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State v. Tirado

Court of Appeals of Utah

February 16, 2017

State of Utah, Appellee,
William Tirado, Appellant.

         Second District Court, Ogden Department The Honorable Ernest W. Jones No. 121901668

          Margaret P. Lindsay and Douglas J. Thompson, Attorneys for Appellant

          Sean D. Reyes and Kris C. Leonard, Attorneys for Appellee

          Judge Michele M. Christiansen authored this Opinion, in which Judges Kate A. Toomey and Jill M. Pohlman concurred.


          CHRISTIANSEN, Judge:

         ¶1 William Tirado (Defendant) challenges his conviction on one count of arranging the distribution of a controlled substance, a second degree felony.[1] Specifically, he contends that he received constitutionally ineffective assistance of counsel because his attorney labored under a conflict of interest arising from the concurrent representation of Defendant's cousin (Cousin) on related charges. Defendant seeks (1) reversal of his conviction(s) and remand for a new trial or (2) remand for an evidentiary hearing pursuant to rule 23B of the Utah Rules of Appellate Procedure. We remand for a limited evidentiary hearing.


         ¶2 On appeal from a jury verdict, we view the evidence and all reasonable inferences in the light most favorable to that verdict and recite the facts accordingly; however, we also discuss conflicting evidence as necessary to understand the issues raised on appeal. State v. Dozah, 2016 UT App 13, ¶ 2, 368 P.3d 863.

         ¶3 A confidential informant approached his police contact (Officer), saying that he had arranged to purchase approximately 7 grams of methamphetamine from Defendant for $440. Officer set up a sting operation to catch those involved.

         ¶4 Officer drove past Defendant's house and saw him standing out front with Cousin. Officer recognized Cousin as someone with whom he "had prior dealings" for drug activities. Officer parked around the corner and had the informant call Defendant. The informant asked Defendant whether "he had it" and then confirmed "four-four-zero." Although there was no specific mention of drugs, Officer testified at trial that such obfuscations were a normal part of drug transactions. Indeed, while testifying at trial, the informant stated that asking whether Defendant "had it" meant asking "if he had the dope, if he had it on him."

         ¶5 The informant then told Defendant to meet him near a library. Officer searched the informant before giving him cash to make the deal and fitting him with an audio recording device. Officer instructed the informant not to cross the street "for his and for officer safety." The informant then walked down the street and stopped at a corner across the street from Defendant, who asked if the informant had the money. After the informant replied affirmatively, Defendant stated that "my friend's already left" or "they've already left." Due to Officer's instruction not to cross the street, the informant and Defendant "held at their corners" and "were mostly conversing back and forth across the street, mostly trying to get one another to cross the street to meet." Ultimately, the two did not have a face-to-face meeting, no drug transaction took place, and the informant just walked away.

         ¶6 Officer then arrested Cousin, apparently because Cousin was already wanted on other drug charges. Cousin had 2.1 grams of methamphetamine on his person-less than half of the 7 grams the informant had agreed to buy from Defendant. Cousin stated in his police interview that "if he needed to sell [methamphetamine], he would sell from that specific amount." At Defendant's trial, Officer testified that, in previous sting operations, Officer himself had purchased drugs from Cousin. Officer further testified that "from my knowledge of [Cousin], he deals directly to his people" and did not use an intermediary.

         ¶7 Officer also took Defendant into custody, but found no drugs or paraphernalia on his person. While Defendant was in custody, other police officers obtained permission from Defendant's fiancée and roommate to search his home. The search turned up drug paraphernalia-pipes, baggies, and scales-that Defendant later admitted were "all his." Defendant was charged by information with possession of drug paraphernalia; after he pled not guilty to that charge, the State amended the information to add the felony charge of arranging the distribution of a controlled substance.

         ¶8 Defendant and Cousin were represented by the same appointed counsel (Attorney) in their separate cases. Cousin pled guilty to amended charges stemming from his involvement in this case. At Defendant's subsequent trial, Attorney did not call Cousin as a witness and did not challenge Cousin's out-of-court statements that were admitted as ...

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