State v. Herrera

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                              v.
                    MARTIN ROBERT HERRERA,
                          Appellant.

                             Opinion
                        No. 20220068-CA
                      Filed January 3, 2025

            Third District Court, Tooele Department
                The Honorable Dianna Gibson
                         No. 181300794

        Emily Adams, Freyja Johnson, and Rachel Phillips
              Ainscough, Attorneys for Appellant
               Sean D. Reyes and William M. Hains,
                     Attorneys for Appellee

     JUDGE AMY J. OLIVER authored this Opinion, in which
 JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.

OLIVER, Judge:

¶1     The day after Martin Robert Herrera’s girlfriend, Nicole,
arrived at the emergency room with her friend, Tom, and stated
that she had “been getting beat by [her] husband,” a police officer
(Officer) took Herrera into custody and interrogated him. 1 Officer
later arrested Herrera, and he was charged with one count of
aggravated burglary, one count of assault against Tom, and one
count each of aggravated assault and assault against Nicole. A
jury acquitted Herrera of aggravated burglary but convicted him
on the aggravated assault charge and both assault charges.
Herrera appeals these convictions, arguing that trial counsel

1. Nicole and Tom are pseudonyms.
                          State v. Herrera


(Counsel) was ineffective for failing to object to (1) Officer’s
testimony regarding the custodial interrogation of Herrera during
the State’s case in chief when there was no electronic recording of
the interrogation, (2) witnesses testifying about the credibility of
other witnesses, and (3) the triage nurse’s (Nurse) testimony that
she wanted to “speak out” for Nicole. We reject Herrera’s
arguments and affirm his convictions.


                        BACKGROUND 2

                    The Incident and Allegations

¶2     On a Wednesday in December 2018, Nicole stopped by
Tom’s house. Tom noticed that “she had a contusion on her left
temple” when she arrived. Around five minutes later, Herrera
arrived at the house, entered “without permission,” and began
staring at Nicole. After a few minutes, Tom pushed Herrera “out
the door and . . . tried to close the door.” However, Herrera
reentered the house and punched Tom once in the head and
several times in the ribs. Herrera then exited the house and left
the area.

¶3    After Herrera left, Tom and Nicole went to the emergency
room. Nicole’s chief complaint upon arrival was that she had
“been getting beat by [her] husband.” 3 Nicole reiterated to Nurse



2. On appeal from a jury trial, “we review the record facts in a
light most favorable to the jury’s verdict and recite the facts
accordingly,” and “we present conflicting evidence only as
necessary to understand issues raised on appeal.” State v. Speights,

, 

 (cleaned up).

3. Nicole sometimes referred to Herrera as her husband, even
though they weren’t married, and Herrera admitted that people
often viewed them as “husband and wife.”


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                          State v. Herrera


that “she had been beaten by her husband” that day and the day
before. Nicole also showed Nurse bruises on her right abdomen
and leg, a cut on her left ear, and a mark on her neck. 4 Nicole
stated the mark on her neck was “where he choked” her.

¶4     Nicole became less forthcoming with information about
her injuries when evaluated by the primary nurse and doctor. The
primary nurse did an initial abuse assessment and made no
findings of abuse, and Nicole refused to “talk about any
relationship abnormalities . . . and denie[d] any assault from her
boyfriend, or husband,” despite reporting such to Nurse at intake.
Law enforcement was contacted due to the potential abuse, but
when Officer tried to speak with Nicole at the hospital, she
refused to have any photos taken of her or to tell Officer anything
except that “she had fallen.”

¶5    When she arrived at the hospital, Nicole’s blood alcohol
concentration was .522, over ten times the legal limit, and she was
diagnosed with “alcohol abuse with intoxication delirium.”
However, Nurse testified that Nicole scored perfectly on the
Glasgow Coma Scale 5 and that Nurse only marked “alcohol abuse


4. Nicole’s medical report noted “bruises in various stages of
healing on different part[s] of her body” and swelling and
“evidence of trauma to the left ear with a minor 2-3mm laceration
that is quite superficial.”

