State v. Hernandez

2024 UT App 71

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
VICTOR MANUEL HERNANDEZ,
Appellant.

Opinion
No. 20210849-CA
Filed May 9, 2024

Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 181501448

Nicolas D. Turner and K. Andrew Fitzgerald,
Attorneys for Appellant
Sean D. Reyes and Jonathan S. Bauer,
Attorneys for Appellee

JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES RYAN D. TENNEY and AMY J. OLIVER concurred.

LUTHY, Judge:

¶1 Victor Manuel Hernandez was found guilty of the murder
of Luwing Lopez. On appeal, Hernandez challenges the trial
court’s denial of his motion to suppress his confession to police,
the court’s refusal to give several requested jury instructions, and
the court’s determination that certain testimony was hearsay that
did not qualify for admission under any of the exceptions to the
rule against hearsay. The State responds that each alleged error
was either harmless or not an error at all. We agree with the State
and affirm.
State v. Hernandez

BACKGROUND

¶2 In June 2018, Hernandez had recently moved in with his
sister (Sister) after having lived for a time with his friend, Lopez.
One evening around 5:00 p.m., Lopez picked up Hernandez from
Sister’s home, and the two left.

¶3 Approximately two hours after leaving, Hernandez called
Sister and asked her to come pick him up because he and Lopez
had gotten into an argument. When Sister arrived to pick up
Hernandez, she observed “that he was afraid.” She noticed that
he was not wearing the black shirt, jeans, and black shoes that he
had been wearing when he left her house but was now barefoot
and wearing shorts but no shirt. She also noticed “a little bit” of
blood on him and thought that “maybe there were some blows”
in the argument with Lopez. She repeatedly questioned
Hernandez as to what had happened, but aside from telling her
that the argument with Lopez dealt with a Santa Muerte “game”
he and Lopez played, 1 Hernandez did not disclose more to Sister,
and her repeated questioning ultimately made him upset with
her.

¶4 Sister called her other brother (Brother), told him what
was going on, and then said she was bringing Hernandez
to Brother’s home. After they arrived at Brother’s home,
Brother came outside to talk with Hernandez, who Brother
described as “[n]ervous, afraid, [and] crying.” Hernandez told
Brother that he “had a problem.” Hernandez also gave Brother a
black backpack and asked him to throw it away. Brother did as
requested, placing the backpack inside a white garbage bag

1. “Santa Muerte, [or Holy Death,] is a Mexican folk saint who
personifies death. . . . [S]he is most often depicted as a female Grim
Reaper, wielding the same scythe and wearing a shroud similar
to her European male counterpart.” R. Andrew Chesnut, Devoted
to Death: Santa Muerte, The Skeleton Saint 3 (2d ed. 2018).

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State v. Hernandez

and throwing it into a nearby dumpster. Hernandez
remained outside Brother’s house crying in the vehicle for
several hours and eventually disclosed to Brother that he
had been in a fight and that he had hurt the other person in the
fight.

¶5 Brother took Hernandez to a hotel to stay for the night.
Brother also called the police and told them that Hernandez had
fought with someone and “that the guy was in bad shape.”
Brother suspected that the man Hernandez had fought with was
the man Hernandez had previously lived with—because that man
“was the only person that [Hernandez] would . . . go out with”
and because Hernandez “always had problems with him”—
although Brother did not know Lopez by name. Brother showed
the police Lopez’s home, where Hernandez had previously lived,
thinking that was where the altercation likely took place. Brother
did not tell the police about Hernandez’s backpack in the
dumpster.

¶6 The following morning, Brother again spoke with
Hernandez, and Hernandez disclosed that he had stabbed
someone. Brother responded that he could not help
Hernandez, and Hernandez asked Brother to call the police.
Brother again called the police, and when they arrived,
Brother told them about the backpack in the dumpster and
showed them where it was. Officers retrieved and opened the
backpack and found “a black shirt that was inside out,” a pair of
jeans “that were saturated in blood,” and a knife with blood on it.
Inside the jeans, the officers discovered a pill bottle with Lopez’s
name on it.

