State v. Crespo

2017 UT App 219

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

SANTIAGO DIAZ CRESPO,

Appellant.

Opinion

No. 20150631-CA

Filed November 24, 2017

Third District Court, Salt Lake Department

The Honorable Katie Bernards-Goodman

No. 131902928

Samuel P. Newton, Attorney for Appellant

Sean D. Reyes and Karen A. Klucznik, Attorneys

for Appellee

JUDGE KATE A. TOOMEY authored this Opinion, in which JUDGES

DAVID N. MORTENSEN and JILL M. POHLMAN concurred.

TOOMEY, Judge:

¶1 Faced with a rape accusation that he believed was

motivated by a disputed drug debt, Santiago Diaz Crespo asked

his associate (Codefendant) to offer the victim (Victim) cocaine

to “get him in the door” to talk to Victim about retracting the

rape accusation. Shortly after Victim let Codefendant into her

apartment to smoke crack cocaine and talk about the accusation,

Crespo appeared in her doorway, gun drawn, and fired three

shots. A few moments later, Crespo and Codefendant ran from

Victim’s apartment, leaving her dead. They were each charged

with murder; aggravated burglary; and purchase, transfer,

possession or use of a firearm by a restricted person. In exchange

for dismissing the murder charge against him, Codefendant

State v. Crespo

agreed to plead guilty to the other charges and to testify against

Crespo at trial.

¶2 Crespo was convicted and now appeals, claiming that his

conviction was not supported by sufficient evidence due to the

“self-serving and inconsistent testimony of a highly incentivized

snitch,” that defense counsel rendered ineffective assistance of

counsel when counsel failed to request a cautionary jury

instruction related to Codefendant’s testimony, and that the

district court erred in failing to properly inquire into the nature

of a conflict Crespo developed with defense counsel. We

conclude there was sufficient evidence to convict Crespo of all

charges, that defense counsel rendered effective assistance, and

that the district court adequately inquired into the nature of the

conflict between Crespo and his defense counsel. Accordingly,

we affirm.

BACKGROUND

The Murder

¶3 Crespo was a drug dealer who sold drugs to Victim. 1

Crespo and Victim were friends. But a few days before Victim’s

murder, she reported to the police that Crespo had raped her.

Codefendant, who dealt drugs for Crespo, testified that both he

and Crespo believed Victim’s accusation was an attempt to

avoid paying her drug debt to Crespo. Though Crespo had

informed Codefendant that he had already discussed the rape

accusation with Victim and that they worked out the issue, the

person who drove Crespo during his drug runs (Driver),

1. “On appeal, we review the record facts in a light most

favorable to the jury’s verdict and recite the facts accordingly.”

State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal

quotation marks omitted).

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State v. Crespo

testified that Crespo was angry about the accusation the day of

Victim’s murder. During one of their drives, Crespo called

Victim’s neighbor (Neighbor), another of his customers, to ask if

he could borrow a gun, but Neighbor did not have a gun to lend.

Neighbor testified that Crespo did not mention why he needed a

gun, but that reason soon became apparent. Crespo then made

another phone call, during which he expressed his anger about

Victim’s rape allegation and said, “Dead bitches can’t talk.”

¶4 On the night of the murder,2 Crespo, Codefendant,

Driver, and others met at a hotel to drink alcohol and use drugs.

During this time, Victim and Codefendant exchanged text

messages and phone calls related to her desire to buy drugs, the

drugs Codefendant had available, and when he would bring

them to Victim.

¶5 Before going to Victim’s apartment, Crespo and

Codefendant spoke with another individual at the hotel, Friend,

about guns and ammunition. Friend loaned a Phoenix .22 caliber

gun to Codefendant, assuming it was for safety or for use as a

scare tactic. Crespo, who had obtained a gun before meeting the

others at the hotel, offered Friend one hundred dollars’ worth of

cocaine in exchange for .22 caliber ammunition. After collecting

the guns and ammunition, Driver drove Crespo and

Codefendant to Victim’s apartment.

¶6 During the drive, Crespo told Codefendant to convince

Victim not to press charges for rape. He gave Codefendant

cocaine to give to Victim, free of charge, to entice her to allow

Codefendant inside her apartment for a conversation. Crespo

2. Victim’s murder occurred in the early morning hours of the

day, between 3:24 and 3:56 a.m. But because the events leading

to her murder began the evening before, this opinion refers to

the period surrounding the murder as the “night of the murder.”

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State v. Crespo

also said that while Codefendant met with Victim, Crespo would

visit another friend in the area, waiting to hear whether Victim

wanted to discuss the accusation with him further. Codefendant

continued to text Victim that he was on his way to her apartment

with the drugs she requested. At 3:24 a.m., Victim, still waiting,

sent a text asking, “Where are you?”

