2020 UT App 25



### T HE 

### U TAH 

### C OURT O F 

### A PPEALS

S TATE OF U TAH , Appellee
, v. J EREMIAH R AY H ART , Appellant

.

Opinion N o. 20180095

- CA Filed February 21, 2020

Third District Court, Salt Lake Department The Honorable Keith A. Kelly No. 151905395

Herschel Bullen
, Attorney for Appellant Sean D. Reyes and William M. Hains
, Attorney s for Appellee

J UDGE D AVID N. M ORTENSEN authored th is Opinion
, in which J UDGES K ATE A PPLEBY and J ILL M. P OHLMAN concurred

.

MORTENSEN
, Judge :

¶1 Jeremiah Ray Hart and Erick Burwell concocted a plot to pose as drug buyers and
, instead of closing the transaction, to rob the drug dealers of their inventory. But when they put their plan into action, things went quickly and fatally awry, ending in an exchange of gunshots, the death of one of the sellers (Victim)
, and the conviction of Hart for several crimes, including aggravated murder

. Hart now ap peals his convictions with four claims of ineffective as sist ance of counsel. We affirm.State v. Hart

20180095

- CA 2 2020 UT App 25 BACKGROUND 1

The Attempted Robber y and Murder

¶2 Hart and Burwell 2 came up with a plan to pose as drug buyers and then to steal drugs from unsuspecting sellers. T hrough various i ntermediar ies

— w ho thought they were facilitating a sta ndard drug deal

— Burwell found Victim and Victim’ s brother (Brother)

. Victim and Brother agreed to sell five pounds of marijuana to Burwell and Hart

.
¶3 Hart prepared for the heist. He borrowed a 9 mm Glock hand gun from his cousin (Cousin), who loaded the thirty

- one

round extended magazine with a variety of hollow

- point and round

- nose ammunition from different manufacturers

.
¶4 Hart and Burwell put their plan into action

. Hart showed the Glock to Burwell and later went to a restaurant to wait for Burwell to pi ck him up. Burwell first picked up Victim and Brother
, with Victim sitting in the front passenger seat and Brother in the seat behind Burwell . They then picked up Hart

— the supposed buyer

— who s at behind Victim with the Glock concealed

. Burwell drove a short distance and turned onto a residential side street to park. A s Burwell stopped , Hart pulled
out the Glock , pointed it at Brother, and announced, “ It’s a robbery. It’s a jack . . . everybody out of the car.” Brother froze
, later testifying, “I just put my hands up and just [sat] still.”

1

. “When reviewing a jury verdict, we examine the evidence and all reasonable inferences drawn therefrom in a light most favorable to the verdict, and we recite the facts accordingly. We present conflicting evidence only when necessary to understand issues ra ised on appeal.” State v. Tulley , 2018 UT 35, ¶ 4 n.1, 428 P.3d 1005 (cleaned up).

2 . Burwell admitted to his role in the events of this case and pled guilty to manslaughter and robbery

.State v. Hart

20180095

- CA 3 2020 UT App 25 V ictim , however, pulled out a gun of his own, and an exchange of shots ensued

.
¶5 Hart and Victim were each hit by a bullet and piled out of the car. Burwell drove off , but unbeknownst to him
, Brother was still i n the car

. Burwell feigned surprise and ignorance of the robbery plan and took Brother to Brother’s apartment , as requested

. Meanwhile, Victim collapsed in the gutter of the
street , slowly succumbing to his bullet wound . The bullet had pierced his chest, fatal ly damag ing vital organs
, and exit ed near his spine. Hart fled the scene, leaving behind the extended magazine with the assorted ammunition, a 9 mm casing, and a trail of his own blood leading west for about two blocks. He then called Cousin, who picke d him up. Later that night
, Cousin took Hart to the hospital to have his gunshot wound treated.

