2018 UT App 140
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
MICHAEL ROBERT HILL,
Appellant.
Opinion
No. 20160489-CA
Filed July 19, 2018
Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 141600182
Douglas L. Neeley, Attorney for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES KATE A. TOOMEY and JILL M. POHLMAN concurred.
CHRISTIANSEN, Judge:
¶1 Defendant Michael Robert Hill appeals his convictions for
burglary and theft by receiving stolen property. We affirm.
BACKGROUND
¶2 On September 18, 2014, Hill accompanied his girlfriend
(Girlfriend) to a cabin owned by her ex-boyfriend (Victim). Hill
assisted Girlfriend in removing a number of items from the
cabin, including guns, ammunition, a compound bow, men’s
outdoor clothing, fishing poles, binoculars, candles, and beach
towels.
State v. Hill
¶3 Victim reported the items missing. When police
investigated, they found a broken window and pry marks on the
front door deadbolt. Victim suspected that Hill and Girlfriend
were responsible, and he provided police with photographs of
them and their vehicle. Eyewitnesses who had observed a man
and woman carrying property to a vehicle near the cabin on the
day of the robbery identified Hill, Girlfriend, and their vehicle.
Police discovered that Hill had pawned the compound bow, and
they also found several more of the stolen items both in the
house Hill shared with a roommate and in the roommate’s car.
¶4 During a police interview, Hill admitted that he helped
Girlfriend remove the items from the cabin, but he insisted that
he believed they belonged to her. He claimed he did not initially
accompany Girlfriend to the cabin but only helped her carry the
items to the vehicle after they had already been removed from
the cabin. He claimed he never saw the broken window. He also
claimed he had pawned the bow on Girlfriend’s behalf.
¶5 The State charged Hill with second-degree-felony
burglary and second-degree-felony theft by receiving stolen
property. The State subpoenaed Girlfriend to testify at trial, but
she refused to appear, asserting her right against self-
incrimination. Following trial, the jury convicted Hill of second-
degree-felony burglary and third-degree-felony theft by
receiving stolen property.
¶6 Hill moved for a new trial. He asserted that his counsel
performed ineffectively by failing to (1) call Girlfriend to testify,
(2) introduce into evidence an email written five months after
the burglary that Victim purportedly sent to Girlfriend, and
(3) introduce a recording of Girlfriend’s police interview.
¶7 After an evidentiary hearing, the district court denied
Hill’s motion for a new trial. The court reasoned that Hill had
failed to prove that Girlfriend would have testified even if she
had been called by the defense, that counsel had acted
appropriately in choosing not to introduce the email because it
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State v. Hill
was fabricated, and that Girlfriend’s police interview was
unhelpful to the defense because it included statements
contradicting Hill’s trial testimony. Hill appeals the district
court’s ruling.
ISSUE AND STANDARD OF REVIEW
¶8 Hill asserts that the district court erred in denying his
motion for a new trial. In reviewing an appeal from the denial of
a motion for a new trial based on ineffective assistance of
counsel, we review the district court’s factual findings for clear
error and its application of the law to the facts for correctness.
See State v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1.
ANALYSIS
¶9 As he did in his motion for a new trial, Hill asserts on
appeal that his counsel performed deficiently at trial by failing to
call Girlfriend as a witness, by failing to introduce into evidence
an email purportedly written by Victim, and by failing to
introduce Girlfriend’s police interview. To establish ineffective
assistance of counsel, Hill must demonstrate, first, “that
counsel’s performance was deficient” and, second, “that the
deficient performance prejudiced the outcome of his case.” See
State v. J.A.L., 2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified);
see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶10 First, Hill argues that his trial counsel should have called
Girlfriend as a witness at trial. Hill claims that Girlfriend would
have corroborated his assertion that he believed the stolen
property belonged to her, and that his counsel did not
adequately investigate or make reasonable efforts to secure her
testimony.
