2017 UT App 43

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

LEVI GENE KING,

Appellant.

Opinion

No. 20130223-CA

Filed March 9, 2017

Second District Court, Farmington Department

The Honorable Thomas L. Kay

No. 121701223

Scott L. Wiggins, Attorney for Appellant

Sean D. Reyes, Ryan D. Tenney, and William M. 

Hains, Attorneys for Appellee

JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in 

which JUDGES KATE A. TOOMEY and DAVID N. MORTENSEN

concurred.

CHRISTIANSEN, Judge:

¶1 Defendant Levi Gene King appeals from his convictions 

for theft as a second-degree felony, theft as a third-degree felony, 

and failure to stop at the command of a law enforcement officer 

as a class A misdemeanor. See Utah Code Ann. § 76-6-404 

(LexisNexis 2012); id. § 76-6-412(1); id. § 76-8-305.5. Primarily, he 

contends that his trial counsel was constitutionally ineffective for 

failing to introduce expert testimony regarding the reliability of

eyewitness identification. Because declining to introduce

potentially harmful testimony was sound trial strategy under the 

facts of this case, we affirm.
State v. King

20130223-CA 2 2017 UT App 43

BACKGROUND

¶2 ‚On appeal from a jury verdict, we view the evidence and 

all reasonable inferences in the light most favorable to that 

verdict and recite the facts accordingly.‛ State v. Dozah, 2016 UT 

App 13, ¶ 2, 368 P.3d 863. ‚We include conflicting evidence as 

relevant and necessary to understand the issues on appeal.‛ Id.

¶3 Victim parked his truck outside his wife’s salon one 

morning. He left the keys and his wife’s iPod on the truck’s 

center console while he unloaded supplies. Later that morning, 

Victim’s wife (Wife) drove to her salon. As she pulled into a side 

street behind the salon, she saw her husband’s truck being 

driven the other way. Wife slowed to a stop and rolled down her 

window. To her surprise, the other driver was not her husband.

She noted that the driver had a shaved head and was wearing a 

white tee shirt. She hurried to the salon and told her husband 

that somebody was driving off in his truck. Victim borrowed 

Wife’s SUV to go look for his truck while she called 911.

¶4 Descriptions of the stolen vehicle and the driver were 

relayed to police in the area. A police officer (Officer) spotted the 

truck at an intersection and ‚focused on the driver‛ to see if he 

matched the description. It was daytime and Officer could see

that the driver was a ‚white male, short, dark hair‛ and was 

wearing a ‚white shirt.‛ Officer turned to follow the truck, 

which accelerated above the speed limit and turned onto a 

curving side street. He lost sight of the truck for one to two 

minutes but then spotted it parked behind a building. The driver 

seen by Officer earlier was still inside but the driver’s door was 

partially open. No one else was nearby.

¶5 The driver spotted Officer, fled the vehicle, and hopped a 

nearby fence. Officer gave chase, radioing nearby police to let 

them know he had found the truck. While pursuing the driver, 

Officer saw that the driver was wearing a white tee shirt with a 

‚dark logo on the back of it‛ and jeans with a hole around the 

right knee.
State v. King

20130223-CA 3 2017 UT App 43

¶6 Several minutes later, a witness (Witness) was in his front 

yard preparing to take his daughter to school when a man 

approached and asked if he could get inside Witness’s car. 

Witness testified that the man was ‚wearing a white tee shirt 

with some sort of logo on the back‛ and ‚blue jeans.‛ After 

Witness refused to let the man into his car, the man went onto 

Witness’s porch and tried to enter the house. A police car then 

pulled up and the man tried to run away but was apprehended. 

The man apprehended was Defendant.

¶7 Shortly after Defendant’s capture, Officer arrived and 

identified Defendant as the person he had seen driving the 

stolen truck and given chase to. Victim and Wife then arrived; 

Victim identified the truck as his and Wife identified Defendant 

as the man she had seen driving it. A search of Defendant’s 

person revealed Wife’s iPod. Neither Officer nor Wife was 

presented with a lineup of suspects; rather, at the scene of his 

arrest, each was only shown Defendant—a procedure often 

referred to as a showup.