The Investigation

¶6 Law enforcement officers arrived at the scene to investigate . They found the evidence Hart left behind

. The officers also found a Taurus .45 c aliber handgun used by Victim and an expended .45 caliber bullet with Hart’s DNA on it. Officers interviewed Cousin on three occasions, and Cousin’s
account of the events changed every time

. In his initial interview, Cousin said that he shot Victim but lat er admitt ed that he didn’t sh o ot Victim , explaining that he said he did only because he agreed to take the blame for Hart. Cousin also said Hart told him that Hart shot someone. In his second interview, Cousin retracted his claim about Hart saying he sho t someone

. Then, in his third interview, Cousin admitted that indeed Hart said he shot someone.

¶7 About a month later , o fficers arrested Hart

. At that time
, Hart was in possession of a 9 mm handgun , which was not a Glock. A forensic firearms examiner (Gun Exper t) later test

- fired the handgun to determine whether the impression made on the casing would match that of the impression on the casing found at the murder scene. It was not a match. Ultimately , t h e State charged Hart with aggravated murder, obstruction of justice,State v. Hart

20180095

- CA 4 2020 UT App 25 and possession of a dangerous weapon by a restricted pers on. A preliminary hearing was held. At the hearing, the detective managing the case (Case Manager) testified about Hart’s blood

stain patterns

— showing that Hart stood above Victim and moved west away from the scene

— and about other aspects of the investigation

.

The Rule 404(b) Issue

¶8 Before trial, the State provided notice that it intended to offer other acts evidence under rule 404(b) of the Utah Rules of Evidence . The evidence purported to show that Hart and Burwell planned and attempted to carry out another robbery fifty

- four days before the one in which Victim was killed. In the first attempted robbery
, the targeted victims fought back

. Hart and Burwell fled the scene , and Hart left behind a beanie with his DNA on it

. The district court ruled that the evidence was admissible. This court granted an interlocutory appeal on the issue fourteen days before trial. Hart moved to stay the proceedings at the district cour t pending the outcome of the appeal . B ut the State agreed not to offer the 404(b) evidence , so the trial could move forward . The appeal was therefore dismissed.

The Trial

¶9 During a six

- day jur y trial, the State presented extensive evidence , including a litany of exhibits and n umerous witnesses

. Hart’s defense centered on challenging the adequacy of the State’s investigation and undermining the credibility of the State’s key witnesses against him, including Cousin and Case Manager. R elevant to this appeal , the following events transpired at trial.

Gun Expert’s Testimony

¶10 The State called Gun Expert to testify

. Gun Expert testified that he test

- fired and “examined [the Taurus] and another firearm that was submitted as well
, ” concluding that theState v. Hart

20180095

- CA 5 2020 UT App 25 impression le ft on the 9mm casing was from a Glock handgun, not from the Taurus or the other submitted gun. Hart’s trial counsel then requested a bench conference wherein c ounsel poi nted out that the other gun was taken from Hart when Hart was arrested

. Because that gun had

no connection to the shooting of Victim , c ounsel objected to any reference tying the gun to Hart. The district court and the prosecutor agreed that any such reference would be problematic, but the court noted that the jury had not heard any e vidence that “ a gun [ was ] received from [ Hart ]

. ” To resolve counsel’s concern, the court proposed having the prosecutor lead Gun Expert to testify that the other gun was used for comparison purposes only and that it had no connection to this case. Counsel agree d with this approach, and the prosecutor pr oceeded :

Q. [W] hen we talk about two guns, one of those guns was a comparison gun just available to you in the lab; is that correct?

A. That’s correct.

Q. It is not affiliated with this case?

A. That’s correct.

Cousin’s Testimony

¶11 The S tate also called Cousin to testify

. Cousin testified that he loaded the different types of ammunition into the extended magazine , loan ed the Glock to Hart, pick ed up Hart after the attempted robbery, notic ed that the extended magazine was missing from the Glock Hart brough t to the car, and heard Hart say he shot someone.

