State v. Eyre

2019 UT App 162

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
MATTHEW GORDON EYRE,
Appellant.

Amended Opinion 1
No. 20180016-CA
Filed October 3, 2019

Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 161909443

Alexandra S. McCallum, Attorney for Appellant
Sean D. Reyes and Lindsey Wheeler, Attorneys
for Appellee

JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.

APPLEBY, Judge:

¶1 Matthew Gordon Eyre appeals his conviction for
aggravated robbery and raises two issues on appeal. First, he
argues his trial counsel (Trial Counsel) was ineffective for failing
to object to a jury instruction that purportedly misstated the
mens rea requirement for accomplice liability. Second, Eyre
argues his motion for a mistrial should have been granted after

1. This amended opinion replaces the opinion in case No.
20180016-CA that was issued on July 26, 2019 to incorporate our
supreme court’s recent decision in State v. Silva, 2019 UT 36. See
infra, ¶¶ 29–32. This amended opinion does not alter any
conclusions reached in our original opinion.
 State v. Eyre

the jury viewed the recording of his police interview during its
deliberations. In the alternative, he argues Trial Counsel was
ineffective for failing to ensure the recording was kept out of the
jury room. We affirm.

BACKGROUND

¶2 In August 2016, the victims (Boyfriend and Girlfriend)
drove to downtown Salt Lake City in a Dodge Challenger to
purchase drugs. Eyre, along with two others, Driver and
Passenger, were in a parked Chrysler PT Cruiser. Passenger
decided he wanted to steal the Challenger. Eyre told Passenger it
was a bad idea. Passenger said he “was going to ask [Boyfriend]
for a jump start” for the PT Cruiser. Eyre claims that “as soon as
[Passenger] got out of the car,” he started “spinning [the] whole
fuckin’ jump thing.” Boyfriend agreed to help jump start the PT
Cruiser.

¶3 Boyfriend parked the Challenger next to the PT Cruiser.
Girlfriend remained in the car as Boyfriend got out, opened the
hood, and stood between the two vehicles talking to Passenger.
Passenger told Eyre and Driver to look for jumper cables in the
trunk. After rummaging around in the trunk pretending to look
for the cables, Eyre walked up to Passenger and told him they
did not have any. Eyre claims he did not know what was said
afterward between Boyfriend and Passenger.

¶4 According to Boyfriend and Girlfriend, Passenger lifted
his shirt and showed a pistol tucked into his waistband.
Passenger announced, “You know what this is. We are taking
everything. . . . Get your bitch out of the car. I’m going to pistol
whip her.” Boyfriend testified that Eyre displayed a pistol as
well, while Girlfriend testified she did not see Eyre with a pistol
or see him leave the trunk area of the PT Cruiser.

¶5 Girlfriend passed a gun to Boyfriend through the
passenger side window of the Challenger. Boyfriend testified
that Passenger drew his gun and pointed it in Boyfriend’s

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direction so Boyfriend fired his gun at Passenger; Passenger died
later that day. Eyre fled the scene.

¶6 Girlfriend and Boyfriend started driving away in the
Challenger, followed by Driver in the PT Cruiser. Driver hit the
Challenger’s rear end, causing the PT Cruiser to flip over.
Boyfriend and Girlfriend drove away. They parked nearby and
discarded Boyfriend’s gun before the police arrived and arrested
Boyfriend. While searching the Challenger the police found a
gun cleaning kit, a scale for measuring drugs, two bags of
marijuana, and thirty-seven bags of suspected Spice. 2 The police
found a pistol magazine in the PT Cruiser. Other than this
evidence, they found “[v]ery little physical evidence” at the
crime scene, which was “compromised” by various individuals
who rushed there and stole things from the PT Cruiser and
Passenger after the shooting.

¶7 The police spoke to a witness who gave a description of
Eyre, and this information led an officer to stop him nearby. The
officer initially let Eyre leave after he denied involvement with
the shooting, but he later was arrested and interviewed. Police
never recovered a gun from him, but the State charged Eyre with
aggravated robbery, a first degree felony, under a theory of
accomplice liability. The case went to trial in October 2017.