¶8 At trial, the State argued that Defendant stole the truck 

and the iPod and failed to heed a police officer’s orders to stop. 

Defendant presented alternative facts. Defendant testified that 

he had left his house that morning intending to apply for jobs at 

local businesses until the local library opened. He claimed that 

he had run into an acquaintance named Kyle,1 who was sitting in 

a black truck. According to Defendant, Kyle offered to sell 

Defendant an iPod for $30. Although he initially hesitated, 

Defendant decided to buy the iPod. He testified that he then 

began to smoke marijuana, that Kyle grew increasingly nervous, 

and that Kyle eventually jumped out of the truck, ran behind it, 

and disappeared over a fence. Defendant further testified that he 

saw a police car drive by and that, when the car turned around, 

 

1. Defendant either did not know or could not remember Kyle’s 

surname. Kyle was not apprehended and did not appear at trial.
State v. King

20130223-CA 4 2017 UT App 43

he took off running as well. Defendant admitted that he had not 

stopped when the police officer told him to.2

¶9 During jury selection and opening statements, a deputy

sat behind Defendant. Before testimony began, trial counsel 

objected to the presence of ‚an armed deputy in uniform sitting 

behind my client.‛ Trial counsel conceded that officers were 

generally present for security reasons but asserted that such 

officers were normally ‚dressed in plainclothes.‛ Trial counsel 

stated that ‚if he wants to sit in the back of the court, that’s fine, 

but I don’t think sitting behind my client is appropriate‛ and 

that Defendant was unlikely to be a threat because he had 

‚handcuffs on.‛ The judge asked the officer to ‚sit a little farther 

back‛ in the audience and trial counsel raised no further 

objection.

¶10 Before Defendant testified, and outside the jury’s 

presence, the court and counsel discussed the logistics of his 

testimony. Trial counsel suggested seating Defendant in the 

witness box and swearing him in before the jury returned to the 

room. The court agreed to ‚have him seated up here‛ and 

explained that ‚we’ll have him sworn before the jury comes in.‛ 

The court later decided ‚we’ll just have him sworn in just after 

the jury comes in, so why don’t we have the jury come in. So 

when I say, ‘You can be seated,’ just stand or just stay standing 

and then *the court deputy+ will swear you in.‛

¶11 The defense presented no other witnesses. In closing

argument, trial counsel argued that Wife and Officer were

mistaken in their identifications. She highlighted the height 

difference between Victim’s truck and Wife’s SUV and noted 

that both Wife and Officer had observed the driver of the truck 

while it was in motion. Trial counsel did not request an 

instruction regarding eyewitness-identification pitfalls.

 

2. Nevertheless, he challenges his conviction for failure to stop at 

the command of a law enforcement officer.
State v. King

20130223-CA 5 2017 UT App 43

¶12 The jury convicted Defendant on all three charges. As part 

of his appeal, Defendant sought a rule 23B remand for findings 

necessary to determine whether he received ineffective 

assistance from trial counsel. See Utah R. App. P. 23B. After this 

court granted that motion, the trial court conducted a hearing 

and entered findings. The parties have now addressed those 

findings in supplemental briefing to this court.

ISSUES AND STANDARDS OF REVIEW

¶13 Defendant first contends that trial counsel’s failure to call 

an expert witness to testify about the pitfalls of eyewitness 

identification deprived him of his constitutional right to the 

effective assistance of counsel. ‚In ruling on an ineffective 

assistance [of counsel] claim following a Rule 23B hearing, we 

defer to the trial court’s findings of fact, but review its legal 

conclusions for correctness.‛ State v. Patterson, 2013 UT App 11, 

¶ 7, 294 P.3d 662 (citation and internal quotation marks omitted).

¶14 Defendant next contends that the trial court deprived him 

of his right to a fair and impartial trial by ‚having *Defendant+ 

handcuffed during the jury trial with a uniformed officer sitting 

directly behind him.‛ Because this issue was not preserved for 

appeal, see infra ¶ 31, Defendant seeks review under the plainerror doctrine. ‚The plain error standard of review requires an 

appellant to show the existence of a harmful error that should 

have been obvious to the district court.‛ State v. Waterfield, 2014 

UT App 67, ¶ 18, 322 P.3d 1194.

