State v. Wilson

2020 UT App 30

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JACQUAN DAVID WILSON,
Appellant.

Opinion
No. 20171011-CA
Filed February 27, 2020

Second District Court, Farmington Department
The Honorable Robert J. Dale
No. 151702212

Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Marian Decker, Attorneys
for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER
and JILL M. POHLMAN concurred.

HARRIS, Judge:

¶1 In an attempt to prevent his friend (Friend) from showing
his pregnant girlfriend (Girlfriend) photographic proof of his
infidelity, Jacquan David Wilson stabbed Friend six times with a
serrated kitchen knife. A jury convicted Wilson of attempted
murder, and Wilson appeals that conviction, claiming that his
trial attorney rendered ineffective assistance. We affirm.
 State v. Wilson

BACKGROUND 1

¶2 Wilson and Friend got to know each other at work,
and the two of them soon became fast friends. They
bonded “immediately,” and began spending time “talk[ing],
text[ing], work[ing] out, hit[ting] the mall, [and] chas[ing]
women.” At the time, Wilson did not have a permanent
residence, but instead spent time “bouncing” between different
places; at one point, for about a month, Wilson moved into
and lived at Friend’s home with Friend and his parents. After
living at Friend’s house, Wilson moved on to other
accommodations, which sometimes included living with
Girlfriend. Throughout their friendship, and even while he was
living with Girlfriend, Wilson would periodically send Friend
photographs of himself having sex with “different women,”
apparently in an effort to show that “his game was stronger than
[Friend’s].”

¶3 While Wilson was living at Friend’s house, Friend lent
Wilson some of his clothes, including a pair of True Religion
jeans (the Jeans). Friend had purchased the Jeans upon receiving
a promotion at work, and to him, they were not just a pair of
pants, but were a symbolic “validation” of his professional
success. Much to Friend’s displeasure, however, when Wilson
moved out of Friend’s house, he took Friend’s Jeans with him. In
the weeks that followed, Friend repeatedly asked Wilson to
return the Jeans, but the two were apparently unable to
effectuate the transfer.

¶4 A couple of months after he moved out, Wilson returned
to Friend’s house for a visit, and told Friend that he had gotten
Girlfriend pregnant, which he was excited about because he

1. “We recite the facts in the light most favorable to the verdict,
presenting conflicting evidence only as necessary to understand
the issues on appeal.” State v. Salgado, 2018 UT App 139, ¶ 2 n.1,
427 P.3d 1228.

20171011-CA 2 2020 UT App 30
 State v. Wilson

would now have somewhere more permanent “to lay his head
for nine months.” Meanwhile, Wilson was also seeing another
woman (Girlfriend Two), who Friend knew was waiting for
Wilson in the car. Unimpressed with Wilson’s behavior, Friend
told Wilson he was “irresponsible” and called him “an ass,” and
then reiterated his request for Wilson to return the Jeans. In
response, Wilson deflected, stating simply that he would return
the Jeans later.

¶5 Over the course of the next few days, Friend made
several attempts to retrieve the Jeans. Because Wilson had
blocked Friend on Facebook after their arguments about
Wilson’s attitude toward women, Friend began communicating
through Girlfriend about the return of the Jeans, and at one point
Friend even visited Girlfriend’s apartment to discuss the matter
with her. Wilson even began to suspect some romantic
involvement between Friend and Girlfriend, although no
evidence of any such relationship is in the record. During the
course of his communication with Girlfriend, Friend told her
that he knew she was pregnant, and cautioned her that Wilson
“may not be the person [Girlfriend] think[s] he is.” He also
stated that, if he didn’t get his Jeans back soon, he would be
“[h]otter than hell’s flames.” Eventually, Girlfriend told Friend
that she and Wilson would swing by Friend’s house to drop off
the Jeans.

¶6 That evening, Wilson came to Friend’s front door,
knocked, and—when Friend opened the door—handed Friend a
plastic bag containing the Jeans. The two began arguing, and
Friend became angry with Wilson, and told Wilson that he was
going to show Girlfriend—who was waiting in the car—all of the
pictures Wilson had sent him of Wilson’s sexual exploits. Wilson
responded by saying that Friend “wasn’t gonna do nothing,”
and tried to stop Friend from walking to the car. Friend then
“kind of like pushed [Wilson] out of the way,” not “hard,” “just
enough to like move him,” and proceeded toward the car where
Girlfriend was waiting. Friend then began to open the car door,
calling Girlfriend’s name.

