State v. Navarro

2019 UT App 2
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
ERNESTO N AVARRO,
Appellant.
Opinion
No. 20151019-CA
Filed January 4, 2019
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 M ICHELE M. C HRISTIANSEN F ORSTER authored this Opinion,
in which J UDGES JILL M. POHLMAN and DIANA HAGEN concurred.
CHRISTIANSEN FORSTER, Judge:
¶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

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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.
BACKGROUND
¶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

State v. Navarro
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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.”

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¶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.
ISSUE AND STANDARD OF REVIEW
¶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).
ANALYSIS
¶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

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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 element necessarily defeats the claim. Id. at 697;
State v. Hards, 2015 UT App 42, ¶ 18, 345 P.3d 769.
I. Hearsay
¶17 	Defendant first contends that his trial counsel “should
have objected to hearsay statements” elicited from a detective
“concerning 	prior 	consistent 	statements 	by 	the 	State’s 	key
witnesses”—Nephew and one of Victim’s nieces. Specifically, he
argues that the State was allowed “to ask a string of questions
bolstering the credibility of [Nephew] and another witness from
his group on the most contested issue at trial: who shot first.”
¶18 	A statement is hearsay when the declarant makes the
statement outside of court and the statement is offered into
evidence at trial to prove the truth of the matter asserted. See
Utah R. Evid. 801(c). However, as relevant here, when the
declarant 	is 	subject 	to 	in-court 	cross-examination, 	such 	a
statement will be considered non-hearsay when the statement
“is consistent with the declarant’s testimony and is offered to
rebut an express or implied charge that the declarant recently
fabricated it or acted from a recent improper influence or motive
in so testifying.” Id. R. 801(d)(1)(B).
¶19 	At trial, Nephew testified that Defendant’s group had
fired first and that no shots had been fired by Victim’s group.
Nephew admitted that after picking up 	reinforcements, the
Avalanche occupants went “looking for them guys, the guys that
were in front of [Victim’s group] in the green sedan.” When

State v. Navarro
20151019-CA 	6 	2019 UT App 2
asked why, he testified, “I believe we were going to go fight
them.” And despite believing that at least one of his companions
had a gun, Nephew claimed that they planned to fight “[w]ith
our fists.” According to Nephew, they encountered Defendant’s
group shortly after finding the empty sedan. Nephew stated that
Defendant’s group had at least two guns visible and that no one
in the Avalanche had a gun out. Victim stopped the Avalanche,
and without words being exchanged, “firing happened.” When
pressed on who shot first, Nephew answered that “[t]he first
shot came from the right side . . . of the vehicle” “from the alley.”
Nephew further testified that no shots were fired from the
Avalanche.
¶20 	During Nephew’s cross-examination, Defendant’s counsel
asserted that this account departed from the version Nephew
initially told to the police. Counsel asked Nephew whether he
had told “the police that originally [Victim] was taking [two
occupants of the Avalanche] home, and then you guys were
going to take [Victim’s nieces] to dinner before the run in with
[Defendant’s Group] took place.” Counsel also asked Nephew
whether he remembered telling police that one of the Avalanche
occupants “actually had a gun and that [he] heard it go off.”
Nephew denied that he had so informed the police.
¶21 	Defendant’s counsel then questioned Nephew about his
statement to the police that he had recognized some of the
people who had been firing at him, and Nephew admitted that
this statement had been false:
Q. 	You 	were 	interviewed 	at 	least 	three 	times,
correct?
A. Yes.
Q. And it was the second day that you gave them
the 	false 	information 	about 	three 	suspects that
were totally innocent?

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A. Yes.
Q. And your explanation of why you gave them
three suspects was because you felt pressured by
the police?
A. Yes.
Q. And instead of saying ‘I don’t know who they
were,’ you gave [inaudible] people?
A. I did tell them I didn’t know who they were.
Q. 	And 	you 	also 	told 	them 	that 	one 	of 	the
individuals goes by a street name of Radio, correct?
A. Yes, sir.
¶22 	Defendant’s counsel later called the detective to the stand
to 	testify 	regarding 	Nephew’s 	police 	report. 	The 	detective
testified 	that 	after 	Nephew 	implicated 	Radio, 	the 	detective
discovered Radio had been two and a half hours away from the
shooting when it happened. According to the detective, when he
confronted Nephew about Radio’s alibi, Nephew admitted that
Radio had not been involved, that Nephew had simply named a
person with whom he had past dealings, and that Nephew had
made up the name of one of the other people he had identified
as a suspect. The State then questioned the detective:
Q. [Nephew] was consistent that [Victim] was the
driver?
A. Yes.
Q. He was consistent that he was the passenger?
A. Yes.