¶15 Defendant also contends that the cumulative effect of 

these errors merits reversal pursuant to the cumulative-error 

doctrine. But the cumulative-error doctrine may only be 

considered when the appellate court has determined, or 

assumed without deciding, that two or more errors occurred. 

Only when this court has determined that multiple errors 

occurred below do we apply the standard of review applicable 

to each underlying claim of error and reverse if the cumulative 
State v. King

20130223-CA 6 2017 UT App 43

effect of the several errors undermines our confidence that a fair 

trial was had. See State v. McNeil, 2013 UT App 134, ¶ 16, 302 

P.3d 844, aff’d, 2016 UT 3, 365 P.3d 699.

ANALYSIS

I. Eyewitness Identification

A. Failure to Present Expert Witness Testimony

¶16 Defendant contends that trial counsel was constitutionally 

ineffective for failing to present an expert witness to testify about 

the unreliability of eyewitness identifications. ‚To succeed on a 

claim of ineffective assistance of counsel, a defendant must show 

that trial counsel’s performance was deficient and that the 

defendant was prejudiced thereby.‛ State v. Hards, 2015 UT App 

42, ¶ 18, 345 P.3d 769 (citing Strickland v. Washington, 466 U.S. 

668, 687 (1984)). ‚Because both deficient performance and 

resulting prejudice are requisite elements of an ineffective 

assistance of counsel claim, a failure to prove either element 

defeats the claim.‛ Id. (citing Strickland, 466 U.S. at 697). To 

demonstrate deficient performance, ‚the defendant must 

overcome the presumption that, under the circumstances, the 

challenged action might be considered sound trial strategy.‛

Strickland, 466 U.S. at 689 (citation and internal quotation marks 

omitted). ‚In order to ‘eliminate the distorting effects of 

hindsight,’ our examination of an attorney’s tactical decisions 

must ‘evaluate the conduct from counsel’s perspective at the 

time’‛ of the now-challenged decision. Burke v. State, 2015 UT 

App 1, ¶ 21, 342 P.3d 299 (quoting Strickland, 466 U.S. at 689).

¶17 Here, trial counsel testified at the rule 23B remand 

hearing. The trial court then found that trial counsel had 

‚consciously decided to not consult with an eyewitness 

identification expert before trial or call such an expert at trial.‛

The question before us is therefore whether trial counsel’s 

conscious decision not to consult or call an eyewitness-
State v. King

20130223-CA 7 2017 UT App 43

identification expert amounted to deficient performance, i.e., 

whether that decision could not have been considered ‚sound 

trial strategy‛ at the time it was made. See Strickland, 466 U.S. at 

689; see also, e.g., State v. Lee, 2014 UT App 4, ¶ 13, 318 P.3d 1164

(discussing deficient performance in the context of failure to call 

a particular witness). This question requires us to consider the

then-apparent advantages and disadvantages of introducing an 

eyewitness-identification expert’s testimony as well as the 

advantages and disadvantages of not doing so.

¶18 The United States Supreme Court and the Utah Supreme 

Court have recognized that ‚‘the vagaries of eyewitness 

identification are well-known; the annals of criminal law are rife 

with instances of mistaken identification.’‛ State v. Long, 721 P.2d 

483, 491 (Utah 1986) (brackets omitted) (quoting United States v. 

Wade, 388 U.S. 218, 228 (1967)). ‚Decades of study, both before 

and particularly after Long, have established that eyewitnesses 

are prone to identifying the wrong person as the perpetrator of a 

crime, particularly when certain factors are present.‛ State v. 

Clopten, 2009 UT 84, ¶ 15, 223 P.3d 1103. ‚*T+here is little doubt 

that juries are generally unaware of [the] deficiencies in human 

perception and memory and thus give great weight to 

eyewitness identifications. Indeed, juries seemed to be swayed 

the most by the confidence of an eyewitness, even though such 

confidence correlates only weakly with accuracy.‛ Id. (citation 

omitted).