20171011-CA 3 2020 UT App 30
 State v. Wilson

¶7 Suddenly, Friend felt what he thought was a punch in his
left shoulder, followed by a number of other quick blows to his
back, upper arm, and face. Although Friend did not immediately
realize it, Wilson was stabbing him with a serrated kitchen knife
whose blade was between six and ten inches long. When all was
said and done, Wilson had stabbed Friend six times, with the last
blow essentially “fillet[ing] [Friend’s] cheek off like [he] was
some fish.” Girlfriend heard Friend yell, “He stabbed me,” as
Wilson jumped in the car and commanded Girlfriend to drive
away.

¶8 After Wilson and Girlfriend drove off, Friend lay bleeding
in the street, calling for help, until his father heard him and
drove him to the hospital. Friend had lost a “lot of blood,”
perhaps as much as “half of his blood volume,” and one of his
lungs had collapsed, putting him at risk for heart failure. Doctors
also discovered that one of the stab wounds had resulted in a
broken rib, an injury that requires “a lot of force” and is usually
seen in “high velocity injuries” like car accidents. In addition,
another of the stab wounds severed the cephalic vein in Friend’s
right arm, and the stab to Friend’s face ran from his right eye to
his right earlobe and was deep enough to create an open “flap”
of skin and muscle.

¶9 As she drove Wilson away from the scene of the stabbing,
Girlfriend was so frightened that she hit a curb as she was
making a U-turn, and popped one of the car’s tires. Wilson
became “upset, like [Girlfriend] had done it on purpose,” and
Girlfriend was “crying and hyperventilating” as she drove away.
She ultimately stopped the car on the side of the freeway
because the car could not go any further on the popped tire.
Wilson called another friend (Driver) to come pick him up and,
later that evening, he “adamant[ly]” told Girlfriend not to “talk[]
to the police.”

¶10 In part due to Wilson’s admonition, Girlfriend waited
until the next day to call police and give a statement, and she
later admitted that her initial statement was incomplete. For

20171011-CA 4 2020 UT App 30
 State v. Wilson

example, Girlfriend did not tell police that she had seen Wilson
with a knife, and that, when Wilson jumped in her car after the
stabbing, she recognized the knife he was holding as one of her
roommate’s serrated kitchen knives. Girlfriend testified at trial
that she regretted giving an incomplete statement to police, but
that she had been scared to say anything against Wilson at the
time because she was pregnant with his child, still in love with
him, and afraid to anger him. Although her statement was
incomplete, she affirmed at trial that the statement, as far as it
went, had been accurate, including her statement that Friend
“jumped in the car with me as if [he] was going to hurt me.”
Indeed, she testified that, when she saw Friend run toward her
car and open the door, she was “freaking out” because she did
not know what Friend was going to do, and thought he might be
“reaching for [her], like he was going to hurt [her].” But in
response to the State’s questioning, she acknowledged that
Friend did not actually threaten her or do anything inconsistent
with simply wanting to get in the car to speak to her.

¶11 After he walked away from Girlfriend’s car on the night
of the stabbing, Wilson called Driver to ask for a ride. Driver had
given Wilson rides before, so he didn’t think Wilson’s call was
“terribly out of line,” but when he arrived to pick Wilson up, he
found Wilson “upset and disheveled,” carrying a knife wrapped
in a piece of cloth, and demanding a ride from Davis County to
Salt Lake County. Driver first drove Wilson to pick up some
clothing, and then headed to Wilson’s desired destination,
stopping on the way to buy bandages and ointment to treat a cut
on Wilson’s hand. Wilson told Driver about the stabbing,
explaining that he had stabbed Friend because Friend had
threatened Girlfriend. Eventually, Driver took Wilson to a
church parking lot, where Wilson threw the knife in a dumpster,
before dropping him off.

¶12 The next day, Wilson texted Girlfriend Two and asked her
to come pick him up. Girlfriend Two, who was unaware of the
stabbing, took Wilson to her apartment, where the two of them
spent time with her kids. Then, Wilson texted Driver, who

20171011-CA 5 2020 UT App 30
 State v. Wilson

picked him up from Girlfriend Two’s apartment and
unsuccessfully tried to convince Wilson to turn himself in. While
Wilson was out, Girlfriend Two saw on Twitter that the local
police had issued a felony warrant for Wilson’s arrest, and asked
Wilson about it when he returned. Wilson explained to
Girlfriend Two that, yes, he was wanted by the police, but that
Friend had pushed him and that he had acted in self-defense.

