2017 UT App 52

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

MICHAEL JOHN EDGAR,

Appellant.

Opinion

No. 20150594-CA

Filed March 23, 2017

Fourth District Court, Provo Department

The Honorable Lynn W. Davis

No. 131403487

Emily Adams, Attorney for Appellant

Sean D. Reyes and Christopher D. Ballard, Attorneys

for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Opinion, in which 

JUDGES MICHELE M. CHRISTIANSEN and DAVID N. MORTENSEN

concurred.

VOROS, Judge:

¶1 Michael John Edgar appeals his convictions for various 

drug offenses. Edgar principally contends that his trial counsel

performed ineffectively by not objecting to testimony that Edgar 

tried to negotiate a plea deal based on his ties to drug dealers. 

But Edgar admitted to police that the drugs in question were his, 

and his admission was corroborated by another witness. 

Accordingly, he cannot demonstrate that his counsel’s trial 

performance resulted in prejudice. We therefore affirm.
State v. Edgar

20150594-CA 2 2017 UT App 52

BACKGROUND

¶2 On November 21, 2013 officers followed a vehicle that left 

Edgar’s home during surveillance of the house. After noting 

several traffic violations, they pulled the vehicle over. The driver 

of the car identified herself as Edgar’s wife. Police questioned 

Edgar’s wife and the female passenger. When the women gave 

inconsistent statements, the officers approached the vehicle with 

a drug dog. The officers found drugs on the passenger’s person. 

The officers also found a safe in the car’s trunk, and the drug 

dog indicated the presence of drugs within the safe. Edgar called 

his wife multiple times during the stop. When she finally 

answered, the officer asked whether he could speak to him; she 

handed the officer her phone. The officer asked Edgar to come to 

the scene; Edgar asked the officers to let his wife and the other 

passenger go. Edgar agreed to talk to the officers as long as they 

didn’t open the safe. And he agreed to meet the officers at 

another location.

¶3 When Edgar failed to show up at the designated location, 

the officers went to his house and arrested him. When they

asked him to open the safe, he refused to give them the 

combination because doing so, he said, would implicate him. 

They then forcibly opened the safe, finding drug paraphernalia, 

a digital scale, distributable amounts of drugs, and a prescription 

bottle bearing Edgar’s name. Police then searched Edgar’s house 

and found drugs and paraphernalia in his room. When 

questioned about the contents of the safe, Edgar said that the 

drugs belonged to him and that his wife had no involvement. 

The passenger in the car corroborated Edgar’s admission. 

¶4 During his interview, Edgar offered to cooperate with 

police, saying that he would give them ‚big people‛ and that he 

had ‚ties to people that he could offer up‛ in exchange for 

leniency on the current charges. During the interview, Edgar 

never denied knowledge of the safe or its contents.
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20150594-CA 3 2017 UT App 52

¶5 Edgar was charged with two counts of possession with 

intent to distribute a controlled substance, second degree 

felonies; two counts of possession or use of a controlled 

substance, class B misdemeanors; and one count of use or 

possession of drug paraphernalia, a class B misdemeanor.

¶6 Over the next several months, Edgar contacted the 

investigating officer 15 to 20 times about the prospect of 

becoming a confidential informant. During one of the phone 

calls, he indicated that he knew several ‚big players‛ who ‚carry 

weight‛—meaning that they distribute ‚large amounts of illegal 

drugs, namely methamphetamine‛—and offered to identify 

those people in exchange for leniency. The officer declined 

Edgar’s offer.

¶7 Edgar also contacted a local Drug Enforcement 

Administration agent in an attempt to receive leniency on his 

pending charges. He informed the DEA agent that he ‚had 

access to a Mexican source of supply for heroin‛ and that ‚he 

was capable of getting pounds‛ from that source. The DEA agent 

also declined Edgar’s offer. The investigating officer and the 

DEA agent both testified at trial.

¶8 In closing arguments at trial, the prosecutor made a 

statement intimating that Edgar had told the DEA agent that

Edgar was actually distributing drugs himself. The prosecutor 

told the jury, ‚Got a drug dealer admittedly, trying to work off

charges with the Major Crimes Task Force, the DEA, how many 

of us would have the wherewithal to call the DEA and say, Hey, 

I’ve got these drug charges, I need to work, I’m moving tons of 

weight, pounds of heroin.‛ Defense counsel did not object. The 

jury convicted Edgar on all charges.

ISSUES AND STANDARD OF REVIEW

¶9 Edgar contends that his trial counsel rendered ineffective 

assistance of counsel in three ways. First, Edgar claims that his
State v. Edgar

20150594-CA 4 2017 UT App 52

counsel was ineffective for not objecting under rule 403 of the 

Utah Rules of Evidence to testimony about the proposed 

leniency deal. Second, Edgar claims that his counsel was 

ineffective for not objecting to the prosecutor’s misstatement of 

the evidence in closing argument. Third, Edgar contends in a 

rule 23B motion that his counsel was ineffective for not objecting

under rule 410 of the Utah Rules of Evidence to his statements 

made during the course of plea negotiations.

