State v. Alzaga

VOROS, Judge

Opinion Third District Court, West Jordan Department
The Honorable Bruce C. Lubeck
No. 101401263
Samuel P. Newton, Attorney for Appellant Sean D. Reyes and Jeanne B. Inouye, Attorneys for Appellee JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which JUDGES GREGORY K. ORME and STEPHEN L. ROTH concurred. VOROS, Judge: ¶1 Cristian A. Alzaga was convicted of murder, aggravated assault, and aggravated robbery. All the crimes occurred in connection with a drug deal under a bridge on the Jordan Parkway. The State claimed that the victims were at the bridge to sell marijuana; Alzaga claimed they were there to buy heroin. On appeal Alzaga challenges certain of the trial court's evidentiary rulings, its instructions to the jury on self-defense, and its denial of his motion for a new trial. He also contends that his trial counsel rendered constitutionally ineffective assistance. We affirm.

BACKGROUND

"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 (citation and internal quotation marks omitted).

The Drug Deal

¶2 Hannah and her boyfriend, Mark, lived together in a tent near the Jordan River Parkway Trail in Midvale, Utah. The two scraped by; each sold marijuana, while Mark received food stamps and donated his blood plasma. ¶3 In May 2010, one of the couple's regular customers contacted Hannah to purchase an ounce of marijuana. Hannah and Mark agreed to meet the customer for the sale at a spot where they had met before, on a footbridge by the Jordan River near 3900 South (the Footbridge). When Mark and Hannah arrived for the sale, they crossed the Footbridge and spotted the customer. With him was "a bigger guy" who acted as a lookout. Mark also spotted a third man talking on a cell phone and pacing back and forth on a larger bridge spanning the Jordan River nearby (the Jordan River Bridge). Mark described this third man, the defendant, as having spiked black hair, "kind of crown shaped," and wearing a white shirt. Mark did not immediately connect Alzaga with the customer and the lookout. However, Mark felt concerned that the lookout had accompanied the customer to the drug deal; Mark and the customer "had kind of an agreement that you didn't bring anybody with you when you came to buy marijuana," because "anything could happen when you meet new people." But Hannah felt comfortable because she had known the customer for "[p]retty much her entire life." ¶4 Mark and Hannah decided to go ahead with the deal. The customer asked Mark and Hannah to weigh the marijuana, and Hannah climbed down onto a ledge under the Footbridge to do so. The customer stood against a post above Hannah, and the lookout made "sure that nobody was coming while [Hannah] weighed the marijuana." Alzaga approached, still talking on his cell phone. When he and the customer argued briefly, Alzaga pulled what appeared to be a gun and pointed it at the customer. The customer looked under the Footbridge at Hannah; Alzaga then pointed the gun at her and said, "You give me all your shit."

We use pseudonyms to protect the privacy of the victims and their families.

The Stabbings

¶5 Hannah backed up under the Footbridge. Alzaga jumped down after her, and Mark followed. Mark saw that Alzaga and Hannah "were kind of close together" and saw Hannah jump back from Alzaga "like she was trying to get away from something." Mark then grabbed Alzaga by the shoulder from behind. Alzaga wheeled around, pointed the gun at Mark, and said, "You can give me all your shit, too." Mark thought that the gun looked fake and batted it away from Alzaga. But Alzaga also had a knife. Alzaga slashed at Mark, who jumped back and yelled at Hannah to run. Hannah walked slowly up the hill and said that she had been stabbed. Both Alzaga and Mark ran toward Hannah. Mark then heard the customer yell, "Forget it. It's done. Let's go. Let's go. Let's go." The customer and the lookout fled the scene toward 3900 South. ¶6 Alzaga reached Hannah before Mark did and began pulling at her purse. Mark caught up to Hannah and Alzaga and stepped between them to shield Hannah from Alzaga. Mark told Hannah to let go of the purse. As Mark and Alzaga "struggled over the purse" Alzaga slashed at Mark and struck him in the eye. Alzaga had wounded both Mark and Hannah; Mark's eye was swollen shut, and Hannah told Mark that she could not breathe. Mark then relinquished the purse to help Hannah, and Alzaga took off running. Hannah threw away the marijuana she had in her pocket and lay down on the ground, struggling to breathe. Mark grabbed Hannah's phone and dialed 911. Hannah, eighteen years old, died at the hospital of a stab wound to the abdomen.

Police later found the gun in some brush by the path that crossed the Footbridge. It was in fact a toy gun.