¶7 Officers took Hernandez to the police station and put him
in an interview room. Two officers were present for the
questioning of Hernandez. After gathering some basic personal
information from Hernandez, the officers advised him of his

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Miranda rights. 2 Hernandez said that he wanted to talk with the
officers and “was willing to go forward without counsel or an
attorney present.” At that point, the investigation at Lopez’s home
had led to the discovery of Lopez’s deceased body, but the body
had not yet been identified. Because the officers knew “the
murder had happened the previous day sometime,” they began
to question Hernandez as to his whereabouts over the last two
days. Initially, Hernandez claimed that he had been at Sister’s
home the entirety of the prior day. But he also told the officers that
if they talked to his family, his family members might say
something about him killing someone, yet he asserted that he had
not done so. Then, after about twenty-five minutes of questioning,
the officers left the room “to gather more information from the
detectives at the scene.”

¶8 Officers took a “significant break” in questioning while the
investigation proceeded. During this break, which lasted
approximately five hours, Hernandez was kept in the interview
room, and officers “bought him food, gave him drink, [gave him]
a bathroom break, [and] made him comfortable.” And at least
once during this period, an officer checked in on Hernandez,
asking him “if everything was okay,” telling him that they were
“still trying to figure out all the evidence,” and “answer[ing] any
of his questions as far as that goes.” During the break, the police
were able to identify the decedent as Lopez.

¶9 The officers then conducted two more periods of
questioning, which were divided by a forty-five-minute break.

2. In Miranda v. Arizona, 384 U.S. 436 (1966), “the United States
Supreme Court articulated a prophylactic rule that protects a
suspect’s Fifth Amendment rights against compelled self-
incrimination and requires that suspects be informed of their right
to remain silent and their right to counsel before a custodial
interrogation begins.” State v. Gardner, 2018 UT App 126, ¶ 15, 428
P.3d 58 (cleaned up).

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When the officers returned to the interview room after the five-
hour break, they brought a picture of Lopez and asked Hernandez
if he knew that individual. Hernandez responded affirmatively
and “changed his story and admitted that he was at [Lopez’s]
house the previous day at around 5:30 in the afternoon.” The
officers then showed Hernandez “a picture of the backpack that
the bloody clothes and the knife were located in,” and Hernandez
identified the backpack as his. Officers then showed Hernandez
pictures of some of the backpack’s contents, including the bloody
jeans, and Hernandez “admit[ted] that the jeans were his.” The
officers told Hernandez that they “needed to know what
happened,” and Hernandez responded that he “did it all.” He
described in detail the events of that evening, explaining that
Lopez came to pick him up so they could “go to [Lopez’s] house
and smoke,” that Hernandez has “a sixth sense that allows him to
speak to spirits” and “that the spirits in his head told him that
[Lopez] was going to sacrifice [Hernandez’s] newborn son,” and
that Hernandez had brought a knife with him and used that knife
to stab Lopez multiple times. Hernandez was arrested and
charged with murder.

¶10 Early in the litigation of the case, Hernandez filed a motion
to suppress all incriminating statements he had made during the
later questioning by officers, arguing that when the officers had
returned to question him after each break, he “was not read his
Miranda rights and the officer conducting the interview did not
make any reference to Miranda rights allegedly read at the first
interview.” The trial court denied the motion, stating:

[T]he court does not find that [Hernandez’s]
circumstances during the period of interrogation
had changed, other than the passage of time. [He]
was the prime suspect from the beginning and the
focus remained on him throughout the
interrogation. . . . There is no evidence presented
that [Hernandez’s] answers were no longer

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voluntary [during the later questioning] or [that] he
was no longer relinquishing his rights under
Miranda.