¶10 ‚An ineffective assistance of counsel claim raised for the 

first time on appeal presents a question of law.‛ State v. Clark,

2004 UT 25, ¶ 6, 89 P.3d 162.

ANALYSIS

¶11 To succeed on a claim of ineffective assistance of counsel, 

a defendant must show both ‚that counsel’s performance was 

deficient‛ and ‚that the deficient performance prejudiced the 

defense.‛ Strickland v. Washington, 466 U.S. 668, 687 (1984); see 

also State v. Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031. However, ‚a 

court need not determine whether counsel’s performance was 

deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies.‛ Strickland, 466 

U.S. at 697. ‚If it is easier to dispose of an ineffectiveness claim 

on the ground of lack of sufficient prejudice, . . . that course 

should be followed.‛ Id. To prove prejudice, a ‚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. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.‛ Id. at 694.

¶12 ‚Failure to raise futile objections does not constitute 

ineffective assistance of counsel.‛ State v. Kelley, 2000 UT 41, 

¶ 26, 1 P.3d 546. But showing that an objection would have 

resulted in the exclusion of inadmissible evidence falls short of 

demonstrating prejudice. The defendant must in addition show 

‚a reasonable probability that the verdict would have been 
State v. Edgar

20150594-CA 5 2017 UT App 52

different absent the excludable evidence in order to demonstrate 

actual prejudice.‛ Kimmelman v. Morrison, 477 U.S. 365, 375 

(1986).

I. Rule 403 Objection

¶13 Edgar contends that his trial counsel rendered ineffective 

assistance of counsel by not objecting to testimony from the law 

enforcement officers that connected Edgar with drug dealers. 

Edgar argues that this testimony should have been excluded 

under rule 403 of the Utah Rules of Evidence. Specifically, Edgar 

argues that the testimony shed no light on what happened when 

the police arrested him and did not aid the jury in determining 

crucial facts in this case.

¶14 At trial, the investigating officer testified that Edgar 

indicated that he knew several ‚big players‛ who ‚carry 

weight‛—meaning that they distribute ‚large amounts of illegal 

drugs, namely methamphetamine‛—and that Edgar offered to 

identify those people in exchange for leniency. The DEA agent 

testified that Edgar informed him that he ‚had access to a 

Mexican source of supply for heroin‛ and that ‚he was capable 

of getting pounds‛ from that source. Edgar’s trial counsel did 

not object to either portion of the testimony.

¶15 Rule 403 provides that the court ‚may exclude relevant 

evidence if its probative value is substantially outweighed by a 

danger of one or more of the following: unfair prejudice, 

confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.‛ Utah R. 

Evid. 403. This rule imposes on the defendant a ‚heavy burden 

not only to show that the risk of unfair prejudice is greater than 

the probative value, but that it ‘substantially outweigh[s]’ the 

probative value.‛ State v. Jones, 2015 UT 19, ¶ 29, 345 P.3d 1195 

(alteration in original).

¶16 Edgar’s claim fails because he cannot demonstrate ‚a 

reasonable probability that, but for counsel’s unprofessional 
State v. Edgar

20150594-CA 6 2017 UT App 52

errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine 

confidence in the outcome.‛ Strickland v. Washington, 466 U.S.

668, 694 (1984). Even if the challenged evidence had been 

excluded at trial, the remaining evidence against Edgar was 

virtually insurmountable. He told police that if he gave them the 

combination to the safe, it would implicate him. The safe held, in 

addition to the drugs and paraphernalia, a prescription bottle 

bearing Edgar’s name. And when questioned about the contents 

of the safe, Edgar admitted that the drugs were his, an admission 

corroborated by another witness.

¶17 Assuming without deciding that any reasonable defense 

counsel would have objected to the admission of Edgar’s later 

statements about drug suppliers, and that such an objection 

would have been sustained and the evidence excluded, Edgar’s 

claim still fails. Given Edgar’s corroborated admission that the 

drugs were his, he cannot show a reasonable probability that the 

result of the proceeding would have been different. See id.

