2019 UT App 196
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
PETER RAMIREZ,
Appellant.
Amended Opinion 1
No. 20180268-CA
Filed: November 29, 2019
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.
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
1. This amended opinion replaces the opinion issued October 31,
2019, State v. Ramirez, 2019 UT App 176. In response to
Appellant’s petition for rehearing, revisions were made to
footnote 3, now footnote 4.
State v. Ramirez
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.
BACKGROUND 2
¶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
2. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2,
10 P.3d
346 (cleaned up).
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State v. Ramirez
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
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State v. Ramirez
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
associated with Ramirez. The officer retrieved Ramirez’s driver
license photo and found that it matched the eyewitnesses’
descriptions.
¶9 At 4:30 a.m., several hours after the attack, the officer
went to the address associated with the car’s registration. He
saw the black Ford Fusion backed into a carport on the side of
the house. The car was missing its front license plate, but the rear
license plate matched the number that the officer had found in
his search. The officer knocked on the door of the house and was
invited inside where he met Ramirez. According to the officer,
Ramirez “matched [the eyewitnesses’ descriptions] literally to
the T” and was still wearing the oversized black t-shirt that the
eyewitnesses had described.
¶10 Upon observing how closely Ramirez matched the
eyewitnesses’ descriptions, the officer immediately handcuffed
Ramirez and sat him down on the curb outside the house. The
officer read Ramirez his Miranda 3 rights and informed him that
he was under arrest for aggravated assault. Ramirez then
3. See Miranda v. Arizona, 384 U.S. 436, 478-79 (1966) (listing
warnings that law enforcement officers must give to criminal
suspects prior to custodial interrogation).
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State v. Ramirez
responded, “[I]f I get convicted of this I’m going to prison.” The
police never found the baseball bat used in the attack.
¶11 Ramirez was ultimately charged with aggravated assault
resulting in serious bodily injury, a second-degree felony. At
trial, the eyewitnesses each identified Ramirez as the attacker
without objection from defense counsel. 4 Each of the
eyewitnesses also testified that the lighting was sufficient for
them to have had a clear look at Ramirez on the night of the
attack. All of the eyewitnesses also expressed confidence that the
car Ramirez had driven on the night of the attack was a
dark-colored Ford Fusion. Ramirez testified in his own defense.
Although he claimed that he was at a club with several friends
on the night of the attack, Ramirez admitted to driving his
parents’ Ford Fusion on occasion.
¶12 Before closing arguments, the parties and the district
court finalized the jury instructions. Defense counsel did not
request any specific instructions. Following closing arguments
and deliberations, the jury convicted Ramirez. He now appeals.
ISSUES AND STANDARDS OF REVIEW
¶13 Ramirez argues that he received ineffective assistance of
counsel because his defense counsel did not do more to
challenge the eyewitnesses’ testimony identifying him as the
attacker. “When a claim of ineffective assistance of counsel is
raised for the first time on appeal, there is no lower court ruling
4. For at least two of the eyewitnesses, this was the first time
they specifically identified Ramirez as the attacker. The victim’s
friend testified that the officer had shown him a picture of
Ramirez at the hospital and that he had identified Ramirez at
that time, but the officer testified that he did not recall showing
him Ramirez’s picture.
20180268-CA 5 2019 UT App 196
State v. Ramirez
to review and we must decide whether the defendant was
deprived of the effective assistance of counsel as a matter of
law.” State v. Crespo, 2017 UT App 219, ¶ 22,
409 P.3d 99 (cleaned
up). Ramirez has also filed a rule 23B motion for a remand to
supplement the record with evidence regarding his defense
counsel’s alleged failure to investigate and call a potential alibi
witness. See Utah R. App. P. 23B. “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.” Crespo,
2017 UT
App 219, ¶ 24 (cleaned up).
ANALYSIS
I. Ineffective Assistance of Counsel
¶14 To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that “counsel’s performance
was deficient” and that “the deficient performance prejudiced
the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Because failure to establish either prong of the test is fatal to
an ineffective assistance of counsel claim, we are free to address
a defendant’s claims under either prong.” State v. Torres,
2018 UT
App 113, ¶ 14,
427 P.3d 550 (cleaned up). Here, we need
not decide whether Ramirez’s defense counsel performed
deficiently because he has not established the second prong,
prejudice.
¶15 According to Ramirez, “[t]he eyewitness identifications in
this case constituted the linchpin of the prosecution’s case.”
Therefore, it was critically important for his counsel to present a
strong mistaken-identity defense. Ramirez argues that his
defense counsel was ineffective for failing to take three actions
related to a mistaken-identity defense: (1) calling an eyewitness
expert to testify regarding factors present in this case that could
make the eyewitnesses’ identifications less reliable; (2)
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State v. Ramirez
requesting a cautionary instruction to “sensitize the jury to the
factors that empirical research have shown to be of importance
in determining the accuracy of eyewitness identifications,” State
v. Long, 721 P.2d 483, 492 (Utah 1986); and (3) objecting to the
admissibility of the eyewitnesses’ in-court identifications of
Ramirez.