Alzaga's Version of Events

¶7 Alzaga described quite a different encounter. He maintained that he did not kill Hannah and that he stabbed Mark in self-defense. Alzaga testified that he, the customer, and the lookout agreed to meet Mark and Hannah at the Footbridge to sell them a large amount—fifty-two grams—of heroin. The three drove together to the Jordan River Parkway Trail, walked to the Footbridge, and after meeting up with Mark and Hannah, Alzaga weighed a plastic-wrapped package of heroin the size of a tennis ball and worth $6,000. After Alzaga confirmed its weight, he claimed that Mark suddenly "just grab[bed] the ball of heroin" and handed it to Hannah, who "start[ed] running." ¶8 Alzaga then testified that Mark began punching him on the left side of his face and neck. As Mark assaulted him, Alzaga observed the customer running across the Footbridge and "noticed [the lookout] chasing after [Hannah]." Alzaga told the jury that he was "high on [e]cstasy" and "just felt terrified" by Mark's assault. Alzaga absorbed Mark's punches for a time but then started to fall over, and "that's when" Alzaga "felt the knife" in his pocket. Alzaga then pulled the knife out of his pocket, and as Mark punched him, he "countered back with a right hook" and slashed Mark in the eye. Mark backed away while the lookout returned with Hannah's purse in hand. The lookout gave the purse to Alzaga, and both fled the scene. ¶9 Alzaga was convicted of murder, a first-degree felony, Utah Code Ann. § 76-5-203(3) (LexisNexis Supp. 2010); aggravated robbery, a first-degree felony, id. § 76-6-302 (LexisNexis 2008); and aggravated assault, a second-degree felony, id. § 76-5-103. He appeals.

ISSUES

¶10 First, Alzaga contends that the trial court erroneously admitted Mark's testimony that Hannah had a life philosophy of peace and nonviolence and that she consumed no drugs other than marijuana. ¶11 Second, Alzaga contends that the trial court erroneously excluded evidence pertaining to the details of Mark's prior drug convictions. ¶12 Third, Alzaga contends that the trial court erroneously admitted a prison recording of a conversation between Alzaga and his girlfriend during which he made derogatory remarks about Hannah and did not deny killing her. ¶13 Fourth, Alzaga contends that the trial court erroneously admitted photographs of the crime scene taken in February 2012 that did not accurately reflect the view of the scene when the crimes occurred in May 2010. ¶14 Fifth, Alzaga contends that the trial court erroneously instructed the jury on the standard for self-defense. ¶15 Sixth, Alzaga contends that his trial counsel ineffectively failed to present expert testimony challenging Mark's eyewitness identification of him. ¶16 Finally, Alzaga contends that the trial court erroneously denied his motion for a new trial, which he made on the basis of newly discovered exculpatory evidence.

ANALYSIS I. Hannah's Character for Peacefulness

¶17 Alzaga contends that the trial court "abused its discretion when it admitted evidence of [Hannah's] character for peacefulness and aversion to serious drugs." Alzaga argues that this evidence was inadmissible character evidence under rules 404 and 405 of the Utah Rules of Evidence. In the alternative, Alzaga contends that the trial court plainly erred in admitting the evidence. The State counters that Alzaga inadequately briefed his plain error claim and that, in any event, he fails to carry the burden of persuasion because the error, if any, was neither obvious nor prejudicial. "Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait." Utah R. Evid. 404(a)(1). Rule 404(a)(2) sets out exceptions to this general prohibition that apply to defendants and alleged victims in criminal cases:

(A) a defendant may offer evidence of the defendant's pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
(B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may:

i. offer evidence to rebut it; and
ii. offer evidence of the defendant's same trait; and

(C) in a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor.

Id
. R. 404(a)(2). Evidence of a person's character may be introduced by opinion or reputation testimony:

When evidence of a person's character or character trait is admissible, it may be proved by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct.