¶12 During cross

- examination, Hart’s counsel asked about each of Cousin’s three interviews with the officers. Cousin tried to justify his shifting accounts by explaining that at first heState v. Hart

20180095

- CA 6 2020 UT App 25 tried to take the blam e for Hart , but later decided not to , saying, “I was still trying to protect him

. . . . [A] t that time they had

me in a cell with a person who was taking care of me

. ” Later,

as counsel was trying to highlight Cousin’s inconsisten cies , Cousin volunteered explicit information about Hart’s criminal history , including a reference to parole and to being incarcerated

.
¶13 Then, Hart’s counsel elicited testimony from Cousin that he and Hart shared a jail cell for about a year . Counsel further questioned Cousin about whether he ever read through Hart’s legal paperwork associated with this case that was in their cell. Cousin denied looking through Hart’s legal papers . He also denied talking to Hart about this case . B ut he conceded that he had ample opportunity to do bo th. And he specifically admitted that he had unimpeded access to Hart’s legal papers while Hart was working out, taking a shower, visiting the doctor, or attending court. Cousin also admitted on cross

- examination that for his willingness to testify he rece ived a “pretty glowing letter” from the State for his upcoming parole review.

¶14 Outside the presence of the jury, counsel went on record stating that his focus on Hart’s incarceration was a strategic choice: “[T]his was not some kind of mistake or issue like that, it was a strategic decision the defense has made in consultation with [Hart].” In closing argument, counsel emphasized Cousin’s opportunity to talk with Hart about his case and read through his paperwork . Counsel argued that Cousin likely crafted hi s testimony to coincide with the State’s case to improve his chances of parole.

Case Manager’s Testimony

¶15 The State also called Case Manager to testify, who offered his opinion on the blood at the scene, among other things. He testified that the pattern of blood indicated that Hart initially moved from the east side of Victim, momentarily stood

over Victim , and finally fled the scene to the west. On cross

examination, Hart’s counsel garnered several concessions

.State v. Hart

20180095

- CA 7 2020 UT App 25 Case Manager c onceded that
, even though all the stains weren’t tested, there was abundant time to test all of them ; that it was a “pretty big assumption” that the e astern

- most stain was Hart’s blood ; and that testing the stain would have foreclosed speculation completel y . A defense expert added his testimony that the eastern

- most stain would have been the most important one to test. In closing, Hart’s counsel argued that the State’s investigation was inadequate. Counsel pieced together the blood

- stain evidence by discuss ing the extended magazine, which was fa rther east than any of the blood stains, arguing , “[T]he reason that they want . . . Hart further this way is because they can’t explain how that magazine ends . . . up 15 feet the other way . . . [or] at least 10.”

T

he Jury ’s Question

¶16 A DNA analyst testified that Hart’s DNA was on the left sleeve of a jacket

. B ut the analyst did not identify the jacket as Hart’s due to her inability to lay foundation for whose jacket she tested. The parties therefore stipulated that the jacket was Hart’s, and the stipulation was read into the record. Case Manager later identified the jacket as Hart’s and confirmed that it was collected from the hospital Hart visited to treat his gunshot wound. He further explained that Hart’s DNA was found on one sleeve of the jacket. Brother also testified that Hart was wearing the jacket the night of the murder.

¶17 After both sides fully presented their case s , the district court directed the jury to deliberate. D uring its deliberation, the jury sought clarification on the testimony from the analyst regarding the jacket , asking to who m the jacket belonged and whose DNA was on it . The district court responded
, “This issue was the subject of a stipulation read into the record by counsel. Please rely on your collective memory of the evidence presented.” The jury ultimately found Hart guilty of aggravated murder, obstructing justice, and possession of a dangerous weapon by a restricted person. Hart appeals.State v. Hart

20180095

- CA 8 2020 UT App 25 ISSUE AND STANDARD O F REVIEW

¶18 Hart raises four claims of ineffective assistance of counsel

. 3 Thus, the sole issue for us to decide is whether Hart’s counsel rendered constitutionally ineffective assistance , as a matter of law

. State v. Ott , 2010 UT 1, ¶ 16, 247 P.3d 344 ( “An ineffective assistance of counsel claim raised for the first time on ap peal presents a question of law. ” (cleaned up) )

.