II. The State’s Closing Argument

¶18 Edgar next contends that his trial counsel was ineffective 

for not objecting to the prosecutor’s ‚statements during closing 

arguments that misstated the evidence and that were 

inflammatory.‛

¶19 In closing, the prosecutor told the jury, ‚Got a drug dealer 

admittedly, trying to work off charges with the Major Crimes 

Task Force, the DEA, how many of us would have the 

wherewithal to call the DEA and say, Hey, I’ve got these drug 

charges, I need to work, I’m moving tons of weight, pounds of 

heroin.‛ Edgar argues that the statement, ‚I’m moving tons of 

weight, pounds of heroin,‛ misstated the evidence. The DEA 

agent in fact testified not that Edgar claimed to move tons of 

weight or pounds of heroin, but that Edgar knew ‚big players‛

who did and that he could get ‚pounds‛ from them. Thus, the 

testimony was not that Edgar was ‚a drug dealer, admittedly,‛
State v. Edgar

20150594-CA 7 2017 UT App 52

but that he knew drug dealers and could make big buys from 

them. 1

¶20 Generally speaking, in argument to the jury, ‚counsel for 

each side has considerable latitude and may discuss fully his or 

her viewpoint of the evidence and the deductions arising 

therefrom.‛ State v. Dunn, 850 P.2d 1201, 1223 (Utah 1993). 

Nevertheless, a prosecutor’s remarks require reversal if (1) they 

‚call to the attention of the jurors matters they would not be 

justified in considering in determining their verdict‛ and, 

(2) ‚under the circumstances of the particular case, the error is 

substantial and prejudicial such that there is a reasonable 

likelihood that in its absence, there would have been a more 

favorable result for the defendant.‛ State v. Thomas, 777 P.2d 445, 

447 (Utah 1989).

¶21 Step two of this analysis ‚involves a consideration of the 

circumstances of the case as a whole,‛ including ‚the evidence of 

defendant’s guilt.‛ State v. Troy, 688 P.2d 483, 486 (Utah 1984). ‚If 

proof of defendant’s guilt is strong, the challenged conduct or 

remark will not be presumed prejudicial.‛ Id. (citation and 

internal quotation marks omitted). A case with less compelling 

proof requires more scrutiny. Id. A case in which jurors must 

weigh conflicting evidence or evidence susceptible of differing 

interpretations presents a greater likelihood that they will be 

improperly influenced by untoward remarks of counsel. Id.

Jurors in such a case ‚may be searching for guidance in 

weighing and interpreting the evidence. They may be especially 

susceptible to influence, and a small degree of influence may be 

sufficient to affect the verdict.‛ Id.

 

1. Edgar also argues in his opening brief that the statement ‚Got 

a drug dealer admittedly‛ was improper, but he abandoned this 

claim at oral argument. Accordingly, we do not address it 

further.
State v. Edgar

20150594-CA 8 2017 UT App 52

¶22 Because Edgar asserts a Sixth Amendment violation, the 

Strickland standard applies. And, ‚[w]hen we review an 

attorney’s failure to object to a prosecutor's statements during 

closing argument, the question is ‘not whether the prosecutor’s 

comments were proper, but whether they were so improper that 

counsel’s only defensible choice was to interrupt those 

comments with an objection.’‛ State v. Houston, 2015 UT 40, ¶ 76, 

353 P.3d 55 (quoting Bussard v. Lockhart, 32 F.3d 322, 324 (8th Cir.

1994)).

¶23 Here, the prosecutor’s statement that Edgar claimed to be

‚moving tons of weight, pounds of heroin‛ unquestionably

misstated the evidence. It thus ‚call[ed] to the attention of the 

jurors matters they would not be justified in considering in 

determining their verdict.‛ See State v. Thompson, 2014 UT App 

14, ¶ 43, 318 P.3d 1221 (citation and internal quotation marks 

omitted). However, we express no opinion on whether the 

statement was so improper that counsel’s only defensible choice 

was to interrupt those comments with an objection. We need not

resolve the question of whether defense counsel performed 

deficiently where, as here, no prejudice resulted in any event.

¶24 As explained above, the evidence of Edgar’s guilt was 

virtually insurmountable. Accordingly, Edgar cannot show a

reasonable probability that, had the prosecutor not misstated the 

testimony—and indeed had the testimony never been 

admitted—the result of the proceeding would have been any 

different. See Strickland v. Washington, 466 U.S. 668, 694 (1984).

III. Rule 410 Objection

¶25 Finally, Edgar has filed a motion under rule 23B of the 

Utah Rules of Appellate Procedure seeking remand and a 

hearing on the question of whether his counsel was ineffective 

for not objecting under rule 410 of the Utah Rules of Evidence to 

the admission of statements that he claims, he made in the 

course of plea negotiations. Specifically, Edgar argues that his 

statements to the investigating officer that he knew several ‚big 
State v. Edgar

20150594-CA 9 2017 UT App 52

players of people that carry weight which would mean people 

who distribute . . . large amounts of illegal drugs, namely 

methamphetamine [and] . . . that he could provide those people 

in exchange for leniency on these charges‛ were ‚comment[s]

made during the course of plea negotiations.‛ Remand is 

required, Edgar argues, because the record ‚does not contain 

any information about Edgar’s views of those negotiations.‛

Edgar maintains that his affidavit ‚shows that he exhibited an 

actual subjective expectation to negotiate a plea at the time he 

made his comments to the detective.‛ See West Valley City v. 

