State v. Puente

2024 UT App 192

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
KESHAUN MYKEL PUENTE,
Appellant.

Opinion
No. 20220089-CA
Filed December 27, 2024

Second District Court, Ogden Department
The Honorable Jennifer L. Valencia
No. 181902630

Emily Adams, Freyja Johnson, Melissa Jo Townsend,
and Hannah Leavitt-Howell, Attorneys for Appellant
Sean D. Reyes and Hwa Sung Doucette,
Attorneys for Appellee

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

MORTENSEN, Judge:

¶1 In November 2018, the State charged Keshaun Mykel
Puente with one count of murder and three counts of felony
discharge of a firearm with serious bodily injury. Just over three
years later, a jury convicted Puente on all four counts. Puente
appeals his convictions, arguing that his constitutional right to a
speedy trial was violated and that he received ineffective
assistance of counsel. We reject these claims and affirm Puente’s
convictions.
State v. Puente

BACKGROUND

¶2 In June 2018, a man was shot in a parking lot and later died
of his wounds. On November 7, 2018, the State charged Puente
with one count of murder and three counts of felony discharge of
a firearm with serious bodily injury in connection with this death.
It wasn’t until January 2019 that Puente was located and arrested
in Nevada and then extradited to Utah. On January 17, Puente
made an initial appearance, was appointed a public defender, and
invoked his speedy trial right. A subsequent hearing was
scheduled for January 23 for the purpose of deciding whether to
proceed with a preliminary hearing. The hearing set for January
23 was continued until January 30 at Puente’s request. At the
January 30 hearing, Puente’s preliminary hearing was scheduled
for February 28. But that hearing was continued by stipulation of
all parties until April 4 due to a medical report being unavailable.
The preliminary hearing was again continued until April 15 due
to a conflict with the defense counsel’s schedule.

¶3 On April 15, the preliminary hearing was held. At the
commencement of that hearing, Puente asked to continue the
matter again to allow him time to retain private counsel. The court
denied that request and, at the conclusion of the hearing, found
probable cause to bind Puente over for trial on all counts. Puente
entered pleas of not guilty on all counts. The court scheduled a
pretrial conference to select trial dates, but on May 13, the
scheduled date for that conference, Puente refused transport to
the courthouse. Again, on May 22, the new date for the
conference, Puente refused transport. 1 On May 29, Puente

1. We acknowledge that Puente’s lawyers later asserted that he
did not refuse transport but rather, due to “some confusion,”
Puente was showering at the time of the conference and was
unable to be transported from the jail to the courthouse. The
relevant minute entries, however, reflect only that Puente refused
(continued…)

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State v. Puente

appeared, and the court scheduled a jury trial for November and
a pretrial conference for August 14. At the August 14 conference,
Puente moved to continue the matter to August 28 because he was
considering retaining private counsel. At the August 28
conference, another pretrial conference was scheduled for
October 2.

¶4 But on September 13, Puente filed a motion seeking the
appointment and payment of an eyewitness identification expert.
Puente expressly waived his right to a speedy trial to resolve this
motion. In October, defense counsel indicated that the eyewitness
expert would not be ready to proceed by the scheduled November
trial date. Both the State and Puente also agreed that they would
need to hold a hearing to address the admissibility of eyewitness
identification testimony pursuant to rule 617 of the Utah Rules of
Evidence. 2 That hearing was scheduled for November on the
dates originally scheduled for trial. The hearing was then
continued until January 23, 2020, due to the unavailability of a
witness.

¶5 The day before the scheduled rule 617 hearing, Puente
requested a continuance. The hearing was rescheduled for

transport. Where we have no finding or testimony establishing
anything other than a refusal to be transported, we can rely only
on the minute entries.

2. These types of hearings were originally held pursuant to State
v. Ramirez, 817 P.2d 774, 780 (Utah 1991). However, in 2019,
evidentiary rule 617, addressing the admissibility of eyewitness
identification testimony, became effective. Soon after rule 617
became effective, the Utah Supreme Court abrogated Ramirez,
clarifying that rule 617—not Ramirez—provided “the threshold
basis for assessing the admissibility of the eyewitness
identification testimony.” See State v. Lujan, 2020 UT 5, ¶¶ 29–30,
459 P.3d 992.

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State v. Puente

February 20. After the conclusion of that hearing, the court held a
pretrial conference, scheduled an additional pretrial conference
for May, and scheduled a jury trial to begin on November 30.

