Can a defendant object to evidence after introducing it first? State v. Guerro Explained

The Utah Court of Appeals in State v. Guerro provides an important reminder about the doctrine of curative admissibility and its implications for defense strategy. This case demonstrates how defendants can inadvertently open the door to evidence they later wish to exclude.

Background and Facts

Omar Guerro was charged with murder, aggravated kidnapping, and firearm possession after a shooting at a Moab trailer park. During the incident, Guerro allegedly shot and killed Rojo while searching for information about his missing family. Multiple witnesses, including BreeAnna, Jorge, and Jaime, testified against Guerro, identifying him as the shooter.

During cross-examination, Guerro’s counsel questioned a neighbor about text messages that allegedly showed Kevin identified Jaime as the shooter. However, when the prosecution sought to introduce the actual text messages to clarify their content, defense counsel objected on authentication grounds.

Key Legal Issues

The primary issue was whether the trial court properly admitted the text messages after the defense had introduced evidence about them during cross-examination. Guerro also raised several ineffective assistance of counsel claims, including failure to object to the translation of the text messages and failure to present DNA evidence.

Court’s Analysis and Holding

The Court of Appeals applied the doctrine of curative admissibility, holding that a party who “interjects into a case” inadmissible evidence “cannot complain on appeal that his adversary subsequently offered and was permitted to introduce the same kind of evidence.” The court found that Guerro’s counsel had elicited testimony creating a false impression that Kevin’s text messages identified Jaime as the shooter, when the actual messages indicated the shooter was someone “with Jaime” whose name Kevin didn’t know.

Regarding the ineffective assistance claims, the court applied the familiar two-prong test requiring both deficient performance and prejudice. The court found no deficiency in counsel’s strategic decisions and noted that Guerro failed to provide evidence supporting his claims about translation errors or DNA evidence.

Practice Implications

This case highlights critical strategic considerations for Utah appellate practitioners. First, counsel must carefully review evidence before introducing it, as curative admissibility will allow the prosecution to correct misleading impressions. Second, ineffective assistance claims require adequate record support—absent evidence of actual errors or deficiencies, courts will presume counsel acted reasonably. Finally, procedural tools like Rule 23B motions for remand may be necessary to supplement inadequate records for ineffective assistance claims.