The Appellate Group

State v. Nunes

State v. Nunes, 2020 UT App 71 (Christiansen Forster, J.)


The defendant was accused by Victim of rape and forcible sodomy. At trial, counsel either did not object or withdrew his objections to the following testimony: Victim twice testified that the sexual activity happened after Nunes got out of “jail.” Victim’s Mother testified that she did not think Victim was “faking” when Victim claimed she had been raped. Victim’s school Counselor recounted what Victim had told her concerning the sexual encounter, including stating that Victim had said the defendant hit and scratched her as hard as he could, which Victim did not testify to at trial. The jury convicted Nunes of rape but acquitted him of forcible sodomy. The Utah Court of Appeals affirmed, holding:

  • Assuming without deciding that trial counsel performed deficiently in failing to object to Mother vouching for Victim’s credibility in violation of rule 608(a) of the Utah Rules of Evidence, the defendant did not show prejudice because the comment was relatively isolated and it was unlikely the jury would have been surprised that Mother believed Victim.
  • Assuming without deciding that trial counsel performed deficiently in withdrawing a valid hearsay objection to Counselor’s testimony, the defendant did not show prejudice because Victim’s testimony contained all the facts necessary to establish the elements and the court deemed Counselor’s recounting of what Victim told her no more inflammatory than Victim’s own account although it contained additional details.
  • Where trial counsel did not object to Victim’s comments that the defendant had been in jail because he “didn’t want to draw attention to it,” the court of appeals held that “[t]his could well have been a reasonable strategic choice.”
  • Orme, J., dissented: The dissent believed that trial counsel was deficient in withdrawing his objection to the hearsay recounted by Counselor and failing to object to the bolstering testimony from Mother. Given the lack of corroborating evidence and the doubts the jury had about Victim’s credibility, where they had rejected her claim of sodomy and acquitted Nunes on that charge, the dissent held that both Mother’s vouching and Counsel’s hearsay testimony “are prejudicial to Nunes in their own right—and all the more so in combination—and they entitled him to a new trial.”