¶19 The Utah Supreme Court has noted that expert testimony 

about the deficiencies of eyewitness identification can be helpful 

to juries and should therefore routinely be admitted. Id. ¶¶ 16, 

49. However, such expert testimony does not always benefit the 

defendant. When the factors that impact the reliability of 

eyewitness testimony—‚such as the amount of time the culprit 

was in view, lighting conditions, use of a disguise, 

distinctiveness of the culprit’s appearance, and the presence of a 

weapon or other distractions‛—weigh in favor of a reliable 

identification, ‚expert testimony actually makes jurors more 

likely to convict.‛ See id. ¶¶ 15, 20. As a result, when an 
State v. King

20130223-CA 8 2017 UT App 43

eyewitness-identification expert’s testimony is likely to reinforce 

the credibility of identifications made by eyewitnesses, declining 

to bring the expert to the witness stand may be sound trial 

strategy. Consequently, trial counsel’s failure to call such an

expert as a witness does not necessarily translate into a finding 

of deficient performance.

¶20 In Clopten, the Utah Supreme Court identified a 

nonexhaustive list of factors that may affect the reliability of an 

eyewitness identification and divided that list into three 

categories: those relating to the eyewitness, those relating to the 

event witnessed, and those relating to the identification itself. See 

id. ¶ 32 n.22. The first category includes ‚factors such as 

uncorrected visual defects, fatigue, injury, intoxication, presence 

of a bias, an exceptional mental condition . . . , age . . . , and the 

race of the eyewitness relative to the race of the suspect.‛ Id. The 

second category includes ‚the effects of stress or fright, limited 

visibility, distance, distractions, the presence of a weapon . . . , 

disguises, the distinctiveness of the suspect’s appearance, the 

amount of attention given to the event by the eyewitness, and 

whether the eyewitness was aware at the time that a crime was 

occurring.‛ Id. And the third category includes ‚such factors as 

the length of time between observation and identification, any 

instances in which the eyewitness failed to identify the suspect 

or gave an inconsistent description, the value of lineups 

compared to showups, the value of photo identifications 

compared to in-person identifications, and any exposure of the 

eyewitness to influences such as news reports or interaction with 

other witnesses.‛ Id. The third category also includes 

‚potentially suggestive police conduct, such as the instructions 

given to the eyewitness by police, the composition of the lineup, 

the way in which the lineup was carried out, and the behaviors 

of the person conducting the lineup.‛ Id. Not every Clopten factor 

is present in every case nor are the factors always of equal 

weight; consequently, determining the value of eyewitnessidentification expert testimony is more complex than simply 

tallying the number of factors suggesting reliability and the 

number of factors suggesting unreliability.
State v. King

20130223-CA 9 2017 UT App 43

¶21 Wife and Officer were the two eyewitnesses, and both 

testified at the rule 23B hearing on remand. Defendant’s 

proposed eyewitness-identification expert, Dr. Dodd, then 

explained how he would have interpreted their testimony at trial 

with respect to the Clopten factors. The trial court entered 

findings regarding what Wife and Officer would have testified 

to at trial had they been questioned about Clopten factors and 

regarding Dr. Dodd’s interpretation. We must defer to these 

factual findings. See State v. Patterson, 2013 UT App 11, ¶ 7, 294 

P.3d 662.

¶22 According to the trial court’s factual findings, Dr. Dodd 

would have testified that some factors suggested that the 

eyewitness identifications were unreliable: (1) neither Wife nor 

Officer viewed the suspect for a lengthy period of time, (2) the 

showups focused exclusively on Defendant (as opposed to 

multi-suspect lineups), (3) the eyewitnesses did not provide 

‚statement[s] of certainty‛ at the time of the identifications, and 

(4) when she spotted Victim’s car, Wife had a poor angle from 

which to view the suspect. The court further found that, on 

cross-examination, Dr. Dodd would have testified that other 

factors suggested that the identifications were reliable: (1) both 

eyewitnesses observed the suspect in daylight; (2) both 

eyewitnesses were of the same race as the suspect; (3) neither 

eyewitness was impaired by fatigue; (4) neither eyewitness was 

impaired by drug use; (5) neither eyewitness was impaired by

alcohol; (6) neither eyewitness suffered from uncorrected visual 

defects; (7) neither eyewitness suffered from an exceptional 

mental condition; (8) neither eyewitness was distracted by a 

weapon; (9) neither eyewitness’s observation was impaired by a 

disguise; (10) neither eyewitness was under any marked degree 

of stress; and (11) both eyewitnesses had particular reasons to 

pay attention to the suspect—Wife was trying to see who was 

driving her husband’s truck and Officer was trying to locate and 

stop the stolen truck. Based on these factual findings, the trial 

court came to the legal conclusion that trial counsel ‚made an 

informed, reasonable strategic decision that an eyewitness 

identification expert would not be helpful to the defense but 
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20130223-CA 10 2017 UT App 43