¶6 But then the worldwide COVID-19 pandemic disrupted
everything. On March 6, Utah’s governor declared a state of
emergency. Utah Exec. Order No. 2020-1 (Mar. 6, 2020). On March
21, the Utah Supreme Court suspended jury selection and jury
trials until after June 1. 3 On May 1, the Utah Supreme Court
suspended all criminal jury trials indefinitely. 4 Still, at the May
pretrial conference, the parties confirmed the trial dates in
November and December, with an optimistic assumption that by
then, the suspension of jury trials would be lifted.

¶7 By October, it became clear that “an in-person trial could
likely not be held for some time.” The court offered Puente the
option to have a trial held by videoconference, but he declined the
offer. The court rescheduled the trial for April 2021. In March
2021, due to the persistence of the pandemic, the court vacated the
April dates and scheduled another pretrial conference in May. On
April 2, Puente filed a motion to dismiss on speedy trial grounds,
which the district court denied.

3. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court (Mar. 21, 2020),
https://www.utcourts.gov/content/dam/alerts/docs/20200320%20
-%20Pandemic%20Administrative%20Order.pdf [https://perma.c
c/34W3-JXL9].

4. See Administrative Order for Court Operations During
Pandemic, Utah Supreme Court (May 1, 2020),
https://www.utcourts.gov/content/dam/alerts/docs/20200501%20
-%20Pandemic%20Administrative%20Order.pdf [https://perma.c
c/5USQ-CVWM].

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State v. Puente

¶8 Around the same time that the district court issued its
denial of Puente’s motion, pandemic restrictions were lifted and
a new jury trial was scheduled for October, with backup dates
beginning in November. In September, Puente asked to strike the
October dates in favor of the November schedule. Puente’s jury
trial began on November 29 and concluded on December 6, 2021.

¶9 As relevant here, during closing arguments, the prosecutor
stated that he had “been in [his] job for going on over 18 years”
and had “[h]andled probably 75 different homicide cases.” The
prosecutor explained that throughout his career he had seen
many different reasons that “people have killed people.” He
provided various examples of motives in other murder cases and
argued that these motives didn’t “seem like a good enough reason
for somebody to kill another person,” so “motive, although nice
when you have it, isn’t all it’s cracked up to be.” Defense counsel
did not object to the prosecutor’s discussion of these matters, nor
did the defense address these remarks in its own closing
arguments. The jury convicted Puente on all four counts.

ISSUES AND STANDARDS OF REVIEW

¶10 Puente appeals, raising two issues. First, Puente asserts
that the district court erred in denying his motion to dismiss on
speedy trial grounds. Second, Puente claims that his counsel
rendered ineffective assistance by failing to object to the
prosecutor’s remarks about experience and motive during closing
argument.

¶11 “Whether the district court erred when it denied [a
defendant’s] motion to dismiss for violation of [the] right to a
speedy trial is . . . a question of law reviewed for correctness.”
State v. Younge, 2013 UT 71, ¶ 10, 321 P.3d 1127. “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

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State v. Puente

assistance of counsel as a matter of law.” Layton City v. Carr, 2014
UT App 227, ¶ 6, 336 P.3d 587 (cleaned up).

ANALYSIS

I. Speedy Trial Claim

¶12 “The Sixth Amendment to the United States Constitution
guarantees criminal defendants the right to a speedy and public
trial.” State v. Thompson-Jacobson, 2022 UT App 29, ¶ 9, 508 P.3d
604 (cleaned up). This is a “fundamental” right that “is imposed
by the Due Process Clause of the Fourteenth Amendment on the
States.” State v. Younge, 2013 UT 71, ¶ 16, 321 P.3d 1127 (cleaned
up).

¶13 The United States Supreme Court has established a four-
factor test to evaluate a Sixth Amendment speedy trial claim.
Barker v. Wingo, 407 U.S. 514, 530 (1972). Under the Barker
framework, we consider (A) the length of delay, (B) the reason for
the delay, (C) the defendant’s assertion of the right, and (D)
whether the delay prejudiced the defendant. Id.

A. The Length of Delay

¶14 The first Barker factor is the length of delay. This factor
presents “a double [i]nquiry.” See Doggett v. United States, 505 U.S.
647, 651 (1992). First, we must ask whether the delay was long
enough to trigger a full Barker analysis. Delays in excess of one
year are usually deemed something longer than mere “ordinary”
delay and thus long enough to trigger a Barker inquiry. See id. at
652 & n.1. The clock on this inquiry starts running when a
defendant is charged with a crime and stops running when the
trial commences. See Barker, 407 U.S. at 533; State v. Samora, 2022
UT App 7, ¶ 22, 504 P.3d 195, cert. denied, 525 P.3d 1254 (Utah
2022).