¶8 The parties stipulated to a “blanket admission” of all
exhibits including: a map of the area, photos of the scene, photos
of Eyre during his interview with police, a surveillance video of
the area, a video of Eyre’s interview with police (Exhibit 11), and
the pistol magazine recovered from the PT Cruiser. According to
Trial Counsel, the parties agreed that Exhibit 11 could be played

2. Spice is a “synthetic version of tetrahydrocannabinol (THC),
the psychoactive ingredient in marijuana.” United States Drug
Enforcement Admin., Spice/K2, Synthetic Marijuana, https://www.
dea.gov/factsheets/spice-k2-synthetic-marijuana [https://perma.c
c/74GC-D8SL?type=image].

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 State v. Eyre

at trial but Trial Counsel was under the impression that the
video would not go back to the jury room during deliberations.
All exhibits went back to the jury room.

¶9 During deliberations, the jury asked for a computer so it
could view the video exhibits. A computer was provided but
Trial Counsel assumed the jury wanted to view a different video,
not Exhibit 11. After twenty minutes Trial Counsel realized the
jury might have access to Exhibit 11 and immediately notified a
court employee. The bailiff retrieved the computer from the jury
room and confirmed the jury watched Exhibit 11.

¶10 Trial Counsel moved for a mistrial on the grounds that
watching Exhibit 11 a second time, while it deliberated, may
have improperly influenced the jury. The court took the motion
under advisement pending the verdict. After the jury returned a
guilty verdict, the court ordered briefing on the mistrial motion.
It ruled that the “jury’s viewing of Exhibit 11 in the jury room
during deliberations was improper.” But it denied the motion,
finding the error was harmless because sufficient evidence
supported the verdict, Eyre would have benefited from any
weight the jury may have placed on viewing Exhibit 11 multiple
times, and the jury had access to Exhibit 11 only for a short
period. The court sentenced Eyre to an indeterminate prison
term of ten years to life. Eyre appeals.

ISSUES AND STANDARDS OF REVIEW

¶11 Eyre raises two issues on appeal. 3 Eyre argues Trial
Counsel was ineffective for failing to object to a jury instruction

3. Eyre also argues the cumulative effect of the claimed errors
warrants reversal. Because we conclude Trial Counsel was not
ineffective and the court correctly denied the motion for a
mistrial, “there are no errors to accumulate, and the cumulative
error doctrine does not apply.” State v. Squires, 2019 UT App 113,
¶ 45 n.10.

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 State v. Eyre

that misstated the mens rea requirement for accomplice liability
and for failing to ensure Exhibit 11 was not sent into the jury
room. “An ineffective assistance of counsel claim raised for the
first time on appeal presents a question of law.” State v. Coombs,
2019 UT App 7, ¶ 16, 438 P.3d 967 (quotation simplified).

¶12 Eyre also argues the district court erred in denying his
motion for a mistrial. “We review a trial court’s ruling on a
motion for a mistrial for abuse of discretion . . . .” State v.
Murphy, 2019 UT App 64, ¶ 15, 441 P.3d 787.

ANALYSIS

I. Jury Instruction

¶13 Eyre argues Trial Counsel was ineffective for failing to
object to a jury instruction (Instruction 40) that misstated the
mens rea requirement for accomplice liability. To succeed on his
ineffective assistance of counsel claim, Eyre must show “(1) that
counsel’s performance was so deficient as to fall below an
objective standard of reasonableness and (2) that but for
counsel’s performance there is a reasonable probability that the
outcome of the trial would have been different.” State v. Lane,
2019 UT App 86, ¶ 31 (quotation simplified). “To prevail on the
first prong of the test, a defendant must identify specific acts or
omissions demonstrating that counsel’s representation failed to
meet an objective standard of reasonableness.” Id. (quotation
simplified). Eyre fails to meet the first prong in this case.

¶14 “To evaluate whether trial counsel performed deficiently
in failing to object to the jury instructions, we must first consider
whether those instructions were legally correct.” State v. Liti,
2015 UT App 186, ¶ 12, 355 P.3d 1078. Accomplice liability
attaches to “[e]very person, acting with the mental state required
for the commission of an offense who directly commits the
offense, who solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which

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 State v. Eyre

constitutes an offense.” Utah Code Ann. § 76-2-202 (LexisNexis
2017).

¶15 Accomplice liability requires a defendant to act with the
mental state necessary to commit the offense, which in this case
is aggravated robbery. A person commits robbery when “the
person unlawfully and intentionally takes or attempts to take
personal property in the possession of another from his person.”
Id. § 76-6-301(1)(a). “A person commits aggravated robbery if in
the course of committing robbery he: (a) uses or threatens to use
a dangerous weapon . . . (b) causes serious bodily injury . . . or
(c) takes or attempts to take an operable motor vehicle.” Id. § 76-
6-302(1). In this case, the State had the burden of showing both
that Eyre intended the aggravated robbery to take place and that
he solicited, requested, commanded, encouraged, or
intentionally aided Passenger in committing aggravated robbery.