¶11 The case proceeded to trial. As part of the State’s case,
Sister, Brother, and police officers involved in the investigation
testified to the facts set forth above. On cross-examination of Sister
and Brother, the defense tried to elicit further information related
to what Hernandez had told them regarding the Santa Muerte
“game” and his related fear of Lopez, but such testimony was met
by hearsay objections by the State, which objections the trial court
sustained.

¶12 In response to the objections to Brother’s proposed
testimony, the defense, outside the presence of the jury, proffered
what Brother’s testimony would be if he was allowed to testify
further. Brother would testify that during the prior month,
Hernandez had told Brother that he “hadn’t slept in days,” that
“[h]e was taking drugs to be able to stay awake because he was
afraid that [Lopez] would kill him in his sleep,” and that this was
related to the Santa Muerte “game” that Hernandez and Lopez
were involved in. Brother would testify that Hernandez had
expressed that “because of that fear[,] . . . he was wanting to
change his life and get out of that death game.” The defense
proffered that Brother would also testify that Hernandez had told
him the following regarding the death “game”:

[T]hey would have a death saint or angel that they
could ask certain favors from . . . . And that the
entity would grant them special gifts or powers:
better employment, better relationships, romantic
relationships, but they always wanted something in
exchange, whether it be fruit, or an item of clothing.

And then at some point, . . . Lopez, who was
practicing the same death game, was saying he was

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going to kill [Hernandez’s] very small infant as an
offering to his particular death saint.

The court ultimately sustained the hearsay objections to this
testimony, rejecting defense arguments that the testimony fell
under the hearsay exceptions of present sense impression, excited
utterance, and then-existing mental, emotional, or physical
condition.

¶13 After Sister, Brother, and the police officers had testified,
the State turned to its presentation of the forensic evidence. The
State presented the testimony of the medical examiner who
conducted the postmortem exam on Lopez’s body. The medical
examiner explained that “Lopez had obvious traumatic injuries”;
that he had eight stab wounds on his head, neck, and torso; that
“[p]retty much every wound was not survivable”; and that the
knife found in the black backpack was “consistent with” the type
of object that caused those injuries. The medical examiner then
detailed the stab wounds. The medical examiner also described a
defensive wound on Lopez’s thumb, explaining, “There was an
incised wound at the base of the left thumb . . . which we typically
see in cases where the person is still trying to defend themselves.”

¶14 The State also presented the testimony of the forensic
scientist and DNA analyst who conducted the testing on items
recovered in the black backpack, specifically the black shirt and
the knife. She testified that the blood stains on the black shirt
resulted in a DNA profile that “was consistent with a mixture of
two individuals.” She testified that “[a] major profile was
determined at 17 [out of 21 DNA] locations that is consistent with
[Lopez].” As to the blood on the knife, the analyst was “able to
match at all 21 [DNA] locations” to Lopez’s DNA profile.

¶15 The State thereafter rested, and the defense presented its
case. The defense called Hernandez’s godmother and godfather
to testify. His godmother testified that during the month

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preceding the alleged crime, she had noticed that Hernandez was
“very fearful” and “very thin” and that “[h]is appearance was
like, he was just close to death.” She then related that she had
asked Hernandez what was wrong, which prompted another
hearsay objection by the State. The godmother proffered her
testimony outside the presence of the jury, indicating that
Hernandez had told her that he was afraid that Lopez was going
to kill him, that he kept referencing a “man here that’s taking care
of me,” and that he told her of the Santa Muerte “game” going on
between himself and Lopez, in which they would do “ritual
offerings.” The godmother then related other experiences
concerning Hernandez’s involvement with the Santa Muerte
“game” during the months leading up to the murder. The court
ultimately ruled that the proffered testimony was hearsay that did
not fit under any hearsay exception and that it would not be
admitted.

¶16 The State likewise objected to the defense’s attempted
presentation of Hernandez’s godfather’s testimony, which
testimony primarily concerned Hernandez’s worshiping of Santa
Muerte. The court again determined that the statements were
hearsay and would not be admitted.