¶16 Even in the unlikely event that defense counsel would
have succeeded in excluding the eyewitnesses’ in-court
identifications or in persuading the jury to entirely disregard
those identifications through expert witness testimony or a
cautionary instruction, the remaining evidence overwhelmingly
established Ramirez’s identity as the attacker. In the immediate
aftermath of the attack, each of the eyewitnesses provided
consistent descriptions of the attacker to police. The descriptions
included identifiers such as race, gender, age, height, weight,
clothing, and a “distinct and unique black beard,” all of which
matched Ramirez “to the T.”
¶17 The eyewitnesses also described the vehicle that
the attacker was driving as a dark-colored Ford Fusion, and
Ramirez admitted to occasionally driving his parents’ car
matching that description. The license plate on the Ford Fusion
that Ramirez drove matched five of the six characters given to
police as the attacker’s license plate number, and the one
character that did not match corresponded with the one
character that the witness indicated may have been recorded
incorrectly.
¶18 Within hours of the attack, police found the Ford Fusion
with the matching license plate backed into a carport in a
manner that concealed its single, rear license plate from view.
Ramirez was located in the house still wearing the same shirt
worn during the attack, as accurately described by the
eyewitnesses. Upon his arrest, Ramirez volunteered an arguably
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State v. Ramirez
incriminating statement, telling the officer, “[I]f I get convicted
of this I’m going to prison.”
¶19 In short, even if defense counsel had called an expert
witness, requested a cautionary instruction, or successfully
objected to the in-court identifications, there is no reasonable
probability that the jury would have believed that a different
person matching Ramirez’s unique description and driving the
same car with the same license plate number committed the
crime. Because Ramirez cannot establish a reasonable probability
that the alleged deficiencies in defense counsel’s performance
affected the jury’s verdict, his ineffective assistance of counsel
claim fails for lack of prejudice.
II. Rule 23B Motion
¶20 Ramirez has also filed a rule 23B motion for remand to
supplement the record with evidence that his defense counsel
failed to investigate and call a potential alibi witness. ”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.” State v. Crespo, 2017 UT App 219, ¶ 24,
409 P.3d 99
(cleaned up). Ramirez’s rule 23B motion does not satisfy these
conditions.
¶21 Through an affidavit, Ramirez claims that he was with his
friend (the alibi witness) at a club on the night of the attack. He
also claims that he told his defense counsel about the alibi
witness and that, “to [his] knowledge,” defense counsel did not
contact the alibi witness or otherwise investigate the alibi
defense. But he does not offer sufficient nonspeculative facts
showing that defense counsel did nothing to investigate the
advisability of calling the alibi witness. In a separate affidavit,
the alibi witness indicates that if he had been called as a witness
at trial, he would have testified that he and Ramirez were at a
club together on the night in question. However, the alibi
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State v. Ramirez
witness does not indicate whether defense counsel ever
contacted him about his potential testimony.
¶22 Even accepting the affidavits at face value, they do not
overcome the strong presumption that defense counsel exercised
reasonable professional judgment in assessing the viability of an
alibi defense. See Burke v. State, 2015 UT App 1, ¶ 18,
342 P.3d
299 (holding that there is a “strong presumption that counsel
rendered constitutionally sufficient assistance” when reviewing
the alleged failure of trial counsel to investigate an alibi defense
(cleaned up)). The affidavits do not establish whether defense
counsel contacted the alibi witness or otherwise investigated the
veracity of Ramirez’s claim that he was at a club at the time of
the attack. Thus, the allegation that defense counsel failed to
adequately investigate and pursue the alibi defense is mere
speculation and Ramirez is not entitled to a Rule 23B remand.
Because he is not entitled to a remand, Ramirez’s second claim of
ineffective assistance of counsel necessarily fails. 5
CONCLUSION
¶23 Given the other overwhelming evidence identifying
Ramirez as the attacker, Ramirez is unable to show that he was
prejudiced by his counsel’s alleged deficient performance in
failing to mount additional challenges to the eyewitnesses’
5. As part of his rule 23B motion, Ramirez also requests a
remand to supplement the record with an eyewitness
identification expert’s proffered testimony. As with the alibi
witness, Ramirez has not alleged nonspeculative facts as to
whether his defense counsel consulted with or considered
calling an eyewitness expert. In any event, we have already
determined that he cannot show prejudice from the failure to call
an expert, see supra ¶¶ 16–19, and Ramirez is therefore not
entitled to a remand.
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State v. Ramirez
in-court identifications. Further, Ramirez has not alleged
sufficient nonspeculative facts in support of his rule 23B motion
to remand, and we therefore deny that motion. Accordingly, we
affirm his conviction for aggravated assault resulting in serious
bodily injury.
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