would instead likely end up hurting it.‛ In so concluding, the 

trial court appears to have credited trial counsel’s testimony that 

she had consciously decided not to call an eyewitness 

identification expert to the stand because she ‚was concerned 

that it would actually provide more credibility to the State’s 

witnesses‛ and because an expert’s testimony on all of the 

Clopten factors could be ‚used against [Defendant] to show there 

actually wasn’t a problem with the identification.‛

¶23 Defendant contends that this conclusion was erroneous as 

a matter of law. But his argument in this regard merely 

highlights that some of the expert’s testimony would have 

undermined the reliability of the identifications made by Wife 

and Officer. Defendant does not mention that other portions of 

the expert’s testimony may have reinforced the credibility of the 

eyewitnesses by suggesting that their identifications were in fact 

reliable. Nor does Defendant explain why, or even claim that, 

the helpful aspects of the expert’s testimony would have 

outweighed its harmful aspects. See State v. Heywood, 2015 UT 

App 191, ¶ 29, 357 P.3d 565 (evaluating the reasonableness of a

trial counsel’s decision not to call an eyewitness identification 

expert by weighing the factors suggesting eyewitness reliability 

against the factors suggesting unreliability). Accordingly, 

Defendant has failed to show error in the trial court’s conclusion 

that trial counsel performed reasonably in deciding that the 

harms brought about by presenting expert testimony 

outweighed the benefits of such testimony in this case.3

 

3. In Defendant’s pre-remand brief, he states that ‚*t+he fact that 

each party may be able to benefit from the expert witness does 

not diminish the court’s holding and requirement ‘that, in cases 

where eyewitnesses are identifying a stranger and where one or 

more established factors affecting accuracy are present, the 

testimony of an eyewitness expert will meet rule 702’s 

requirement to ‚assist the trier of fact.‛’‛ (Quoting State v. 

Clopten, 2009 UT 84, ¶ 32, 223 P.3d 1103.) But rule 702 of the Utah 

(continued...)
State v. King

20130223-CA 11 2017 UT App 43

¶24 Moreover, we can see no such error. The Utah Supreme 

Court has explicitly recognized that unfavorable eyewitnessidentification expert testimony ‚makes jurors more likely to 

convict.‛ See State v. Clopten, 2009 UT 84, ¶ 20, 223 P.3d 1103. We 

therefore agree with the trial court that trial counsel’s election to 

forgo expert testimony was sound trial strategy when trial 

counsel reasonably determined that the testimony was likely to 

be more harmful than helpful to the defense.

B. Failure to Consult an Expert

¶25 Defendant also contends that trial counsel’s performance 

was deficient because ‚trial counsel failed to fulfill her duty to 

conduct an adequate investigation of the facts and evidence in 

this case.‛ But Defendant does not explain why he believes trial 

counsel’s investigation was inadequate. In fact, while he does 

cite supporting case law, Defendant does not tie that case law to 

any of the facts of his case. ‚An appellate court is not a 

depository in which a party may dump the burden of argument 

and research.‛ Allen v. Friel, 2008 UT 56, ¶ 9, 194 P.3d 903

(brackets, citation, and internal quotation marks omitted).

Accordingly, this conclusory contention is inadequately briefed, 

see Utah R. App. P. 24(a)(9), and we reject it.