5. “The Glascow Coma Scale is a tool healthcare providers use to
measure degrees in consciousness.” Glasgow Coma Scale (GCS),
Cleveland Clinic, https://my.clevelandclinic.org/health/diagnosti
cs/24848-glasgow-coma-scale-gcs           [https://perma.cc/KW75-
FCRE]. The test evaluates eye, motor, and verbal responses. 

 To
receive a perfect score, patients must be able to “open [their] eyes
and keep them open on their own,” “follow instructions on how
and when to move,” and “correctly answer questions about who
[they] are,” where they are, and the day or year. 

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                         State v. Herrera


with intoxication delirium” in the chart because the system had
limited options to alert physicians to patients’ alcohol abuse.
Nurse testified that Nicole was one of the most memorable
patients in her thirty-year career “[b]ecause of how upset she
was” when she showed Nurse the bruises and how Nicole’s
demeanor and willingness to talk changed when other hospital
staff began treating her. Nurse testified that this “bothered” her
so she decided to give a statement to Officer “to speak out” for
Nicole.

                     The Interview and Arrest

¶6     The next day, Officer went to Herrera’s house, took him
into custody, and transported him to the police station for an
interview. Herrera told Officer that he and Nicole were living
together but when they argued, Nicole would sometimes go to
Tom’s house. Herrera also initially told Officer that he did not go
to Tom’s house on Wednesday but, after further questioning,
stated he did go to Tom’s house on Wednesday. When questioned
by Officer about the assaults, Herrera again changed his story and
said he did not go to Tom’s house and that no assault had
occurred. Herrera also made inconsistent statements about
whether he had last seen Nicole on Monday or Wednesday.

¶7     After the interview, Officer “made an ultimate decision to
place [Herrera] under arrest” due to the “inconsistencies of the
interview, the statements, [and the] injuries.” Herrera was later
charged with aggravated burglary, one count of assault against
Tom, and one count each of aggravated assault and assault
against Nicole.

                             The Trial

¶8    The case proceeded to a two-day jury trial. The State called
Tom, Nurse, and Officer to testify as to the events described
above. The recording of Officer’s interrogation of Herrera was not



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                          State v. Herrera


played for the jury because it had been inadvertently erased. 6
After Officer testified, the State rested. Nicole was unable to
testify because she had passed away from unrelated medical
complications.

¶9      The defense opened its case by calling Herrera, who
testified to a vastly different account of the events. Herrera
testified that he went to Tom’s house on Wednesday to look for
Nicole because she left his house on Monday and had not
returned. Herrera stated that Nicole would only visit Tom if Tom
left the door to his house open because Tom had once tried to
sexually assault her. When Herrera arrived at Tom’s house and
saw the door was open, he assumed Nicole was there. He stated
that when he walked up to the door, Tom greeted him by saying,
“How you doing, [Herrera]?” and, “Come on in.”

¶10 Herrera said he entered the house and saw Nicole sitting
on the couch with Tom. Herrera then asked Nicole if she was okay
and why she “didn’t come home.” Herrera stated Nicole told
him that Tom was “getting ready to give her a ride to the
hospital because of her drinking.” Herrera then stated he turned
to Tom and asked, “[W]hat’s this I hear, that you tried sexually
assaulting [Nicole]?” Herrera stated that Tom then stood up and
“came at [him] and pushed [him] and told [him] to get out of his
house.” Herrera said that in response, he pushed Tom and
punched him in the chest. Herrera exited the house after Tom said
“he was going to go get his gun.” Herrera testified that he did not
hit Nicole while at the house or at any time during their
relationship.

¶11 On cross-examination, Herrera stated that he did not
remember telling Officer that he never went to Tom’s house and


6. While Officer recorded the interview and used the recording to
complete his report, he failed to save the recording from the server
where it was temporarily stored, so it was erased.