¶16 The disputed portion of Instruction 40 states that the jury
could find Eyre guilty of aggravated robbery under the theory of
accomplice liability if it found beyond a reasonable doubt that
“(1) [Eyre] intentionally, (2) solicited, requested, commanded,
encouraged, or intentionally aided another to commit the
offense.” Eyre argues this instruction is incomplete because it
did not inform the jury that it must also find that Eyre had the
intent that the aggravated robbery be committed as required by
State v. Jeffs, 2010 UT 49, 243 P.3d 1250.

¶17 Although it is true that Instruction 40 would have been
clearer if it had included this directive, other jury instructions
clarified the mens rea requirement. 4 Jury instruction 41

4. We note that while Utah’s model jury instructions (MUJI) “are
merely advisory and do not necessarily reflect correct statements
of Utah law,” C.R. England v. Swift Transp. Co., 2019 UT 8, ¶ 34
n.59, 437 P.3d 343 (quotation simplified), they are “a useful
starting point for drafting an appropriate instruction,” State v.
Sellers, 2011 UT App 38, ¶ 22 n.7, 248 P.3d 70. In this case, the
(continued…)

20180016-CA 6 2019 UT App 162
 State v. Eyre

(Instruction 41) instructed the jury that it needed to find that
Eyre intended for Passenger to steal the Challenger. In fact,
Instruction 41 stated three separate times that the jury could find
Eyre guilty only if it found beyond a reasonable doubt that he
had the mental state required to commit aggravated robbery.
Instruction 41 provided:

Prior knowledge that a crime is about to be
committed or is being committed does not make a
person an accomplice, and thereby does not subject
them to criminal prosecution unless that person has
the mental state required to commit the crime and he
solicits, requests, commands, encourages, or
intentionally aids in the perpetration of the crime.
Further, his mere presence at the crime scene does
not in itself subject him to criminal prosecution for
any crime, unless you find beyond a reasonable doubt
he possessed the mental state required to commit the
crime and he acted in such a manner that he
solicited, requested, commanded, encouraged, or
intentionally aided in the perpetration of the crime.
If, on the other hand, you have a reasonable doubt as to
whether the defendant possessed the mental state
required to commit the crime or whether he solicited,

(…continued)
parties deviated from MUJI, which correctly states that the
defendant must have “the mental state required to commit the
charged offense” in addition to having “intentionally,
knowingly, or recklessly solicited, requested, commanded or
encouraged another person to commit the charged offense” or
“intentionally aided another person to commit the charged
offense.” Model Utah Jury Instructions 2d CR403B (Advisory
Committee on the Model Utah Criminal Jury Instructions 2018),
https://www.utcourts.gov/resources/muji/ [https://perma.cc/J8Y
T-BZ8E].

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 State v. Eyre

requested, commanded, encouraged, or
intentionally aided in the perpetration of the
crime(s), you must find him not guilty of the
charge.

(Emphasis added.)

¶18 Jury instruction 39 also informed the jury that it must find
that Eyre acted “with the mental state required for the
commission of the offense.” Eyre argues that these instructions
are insufficient because the State told the jury to focus on
Instruction 40 during closing arguments. We do not find this
argument persuasive. While we do not know which instructions
the jury ultimately chose to focus on, the court instructed the
jury that “[t]here will be many instructions. All are equally
important. Don’t pick out one and ignore the rest. Think about
each instruction in the context of all the others.” Thus, “[w]e
review jury instructions in their entirety to determine whether
the instructions, taken as a whole, fairly instructed the jury about
the applicable law.” Liti, 2015 UT App 186, ¶ 12.

