2019 UT App 85
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOSEPH MICHAEL SIMPSON,
Appellant.
Opinion
No. 20160835-CA
Filed May 16, 2019
Fourth District Court, Heber Department
The Honorable Lynn W. Davis
No. 131500240
Colleen K. Coebergh, Attorney for Appellant
Sean D. Reyes and Aaron Murphy, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES GREGORY K. ORME and DAVID N. MORTENSEN
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Joseph Michael Simpson was convicted of aggravated
murder and sentenced to life in prison without the possibility of
parole. He appeals his conviction alleging that he received
constitutionally ineffective assistance of counsel because his trial
counsel failed to move to suppress Simpson’s police interviews,
which were arguably taken in violation of the Fifth Amendment
to the United States Constitution, and because his trial counsel
failed to present any evidence in mitigation at sentencing. We
affirm.
State v. Simpson
BACKGROUND 1
¶2 Early in the morning on December 16, 1995, two farmers
discovered a body on the banks of the Provo River. The body
was that of a seventeen-year-old female (Victim). Victim’s body
was naked and bloodied, with a large hole in the back of her
skull. Several bloodied rocks were found around Victim’s body.
A deputy with the Wasatch County Sheriff’s Office was among
the first members of law enforcement to arrive at the crime
scene.
¶3 The doctor who performed Victim’s autopsy testified that
the cause of death was “craniocerebral injuries” or “blunt force
injuries” to the head. The doctor collected fingernail clippings,
various fluids from Victim’s body, blood swabs, and vaginal
swabs. The doctor also photographed what appeared to be a
bloody fingerprint on Victim’s wrist.
¶4 An image of Victim’s tattoo was released to the media,
and Victim was identified by an individual alleging to be
Victim’s boyfriend. This individual revealed that Victim had
recently relocated from out of state and was a sex worker, and
that this individual also acted as Victim’s “pimp.” Police
eventually excluded this individual as a suspect. Police
identified sixteen possible suspects, but each one was eventually
excluded. After extensive investigation, the case went cold.
¶5 In 2008, more than ten years later, advancements in DNA
testing allowed the Wasatch County Sheriff’s Office to
reexamine cold cases. The bloodied rocks found at the crime
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d
346 (quotation simplified).
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State v. Simpson
scene were sent to a private forensics laboratory for testing.
DNA from at least two males was identified—a major DNA
profile and a minor DNA profile. Victim’s vaginal swabs were
sent to the State Crime Laboratory for DNA testing. This testing
identified major and minor DNA profiles for two different males
with the minor profile being insufficient for comparison. Further
testing of the major profile resulted in a complete DNA profile
from the semen on the vaginal swab that matched the major
DNA profile found on the rocks. The DNA was run through a
national database and matched a known profile for Joseph
Michael Simpson. An investigation uncovered that Simpson, a
Florida resident, was living in Utah at the time of the murder. It
was also discovered that Simpson had previously been convicted
of murder and was on parole for that crime at the time Victim
was killed. Two officers from Wasatch County traveled to
Florida, observed Simpson smoking a cigarette outside of his
place of employment, and retrieved the cigarette butt for testing.
The test revealed that the DNA on Simpson’s cigarette matched
Simpson’s DNA on record.
¶6 The next month, the two officers interviewed Simpson
twice in Florida, video recording both interviews. The first video
shows that the officers advised Simpson of his Miranda rights,
but the record is silent as to whether the officers Mirandized
Simpson at the outset of the second interview. During the course
of the interviews, the police learned that at the time of Victim’s
murder, Simpson was employed with an airport shuttle service
and that he would deliver customers to Park City, Midway, and
Sundance, Utah. Simpson admitted that when he lived in Utah,
he would engage sex workers once or twice a week and that he
would use the company shuttle to pick up those workers. And
while he was adamant that he did not recognize Victim, he
stated that it was possible that he could have picked Victim up
as a sex worker. When asked how his DNA ended up on the
rocks that were likely used to murder Victim, Simpson claimed
he had no idea and could not explain it. Simpson then said, “I’m
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going to stop talking because I don’t know what’s going on
here.” The officers continued questioning Simpson, and again he
stated, “I want to stop talking because I have no idea what’s
going on . . . . I want to stop talking right now.” The officers
persisted in their questioning and then later asked Simpson if he
had any questions, to which Simpson responded, “I’m not
asking anybody. I said this is stopping now because I don’t
know what’s going on.” Simpson was later arrested and charged
with aggravated murder. A subsequent cheek swab of Simpson
confirmed that Simpson’s DNA matched the DNA found in
Victim’s vagina and on the bloodied rocks.