Id
. R. 405(a). ¶18 At trial, Mark testified that Hannah was "just like kind of a modern-day hippie"; that she "smoked weed, yes, but that's the only drug she did"; and that she did not "even want to try anything else like hallucinogens, nothing else like that." Mark also testified that Hannah "loved the peace sign" and that she believed in the philosophy of "PLUR . . . peace, love, unity, and respect." Mark added that he had a peace-sign tattoo on his shoulder and that "[e]very time [he] would find something with a peace sign on it, [he] would buy it for her." ¶19 Alzaga argues that Mark's testimony violated rule 404(a)(1) because it constituted evidence of Hannah's character trait offered to prove that she acted in conformity with that trait. Alzaga further argues that Mark's testimony violated rule 404(a)(2) because "[Mark] was the first witness to testify, and . . . Alzaga's opening statement could not open the door to the introduction of positive character evidence." Because opening statements "do not constitute evidence and cannot open the door to character evidence," State v. Leber, 2009 UT 59, ¶ 16, 216 P.3d ¶27 In sum, the challenged testimony was not obviously inadmissible, but even if it had been, we cannot say that this evidence undermines our confidence in the verdict. See id.

In fact, the reply brief acknowledges that if, as Mark testified, Hannah did not use hard drugs, "then she was less likely to have arranged a heroin transaction, as Mr. Alzaga testified."

On appeal, Alzaga does not challenge Mark's testimony that he shared Hannah's philosophy of life. Instead, Alzaga argues that the trial court abused its discretion "when it admitted evidence of [Hannah's] character for peacefulness and aversion to serious drugs" and "when it admitted extensive evidence characterizing [Hannah] as a peaceful hippie who used only marijuana."

II. Mark's Prior Drug Convictions

¶28 Alzaga contends that the trial court abused its discretion by excluding the details of Mark's prior drug convictions under rule 609 of the Utah Rules of Evidence. ¶29 On direct examination, Mark admitted to three prior drug convictions, two for possession and one for possession with intent to distribute. After the prosecution rested, defense counsel announced her intention to recall Mark as a witness. Anticipating that defense counsel would inquire further into the specifics of Mark's prior drug convictions—in particular, which drugs formed the bases for those convictions—the prosecutor objected to the inquiry as impermissible under rule 609. Because Mark had "not denied or tried to explain away those [drug] convictions," the prosecutor argued, any inquiry "should be limited to the nature of the crime, the date of the conviction, and the punishment." Defense counsel countered that she wanted to explore the specifics of the drug convictions to impeach Mark. ¶30 The trial court sustained the prosecutor's objection, reasoning that because Mark never testified that he used only marijuana, rule 609 prohibited questions related to the details of his prior drug convictions. Alzaga challenges this ruling on appeal. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Davis, 2013 UT App 228, ¶ 13, 311 P.3d 538. ¶42 Here, Alzaga has not demonstrated that his trial counsel rendered ineffective assistance. In a footnote, Alzaga states, "To the extent that defense counsel did not specifically argue that Rule 405(a) . . . allowed for the introduction of this evidence she was ineffective." In support, he directs us to sections of his brief in which he discusses error and prejudice as it relates to his discussion of Hannah's character for peacefulness. Even if a generalized reference to other sections of his brief otherwise satisfied our briefing requirements, Alzaga fails to develop any meaningful analysis of his argument as it relates to the evidence at issue—Mark's prior drug convictions. Under the circumstances, Alzaga has inadequately briefed this claim. Accordingly, Alzaga has failed to meet his burden of persuasion on appeal. See Simmons Media Group, LLC v. Waykar, LLC, 2014 UT App 145, ¶ 37, 335 P.3d 885.

III. The Prison Recording

¶43 On appeal, Alzaga challenges the admission of a recording of a prison telephone conversation between himself and his girlfriend. In that call, Alzaga told his girlfriend about his altercation with another inmate who had accused him of killing Hannah:

Alzaga: And then I got into a fuckin' [fight].



....



Girlfriend: Why?



Alzaga: Cause that fool was like, "Hey, you're the one who killed my fuckin' home girl" like, "I don't give a fuck, fool, fuck that bitch," and that fool fuckin' tried to head butt me and shit.

At trial, Alzaga argued that the recording was irrelevant because it had no tendency to prove or disprove the elements of the ¶50 More importantly, unlike in Maurer, the trial court did not exceed its discretion in concluding that the danger of unfair prejudice did not substantially outweigh the probative value of the recording. True, Alzaga employed coarse language. But as the trial court observed, the words he used have lost much of their shock value in contemporary culture. These words alone were unlikely to induce the jury to return "a conviction based on a generalized assessment of character." See Maurer, 770 P.2d at 985 (citation and internal quotation marks omitted). Moreover, the core concern with the letter in Maurer was not so much the letter's language but what it revealed about the defendant's character: he wrote it to inflict additional emotional pain upon the victim's father, literally to add insult to injury. Alzaga's prison comments lack this quality. Thus, even if Alzaga's choice of words risked some unfair prejudice, we cannot conclude that the trial court abused its discretion in ruling that the recording's probative value was not substantially outweighed by the danger of unfair prejudice. See Utah R. Evid. 403.

