2013 UT App 133

_________________________________________________________



### T HE 

### U TAH 

### C OURT OF 

### A PPEALS

S TATE OF U TAH

, Plaintiff and Appellee,

v.

H USSEIN G EDI

, Defendant and Appellant.

Memorandum Decision

No. 20111099

‐ CA

Filed May 23, 2013

Third District, Salt Lake Department

The Honorable Judith S.H. Atherton

No. 111901194

Craig L. Pankratz and David M. Corbett, Attorneys

for Appellant

John E. Swallow and Brett J. DelPorto, Attorneys

for Appellee

J UDGE S TEPHEN L. R OTH authored this Memorandum Decision, in

which J UDGES G REGORY K. O RME and J. F REDERIC V OROS J R

. concurred.

ROTH, Judge:

¶1 Defendant Hussein Gedi appeals his convictions by jury for

violation of a domestic violence protective order and threat of

domestic violence. Gedi argues that his trial counsel rendered

ineffective assistance by opening the door to testimony about

Gedi’s prior domestic violence conviction. We affirm.

¶2 Gedi’s girlfriend (Girlfriend) obtained a domestic violence

protective order against him in February 2010 based on Gedi’s

abuse of her in January 2010. At trial, the issue was whether GediState v. Gedi

had violated that protective order by going to Girlfriend’s family’s

home and whether, at the home, he threatened to kill her family if

she did not leave with him. At trial, Gedi and Girlfriend offered

contradictory testimony.

¶3 Girlfriend testified that after the protective order was issued

and while it was still in force, she and Gedi had briefly reconciled

in July 2010 after he had “bugged” her on several occasions while

she was living at her parents’ home in West Valley City. The two

lived together at Gedi’s home in Logan for a couple of days

without incident until they got into an argument over cigarettes.

Gedi had refused to buy cigarettes for Girlfriend, and she left his

house on foot to “bum a cigarette” off someone. Gedi followed

Girlfriend in his car, talked her into the car, and started to take her

back to his house. Girlfriend became afraid that Gedi would hit her

when they got back to his house, explaining, “I already know what

happens when we go back to the house. He’s going to end up

hitting me inside the house.” So rather than return to the house

with Gedi, Girlfriend jumped out of the moving vehicle. When

Girlfriend was later treated for her injuries by a doctor, Gedi

accompanied her and told the doctor that she had been in a bicycle

accident.

¶4 After that incident, Girlfriend resolved to leave Gedi but

was afraid to try to do so when Gedi was home, explaining, “[H]e

has slammed me against the wall to not leave.” So she instead

waited until Gedi was at work, took his vehicle, and left. Girlfriend

met up with her sister and they drove to Salt Lake City where they

left Gedi’s vehicle at his mother’s house and then returned to their

parents’ house in West Valley City. During this time, Gedi

repeatedly called Girlfriend, saying that he was coming to get her

and that if she did not go with him he was going to hurt or kill her

family. During at least one of the calls, Girlfriend put Gedi on

speaker phone so her sister could also hear the conversation.

¶5 At some point Girlfriend realized that she and Gedi had

inadvertently switched cell phones, so she agreed that Gedi could

20111099

‐ CA 2013 UT App 133 2State v. Gedi

come to her parents’ house to exchange phones. When Gedi arrived

at her parents’ home, Girlfriend was waiting on the front porch

with her sister, her brother, and a cousin. After a time, Girlfriend’s

mother and stepfather also arrived at the house. Gedi and

Girlfriend argued for a while. Girlfriend told him to leave while

Gedi repeated his threats that if she did not leave with him he

would kill her family. Eventually, Girlfriend’s sister called the

police. When he realized the police had been called, Gedi hurried

to his car and drove off. Girlfriend’s sister and stepfather also

testified consistently with Girlfriend’s testimony.

¶6 Gedi, however, testified that he had not seen and had not

had any contact with Girlfriend since the protective order had been

issued in February 2010. According to him, he and Girlfriend did

not reconcile at his urging in July 2010, she never returned to live

with him in Logan, they did not have a fight about cigarettes, she

did not jump out of his moving car, and he did not drive to her

parents’ house and threaten her and her family. Rather, according

to Gedi, after approximately five months without any contact,

Girlfriend went to his house in Logan while he was at work and

stole one of his cars and his cell phone. When asked why she and

her family would tell such a story so at odds with his own, Gedi

explained that Girlfriend and her family were “all just making this

up” and were lying because they did not like him, in part because

he had refused to convert from Islam to Mormonism and also

because Girlfriend had told her family in the past that he had

abused her.