¶7 At trial, the jury heard testimony from three DNA
experts. These experts testified about how DNA is collected from
crime scenes and how the samples were processed in this case.
The expert testimony included an explanation of how the results
of the vaginal swabs revealed DNA from two males—a major
and minor profile. The major profile matched Simpson, and the
minor profile was insufficient for comparison. Twenty-one
nanograms of DNA that matched Simpson’s profile were found
on a rock near Victim’s body. Accordingly to the experts, the
chances that another individual has the same profile as Simpson,
who is Caucasian, are “one in 4.6 million for Caucasians, one in
58.2 million for African Americans, and one in 30.2 million for
Hispanics.”
¶8 To counter the State’s DNA expert testimony, Simpson’s
counsel argued a DNA transfer theory: it could have been
Simpson’s DNA found in Victim’s vagina, but Simpson’s DNA
was transferred from Victim’s vagina to the rocks by the person
who actually murdered Victim. Simpson’s expert witness
explained that “it would be possible for someone to put their
fingers into the vaginal vault of the victim and then touch the
rocks at the scene of the crime, thus depositing Mr. Simpson’s
DNA onto the rocks, even if he had not been present at the
scene.” Alternatively, it was “hypothesized that the unknown
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State v. Simpson
male contributor of DNA inside the victim’s vagina could have
inserted his penis into the victim’s vagina, having Mr. Simpson’s
DNA transferred to his penis, and then if he touched his penis
and then the rocks, transfer both of their DNA to the rocks.”
Simpson’s expert did acknowledge that with each transfer of
DNA, it would be expected that a progressively smaller amount
would be transmitted with each subsequent transfer. The expert
testified that finding twenty-one nanograms of DNA on the rock
“is much higher than [one] would expect to see from a
secondary transfer.” When asked if the DNA transfer theory was
possible in this case, the expert responded, “Yes, it’s possible.”
When asked if it was likely, the expert stated, “I wouldn’t say
likely, but it is possible.”
¶9 Also at trial, two jailhouse informants testified that
Simpson admitted to each of them that he committed the
murder. The first informant testified that Simpson said, “I got
away with it this long. What would make them open the case
now? Why now after all this time?” The first informant also
testified that Simpson took a ring “from [Victim] and gave it to
his girlfriend or his wife.” The second informant testified that
Simpson “would always complain about [the] finding [of] his
DNA on a rock by [Victim]” and that Simpson told him that he
never confessed to the first informant. In response, the second
informant asked Simpson, “Why don’t you be quiet about it?
You did it anyways, didn’t you?” Simpson replied, “Yeah, but I
didn’t tell [the first informant]. He must have been looking
through my paperwork when I wasn’t in my cell.”
¶10 The jury found Simpson guilty of murder. The jury was
then charged with determining whether Simpson committed
aggravated murder, and was presented with a single witness
who testified to and authenticated Simpson’s prior judgment
and commitment for murder. At this point, the jury learned only
the fact of Simpson’s prior murder conviction, not its details. The
jury returned a verdict of aggravated murder.
20160835-CA 5 2019 UT App 85
State v. Simpson
¶11 At the sentencing phase of trial, the jury was charged with
determining whether Simpson should serve life with or without
the possibility of parole. In making this decision, the jury was
instructed to consider the following factors: (1) the nature and
circumstances of the crime; (2) Simpson’s character, background,
history, and mental and physical condition; (3) Victim and the
impact of the crime on Victim’s family and community; and (4)
any other facts in aggravation or mitigation. The jury was
informed that in order for something “[t]o be considered
mitigating, a circumstance or factor need not justify or excuse the
crime, but merely reduce the defendant’s moral culpability or
blameworthiness.” The jury was also instructed to consider
mitigating factors that may relate to the crime itself or Simpson’s
background or personal circumstances.
¶12 After speaking with his counsel about whether he might
testify or exercise his right of allocution, Simpson elected to
make a statement in allocution. 2 Both Simpson’s counsel and the
State waived opening statements and elected to move straight to
the evidentiary stage of the proceeding. The State presented
evidence of Simpson’s 1982 juvenile conviction for lewdness, for
which he was diagnosed and treated for a sexual dysfunction.