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Q. He was consistent that there was another group
throwing gang signs . . . that they encountered?
A. Correct.
Q. And he was consistent that there [were] men in
the alley?
A. Yes.
Q. That those men in the alley had shot at his truck
he was in first?
A. That’s correct.
Q. He was consistent that he was hit in the arm and
close to his hip?
A. Yes.
Q. Those are the type of facts that most related to
your investigation, the shooting?
A. Yes. Those facts were everything related to the
shooting, yes.
. . .
Q. Did [Victim’s niece] ever deviate that the men
from the alley shot first at the truck?
A. No.
¶23 	Defendant contends that his counsel should have objected
to this line of questioning. “The purpose of rule 801(d)(1)(B) is to
admit statements that rebut a charge of recent fabrication or
improper influence or motive, not to bolster the believability of a
statement already uttered at trial.” State v. Bujan, 2008 UT 47,

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¶ 11, 190 P.3d 1255. Thus, even where testimony is properly
admitted for rehabilitative purposes, it should be limited to
“testimony that directly rebuts charges of recent fabrication,”
and 	not 	necessarily 	admitted 	in 	its entirety. 	Id. 	¶ 	10. 	Our
supreme court has also suggested that a limiting instruction may
be necessary to inform the jury that the testimony should be
considered 	only 	for 	rehabilitative 	purposes. 	See 	id. 	¶ 	9.
Defendant asserts that the string of questions calling out all of
Nephew’s prior consistent statements went beyond the scope of
admissibility 	under 	rule 	801(d)(1)(B) 	and 	inappropriately
bolstered Nephew’s testimony rather than merely rebutting a
charge 	of 	prior 	inconsistent 	statements, 	particularly 	in 	the
absence of a limiting instruction.
¶24 	But 	even 	assuming 	Defendant’s 	counsel 	performed
deficiently 	by 	failing 	to 	object 	to 	this 	line 	of 	questioning
or 	failing 	to 	request 	a 	limiting 	instruction, 	we 	ultimately
conclude that Defendant cannot demonstrate prejudice resulting
from this testimony. Defendant asserts that in the absence of
the detective’s testimony, “the State would [have been] hard
pressed 	to 	meet 	its 	burden 	to 	prove 	beyond 	a 	reasonable
doubt that [Defendant] did not act in self-defense.” But we
are not 	convinced 	that 	the 	introduction 	of 	Nephew’s 	prior
consistent statements had any significant impact on the ultimate
verdict.
¶25 	The Utah Supreme Court has recently explained that an
appellate court “must ‘consider the totality of the evidence
before the judge or jury’ and then ‘ask if the defendant has met
the 	burden 	of 	showing 	that 	the 	decision 	reached 	would
reasonably likely have been different absent the errors.’” State v.
Garcia, 2017 UT 53, ¶ 42, 424 P.3d 171 (quoting Strickland v.
Washington, 	466 	U.S. 	668, 	695–96 	(1984)). 	Accordingly, 	an
appellate 	court 	must 	“examine 	the 	record 	as 	a 	whole” 	to
determine whether the court’s confidence in the jury’s verdict is
undermined. Id. ¶ 45.

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20151019-CA 	10 	2019 UT App 2
¶26 	While 	the 	detective’s 	testimony 	may 	have 	reinforced
Nephew’s testimony to some degree, other credibility issues
with his testimony remained—notably his admitted lies to police
in the course of the investigation and his motivation to fabricate
testimony both at the time he spoke to police and at the time of
trial. 	Further, 	there 	was 	much 	more 	to 	the 	question 	of
self-defense in this case than who shot first. A defendant cannot
claim self-defense when he was “attempting to commit” or
“committing . . . a felony” or “was the aggressor or was engaged
in a combat by agreement.” Utah Code Ann. § 76-2-402(2)(a)
(LexisNexis 2012).
¶27 	The totality of the evidence includes the testimony of
Defendant 	and 	his 	companions, 	Driver, 	and 	Passenger.
Defendant testified that his group left the apartment to buy some
food, not to seek out the Avalanche or Victim’s group. He also
explained his decision to retrieve his gun and take it with him;
he testified that he took it because he “was concerned.” But
Driver testified that Defendant stated, “Let’s go get these fools,”
and Passenger testified that Defendant said, “We got to do
something about him if we see him again.” See supra ¶ 6. Thus,
two of Defendant’s own companions testified that the group left
the apartment seeking a confrontation. His companions also
testified “they always do something to” members of rival gangs
when they see them; that Defendant had been “[t]hrowing up
gang signs;” that Defendant had his gun out even before the
Avalanche 	arrived 	in 	the 	alley; 	and 	that 	it 	was 	possible
Defendant had fired first. This testimony was consistent with
other 	testimony 	presented 	by 	the 	State, 	discussed 	above,
suggesting that Defendant’s group began the firefight.
¶28 	Additionally, Defendant’s actions and initial statements to
police were evasive and designed to frustrate an investigation
into his role in Victim’s death. Defendant’s companions testified
that upon returning to the apartment, he attempted to hide the
gun, remove gun residue from his person, and he expressed
excitement that he could now get his gang tattoo as a result of