¶26 In any event, to the extent Defendant is arguing that trial 

counsel should have consulted an eyewitness-identification 

expert before determining whether the expert’s testimony would

have been more harmful than helpful, that argument fails on its 

 

(...continued)

Rules of Evidence governs only the admissibility of expert 

testimony, and Clopten did not transform admissible expert 

testimony into required expert testimony. The issue of whether 

Dr. Dodd’s testimony would have been legally admissible sheds 

no light on whether the admission of that (seemingly harmful) 

testimony was desirable, or whether trial counsel was required 

to seek its admission.
State v. King

20130223-CA 12 2017 UT App 43

merits. ‚The Sixth Amendment to the United States Constitution 

does not require counsel to fully investigate every potential 

lead.‛ Burke v. State, 2015 UT App 1, ¶ 20, 342 P.3d 299 

(emphasis in original) (brackets, ellipsis, citation, and internal 

quotation marks omitted). Rather, ‚counsel has a duty to make 

reasonable investigations or to make a reasonable decision that 

makes particular investigations unnecessary.‛ Strickland v. 

Washington, 466 U.S. 668, 691 (1984). ‚*S+trategic choices made 

after less than complete investigation are reasonable precisely to 

the extent that reasonable professional judgments support the 

limitations on investigation.‛ Id. at 690–91; see also State v. 

Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (‚If counsel has reason to 

believe that pursuing certain evidence would be fruitless or even 

harmful, a tactical decision not to investigate may indeed be 

reasonable.‛ (Citation and internal quotation marks omitted)).

¶27 On rule 23B remand, the trial court found that trial 

counsel was experienced, having practiced law for over twenty 

years; that trial counsel was ‚generally familiar‛ with ‚the issues 

surrounding eyewitness identifications‛; and that trial counsel 

had ‚consulted with eyewitness identification experts in several 

of her past cases.‛ The trial court noted that counsel had 

questioned such experts in some cases but, in others, had 

‚consciously chosen not to call eyewitness experts to testify at 

trial because, under the circumstances, she believed the expert’s 

testimony would not have been helpful to the defense.‛

¶28 Here, trial counsel compared her knowledge of the 

Clopten factors to the facts of Defendant’s case and determined

that calling an eyewitness-identification expert to the stand

would be detrimental to the defense. Trial counsel recounted, 

‚In fact, my concern was that if I brought an expert in, it actually 

could have been turned against us and created more of a 

problem for the defense.‛ Specifically, trial counsel explained

that the fact that the eyewitnesses were of the same race as 

Defendant, that they saw him in daytime, that there was no 

weapon involved, and that nothing obscured Defendant’s face,

led counsel to conclude that an eyewitness-identification expert’s 
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20130223-CA 13 2017 UT App 43

testimony ‚would actually provide more credibility to the State’s 

witnesses than it would be helpful in the defense.‛ In light of

trial counsel’s familiarity with eyewitness-identification issues 

and her previous consultations, we do not think trial counsel 

was required to consult an expert to make a reasonable 

determination regarding trial strategy.

4

¶29 We conclude that the trial court was correct in ruling that 

trial counsel did not perform deficiently when she declined to 

introduce what appeared to be testimony harmful to Defendant.

 

4. At oral argument before this court, Defendant also suggested 

that trial counsel was ineffective for failing to consult an 

eyewitness-identification expert with regard to the 

suggestiveness of the showup—i.e., ‚whether the witness’s 

identification was the product of suggestion‛ as a result of the 

use of a single-suspect showup rather than a multi-suspect 

lineup. See State v. Ramirez, 817 P.2d 774, 784 (Utah 1991) (ellipsis 

omitted) (expressing concern with the ‚blatant suggestiveness of 

the showup‛ procedure). But the trial court found that trial 

counsel was familiar with the Clopten factors, and the 

suggestiveness of a poorly conducted showup is one of the 

Clopten factors. We cannot say it was outside the ‚wide range of 

reasonable professional assistance‛ for an attorney, familiar with 

those factors and confronted with these circumstances, to decide 

that it was unnecessary to consult an expert before determining 

that the benefits of expert testimony regarding the 

suggestiveness of the showup would be outweighed by the 

expert’s accompanying cross-examination testimony that the 

other Clopten factors supported the eyewitnesses’ identifications. 

