Opinion
20190689-CA
12-16-2021
State of Utah, Appellee, v. Gino James Cecala, Appellant.
Gregory W. Stevens, Attorney for Appellant Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
Third District Court, Salt Lake Department The Honorable James T. Blanch No. 171907888
Gregory W. Stevens, Attorney for Appellant
Sean D. Reyes and Jeffrey D. Mann, Attorneys for Appellee
Judge Diana Hagen authored this Opinion, in which Judges David N. Mortensen and Jill M. Pohlman concurred.
OPINION
DIANA HAGEN JUDGE
¶1 After his girlfriend left him and her new boyfriend beat him up, Gino James Cecala wanted revenge. He fired a handgun multiple times through the boyfriend's bedroom window, but ended up striking and killing his ex-girlfriend instead. A jury convicted Cecala of first-degree murder and other crimes. Cecala now appeals, arguing that the district court erred when it admitted testimony from the lead detective, which, Cecala contends, bolstered the testimony of the State's principal witness, Todd Hull. He also asks us to reverse his convictions on the ground that the court erred when it denied his motion for a directed verdict. Because the district court did not err in either respect, we affirm Cecala's convictions.
Although we normally use descriptors or pseudonyms to refer to witnesses, Hull was convicted of obstruction of justice arising from the facts of this case.
¶2 Cecala also seeks remand under rule 23B of the Utah Rules of Appellate Procedure to supplement the record with evidence related to defense counsel's alleged conflict of interest and failure to investigate or call exculpatory witnesses. Because Cecala has failed to allege nonspeculative facts that, if true, would support his ineffective assistance of counsel claim, we deny the motion.
"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 (cleaned up).
¶3 Cecala's ex-girlfriend left him for another man. Later, the new boyfriend and two others beat Cecala, striking him in the face with a hammer. Cecala wanted to "even the score." Multiple witnesses saw Cecala with a handgun, and a mutual friend, Lexi, heard Cecala say "he was going to kill" the boyfriend. Lexi proceeded to warn the boyfriend that Cecala had a gun and "was going to hurt him."
A pseudonym.
¶4 Three days after making the threat, just a week after being pummeled with a hammer, Cecala was ready to "exact revenge." In the early morning of July 16, 2017, Cecala met with his friend Todd Hull at a motel. According to Hull, he had agreed to "have [Cecala's] back" by "even[ing] up the numbers" in what he expected to be a fight between Cecala and the boyfriend. The two men left around 4:00 a.m. in a white Chevy Cruze and drove to the boyfriend's house in Magna.
¶5 About a mile away from the boyfriend's house, Cecala pulled over to the side of the road where the two men smoked bath salts then disguised themselves with black shirts, bandanas, beanies, and gloves that Cecala had packed in a backpack. Hull saw that Cecala had packed a handgun as well. When the men finished changing clothes, they switched seats.
¶6 With Hull now driving, they slowly circled the block to see if the boyfriend's car was parked outside his house, then they stopped nearby to "get [their] bearings" before circling back. Cell phone records showed that Cecala received two calls, the first at 4:34 a.m. and the second at 4:48 a.m.; both calls were routed through the cell tower in Magna, establishing that he was "in the Magna area" at that time.
¶7 Around 5:00 a.m., Hull stopped the car in the middle of the street, and Cecala got out. Hull watched as Cecala walked briskly to a basement window that was covered inside by a dark curtain, crouched down on one knee, and fired his gun. Hull would later testify that he heard ten shots. A neighbor testified that he counted "about six to eight." Both witnesses testified that there was a pause followed by a few more shots. Police later collected fifteen 9mm bullet casings from outside the window, all fired from the same gun. At trial, the State presented trajectory evidence, photographs, and testimony showing that the shots were fired from outside the house, through the closed window and curtain, and into the room.
¶8 None of the bullets hit the boyfriend. Unbeknownst to Cecala, the victim had been sitting across from the window in the boyfriend's bedroom. Thirteen of Cecala's bullets lodged into the bed; two bullets struck the victim-one in the leg and one in the back of her head, killing her.