For the first time, the jury heard the details of Simpson’s prior
murder conviction. The State told the jury that a woman
Simpson was dating expressed intentions of dating another man,
and Simpson went to that man’s home and stabbed him several
times in the hip, hands, arms, shoulders, neck, head, and back.
Simpson left the knife in the man’s back and the victim died
2. Black’s Law Dictionary defines “allocution” as “[a]n unsworn
statement from a convicted defendant to the sentencing judge or
jury in which the defendant can ask for mercy, explain his or her
conduct, apologize for the crime, or say anything else in an effort
to lessen the impending sentence.” Allocution, Black's Law
Dictionary (10th ed. 2014).
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State v. Simpson
shortly after emergency workers arrived. The jury also heard
evidence that Simpson had been convicted of driving under the
influence and possession of drug paraphernalia. Additionally,
the State presented evidence that while Simpson was
incarcerated in the Wasatch County Jail, he got into a fight and
was charged with assault on a prisoner.
¶13 Simpson’s counsel waived the right to present any
argument in mitigation. During its closing argument, the State
reiterated much of the evidence the jury had previously heard
and how it related to the jury instructions. Simpson’s counsel
discussed some of the jury instructions, argued that individuals
change as they age and that sentencing is not only about
retribution and deterrence, but also about society’s interest in
rehabilitating criminals. Simpson then gave his statement in
allocution to the jury with the goal of seeking sympathy,
leniency, and mercy. Simpson spoke about his family and the
sports he played in high school, and he noted that he “had a
great childhood.” He then told the jury that he moved to Florida
to escape a bad situation involving an ex-girlfriend who was
involved in drugs. While living in Florida, Simpson explained
that he obtained a Commercial Driver's License, adopted a pet,
and remained trouble-free for fifteen years. He also told the jury
about his health problems, including diabetes and high blood
pressure. Simpson concluded by saying, “I do wish you guys
would hopefully give me another chance, and that’s life with
parole.” By a decision of eleven out of twelve jurors, the jury
determined that Simpson should be sentenced to life in prison
without the possibility of parole. Simpson appeals.
ISSUES AND STANDARDS OF REVIEW
¶14 Simpson raises two claims of ineffective assistance of
counsel on appeal. He claims his counsel was ineffective in
(1) failing to move to suppress his statements to law
enforcement, and (2) failing to present any evidence in
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State v. Simpson
mitigation at sentencing. 3 “A claim of ineffective assistance of
counsel raised for the first time on appeal presents a question of
law . . . .” State v. Mohamud, 2017 UT 23, ¶ 10, 395 P.3d 133
(quotation simplified).
ANALYSIS
I
¶15 The Sixth Amendment to the United States Constitution
guarantees that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to have the Assistance of Counsel for his
3. The State notes that part of Simpson’s mitigation argument is
a stand-alone claim that the Eighth Amendment to the United
States Constitution requires a court to “engage in a colloquy” in
a non-capital proceeding like this one to ensure that a defendant
“knowingly and intelligently waiv[ed] the right to have
mitigation evidence put on in his defense.” This issue is
unpreserved and is therefore reviewed for plain error. See State
v. Irwin, 924 P.2d 5, 7 (Utah Ct. App. 1996). “Utah courts have
repeatedly held that a trial court’s error is not plain where there
is no settled appellate law to guide the trial court.” State v. Ross,
951 P.2d 236, 239 (Utah Ct. App. 1997). There is no settled law
from either the United States Supreme Court or a Utah appellate
court that requires a trial court to engage in a colloquy with a
non-capital defendant to determine whether that defendant
knowingly and intelligently waives the right to allocute in
mitigation at sentencing. Simpson acknowledges that a decision
in his favor on this issue would require this court to recognize a
new Eighth Amendment right. Therefore, we are not persuaded
that the trial court committed plain error when it did not
undertake a colloquy similar to that required for a death-
sentence defendant, and we therefore decline to further address
this issue. See Irwin, 924 P.2d at 7.
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defence.” U.S. Const. amend. VI. This amendment “ensure[s]
that a defendant has the assistance necessary to justify reliance
on the outcome of the proceeding.” Strickland v. Washington, 466
U.S. 668, 691–92 (1984). “[T]he right to counsel is the right to the
effective assistance of counsel.” McMann v. Richardson, 397 U.S.