See Strickland v. Washington, 466 U.S. 668, 689 (1984) (explaining 

that, for ineffective assistance of counsel purposes, deficient 

performance exists only when counsel’s conduct falls outside the 

‚wide range of reasonable professional assistance‛).
State v. King

20130223-CA 14 2017 UT App 43

II. Courtroom Logistics

¶30 Defendant contends that the trial court ‚erred in having 

Defendant appear at trial before a jury wearing handcuffs with a 

uniformed and armed officer sitting directly behind him.‛

A. Presence of a Uniformed Officer

¶31 A uniformed officer sat directly behind Defendant during 

jury selection and opening statements. Trial counsel objected to 

that arrangement before the jury re-entered the room for the 

evidence phase of trial. The trial court asked the officer to sit 

further back in the gallery, and trial counsel acquiesced to this 

solution. Thus, the record does not support Defendant’s 

assertion that the jury saw ‚a uniformed and armed officer 

sitting directly behind [Defendant]‛ during the trial. By agreeing 

to the court’s proposed solution, trial counsel waived appellate 

review. See State v. Binkerd, 2013 UT App 216, ¶ 21, 310 P.3d 755; 

see also State v. McNeil, 2013 UT App 134, ¶ 23, 302 P.3d 844 (‚A 

claim is not preserved for appeal if a party initially objects but

later, while ‘the wheel’s still in spin,’ abandons the objection and 

stipulates to the court’s intended action.‛ (Quoting Bob Dylan, 

The Times They Are A–Changin’ (Columbia Records, 1964))), 

aff’d, 2016 UT 3, 365 P.3d 699.

¶32 To the extent that the jury saw the officer during jury 

selection and opening statements, counsel did not raise an 

objection or move for a mistrial. Because Defendant’s challenge 

is thus unpreserved, he seeks plain-error review. See State v. 

Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (‚As a general rule, claims 

not raised before the trial court may not be raised on appeal.‛).

‚The plain error standard of review requires an appellant to 

show the existence of a harmful error that should have been 

obvious to the district court.‛ State v. Waterfield, 2014 UT App 67, 

¶ 18, 322 P.3d 1194.

¶33 Defendant argues that this alleged error was obvious 

‚because Defendant’s right to a fair and impartial trial and the 
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20130223-CA 15 2017 UT App 43

court’s duty to affirmatively afford him this right under the 

aforementioned circumstances were well settled at the time of 

trial.‛ However, the mere presence of one or more additional 

uniformed officers at a trial is not an error that should have been 

obvious to the trial court. There may be compelling security 

concerns necessitating extra safety measures, and a judge has no 

affirmative duty to determine the appropriate number of officers 

for each trial and limit the number present accordingly. Cf. 

Holbrook v. Flynn, 475 U.S. 560, 570–71 (1986) (concluding that, 

during a trial of six codefendants, the presence of ‚four 

uniformed state troopers‛ ‚quietly sitting in the first row,‛ in 

addition to two deputy sheriffs and ‚six Committing Squad 

officers,‛ did not create an unacceptable risk of prejudice, 

because ‚*f+our troopers are unlikely to have been taken as a 

sign of anything other than a normal official concern for the 

safety and order of the proceedings.‛); id. at 571 (‚Even had the 

jurors been aware that the deployment of troopers was not 

common practice in Rhode Island, we cannot believe that the use 

of the four troopers tended to brand respondent in their eyes

with an unmistakable mark of guilt.‛ (citation and internal 

quotation marks omitted)). We conclude that Defendant cannot

establish plain error, because allowing a uniformed officer, in 

addition to the assigned courtroom security officer, to sit behind 

Defendant during jury selection and opening statements was not 

an error that should have been obvious to the trial court.

B. Restraints

¶34 Absent compelling security reasons, ‚*t+he rule that a 

defendant be tried in the ‘garb of innocence’ has generally been 

extended to include a defendant’s right to be tried without being 

shackled, chained, bound, handcuffed, gagged, or otherwise 

physically restrained.‛ State v. Mitchell, 824 P.2d 469, 473 (Utah 

Ct. App. 1991). But see State v. Yocum, 2006 UT App 334U, para. 4 

(‚If necessary to secure the courtroom, a trial court may even 

require a defendant to be shackled.‛).
State v. King

20130223-CA 16 2017 UT App 43

¶35 Trial counsel noted before trial, ‚My client’s got handcuffs 

on,‛ but did not object to that situation. Only after the State 

rested its case and Defendant elected to testify in his defense did 

trial counsel raise an objection. Specifically, both the trial court 

and trial counsel were concerned that Defendant ‚walk*ing+ up 

there‛ to the witness box would be problematic. The solution 

they hit upon was ‚to have him seated [in the witness box] and 

sworn in before the jury comes in.‛5 Trial counsel also 

considered whether Defendant’s restraints would be visible if 

everyone stood for the jury to exit. She noted, ‚I was just looking 

to see how he stands up, so when the jury goes to leave and he 

stands up, is that going to be noticeable, and I don’t see that it is. 