¶7 Just before reaching Victim’s street, Crespo told Driver to

park a block away from her apartment, even though he usually

parked in front of it. Codefendant and Crespo exited the car and,

at first, walked in opposite directions. According to Driver,

Crespo originally walked toward another friend’s house, but

after about thirty seconds turned around and walked toward

Victim’s apartment. Private security cameras installed on a

house where Driver parked his car corroborated Driver’s

account of this event.

¶8 Sometime between 3:24 and 3:56 a.m., Codefendant

arrived at Victim’s apartment. Crespo’s plan to offer her free

cocaine was successful, and she invited Codefendant inside to

smoke it. They began smoking, but their conversation about the

rape accusation did not get far. Victim said that “there [was] no

way in heaven to hell” she would ever talk to or see Crespo

again, and she refused to recant her accusation. Codefendant did

not push her on this and said he would let Crespo know how

she felt. But before he left, Crespo, who Codefendant testified

was waiting outside the door listening to the conversation, “flew

through the door with his gun drawn,” pointing it first at

Codefendant then at Victim. He walked closer to Victim and

started shooting. Codefendant claimed he “blacked out” when

the shooting began, and it was as though he “saw it but [did not]

remember seeing it.” The next thing he remembered was

standing at the front door and listening as more shots were fired

before Crespo pushed him, saying, “Come on, let’s get out of

here.”

20150631-CA 4 2017 UT App 219

State v. Crespo

¶9 They both ran from the apartment toward a gas station

rather than back to Driver’s car. When Codefendant reached the

gas station, he deleted his text message conversation with Victim

but, at 3:56 a.m., sent her a final text saying, “I’m not coming” in

an effort “to hide the fact” that he was at Victim’s apartment

when she was murdered. Codefendant ordered a taxicab to drive

him and Crespo back to the hotel.

¶10 Neighbor heard the gunshots and went to Victim’s

apartment to check on her. He found her lying behind the front

door, bleeding from her head, and checked for a pulse while

calling 911. When the dispatcher asked Neighbor to attempt to

resuscitate Victim, he informed the dispatcher she had no pulse.

Victim was pronounced dead on the scene and had sustained

three gunshot wounds. She had been shot in the arm, the chest

(puncturing a lung and her heart and lodging in her spine), and

the head. The wounds to Victim’s chest and head were

independently lethal.

¶11 Meanwhile, Driver waited at his car for Crespo and

Codefendant for about forty-five minutes, unaware of the events

that had transpired or that Crespo and Codefendant had taken a

taxicab to the hotel. Driver eventually grew impatient and drove

past Victim’s apartment in an effort to find his companions, but

instead discovered police cars and an ambulance. When he

returned to the hotel room and saw Crespo and Codefendant

already there, he was upset and had “a million questions” about

what happened but refrained from asking them after Crespo

gave him a look that Friend interpreted as: “I’ll talk to you later.”

Crespo fell asleep soon after Driver returned to the hotel while

Codefendant attempted to create an alibi for everyone at the

hotel to agree upon.

¶12 The next day, Driver drove Friend to a fast food

restaurant and noticed that Friend’s gun, which he had allowed

Codefendant to borrow the night before, was on the floor of the

20150631-CA 5 2017 UT App 219

State v. Crespo

car. Driver asked Friend why he would bring the gun, and

Friend responded, “I didn’t bring that.” Driver became worried

because Codefendant had not been in his car since the previous

evening. The two men suspected Codefendant might be trying to

frame Driver, so Driver decided to thoroughly search his car.

During his search, Driver found some keys that Codefendant

asked him to hold onto the night before, but he had refused to

do so. He also found women’s clothing he did not recognize and

had not been there the previous evening.

The Investigation

¶13 During the next few months, the police investigated

Victim’s murder. Codefendant contemplated turning himself in

but did not do so. And at trial, Codefendant admitted he had

been “rather deceitful” in his initial police interviews. In each

interview, Codefendant provided more details regarding the

events surrounding the murder. First, he claimed that he never

went into Victim’s apartment but had stayed outside and that

only Crespo went inside. In subsequent interviews, he admitted

bringing the gun he had borrowed from Friend to Victim’s

apartment. Then, in his final interview, he admitted he entered

her apartment to smoke crack cocaine and claimed that his

fingerprints were likely on the murder weapon because he had

loaded Crespo’s gun.

¶14 The police recovered the gun Codefendant had borrowed

from Friend, compared the ballistics from the crime scene, and

concluded it was not the murder weapon. The ballistics expert

testified that the casings recovered from the crime scene were .22

caliber casings and they were all fired from the same gun.

Crespo’s .22 caliber gun was never recovered. Neither was the

murder weapon.