¶9 Cecala ran back to the car, commanding Hull to "[G]o, go, go!" The neighbor heard a car door slam, and saw a small white car drive away. A nearby security camera also recorded footage of a white car.
¶10 About a mile down the road, the two men began shedding their clothes and throwing them out the window. After another couple miles, Hull pulled into an unfinished subdivision, stopping at a dead-end street by a vacant lot. Cecala got out of the car and buried the gun behind a pile of dirt. Back on the road, Cecala told Hull that he had "methodically placed every shot."
¶11 A few hours after the shooting, Lexi learned that the victim had been killed. She called Cecala and told him, "You killed [the victim], I hate you." Cecala said nothing and hung up.
¶12 The next day, Hull went with a woman and another man to recover the gun from where Cecala had buried it. Hull testified that they could not find it.
¶13 That same evening, police learned that Hull, who was booked on an unrelated charge, may have been involved in the shooting and interrogated him. At first, Hull denied knowing anything about the shooting, but after police claimed that a witness placed him at the scene of the crime, Hull confessed that he had driven Cecala to the boyfriend's house and had witnessed the shooting. Hull maintained that he did not know what happened to the gun, but he admitted the next day that he knew where it was. He led two homicide detectives to the dirt pile where Cecala had buried the gun, but it was not there.
¶14 Police spoke to a nearby resident who reported seeing two women behind some dirt piles carrying a duffel bag and a small shovel the day before. The women walked south to meet up with a man, and then the three of them got into a car and drove away. Shortly thereafter, police stopped the woman who had accompanied Hull to look for the gun the day after the shooting. They found a shovel in the trunk of her car, which the nearby resident identified as "very similar" in size and color to the one he had seen being carried by the women coming from the piles of dirt. A search of the woman's home uncovered Cecala's identification card, wallet, and a couple of Cecala's cell phones. The gun was never found.
¶15 Not long after the shooting, Cecala disappeared. Months later, police found him in Texas. Cecala had changed his appearance and was now sporting "a full beard," and "his hair had grown."
¶16 Cecala was transported to Utah and charged with murder, obstruction of justice, possession of a firearm by a restricted person, one count of felony discharge of a firearm with serious bodily injury (for the bullet that struck the victim's leg), and thirteen counts of felony discharge of a firearm (for the bullets that missed).
¶17 At trial, the State relied heavily on Hull's testimony to establish what happened before, during, and after the shooting. The State also called the lead detective to testify about Hull's police interview. During the State's redirect of the detective, the following exchange occurred:
Prosecutor: Is [Hull] the first person who started out an interview being reticent to talk to you?
Witness: No, it happens all the time.
Prosecutor: Is it - is it typical that then it changes and you get the real story?
Witness: Yes.
Defense Counsel: I'm going to object, Your Honor.
Court: Overruled.
Defense Counsel: "The real story," that's coming to a conclusion.
Court: Well, he's not - he's talking generally at this point. I'm going to overrule the objection.
The prosecutor quickly wrapped up the examination.
¶18 After the prosecution rested, Cecala moved for a directed verdict on the grounds that the State had presented insufficient evidence to prove that he had the mental state required to commit certain crimes. With respect to the murder charge, defense counsel argued that there was insufficient evidence that Cecala "intentionally or knowingly caused the death" of the victim or that "he intended to cause bodily injury to another, and therefore caused her death." With respect to the lesser included offense of manslaughter, defense counsel argued that there was insufficient evidence to prove that Cecala was "reckless in causing" the victim's death because there was no "evidence that he knew or should have known that she was in there." Finally, regarding the obstruction of justice charge, defense counsel argued that there was "no evidence that [Cecala] knew there was an active warrant for him" when he fled the jurisdiction, even assuming that such conduct amounted to obstruction of justice.