ANALYSIS

¶19 To prevail on an ineffective assistance of counsel claim, a defendant must establish both that counsel’s performance was objectively deficient and that t he deficient performance prejudiced the defense. Strickland v. Washington , 466 U.S. 668, 687

– 88 (1984); State v. Wilder , 2018 UT 17, ¶ 17, 420 P.3d 1064 . “A failure to prove either element defeats the claim.” State v. Ricks
, 2018 UT App 183, ¶ 11, 436 P.3d 350 (cleaned up). Here, w e address only the deficient performance element of each of Hart’s four claims.

¶20 To prove deficient performance, a “ defendant must overcome the strong presumption that his trial counsel rendered

3

. Hart also contends that the cumulative effect of the claimed

errors requires us to reverse . Under the cumulative error doctrine, “we will reverse a jury verdict or sentence only if the cumulative effect of the several errors undermines our confidence that a fair trial was had.” State v. Martinez

- Castellanos
, 2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). Because we conclude that Hart’s trial counsel did not perform de ficiently in any of the ways Hart claims, there is no cumulative error here. See State v. Maestas , 2012 UT 46, ¶ 363, 299 P.3d 892 (“If the claims are fo und on appeal to not constitute error, or the errors are found to be so minor as to result in no harm, the doctrine will not be applied.” (cleaned up)).State v. Hart

20180095

- CA 9 2020 UT App 25 adequate assistance .” State v. Clark , 2004 UT 25, ¶ 6, 89 P.3d 162 (cleaned up); s ee also Strickland , 466 U.S. at 689. Counsel ’s performance is not deficient when there is a conceivable strategic basis for counsel’s actions. Clark , 2004 UT 25, ¶ 6. Further
, c ounsel ’s performance is not deficient for declining to make a motion, objection, or request that surely would have failed before the district court

. E.g.
, Menzies v. State , 2014 UT 40, ¶ 223, 344 P.3d 581 (“[C]ounsel was not ineffective in failing to challenge the beyond reasonable d oubt instruction because the claim would have almost assuredly failed.”); State v. Kelley , 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does not constitute ineffective assistance of counsel.”).

¶21 Here, Hart ’s first three claims are that his counsel should have requested a mistrial
, and his last claim is that hi s counsel should have objected to certain testimony as
not qualifying as expert testimony . Hart’s first and third claims fail because his proposed request surely would have been denied by the district court . And his second and fourth claims fail because there was a conceivable strategic basis for counsel’s a ctions. We further explain these conclusions below.

I. Gun Expert’s Testimony

¶22 Hart first c ontends that his counsel should hav e moved for a mistrial based on Gun Expert’s testimony. Gun Expert testified that he test

- fired and examined Victim’s gun “and another fir earm that was submitted as well ” and conclud ed that the impression left on the 9mm casing was fr om a Glock handgun, but not from Victim’s handgun or the other submitted gun. The other gun was the one found in Hart’s possession upon his arrest. Hart posits that “the jury would have been unnecessarily confused and would have believed the firearm was” Hart’s and that his c ounsel was ineffective in failing to request a mistrial when the State introduced evidence of the other gun

. We disagree . T he facts simply do not support Hart’s conclusion.State v. Hart

20180095

- CA 10 2020 UT App 25 ¶23 A district court “should not grant a mistrial except where the circumstances are su ch as to reasonably indicate that a fair trial cannot be had and that a mistrial is necessary in order to avoid injustice.” State v. Maestas , 2012 UT 46, ¶ 325, 299 P.3d 892 (cleaned up). A mistrial is not required where a potentially “i mproper statement i s not intentionally elicited, is made in passing, and is relatively innocuous in light of all the testimony presented .” State v. Allen , 2005 UT 11, ¶ 40, 108 P .3d 730; see also State v. Butterfield , 2001 UT 59, ¶ ¶ 18, 47, 27 P.3d 1133 (holding that the dis trict court did not abuse its discretion in denying a motion for mistrial after a detective made a vague and fleeting remark that he obtained the defendant’s photograph from a jail).