¶13 The next day was Thanksgiving, and Wilson spent it with
Girlfriend Two, who testified that Wilson was “paranoid” that
he would be arrested. Growing increasingly frightened and
worried, Girlfriend Two texted “the crime stoppers tip line” to
report that Wilson was with her, and police soon arrived at her
apartment. Girlfriend Two was so afraid Wilson would see that
she had been texting the police that she threw her phone behind
the refrigerator. The police began knocking on the door, shining
flashlights through windows, and asking to be let in, but for over
three hours Wilson refused to open the door and would not let
anyone else do so either. Finally, a police hostage negotiator
called Wilson’s cell phone and, with Girlfriend Two’s help,
convinced Wilson to let the police in. Police then arrested Wilson
and took him to the station for questioning.

¶14 During his interview, Wilson intimated that he personally
felt threatened by Friend and that he may have acted in self-
defense, although he admitted that Friend had not directly
threatened him and that he did not see Friend with a weapon. At
no point in his police interview did Wilson mention attempting
to protect Girlfriend (rather than himself) from Friend.

¶15 While Wilson awaited trial in jail, he continued to
correspond with both Girlfriend and Girlfriend Two. In addition,
Wilson discussed the stabbing in a number of recorded jailhouse
phone calls with yet another woman (Girlfriend Three).
Recordings of certain edited portions of these calls (Audio Clips)
were played for the jury at trial, with the text of the
conversations sometimes (but not always) displayed on a screen.
In the Audio Clips, Wilson can be heard acknowledging to

20171011-CA 6 2020 UT App 30
 State v. Wilson

Girlfriend Three that the police were “recording these
conversations” and that the conversations were “going to be
used against [him].” And yet Wilson engaged in lengthy
discussions in which he described to Girlfriend Three his version
of the events that led to the stabbing, and specifically made the
following statements:

• “I gotta think of a good reason as to why my
life was in danger” “because, obviously, my
story, me telling the truth doesn’t sound
believable.”

• “I eliminate” people who “f*** with me” “real
quick,” and that “I am not [Friend]” because “I
don’t call the cops” and instead “handle shit on
my own.”

• “I really put n*****s down, y’all. I really—I
really have the capacity to kill somebody, you
understand? And think nothing of it.”

• “[I]f [Friend] tries something, I’m going to put
this n****r in the hospital, I don’t care.”

• In a possible reference to Friend attempting to
tell Girlfriend about his infidelities: “So I’m
already, in my mind, like, okay, well, don’t
think you about to, like, f*** me up because I
ain’t going to let that happen.”

• In reference to going to Friend’s house to drop
off the Jeans: “I’m hoping that I can just drop
off the shit because I know—I already know
how I am. If he touch me, I’m going to try to kill
him.”

• “If somebody stabbed me, I’d kill them. That’s
it. Serious. All [Friend] did was push me and I

20171011-CA 7 2020 UT App 30
 State v. Wilson

stabbed him up. . . . All he did was push me
and hit me and he got stabbed the f*** up.”

• “I do feel as though I used a little too much
force.”

• “[Friend] got handled, dog, straight East Coast
style. He thought I was one of these Utah
motherf***ers that I was going to tell the cops,
or get bitch slapped or some shit like that, and
he got stabbed the f*** up. What do—what do
you want me to say?”

At no point in any of the Audio Clips did Wilson state or imply
that he acted in order to protect Girlfriend or their unborn child
from Friend’s perceived aggression. In between these
statements, Wilson can be heard on the Audio Clips using racial
slurs and repeated foul language, and using demeaning and
derogatory language about and toward Girlfriend Three, who
was on the other end of the telephone.

¶16 Soon after arresting him, the State charged Wilson with
attempted murder, a first-degree felony, and obstruction of
justice, a second-degree felony. 2 Eventually, the case proceeded
to a jury trial, where Wilson’s attorney advanced a defense-of-
others theory: that is, he framed the stabbing of Friend as an act
Wilson took to protect Girlfriend and their unborn baby from
Friend’s threatening behavior, and argued that Wilson had never
intended to murder Friend. In his opening statement, counsel
addressed the Audio Clips that he knew would soon be
presented to the jury, and expressed his “hope” that the jury
would understand that these conversations were merely
Wilson’s attempt “to puff himself up” because he was in jail, and
stated that they depict him saying “things that are absolutely not

2. The State asserted that Wilson had obstructed justice by
throwing the knife in the church dumpster.

20171011-CA 8 2020 UT App 30
 State v. Wilson

true in order to make himself seem tougher and better and
bigger than what he really is.”

