-verdict but does not preclude pre-verdict disclosures. 

Regarding ineffective assistance of counsel, Nunez argued that defense counsel failed to object to the restrictions and dismissal of Juror 35. However, the court concluded that defense counsel acted appropriately by requesting these actions, and there were valid reasons for their course of action, aligning with the long-established policy of confidentiality in jury deliberations.

Juror privacy during deliberations is emphasized as sacrosanct, with Rule 606(b) governing post-verdict inquiries without overriding existing legal restrictions on probing jury deliberations. Nunez failed to provide authority supporting his claims against this principle, and it is asserted that defense counsel acted appropriately by preventing Juror 35 from disclosing deliberation details, adhering to established legal norms. Nunez's ineffective assistance of counsel claim is deemed insufficient as counsel's actions were not unreasonable. Furthermore, counsel's decision to release Juror 35 and replace her with an alternate was deemed a sound strategic choice made after consultation with Nunez and his father. The circumstances indicated that Juror 35's presence was no longer beneficial, as the jury had been deliberating for about ten hours and had expressed confusion about the verdict process. Counsel's strategy aimed to maintain the jury's deliberative process rather than risk a mistrial, which would have been counterproductive.

A defendant's motion for mistrial typically does not impede reprosecution when circumstances arise not due to prosecutorial or judicial misconduct, even if the motion stems from such errors. The court deliberated on Juror 35's emotional struggles, which could adversely affect the trial's outcome. Defense counsel's interactions with Juror 35 revealed her ongoing distress from past incidents, suggesting she might be a potential holdout for conviction or acquittal. Juror 35 expressed feeling pressured during deliberations, raising concerns that she might change her opinion under duress. Given these factors, it was within reasonable professional judgment for defense counsel to seek her removal to prevent the risk of her capitulating due to fatigue or pressure.

The court recognized that appellate courts have supported the replacement of jurors whose physical or mental conditions hinder effective participation, even if such conditions are exacerbated by disagreements with fellow jurors. Consequently, defense counsel acted appropriately in consenting to Juror 35's replacement and not pursuing a mistrial, as both Nunez and his counsel believed this strategy would be more beneficial. The court affirmed that there was no abuse of discretion in admitting certain testimonies or excluding others, and that defense counsel did not provide ineffective assistance in navigating these issues. Furthermore, any alleged prosecutorial misconduct did not warrant action from the court or counsel, and the defense's strategy regarding Juror 35's dismissal did not constitute ineffective assistance. Ultimately, Nunez's convictions were affirmed.