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State v. Garcia

Court of Appeals of Utah

November 9, 2017

State of Utah, Appellee,
Jose Amparo Garcia, Appellant.

         Second District Court, Ogden Department The Honorable W. Brent West No. 141901202

          Samuel P. Newton, Attorney for Appellant.

          Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee.

          Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen concurred.

          HARRIS, JUDGE.

         ¶1 A man (Husband) and his wife (Wife) were attending a barbecue at their neighbor's house one night when a fight broke out. During the altercation, Husband was stabbed thirteen times, and Wife was groped, assaulted, and threatened. Wife subsequently called the police and implicated three assailants, including Defendant Jose Amparo Garcia.

         ¶2 After trial, Defendant was convicted of attempted murder, a first degree felony, and misdemeanor assault. He appeals both convictions, contending that he was denied his right to the effective assistance of counsel, and that the trial court improperly failed to conduct an investigation after Defendant informed the court that he was not satisfied with his counsel. We disagree, and therefore affirm Defendant's convictions.


         ¶3 On the evening of May 31, 2014, Husband and Wife attended a barbecue at the residence of their neighbor, Defendant's uncle (Neighbor). The three began to socialize, and Husband and Wife ended up staying for several hours. Later in the evening, Defendant arrived at the barbecue along with a friend (Friend). Wife did not know Defendant or Friend.

         ¶4 At some point not long after Defendant and Friend arrived, an altercation erupted. Wife testified that, "out of nowhere, " Friend told Husband that Friend was "going to shank you to death, mother 'effer." Friend got "riled up" with Husband, and Neighbor led Husband into the backyard, away from the confrontation with Friend. Wife further testified that, as Neighbor and Husband talked, Defendant and Friend began "getting hyped up" and pacing closer to Husband and Neighbor. When she tried to approach Defendant and Friend and persuade them to calm down, Friend grabbed her, held her with one arm so that she could not get away, and groped her. Wife testified that almost immediately after Friend let go of her, Neighbor suddenly began punching Husband. At this point, Defendant and Friend entered the backyard and joined Neighbor in punching and kicking Husband. Defendant and Friend appeared to be holding objects and delivering quick, short strikes to Husband's body. During the altercation, Husband was stabbed thirteen times, including twice in the face. As a result of the stabbing, Husband's lungs were punctured and an artery in one of his arms was cut.

         ¶5 Wife also testified that, as the fight was ongoing, she took her phone out to call the police, but either Defendant or Friend knocked it out of her hands. As she tried to retrieve her phone, Friend and Defendant attacked her, shoving her into a fence and punching her in the face. She testified that Friend then attempted to leave the scene to get a weed-whacker while proclaiming, "I'm going to finish [Husband] off. I'm going to kill him." Wife then got in Friend's way and shouted that she was calling the police. Upon hearing this, Defendant and Friend resumed assaulting her and stated that they would kill both her and Husband if she called the police. Soon thereafter, Defendant and Friend fled, and Wife was able to notify the police.

         ¶6 Police officers responded to the incident and apprehended Friend later that night. During a police interview shortly afterward, Friend admitted to his involvement in the altercation but claimed that Defendant was solely responsible for stabbing Husband and that Defendant would confess if confronted.

         ¶7 The next day, Defendant was apprehended. During his subsequent police interview, Defendant confirmed that he was involved in the altercation with Husband. Specifically, although he admitted that he had punched and kicked Husband, he claimed that he had not hit or threatened Wife. He did not mention the stabbing. When the interviewing officer brought up the stabbing, Defendant expressed surprise. Defendant also claimed that Friend had told him that Friend had groped Wife, but Defendant maintained that he and Friend did not further assault her. Defendant also informed the interviewing officer that he had not wanted to implicate Friend because Defendant was afraid of being "violated" by members of his gang. At trial, one of the State's witnesses explained that gang members would be "violated" if they "snitched" on fellow gang members and that being "violated" typically entailed getting "beat up, " "stabbed, " or suffering other consequences, depending on the severity of the "violation." During the interview, Defendant explained that he had been "violated" by the gang before and that gang members had put a gun to his loved one's head.

