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Defense says jury instructions let prosecutors avoid proving who did what in Alvarez drive-by case
Summary
In State v. Alvarez, defense counsel argued that the jury instructions combined party liability and felony-discharge elements and allowed conviction on recklessness or alternatives without specific unanimity about each defendant's role; the State replied that the instructions tracked precedent and the record shows strong evidence of intent.
At oral argument in State v. Alvarez, Spencer Brown, counsel for Rosalio Alvarez, told the Utah Court of Appeals that the jury instructions permitted the prosecutor to obtain convictions without proving the specific role each defendant played in the charged drive-by shooting. "Those instructions allowed the prosecutor to argue that she did not have to prove what role any of the defendants played," Brown said, adding that the instruction conflated party liability and the predicate mens rea for felony discharge.
Brown argued trial counsel were ineffective for failing to request clearer instructions separating the discharge offense from party-liability standards and for failing to press for a specific-unanimity instruction that would have required jurors to agree on which particular act each defendant committed. He emphasized that recklessness was included in the discharge instruction and not defined, and said that an undefined recklessness option could permit a lay juror to convict without proof of the higher mental state required for accomplice liability.
The panel questioned whether the fact that three defense attorneys in a joint trial made the same decision not to object suggested objective reasonableness. Brown replied that "group think" and trial pressures make it no less unreasonable for all three not to object, and that appellate counsel decisions vary. The State told the court that the instructions track existing precedent (citing Hogue) and that the evidence was overwhelming: DNA profiles, video placing specific defendants in certain seats, text messages about the target, and gang-intelligence testimony.
Regarding unanimity, the State characterized the discharge statuteas an "alternative-means" statute (multiple ways to violate it) and said jurors need not be unanimous on which alternative was used so long as the elements of the offense were met; the defense argued that the absence of specific-unanimity instructions allowed the State to "take shortcuts" and avoid proving who actually pulled the trigger or who acted as principal versus accomplice.
Brown asked the court to consider prejudice under Strickland and Grunewald-related precedents and to remand for further fact development or to reverse where jury-error and IAC concerns undermine confidence in the verdict. The court took the matter under advisement and will issue a decision.