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State v. Puente

¶15 Here, Puente was charged on November 7, 2018, and his
trial did not begin until November 29, 2021, three years later. This
delay clearly exceeds one year and thus qualifies for a further
Barker analysis.

¶16 The second part of this inquiry requires us to examine the
“extent to which the delay stretches beyond the bare minimum
needed to trigger judicial examination of the claim.” Doggett, 505
U.S. at 652. The extent of delay matters because “the presumption
that pretrial delay has prejudiced the accused intensifies over
time.” Id.

¶17 Here, the delay of Puente’s trial extended over three years.
In our view, this factor of the analysis—at least on the surface—
weighs in favor of Puente. But the length of delay is just one factor
in the analysis, and it must be considered in context. As we have
recently said, “the reason for the delay is much more important in
a speedy trial analysis than a rote counting of the number of days
of delay.” State v. Tuinman, 2023 UT App 83, ¶ 58, 535 P.3d 362,
cert. denied, 540 P.3d 79 (Utah 2023). Because, as discussed below,
the reason for the delay cannot primarily be attributed to the State,
we do not weigh this first factor heavily in Puente’s favor.

B. The Reason for the Delay

¶18 The second Barker factor compels us to consider the reason
for delay. In conducting this analysis, we first decide whether
each delay was attributable to the State or to the defendant. For
every delay attributed to the State, we must determine whether it
was deliberate, neutral, or valid. See Thompson-Jacobson, 2022 UT
App 29, ¶¶ 12–13. As the Supreme Court clarified, different
reasons carry different weights:

A deliberate attempt to delay the trial in order to
hamper the defense should be weighted heavily
against the government. A more neutral reason such
as negligence or overcrowded courts should be

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State v. Puente

weighted less heavily but nevertheless should be
considered since the ultimate responsibility for such
circumstances must rest with the government rather
than with the defendant. Finally, a valid reason,
such as a missing witness, should serve to justify
appropriate delay.

Barker, 407 U.S. at 531 (cleaned up).

¶19 We examined similar circumstances as those presented
here in State v. Tuinman, 2023 UT App 83, 535 P.3d 362. There we
held that any “pandemic-related delay should be considered
justified, or at least considered neutral and weighed against
neither side.” Id. ¶ 63 (cleaned up). Thus, pandemic related delays
in this case are not weighed against either side.

¶20 The first delay in this case was the 72 days it took for law
enforcement to locate Puente in Nevada. Once he was arrested,
there were 32 more days of delay caused by Puente’s own motions
or scheduling conflicts. An additional 35 days of delay were
caused when Puente stipulated to a continuance related to the
unavailable medical report. There were 16 days of delay caused
by Puente’s refusal of transport. And there were, in total, 208 days
of delay during which Puente, for various reasons, expressly
waived his right to a speedy trial. These delays account for 363
days, which are all attributable to Puente.

¶21 Puente argues in his brief that “a normal scheduling matter
. . . should be attributed to neither side.” In total, there are 313
days of normal scheduling delays which, under Puente’s own
reasoning, cannot be attributed to either side.

¶22 Finally, there are 443 days of delay that were caused by the
COVID-19 pandemic. During this delay, the Utah Supreme Court
constantly reevaluated the safety protocols in place and whether
it would be reasonable for jury trials to continue. This delay is

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State v. Puente

attributed to the pandemic under Tuinman and thus weighs
against neither side. See id.

¶23 In total, Puente was responsible for 363 days of the delay.
Another 313 days of delay were caused by normal scheduling and
thus are not attributable to either side under Puente’s own
reasoning. The remaining 443 days of delay were caused by the
COVID-19 pandemic. This likewise does not weigh against either
party. As this court recently held, “delays associated with a once-
in-a-century worldwide pandemic should not in fairness be held
against the State” but, instead, “should be considered justified, or
at least considered neutral and weighed against neither side.” Id.
(cleaned up).

¶24 By this count, there are no delays attributable to the State.
But even if we were to count the 313 days of normal scheduling
delays against the State, “we detect absolutely no gamesmanship,
tactical delay, or even negligence on the part of the State.” Id. ¶ 61.
Under such circumstances, those delays would be considered
neutral. Given that almost an entire year of delay was attributable
to Puente and that arguably none of the delay was caused by the
State—certainly none that was malicious or tactical—this factor
weighs against Puente.

