2020 UT App 25

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

JEREMIAH RAY HART,

Appellant.

Opinion

No. 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, Attorneys

for Appellee

JUDGE DAVID N. MORTENSEN authored this Opinion, in which 

JUDGES KATE APPLEBY and JILL M. POHLMAN 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 appeals his convictions with four 

claims of ineffective assistance of counsel. We affirm.
State v. Hart

20180095-CA 2 2020 UT App 25

BACKGROUND1

The Attempted Robbery and Murder

¶2 Hart and Burwell2 came up with a plan to pose as drug

buyers and then to steal drugs from unsuspecting sellers. 

Through various intermediaries—who thought they were 

facilitating a standard 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 9mm Glock 

handgun from his cousin (Cousin), who loaded the thirty-oneround 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 pick 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 sat behind Victim with the Glock

concealed. Burwell drove a short distance and turned onto a 

residential side street to park. As 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 raised 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

Victim, 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 in 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, fatally damaging vital organs, and exited near 

his spine. Hart fled the scene, leaving behind the extended 

magazine with the assorted ammunition, a 9mm casing, and a 

trail of his own blood leading west for about two blocks. He then 

called Cousin, who picked 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 caliber 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 later admitted

that he didn’t shoot 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 shot someone. 

Then, in his third interview, Cousin admitted that indeed Hart 

said he shot someone.

¶7 About a month later, officers arrested Hart. At that time, 

Hart was in possession of a 9mm handgun, which was not a

Glock. A forensic firearms examiner (Gun Expert) 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, the 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 person. A 

preliminary hearing was held. At the hearing, the detective

managing the case (Case Manager) testified about Hart’s bloodstain 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 court pending the outcome of the 

appeal. But 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 jury trial, the State presented extensive 

evidence, including a litany of exhibits and numerous 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. Relevant 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 the 
State v. Hart

20180095-CA 5 2020 UT App 25

impression left 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 counsel pointed out that the other gun was taken 

from Hart when Hart was arrested. Because that gun had 

no connection to the shooting of Victim, counsel 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 evidence 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 agreed with this approach, and 

the prosecutor proceeded:

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 State also called Cousin to testify. Cousin testified 

that he loaded the different types of ammunition into the 

extended magazine, loaned the Glock to Hart, picked up Hart 

after the attempted robbery, noticed that the extended magazine

was missing from the Glock Hart brought 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 he 
State v. Hart

20180095-CA 6 2020 UT App 25

tried to take the blame 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 inconsistencies, 

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. But he conceded that he 

had ample opportunity to do both. 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 received 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 his 

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 crossexamination, Hart’s counsel garnered several concessions. 
State v. Hart

20180095-CA 7 2020 UT App 25

Case Manager conceded 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 eastern-most stain was Hart’s

blood; and that testing the stain would have foreclosed 

speculation completely. 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 discussing the extended magazine, 

which was farther 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.”

The Jury’s Question

¶16 A DNA analyst testified that Hart’s DNA was on the 

left sleeve of a jacket. But 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 cases, the district 

court directed the jury to deliberate. During its deliberation, the 

jury sought clarification on the testimony from the analyst 

regarding the jacket, asking to whom 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 OF 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 

appeal 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 the 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, we 

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 deficiently 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 found 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); see 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, 

counsel’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 doubt 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 

his 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 actions. We further explain these conclusions 

below.

I. Gun Expert’s Testimony

¶22 Hart first contends that his counsel should have moved 

for a mistrial based on Gun Expert’s testimony. Gun Expert 

testified that he test-fired and examined Victim’s gun “and 

another firearm that was submitted as well” and concluded that 

the impression left on the 9mm casing was from 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 counsel was ineffective in failing to 

request a mistrial when the State introduced evidence of the

other gun. We disagree. The 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 such 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 

“improper statement is 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 district 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, even 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

initially vague and innocuous because it in no way connected 

the other gun to Hart. Indeed, Gun Expert referred to the other 

handgun merely as “another firearm that was submitted as 

well.” And after Hart’s counsel pointed out in a bench 

conference that connecting 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 strategic 
State 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 to discredit Cousin’s testimony. 

Counsel illustrated Cousin’s potential motive and opportunities

to fabricate his testimony: his motive being improvement of his 

prospects of parole4 and his opportunities being easy access to 

Hart’s legal papers in their shared cell and innumerable 

discussions 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 deficient 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 accusations against the 

defendant with “hopes . . . [of] favorable treatment in her own 

criminal case”).

¶27 Additionally, given the pretrial wrangling over the 

admission of evidence of Hart’s previous robbery attempt as a 

prior act under rule 404(b), reasonable counsel would have 

recognized that a mistrial would allow the State to seek to offer 

the evidence thereof, resulting in its potential admission in any 

subsequent trial. Regardless of the academic merits of the 

interlocutory appeal, counsel objectively would have 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 “pretty 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 

admission 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 disagree. 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. That 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 neither 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

failing 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 just because counsel can make an objection does not 

mean counsel must make an objection 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 counsel was not ineffective when she withdrew an 
State 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 th[e] unfortunate information”).

¶30 Here, although Hart’s counsel could have objected to 

Case Manager’s testimony, counsel was not ineffective for not 

doing so. He 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 the quality and thoroughness of the State’s 

investigation. Id. ¶ 21. Our 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 potentially 

objectionable evidence). Second, reasonable counsel could have

worried that an objection would 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 the 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 counsel 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 therefore reject Hart’s argument.