¶19 The district court denied the motion, explaining that the court's limited role was "to assess based on the evidence that's been submitted, whether or not a reasonable jury could return a verdict of guilty beyond a reasonable doubt." The court found that there was sufficient evidence to support a conviction for obstruction of justice based not only on Cecala's "flight with the intent to evade arrest" but also on his "efforts to dispose of the firearm" and to alter his appearance. As to the murder charge, the court observed,
[W]e have evidence from a person who testified under oath that he drove the defendant to the site of this offense and witnessed the murder that's charged, and the Court can't decide whether Mr. Hull was telling the truth, the jury has to decide that. I can't step into their shoes, make that determination. So I can't find that a reasonable jury can't convict the defendant of the murder offense, can't [convict him] beyond a reasonable doubt. That's up to the jury to decide.
Cecala never argued that Hull's testimony was inherently improbable or should otherwise be disregarded.
¶20 The jury convicted Cecala of murder, obstruction of justice, felony discharge of a firearm with serious bodily injury, and the remaining thirteen counts of felony discharge of a firearm. By stipulation, the restricted person charge was tried to the bench, and the court found Cecala guilty of that charge as well. Cecala appeals each of his convictions.
ISSUES AND STANDARDS OF REVIEW
¶21 Cecala raises three issues on appeal. First, he claims that the district court erred by allowing the lead detective to bolster Hull's credibility. "We review preserved claims challenging the district court's admission of testimony for an abuse of discretion." State v. Lewis, 2020 UT App 132, ¶ 15, 475 P.3d 956.
¶22 Next, Cecala argues that there was insufficient evidence to convict him of several charges, and therefore the district court erred by denying his motion for directed verdict. "We review a district court's ultimate ruling on a motion for directed verdict for correctness." State v. LeVasseur, 2020 UT App 118, ¶ 18, 473 P.3d 204.
¶23 Lastly, Cecala has filed a rule 23B motion for a remand to supplement the record with evidence to support a claim of ineffective assistance of counsel. "Rule 23B allows this court to remand a criminal case 'to the trial court for entry of findings of fact, necessary for the appellate court's determination of a claim of ineffective assistance of counsel.'" State v. Powell, 2020 UT App 63, ¶ 11, 463 P.3d 705 5 (quoting Utah R. App. P. 23B(a)). "A remand under rule 23B is available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." State v. Ramirez, 2019 UT App 196, ¶ 13, 455 P.3d 1082 (cleaned up).
ANALYSIS
I. Bolstering
¶24 First, Cecala claims that the lead detective improperly bolstered Hull's testimony when he affirmed that it is common to "get the real story" from a suspect after the suspect initially refuses to cooperate with police. Bolstering is governed by rule 608(a) of the Utah Rules of Evidence, which prohibits "direct testimony regarding the truthfulness of a witness on a particular occasion." State v. Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (cleaned up); see also Utah R. Evid. 608(a). As the State aptly puts it, "the key word is 'direct' because there is a 'fundamental difference' between 'testimony from which a jury could infer the veracity of the witness,' which is not prohibited, and 'an affirmative statement that [the witness] was in fact telling the truth,' which is." (Quoting Adams, 2000 UT 42, ¶¶ 13-14.)
The State argues that this claim of error was not preserved. Although Cecala objected to the testimony on the grounds that the detective was "coming to a conclusion," the State points out that Cecala "did not argue that the testimony bolstered [Hull's] credibility, nor did he cite evidence rule 608(a) or any other authority." Although the State's preservation argument may be well taken, we elect to resolve the claim on the merits because we can easily do so in the State's favor. See State v. Kitches, 2021 UT App 24, ¶ 28, 484 P.3d 415 ("If the merits of a claim can easily be resolved in favor of the party asserting that the claim was not preserved, we readily may opt to do so without addressing preservation." (cleaned up)).
¶25 The detective's testimony did not constitute impermissible bolstering because it did not comment on the veracity of a witness's statement on a particular occasion. Rather, the testimony concerned the detective's experience with suspects generally: he explained that suspects are often "reticent to talk" at the outset of an interview, but that attitude typically "changes and you get the real story." The detective did not opine that such a situation had occurred in this case. Although the jury could infer as much, rule 608(a) does not prohibit "testimony from which a jury could infer the veracity of the witness"; "it only bars direct testimony regarding the truthfulness of a witness on a particular occasion." Adams, 2000 UT 42, ¶ 14 (cleaned up).