¶15 Crespo was charged with murder; aggravated burglary;

and purchase, transfer, possession, or use of a firearm by a

restricted person. Codefendant was charged with murder;

20150631-CA 6 2017 UT App 219

State v. Crespo

aggravated burglary; and obstruction of justice with a gun

enhancement for the possession of a firearm by a restricted

person. 3 Codefendant entered into a “conditional agreement”

with the State to testify truthfully against Crespo at trial and

pled guilty to the remaining charges in exchange for the State

dismissing his murder charge.

The Trial

¶16 Crespo’s jury trial lasted four days. On the second day of

trial, Crespo attempted to dismiss his two appointed defense

attorneys. He informed the court that he had received only

“half” of the “discovery papers,” had not had a chance to

examine a piece of evidence admitted at trial, specifically, a

hooded sweatshirt with blood on it that Codefendant wore the

night of the murder, and felt his counsel were his “enemies.” The

court explained that the hooded sweatshirt was in the State’s

possession and that he could have access to it during a break in

the trial. The court then asked Crespo what he thought he had

not received and asked how not having those items harmed him.

Crespo said only that he “want[ed] to know what[ was] going

on” in his case. Crespo insisted he did not want his counsel to

represent him, so the court engaged in a commonly used

colloquy for defendants who choose to represent themselves.

¶17 As the court began the colloquy, the State suggested that

Crespo have a “cooling down session” with his counsel. The

prosecutor then commented, “[T]hese two lawyers are fine

lawyers, some of the top lawyers in the state. [One of them] has

handled some of the top [capital murder] cases in this state.”

3. Driver was also charged with aggravated burglary, but those

charges were dropped due to a lack of evidence and because he

was willing to testify truthfully against “the more culpable

parties.”

20150631-CA 7 2017 UT App 219

State v. Crespo

Crespo was adamant about not wanting to talk to his counsel,

but the court encouraged him to do so and provided him the

opportunity to view the hooded sweatshirt he claimed he had

not seen. After Crespo viewed the evidence and talked with his

counsel, the court said, “You do have a right to represent

yourself. Where are you at right now? What do you think?”

Crespo responded, “We proceed like this,” and defense counsel

continued to represent him through the remainder of the trial.

¶18 Before the case was submitted to the jury, defense counsel

moved for a directed verdict, arguing that the defense had

shown that Codefendant’s testimony was “inherently unreliable

and not credible.” Defense counsel explained that Codefendant

gave “numerous inconsistent statements” and, as a result of his

“deal to have his murder charge[] dismissed for testifying,” he

had motivation to fabricate his testimony. In making this

argument, defense counsel pointed to Codefendant’s concession

that he erased the text messages that informed Victim of his

imminent arrival with drugs and then, in an effort to hide that he

was in the apartment when she was murdered, sent her a

message saying, “I’m not coming.” In addition, other witnesses

testified Codefendant was the person who sought an alibi and

planted evidence in Driver’s car. The district court denied the

motion because Codefendant’s testimony was “corroborated by

not only the ballistics experts but the other individuals who were

there that night and discussed where everybody went at what

time, . . . who got picked up . . . , and then it was corroborated by

the texts and phone calls.”

¶19 During closing arguments, defense counsel highlighted

the inconsistencies in Codefendant’s testimony and explained

there was more evidence to suggest Codefendant murdered

Victim. Defense counsel also reviewed the witness credibility

jury instruction, line-by-line, and applied it directly to

Codefendant’s testimony. For example, defense counsel said:

20150631-CA 8 2017 UT App 219

State v. Crespo

[T]here’s a whole list of things here to take into

account, but a few of them are like, does the

witness have something to gain or lose in this case?

Yeah. A lifetime in prison or not. Does the witness

have a reason to lie or slant his testimony? Yeah,

he’s the murderer. He’s going to plead guilty to

[aggravated burglary].

(Emphases added.) Defense counsel then asked,

“Was . . . [Codefendant’s] testimony consistent over time?” and

explained that even Codefendant “had to admit” that he

provided “a totally different story” at trial than he did in his

interviews with police. Defense counsel also pointed out that the

jury instruction allowed the jury to disbelieve part or all of the

testimony of any witness and encouraged the jury to completely

disregard Codefendant’s testimony. The remainder of defense

counsel’s closing argument focused on the inconsistencies

between the evidence and Codefendant’s testimony, and the

contradictions between his statements to the police, the trial

testimony, and the testimony of other witnesses. Defense counsel

concluded the argument by stating that the totality of the

evidence supported finding that Codefendant was the murderer

and that the jury should acquit Crespo.

¶20 The jury was unpersuaded and convicted Crespo of

murder and aggravated burglary.4 Crespo timely appealed.

4. The jury was instructed to return a verdict for only the murder

and aggravated burglary charges. Defense counsel submitted to

the district court that, based on the guilty verdicts as well as

Crespo’s prior felony convictions, the court should determine

whether Crespo was a restricted person in possession of a

firearm. The court found Crespo was a restricted person in

possession of a firearm. Crespo does not challenge this decision

and we therefore do not address whether it was appropriate.

