State v. Craft

2017 UT App 87

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JUSTIN PAUL CRAFT,
Appellant.

Opinion
No. 20150750-CA
Filed May 25, 2017

Third District Court, Salt Lake Department
The Honorable Paul B. Parker
No. 131902555

Teresa L. Welch, Attorney for Appellant
Sean D. Reyes and Jennifer Paisner Williams,
Attorneys for Appellee

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGES
KATE A. TOOMEY and DAVID N. MORTENSEN concurred.

ROTH, Judge:

¶1 Justin Paul Craft appeals his convictions for aggravated
robbery and aggravated burglary, both first degree felonies. See
Utah Code Ann. §§ 76-6-203, -302 (LexisNexis 2012). While we
reject Craft’s claim that the eyewitness identifications were
unreliable, we ultimately vacate Craft’s convictions and remand
for a new trial based upon trial counsel’s ineffective assistance in
failing to move for a mistrial due to a detective’s statement that
codefendants had placed Craft at the scene of the crime.
 State v. Craft

BACKGROUND

¶2 On March 12, 2013, at around 2:00 a.m., a man (the
witness) was awakened in his bedroom by two men in ski masks
“punching [him] in the face . . . with guns pointing at [his]
head.” During this assault, he was also pistol-whipped. The
assault left “his whole face . . . bloody.”

¶3 Around the same time, the witness’s mother, who was
also in the house, woke to a flashlight shining in her eyes and a
man pointing a gun at her. This man also wore a mask.

¶4 After the two men searched the witness’s room, they took
him into a living area and held him there at gunpoint. He was
ordered to stay on his knees with his head down and his “hands
over [his] head.” The men began searching the living area,
closets, and bathrooms. While the witness was in the living area,
the third man brought the witness’s mother into the same room
at gunpoint and ordered her to kneel facedown as well.

¶5 At some point, one of the men removed his mask. The
witness could see the man in his “peripheral vision.” Ambient
light from one of the closets lit the living area. According to the
witness’s mother, “there was enough light that the whole room
was very well visible to the eye.” The witness later described the
man who removed his mask as being “white, with reddish-
brown hair and a goatee.”

¶6 After the witness had been in the living room for about
“five to ten minutes,” the men left the house, taking with them
cellphones, the witness’s wallet, an iPad, two laptops, golf clubs,
and two sets of car keys. The witness and his mother stayed on
the floor for about a minute after the men left before going to a
neighbor’s house to call the police.

¶7 When the police arrived, they were able to track some of
the witness’s electronic devices to a trailer park. Soon after

20150750-CA 2 2017 UT App 87
 State v. Craft

arriving at the park, the officers saw two individuals run toward
the trailers. The officers ordered the individuals to stop, but they
ran into a trailer. The officers waited outside until backup
arrived and then ordered everyone out of the trailer one at a
time. Craft was one of the people in the trailer. In a vehicle
behind the trailer, police found several of the stolen items as well
as a mask and a gun. The seven individuals from the trailer were
taken to the police station and interviewed. After speaking with
each of them, police arrested Craft and two other people.

¶8 A detective interviewed the witness approximately seven
to eight hours after the robbery. During the interview, the
detective showed the witness a color photo lineup, or photo
array, that included Craft’s photograph as well as the
photographs of five other men who resembled Craft. The
detective displayed the photos one at a time and gave the
witness a chance to review each one. When the witness indicated
that Craft looked familiar to him, the detective asked, “[W]as
that the guy standing by your bed?” The witness confirmed that
it was.

¶9 Craft and the other two arrested individuals were
prosecuted for the robbery. The trial court granted a motion to
sever Craft’s case from that of his codefendants so incriminating
admissions by the codefendants could not be used against him.

¶10 At trial, the State’s primary evidence consisted of the
witness’s testimony and a phone call made by Craft to an
unidentified woman while he was in jail. An officer who
reviewed the call testified that the woman was giving Craft “a
hard time” and telling him that he “messed up.” Craft
responded, “I know,” and stated, “I’m probably going to do a
nickel.” In the portion of the call played for the jury, Craft stated,
“I guess my homeboys . . . are a little crazy man. . . . I told ‘em to
leave all the electronics, ‘don’t . . . touch nothing like that.’ ‘Leave
it.’” Following the State’s presentation of evidence, defense
counsel moved for a directed verdict, which the court denied.