¶19 Eyre maintains that the jury would be unable to glean
from the phrase “possessed the mental state required to commit
the crime” that Eyre needed to act with intent to cause
aggravated robbery. We are not persuaded. Eyre was charged
with one crime in this case, aggravated robbery, and jury
instruction 35 detailed the elements of the crime, including that
Eyre needed to have “unlawfully and intentionally take[n] or
attempted to take personal property in the possession of another
. . . with the purpose or intent to deprive the person permanently
or temporarily of the personal property.” Reading this
instruction together with the instructions that used relevant
statutory language on accomplice liability, which requires that
Eyre “act[] with the mental state required for the commission of
[the] offense,” Utah Code Ann. § 76-2-202, the jury instructions
as a whole adequately explained the mens rea requirement for
accomplice liability. See State v. Clark, 2014 UT App 56, ¶¶ 54–55,
322 P.3d 761 (holding that the jury was properly instructed on

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 State v. Eyre

accomplice liability for aggravated robbery when the instruction
was “substantively identical to the accomplice liability statute”
and contained the elements for the underlying crime of
aggravated robbery, including the required mens rea); State v.
Augustine, 2013 UT App 61, ¶ 10, 298 P.3d 693 (same).

¶20 It is not deficient performance for counsel to agree to jury
instructions that accurately and adequately inform the jury of
the relevant law. See State v. Lee, 2014 UT App 4, ¶ 23, 318 P.3d
1164 (“[E]ven if one or more of the instructions, standing alone,
are not as full or accurate as they might have been, counsel is not
deficient in approving the instructions as long as the trial court’s
instructions constituted an correct statement of the law.”
(quotation simplified)).

¶21 We conclude that the instructions as a whole adequately
instructed the jury on accomplice liability for aggravated
robbery, and therefore Eyre has not met his burden of showing
that Trial Counsel’s performance was deficient. See Clark, 2014
UT App 56, ¶¶ 54–55; Lee, 2014 UT App 4, ¶ 23.

II. Police Interview

¶22 Eyre raises two arguments with respect to the jury’s
access to Exhibit 11 during its deliberations. First, Eyre argues
that the district court erred in denying his motion for a mistrial.
Second, he argues Trial Counsel was ineffective for failing to
ensure Exhibit 11 stayed out of jury deliberations. We address
each argument in turn.

¶23 Eyre argues the district court erred when it denied his
motion for a mistrial after the jury was allowed to view Exhibit
11 during its deliberations. The State argues that Eyre failed to
preserve this issue for appeal because his motion for a mistrial
was untimely. We disagree with the State that the issue is
unpreserved but conclude that Eyre invited the error and is
therefore not entitled to a new trial on this ground.

20180016-CA 9 2019 UT App 162
 State v. Eyre

¶24 When a defendant or his counsel is responsible for the
error at trial, the defendant cannot argue on appeal that a
mistrial motion should have been granted. See State v. Barney,
681 P.2d 1230, 1231 (Utah 1984) (holding that when an “alleged
error [is] invited by [the] defendant’s own counsel” the
“defendant is in no position to request a mistrial”); see also State
v. Tafuna, 2012 UT App 243, ¶ 22, 286 P.3d 340 (holding that the
defendant’s “counsel invited any error in allowing a potentially
tainted juror to serve when counsel affirmatively declined to
object after becoming aware of [the issue]” and “[t]his decision
constituted a waiver of the issue by defense counsel”).

¶25 In this case, Trial Counsel invited any alleged error by
stipulating to a blanket admission of all exhibits, including
Exhibit 11. Trial Counsel further invited any error by working
with the State to gather the exhibits to send with the jury into the
deliberation room, and by failing to object when the jury asked
for a computer to view the video exhibits. The mistake in
allowing the jury access to Exhibit 11 rests with Trial Counsel,
who acknowledged to the court that he “messed up.”

¶26 This is not to say a defendant is without a remedy if his
counsel invites an error at trial. The defendant can argue his
counsel rendered ineffective assistance. But in this case, Eyre’s
ineffective assistance of counsel claim also fails.

¶27 As discussed above, to succeed on his ineffective
assistance of counsel claim, Eyre must show “(1) that counsel’s
performance was so deficient as to fall below an objective
standard of reasonableness and (2) that but for counsel’s
performance there is a reasonable probability that the outcome
of the trial would have been different.” Lane, 2019 UT App 86,
¶ 31 (quotation simplified). Eyre fails to meet the first prong in
this case.

¶28 It was not deficient performance for Trial Counsel to
stipulate to the admission of Exhibit 11. “The failure of counsel
to make objections which would be futile if raised does not
constitute ineffective assistance.” State v. Malaga, 2006 UT App

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 State v. Eyre

103, ¶ 10, 132 P.3d 703 (quotation simplified). Here, where
Exhibit 11 was plainly admissible as a statement of a party
opponent, Utah R. Evid. 801(d)(2), any objection would have
been futile.