State v. Navarro
20151019-CA 	11 	2019 UT App 2
the shooting. Upon his arrest several days after the shooting,
Defendant did not claim to have acted in self-defense. Instead,
he first gave police a false name, denied driving the sedan, and
denied having been anywhere in the area for years. Defendant
also claimed to have been staying at a hotel but could not
remember the hotel’s name. Later, Defendant admitted he had
been to the apartment, but only to feed some dogs; however, he
could not name the owner of the dogs. Defendant also claimed
that he had been working at a hospital on the day of the
shooting. And still later, Defendant admitted that he had been
staying at the apartment but denied having been present at the
shooting. Finally, Defendant admitted that he had witnessed the
shooting but denied firing his gun. It was not until trial that
Defendant admitted he had fired his gun at the Avalanche, but
only in self-defense. Defendant’s evolving and uncorroborated
account likely made it difficult for the jury to credit his trial
testimony.
¶29 	All 	this 	evidence 	amply 	supports 	a 	conclusion 	that
Defendant actively sought a fight with Victim rather than acting
in self-defense. Thus, we are not convinced that “there is a
reasonable probability that . . . the result of the proceeding
would have been different” without the detective’s testimony.
See Strickland, 466 U.S. at 694. Defendant therefore cannot show
that he was deprived of the effective assistance of counsel with
regard to the detective’s testimony.
II. Jury Instruction
¶30 	Defendant 	also 	contends 	that 	his 	trial 	counsel 	was
constitutionally ineffective for failing to object to an erroneous
jury 	instruction. 	Specifically, 	he 	argues 	that 	his 	counsel
“approv[ed] a jury instruction stating that [Defendant] could be
convicted of manslaughter only if the jury found beyond a
reasonable doubt that imperfect self-defense applied” instead of
stating that “[Defendant] could be convicted of manslaughter

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20151019-CA 	12 	2019 UT App 2
only if the State failed to disprove imperfect self-defense beyond
a reasonable doubt.”
¶31 	Utah law provides that a murder charge may be reduced
to 	a 	manslaughter 	charge 	when 	the 	defendant 	erroneously
believed 	that 	the 	killing 	was 	legally 	justified, 	such 	as 	in
self-defense:
It 	is 	an 	affirmative 	defense 	to 	a 	charge 	of
murder . . . that the defendant caused the death of
another . . . under 	a 	reasonable 	belief 	that 	the
circumstances 	provided 	a 	legal 	justification 	or
excuse for the conduct although the conduct was
not 	legally 	justifiable 	or 	excusable 	under 	the
existing circumstances.
Utah Code Ann. § 76-5-203(4)(a) (LexisNexis 2012). “Once a
defendant 	has 	produced 	some 	evidence 	of 	imperfect
self-defense, the prosecution is required to disprove imperfect
self-defense beyond a reasonable doubt.” State v. Lee, 2014 UT
App 4, ¶ 27, 318 P.3d 1164 (quotation simplified). “Because the
burden of proof for an affirmative defense is counterintuitive,
instructions on affirmative defenses must clearly communicate
to the jury what the burden of proof is and who carries the
burden.” Id. (quotation simplified).
¶32 	Here, the jury received three instructions regarding the
burden of proof. Instruction 55 explained that “[t]he defendant is
not required to prove that the defense [of imperfect self-defense]
applies. Rather, the State must prove beyond a reasonable doubt
that the defense does not apply.” And Instruction 71 explained,
“The 	laws of 	Utah do 	not require 	the defendant 	to 	prove
self-defense. Once self-defense or imperfect self-defense is raised
by the defendant, it is the prosecution’s burden to prove beyond
a 	reasonable 	doubt 	that 	the 	defendant 	did 	not 	act 	in
self-defense.” These instructions correctly stated the relevant
law.