20150750-CA 3 2017 UT App 87
 State v. Craft

¶11 In his defense, Craft called an expert witness on
eyewitness identification, Dr. David Dodd. Dodd testified
generally about the reliability of eyewitness identifications. He
testified that an eyewitness’s ability to acquire a memory may be
compromised by several factors, including the limited time to
view the assailant; stress and fright at the time of the assault; and
distractions, such as being threatened by a weapon and having
multiple assailants to focus on. He testified that, in his opinion,
the witness in this case was in a sufficiently stressful, frightening
situation to disrupt his “mental processes.” Dodd also testified
about an eyewitness’s ability to retain memory. He explained
that memory fades over time and emphasized the importance of
making a report of the observations soon after the events. He
noted that, in this case, the witness’s initial description of the
suspect “was very limited”—that, for example, the description
failed to give “any idea . . . what the age of the perpetrator was.”
He also explained that memory retention can be affected by
subtle suggestion that might take place, such as in the wording
of questions during police interviews.

¶12 Dodd also suggested that the photo lineup procedure did
not fully conform to the National Institute of Justice’s
recommended practices for conducting photo lineups. See U.S.
Dep’t of Justice, Eyewitness Evidence: A Guide for Law
Enforcement 29–38 (1999), available at https://www.
ncjrs.gov/pdffiles1/nij/178240.pdf [https://perma.cc/TK3E-6XD4].
Specifically, he indicated that the officer conducting the lineup
did not tell the witness “that the perpetrator may or may not be
in the lineup” and that the investigation would continue
regardless of whether the witness made an identification; that
detailed interviews and reports were not made immediately
after the crime was reported; and that the officer did not ask the
witness about his degree of certainty after the witness identified
Craft. Dodd also suggested that the best practice for the lineup
would have been a double-blind procedure, that is, one in which
the officer conducting the lineup is unaware of which photo is

20150750-CA 4 2017 UT App 87
 State v. Craft

the suspect. Nevertheless, Dodd acknowledged that the use of a
sequential photo lineup was appropriate and that the
photographs chosen for their resemblance to Craft were
“reasonable.”

¶13 At one point during trial when the State was questioning
the detective about how he selected the photos for the lineup, the
following exchange took place:

Q. Okay. And the defense counsel mentioned hair,
goatee and white skin as the characteristics
discussed with [the witness] during his description
before the lineup, correct?

A. Yes.

Q. Aside from those, are there any other factors
other than just the similarity to the defendant that
guided you in selecting the lineup photographs?

A. As far as the other two defendants saying he was
there.

Q. No. Let me—the—when you were picking the
photographs out—

A. Oh.

(Emphasis added.) Defense counsel did not object to the
detective’s statement that Craft’s codefendants said he was there.

¶14 Following the two-day trial, the jury found Craft guilty of
both aggravated robbery and aggravated burglary. The court
sentenced him to an indeterminate prison term of not less than
ten years to life for each count, with the sentences running
concurrently. Craft appeals his convictions.

20150750-CA 5 2017 UT App 87
 State v. Craft

ISSUES AND STANDARD OF REVIEW

¶15 Craft argues that he received ineffective assistance of
counsel because his counsel did not challenge the admissibility
of the eyewitness testimony or move for a mistrial based on the
detective’s statement that Craft’s codefendants had said he was
at the scene of the crime. 1 “When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the
defendant was deprived of the effective assistance of counsel as
a matter of law.” Layton City v. Carr, 2014 UT App 227, ¶ 6, 336
P.3d 587 (brackets, citation, and internal quotation marks
omitted).