¶7 During his direct examination, Gedi’s counsel asked him

about the January 2010 incident that led Girlfriend to obtain the

protective order. In a somewhat rambling response that his counsel

did not interrupt, Gedi explained that Girlfriend was jealous and

did not like him coming home late or his efforts to keep her from

smoking and doing drugs, which he insinuated led to a fight that

in turn led to the issuance of the protective order. On cross

‐

examination, the State asked Gedi for more details about the

January 2010 incident. Specifically, the State elicited testimony that

20111099

‐ CA 2013 UT App 133 3State v. Gedi

Gedi had pleaded guilty to domestic violence assault and criminal

mischief for punching a car window. Because of this incident,

Girlfriend applied for, and Gedi stipulated to the issuance of, the

protective order. Then on redirect examination, Gedi’s counsel

elicited an explanation from Gedi that he had pleaded guilty to the

assault and criminal mischief charges because he was guilty but

had not pleaded guilty to charges he was currently being tried for

because he was not guilty:

[Trial Counsel]: And you testified to the jury that you

pled guilty to assault and criminal mischief.

[Gedi]: Yes.

. . .

[Trial Counsel]: [Y]ou pled guilty to it because you

are guilty of it?

[Gedi]: Yes. I did it.

. . .

[Trial Counsel]: And you pled

. . . not guilty[ here]

because you are not guilty of this?

[Gedi]: This one, the truth, I’m not [the one that] did

it. But that one, I did it, and I take responsibility what

I done

. . . .

[Trial Counsel]: So you’re the kind of person that

would plead guilty if you were guilty.

[Gedi]: Yes.

[Trial Counsel]: But you’re not.

[Gedi]: This one, no. I’m not.

20111099

‐ CA 2013 UT App 133 4State v. Gedi

The jury found Gedi guilty of the charged offenses. Gedi now

appeals, arguing that his trial counsel rendered ineffective

assistance.

¶8 In order to prevail on a claim for ineffective assistance, the

defendant “‘must show that counsel’s performance was deficient’”

and that counsel’s “‘deficient performance prejudiced the

defense.’” State v. Tennyson

, 850 P.2d 461, 465 (Utah Ct. App. 1993)

(quoting Strickland v. Washington

, 466 U.S. 668, 687 (1984)). To

establish that counsel’s performance was deficient, the defendant

“‘must show that counsel’s representation fell below an objective

standard of reasonableness.’” Id. (quoting Strickland

, 466 U.S. at

688). And in order to do so, the defendant must “overcome the

strong presumption that counsel’s performance fell ‘within the

wide range of reasonable professional assistance’ and that ‘under

the circumstances, the challenged action might be considered

sound trial strategy.’” Id. (quoting Strickland

, 466 U.S. at 689). In

this regard, a reviewing court “need not come to a conclusion that

counsel, in fact, had a specific strategy in mind” but instead “need

only articulate some plausible strategic explanation for counsel’s

behavior.” Id. at 468. To establish that counsel’s performance was

prejudicial, defendant must show that “there is a reasonable

probability that ‘but for counsel’s unprofessional errors, the result

of the proceeding would have been different.’” Id. at 466 (quoting

Strickland

, 466 U.S. at 694). Failure to establish either prong is fatal

to a claim for ineffective assistance. See id.

¶9 Gedi claims that his trial counsel rendered ineffective

assistance by opening the door to otherwise inadmissible testimony

about the January 2010 incident that led to the issuance of the

domestic violence protective order and his related domestic

violence and criminal mischief convictions. 1 Gedi argues that

1 The State does not challenge Gedi’s assertion that the

evidence was inadmissible, and we therefore do not reach the

20111099

‐ CA 2013 UT App 133 5State v. Gedi

counsel’s performance was deficient because no reasonable trial

strategy justified its admission. Gedi also argues that he was

prejudiced by the admission of this evidence because the jury was

presented with a credibility contest between the testimony offered

by him and the testimonies offered by Girlfriend and her family.

According to Gedi, the evidence about this underlying act of

domestic violence destroyed his credibility and prevented the jury

from believing his testimony over Girlfriend’s.