759, 771 n.14 (1970). Therefore, a defendant who does not receive
effective assistance of counsel has a Sixth Amendment claim. See
id. at 771.
¶16 In order to succeed on a claim of ineffective assistance of
counsel, an appellant must show that: (1) counsel’s performance
was deficient; and (2) counsel’s deficient performance was
prejudicial. Strickland, 466 U.S. at 687; State v. Litherland, 2000 UT
76, ¶ 19, 12 P.3d 92. If an appellant fails to prove either element,
the claim necessarily fails. See Strickland, 466 U.S. at 687. As it can
be “all too easy for a court, examining counsel’s defense after it
has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable,” “[j]udicial scrutiny of
counsel’s performance must be highly deferential.” Id. at 689. As
a result, “[s]urmounting Strickland’s high bar is never an easy
task.” Padilla v. Kentucky, 559 U.S. 356, 371 (2010).
¶17 To establish the deficient performance prong, Simpson
must show that “counsel’s conduct ‘fell below an objective
standard of reasonableness’ under prevailing professional
norms.” Lafferty v. State, 2007 UT 73, ¶ 12, 175 P.3d 530 (quoting
Strickland, 466 U.S. at 688). In so doing, Simpson must “rebut the
strong presumption that under the circumstances, the challenged
action might be considered sound trial strategy.” State v. Bond,
2015 UT 88, ¶ 62, 361 P.3d 104 (quotation simplified). We afford
attorneys “wide latitude” in developing a defense strategy
because “even the best criminal defense attorneys would not
defend a particular client in the same way.” State v. Hull, 2017
UT App 233, ¶ 17, 414 P.3d 526 (quotation simplified). However,
counsel’s strategy must be “reasonable considering all the
circumstances.” Strickland, 466 U.S. at 688. To prove deficient
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State v. Simpson
performance, Simpson must persuade this court that “there was
no conceivable tactical basis for counsel’s actions.” State v. Clark,
2004 UT 25, ¶ 6, 89 P.3d 162 (quotation simplified). “We will
conclude that counsel’s performance was deficient only if it can
be said that no objectively competent attorney would have
adopted the complained-of strategy.” Hull, 2017 UT App 233,
¶ 17.
¶18 In this case, Simpson argues that his trial counsel
was ineffective for not seeking to suppress his two separate
video-recorded statements made to law enforcement. As
evidenced by the first recorded interview, Simpson indicated
five separate times that he did not want to speak to the
officers. The officers continued to question him in spite of
his declarations. The officers also brought Simpson back in
for questioning a second time. Simpson argues that, by
his statements that he did not want to speak during the
two interviews, he “unequivocally invoked his Fifth
Amendment right not to speak to [the] officers.” Therefore,
any statements he made after he had declined to speak “were
the product of a violation of his right against compelled self-
incrimination.”
¶19 The two interviews provided the police officers with
information that Simpson patronized sex workers; that he was
employed with a shuttle service and he used the shuttle to pick
up those sex workers; that he knew the route to Midway, Utah,
including the area where Victim’s body was found; and that he
was familiar with the area where Victim was last seen. Simpson
argues that this “information, combined with the State’s
evidence that the victim was a sex worker, essentially told the
State’s whole case.” He further asserts that these statements,
allegedly taken in violation of the Fifth Amendment, “took the
skeleton of the State’s case, and gave it flesh, organs, and skin.”
And Simpson concludes that for counsel not to move to suppress
the statements he made in the videos “constitutes deficient
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State v. Simpson
performance” and “cannot be viewed in any other way than
prejudicial.”
¶20 In this appeal, we are not reviewing the denial of a
motion to suppress; rather, we are reviewing whether counsel
was justified in not filing a suppression motion. While a claim of
ineffective assistance of counsel “necessarily requires the court
to look at the substantive issue the defendant argues his counsel
should have raised, and whether the substantive issue had any
merit, the substantive issue is only viewed through the lens of
counsel’s performance.” State v. Johnson, 2017 UT 76, ¶ 22, 416
P.3d 443. “The mere allegation of ineffective assistance is not
enough alone to revive the substantive claim.” Archuleta v.
Galetka, 2011 UT 73, ¶ 32, 267 P.3d 232.