¶26 This court recently reviewed the admission of similar testimony in State v. Lewis, 2020 UT App 132, 475 P.3d 956, and concluded that it did not constitute impermissible bolstering. In Lewis, a sexual assault victim gave varying statements to police. See id. ¶¶ 4-8. On direct examination, the interviewing officer acknowledged that sexual assault victims often "have to give their account multiple times." Id. ¶ 20 (cleaned up). The State then asked whether it was "common for victims' accounts to sometimes have variations." Id. (cleaned up). After the defense objected on bolstering grounds, the court overruled the objection, and the officer responded, "That is correct." Id. This court held that the officer did not opine as to "the truthfulness of a witness on a particular occasion" in violation of rule 608(a) because he "merely described his observation that in other cases there are often variations among a victim's statements when multiple accounts are given." Id. ¶ 26. "It was left to the jury to determine whether [the victim] was telling the truth in her differing accounts, informed by the knowledge that varying accounts are not uncommon in similar circumstances." Id.
¶27 Similarly, the detective here did not opine directly on Hull's credibility or offer a subjective opinion that Hull was telling the truth when he claimed to have witnessed the shooting. The detective's testimony stopped short of concluding, based on his experience with other suspects, that Hull had told "the real story" after initially being "reticent to talk." Instead, he spoke of his past experience generally, leaving it to the jury to determine whether Hull was telling the truth, informed by the knowledge that it is not uncommon for a suspect to give the true story after initially being reticent to talk. In other words, it was "testimony from which a jury could infer the veracity of the witness," not impermissible bolstering. See Adams, 2000 UT 42, ¶ 14. Because the detective's testimony was not a "direct," "affirmative statement that [Hull] was in fact telling the truth," see id. ¶ 13, Cecala has not established that it was wrongfully admitted.
II. Sufficiency of the Evidence
¶28 Next, Cecala challenges the district court's denial of his directed verdict motion, arguing that the State did not prove his guilt beyond a reasonable doubt because Hull's testimony could not be believed. Specifically, Cecala argues that Hull's testimony at trial was inconsistent with his original statements to police and that his "self-serving" version of events was "beyond reasonable belief." Cecala asks us to hold that "the acknowledged inconsistencies and self-serving assertions in [Hull's] testimony rendered his testimony such that 'reasonable minds must have entertained a reasonable doubt'" that Cecala committed the crimes for which he was convicted. (Quoting State v. Cady, 2018 UT App 8, ¶ 25, 414 P.3d 974.)
To the extent that Cecala asks us to entirely disregard Hull's testimony, we agree with the State that Cecala's general motion for a directed verdict did not preserve that theory for appeal. When ruling on a directed verdict motion, "it is ordinarily not the court's place to disregard any particular items of admitted evidence; rather, a court should examine all admitted evidence to determine if some evidence exists that could support the verdict." State v. Skinner, 2020 UT App 3, ¶ 25, 457 P.3d 421 (cleaned up). In contrast, a challenge to the evidence based on inherent improbability "introduces a new legal theory: that the insufficiency should be reviewed only after [the challenged] testimony is ignored as inherently improbable." See State v. Doyle, 2018 UT App 239, ¶ 19, 437 P.3d 1266 (cleaned up). Where the defendant has "not specifically asked the court to exclude or disregard any particular evidence," a general directed verdict motion does not preserve an inherent improbability claim for appeal. See Skinner, 2020 UT App 3, ¶ 27. Here, Cecala maintains that his "argument on appeal is not aimed at the inherently improbable [doctrine], but, instead, on the fact that Mr. Hull's testimony was internally inconsistent." Therefore, we address this issue as a general challenge to the sufficiency of the evidence.
¶29 As an initial matter, Cecala has not identified any "internal inconsistencies" in Hull's trial testimony. Instead, he argues only that, "at the preliminary hearing and again at trial, Mr. Hull offered an entirely new version of events" from the statements he originally gave to police. As our supreme court has recognized, the fact that witnesses "tied to events surrounding a murder would deny their involvement when initially interviewed by the police does not run so counter to human experience that it renders their testimony inherently improbable." State v. Prater, 2017 UT 13, ¶ 39, 392 P.3d 398. To the contrary, "[t]he question of which version of their stories was more credible is the type of question we routinely require juries to answer." Id. Without more, we will not second-guess the jury's decision to credit Hull's trial testimony notwithstanding his earlier denials.