¶24 Here, e ven if Hart’s counsel had moved for a mistrial, the motion surely would have failed because nothing about Gun Expert’s testimony made the trial unfair or made “a mistrial

. . . necessary in order to avoid injustice.” Maestas , 2012 UT 46, ¶ 325 (cleaned up)

. Gun Expert’s testimony about the other gun was ini tially vague and innocuous because it in no way connected the other gun to Hart. Indeed, Gun Expert referred to t he other handgun merely as “ another firearm that was submitted as well. ” And after Hart’s co unsel pointed out in a bench conference that connec ting the gun to Hart would be problematic, the prosecutor led Gun Expert to specifically testify that the other gun was used for “ comparison purposes only ” and that it had no connection to this case

. Thus, any possible inference in the jurors’ minds up to that point that the gun was connected to Hart was explicitly put to rest. Accordingly, a mistrial motion would have been futile, and Hart’s counsel was therefore not deficient in failing to move for a mistrial. See Kelley
, 2000 UT 41, ¶ 26.

II. Cousin’s Testimony

¶25 Hart also contends that his counsel was ineffective for failing to request a mistrial when Cousin testified that Hart was previously in prison and was further ineffective for emphasizing that fact. “Whether to move for a mistrial . . . is a strat egicState v. Hart

20180095

- CA 11 2020 UT App 25 decision that is generally left to the professional judgment of counsel.” State v. Padilla , 2018 UT App 108, ¶ 27, 427 P.3d 542 (cleaned up).

¶26 Here, counsel had a clear strategic reason to acknowledge Hart’s incarceration, which was t o discredit Cousin’s testimony. Counsel illustrated Cousin’s potential motive and opportunit ies to fabricate his testimony: his motive being i mprov e ment of his prospects of parole 4 and his opportunit ies being easy access to Hart’s legal papers in their sha red cell and innumerable discussion s with Hart

. Counsel also went to the extent of clarifying , on the record, that this “was a strategic decision the defense

. . . made in consultation with [Hart].” Thus, counsel did not perform deficiently because he reasonably used his professional judgment in deciding to use the evidence of Hart’s incarceration and not to move for a mistrial. See id. ; see also State v. Bedell , 2014 UT 1, ¶¶ 21, 25, 322 P.3d 697 (holding that the attorney’s performance was not deficie nt for discussing evidence of previous investigations of the defendant’s alleged sexual misconduct because counsel’s strategic basis was to undermine the accuser’s credibility, arguing that she fabricated her story only after she knew of the other accusati ons against the defendant with “hopes . . . [of] favorable treatment in her own criminal case”).

¶27 Additionally, g iven the p retrial wrangling over the admission of evidence of Hart’s previous robbery attempt as a prior act under rule 404(b), reasonable couns el would have recognized that a mistrial would allow the State to see k to offer the evidence thereof, re sulting in its potential admission i n any subsequent trial

. Regardless of the academic merits of the interlocutory appeal
, counsel objectively would hav e been facing

a decidedly uphill battle to reverse a discretionary evidentiary

4 . In fact, Cousin admitted on cross

- examination that for his willingness to testify he received a “pre tty glowing letter” from the State for his upcoming parole review. See supra ¶ 13.State v. Hart

20180095

- CA 12 2020 UT App 25 ruling

— an uncertain outcome upon which he could not reasonably rely. Put differently
, if counsel moved for and received a mistrial, he ran the risk of the 404(b) evidence ’s admi ssion in a retrial. Not assuming that risk was reasonable under the circumstances, particularly where counsel could use the evidence surrounding Hart’s incarceration with Cousin to Hart ’s benefit. Therefore , counsel did not render deficient assistance, and Hart’s ineffective assistance claim fails

.