20150631-CA 9 2017 UT App 219

State v. Crespo

ISSUES AND STANDARDS OF REVIEW

¶21 Crespo raises four issues on appeal. First, he contends the

district court erred in denying his motion for a directed verdict

because “the evidence was insufficient to warrant conviction.”

“We will reverse a guilty verdict only when the evidence . . . is

sufficiently inconclusive or inherently improbable that

reasonable minds must have entertained a reasonable doubt that

the defendant committed the crime of which he or she was

convicted.” State v. MacNeill, 2017 UT App 48, ¶ 51, 397 P.3d 626

(citation and internal quotation marks omitted).

¶22 Second, Crespo contends that “[d]efense counsel

ineffectively failed to request an instruction that the jury should

cautiously view [Codefendant’s] testimony.” 5 “When a claim of

ineffective assistance of counsel is raised for the first time on

5. Crespo also maintains the district court plainly erred in failing

to sua sponte offer the cautionary jury instruction. Because

defense counsel stated that he did not have any objections to the

jury instructions at trial, the invited error doctrine precludes us

from reviewing this claim under plain error. See State v. Winfield,

2006 UT 4, ¶¶ 14–15, 128 P.3d 1171 (“[U]nder the doctrine of

invited error, we have declined to engage in even plain error

review when counsel, either by statement or act, affirmatively

represented to the [district] court that he or she had no objection

to the [proceedings].” (third alteration in original) (citation and

internal quotation marks omitted)); see also State v. Hamilton, 2003

UT 22, ¶ 54, 70 P.3d 111 (explaining that we are precluded from

reviewing a jury instruction under the manifest injustice

exception “if counsel, either by statement or act, affirmatively

represented to the court that he or she had no objection to the

jury instruction”). Therefore, we address the asserted error with

respect to the cautionary jury instruction only in the context of

Crespo’s ineffective assistance of counsel claim.

20150631-CA 10 2017 UT App 219

State v. Crespo

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.” State v. Craft, 2017 UT

App 87, ¶ 15, 397 P.3d 889 (citation and internal quotation marks

omitted). To prevail on a claim of ineffective assistance of

counsel, the defendant must demonstrate “that counsel’s

performance was deficient” and that the “deficient performance

was prejudicial—i.e., that it affected the outcome of the case.” See

State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)).

¶23 Third, Crespo contends the “[district] court plainly erred

in failing to properly inquire into the nature of the conflict

between defense counsel and [Crespo].” “To demonstrate plain

error, a defendant must establish that (i) an error exists; (ii) the

error should have been obvious to the [district] court; and (iii)

the error is harmful, i.e., absent the error, there is a reasonable

likelihood of a more favorable outcome for the appellant.” State

v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276 (citation and internal

quotation marks omitted).

¶24 Finally, Crespo has filed a rule 23B motion to remand the

case to the district court to “supplement the record with

evidence regarding [his] dissatisfaction with [defense] counsel.”

A remand under rule 23B is “available only upon a

nonspeculative allegation of facts, not fully appearing in the

record on appeal, which, if true, could support a determination

that counsel was ineffective.” Utah R. App. P. 23B(a).

ANALYSIS

I. Sufficiency of the Evidence

¶25 Crespo contends the district court erred in denying his

motion for a directed verdict because the evidence was

insufficient to support his murder conviction. Specifically,

20150631-CA 11 2017 UT App 219

State v. Crespo

Crespo maintains the only evidence presented that placed him in

Victim’s apartment and as the person who fired the gun came

from the “inconsistent testimony of a highly incentivized

snitch”—Codefendant. When considering a sufficiency of the

evidence claim, “we review the evidence and all inferences

which may reasonably be drawn from it in the light most

favorable to the verdict of the jury.” State v. Nielsen, 2014 UT 10,

¶ 46, 326 P.3d 645 (citation and internal quotation marks

omitted). This court “must sustain the [district] court’s judgment

unless it is against the clear weight of the evidence, or if the

appellate court otherwise reaches a definite and firm conviction

that a mistake has been made.” State v. Larsen, 2000 UT App 106,

¶ 10, 999 P.2d 1252 (citation and internal quotation marks

omitted).

¶26 Crespo argues this court should reverse his conviction

because Codefendant’s testimony “‘suffered from multiple

inconsistencies,’” conflicted with other evidence, and was thus

“‘incredibly dubious and . . . apparently false.’” (Quoting State v.

Robbins, 2009 UT 23, ¶¶ 8, 18, 210 P.3d 288.)