¶30 Moreover, Cecala does not undertake any analysis of the evidence presented at trial in support of his seventeen counts of conviction, much less show that the evidence was insufficient to prove any one of the elements that the jury was required to find beyond a reasonable doubt. When challenging the sufficiency of the evidence, "a party who fails to identify and deal with supportive evidence will never persuade an appellate court to reverse under the deferential standard of review that applies to such issues." State v. Nielsen, 2014 UT 10, ¶ 40, 326 P.3d 645. The duty to marshal all record evidence in support of the verdict is "a natural extension of an appellant's burden of persuasion." Id. ¶ 41. Failure to marshal does not result in procedural default, but "a party challenging a factual finding or sufficiency of the evidence to support a verdict will almost certainly fail to carry its burden of persuasion on appeal if it fails to marshal." Id. ¶ 42.
¶31 Here, Cecala does not address any of the evidence supporting his various convictions, including multiple pieces of evidence that corroborated Hull's account of the shooting. See infra ¶ 45. Nor does he identify one or more elements of each offense that lacked evidentiary support. Absent such an analysis, Cecala cannot carry his burden of persuasion. Accordingly, we reject his challenge to the sufficiency of the evidence.
III. Rule 23B Motion
¶32 Cecala also seeks a remand under rule 23B of the Utah Rules of Appellate Procedure to supplement the record with evidence to support his ineffective assistance of counsel claims. Rule 23B "provides a mechanism for criminal defendants to supplement the record with facts that are necessary for a finding of ineffective assistance of counsel but which do not appear in the record." State v. Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166. A rule 23B remand is "available only upon a nonspeculative allegation of facts, not fully appearing in the record on appeal, which, if true, could support a determination that counsel was ineffective." Utah R. App. P. 23B(a).
¶33 In his rule 23B motion, Cecala claims that his defense counsel was ineffective because counsel (1) had "an apparent conflict of interest" and (2) "fail[ed] to investigate exculpatory witnesses." We therefore address whether the factual allegations in Cecala's motion, if true, would establish either claim of ineffective assistance of counsel.
A. Conflict of Interest
¶34 First, Cecala claims that his defense counsel had "an apparent conflict of interest" because he had previously represented Lexi, one of the State's witnesses. "The right to effective assistance of counsel includes the right to counsel free from conflicts of interest." Taylor v. State, 2007 UT 12, ¶ 123, 156 P.3d 739 (cleaned up). Still, a defendant "claiming ineffective assistance of counsel resulting from a conflict of interest must show that 'an actual conflict of interest adversely affected his lawyer's performance.'" State v. Taylor, 947 P.2d 681, 686 (Utah 1997) (quoting Cuyler v. Sullivan, 446 U.S. 335, 348 (1980)). The evidence supporting Cecala's motion for a rule 23B remand does not establish an actual conflict.
¶35 Ordinarily, a defendant alleging ineffective assistance of counsel must establish both that "counsel's performance was deficient" and that "the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984). But "a defendant who shows that a conflict of interest actually affected the adequacy of his representation need not demonstrate prejudice in order to obtain relief." Cuyler, 446 U.S. at 349-50. "Prejudice is presumed only if the defendant demonstrates that counsel actively represented conflicting interests and that an actual conflict of interest adversely affected his lawyer's performance." Strickland, 466 U.S. at 692 (cleaned up); see also Mickens v. Taylor, 535 U.S. 162, 173 (2002) (explaining that "prejudice will be presumed only if the conflict has significantly affected counsel's performance"). In other words, "the defendant must demonstrate as a threshold matter that the defense attorney was required to make a choice advancing his own interests to the detriment of his client's interests." State v. Taylor, 947 P.2d at 686 (cleaned up). "Hypothetical or speculative conflicts will not suffice to establish a violation." State v. Cheek, 2015 UT App 243, ¶ 35, 361 P.3d 679 (cleaned up).