IV. Winter Photographs of the Crime Scene

¶51 Alzaga contends that the trial court abused its discretion by admitting three photographs of the crime scene taken in February 2012, even though the crimes took place in May 2010. He argues that the photographs should have been excluded as irrelevant and unfairly prejudicial. He also argues that the photographs lacked proper authentication. ¶52 The issue concerns whether leafy branches present in May when the crimes occurred, but absent in the February photographs, would have blocked an eyewitness's view of the crime. Mark testified that when he met the customer on the Footbridge, he observed Alzaga walking across the Jordan River Bridge. An eyewitness to the crimes testified that he could not see the Jordan River Bridge from the crime scene, while the detective recalled being able to see the Jordan River Bridge from the crime scene when he investigated the crime. Despite the challenges the claim as unpreserved, and contends that in any event witness testimony authenticated the photographs. We agree with the State that the claim is unpreserved and reject it on that ground. See 438 Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. ¶59 In any event, we detect no error in the admission of the photographs. Evidence must be properly authenticated or identified before it is admitted into evidence at trial:

To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

Utah R. Evid. 901(a). Rule 901's authentication requirement applies to photographs. State v. Horton, 848 P.2d 708, 714 (Utah Ct. App. 1993). "[I]f a competent witness with personal knowledge of the facts represented by a photograph testifies that the photograph accurately reflects those facts, it is admissible." State v. Purcell, 711 P.2d 243, 245 (Utah 1985) (citation omitted). ¶60 Here, the State produced evidence—the detective's testimony—sufficient to support a finding that the photographs were of what the State claimed they were, namely, depictions of the crime scene as it appeared in February 2012. The detective did not testify, nor did the State claim, that the photographs depicted the crime scene as it appeared in May of 2010. Accordingly, the trial court acted within its discretion in admitting the photographs under rule 901. See Utah R. Evid. 901(a).

V. Self-Defense Jury Instructions

¶61 Alzaga contends that the trial court instructed the jury erroneously on self-defense relating to the aggravated assault against Mark. The trial court instructed the jury that a person may use force reasonably necessary to defend against another's imminent use of unlawful force. The court then explained that a person may not lawfully use defensive force when "attempting to commit, committing, or fleeing after the commission, or the attempted commission of a felony." The court also instructed the jury that Alzaga did not have to prove self-defense but that if any evidence created a reasonable doubt as to his guilt, the jury should acquit:

Defendant does not have to prove he acted in self-defense but if any evidence shown on the question of self-defense creates a reasonable doubt in your mind whether he is guilty of Aggravated Assault . . . , you are to find him not guilty of that count. If the evidence of self-defense creates a reasonable doubt in your mind about his guilt, he is entitled to an acquittal on [the Aggravated Assault count].

Defense counsel approved this instruction. ¶62 The court orally supplemented the initial instruction by telling the jury that "distribution of a controlled substance, heroin, is a felony." Defense counsel objected to the supplemental instruction at sidebar but stated no legal basis for the objection on the record. After closing arguments, and after the jury began deliberations, counsel stated on the record a rationale for her objection: the supplemental instruction allowed the jury to find that Alzaga committed a felony offense—distribution of heroin—without first finding the elements of that offense beyond a reasonable doubt. The prosecutor countered that the instruction was a correct statement of the law and that Alzaga had testified to distributing heroin. The trial court overruled the objection. ¶63 Alzaga challenges the jury instructions on four grounds. First, he argues that the oral instruction violated his right to self- counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." Strickland, 466 U.S. at 689 (citation and internal quotation marks omitted). Therefore, any ambiguities or deficiencies in the appellate record "simply will be construed in favor of a finding that counsel performed effectively." State v. Litherland, 2000 UT 76, ¶ 17, 12 P.3d 92. "[P]roof of ineffective assistance of counsel cannot be a speculative matter but must be a demonstrable reality." Allen v. Friel, 2008 UT 56, ¶ 21, 194 P.3d 903 (alteration in original) (citation and internal quotation marks omitted). ¶71 The trial court's instruction explained that Alzaga had no burden to prove self-defense and that the existence of reasonable doubt concerning whether he acted in self-defense required acquittal:

Defendant does not have to prove he acted in self-defense but if any evidence shown on the question of self-defense creates a reasonable doubt in your mind whether he is guilty of Aggravated Assault . . . , you are to find him not guilty of that count. If the evidence of self-defense creates a reasonable doubt in your mind about his guilt, he is entitled to an acquittal on [the Aggravated Assault count].