¶17 After the defense rested its case, the court discussed
proposed jury instructions with the attorneys. The defense asked
that the jury be instructed regarding the affirmative defenses of
self-defense and defense of others. This request was based on
testimony indicating that Hernandez was afraid of Lopez and on
Hernandez’s expressed fear that “Lopez was going to kill his
child.” The trial court denied the request, determining, “[W]hat
[Hernandez] did was too soon. It was a pre-emptive strike. It was
a vigilante-type action in case, to try and protect his son who was
not there. There was no emergency.”

¶18 The defense additionally requested an instruction on the
lesser included offense of manslaughter, arguing that imperfect

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legal justification merited such an instruction. That is, the defense
argued that even if Hernandez’s actions were “not legal or
justifiable,” a reasonable person in his shoes may have thought
they were. The trial court determined that such an instruction was
not supported by the evidence because even if Hernandez had
been fearful of Lopez and thought that Lopez wanted to kill his
son, “[h]e never . . . accuse[d] [Lopez] of trying to kill his son at
that time,” so a reasonable person would not have thought killing
Lopez at that time was justifiable.

¶19 Finally, the defense requested an instruction on
manslaughter based on a special mitigation for mental illness,
arguing that Hernandez had “act[ed] under a delusion
attributable to a mental illness.” (Quoting Utah Code § 76-5-205.5
(2018).) The trial court declined to give the requested instruction,
reasoning that because there had been “no evidence whatsoever
presented” as to a mental illness, “the special mitigation for
mental illness . . . cannot be argued.”

¶20 The jury instructions were then read to the jury, closing
arguments were presented, and the jury began its deliberations.
Thereafter, the jury found Hernandez guilty of murder.
Hernandez now appeals.

ISSUES AND STANDARDS OF REVIEW

¶21 Hernandez asserts that the trial court erred in denying his
motion to suppress. “A trial court’s ruling on a motion to suppress
is reviewed for correctness, including its application of the law to
the facts. The trial court’s underlying factual findings are
reviewed under the clearly erroneous standard.” State v. Tripp,
2010 UT 9, ¶ 23, 227 P.3d 1251 (citation omitted).

¶22 Hernandez also challenges the trial court’s refusal to give
the requested affirmative defense instructions as well as a special

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mitigation instruction to the jury. “The refusal to give a jury
instruction is reviewed for abuse of discretion. . . . On issues that
are primarily or entirely factual, we afford significant deference;
on issues that are primarily or entirely legal in nature, we afford
little or no deference.” State v. Berriel, 2013 UT 19, ¶ 8, 299 P.3d
1133 (cleaned up). The specific issue here “of whether the record
evidence, viewed in its totality, supports the defendant’s theory
of the case is primarily a factual question,” entitled to a large
degree of deference. Id. ¶ 9.

¶23 As an alternative argument related to the special
mitigation instruction, Hernandez argues that he received
ineffective assistance of counsel when his attorney failed to
present additional evidence of Hernandez’s mental health.
“Ineffective assistance of counsel claims raised for the first time
on appeal are issues of law that we review for correctness.” State
v. Sessions, 2012 UT App 273, ¶ 11, 287 P.3d 497, aff’d, 2014 UT 44,
342 P.3d 738.

¶24 Lastly, Hernandez argues that the trial court erred in
disallowing certain testimony under the rule against hearsay.

Our standard of review on the admissibility of
hearsay evidence often contains a number of
rulings, each of which may require a different
standard of review. We review the legal questions
to make the determination of admissibility for
correctness. We review the questions of fact for clear
error. Finally, we review the district court’s ruling
on admissibility for abuse of discretion.

Arnold v. Grigsby, 2018 UT 14, ¶ 21, 417 P.3d 606 (cleaned up).