¶21 The United States Supreme Court has held that “the
failure to file a suppression motion does not constitute per se
ineffective assistance of counsel.” Kimmelman v. Morrison, 477
U.S. 365, 384 (1986). This is because there can be strategic reasons
for counsel not to file such a motion. See id. at 385. But a lack of
strategy, or an unreasonable strategy, can demonstrate counsel’s
deficient performance if that performance is “contrary to
prevailing professional norms.” Id. Therefore, we must
determine whether Simpson’s trial counsel may have had
reasonable strategic considerations for not moving to suppress
the statements he made to law enforcement.
¶22 A decision from an Illinois appellate court is particularly
instructive on whether there can be reasonable strategic
considerations for not moving to suppress a defendant’s
video-recorded statements to law enforcement. In People v. Jones,
862 N.E.2d 1159 (Ill. App. Ct. 2007), a defendant appealed his
first degree murder conviction contending that “his counsel was
ineffective for failing to file a motion to suppress a videotaped
confession in which defendant invoked his right to remain
silent.” Id. at 1161. The defendant argued “his videotaped
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State v. Simpson
statement was inadmissible because the assistant state’s attorney
failed to honor his invocation of his right to remain silent and
continued to question him after the invocation.” Id. at 1163. The
court agreed that the defendant invoked his right to silence, but
since the court was “not reviewing the denial of a motion to
suppress,” the issue was “whether defense counsel was
ineffective for failing to file the motion.” Id. The court
determined that there was “a valid strategic reason to allow the
State to introduce the videotaped statement.” Id. At trial, the
defense counsel’s closing argument used “details contained in
defendant’s videotaped confession.” Id. Additionally, the court
stated, “[a]bsent the introduction of the videotape, counsel
would have had virtually no evidence to argue [the defendant’s
defense].” Id. Ultimately, the court held that the defendant did
“not overcome the strong presumption that his counsel’s failure
to file a motion to suppress was the result of trial strategy.” Id.
¶23 In this case, the State argues that “Simpson has not . . .
overcome the presumption that it was sound trial strategy to let
the jury hear his police interviews.” We agree. As the State notes,
“[t]he decision to rely on the police interviews formed a core
part of the entire defense strategy.” At trial, Simpson’s counsel
did not seriously challenge that the DNA found on Victim and
found on the likely murder weapon belonged to Simpson.
Instead, counsel argued a DNA transfer theory. Since two
different male DNA profiles were found inside Victim’s vagina
and on the likely murder weapon, Simpson offered expert
testimony explaining that “it would be possible for someone to
put their fingers into the vaginal vault of the victim and then
touch the rocks at the scene of the crime, thus depositing Mr.
Simpson’s DNA onto the rocks, even if he had not been present
at the scene.” Alternatively, it was “hypothesized that the
unknown male contributor of DNA inside the victim’s vagina
could have inserted his penis into the victim’s vagina, having
Mr. Simpson’s DNA transferred to his penis, and then if he
touched his penis and then the rocks, transfer both of their DNA
20160835-CA 12 2019 UT App 85
State v. Simpson
to the rocks.” This theory was dependent on Simpson’s
statements that he had engaged sex workers while living in Utah
and may have had sex with Victim. Because Simpson did not
testify at trial, this defense theory could be presented to the jury
only through the introduction of Simpson’s statements. As the
State argues, “without evidence that Simpson frequented [sex
workers] when he lived in Utah in 1995, [defense] counsel would
have had no basis beyond rank speculation to argue the transfer
DNA theory.”
¶24 Additionally, several other strategic reasons exist for
counsel’s decision not to seek suppression of Simpson’s
statements. In the videos, Simpson denied several times that he
murdered Victim. In closing argument, trial counsel referred the
jury to the videos to evaluate Simpson’s credibility. Counsel told
the jury, “You saw [Simpson]’s statement when the officers went
to Florida and interviewed him. Do you remember his
demeanor, what he was like?” Counsel otherwise would not
have been able to introduce Simpson’s denial to the jury, with
the jury also being unable to evaluate his demeanor, except by
putting Simpson on the stand. If Simpson were to have testified
at trial, the prosecution could have cross-examined Simpson
about his solicitation of sex workers, his employment with the
shuttle service, and his knowledge of the area where Victim was
found; he also risked the State using his prior murder conviction
for impeachment purposes.
¶25 Without Simpson’s statements to the police, the facts
before the jury were that a young woman was found murdered.