Alzaga complains on appeal that this instruction does not state explicitly that the State bore the burden of disproving self-defense beyond a reasonable doubt. ¶72 "[T]he failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (citation and internal quotation marks omitted). Here, a trial objection would have been futile because the jury instructions adequately instructed the jury on the burden of proof. ¶73 Our supreme court's decision in State v. Knoll supports this conclusion. 712 P.2d 211 (Utah 1985). In Knoll, the trial court approved an instruction that did not state explicitly that the State retained the burden of disproving self-defense beyond a reasonable doubt:

[I]f upon the whole of the evidence, including that produced by the defendant, . . . or otherwise shown in evidence, the jury entertains a reasonable doubt as to the defendant's guilt of any element necessary to constitute the charged [offense] or one included therein, the defendant is entitled to an acquittal.

Id
. at 215. The court held that even though "the trial court did not give an instruction that stated that the prosecution had to prove the absence of self-defense beyond a reasonable doubt," the instruction nevertheless "constituted a correct statement of the law." Id. The instruction clearly conveyed that the jury should consider any evidence of self-defense, that the burden of proof remained with the State at all stages of the trial, and that "if the jury entertained a reasonable doubt about whether defendant acted in self-defense, it should acquit." Id. ¶74 Here, as in Knoll, even though the instruction did not expressly state that the prosecution had to prove the absence of self-defense beyond a reasonable doubt, it made clear that the jury must consider the defense, that the burden of proof remained with the State, and that Alzaga did "not have to prove he acted in self-defense." And in stating that "if any evidence shown on the question of self-defense creates a reasonable doubt in your mind" Alzaga was "entitled to an acquittal," the instruction correctly conveyed that the State retained the burden of proof of disproving self-defense beyond a reasonable doubt. look at the jury instructions in their entirety.'" Id. ¶ 64 (quoting State v. Maestas, 2012 UT 46, ¶ 148, 299 P.3d 892). "[I]f taken as a whole the[] [jury instructions] fairly instruct the jury on the law applicable to the case, the fact that one of the instructions, standing alone, is not as accurate as it might have been is not reversible error." Id. (first alteration in original) (citation and internal quotation marks omitted). ¶78 Here, the verdict form read in isolation did not explain the State's burden of disproving self-defense beyond a reasonable doubt:

We, the jury . . . unanimously find the defendant . . . [a]s to Count 3, AGGRAVATED ASSAULT:



___ NOT GUILTY
___ GUILTY



If you find the defendant Guilty, by finding he committed the assault . . . answer these questions:



Did the State prove beyond a reasonable doubt that defendant intentionally inflicted serious bodily injury on [Mark]? If YES, stop and sign the verdict form. If NO, answer the next question.



___ YES
___ NO



Did the State prove beyond a reasonable doubt that defendant assaulted [Mark] and used a dangerous weapon:



___ YES
___ NO

¶79 Alzaga cites State v. Campos in support of his contention that the trial court plainly erred in approving the instruction and that counsel ineffectively failed to correct the error. 2013 UT App 213, 309 P.3d 1160. In Campos, we held that the verdict form at issue affirmatively, but erroneously, instructed the jury on the burden of proof for self-defense. Id. ¶ 43. The instructions stated that if the jury found Campos guilty of attempted murder with resulting injury, they should then decide whether "beyond a reasonable doubt, . . . the defense of Imperfect Self Defense applies in this case." Id. ¶ 39. We explained that "[t]he fundamental problem with the verdict form" was "that it require[d] an affirmative defense to be established beyond a reasonable doubt." Id. ¶ 41. But under Utah law, "[a] defendant need only produce enough evidence to raise a reasonable basis for the affirmative defense." Id. "Once that initial showing is made, the burden shifts to the [S]tate to prove to the jury, beyond a reasonable doubt, that the defense lacks merit." Id. (citation and internal quotation marks omitted). ¶80 Here, unlike in Campos, the verdict form did not convey that an affirmative defense requires the defendant to prove self-defense beyond a reasonable doubt. Indeed, the verdict form did not address the burden of proof with respect to self-defense at all. But, as explained above, the jury instructions elsewhere adequately conveyed the State's burden with respect to Alzaga's claim of self-defense. The verdict form instructed the jury to decide "yes" or "no" only as to whether "the State proved beyond a reasonable doubt" that Alzaga committed aggravated assault with a dangerous weapon. That statement incorporates the State's burden of proof pertaining to self-defense because the jury could have found Alzaga guilty beyond a reasonable doubt only after concluding that his evidence of self-defense did not create a reasonable doubt as to this guilt. ¶81 Accordingly, the trial court did not plainly err in approving the verdict form, nor did counsel perform ineffectively by not objecting to it.