¶25 Even if there is error on the part of the trial court, “an error
is harmless and does not require reversal if it is sufficiently
inconsequential that we conclude there is no reasonable

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likelihood that the error affected the outcome of the proceedings.”
State v. Reece, 2015 UT 45, ¶ 33, 349 P.3d 712 (cleaned up). In other
words, “the likelihood of a different outcome absent the error
must be sufficiently high to undermine confidence in the verdict.”
Id. (cleaned up). “And the defendant generally bears the burden
to demonstrate that the error . . . affected the outcome of [the]
case.” Id. However, when addressing claims involving the
“violation of a federally protected constitutional right,” federal
law sets a higher plain error standard and instructs that “we
cannot declare federal constitutional error harmless unless we
sincerely believe that it was harmless beyond a reasonable
doubt.” State v. Genovesi, 909 P.2d 916, 922 (Utah Ct. App. 1995)
(cleaned up).

ANALYSIS

I. Motion to Suppress

¶26 Hernandez first challenges the trial court’s denial of his
motion to suppress evidence obtained during questioning at the
police station. See generally Miranda v. Arizona, 384 U.S. 436, 444
(1966) (“[T]he prosecution may not use statements, whether
exculpatory or inculpatory, stemming from custodial
interrogation of the defendant unless it demonstrates the use of
procedural safeguards effective to secure the privilege against
self-incrimination.”). He argues that the officers who questioned
him violated his Fifth Amendment rights by failing to read the
Miranda warnings to him at any point after the five-hour break in
questioning. He characterizes the first round of questioning as
“brief” and “informational only” and contends that the
questioning “morphed” from an interview into an interrogation
during the five-hour break. He asserts that the “[l]engthy
incommunicado detention” combined with “the changed
circumstances between the first and second interrogation”
required additional readings of his Miranda rights.

20210849-CA 11 2024 UT App 71
State v. Hernandez

¶27 The State, on the other hand, argues that “Hernandez’s
interviews were a murder interrogation from the beginning” and
that the “‘mere passage of time’” did not require further Miranda
warnings. (Quoting Mitchell v. Gibson, 262 F.3d 1036, 1057 (10th
Cir. 2001).) Additionally, the State argues that even assuming
error in the trial court’s denial of Hernandez’s motion to suppress,
any such error “was harmless beyond a reasonable doubt in light
of the other overwhelming evidence that Hernandez murdered
Lopez.”

¶28 We agree with the State that any error in the denial of the
motion to suppress was harmless beyond a reasonable doubt.
“[A]n otherwise valid conviction should not be set aside if the
reviewing court may confidently say, on the whole record, that
the constitutional error was harmless beyond a reasonable
doubt.” State v. Maestas, 2012 UT 46, ¶ 56, 299 P.3d 892 (alteration
in original) (quoting Delaware v. Van Arsdall, 475 U.S. 673, 681
(1986)). “Several factors are relevant to our determination of
whether an error in admitting evidence was harmless beyond a
reasonable doubt, including the importance of the evidence to the
prosecution’s case, whether the evidence was cumulative, and, of
course, the overall strength of the prosecution’s case.” State v.
Genovesi, 909 P.2d 916, 923 (Utah Ct. App. 1995). Here, the
strength of the other evidence presented by the State lessened the
importance to the State’s case of the allegedly improperly
admitted statements to such an extent that we are convinced that
any error in admitting the statements was harmless beyond a
reasonable doubt.

¶29 First, there was the evidence regarding the black backpack.
Brother testified that after Sister brought Hernandez over to
Brother’s home, Hernandez told Brother that he “had a problem”
and gave Brother the backpack, instructing him to throw it away.
And the jury was shown evidence that the contents of that
backpack included bloody clothes, a knife with blood on it, and a
pill bottle with Lopez’s name on it. The bloody clothes matched

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Sister’s description of what Hernandez had been wearing earlier,
which included a black shirt, jeans, and black shoes.