III. The Jury Question

¶28 Hart additionally contends that his counsel was ineffective for failing to request a mistrial when the jury asked for clarification on the jacket DNA evidence during deliberations

. We disagr ee. Hart does not and cannot show that the jury’s confusion, if any after the court’s instruction, rose to mistrial levels of unfairness or injustice

. See Maestas , 2012 UT 46, ¶ 325

. T hat the jacket was Hart’s was an insignificant piece of the evidentiary picture supporting Hart’s guilt

. It is hardly shocking that Hart’s jacket had Hart’s DNA on it. And n either party referred to the evidence of the jacket in closing argument. Thus,

even though the jury sought clarification about the evidence on this issue, a mistrial motion would have been futile

. Accordingly, Hart’s counsel was not ineffective in failing to move for a mistrial. See Kelley , 2000 UT 41, ¶ 26

.

IV. Case Manager’s Testimony

¶29 Hart finally contends that his counsel was ineffective for faili ng to object to a portion of Case Manager’s testimony. In particular , Hart asserts that counsel should have objected
, under rule 702 of the Utah Rules of Evidence
, and argued that Case Manager was not qualified as an expert regarding blood patterns

. But ju st because counsel can make an object ion does not mean counsel must make an object ion to avoid rendering ineffective assistance. Legal objections are an inherently strategic business. See State v. Gonzales , 2005 UT 72, ¶ 72, 125 P.3d 878 (holding that coun sel was not ineffective when she withdrew anState v. Hart

20180095

- CA 13 2020 UT App 25 objection and did not renew it because she may have chosen not to “object for strategic reasons

. . . such as not drawing attention
to t h[e] unfortunate information”).

¶30 Here, a lthough Hart’s counsel could have ob jected to Case Manager’s testimony, counsel was not ineffective for not doing so

. H e had at least two strategic bases for his decision. First, counsel sought to use Case Manager’s testimony to undermine the quality of the State’s investigation, as the attorney did in State v. Bedell , 2014 UT 1, 322 P.3d 697

. Bedell’s counsel discussed arguably inadmissible evidence of previous investigations into Bedell’s alleged sexual misconduct to undermine t he quality and thoroughness of the State’s investigati on

. Id. ¶ 21. O ur supreme court held that Bedell’s ineffective assistance of counsel claim failed “because there was a legitimate strategic decision for . . . Bedell’s counsel to use ” the evidence of the previous investigations. Id. ¶ 25 ; see also State v

. Morley , 2019 UT App 172, ¶ 33 , 452 P

. 3d 529 (concluding that counsel acted reasonably in emphasizing shortcomings in the State’s investigation rather than seeking exclusion of pote ntially objectionable evidence)

. Second, reasonable counsel could have worried that an objection w ould have provided the State an opportunity to lay foundation in front of the jury that would simultaneously satisfy rule 702 and strengthen Case Manager’s testimony in the eyes of the jury. Hart has not pointed us to anything in t he record that establishes that Case Manager was
not actually qualified to offer the opinion he did

. In short, because we conclude that there was a conceivable strategic basis for counsel’s decision not to object to Case Manager’s testimony, Hart’s couns el did not act deficiently in this regard. 5

5

. Citing United States v. Cronic , 466 U.S. 648 (1984), Hart argues that counsel’s performance was so deficient that the trial lost its requisite adversarial testing. But we do not view counsel’s performance in this case as so devoid of “meaningful adversarial testing” that “there has been a denial of Sixth Amendment rights (continued...)State v. Hart

20180095

- CA 14 2020 UT App 25 CONCLUSION

¶31 We hold that Hart’s trial counsel did not render ineffective assistance because counsel did not perform deficiently in any of the ways Hart claims . We therefore affirm.

(...continued) that makes the adversary process itself presumptively unreliable.” Id. at 659. We th erefore reject H art’s argument.