Fieeiki, 2007 UT App 62, ¶ 23, 157 P.3d 802.

¶26 We deny the motion for remand on two grounds. First, 

for reasons explained above, Edgar cannot show that any 

deficient performance on the part of his trial counsel prejudiced 

his defense. And second, even if Edgar believed his statement 

was made in the course of plea negotiations, his counsel did not 

perform deficiently under the law in effect at the time.

¶27 Rule 410 provides that evidence of ‚a statement made 

during plea discussions with an attorney for the prosecuting 

authority if the discussions did not result in a guilty plea or they 

resulted in a later-withdrawn guilty plea‛ ‚is not admissible 

against the defendant who made the plea or participated in the 

plea discussions.‛ Utah R. Evid. 410(a)(4). The advisory 

committee note to the rule states that rule 410(a)(4) ‚does not 

cover plea negotiations with public officials other than 

prosecuting attorneys.‛ Id. R. 410 advisory committee note. ‚We 

note that, although not authoritative, the advisory committee 

notes to the Utah Rules of Evidence merit great weight in any 

interpretation of those rules.‛ Burns v. Boyden, 2006 UT 14, ¶ 18

n.6, 133 P.3d 370. Edgar does not contend that the investigating 

officer to whom he spoke was ‚an attorney for the prosecuting 

authority.‛ See Utah R. Evid. 410(a)(4).

¶28 Edgar relies on a passage in a 20-year-old unpublished 

opinion of the United States Court of Appeals for the Sixth

Circuit. In that opinion, the Sixth Circuit opines that federal rule 
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20150594-CA 10 2017 UT App 52

410 ‚can be fairly read to apply to statements made to a 

government attorney during the course of plea discussions or to 

an agent whom the government attorney has authorized to 

engage in plea discussions.‛ United States v. O’Neal, No. 92-5995, 

1993 WL 133807, at *8 (6th Cir. Apr. 28, 1993) (per curiam). 

However, this opinion undermines Edgar’s position as much as

it supports it, as the Sixth Circuit ruled the statements of the 

defendant in that case admissible. The court held that ‚it would 

not be objectively reasonable to believe that the police had been 

authorized to negotiate a plea on behalf of the prosecutor if they 

could not guarantee results.‛ Id. Therefore, the court concluded, 

‚the statements made by defendant after he agreed to cooperate 

with police were not inadmissible as statements made during the 

course of a plea bargain.‛ Id. But more fundamentally, the Sixth 

Circuit’s unpublished interpretation of federal rule 410 is not 

controlling law in Utah.

¶29 ‚A fair assessment of attorney performance requires that 

every effort be made to eliminate the distorting effects of 

hindsight, to reconstruct the circumstances of counsel’s 

challenged conduct, and to evaluate the conduct from counsel’s 

perspective at the time.‛ Strickland v. Washington, 466 U.S. 668,

689 (1984). This means, among other things, that we evaluate 

counsel’s performance in light of the law as it existed at the time 

and place of the representation. See Smith v. Murray, 477 U.S. 527, 

536 (1986) (assessing counsel’s performance in light of Virginia 

law at the time counsel submitted his opening brief to the 

Supreme Court of Virginia); Menzies v. State, 2014 UT 40, ¶ 76,

344 P.3d 581 (stating that ‚in assessing whether counsel’s 

performance was deficient, we must look at the facts and law 

available to counsel at the time of the representation‛); State v. 

Dunn, 850 P.2d 1201, 1228 (Utah 1993) (‚To establish a claim of 

ineffectiveness based on an oversight or misreading of law, a 

defendant bears the burden of demonstrating why, on the basis 

of the law in effect at the time of trial, his or her trial counsel’s 

performance was deficient.‛).
State v. Edgar

20150594-CA 11 2017 UT App 52

¶30 While this court or our supreme court might in the future 

read Utah’s rule 410 as the Sixth Circuit reads its federal 

counterpart, it has not yet done so. Consequently, we cannot 

fault trial counsel for representing Edgar in a manner consistent 

with current Utah law, that is, consistent with the text of rule 410 

in light of the advisory committee comment. And by that 

standard, Edgar does not claim that his ‚counsel’s 

representation fell below an objective standard of 

reasonableness.‛ See Strickland, 466 U.S. at 688.

¶31 Accordingly, we deny Edgar’s motion for remand under 

rule 23B.

CONCLUSION

¶32 For the foregoing reasons, the judgment of the trial court 

is affirmed.