¶17 After opening statements, defense counsel learned that
the State was not, after all, going to call Girlfriend Three as a
witness at trial. Upon receiving this information, counsel
objected to the State’s use of the Audio Clips, reasoning that,
without Girlfriend Three’s testimony to put the conversations in
context, the Audio Clips would be unfairly prejudicial to Wilson
because of how poorly they reflected on his character. Counsel
lodged no other objection to the Audio Clips. The trial court did
not immediately make a ruling on counsel’s objection, and in the
meantime, Wilson’s counsel located Girlfriend Three and
secured her commitment to testify for the defense. At that point,
knowing that Girlfriend Three would in fact testify, counsel
withdrew his objection to the Audio Clips.

¶18 In its case-in-chief, the State called twelve witnesses,
including Friend, Girlfriend, Girlfriend Two, Friend’s father,
Driver, and various law enforcement and medical witnesses. The
Defense called just one witness, Girlfriend Three, who testified
to her impressions of the Audio Clips. Wilson did not testify.

¶19 During the course of the trial, many of the witnesses
testified using raw, coarse, and profane language, including use
of the f-word and several variants of the n-word. Friend, for
example, explained to the jury the difference between the use of
the terms “n****r” and “n***a,” and testified that those words
had particular meaning to himself and Wilson, who are both
black men. Additionally, Friend testified that, during the verbal
altercation leading up to the stabbing, both he and Wilson used
the same type of coarse and profane language that the jury heard
Wilson use in the Audio Clips.

¶20 At defense counsel’s request, the trial court instructed the
jury on both perfect and imperfect defense of others, and gave
the jury a verdict form with four options on the attempted
murder count: (1) not guilty; (2) guilty of attempted murder; (3)

20171011-CA 9 2020 UT App 30
 State v. Wilson

guilty of aggravated assault, a lesser-included offense; and (4)
guilty of attempted manslaughter, a verdict that would be
appropriate if the jury agreed that Wilson had acted in imperfect
self-defense. Counsel ultimately decided not to request a
separate instruction on the lesser-included offense of attempted
manslaughter, a verdict that might have been appropriate had
Wilson argued, for instance, that he had acted with the outrage
of a jealous lover. Counsel ultimately chose to mount a defense-
of-others defense, rather than a jealous-lover defense, and
reasoned (as the verdict form showed) that the jury would
already have the option of convicting Wilson of attempted
manslaughter, if it wished, through the imperfect defense-of-
others part of counsel’s defense.

¶21 After hearing the evidence and deliberating, the jury
found Wilson guilty of both attempted murder (with a
dangerous-weapon enhancement) and obstruction of justice, and
the trial court sentenced Wilson to a prison term of four-years-
to-life for attempted murder, and a consecutive term of one-to-
fifteen years for obstruction of justice.

ISSUE AND STANDARD OF REVIEW

¶22 Wilson now appeals his attempted murder conviction, 3
arguing that his trial attorney provided constitutionally
ineffective assistance. 4 “When a claim of ineffective assistance of

3. At oral argument before this court, Wilson clarified that he is
not appealing his conviction for obstruction of justice.

4. During oral argument, Wilson also requested that we
reconsider our denial of a motion he had filed pursuant to rule
23B of the Utah Rules of Appellate Procedure. But this request
was made for the first time at oral argument, without previous
notice to the State; that is, Wilson did not file a written motion
seeking reconsideration of our previous decision, and did not
(continued…)

20171011-CA 10 2020 UT App 30
 State v. Wilson

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 (quotation simplified).

ANALYSIS

¶23 Wilson argues that his trial counsel provided
ineffective assistance in three respects: first, by choosing to

(…continued)
make any such request in his appellate briefs. Utah appellate
courts “do not address issues raised for the first time during oral
argument.” See Porenta v. Porenta, 2017 UT 78, ¶ 33, 416 P.3d 487.
Accordingly, we decline to consider Wilson’s request to
reconsider our denial of his rule 23B motion.
Moreover, even if we were inclined to revisit our denial of
Wilson’s rule 23B motion, we would not reverse our decision
because we remain convinced of its correctness. We denied
Wilson’s rule 23B motion because the evidence he sought to add
to the record—a transcript of his interview with police—was
already contained in the record. Wilson has not demonstrated
that this conclusion was erroneous. We also note that, in his rule
23B motion, Wilson intimated that his Miranda rights may have
been violated in that interview; our denial of his rule 23B motion
was not a commentary on the merits of his potential Miranda
claim. However, perhaps under the impression that our denial of
his rule 23B motion was an indication that we did not think
much of his Miranda claim, Wilson did not raise a Miranda
argument in his appellate brief, even though he still could have.
A denial of a rule 23B motion is not necessarily—and was not
here—a rejection of the legal argument underlying the motion.
Given that Wilson makes no Miranda argument in his brief, we
may not consider that argument under the guise of
reconsidering the denial of his rule 23B motion.