¶27 In Robbins, a minor alleged that her stepfather sexually

abused her, but at trial, her “recollection of the alleged sexual

abuse incident suffered from multiple inconsistences,” including

changing “the age at which the abuse occurred,” her description

of what she was wearing, and the purported threats her

stepfather made if she told anyone about the abuse. Robbins, 2009

UT 23, ¶¶ 1, 8–9. To compensate for the inconsistencies, the

minor said “she had a hearing problem like her grandfather,”

which was “objectively not true.” Id. ¶ 8. A jury convicted

Robbins, and this court affirmed the conviction, holding that the

district court “could not disregard her testimony as inherently

improbable.” Id. ¶ 2 (citing State v. Robbins, 2006 UT App 324,

¶¶ 11, 19, 142 P.3d 589). Our supreme court reversed the

conviction and clarified the “inherent improbability standard” to

allow judges to reassess the credibility of a witness’s testimony

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State v. Crespo

when it is “the sole evidence that a crime was even committed”

and “there is a complete lack of circumstantial evidence.” Id.

¶¶ 18, 23.

¶28 The Robbins inherent improbability test does not apply

here. First, there was circumstantial evidence presented to the

jury that supported finding Crespo had perpetrated the crimes

charged. Cf. id. ¶ 18. Although Codefendant was the only

witness to identify Crespo as Victim’s murderer, there were

other “testifying witnesses that the jury could have relied upon

in reaching its verdict.” See Moore v. State, 27 N.E.3d 749, 757–58

(Ind. 2015) (concluding that “the first factor of the incredible

dubiosity rule has not been met because there were multiple

testifying witnesses that the jury could have relied upon in

reaching its verdict”). Driver testified that, on the day Victim

was murdered, Crespo was angry about the rape accusation and

told an acquaintance over the phone, “Dead bitches can’t talk.”

After that, Crespo called Neighbor who testified that Crespo

asked if Neighbor had a gun he could lend Crespo, but to no

avail. Later that same day, Crespo told Codefendant that

Codefendant had to get a gun for their next drug run, which he

obtained from Friend. Friend also gave Crespo extra .22 caliber

ammunition for the gun he had obtained. Shortly after that,

Driver drove Crespo and Codefendant near Victim’s apartment;

but instead of parking in front of her apartment as usual, Crespo

asked Driver to park one block away. Crespo then told Driver

and Codefendant he was going to visit a different friend while

Codefendant visited Victim. But Driver, who stayed with the car,

watched Crespo walk toward Victim’s apartment rather than in

the direction of his other friend’s house. When Crespo and

Codefendant did not return to the car after about forty-five

minutes, Driver returned to the hotel room, where Crespo and

Codefendant were waiting.

¶29 Not only were there witnesses who testified that Crespo

had a gun and went to Victim’s apartment the night of the

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State v. Crespo

murder, other evidence corroborated that testimony. For

example, a video recording from nearby security cameras

corroborated Driver’s and Codefendant’s testimony about

Crespo walking toward Victim’s apartment. At trial, the State

played portions of the video, and Codefendant identified the

three of them as the men who appeared in the video recording.

¶30 The ballistics evidence was also critical because it

excluded Codefendant’s gun as the murder weapon. The expert

ballistics witness examined the three cartridge casings and

confirmed they were fired from the same gun, but not

Codefendant’s borrowed gun. Crespo’s gun was never found; no

murder weapon was recovered.

¶31 Because other circumstantial evidence existed to

corroborate Codefendant’s account of the events, the Robbins

improbability test does not apply.

¶32 Crespo nonetheless argues that Codefendant’s testimony

was “purchased” by the State’s dismissal of the murder charge

against him and was inconsistent because Codefendant changed

his account of the events each time he was interviewed by police

and added new information to his account during the trial.

Crespo also argues that Codefendant’s testimony was

inconsistent with that of other witnesses. Though there may

have been some inconsistencies between each witness’s

testimony and Codefendant’s, the key pieces of information—

Crespo’s asking Neighbor for a gun, Crespo’s possession of a

gun the night of the murder, Crespo’s asking Friend for extra

ammunition and a gun for Codefendant, Crespo’s providing

cocaine to entice Victim to allow Codefendant into her

apartment, Crespo’s directing Driver to park in an unusual

location, and Crespo’s walking toward Victim’s apartment

minutes before the murder—were all corroborated through the

testimony of other witnesses at trial.

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State v. Crespo

¶33 Crespo argues that Codefendant’s testimony was “self-

serving,” “inherently improbable, biased, and incredibly

dubious,” but he admits that, although it was corroborated to

some extent, the evidence “did not actually link Crespo to the

shooting itself, but very well could have been perceived by the

jury that way.” It is the “exclusive function of the jury to weigh

the evidence and to determine the credibility of the witnesses,”

and “[s]o long as there is some evidence, including reasonable

inferences, from which findings of all the requisite elements of

the crime can reasonably be made,” we will not overturn a jury’s

verdict. State v. Davis, 2014 UT App 77, ¶ 4, 324 P.3d 678 (citation

and internal quotation marks omitted). In this case, the

circumstantial and other evidence presented to the jury was

sufficient for it to reasonably infer that Crespo committed the

murder and aggravated burglary.6

II. Defense Counsel’s Failure to Request a Cautionary

Jury Instruction

¶34 Crespo contends defense counsel “ineffectively failed to

request” a cautionary jury instruction relating to Codefendant’s

testimony. To prevail on a claim of ineffective assistance of

counsel, a defendant must show “counsel’s performance was

deficient” and that the “deficient performance was prejudicial—

i.e., that it affected the outcome of the case.” See State v.