¶30 Second, there was the evidence of Hernandez’s other
incriminating statements. Brother testified that on the evening of
the murder, Hernandez disclosed, sometime during his hours of
crying, that he had fought with someone and that the person he
had fought with had been hurt. Brother also testified that the
following morning, Hernandez specified that he had stabbed
someone. Additionally, when first questioned by police,
Hernandez warned police that if they talked to his family, his
family members “may say something about him saying that he
killed someone.”

¶31 Third, there was the forensic evidence. The State conducted
testing on the blood on the black shirt and the knife retrieved from
the backpack, and that testing showed matches between the DNA
profiles of the tested blood and Lopez’s DNA profile.
Additionally, evidence was presented by the medical examiner as
to the eight stab wounds on Lopez’s head, neck, and torso. The
medical examiner testified that the stab wounds were consistent
with the type of knife recovered from the backpack. And he
testified regarding the severity of each wound—that “[p]retty
much every wound was not survivable.” He also testified to “an
incised wound at the base of [Lopez’s] left thumb,” which medical
examiners “typically see in cases where the person is still trying
to defend themselves.”

¶32 This evidence overwhelmingly establishes Hernandez’s
guilt, showing that Hernandez repeatedly stabbed Lopez and
intentionally caused his death. Considering these facts, we are
convinced that any error in the denial of Hernandez’s motion to
suppress was harmless beyond a reasonable doubt. That is, we are
convinced beyond a reasonable doubt that had the trial court
suppressed Hernandez’s incriminating statements made

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following the five-hour break in questioning, the jury would have
still convicted Hernandez of murdering Lopez.

II. Jury Instructions

¶33 Hernandez also challenges the trial court’s refusal to
instruct the jury on self-defense, defense of others, and a special
mitigation for mental illness. Hernandez argues that these
instructions were warranted based on his “delusions” and his
belief “that he and his child were in danger from Lopez and that,
under his present state-of-mind, he had no choice but to protect
his family.”

¶34 “A defendant is entitled to have the jury instructed on the
defense’s theory of the case if there is any basis in the evidence to
support that theory.” State v. Berriel, 2013 UT 19, ¶ 12, 299 P.3d
1133 (cleaned up). The trial court determined that there was no
such basis in the evidence here, and we see no abuse of discretion
in this determination.

A. Perfect Self-Defense, Imperfect Self-Defense, and Defense
of Others

¶35 The Utah Code excludes criminal responsibility for actions
taken in perfect self-defense or defense of others: “An individual
is justified in threatening or using force against another individual
when and to the extent that the individual reasonably believes
that force or a threat of force is necessary to defend the individual
or another individual against the imminent use of unlawful
force.” Utah Code § 76-2-402(2)(a). 3 Additionally, our murder

3. The several statutes relevant to our analysis regarding the
proposed jury instructions have been amended since the events
giving rise to this case. We cite the current versions of those
statutes whenever the alterations to the relevant language have
been slight and do not impact our analysis.

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statute includes the following provision addressing imperfect
self-defense or defense of others: “It is an affirmative defense to a
charge of murder . . . that the defendant caused the death of
another individual . . . under a reasonable belief that the
circumstances provided a legal justification or excuse for the
conduct although the conduct was not legally justifiable or
excusable under the existing circumstances.” Id. § 76-5-203(4)(a).
Imperfect self-defense can reduce a charge from murder to
manslaughter. Id. § 76-5-203(4)(c).

¶36 “For both perfect and imperfect self-defense, the same
basic facts are at issue.” State v. Silva, 2019 UT 36, ¶ 26, 456 P.3d
718 (cleaned up). The only difference between the two is whether
“the use of deadly force was legally justifiable under the
circumstances” or whether the defendant mistakenly, but
reasonably, concluded it was. Id. But both defenses “require the
defendant to present the same evidence: that the defendant had a
reasonable belief that force was necessary to defend himself [or
another]” against imminent unlawful force. Id. (cleaned up). And
it is this requirement that Hernandez failed to meet.