20171011-CA 11 2020 UT App 30
 State v. Wilson

withdraw his objection (and not make another) to the
admission of the Audio Clips; second, by failing to deliver on a
“promise” made in opening statement that he would
demonstrate that the statements Wilson made in the Audio Clips
were untrue; and third, by failing to request a separate jury
instruction on attempted manslaughter as a lesser-included
offense.

¶24 In order to demonstrate that his trial attorney
rendered constitutionally ineffective assistance, Wilson must
make a two-part showing: (1) that counsel’s “performance was
deficient in that it fell below an objective standard of
reasonableness,” and (2) that counsel’s deficient performance
was “prejudicial.” See State v. Miller, 2012 UT App 172, ¶ 9, 281
P.3d 282 (quotation simplified). Wilson must satisfy both parts of
the test in order to show ineffective assistance. See Archuleta v.
Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232. Accordingly, we “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 v. Washington, 466
U.S. 668, 697 (1984).

¶25 Both parts of the test—deficient performance and
prejudice—require substantial showings. An attorney’s
performance is deficient if it falls “below an objective standard of
reasonable professional judgment,” State v. Sessions, 2014 UT 44,
¶ 17, 342 P.3d 738, and in order to make the necessary showing,
Wilson must demonstrate that his trial counsel acted in manner
that was “objectively unreasonable,” see Lee v. United States, 137
S. Ct. 1958, 1962 (2017); see also Sessions, 2014 UT 44, ¶¶ 21–29,
(discussing whether counsel’s actions were “objectively
unreasonable”). This is a difficult showing to make. Because
“[t]here are countless ways to provide effective assistance in any
given case,” and “[e]ven the best criminal defense attorneys
would not defend a particular client in the same way,” “a court
must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.”
Strickland, 466 U.S. at 689.

20171011-CA 12 2020 UT App 30
 State v. Wilson

¶26 In order to establish prejudice, Wilson must demonstrate
that “there is a reasonable probability that but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” See Miller, 2012 UT App 172, ¶ 9 (quotation
simplified). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Strickland, 466 U.S. at
694. In weighing whether the result of the proceeding may have
been different absent counsel’s deficient performance, a court
must “consider the totality of the evidence before the judge or
jury and then ask if the defendant has met the burden of
showing that the decision reached would reasonably likely have
been different absent the errors.” State v. Garcia, 2017 UT 53,
¶ 28, 424 P.3d 171 (quotation simplified). That is, to establish
prejudice, Wilson must show that the overall outcome of the
trial—the verdict itself—is reasonably likely to have been
different if his trial counsel had not performed deficiently.

A

¶27 Wilson’s first complaint about his trial counsel’s
performance centers around counsel’s failure to lodge and
maintain an objection to the admission of the Audio Clips.
Specifically, Wilson asserts that his attorney should have moved
for exclusion of the Audio Clips pursuant to rule 403 of the Utah
Rules of Evidence. But on this point, Wilson cannot establish that
his attorney rendered ineffective assistance.

¶28 To show that counsel’s failure to object constituted
deficient performance, Wilson must establish that counsel’s
conduct fell outside of the “wide range of reasonable
professional assistance.” Strickland v. Washington, 466 U.S. 668,
689 (1984). It is well-settled that failure to raise an objection that
would have almost certainly been overruled does not constitute
ineffective assistance. State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546
(“Failure to raise futile objections does not constitute ineffective
assistance of counsel.”). Had counsel lodged a timely rule 403
objection, the trial court would have been required to balance the
probative value of the Audio Clips against their potential for

20171011-CA 13 2020 UT App 30
 State v. Wilson

unfair prejudice, with the evidence being excluded only “if its
probative value is substantially outweighed by a danger” of
“unfair prejudice.” See Utah R. Evid. 403. And we think that
balance would have come out in favor of admission of at least a
substantial portion of the Audio Clips.