So I think we’re okay.‛

¶36 The State argues that the concern expressed by the trial 

court and trial counsel regarding Defendant moving about the 

courtroom and their lack of concern regarding Defendant sitting 

at the counsel table or at the stand indicate that ‚despite *trial 

counsel’s+ offhand reference to ‘handcuffs’ before [the] trial 

began, what actually occurred at trial was some form of leg 

restraint that would only be visible to the jury if it saw him 

walking.‛ We agree. Trial counsel’s concern with courtroom 

logistics shows that she was not only alert to the prejudice 

associated with restraints but also that she actively raised 

objections and took steps to prevent that prejudice from 

accruing. It does not seem plausible that trial counsel would 

express concern with the visibility of Defendant’s restraints if he 

walked across the courtroom while ignoring the visibility of 

handcuffs throughout trial while Defendant was at the counsel 

table or being sworn in. And the record is devoid of any 

indication that any kind of restraint was visible to the jury after 

the precautions taken by the court and counsel.

 

5. The record reflects that Defendant was in the witness box 

when the jury entered the courtroom and sworn in after the jury 

was seated.
State v. King

20130223-CA 17 2017 UT App 43

¶37 We conclude that the record does not support 

Defendant’s assertion that the jury saw a uniformed officer 

sitting behind him during trial, and we also conclude that there 

was no plain error in allowing a uniformed officer to sit behind 

Defendant during jury selection and opening arguments. We 

further conclude that there is no record support for Defendant’s 

assertion that his restraints were visible to the jury. We therefore 

do not further address his contention based on the possibility 

that he suffered resulting prejudice.

6

III. Cumulative Error

¶38 Defendant contends that the cumulative-error doctrine, 

also known as the cumulative-prejudice doctrine, mandates 

vacatur of his convictions. ‚Under the doctrine of cumulative 

prejudice, we will reverse ‘if the cumulative effect of the several 

errors undermines our confidence that a fair trial was had.’‛ See 

State v. Campos, 2013 UT App 213, ¶ 61, 309 P.3d 1160 (ellipsis

omitted) (quoting State v. Dunn, 850 P.2d 1201, 1229 (Utah 1993)). 

‚‘In assessing a claim of cumulative error, we consider all the 

identified errors, as well as any errors we assume may have 

occurred.’‛ State v. Cheek, 2015 UT App 243, ¶ 75, 361 P.3d 679

(quoting Dunn, 850 P.2d at 1229). Because we have identified no

errors amongst Defendant’s claims, it follows that there can be

no prejudice resulting from multiple errors for us to consider 

cumulatively.

CONCLUSION

¶39 Trial counsel did not perform deficiently by relying on 

her extensive understanding of eyewitness-identification issues 

 

6. Defendant does not argue that trial counsel was ineffective for 

acquiescing to the trial court’s proposed solutions to her 

objections or for failing to raise further objections in response to 

those solutions.
State v. King

20130223-CA 18 2017 UT App 43

to evaluate the potential harms and potential benefits of 

introducing expert testimony on that subject. Nor did trial 

counsel perform deficiently by declining to inject testimony into 

Defendant’s trial that she reasonably believed would be more 

harmful than helpful to his defense. Defendant did not preserve 

his challenge to the presence of a uniformed officer sitting in the 

audience gallery at trial, and no exception to the preservation 

rule applies. Defendant’s factual claims regarding restraints and 

the potentially prejudicial placement of the uniformed officer in 

the gallery during the presentation of the evidence are 

unsupported by the record. And, in the absence of error, the 

cumulative-error doctrine has no application.

¶40 Affirmed.