Alzaga did not argue self-defense to the charge of aggravated robbery. Indeed, "[t]he premise[] of an accused being permitted to raise the defense of self-defense to the charge of robbery borders on the absurd." Sutton v. State, 776 A.2d 47, 71 (Md. Ct. Spec. App. 2001).

VI. Mark's Eyewitness Identification

¶82 Alzaga next contends that counsel "ineffectively failed to present key expert testimony which would have established reasonable doubt of . . . Alzaga's involvement." Alzaga seeks a new trial "so that he may present this testimony." The State responds that Alzaga's claim fails because "by the time of trial, counsel had reasonably opted to concede that [Alzaga] was at the crime scene and argue[d] that he was the victim, rather than that he had been misidentified." "In determining a claim of ineffective assistance of counsel raised for the first time on appeal, we must decide whether [the] defendant was deprived of the effective assistance of counsel as a matter of law." State v. Aguirre-Juarez, 2014 UT App 212, ¶ 6, 335 P.3d 896 (alteration in original) (citation and internal quotation marks omitted); see also State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162. ¶83 During the investigation, Mark described Alzaga to police officers as "5-foot 11, 130-140 pounds, skinny, tall, [with] spikey [sic] hair . . . [that] looked like a crown." A few days after the attacks, Mark examined a six-person photo array prepared by police with "as many consistencies . . . with the suspect" as possible. Mark identified Alzaga from the photo lineup, but only after having taken a narcotic painkiller and feeling "a little bit loopy" and after having looked at the photos for "quite some time" and "certainly [for] longer than most take to look at a lineup." ¶84 At trial, defense counsel challenged the identification as "unreliable and unduly suggestive," but the trial court denied the motion. Counsel did not request an instruction advising the jury of the factors relevant in evaluating eyewitness identifications, nor did she challenge the identification with expert testimony or cross-examination. ¶85 "'[C]ounsel's decision to call or not to call an expert witness is a matter of trial strategy, which will not be questioned choice to abandon any defense that Alzaga was not present at the scene. ¶88 Most important, at trial Alzaga acknowledged on the stand that he had been present at the crime scene. He admitted to stabbing Mark but maintained that he acted in self-defense. This defense was incompatible with, and at least as reasonable as, a misidentification defense. "[C]ounsel's decision to choose one of two alternative, reasonable trial strategies is not grounds for an ineffective assistance of counsel ruling." State v. Lucero, 2014 UT 15, ¶ 53, 328 P.3d 841. We thus cannot conclude that Alzaga's counsel performed deficiently in not calling an eyewitness expert. Accordingly, Alzaga has not demonstrated ineffective assistance of counsel.

The decision whether to testify lies exclusively with the accused. See Menzies v. State, 2014 UT 40, ¶ 118 n.119, 344 P.3d 581; see also Utah R. Prof'l Conduct 1.2(a) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to . . . whether the client will testify. ").
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VII. New Trial Motion

¶89 Finally, Alzaga contends that the trial court abused its discretion in denying his motion for a new trial. He argues that he "must receive a new trial based on newly discovered exculpatory evidence, [specifically, his] cell phone, which had text messages advertising a sale of heroin on the day of the murder." He argues that "the cell phone, and its contents, rendered a different result probable." The State responds that the trial court acted within its discretion because Alzaga "has not adequately challenged the trial court's findings that he did not exercise reasonable diligence in trying to produce the evidence, that the evidence was merely cumulative, and that the evidence would not have altered the outcome." "When reviewing a trial finding that the text messages would not have made a different result probable. ¶98 Because Alzaga has failed to show that the trial court clearly erred in its factual findings, he cannot demonstrate that the trial court exceeded its wide discretion by denying his motion for a new trial.

CONCLUSION

¶99 In sum, Alzaga has failed to carry the burden of persuasion on the claims he has raised on appeal. We therefore affirm his convictions.