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20151019-CA 	13 	2019 UT App 2
¶33 	However, Instruction 53, to which Defendant’s counsel
acquiesced, erroneously placed the burden on Defendant to
prove that imperfect self-defense applied beyond a reasonable
doubt:
You 	cannot 	convict 	the 	Defendant, 	Ernesto
Navarro, of the offense of Manslaughter unless you
find from all the evidence, and beyond a reasonable
doubt, 	each 	and 	every 	one 	of 	the 	following
elements: 	1. 	That 	the 	defendant, 	Ernesto
Navarro, . . . 2. committed the offense of Murder under
circumstances amounting to imperfect self-defense . . . .
(Emphases added). The State concedes that Instruction 53 was
erroneous but argues that Defendant was not prejudiced by the
error because he was not entitled to claim imperfect self-defense.
¶34 	In the State’s view, Defendant was not entitled to claim
imperfect self-defense because he could not have acted “‘under a
reasonable, but legally mistaken, belief that his use of deadly
force was justified.’” (Quoting Lee, 2014 UT App 4, ¶ 29.) As
discussed above, a defendant cannot claim self-defense when the
defendant is engaged in committing a felony, is the aggressor, or
is 	engaged 	in 	combat 	by 	agreement. 	See 	Utah 	Code 	Ann.
§ 76-2-402(2)(a).
¶35 	Defendant was the only witness to testify that his group
had not sought to confront Victim’s group after leaving the
apartment, and his uncorroborated account contradicted the
testimony of other witnesses credited by the jury. The jury
apparently found that Defendant’s group had left the apartment
in 	the 	hopes 	of 	confronting 	Victim’s 	group. 	Given 	the
overwhelming evidence that Defendant was the aggressor, there
is no reasonable probability that the jury would have convicted
Defendant of the lesser offense of manslaughter if Instruction 53
had 	properly 	explained 	the 	burden 	of 	proof. 	Because 	the
evidence failed to establish a claim of imperfect self-defense,

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20151019-CA 	14 	2019 UT App 2
Defendant 	did 	not 	suffer 	prejudice 	when 	one 	of 	the 	three
instructions misstated the burden of proof.1
¶36 	Because Defendant has not shown how the erroneous
instruction prejudiced his case, he has failed to demonstrate that
his counsel’s assistance fell below the constitutionally required
level. 	See 	Strickland 	v. 	Washington, 	466 	U.S. 	668, 	687 	(1984)
(holding that a defendant must prove both counsel’s deficient
performance and resulting prejudice to succeed on a claim of
ineffective assistance of counsel); see also State v. Hards, 2015 UT
App 42, ¶ 18, 345 P.3d 769 (“Because both deficient performance
and resulting prejudice are requisite elements of an ineffective
assistance of counsel claim, a failure to prove either element
defeats the claim.”).
III. Cumulative Error
¶37 	In Defendant’s reply brief, he asserts that “the two errors
worked together—both the inadmissible hearsay and the faulty
1. Our conclusion on this point is reinforced by the fact that the
jury did not ask the court to reconcile or explain the conflicting
instructions 	regarding 	the 	burden 	of 	proof 	for 	a 	claim 	of
imperfect self-defense, suggesting that the jury did not believe
that imperfect self-defense applied, regardless of who bore the
burden of proof. It is also worth noting that both the State and
the defense attempted to steer the jury away from manslaughter.
The State implored the jury, “We are not [asking you to consider
manslaughter]. We are asking you to convict the defendant of
murder 	because 	that’s 	what 	he 	did.” 	The 	defense 	likewise
eschewed a manslaughter request, stating, “We’re not asking
you to find him guilty of manslaughter. We’re asking you to find
. . . . [t]hat he was justified in defending himself. . . . Please find
him 	not 	guilty.” 	Thus, 	the 	jury 	may 	have 	paid 	very 	little
attention to the manslaughter instruction that contained the
erroneous language.

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20151019-CA 	15 	2019 UT App 2
instruction 	prevented 	the 	jury 	from 	considering 	imperfect
self-defense.” However, “issues raised by an appellant in the
reply brief that were not presented in the opening brief are
considered waived and will not be considered by the appellate
court.” Allen v. Friel, 2008 UT 56, ¶ 8, 194 P.3d 903 (quotation
simplified). Thus, Defendant has waived his cumulative-error
claim.
CONCLUSION
¶38 	Defendant’s trial counsel’s failure to object on hearsay
grounds to testimony regarding Nephew’s initial statement to a
detective and counsel’s failure to object to the erroneous jury
instruction 	did 	not 	lead 	to 	any 	discernable 	prejudice. 	We
therefore conclude that Defendant has not demonstrated that his
counsel’s assistance was constitutionally ineffective.
¶39 	Affirmed.