¶37 When considering whether there is evidence that
Hernandez reasonably believed force was necessary to defend
himself or his son, we do so “from the viewpoint of a reasonable
person under the then existing circumstances.” Utah Code § 76-5-
203(4)(b). And even if we do as Hernandez urges and credit his
great fear of Lopez as well as his delusions regarding the danger
to his infant son, there is no evidence that a reasonable person
who is nevertheless suffering under these fears or delusions
would reasonably believe that force was necessary to defend
against imminent harm. There was no evidence of any present
threat to Hernandez on the night of the murder. Additionally,
because there was no evidence that Hernandez’s infant son was
with him or Lopez the night of the murder, there was likewise no
risk of imminent harm to Hernandez’s son from Lopez. Any fear
of harm from Lopez must necessarily have related entirely to

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future—as opposed to imminent—harm. We therefore see no
abuse of discretion in the trial court’s refusal to instruct the jury
on perfect self-defense, imperfect self-defense, or defense of
others.

B. Special Mitigation for Mental Illness

¶38 Hernandez also requested a jury instruction addressing
special mitigation based on mental illness, which would have
likewise reduced the murder charge to a manslaughter charge, see
Utah Code § 76-5-205(2) (2018). The relevant statute declared:

Special mitigation exists when the actor causes the
death of another or attempts to cause the death of
another:

(a)(i) under circumstances that are not legally
justified, but the actor acts under a delusion
attributable to a mental illness as defined in Section
76-2-305;

(ii) the nature of the delusion is such that, if the
facts existed as the defendant believed them to be in
the delusional state, those facts would provide a
legal justification for the defendant’s conduct; and

(iii) the defendant’s actions, in light of the
delusion, were reasonable from the objective
viewpoint of a reasonable person . . . .

Id. § 76-5-205.5(1). The definition of “mental illness” incorporated
by reference at the time of the offense in this case was as follows:
“‘Mental illness’ means a mental disease or defect that
substantially impairs a person’s mental, emotional, or behavioral
functioning. A mental defect may be a congenital condition, the
result of injury, or a residual effect of a physical or mental disease

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and includes, but is not limited to, intellectual disability.” Id. § 76-
2-305(4)(b)(i). 4

¶39 Hernandez argues that testimony below provided
substantial evidence that he suffered from delusions that were
attributable to a mental illness. He thus contends that the trial
court abused its discretion by declining to give a jury instruction
on special mitigation based on mental illness. The State, on the
other hand, defends the trial court’s determination that
Hernandez presented “no evidence whatsoever” supporting the
existence of a mental illness. Ultimately, we need not decide
whether Hernandez put on adequate evidence of a delusion
attributable to a mental illness.

¶40 To merit a jury instruction on special mitigation based on
mental illness, Hernandez was required to put on evidence of
more than a delusion attributable to a mental illness. He was also
required to put on evidence that “the nature of the delusion [was]
such that, if the facts existed as [Hernandez] believed them to be

4. The current version of the special mitigation statute refers not
to a “mental illness” but to a “mental condition,” Utah Code § 76-
5-205.5(2)(a)(i), which is statutorily defined as “a mental illness or
a mental disability that substantially impairs an individual’s
mental, emotional, or behavioral functioning,” id. § 76-2-
305(1)(a)(i). The current code then defines “mental disability” as
“an intellectual disability or a neurodevelopmental disorder as
those terms are defined in the current edition of the Diagnostic
and Statistical Manual of Mental Disorders published by the
American Psychiatric Association,” id. § 76-2-305(1)(b), and
“mental illness” as “the following mental disorders as described
in the most recent edition of the Diagnostic and Statistical Manual
of Mental Disorders published by the American Psychiatric
Association: (i) schizophrenia spectrum and other psychotic
disorders; or (ii) other serious mental health conditions with
psychotic features,” id. § 76-2-305(1)(c).