6. We acknowledge that the evidence presented could have led

the jury to acquit Crespo, but it is within the province of the jury

to weigh the evidence and the credibility of each witness, and we

will not second-guess the jury’s conclusion. See State v. Maama,

2015 UT App 235, ¶ 43, 359 P.3d 1272 (“[I]n reviewing the

sufficiency of the evidence, we refuse to re-evaluate the

credibility of witnesses or second-guess the jury’s conclusion.”

(alteration in original) (citation and internal quotation marks

omitted)).

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State v. Crespo

Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.

Washington, 466 U.S. 668, 687–88 (1984)). To show that defense

counsel’s performance was deficient, the defendant must

persuade the court “that there was no conceivable tactical basis for

counsel’s actions.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162

(citation and internal quotation marks omitted).

¶35 In this case, Crespo has failed to demonstrate that defense

counsel’s failure to request a cautionary jury instruction was

deficient. Crespo asserts, “Utah law requires the jury to be

instructed that an accomplice’s ‘uncorroborated testimony

should be viewed with caution’ if that testimony is ‘self[-]

contradictory, uncertain or improbable.’” (Quoting Utah Code

Ann. § 77-17-7(2) (LexisNexis 2012)). We agree with Crespo but

note such a cautionary instruction is not required if the district

court does not find the accomplice’s uncorroborated testimony

to be “self[-]contradictory, uncertain, or improbable.” Utah Code

Ann. § 77-17-7(2). It falls within the district court’s discretion to

instruct the jury to view uncorroborated testimony with caution

if no such findings are made. See id.

¶36 Here, the district court did not find that Codefendant’s

testimony was self-contradictory, uncertain, or improbable. To

the contrary, when defense counsel moved for a directed verdict

arguing that Codefendant’s testimony was “inherently

unreliable and not credible,” the court denied the motion,

finding the testimony was “corroborated by not only the

ballistics experts but the other individuals who were there that

night.” It was therefore within the district court’s discretion to

deny a cautionary jury instruction. See id.; see also Mulder v. State,

2016 UT App 207, ¶ 23, 385 P.3d 708 (explaining that “even if

trial counsel had requested a cautionary instruction, the [district]

court could have exercised its discretion and denied such a

request”). Moreover, this court has previously concluded that,

where the “testimony is corroborated, we would of course be

especially reluctant to find an abuse of discretion in the failure to

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State v. Crespo

give [a cautionary] instruction.” State v. Guzman, 2004 UT App

211, ¶ 36, 95 P.3d 302.

¶37 In Guzman, this court determined that, even without a

cautionary instruction, the jury was “adequately apprised that

[the accomplice’s] testimony was to be taken with a grain of salt”

because the “need for caution was evident from [the

accomplice’s] own testimony” and the jury received a general

instruction evaluating witness credibility. Id. ¶¶ 38–39. There,

the accomplice admitted that he “lied to the police on numerous

occasions” and that “he was allowed to plead guilty to reduced

charges in exchange for his testimony at trial against [Guzman].”

Id. ¶ 37. Similarly to Guzman, Codefendant testified that he lied

to the police in his interviews and that he received a favorable

plea deal, amounting to a dismissal of the murder charge against

him, in exchange for testifying against Crespo. Crespo’s jury was

also furnished with a general instruction related to witness

credibility. We conclude that Crespo’s jury was adequately

apprised of the issues it might consider with respect to the

reliability of Codefendant’s testimony.

¶38 In closing argument, defense counsel covered the same

points as a cautionary jury instruction related to witness

credibility would have covered. Counsel referred to the general

witness-credibility instruction, then read and applied the

substantive questions within the instruction to Codefendant’s

testimony:

[D]oes the witness have something to gain or lose

in this case? Yeah. A lifetime in prison or not. Does

the witness have a reason to lie or slant his

testimony? Yeah, he’s the murderer. [Codefendant] is

going to plead guilty to entering her home with

intent to commit an assault with a gun.

(Emphases added.) Defense counsel then asked rhetorically

whether the “witness’s testimony was consistent over time.”

