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State v. Ramirez

Court of Appeals of Utah

November 29, 2019

State of Utah, Appellee,
Peter Ramirez, Appellant.

          Third District Court, Salt Lake Department The Honorable Royal I. Hansen No. 161907546

          Sarah J. Carlquist, Attorney for Appellant

          Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.

          AMENDED OPINION [1]

          HAGEN, JUDGE

         ¶1 A jury convicted Peter Ramirez of aggravated assault resulting in serious bodily injury stemming from an incident in which he struck another person in the face with an aluminum baseball bat. On appeal, Ramirez argues that he received ineffective assistance of counsel with respect to his mistaken-identity defense. Specifically, he claims that his defense counsel performed ineffectively by failing to (1) call an eyewitness identification expert, (2) request a cautionary instruction regarding eyewitness testimony, and (3) move to suppress three eyewitnesses' in-court identifications of Ramirez. Because his conviction is supported by overwhelming evidence, there is no reasonable probability that the jury would have acquitted Ramirez even if his defense counsel had successfully taken those actions. Accordingly, Ramirez has not demonstrated that he was prejudiced by any alleged deficiencies in his defense counsel's performance.

         ¶2 Ramirez also seeks remand under rule 23B of the Utah Rules of Appellate Procedure to supplement the record with evidence related to defense counsel's alleged failure to investigate a potential alibi defense. Because Ramirez has not provided adequate nonspeculative facts in support of his motion, we deny the rule 23B motion. Accordingly, we affirm his conviction.


         ¶3 Late one night, the victim, the victim's now-wife, and their friend (collectively, the eyewitnesses) were watching street races in Salt Lake City. Although it was near midnight, the area was well-lit by the moon, nearby street lamps, and headlights from dozens of cars in the area.

         ¶4 As the eyewitnesses waited for the races to begin, Ramirez pulled up in a dark-colored Ford Fusion and parked where the eyewitnesses had been standing, forcing them to move out of the car's way. Ramirez exited his vehicle and told the group, "[G]et the fuck off my car." The victim's friend, thinking that Ramirez was joking, said, "[D]ude, we're not on your car." Ramirez responded, "[O]h, you guys think this is fucking funny?" and then returned to his car. The eyewitnesses thought the altercation was over and resumed watching the street races.

         ¶5 But Ramirez returned from his car moments later carrying an aluminum baseball bat. He swung the bat, striking the victim in the face "as hard as he could." The victim fell to the ground, and his wife and the friend carried him away from Ramirez to safety. While carrying the victim to a safe location, the friend took note of the Ford Fusion's license plate number, later recording it on his phone. Ramirez remained by his car "for a minute" after the attack before leaving. Shortly thereafter, one of the eyewitnesses called the police and emergency medical personnel.

         ¶6 An ambulance transported the victim to a hospital where each of the eyewitnesses were interviewed by police. They all gave a similar description of the attacker: an adult Hispanic male, about 6' 2" tall, weighing around 230 pounds, with a long black beard, and wearing a black hat and an oversized black t-shirt. They also provided a description of the attacker's car, including its color and specific make and model.

         ¶7 In addition to the eyewitnesses' physical description of the attacker and his vehicle, the friend also gave the police the license plate number that he had recorded on his phone. However, the officer recognized that it was not a valid Utah license plate number because it had the wrong combination of letters and numbers. When the officer informed the friend that the license plate number was invalid, the friend pointed out one character and told the officer that if any of the numbers or letters were wrong, it had to be that one.

         ¶8 Using that information, the officer ran a license plate search by substituting different numbers or letters for the one character in which the friend lacked confidence. Using this method, he found a black Ford Fusion that matched five of the six characters in the license plate number the friend had recorded. The car was registered to Ramirez's father, who did not match the eyewitnesses' physical descriptions of the attacker. But police discovered a separate case involving the car that was ...

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