¶36 In support of his contention that counsel had an actual conflict of interest, Cecala offers defense counsel's declaration that, during Lexi's cross-examination, he realized it was "possible that [he] had represented her previously on a criminal matter, perhaps when she had a different last name." Afterward, counsel learned that he had in fact represented Lexi under another last name in an unrelated case sixteen years earlier. According to Cecala, Lexi's prior representation by defense counsel necessarily "presents a conflict" because "an attorney who cross-examines former clients inherently encounters divided loyalties." (Cleaned up.)
¶37 But to establish "an actual conflict of interest," a defendant must show "a conflict that affected counsel's performance-as opposed to a mere theoretical division of loyalties." Mickens, 535 U.S. at 171 (cleaned up). Although defense counsel worries that his familiarity with Lexi "might have, subconsciously, affected [his] cross-examination of her," causing him to "cross-examine[] her more lightly than [he] would have otherwise if [he] were certain [he] had never represented her as a client," his declaration does not point to anything he would have done differently. He does not identify any objections that he should have made, any lines of inquiry that he should have pursued, or any questions that he should not have asked. Because "hypothetical or speculative conflicts will not suffice to establish a violation," see Cheek, 2015 UT App 243, ¶ 35 (cleaned up), we cannot conclude that an actual conflict of interest existed merely because counsel's vague recollection of a witness may have "subconsciously" affected his performance in some unidentified way. Defense counsel's speculation that he might have cross-examined Lexi "more lightly" does not establish that defense counsel was actively representing other interests to the detriment of his client.
¶38 Taking all the facts in the declaration as true, Cecala cannot demonstrate an actual conflict of interest. And because the evidence presented is insufficient to establish an ineffective assistance of counsel claim, Cecala is not entitled to a remand to supplement the record on this basis.
B. Failure to Investigate or Call Exculpatory Witnesses
¶39 Cecala also seeks a remand to supplement the record with evidence that defense counsel "fail[ed] to investigate exculpatory witnesses." Cecala has submitted his own declaration in which he claims that defense counsel did not meet with him to discuss his case prior to the trial. If he had, Cecala says he would have told counsel to speak with three witnesses and call them to testify. According to Cecala, these witnesses would have offered the following evidence at trial: Witness 1 would have testified that Cecala was with her at a hotel at the time of the murder, Witness 20 would have testified as to Cecala's "former relationship" with Lexi, and Witness 3 would have testified that she observed no animosity between Cecala and the boyfriend prior to the murder and that Cecala seemed "normal" in the hours before and after the murder.
¶40 To merit remand on his 23B motion, Cecala's allegations, if proven, must show "that counsel's performance was deficient" and "that the deficient performance prejudiced the defense." Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Utah R. App. P. 23B(b). To establish the prejudice prong of Strickland, Cecala must show "that if counsel had presented the information at trial, there would have been a substantial likelihood of a different result." See Menzies v. State, 2014 UT 40, ¶ 183, 344 P.3d 581, abrogated on other grounds by McCloud v. State, 2021 UT 51, 496 P.3d 179. The evidence Cecala has provided in support of his rule 23B motion does not demonstrate the required prejudice.
¶41 To support his assertion that Witness 1 would have testified as an alibi witness, Cecala attaches a police report in which Witness 1 claims that she was in a hotel room with Cecala at the time of the shooting from Saturday night until Sunday around noon. However, when Witness 1 was "warned about lying about [Cecala] being at the hotel . . . she stated that she didn't know what days he was at the hotel." Cecala also offers a declaration from Witness 1's attorney, which states that she probably would have granted defense counsel permission to speak with her client at the time of Cecala's trial, but he never contacted her. Cecala does not attach a declaration from Witness 1.
¶42 These facts, taken as true, do not establish that Witness 1 would have provided Cecala with an alibi if defense counsel had called her to testify. Cecala has provided no evidence that Witness 1 would have been available or willing to testify, much less that her testimony would have been favorable to Cecala. Witness 1 retracted her claim that Cecala was with her at the time of the shooting, and Cecala has offered no evidence to suggest that, if called at trial, Witness 1 would have reverted to her original story. Without more, Cecala cannot establish a reasonable probability that the failure to call Witness 1 affected the outcome of the trial.