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State v. Crespo

Counsel explained that the witnesses, including Codefendant,

testified Codefendant gave “a totally different story” at trial

compared to his initial interviews with the police. Defense

counsel concluded his jury instruction discussion by stating that

the instruction allowed the jurors to believe as much or as little

of each witness’s testimony as it deemed appropriate and asked

the jurors to completely disregard Codefendant’s testimony. He

supported this by saying, “I can’t imagine a . . . stronger

incentive to fabricate a story than [‘]we’ll either send you to

prison for life or . . . dismiss the charge.[’]” He then directed the

jury to the evidence of the text messages between Codefendant

and Victim, reiterating that Codefendant texted Victim in the

hours preceding her murder to let her know that he would bring

her the drugs she wanted, then deleted those messages after her

murder and sent one final text saying, “I’m not coming.”

Defense counsel spent the remainder of the closing argument

demonstrating that the evidence supported finding that

Codefendant was the murderer, not Crespo, and that

Codefendant was not a credible witness.

¶39 Because defense counsel effectively explained the same

details of a cautionary instruction by applying specific evidence

as well as Codefendant’s testimony directly to the general

witness credibility instruction, we do not see how his failure to

request a cautionary instruction was deficient. See Guzman, 2004

UT App 211, ¶ 38. For the same reason, we cannot conclude

defense counsel’s performance prejudiced Crespo’s trial. 7

7. Crespo did not address the prejudice element other than to

state that, absent a cautionary instruction, “the jury likely gave

[Codefendant’s testimony] greater weight than they are entitled

to under the law. This error cannot be harmless given that

[Codefendant’s] testimony was the only evidence sustaining

Crespo’s conviction.” As we have explained, see supra ¶¶ 28–33,

Codefendant’s testimony was not the only evidence supporting

(continued…)

20150631-CA 18 2017 UT App 219

State v. Crespo

III. Crespo’s Dissatisfaction with Defense Counsel

¶40 Crespo contends the district court “[plainly] erred in

failing to properly inquire into the nature of the conflict [with]

defense counsel.” He claims that he received only “half of the

discovery paperwork,” that he did not see a particular piece of

physical evidence before trial, and that counsel did not ask

“specific questions” that he wanted them to ask. He asserts that

the court “did not take sufficient steps to apprise itself of the

nature of the conflict and engaged in only perfunctory

questioning.”

¶41 To demonstrate plain error, Crespo must show “(i) an

error exists; (ii) the error should have been obvious to the

[district] court; and (iii) the error is harmful, i.e., absent the error,

there is a reasonable likelihood of a more favorable outcome for

the appellant.” State v. Dean, 2004 UT 63, ¶ 15, 95 P.3d 276

(citation and internal quotation marks omitted). Because we

conclude that no error existed, we address only the first prong of

the plain error test.

¶42 When dissatisfaction with appointed counsel is expressed,

“the court must make some reasonable, non-suggestive efforts to

determine the nature of the defendant’s complaints and to

apprise itself of the facts necessary to determine whether the

defendant’s relationship with his or her appointed attorney has

(…continued)

his conviction, and the jury is entitled to give as much weight to

a witness’s testimony as it deems appropriate, see State v. Davis,

2014 UT App 77, ¶ 4, 324 P.3d 678 (“So long as there is some

evidence, including reasonable inferences, from which findings

of all the requisite elements of the crime can reasonably be made,

our inquiry stops.” (citation and internal quotation marks

omitted)).

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State v. Crespo

deteriorated to the point that sound discretion requires

substitution” in order to comply with the right to counsel

guaranteed by the Sixth Amendment to the United States

Constitution. State v. Pursifell, 746 P.2d 270, 273 (Utah Ct. App.

1987). This is a fact-intensive inquiry; indeed, we have declined

to “prescribe a checklist which [district] courts must run through

if any indicia of dissatisfaction should emerge.” Id.

¶43 In the jury’s presence, Crespo said, “I don’t want these

people to represent me. I don’t want them to defend me.” The

district court immediately excused the jury and inquired into

Crespo’s concerns. Crespo advised the court he was upset that

he had not personally received all of the discovery to which his

defense was entitled and had not yet had the chance to look at

some of the physical evidence. The only piece of physical

evidence Crespo was concerned about was Codefendant’s

hooded sweatshirt that had blood on it. The court explained that

it was in the State’s possession as one of its exhibits and that

Crespo would have the opportunity to look at it during the

break. 8

¶44 As Crespo further expressed his concern about having not

received all of the paperwork, the court asked him why he felt

that a failure to receive certain paperwork had harmed him.

Crespo responded that he did not feel that he knew what was

going on with his case and that his counsel were his “enemies.”

The court explained that, if Crespo chose to fire appointed

counsel, it would have to declare a mistrial, and he would have

to wait months for another trial. The district court began the

colloquy, but the State interrupted and recommended a “cooling

off” period. The court agreed it would be best to give Crespo

8. The court seemed to imply that, because defense counsel did

not have possession of the hooded sweatshirt, this was not a

reason for Crespo to be upset with his counsel.