ANALYSIS

¶16 To demonstrate that his counsel performed ineffectively,
Craft “must first demonstrate that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment.” State v. Litherland, 2000 UT 76, ¶ 19, 12
P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687–88
(1984)). “Second, [he] must show that counsel’s deficient
performance was prejudicial—i.e., that it affected the outcome of
the case.” Id. (citing Strickland, 466 U.S. at 687–88). In
demonstrating that counsel’s performance was deficient, Craft
must “rebut the strong presumption that ‘under the
circumstances, the challenged action might be considered sound

1. Craft also asserts that the evidence was insufficient to support
his convictions. Our determination that the eyewitness
testimony was admissible under State v. Ramirez, 817 P.2d 774
(Utah 1991), see infra ¶¶ 17–22, essentially resolves this issue. The
witness’s testimony, placing Craft at the scene of the crime, as
apparently believed by the jury, provided sufficient evidence of
Craft’s guilt.

20150750-CA 6 2017 UT App 87
 State v. Craft

trial strategy.’” Id. (quoting Strickland, 466 U.S. at 689)
(additional internal quotation marks omitted).

I. Counsel Did Not Perform Deficiently by Failing to Seek
Exclusion of the Eyewitness Testimony.

¶17 The standard under Utah law for determining whether
eyewitness testimony is admissible is set forth in State v. Ramirez,
817 P.2d 774 (Utah 1991). In that case, our supreme court
outlined a number of factors courts should consider in
determining whether an eyewitness identification is “sufficiently
reliable that its admission and consideration by the jury will not
deny the defendant due process,” with the “ultimate question”
being “whether, under the totality of the circumstances, the
identification was reliable.” Id. at 779, 781. These factors include

(1) the opportunity of the witness to view the actor
during the event; (2) the witness’s degree of
attention to the actor at the time of the event;
(3) the witness’s capacity to observe the event,
including his or her physical and mental acuity;
(4) whether the witness’s identification was made
spontaneously and remained consistent thereafter,
or whether it was the product of suggestion; and
(5) the nature of the event being observed and the
likelihood that the witness would perceive,
remember and relate it correctly. This last area
includes such factors as whether the event was an
ordinary one in the mind of the observer during
the time it was observed, and whether the race of
the actor was the same as the observer’s.

Id. at 781 (alteration omitted) (quoting State v. Long, 721 P.2d 483,
493 (Utah 1986)).

¶18 Because Craft challenges his convictions on the ground of
ineffective assistance of counsel, we are not directly tasked with

20150750-CA 7 2017 UT App 87
 State v. Craft

determining whether the eyewitness testimony was admissible.
However, the admissibility of the evidence must inform our
determination of whether counsel performed deficiently in not
seeking to have it excluded.

¶19 Recently, this court expressed the view “that Ramirez
must be revisited” in light of “scientific and legal research”
conducted in the years since that case. State v. Lujan, 2015 UT
App 199, ¶ 10 n.1, 357 P.3d 20, cert. granted, 364 P.3d 48 (Utah
2015); accord State v. Gallegos, 2016 UT App 172, ¶ 34 n.4, 380 P.3d
44; see also State v. Clopten, 2009 UT 84, ¶¶ 15–16, 30, 223 P.3d
1103 (expanding the admissibility of expert testimony regarding
eyewitness identification in light of “[d]ecades of study”
establishing “that eyewitnesses are prone to identifying the
wrong person as the perpetrator of a crime, particularly when
certain factors are present”). However, “Ramirez remains the
standard by which we evaluate eyewitness identification
evidence,” and we must evaluate counsel’s performance in light
of that standard. See Gallegos, 2016 UT App 172, ¶ 34 n.4.