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                          State v. Herrera


clarified when he had last seen Nicole. The State twice asked
Herrera if Officer was “lying” in his testimony about Herrera’s
statements. The State also asked Herrera four times if Nicole lied
in her statements at the hospital and why she would do so.
Counsel lodged no objections to these questions.

¶12 The State then called Officer as a rebuttal witness. Officer
summarized his interrogation of Herrera, including that during
the interrogation Herrera first admitted to going to Tom’s house
on Wednesday and then denied it and that Herrera told him the
last time he had seen Nicole was on Monday.

¶13 In closing, the State encouraged the jury to convict Herrera
on all four counts because of the bruise on Nicole’s neck and mark
on her ear, together with Nurse’s and Tom’s testimony. Counsel
argued for an acquittal, highlighting potential reasons for Nicole
to be less than truthful in her statements at the hospital, including
the influence of Tom, her seeking medication, and her high level
of intoxication.

¶14 The jury acquitted Herrera of aggravated burglary but
convicted him of assault against Tom and both aggravated assault
and assault against Nicole. The Court sentenced Herrera to an
indeterminate term not to exceed five years in prison for the
aggravated assault and terms of 364 and 180 days in jail for the
assault convictions, which were to run concurrently with the
prison sentence.


             ISSUES AND STANDARD OF REVIEW

¶15 Herrera now appeals, raising three claims of ineffective
assistance of counsel based on Counsel’s failure to object to
particular testimony. “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


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                           State v. Herrera


law.” State v. Popp, 

, 

 (cleaned
up).


                             ANALYSIS

¶16 The Sixth Amendment to the United States Constitution
affords criminal defendants “the right to effective assistance of
counsel.” Strickland v. Washington, 

 (1984). To
demonstrate ineffective assistance of counsel, Herrera must show
“(1) that his counsel’s performance was objectively deficient, and
(2) that the deficient performance prejudiced the defense.” State v.
Marquina, 

, 

 (cleaned up), aff’d,

 (Utah 2020); see also Strickland, 

(articulating the two-pronged test for evaluating claims of
ineffective assistance of counsel). Both elements must be present
to demonstrate ineffective assistance. See State v. Powell, 

, 

. “If either is lacking, the claim fails, and
the court need not address the other.” 

 (cleaned up).

¶17 “To establish deficient performance, a defendant must
show that trial counsel’s representation fell below an objective
standard of reasonableness when measured against prevailing
professional norms.” State v. Weaver, 

, ¶ 20, 

 (cleaned up). “Our scrutiny of counsel’s performance
must be highly deferential,” and we must consider “whether
counsel’s assistance was reasonable considering all the
circumstances,” 

 (cleaned up), beginning with the assumption
that “the challenged action might be considered sound trial
strategy,” State v. Ames, 

, 

(cleaned up), cert. denied, 

 (Utah 2024).

¶18 And to establish prejudice, Herrera must demonstrate
“that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 

. Demonstrating



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                         State v. Herrera


prejudice “is a relatively high hurdle” for a defendant to
overcome because it requires a defendant to show not only that
there is a “potential effect on the outcome” but that “the
likelihood of a different result” is substantial. State v. Apodaca,

, 

 (cleaned up).

 I. Officer’s Testimony About Herrera’s Custodial Interrogation

¶19 Herrera first asserts that Counsel provided ineffective
assistance by failing to object to Officer’s testimony about
Herrera’s custodial interrogation during the State’s case in chief
because no electronic recording of the interrogation was available.
Rule 616 of the Utah Rules of Evidence requires that “evidence of
a statement made by the defendant during a custodial
interrogation in a place of detention shall not be admitted against
the defendant in a felony criminal prosecution unless an
electronic recording of the statement was made and is available at
trial.” Utah R. Evid. 616(b). Assuming, then, that Counsel
performed deficiently by not objecting to Officer’s testimony,
Herrera must still demonstrate prejudice. He must prove “that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Strickland, 

. In evaluating whether
Herrera met this “high hurdle,” State v. Apodaca, 

,

 (cleaned up), this court considers “a hypothetical—
an alternative universe where the testimony was not presented to
the jury.” State v. Hernandez, 

, 

(cleaned up), cert. denied, Dec. 19, 2024 (No. 20241167).