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State v. Crespo

time to discuss his concerns with his counsel before finishing the

colloquy.

¶45 The court also asked defense counsel specific questions

related to Crespo’s concerns. Defense counsel explained,

“[T]here’s pages in the discovery that have no value to a

defendant . . . that he didn’t get, but he certainly has . . . access to

what I consider to be substantial discovery.” After Crespo spoke

with his counsel and had an opportunity to view the hooded

sweatshirt, the district court informed Crespo that he had the

right to represent himself then asked, “Where are you at right

now? What do you think?” Crespo responded, “We proceed like

this,” and defense counsel represented him for the remainder of

the trial.

¶46 Based on the record, we cannot agree with Crespo that the

district court “made virtually no inquiry” into the nature of the

conflict with defense counsel. Instead, the record shows the

court made reasonable efforts to apprise itself of the basis for

Crespo’s complaints to determine whether the relationship had

“deteriorated to the point that sound discretion require[d]

substitution” of counsel. See Pursifell, 746 P.2d at 273. We

therefore conclude there was no plain error.

IV. The Rule 23B Remand

¶47 Crespo filed a Utah Rule of Appellate Procedure 23B

motion to remand to “supplement the record with evidence

regarding Mr. Crespo’s dissatisfaction with counsel.” A remand

under rule 23B is “available upon a nonspeculative allegation of

facts, not fully appearing in the record on appeal, which, if true,

could support a determination that counsel was ineffective.”

Utah R. App. P. 23B(a). The motion (1) “must be supported by

affidavits alleging facts outside the existing record,” State v.

Tirado, 2017 UT App 31, ¶ 14, 392 P.3d 926, (2) “the alleged facts

must be non-speculative,” id., and (3) “these allegations could

support a determination that counsel’s ineffectiveness prejudiced

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State v. Crespo

the result,” State v. Griffin, 2015 UT 18, ¶ 30. Our supreme court

has explained that, “[i]n the context of rule 23B, speculative

allegations are those that have little basis in articulable facts but

instead rest on generalized assertions.” Id. ¶ 19. Crespo’s motion

and supporting affidavit amount to speculative allegations.

¶48 Crespo asserts that the “record needs to be developed as

to what paperwork defense counsel admittedly failed to give Mr.

Crespo, whether counsel prepared the case for trial with Mr.

Crespo[,] and what the parties discussed outside the

courtroom.” But he has failed to provide non-speculative facts to

support the need for a remand. For example, Crespo and his

appellate counsel have had access to the record for this appeal,

including the “discovery papers,” but have not provided

examples of discovery he did not receive or how this could have

affected the result of his trial. 9 In addition, his affidavit explains

that, based on conversations with counsel, off the record, he felt

coerced into “giving [counsel] another chance” and to not testify

on his own behalf at trial. But he has not explained the nature of

9. Crespo explained in his affidavit that he “did not receive some

of the police interviews from witnesses, including one where

[Codefendant] says that we came back to the hotel separately,

where he testified we came back together.” He asserts that, if he

had had this information, he could have told counsel “much of

the evidence they needed to present or question witnesses

about.” We cannot find this interview in the record. But, now

that he is aware of this interview, Crespo has still failed to

provide us with any “additional evidence [counsel] needed to

present” or questions he could have provided for counsel to ask

the witnesses, much less how this could have changed the result

of his trial. And as explained previously, counsel managed to get

Codefendant to repeatedly concede he lied to the police in his

initial interviews and that his trial testimony differed from those

interviews in many respects.

20150631-CA 22 2017 UT App 219

State v. Crespo

those conversations or what was said that made him feel

coerced.

¶49 The purpose of a remand is not to allow for a “fishing

expedition” to discover new, non-record facts but to provide the

opportunity to supplement the record with facts already

discovered that could support a claim of ineffective assistance of

counsel. See id. ¶¶ 19, 29–30 (concluding remand was proper

because the allegations and supporting affidavits “could support

a determination that counsel’s ineffectiveness prejudiced the

result”). Crespo’s claims are purely speculative and do not

support a rule 23B remand. Accordingly, we deny the motion.

CONCLUSION

¶50 We conclude there was sufficient evidence for a jury to

convict Crespo on all three charges. Even though Codefendant’s

testimony changed over time, his testimony was corroborated by

key pieces of evidence at trial. We also conclude that Crespo’s

defense counsel was not ineffective for failing to request a

cautionary jury instruction because it was not required under

Utah law, and defense counsel’s closing arguments had the same

effect as if the court provided the jury with such an instruction

regarding, specifically, Codefendant’s credibility. Finally, we

conclude that the district court adequately inquired into the

nature of Crespo’s dissatisfaction with his defense counsel.

¶51 Affirmed.

20150631-CA 23 2017 UT App 219