DNA from two males was found present in Victim’s vagina and
on the rocks that were likely used to murder her. There was a
greater amount of Simpson’s DNA on both the murder weapon
and in Victim’s vagina. There were also two separate jailhouse
informants who testified that Simpson confessed to the murder.
Given these circumstances, counsel’s strategy to use Simpson’s
statements to police at trial, rather than seek to suppress them,
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State v. Simpson
was reasonable. We cannot say that “no objectively competent
attorney would have adopted” this strategy. State v. Hull, 2017
UT App 233, ¶ 17, 414 P.3d 526. Whenever there “is a legitimate
exercise of professional judgment in the choice of trial strategy,
the fact that it did not produce the expected result does not
constitute ineffectiveness of counsel.” Parsons v. Barnes, 871 P.2d
516, 524 (Utah 1994) (quotation simplified). We conclude that
Simpson’s counsel did not perform deficiently in not seeking to
suppress Simpson’s statements to police and therefore Simpson
did not receive ineffective assistance of counsel.
II
¶26 Simpson also contends that his trial counsel was
constitutionally ineffective for failing to present the jury with
any evidence that would mitigate his culpability at sentencing.
In order to succeed on a claim of ineffective assistance of
counsel, an appellant must show that: (1) counsel’s performance
was deficient; and (2) counsel’s deficient performance was
prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984);
State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92. To establish that
deficient performance prejudiced the defense, an appellant
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Lafferty v. State, 2007 UT 73, ¶ 13,
175 P.3d 530 (quoting Strickland, 466 U.S. at 694). “Reasonable
probability is defined as probability sufficient to undermine
confidence in the outcome.” Id. (quotation simplified). “Proof of
ineffective assistance of counsel must be a demonstrable reality
and not a speculative matter.” State v. Hards, 2015 UT App 42,
¶ 19, 345 P.3d 769 (quotation simplified).
¶27 In order to show that his trial counsel was constitutionally
ineffective for failing to locate and introduce additional evidence
in mitigation, Simpson must not only show “that counsel
failed to seek mitigating evidence, but also that some actually
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State v. Simpson
existed to be found.” See State v. Taylor, 947 P.2d 681, 687 (Utah
1997). The absence of evidence cannot overcome Strickland’s
“strong presumption that counsel’s conduct fell within the wide
range of reasonable professional assistance.” Burt v. Titlow, 571
U.S. 12, 23 (2013) (quotation simplified). To prove prejudice, it is
not enough that a defendant merely “identif[ies] unexplored
avenues of investigation,” the defendant must also “demonstrate
[to] a reasonable probability that further investigation would
have yielded sufficient information to alter the outcome of [the]
trial.” State v. Price, 909 P.2d 256, 265 (Utah Ct. App. 1995)
(quotation simplified).
¶28 Simpson argues that he was prejudiced when his
counsel did not put on any evidence in mitigation. Specifically,
Simpson argues that counsel should have investigated and
presented possible mitigating evidence that Simpson had high
blood pressure and diabetes, that Simpson had lived an
“offense-free” life for the past fifteen years, that he was
employed and has family support, that he was convicted of a
juvenile offense for lewdness for which he participated in
therapy for sexual dysfunction, and that he patronized
prostitutes in the mid-1990s. Simpson argues that this “social
history[,] which was part of the record[,] demands” a
“reasonable investigation for purposes of mitigation.” Such an
investigation, Simpson argues, might have provided more detail
about the root cause of his sexual deviancy. Simpson also argues
that these facts, combined with details on how age and general
ill health had affected him, could easily have suggested
some element of mercy to the jury, and presenting this
information was an absolute minimum in mitigation. Because
the State was not seeking the death penalty and the jury was
deciding between life without parole and life with the possibility
of parole, Simpson argues that there was “nothing to lose in
presenting some kind of mitigation evidence to attempt to sway
the jury toward life with the possibility of parole.” Simpson
concludes that because counsel did not put on any evidence in
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mitigation, the court should presume prejudice. We are not
persuaded.
¶29 “[O]ur inquiry turns on whether a reasonable and
impartial decisionmaker would have found the mitigating
evidence omitted at sentencing significant and substantial
enough to alter the outcome of [Simpson’s] sentence.” See State v.