¶20 In Ramirez, the eyewitness viewed the perpetrator for
somewhere between “a few seconds” and “a minute or longer”
from a distance of ten to thirty feet. 817 P.2d at 782 (internal
quotation marks omitted). The perpetrator was “wearing a mask
over the lower part of his face,” so the eyewitness could describe
only his eyes, his size, and his clothing. Id. at 782–84. The
eyewitness’s attention was split between two assailants at the
time he viewed the perpetrator, but he had good eyesight; was
not impaired by fatigue, injury, drugs or alcohol; and made an
effort to look closely at the perpetrator. Id. at 783. The eyewitness
identified the defendant at a showup between thirty minutes
and an hour after the crime took place. Id. He viewed the
defendant from the back seat of a police car while the defendant
was handcuffed to a chain link fence. Id. at 784. The defendant
“was the only person at the showup who was not a police
officer.” Id. While our supreme court considered “[t]he blatant
suggestiveness of the showup” to be “troublesome,” and while

20150750-CA 8 2017 UT App 87
 State v. Craft

the troublesomeness was “compounded” because the witness
never saw “the full face of the gunman,” the court ultimately
determined that the identification was sufficiently reliable to be
admissible. Id.

¶21 Whether the eyewitness testimony was reliable under the
circumstances of this case certainly presents a close question.
The witness’s ability to view the suspect was limited because the
living area was lit only by ambient light from a storage closet,
the witness was forced to keep his head down so that he was
able to observe the suspect only in his “peripheral vision,” and
his vision may have been obstructed by blood in his eyes.
Further, the witness’s attention was split between three
assailants, and he was injured by the assault and under
significant stress during the time he observed them.
Approximately seven to eight hours passed between the time the
witness observed the suspect and the time he identified Craft,
and there were shortcomings in the way the photo lineup was
conducted. On the other hand, the witness had approximately
five to ten minutes to observe the suspect, and Dodd testified
approvingly of the detective’s “selection of . . . foils” for the
lineup and his use of a “sequential procedure” to show the
photos. In addition, although the witness’s description of the
assailant after the events was not detailed, it was generally
consistent with Craft’s appearance.

¶22 In evaluating the admissibility of eyewitness evidence,

[c]ourts need not, nor should they, step into the
province of the jury and decide the ultimate matter
of identification for the jurors. Courts must simply
decide whether the testimony was sufficiently
reliable so as not to offend [a] defendant’s right to
due process by permitting clearly unreliable
identification testimony before the jury.

20150750-CA 9 2017 UT App 87
 State v. Craft

State v. Hubbard, 2002 UT 45, ¶ 30, 48 P.3d 953. While there were
significant areas of concern regarding the eyewitness testimony,
the testimony was sufficiently reliable to pass constitutional
muster under the Ramirez standard. See id. The photo lineup in
particular, though not flawless, was significantly less concerning
than the blatantly suggestive showup in Ramirez. Though the
witness had only a peripheral view, the assailant here was not
masked. See Ramirez, 817 P.2d at 784. In light of Ramirez and its
continuing authority on the issue of eyewitness identification, it
would not have been unreasonable for counsel to determine that
attempting to discredit the testimony at trial was a better
strategy than pursuing a likely futile motion to exclude the
testimony. Indeed, as we concluded in State v. Mecham, 2000 UT
App 247, 9 P.3d 777, deciding to forgo a motion to suppress (that
would have been unlikely to succeed) in order to avoid an
evidentiary hearing that would give the “identification witnesses
yet another chance to rehearse their testimony and further
solidify their identifications” of the defendant seems much more
likely to be “a product of sound tactics rather than of ignorance
or ineptitude.” Id. ¶¶ 15–16, 26. Thus, we are not persuaded that
Craft’s counsel performed deficiently in forgoing such a motion. 2

II. Counsel’s Failure to Seek a Mistrial Based on the Detective’s
Improper Statement Constituted Ineffective Assistance
of Counsel.

¶23 Craft next asserts that his counsel performed deficiently
by failing to object to and move for a mistrial based on the
detective’s statement indicating that Craft’s codefendants told
him Craft was at the crime scene. We agree with Craft that this
failure rose to the level of ineffective assistance of counsel and
requires that his convictions be vacated.

2. Craft also challenges the witness’s in-court identification of
him, but he does not analyze it separately from the out-of-court
identification.