¶20 If Counsel successfully had objected to Officer’s testimony
during the State’s case in chief, Officer’s testimony about the
interrogation would nonetheless have been admissible to
impeach Herrera. See Utah R. Evid. 616(c)(3) (an exception to rule
616’s prohibition is when “[t]he statement is offered for
impeachment purposes only”). Because Herrera’s statements
during the interrogation about whether he visited Tom’s house, if



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                          State v. Herrera


any altercation occurred, and when he last saw Nicole were
inconsistent, it is very likely that most if not all of Officer’s
testimony would have come in as impeachment evidence during
the State’s rebuttal. See 

 Although Herrera makes much of the
timing difference in when the jury would have heard about the
inconsistencies in Herrera’s testimony, we fail to see how this
timing difference alone would have resulted in a different
outcome for Herrera. Indeed, in this alternative universe, Officer’s
testimony about the interrogation and Herrera’s inconsistencies
would have come immediately following Herrera’s testimony
and been the last testimony heard by the jury, thus having
significant impact.

¶21 It is also possible that in a different alternative universe
Herrera would have decided not to testify in his defense and the
jury would not have heard Officer’s testimony about the
interrogation. But Herrera was the only witness called by the
defense, and if he did not testify, the jury would not have heard
Herrera’s alternative explanation of the events. While Herrera
argues that the evidence against him is not overwhelming,
without his testimony the jury would have heard only the
following unrebutted evidence: Tom’s testimony that Nicole
arrived at his house with a bruise and that Herrera arrived five
minutes later and punched Tom multiple times; Nurse’s
testimony about Nicole’s injuries and Nicole’s statement that her
“husband” caused them; and Officer’s testimony about his
conversation with Nurse and Nicole at the hospital and his
observation of Nicole’s injuries.

¶22 In either of these alternative universes, we are not
persuaded that a jury likely would have acquitted Herrera.
Because Herrera failed to demonstrate that Counsel’s failure to
object to Officer’s testimony about Herrera’s custodial
interrogation during the State’s case in chief was prejudicial,
Herrera’s first claim of ineffective assistance of counsel fails.




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                          State v. Herrera


II. Witnesses Testifying About the Credibility of Other Witnesses

¶23 Herrera next asserts that Counsel was ineffective because
the State asked both Officer and Herrera to “opine on the
truthfulness of other witnesses” and Counsel failed to object
under rule 608 of the Utah Rules of Evidence. That rule prohibits
witnesses from offering “a direct opinion of another witness’s
truthfulness on a particular occasion.” State v. King, 

, 

 (cleaned up). We address each witness’s
testimony in turn.

A.     Officer’s Testimony

¶24 Herrera argues that Counsel provided ineffective
assistance by failing to object to Officer’s testimony in which he
stated, “I made a decision kind of with his inconsistencies of the
interview, the statements, injuries and stuff—I mean, I made an
ultimate decision to place him under arrest.” Herrera argues that
no reasonable defense counsel would have allowed a law
enforcement officer to give this testimony, which Herrera
characterizes as an opinion as to Herrera’s credibility. In support
of his argument, Herrera asserts that Officer’s statement is similar
to the statement of the officer in Provo City v. Bishop-Garcia, 

, 

, where this court concluded that counsel
performed deficiently by not objecting “under rule 608(a).” Id.
¶ 22. We disagree, however, because Officer’s statements here are
not of the same character as those in Bishop-Garcia.