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in the delusional state, those facts would provide a legal
justification for [Hernandez’s] conduct.” Id. § 76-5-205.5(1)(a)(ii).
And as the trial court pointed out, there was no evidence
suggesting that any delusions under which Hernandez may have
been suffering mistakenly gave him the impression that he or his
son were in imminent danger of being harmed by Lopez. The
delusions as described related only to future anticipated harm.
Thus, even if Hernandez put on substantial evidence that he had
delusions attributable to a mental illness, he did not show that
those delusions, if real, would have provided legal justification for
his actions against Lopez. Accordingly, the court did not abuse its
discretion by declining to instruct the jury on special mitigation.

III. Ineffective Assistance of Counsel

¶41 Related to the asserted lack of evidence supporting the
existence of a mental illness as the cause of his delusions,
Hernandez argues that his counsel was ineffective for failing to
present more evidence related to his mental health. “To prevail on
a claim of ineffective assistance of counsel, a defendant must show
(1) that counsel’s performance was deficient, and (2) that the
deficient performance prejudiced the defense.” State v. Calvert,
2017 UT App 212, ¶ 21, 407 P.3d 1098 (cleaned up).

¶42 Hernandez contends that his counsel “had an obligation to
fully investigate Hernandez’s mental health issues” and that the
“failure to investigate prejudiced Hernandez because this
information would have explained why Hernandez acted the way
he did and took the action he did.” However, Hernandez’s
ineffective assistance claim suffers from the same problem that his
jury instruction claims do: even if he proved that he suffered from
delusions attributable to a mental illness, this would benefit him
only if he could prevail under a theory of self-defense, defense of
others, or special mitigation. And as explained above, Hernandez
provided no evidence that any of his delusions gave him the
impression that he or his son were in imminent danger of being

20210849-CA 18 2024 UT App 71
State v. Hernandez

harmed by Lopez, so he would not have prevailed on any of those
theories. Thus, Hernandez’s counsel did not perform deficiently
by not presenting more evidence regarding Hernandez’s mental
health, and Hernandez’s ineffective assistance argument fails.

IV. Hearsay Statements

¶43 Finally, Hernandez argues that the trial court erred by
excluding certain witness testimony as hearsay. See generally Utah
R. Evid. 801(c) (“‘Hearsay’ means a statement that: (1) the
declarant does not make while testifying at the current trial or
hearing; and (2) a party offers in evidence to prove the truth of the
matter asserted in the statement.”); id. R. 802 (“Hearsay is not
admissible except as provided by law or by these rules.”).
Hernandez asserts that the evidence fell under several exceptions
to the hearsay rule and should therefore have been admitted. See
generally id. R. 803(1)–(3) (providing that present sense
impressions, excited utterances, and then-existing mental,
emotional, or physical conditions “are not excluded by the rule
against hearsay”).

¶44 We do not reach Hernandez’s arguments regarding the
admissibility of the evidence at issue because we determine that
any abuse of discretion by the trial court in excluding the evidence
was clearly harmless. Each statement that Hernandez wanted to
present to the jury was related to his fear of Lopez or his related
involvement with the Santa Muerte “game.” And as we have
explained in Part II, there was no basis in the evidence—even had
these hearsay statements been admitted—to support instructing
the jury on the requested affirmative defenses or special
mitigation because none of the evidence presented (or proffered)
suggested that a person in Hernandez’s position on the night
Lopez was murdered would have had any fear of imminent harm
to himself or his child. Therefore, any abuse of discretion on the
part of the trial court in relation to its hearsay determinations was
harmless and does not merit reversal.

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State v. Hernandez

CONCLUSION

¶45 Any error or abuse of discretion the trial court may have
committed in denying Hernandez’s motion to suppress or
excluding witness testimony under the hearsay rule was
harmless. And the trial court did not abuse its discretion in
refusing to give instructions on affirmative defenses and special
mitigation for which there was no support in the evidence. Nor
has Hernandez shown that his counsel provided ineffective
assistance in failing to investigate or present evidence of alleged
mental illness. We therefore affirm.

20210849-CA 20 2024 UT App 71