20150750-CA 10 2017 UT App 87
 State v. Craft

¶24 “[A]n incident rises to the level requiring a mistrial” if the
trial court determines that the “incident may have or probably
influenced the jury, to the prejudice of [the defendant].” State v.
Cardall, 1999 UT 51, ¶ 18, 982 P.2d 79 (second alteration in
original) (emphasis, citation, and internal quotation marks
omitted). Under Utah law, an improper statement does not
require a mistrial where it “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, e.g., State v. Butterfield, 2001 UT 59, ¶¶ 45–47, 27 P.3d
1133 (concluding that a witness’s reference to the defendant’s
criminal history was innocuous where significant additional
evidence of the defendant’s guilt was presented in the case);
State v. Wach, 2001 UT 35, ¶¶ 44–46, 24 P.3d 948 (concluding that
a victim’s improper remark that she wore a security alarm when
she was around the defendant was innocuous “given the totality
of the evidence against” the defendant, which included the
victim’s testimony regarding his violence toward her); State v.
Milligan, 2012 UT App 47, ¶¶ 8–9, 287 P.3d 1 (concluding that a
witness’s improper statement that the defendant’s tattoo
indicated that he had committed murder was not likely to have
influenced the verdict because there was substantial additional
testimony of the defendant’s guilt, including testimony from
multiple eyewitnesses, forensic evidence, and the defendant’s
admissions).

¶25 The State concedes that the detective’s statement in this
case was improper but asserts that the statement was innocuous
because it was made out of context when the officer was being
questioned about the photo lineup; the prosecutor quickly
moved on by clarifying the question he intended to ask; and the
prosecutor did not mention the statement again or attempt to
use it in support of the State’s case. Thus, the State asserts that it
was unlikely that the trial court would have granted a mistrial
even if counsel had requested it and it was therefore reasonable
for trial counsel to have remained silent to avoid highlighting

20150750-CA 11 2017 UT App 87
 State v. Craft

the improper testimony further. While we acknowledge that the
improper statement in this case was not intentionally elicited
and was made in passing, we are not convinced that it was
“innocuous in light of all the testimony presented.” See Allen,
2005 UT 11, ¶ 40.

¶26 Craft’s entire defense was based on his assertion that he
was not present at the scene of the crime. The trial court had
previously granted a motion to sever so that Craft’s case could
be tried separately from those of his codefendants. Severance
was requested and granted for the very purpose of avoiding the
introduction in Craft’s case of incriminating statements made by
his codefendants. And the statement here did not involve a
peripheral issue, such as the defendant’s criminal history or
prior bad acts, cf. Butterfield, 2001 UT 59, ¶¶ 45–47; Wach, 2001
UT 35, ¶¶ 44–46, but pertained to the heart of the central factual
issue the jury was tasked with resolving—whether Craft was the
man the witness saw in his house on the night of the crime, cf.
State v. Larrabee, 2013 UT 70, ¶ 36, 321 P.3d 1136 (holding that
where the primary issue in the case was the defendant’s
credibility and no other evidence was presented to undermine it,
a prosecutor’s improper references to excluded credibility
evidence were “highly prejudicial” because “they went to the
heart of what the jury was being asked to decide”).

¶27 Given the significance of the improper statement in the
context of the defense, we think it likely that the incident “may
have or probably influenced the jury, to the prejudice of” Craft.
See Cardall, 1999 UT 51, ¶ 18 (emphasis, citation, and internal
quotation marks omitted). If the jury believed the detective’s
statement, it could have ignored all the other less definitive and
more contested evidence, see infra ¶¶ 29–32, and relied on this
one improper statement to resolve the primary question of
whether Craft participated in the crime. It was therefore likely
that a mistrial would have been granted had counsel objected to
the statement, and we can conceive of no strategic basis for
counsel to have neglected to move for one. Cf. Larrabee, 2013 UT

20150750-CA 12 2017 UT App 87
 State v. Craft

70, ¶¶ 28–32 (acknowledging that “[t]he question of where to
draw the line—of when to object and when to stand pat—
is . . . difficult,” but cautioning that courts should not “too
readily accept[]” the argument that it is sound trial strategy to
stay silent “based on a ‘fear of highlighting’” a prejudicial
comment, because doing so has the potential to “significantly
undermine our ineffective assistance of counsel doctrine” (first
alteration in original) (citation and additional internal quotation
marks omitted)).