¶25 In Bishop-Garcia, the prosecutor asked the officer directly
“whether he found [the victim] to be credible when he
interviewed her,” to which he responded, “Yes,” and the
prosecutor later asked the officer “why he arrested” the
defendant, to which the officer responded that he arrested the
defendant after determining that the victim’s “statement was
more credible than the” defendant’s statement. Id. ¶¶ 21–22
(cleaned up). This court concluded that trial counsel’s



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                          State v. Herrera


performance was deficient because “counsel had ample
opportunity to object and prevent the error” where “the
prosecution overtly elicited each instance of inadmissible
testimony.” Id. ¶ 25. That is not the case here. Unlike in Bishop-Garcia, the State did not overtly elicit Officer’s testimony as to
Herrera’s credibility. Instead, the State asked Officer, “[A]fter
your interview [of Herrera], was there anything else of note that
occurred—that you did?” It would have been impossible for
Counsel to predict that Officer was going to respond to the State’s
general question with a statement discussing the credibility of
Herrera. And as this court noted in Bishop-Garcia, counsel in that
case performed deficiently precisely because it “was not a
situation” where “the officer spontaneously volunteered an
inadmissible opinion.” Id. ¶ 25.

¶26 Here, after Officer spontaneously volunteered an
inadmissible opinion, Counsel had to decide whether to object
and ask for a curative instruction after the jury already heard
Officer’s testimony and risk drawing more attention to it. This
court has long held that deciding whether to object to testimony
and request a curative instruction after the jury has heard it is “a
strategic decision,” where counsel must weigh the risk of not
objecting with the risk of objecting and “drawing attention to
unfavorable testimony.” State v. Tippets, 

,

 (cleaned up). Counsel’s decision not to object and
request a curative instruction may be considered “sound trial
strategy” because any benefit Herrera “may have gained by
requesting a curative instruction may have been offset by” the
additional attention drawn to Officer’s statement that he put
Herrera under arrest because of the inconsistencies in his
interview. State v. Popp, 

, 

(cleaned up).

¶27 Accordingly, Herrera has not shown that Counsel acted
deficiently by not objecting to Officer’s testimony and requesting
a curative instruction.



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                         State v. Herrera


B.    Herrera’s Testimony

¶28 Herrera also argues that Counsel provided ineffective
assistance by failing to object when the State asked Herrera twice
if Officer lied and asked Herrera four times whether Nicole lied.
As the State conceded during oral argument, our caselaw
prohibits the State from asking criminal defendants about the
credibility of other witnesses, and if Counsel had objected, that
objection would have been sustained. See State v. Emmett, 

 (Utah 1992) (“Several courts have noted that it is
improper to ask a criminal defendant to comment on the veracity
of another witness.”); State v. Fairbourn, 

, ¶¶ 32–
33, 

 (noting that the prosecution cannot ask a
testifying criminal defendant “to decide whether the other
witnesses had lied”).

¶29 However, even if Counsel’s performance in failing to object
under rule 608 was deficient, Herrera must still demonstrate that
he was prejudiced as a result. Questions where the prosecution
asks a criminal defendant whether another witness is lying can be
prejudicial when the question “suggests to the jury that a witness
is committing perjury even though there are other explanations
for the inconsistency.” Emmett, 

. These questions
can also be prejudicial when they force the defendant to comment
“on the character and motivations of another witness who may
appear sympathetic to the jury.” 

¶30    The State asked Herrera, “So you think that [Officer] is
lying about this?” and “[S]o that means one of you is lying. So do
you think that?” In response, Herrera never stated that Officer
was lying, and the questions allowed Herrera to explain the
discrepancy between the statements he gave to Officer. Herrera’s
refusal to state that Officer was lying and his subsequent
testimony do not “suggest[] to the jury that” Herrera was
committing perjury, id.; rather, they provide the jury with a
plausible explanation for Herrera’s inconsistent statements



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                          State v. Herrera


during his interrogation that the last time he saw Nicole before
the events at the house was on Monday, but he also saw her when
he was at the house on Wednesday. Because Herrera refused to
testify that Officer was lying and provided testimony clarifying
the discrepancies of when he last saw Nicole in response to the
State’s questions, we conclude that Herrera was not prejudiced by
Counsel failing to object.