Wright, 2004 UT App 102, ¶ 20, 90 P.3d 644. All the evidence
Simpson argues should have been presented in mitigation was
known to the jury when it made its sentencing decision. Most of
this evidence was presented to the jury by Simpson himself. In
Simpson’s statement to the jury, he told the jury about his
upbringing, his pets, the sports he played, and that overall he
had had a great childhood. He told the jury about his health
problems, including high blood pressure and diabetes. He also
stated that he had lived trouble-free for over fifteen years,
maintained employment, and had family support. There was
also testimony that Simpson frequented sex workers and that he
was convicted of a juvenile offense in 1982 for lewdness “for
which he was diagnosed and treated for sexual dysfunction.”
¶30 Simpson contends that his “own plea to allow him some
hope of parole based on his perception of what the jury should
know cannot be viewed as a substitute for effective advocacy.”
While it is generally not advisable, and may be ineffective, for
counsel to offer no evidence in mitigation, to succeed on an
ineffective assistance of counsel claim, Simpson must not only
show that his counsel’s performance was deficient by not
presenting mitigating evidence, but that this complained of
inaction prejudiced him. There is no reason to suggest that
counsel, rather than Simpson, offering the evidence that was
known about Simpson would have substantially affected the
jury’s decision. At the sentencing phase, the jury learned that
Simpson was already on parole for murder when he murdered
Victim. It is unlikely that the jury would have been swayed had
counsel presented evidence that Simpson had high blood
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pressure and diabetes, and that since his second murder he had
lived a trouble-free life—at least until he was arrested for that
murder—maintaining employment and family support. There
can be “no prejudice when the new mitigating evidence would
barely have altered the sentencing profile presented to the
decisionmaker.” Sears v. Upton, 561 U.S. 945, 954 (2010) (per
curiam) (quotation simplified).
¶31 Simpson’s trial counsel may have had strategic reasons
for not focusing on Simpson’s lewdness crime, therapy, and
patronization of sex workers. While Simpson argues that there
was “nothing to lose,” a standard that has not been adopted for
evaluating Strickland claims, Knowles v. Mirzayance, 556 U.S. 111,
122 (2009), there was a potential risk in annoying the jury if
counsel suggested those facts somehow diminished Simpson’s
culpability in the murder of a young female victim. As the State
argues, “counsel could have recognized that any suggestion that
patronizing [sex workers] is a sign of a troubling social history
that should mitigate Simpson’s responsibility for killing [such a
victim] might offend and inflame the jury.” Not focusing on
Simpson’s past of patronizing sex workers, lewdness crime, and
therapy was “reasonable considering all the circumstances,” see
Strickland v. Washington, 466 U.S. 668, 688 (1984), and therefore
we are not persuaded that “there was no conceivable tactical
basis for counsel’s actions,” State v. Clark, 2004 UT 25, ¶ 6, 89
P.3d 162 (quotation simplified).
¶32 Simpson also contends that counsel should have
performed more investigation to uncover further mitigation
evidence, but he has not identified any further potentially
mitigating evidence that this investigation might have
uncovered. See State v. Taylor, 947 P.2d 681, 687 (Utah 1997).
There is also no evidence in the record as to what investigation
counsel may have done. Merely showing an absence of evidence
cannot overcome Strickland’s strong presumption that counsel
acted reasonably. See Burt v. Titlow, 571 U.S. 12, 23 (2013).
20160835-CA 17 2019 UT App 85
State v. Simpson
Therefore, Simpson has not met his burden to show that there
was “a reasonable probability that further investigation would
have yielded sufficient information to alter the outcome of his
trial.” State v. Price, 909 P.2d 256, 265 (Utah Ct. App. 1995)
(quotation simplified). “[W]e are not convinced that [counsel’s]
failure to offer all possible mitigating evidence undermined the
reliability of the verdict.” See State v. Arguelles, 2003 UT 1, ¶ 85,
63 P.3d 731. Accordingly, Simpson has not established that his
counsel’s failure to offer evidence in mitigation prejudiced him,
and therefore does not rise to the level of ineffective assistance of
counsel.
CONCLUSION
¶33 We conclude that Simpson received effective assistance of
counsel. Using the statements Simpson made to law enforcement
in his defense was sound trial strategy. Further, Simpson has not
established that he was prejudiced by counsel’s failure to search
for further evidence of mitigation or offer additional evidence in
mitigation. Accordingly, we affirm Simpson’s conviction and
sentence.
20160835-CA 18 2019 UT App 85