C. The Defendant’s Assertion of the Right

¶25 Under the third Barker factor, we consider Puente’s
assertion of his right to a speedy trial. This analysis is not about
whether the defendant used any magic words to assert the right
but “whether the defendant’s behavior during the course of
litigation evinces a desire to go to trial.” See United States v.
Koerber, 10 F.4th 1083, 1110 (10th Cir. 2021) (cleaned up). This
analysis should take into account the overall behavior of the
defendant during the course of the litigation and whether that
behavior manifests a “desire to go to trial with dispatch.” United
States v. Batie, 433 F.3d 1287, 1291 (10th Cir. 2006).

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State v. Puente

¶26 Here, Puente formally asserted his right to a speedy trial
on January 17, 2019. Such a formal invocation of the speedy trial
right weighs “strong[ly]” in a defendant’s favor. Barker, 407 U.S.
at 531–32. When the State initiated the process of introducing an
eyewitness at trial, Puente waived his speedy trial right to resolve
that concern. But as soon as that was resolved, Puente sought new
trial dates and clarified on the record that despite any incidental
delays in scheduling, he was “not waiving any speedy trial
provisions.” Later, at the May 2020 pretrial conference, the court
recognized that Puente had asserted “his speedy trial rights,” and
defense counsel affirmed that Puente was not prepared to waive
his speedy trial rights. Puente even spoke up in court to address
his “speedy trial rights” before being told by the court to discuss
it with his attorney rather than putting it on the record. After
Puente raised the issue twice more, the court responded that it
had “made note of the fact that” he was “not waiving [his] speedy
trial rights.” Finally, Puente formally moved to dismiss the case
on the basis of a speedy trial violation in April 2021.

¶27 But the invocation analysis is not simply an inquiry of how
many times the defendant said the words “speedy trial” on the
record. It is an assessment of his actions. In this sense, this analysis
is caught up with the second Barker factor—the reason for delay—
because if it was the defendant that was delaying the trial, he was
by definition not invoking his right.

¶28 Here, Puente began this entire process by leaving the
jurisdiction. Once he was arrested and extradited, Puente moved
to continue his initial hearings twice in the course of just a couple
of months. Twice when he was supposed to be at a pretrial
conference, Puente refused transport. Puente later moved for a
continuance multiple times so he could seek private counsel.
Puente then waived his right to a speedy trial while his motion to
appoint an eyewitness identification expert was pending. After all
the COVID-19 pandemic delays, Puente again waived his right in
order to push his trial date to November.

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State v. Puente

¶29 Given all that Puente did to delay his trial, this factor is
neutral at best.

D. Prejudice

¶30 Lastly, the fourth Barker factor requires an analysis of
whether the defendant was prejudiced by the delay. Generally,
courts consider three types of harm typical of delays in the
prosecution of criminal cases. These include “oppressive pretrial
incarceration, anxiety and concern of the accused, and the
possibility that the accused’s defense will be impaired.” Doggett,
505 U.S. at 654 (cleaned up). Of the three, the last is the “most
serious.” Barker, 407 U.S. at 532.

¶31 Here, we agree with the district court that Puente “suffered
some prejudice.” Puente undoubtedly experienced anxiety and
concern as he waited over three years for his day in court. On top
of that, he spent his pretrial detention in the Weber County Jail,
which was a hotspot for COVID-19 during the final year of his
incarceration. 5 Puente’s inability to interact with or provide for his
two children was also undoubtedly difficult. Thus, Puente
suffered some of the first two types of prejudice by the nature of
his incarceration. However, he did not claim any harm to his
ability to defend himself at trial, the third and weightiest form of
prejudice. Under these circumstances, we recognize that Puente
suffered some prejudice, but because the delay did not affect his
ability to defend himself at trial, we conclude that this factor
weighs only slightly in his favor.

¶32 In conclusion, “none of the four factors identified above”
constitute “either a necessary or sufficient condition to the finding

5. See Mark Shenefelt, As Utah COVID-19 Cases Increase, Weber
County Jail Has a New Outbreak, Standard-Examiner (July 28, 2021),
https://www.standard.net/police-fire/2021/jul/28/as-utah-COVID
-cases-increase-weber-county-jail-has-a-new-outbreak [https://
perma.cc/5EFH-AMMF].