         ¶8 Neighbor also testified to his version of events. Neighbor acknowledged the altercation, but maintained that Husband had hit him first. He claimed he then lost consciousness almost immediately and could not remember the majority of the fight, and that he did not see who stabbed Husband. On cross-examination, Neighbor also acknowledged that he, Friend, and Defendant were all gang members and that it would be considered "snitching" if any of them were to implicate any of the others.

         ¶9 The State charged Defendant with attempted murder of Husband and with assaulting Wife. The State charged an "in concert" enhancement for both offenses, alleging that Defendant had committed them in concert with two or more persons, and charged a "use of a deadly weapon" enhancement for the attempted murder charge. With those enhancements, the attempted murder count was charged as a first degree felony, and the assault count was charged as a class A misdemeanor. See Utah Code Ann. § 76-5-203(2)(a)-(c) (LexisNexis 2012); id. § 76-4-10 (2012); id. § 76-5-102(3)(a) (Supp. 2017). Friend was charged separately for his involvement in the altercation.

         ¶10 Prior to Defendant's trial, Friend pled guilty to reduced charges in his own case. Thereafter, during Defendant's trial, Friend testified in contradiction to his earlier police-interview statements. Friend had initially told officers that Defendant had been solely responsible for the stabbing. However, at Defendant's trial, Friend testified that Defendant had merely punched and kicked Husband and that Friend was solely responsible for stabbing Husband.

         ¶11 During pretrial proceedings, Defendant was initially provided a public defender, and that appointed attorney appeared on Defendant's behalf at his initial appearance and at least once thereafter. Early in the proceedings, however, Defendant retained a different attorney, and upon that attorney's appearance, the public defender withdrew. Thereafter, and all the way through trial, Defendant was represented by his own retained lawyer.

         ¶12 At trial, the State relied primarily on the testimonies of Husband and Wife that Defendant, Neighbor, and Friend had attacked them without provocation and that Defendant and Friend had stabbed Husband. The State also introduced evidence that Defendant, Neighbor, and Friend were current or former gang members, and that their gang would discourage all three from "snitching" on each other. A witness for the State explained that Defendant's face tattoo-which was not shielded from the jury's view-marked his affiliation with a gang, and the witness expounded upon the notion that a gang member could be "violated" for snitching. Defense counsel did not object to the presentation of this gang evidence.

         ¶13 Instead, defense counsel relied on the testimony from Neighbor that Husband started the fight, and the new narrative from Friend-that Defendant never stabbed Husband-to present a theory of the case that limited Defendant's culpability. Defense counsel acknowledged Defendant's admission, in his police interview, that he had punched and kicked Husband, but defense counsel maintained that Defendant did so only to defend Neighbor from Husband. Further, defense counsel argued that, in the confusion of the fray, Defendant was not aware that Friend had stabbed Husband until after the altercation. Accordingly, defense counsel presented the theory that Defendant was innocent of attempted murder because, while he concededly assaulted Husband in defense of Neighbor, he did not do so while Friend was stabbing Husband and did not know about or participate in the stabbing. Defendant did not testify at trial.

         ¶14 In closing arguments, the State argued that Neighbor and Friend were untrustworthy witnesses and maintained that the only credible version of the altercation was the version that Husband and Wife presented. The jury apparently agreed, returning a guilty verdict on both counts, as well as on the two enhancements to attempted murder.[2]

         ¶15 After his conviction but before his sentencing hearing, Defendant sent a letter to the court indicating that he was unhappy with his retained defense counsel and that he wanted to appeal. The trial court addressed the letter only briefly, by informing Defendant that his appeal was premature and instructing him ...

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