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
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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State v. Edgar
¶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
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State v. Edgar
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
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State v. Edgar
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
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State v. Edgar
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,‛
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State v. Edgar
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.
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State v. Edgar
¶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
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State v. Edgar
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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State v. Edgar
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.‛).
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State v. Edgar
¶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.
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