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State v. Puente

of a deprivation of the right of speedy trial.” Id. at 533. “Rather,
they are related factors and must be considered together with
such other circumstances as may be relevant. In sum, these factors
have no talismanic qualities; courts must still engage in a difficult
and sensitive balancing process.” Id. Because the four Barker
factors either weigh against Puente or only slightly in his favor,
the district court did not err by concluding that Puente’s right to
a speedy trial had not been violated. We therefore affirm the
court’s denial of Puente’s motion to dismiss on these grounds.

II. Ineffective Assistance of Counsel Claim

¶33 Next, Puente asserts that he received ineffective assistance
when his counsel failed to object to the prosecutor’s comments
about motive. To succeed on a claim of ineffective assistance of
counsel, Puente must make a two-part showing: (1) that counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness” and (2) that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984). “Unless
a defendant makes both showings, it cannot be said that the
conviction . . . resulted from a breakdown in the adversary process
that renders the result unreliable.” Id. at 687. Thus, “if either is
lacking, the claim fails and this court need not address the other.”
State v. Kufrin, 2024 UT App 86, ¶ 55, 551 P.3d 416 (cleaned up).
Though we need not address both prongs, Puente cannot make
the required showing on either.

¶34 First, we address prejudice. Here, it is very difficult for
Puente to demonstrate prejudice when the alleged prosecutorial
misconduct consisted of the prosecutor’s discussion of motive—
something that is not an element of the charged crimes. The
alleged prosecutorial misconduct occurred when the prosecutor
discussed the concept that generally no motive will seem like a

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State v. Puente

good enough reason to kill someone. The prosecutor suggested
that being able to prove motive isn’t always that helpful and that
therefore the jury should not have been disturbed by the
prosecution’s relative lack of motive evidence. In his briefing,
Puente asserts that the “State did not prove [Puente] had a motive
to kill [the victim].” But the State did not have to prove that Puente
had a motive to kill the victim. After all, “motive is not a necessary
element in the offense of homicide and proof of motive does not
establish guilt nor does absence of motive prove innocence.” In re
Contempt of Peterson, 386 P.2d 726, 727 (Utah 1963).

¶35 And it’s not as if this was a secret to anyone in the
courtroom. In the jury instructions, the judge clarified that
“[m]otive is not an element of the crimes charged in this case.”
And in the jury instructions laying out the elements of the charged
crimes, nothing the judge said made it seem as though the
prosecution’s ability or inability to prove Puente’s motive should
impact a determination of his guilt.

¶36 Given that motive is not an element of the crimes for which
Puente was charged and the judge made clear to the jury that
motive was not an element, it’s difficult to see how Puente would
have been prejudiced by the prosecutor’s commentary on the lack
of a motive. When we imagine a trial in which the prosecutor did
not make these comments, we see no reasonable probability that
the outcome would have differed from what it was here.

¶37 Second, even if Puente could demonstrate some prejudice,
he cannot demonstrate that his counsel’s performance “fell below
an objective standard of reasonableness.” State v. Scott, 2020 UT
13, ¶ 31, 462 P.3d 350 (cleaned up). “If it appears counsel’s actions
could have been intended to further a reasonable strategy, a
defendant has necessarily failed to show unreasonable
performance.” State v. Ray, 2020 UT 12, ¶ 34, 469 P.3d 871. Here,
perhaps counsel could have objected to the prosecutor’s closing
statements, but that does not mean that counsel must do that. See

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State v. Puente

State v. Hart, 2020 UT App 25, ¶ 29, 460 P.3d 604 (“[J]ust because
counsel can make an objection does not mean counsel must make
an objection to avoid rendering ineffective assistance. Legal
objections are an inherently strategic business.”). Here, reasonable
counsel could have believed that the prosecutor’s statements were
at least as helpful to Puente’s defense as they were harmful,
because they served to highlight the State’s lack of evidence
regarding motive. On this basis, reasonable counsel could have
forgone an objection for strategic purposes. See Ray, 2020 UT 12,
¶ 34 (stating that counsel’s reasonable strategy forecloses a
conclusion of deficient performance).

¶38 Puente’s counsel could have been employing a reasonable
trial strategy when he declined to object to alleged prosecutorial
misconduct and the absence of this objection did not prejudice
Puente. Thus, Puente has failed to meet his burden to demonstrate
ineffective assistance of counsel.

CONCLUSION

¶39 Because Puente did not suffer a violation of his right to a
speedy trial and because his counsel did not provide ineffective
assistance, we reject Puente’s arguments and affirm his
convictions.

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