¶43 With respect to Witness 2, Cecala offers his own declaration, which states that Witness 2 is his mother and that she "had been aware of [Cecala and Lexi's former] relationship[] and could have been called to testify about the former relationship." Not only is this evidence insufficient to establish the content of the missing testimony, but Cecala also fails to explain how this testimony would have been exculpatory or even favorable. Even accepting Cecala's declaration as true, he has not established that calling his mother to testify about his "former relationship" with Lexi would have been reasonably likely to change the result of the trial.
¶44 Lastly, Cecala has provided a declaration from Witness 3, stating that she would have been willing to testify at trial that: (1) she did not see any animosity between Cecala and the boyfriend about a week before the murder; (2) she did not hear Cecala make any threats against the boyfriend; (3) she spoke with Cecala by phone shortly before and after the murder and his tone and demeanor appeared to be normal; and (4) others told her that they did not think Cecala was the murderer. But even if the jury had heard and believed this testimony, it was not reasonably likely to have affected the jury's assessment of the evidence.
As to the fourth item, Cecala suggests no grounds for admitting these out-of-court statements at trial.
¶45 At most, Witness 3's testimony suggested that she did not observe Cecala behave in a manner consistent with the State's theory of the case. But, even if the jury believed that testimony, it did not disprove Hull's corroborated eyewitness account of the murder. Hull testified that, on the day of the murder, Cecala wanted revenge. Multiple witnesses confirmed that Cecala was angry with the victim's new boyfriend, and Lexi testified that she heard Cecala threaten to kill him. According to Hull, he and Cecala left around 4:00 a.m. to drive to the boyfriend's home in Magna. Cecala's cell phone records placed him in Magna at 4:34 a.m. and 4:48 a.m., and a nearby security camera captured the image of a white car around the time of the shooting. Hull testified that Cecala had a handgun, which was consistent with the testimony of other witnesses who saw Cecala with a handgun in the days leading up to the murder. Hull further testified that he watched Cecala kneel outside the boyfriend's basement window and fire multiple rounds through a dark curtain. That account was corroborated by trajectory evidence, the holes in the curtain, and the casings found outside the window. Hull testified that Cecala fired ten shots, paused, and then fired a few more, which was consistent with the testimony of a neighbor who, at around 5:00 a.m., heard "about six to eight" shots, a pause, and then a series of additional shots. It was also consistent with the fifteen 9mm bullet casings the police recovered from outside the window. And Hull's account was further corroborated by the neighbor's testimony that, after the shots were fired, he heard a car door slam and saw a white car drive away. Even Hull's testimony that Cecala had buried the gun in a dirt pile behind an undeveloped subdivision was partially corroborated by a nearby resident who saw two women there with a shovel the day after the murder and by the police recovering a similar shovel from a woman who was also in possession of Cecala's belongings. Finally, Cecala's disappearance shortly after the murder, flight to Texas, and efforts to change his appearance also supported an inference that he was attempting to evade capture and further supported Hull's account that Cecala had committed the crime.
¶46 Because the proposed testimony from Witness 3 would not have significantly altered this evidentiary landscape, Cecala has not established a substantial likelihood of a different result if that testimony had been presented. Even assuming that the jury credited Witness 3's testimony, it is not reasonably likely that her observations of Cecala's behavior would have outweighed the substantial evidence of Cecala's guilt. Because Cecala cannot establish that he was prejudiced by the absence of Witness 3's testimony, he is not entitled to a rule 23B remand.
CONCLUSION
¶47 The district court acted within its discretion when it overruled Cecala's objection to the lead detective's testimony because that testimony did not impermissibly bolster Hull's credibility. Whether to believe Hull's testimony was a question for the jury, and absent any analysis of the evidence supporting the jury's verdict, we reject Cecala's challenge to the sufficiency of the evidence. Finally, we deny the motion to remand under rule 23B because Cecala has not alleged nonspeculative facts that, if true, would establish his ineffective assistance of counsel claims. Accordingly, we affirm.