¶28 Further, we agree with Craft that his counsel’s failure to
move for a mistrial was prejudicial. To demonstrate 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.” Strickland v. Washington,
466 U.S. 668, 694 (1984). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Id.

¶29 The limitations of the evidence in this case make it
reasonably probable that the detective’s statement placing Craft
at the scene of the crime influenced the verdict. Cf. State v.
Milligan, 2012 UT App 47, ¶¶ 8–9, 287 P.3d 1. Although we have
ultimately determined that the witness’s testimony was
sufficiently reliable under Ramirez to be admissible, see supra
¶¶ 17–22, it was certainly not strong enough to make a guilty
verdict a foregone conclusion. As we have explained, the
witness’s description of his assailant was not very detailed. The
witness did not have a direct view of his assailant’s face, the
room was dim, he had recently been assaulted, and he had blood
in his eyes. Furthermore, Dodd’s testimony highlighted the
various limitations of eyewitness testimony under the
circumstances and also described deficiencies in the photo
lineup that could have influenced the jury’s view of the
reliability of the eyewitness identification.

¶30 The other evidence presented by the State did not militate
so overwhelmingly in favor of guilt as to overcome the effect of

20150750-CA 13 2017 UT App 87
 State v. Craft

the detective’s statement. The jail phone call, though it undercut
Craft’s defense, did not unequivocally place Craft at the scene of
the crime or include any explicit admissions. His statement that
he expected to “do a nickel” could simply have indicated that he
feared a conviction for the crime with which he was being
charged. His statement that he told his “homeboys” to “leave all
the electronics” suggests that he was aware of their intention to
commit a crime but does not establish that he was at the house
when the crime was committed, as the prosecution asserted.
Craft was not found in possession of any stolen property, and
neither his DNA nor his fingerprints were found on any of the
stolen items. The vehicle where evidence was found belonged to
one of the other codefendants, and there was no evidence
connecting Craft to that vehicle.

¶31 Craft’s counsel highlighted the weaknesses in the
evidence by bringing in the expert witness to enlighten the jury
about the limitations of eyewitness testimony generally and the
witness’s testimony in particular; by pointing out the
ambiguities in the jail phone call; and by questioning police
witnesses regarding the lack of physical evidence connecting
Craft to the crime. Counsel also raised questions regarding the
witness’s credibility by presenting evidence suggesting that the
witness had lied on the stand about distributing marijuana,
despite having been granted immunity from prosecution for
marijuana possession or distribution.

¶32 In sum, while there was certainly evidence of guilt, it was
not overwhelming, and the question of Craft’s participation in
the crime must have presented some challenge for the jury. That
challenge was effectively eliminated by the detective’s statement,
which provided a direct and easy answer to the disputed
question: Craft was there because his codefendants said so. And
though nothing was said or done to focus attention on the
statement, neither was this potentially conclusive piece of
evidence challenged or qualified in any way at trial. And it
seems unlikely that a statement so central to the outcome would

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 State v. Craft

have simply passed unnoticed by the jury. Rather, the testimony
would likely have significantly undermined the jury’s
commitment to full consideration of whether the admissible
evidence raised any reasonable doubt about Craft’s guilt and
thereby weakened the fundamental protection afforded a
defendant by the prosecution’s burden of proof.

¶33 Accordingly, we conclude that trial counsel’s failure to
move for a mistrial based on the detective’s statement amounts
to ineffective assistance of counsel.

CONCLUSION

¶34 Because the eyewitness testimony was sufficiently reliable
under Ramirez, counsel did not perform deficiently in declining
to pursue a motion to exclude it. However, counsel’s failure to
move for a mistrial based on the detective’s improper statement
“so undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having produced a
just result,” Strickland v. Washington, 466 U.S. 668, 686 (1984), and
requires that we vacate Craft’s convictions. Accordingly, we do
so and remand the case for a new trial.

20150750-CA 15 2017 UT App 87