¶11 “If counsel does not adequately investigate the
underlying facts of a case, including the availability of
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State v. Hill
prospective defense witnesses, counsel’s performance cannot fall
within the ‘wide range of reasonable professional assistance.’”
State v. Templin, 805 P.2d 182, 188 (Utah 1990) (quoting Strickland,
466 U.S. at 686). But in this case, Hill’s counsel was precluded
from obtaining Girlfriend’s testimony not by his failure to
investigate, but by Girlfriend’s refusal to appear at trial. Hill’s
counsel intended to question Girlfriend and even requested a
continuance when she refused to comply with the State’s
subpoena. The court determined, both at the time of trial
counsel’s continuance motion and at the hearing on Hill’s
motion for a new trial, that Girlfriend’s refusal to comply with
the State’s subpoena on Fifth Amendment grounds made it
unlikely that she would comply with a subpoena from the
defense and testify at trial. Given Girlfriend’s refusal to comply
with the State’s subpoena, we agree with the district court that
any attempt by trial counsel to subpoena her would have been
futile, and the failure of counsel to undertake futile acts does not
constitute ineffective assistance. See State v. Gunter, 2013 UT App
140, ¶ 35, 304 P.3d 866 (“There is no requirement that counsel
engage in futile acts.”).
¶12 Hill next asserts that his counsel should have introduced
an email purportedly written by Victim to Girlfriend five months
after the burglary. The email apparently stated Victim’s desire to
divide his property with Girlfriend. At the evidentiary hearing
on Hill’s motion for a new trial, Victim testified that he did not
write the email and that Girlfriend had access to his email
account and password. Victim reported the email to police
within twenty-four hours of discovering it. The court found
Victim’s testimony credible, further observing that Girlfriend
had motivation to falsify the email. Hill has failed to challenge
these findings on appeal.
¶13 In any event, as noted, the email was sent nearly five
months after the burglary, and Hill therefore could not have
relied upon it as support for his assertion that it influenced his
belief that the property belonged to Girlfriend at the time of the
burglary. Rather, the email’s only potential usefulness would
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State v. Hill
have been to establish that the property belonged to Girlfriend.
Given the district court’s finding that the email was fabricated,
we conclude that counsel did not perform ineffectively by not
seeking to admit the email. Indeed, a reasonable attorney could
have concluded that the jury was likely to draw a negative
inference from the email—that Girlfriend actually forged the
email because the property did not belong to her. See State v.
Taylor, 947 P.2d 681, 687 (Utah 1997) (holding that counsel need
not introduce potential mitigating evidence if counsel “believes
after a thorough investigation that it will harm the case or if
other strategic reasons for its omission exist”).
¶14 Finally, Hill asserts that his counsel performed deficiently
by failing to review and introduce the audio recording of
Girlfriend’s police interview. After reviewing the recording, the
district court found that attempting to use that information at
trial would not have been helpful to Hill because Girlfriend
“made statements in her interview that in many ways
contradicted [Hill’s] testimony at trial as well as both [Hill’s and
her own] interview statements.” Hill has failed to challenge the
district court’s finding, asserting only that his counsel performed
deficiently by failing to review the recording. But we need not
determine whether counsel performed deficiently, because Hill
has failed to assert that he was prejudiced by counsel’s actions.
See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (“In the
event it is ‘easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice,’ we will do so without
analyzing whether counsel’s performance was professionally
unreasonable.” (quoting Strickland, 466 U.S. at 697)).
Accordingly, Hill has not established that his counsel’s failure to
introduce the police interview at trial rose to the level of
ineffective assistance of counsel.
CONCLUSION
¶15 We determine that Hill did not receive ineffective
assistance of counsel because it would have been futile for
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State v. Hill
defense counsel to subpoena Girlfriend, because the decision to
omit the email from evidence was sound trial strategy, and
because Hill has not established that he was prejudiced by
counsel’s failure to introduce Girlfriend’s police interview.
Accordingly, we affirm.
20160489-CA 6 2018 UT App 140