¶31 In contrast, when the State repeatedly asked Herrera if
Nicole lied, he stated that she did. However, Herrera has not
established prejudice from this testimony either. Even though
Herrera stated that Nicole lied, he needed to explain away her
identification of him as the person who caused her injuries, and
stating that she lied when she made contradictory statements
about the cause of her injuries is less of an attack on Nicole’s
character and more of an explanation of why the jury should not
believe Nicole’s initial statements about the cause of her injuries.
See 

 Further, even if the State did not ask Herrera whether
Nicole lied, for the jury to believe Herrera’s version of events, he
would need to explain why Nicole first told hospital staff that her
husband caused her injuries, and claiming that Nicole was lying
is a sound way to do it. Indeed, during closing arguments,
Counsel attempted to explain away Nicole’s initial statements by
telling the jury that they “can’t know for sure” whether Nicole
was “telling the truth.” We fail to see how Herrera was prejudiced
by Counsel failing to object to such questions when Counsel
would go on to make the same argument in closing just a short
time later. Accordingly, Herrera has not established that he was
prejudiced by these questions.

¶32 Because Herrera cannot demonstrate prejudice from the
State’s questions to him about the truthfulness of either Officer or
Nicole, he has failed to prove that he received ineffective
assistance of counsel.




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                          State v. Herrera


                      III. Nurse’s Testimony

¶33 Finally, Herrera takes issue with Nurse’s testimony that
she wanted to “speak out” for Nicole and that Nicole’s case was
one of the cases that bothered her the most in her thirty years as a
nurse. Herrera argues that Nurse’s testimony violated rule 403 of
the Utah Rules of Evidence and that Counsel’s failure to object to
it was ineffective assistance of counsel.

¶34 Rule 403 allows for the exclusion of otherwise relevant
evidence if the evidence’s “probative value is substantially
outweighed by a danger of . . . unfair prejudice.” Utah R. Evid.
403. Because “unfair prejudice results only where the evidence
has an undue tendency to suggest decision upon an improper
basis,” we recognize “a presumption in favor of admissibility.”
State v. Green, 

, 

 (cleaned up). An
improper basis can include emotional decision-making, such as
“bias, sympathy, hatred, contempt, retribution or horror.” Woods
v. Zeluff, 

, 

 (cleaned up).

¶35 Herrera argues that the probative value of Nurse’s
testimony was low because Nurse did not see how Nicole was
injured, so her statements that Nicole’s case “bothered” her and
that she wanted to “speak out” for Nicole were not helpful to the
jury in determining how Nicole got her injuries. Herrera further
argues that this testimony created a risk of unfair prejudice
because it encouraged the jury to “resolve its credibility concerns
in favor of Nicole” due to how bothered Nurse was by the case.

¶36 But Herrera inappropriately discounts the probative value
of Nurse’s statements. After Counsel suggested on cross-examination that Nurse’s memory was suspect due to her
inability to remember anything about Tom, Nurse’s testimony on
redirect about why Nicole was memorable to her shows why,
nearly three years later, she still remembered Nicole but not Tom.
Given this context, it is unlikely that Counsel could have



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                           State v. Herrera


successfully objected to the testimony under rule 403 because the
danger of unfair prejudice—that the jury would have relied on
Nurse’s statement explaining her memory to decide the case on
“an improper basis”—did not substantially outweigh the
probative value of her testimony to explain her memory after it
was challenged by Herrera. See Green, 

. Because
the “failure to raise futile objections does not constitute ineffective
assistance of counsel,” we conclude that Counsel’s failure to
object to Nurse’s statements under rule 403 does not render
Counsel’s performance ineffective. State v. Kelley, 

, 

.


                          CONCLUSION

¶37 Herrera has not demonstrated that Counsel provided
constitutionally ineffective assistance by failing to object to
various testimony at trial. We thus affirm Herrera’s convictions.




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