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State v. Navarro

Court of Appeals of Utah

January 4, 2019

State of Utah, Appellee,
Ernesto Navarro, Appellant.

          Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 141907986

          Nathalie S. Skibine, Attorney for Appellant

          Sean D. Reyes and Karen A. Klucznik, Attorneys for Appellee

          Judge Michele M. Christiansen Forster authored this Opinion, in which Judges Jill M. Pohlman and Diana Hagen concurred.



         ¶1 Two groups of rival gang members encountered each other and began shooting. When the shooting stopped, a man in one group was dead, killed instantly by a bullet that hit his neck and severed his spine. Defendant Ernesto Navarro was in the other group and was convicted of several charges including murder. He now challenges those convictions on two grounds.

         ¶2 Defendant contends that he received constitutionally ineffective assistance of counsel because (1) his trial counsel failed to object on hearsay grounds to a detective's testimony concerning another witness's trial testimony and (2) his trial counsel failed to correct a jury instruction that misstated the law regarding imperfect self-defense. Because Defendant did not suffer prejudice from the detective's testimony or the erroneous jury instruction, we conclude that Defendant did not receive constitutionally ineffective assistance of counsel. We therefore affirm.


         ¶3 Victim, a gang member, was driving a stolen Chevrolet Avalanche. His nephew (Nephew) was riding in the front passenger seat while Victim's two nieces sat in the back. The group encountered a sedan containing four members of a rival gang. Traveling in the sedan were Defendant, Driver, Passenger, and another individual who did not testify at trial.

         ¶4 The sedan stopped to investigate a man wearing blue- the color of a rival gang. According to Driver, if the person belonged to a rival gang, "[they] would have got out and fought with him or done anything, because if he's a rival gang member, then usually [they] go and . . . do something to him." However, the sedan occupants determined that the man was not from a rival gang and continued driving. They then noticed that the Avalanche was following them and that it was driven by someone-Victim-wearing red, the color of another rival gang.

         ¶5 People in both vehicles, including Defendant, began using hand gestures to signal their gang affiliation, commonly referred to as "throwing up gang signs." However, Driver refused to stop the sedan because he sensed "something was going to happen" and the sedan belonged to his mother. Eventually, Driver drove down an alley to elude the pursuing Avalanche.

         ¶6 After losing the Avalanche, Driver parked the sedan at Defendant's apartment. They went inside "to get something to drink" and turned on a video game console. When they decided to leave the apartment, Defendant took his gun with him because he "was concerned." Defendant's group continued on foot. According to Defendant, they left to go to the store to buy some food and did not expect to meet the Avalanche occupants again. But according to Driver, Defendant said, "Let's go get these fools," and, according to Passenger, Defendant said, "We got to do something about him if we see him again."

         ¶7 Meanwhile, after losing sight of the sedan, Victim drove off to pick up three of his brothers-in-law, two of whom were members of his gang and at least one of whom had a gun on his person. With these reinforcements, Victim then began driving around, looking for the sedan or Defendant's group intending to fight them.

         ¶8 Victim eventually spotted the empty sedan. He continued driving the Avalanche around until he found Defendant's group walking down an alley. Victim stopped the Avalanche at a right angle to the alley.

         ¶9 Shortly thereafter, a flurry of gunfire erupted, drawing the attention of other nearby witnesses. One of the shots killed Victim. Another wounded Nephew. Everyone in the Avalanche, except Victim, scrambled to get out of the vehicle and then fled. Defendant's group also ran away.

         ¶10 At least thirteen shots were fired. Police later found seven spent bullet casings from Defendant's .40 caliber firearm and five spent casings from Passenger's 9mm firearm in the alley where Defendant's group had been standing. Outside the driver's side passenger door of the Avalanche, police found one spent casing and matched it to a 9mm gun found next to the driver's seat inside the Avalanche.

         ¶11 Defendant's group returned to his apartment, where he took a shower to remove any gunshot residue. He then left the apartment, taking both his and Passenger's guns, and attempted to stash them where they would not be found by police. According to Defendant, Passenger instructed him "to not talk to the police," and threatened that if Defendant did talk to police, "that would mean danger [to Defendant's] life or [his] family."

         ¶12 Police officers eventually located and arrested Defendant. When he was arrested, Defendant gave a false name. At trial, Defendant admitted that he had lied to the arresting officers. For example, he acknowledged that although he had owned his gun for about six months, he told the arresting officers that he had only received his gun on the day he was arrested. Defendant further acknowledged that he lied to police by telling them he had never been to the apartment even though he had lived there for two months, and by telling them that he had been working at a hospital on the day of the shooting.

         ¶13 Defendant was charged with murder, obstruction of justice, and felony discharge of a firearm. Following a jury trial, he was convicted on all counts.


         ¶14 Defendant contends that he was deprived of his constitutional right to effective assistance of counsel. See generally Strickland v. Washington, 466 U.S. 668, 686 (1984) ("The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result."). "When a claim of ineffective assistance of counsel is raised for the first time on appeal, there is no lower court ruling to review and we must decide whether the defendant was deprived of the effective assistance of counsel as a matter of law." Layton City v. Carr, 2014 UT App 227, ¶ 6, 336 P.3d 587 (quotation simplified).


         ¶15 Defendant contends that he was deprived of the effective assistance of counsel in two ways. First, he asserts that his trial counsel was ineffective for failing to object to certain testimony he characterizes as hearsay. Second, he asserts his counsel was ineffective for failing to object to an erroneous jury instruction.

         ¶16 To demonstrate ineffective assistance of counsel, a defendant must show that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Because both deficient performance and resulting prejudice are requisite elements for a claim of ineffective assistance of counsel, failure to prove either ...

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