¶29 Further, it was not deficient performance for Trial
Counsel to not object to Exhibit 11 entering the jury room, given
that jurors are generally permitted to review exhibits during
deliberations. Rule 17(k) of the Utah Rules of Criminal
Procedure provides that during deliberations, “the jury may take
with them the instructions of the court and all exhibits which
have been received as evidence, except exhibits that should not,
in the opinion of the court, be in the possession of the jury, such
as exhibits of unusual size, weapons or contraband.”

¶30 Although this rule “permits the jury to take most exhibits
into the deliberations . . . exhibits which are testimonial in nature
should not be given to the jury during its deliberations.” State v.
Cruz, 2016 UT App 234, ¶ 35, 387 P.3d 618 (quotation simplified).
Eyre argues that his out-of-court statements are the type of
“testimonial” evidence that should not go back to the jury room
and that Trial Counsel performed deficiently by failing to object
on the basis.

¶31 But Utah law has only extended this principle to recorded
or transcribed testimony that substitutes a witness’s live
testimony. See State v. Carter, 888 P.2d 629, 642 (Utah 1995)
(holding that a transcript of a prior trial and sentencing
proceeding is admissible in a subsequent proceeding but should
not enter jury deliberations), superseded by statute as stated in
Archuleta v. Galetka, 2011 UT 73, 267 P.3d 232; State v. Solomon, 87
P.2d 807, 811 (Utah 1939) (holding that the trial court erred in
sending a transcript used to impeach a witness into jury
deliberations); Cruz, 2016 UT App 234, ¶ 38 (holding that while
CJC interviews of child victims are admissible evidence, they
should not be sent back with the jury during deliberations). Utah
appellate courts have not treated recordings of defendants’
police interviews as “testimonial in nature” for purposes of
excluding them from the jury room.

20180016-CA 11 2019 UT App 162
 State v. Eyre

¶32 And although we do not decide today whether a
defendant’s interview with police is subject to the same
testimonial evidence exception articulated above, we note that
several jurisdictions allow juries to have access to these recorded
interviews. See Rael v. People, 2017 CO 67, ¶ 26, 395 P.3d 772
(explaining that “[c]ourts have long treated jury access to
transcripts and recordings of a defendant’s own out-of-court
statements differently from jury access to transcripts and
recordings of other witnesses’ out-of-court statements”);
Flonnory v. State, 893 A.2d 507, 523–27 (Del. 2006) (holding that
tape- or video-recorded statements admitted under a statute
allowing for admission of a “voluntary out-of-court statement of
a witness” “should not be admitted into evidence as separate
trial exhibits that go with the jury into the jury room during
deliberations,” but explaining that this rule applies only to
“statements of witnesses other than the criminal defendant” and
“does not apply to written or recorded confessions or
incriminating statements”); Lucas v. State, 34 So. 3d 195, 196 (Fla.
Dist. Ct. App. 2010) (holding that it was not an abuse of
discretion for the court to allow jury access to a videotape of the
defendant’s voluntary statement to police because it “was not a
deposition or out-of-court witness testimony” or “a substitute
for [the defendant’s] live testimony at trial”). We recognize that
trial counsel is not “categorically excused from failure to raise an
argument not supported by existing legal precedent.” State v.
Silva, 2019 UT 36, ¶ 19. But given the unfavorable state of the law
on this issue, trial counsel’s failure to object did not fall below an
objective standard of reasonableness. See State v. Love, 2014 UT
App 175, ¶ 7, 332 P.3d 383 (explaining that “counsel cannot be
faulted for failing to advance a novel legal theory which has
never been accepted by the pertinent courts” (quotation
simplified)).

¶33 In sum, Trial Counsel invited any alleged error by
affirmatively stipulating to a blanket admission of all exhibits
and by allowing all the evidence to go back into the jury room
and therefore waived any argument for a mistrial. But Trial
Counsel was not ineffective in failing to object to the

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 State v. Eyre

admissibility of Exhibit 11 because such an objection would have
been futile. Trial Counsel also did not perform deficiently by
failing to ensure Exhibit 11 stayed out of jury deliberations given
the lack of legal support for such a position.

CONCLUSION

¶34 The jury instructions were sufficient and correctly
articulated the appropriate mens rea requirement for accomplice
liability. Further, Trial Counsel waived any argument for a
mistrial by inviting the alleged errors, and in any event he did
not render ineffective assistance in failing to object to Exhibit 11
being received into evidence or sent to the jury room during
deliberations.

20180016-CA 13 2019 UT App 162