¶10 We conclude that Gedi’s trial counsel’s performance was not

deficient. At trial, Gedi’s chosen defense placed him in a very

difficult position. There was no dispute that Girlfriend had been

granted a domestic violence protective order against him, and Gedi

took the position that he had not seen or spoken to her since it was

issued. His explanation for the charges brought against him was

that five months after the protective order was issued, Girlfriend,

for no apparent reason, had traveled to Logan, entered his house

while he was at work and took his cell phone and car, then drove

directly to his mother’s house in Salt Lake City where she left the

car. Gedi’s testimony was uncorroborated and contradicted

Girlfriend’s testimony that Gedi contacted her frequently after the

protective order was issued and that they ended up living together

for a time in Logan before the renewed relationship deteriorated

into further conflict. Gedi also contradicted Girlfriend’s testimony

that the ongoing conflict led her to take his car to escape him and

return to her family’s house in West Valley City after dropping off

Gedi’s car at his mother’s house. In an effort to take her back, Gedi

pursued her to her family’s house where he threatened her and her

family. Girlfriend’s testimony was corroborated by the testimony

of her sister and stepfather. Gedi’s explanation for the

contradictory testimony was that Girlfriend and her family were

lying and that they had concocted this story five months after he

had ceased all contact because he had not converted to Mormonism

1 (...continued)

issue.

20111099

‐ CA 2013 UT App 133 6State v. Gedi

as they had wished and because Girlfriend had told her family

during their relationship that he had abused her.

¶11 Gedi’s trial counsel faced the difficult task of portraying

Gedi’s implausible version of the events as more credible than the

State’s, and the only tool he apparently had to work with was

Gedi’s own credibility. While disclosure of a defendant’s prior

conviction is generally something defense counsel would seek to

avoid, under these circumstances, such a risk could be seen as part

of a plausible trial strategy, i.e., to attempt to make Gedi seem more

credible by using his guilty plea to the charges that underlie the

protective order to make the point that he had willingly taken

responsibility for his actions when he was guilty and therefore was

telling the truth now. 2 And the risk of revealing these prior

convictions was somewhat mitigated by the fact that the jury knew

that Girlfriend had a domestic violence protective order against

Gedi. So disclosing the underlying January 2010 incident that had

led to the issuance of the protective order may have prevented the

jury from speculating, to Gedi’s possible detriment, about the

nature of the incident that led to the issuance of the protective

2 Gedi’s argument suggests that his counsel inadvertently

let Gedi open the door to evidence about his prior convictions by

not controlling Gedi’s narrative answer to a question on direct

examination. In other words, the strategy we describe as plausi

‐

ble was not counsel’s deliberate choice but one he stumbled into

by inadvertently opening the door and then tried to make the

best of on redirect and in closing argument. Nevertheless, as we

have discussed above, it is not necessary that we “come to a

conclusion that counsel, in fact, had a specific strategy in mind,”

only that counsel’s actions lend themselves to some “plausible

strategic explanation.” See State v. Tennyson

, 850 P.2d 461, 465

(Utah Ct. App. 1993) (citing Strickland v. Washington

, 466 U.S.

668, 689 (1984)).

20111099

‐ CA 2013 UT App 133 7State v. Gedi

order in the first place. 3 In asserting the importance of the

credibility contest between his testimony and Girlfriend’s, Gedi

correctly points out that the jury may elect to believe the testimony

of one witness over the testimonies of several witnesses and that

family members may have a motivation to lie for each other. But

under the facts of this case such considerations cannot be seen as

so favorable to him that they would change the risk/benefit balance

to the point of significantly undercutting the plausibility of the

strategy we have described, especially when the jury knew that

Girlfriend had already obtained a domestic violence protective

order against Gedi. Finally, the facts elicited about Gedi’s prior

convictions were sparse and describe behavior less serious than

what Girlfriend had already offered in her testimony about the

circumstances underlying the charges tried. Thus, given the

“strong presumption” that counsel’s performance “‘might be

considered sound trial strategy’” and fall “‘within the wide range

of reasonable professional assistance,’” see Tennyson

, 850 P.2d at 465

(quoting Strickland

, 466 U.S. at 689), we conclude that Gedi’s trial

counsel’s performance was not deficient. For similar reasons, we

also conclude that Gedi was not prejudiced by his trial counsel’s

performance. See Strickland

, 466 U.S. at 691–92, 694.

¶12 We affirm.

3 Gedi argues that if his trial counsel wished to alleviate

the jury’s curiosity about the reason for the domestic violence

protective order, he could have simply elicited testimony that

Girlfriend had requested a protective order and Gedi had stipu

‐

lated to its issuance. However, had Gedi’s trial counsel elicited

such testimony, he would certainly have run the risk that it also

would have been enough to open the door for the State to cross

‐

examine Gedi about the underlying incident that had led to the

protective order’s issuance to counter the inference that he had

done nothing to warrant the order.

20111099

‐ CA 2013 UT App 133 8