¶29 Wilson’s chief argument is that his attorney should have
objected to the admission of the Audio Clips in their entirety.
But at least certain portions of the Audio Clips—for instance, the
excerpts set forth above in our bullet-point list, supra ¶ 15—have
significant probative value, because they shed light on Wilson’s
state of mind at the time of the stabbing, and tend to
demonstrate that Wilson acted out of neither self-defense nor a
concern for Girlfriend’s well-being. Indeed, even Wilson admits
that portions of the Audio Clips “were in direct conflict with
[Wilson’s] primary defense theory that the stabbing occurred in
the defense of others,” and that they “directly undermined
[Wilson’s] primary defense theory at trial.” There is no question,
then, that portions of the Audio Clips were highly probative.

¶30 Wilson argues, however, that, because these portions of
the Audio Clips were so harmful to his case, he must have
suffered prejudice as a result of their admission. To the extent
that “prejudice” is defined simply as making a difference to the
outcome, Wilson is undoubtedly correct, because all probative
evidence, to some degree, tends to affect the outcome. That’s
why it’s considered probative. But if that is the only manner in
which a piece of evidence can be considered “prejudicial,” its
prejudice is by definition not unfair. See State v. Maurer, 770 P.2d
981, 984 (Utah 1989) (stating that “all effective evidence is
prejudicial in the sense of being damaging to the party against
whom it is offered,” and that “prejudice which calls for exclusion
is given a more specialized meaning” (quotations simplified));
see also United States v. Adames, 56 F.3d 737, 742 (7th Cir. 1995)
(stating that “all probative evidence is prejudicial to the party
against whom it is introduced,” but noting that such prejudice is
not necessarily “unfair”); State v. Fenley, 646 P.2d 441, 445 (Idaho
Ct. App. 1982) (“Probative evidence is always prejudicial to

20171011-CA 14 2020 UT App 30
 State v. Wilson

someone. Unless the prejudice is unfair, it affords no basis to
exclude the evidence.”). Thus, the core statements contained in
the Audio Clips were not unfairly prejudicial merely because
they helped the State’s case and hindered Wilson’s.

¶31 Wilson also points out that some of the statements
contained in the Audio Clips—including some of the core
probative statements—demonstrate that he used foul language
and racial slurs and had a poor attitude toward women, and
therefore show him in a bad light, and he argues that jurors,
after hearing him speak in these terms, might have determined
to convict him simply because they considered him a bad
person. Unlike the type of “prejudice” referred to in the
preceding paragraph, this sort of prejudice is precisely the kind
of thing with which rule 403 is properly concerned. As our
supreme court stated in Maurer, prejudice starts to become
“unfair” when it creates a “tendency to suggest decision on an
improper basis, commonly but not necessarily an emotional one,
such as bias, sympathy, hatred, contempt, retribution, or
horror.” See Maurer, 770 P.2d at 984 (quotation simplified). 5 But

5. Wilson relies heavily on our supreme court’s holding in State
v. Maurer, 770 P.2d 981 (Utah 1989). In that case, the trial court
allowed the State to introduce a letter the defendant had written
to the murder victim’s father, in which the defendant taunted
the father with statements like, “[y]ou might have prevented [the
murder]. I hope you feel guilt over it,” and “[i]t was a great
feeling to watch her die.” Id. at 982. On appeal, our supreme
court concluded that admission of the letter was erroneous
because the letter’s probative value was substantially
outweighed by the danger of unfair prejudice. Id. at 984. But that
case presents a situation quite different from the facts at hand:
the letter at issue in Maurer was both less probative and more
prejudicial than Wilson’s statements contained in the Audio
Clips. Unlike the Audio Clips, the Maurer letter did not speak
directly to the defendant’s state of mind at the time of the crime.
And the Maurer letter was much more incendiary and
(continued…)

20171011-CA 15 2020 UT App 30
 State v. Wilson

in this case, jurors had already heard other witnesses, including
Friend, testify using similar language, and were thereby already
aware of the ways in which some of the people involved in this
case often conversed with one another. Moreover, as we have
recently recognized, foul language has “lost much of [its] shock
value in contemporary culture.” See State v. Johnson, 2016 UT
App 223, ¶ 38, 387 P.3d 1048 (quotation simplified). We simply
do not think that the sort of language Wilson used in the Audio
Clips would have caused the jury to convict him for improper
emotional reasons. Stated another way, the probative value of
the most probative part of the Audio Clips, see supra ¶ 15, was
not substantially outweighed by the danger of unfair prejudice,
and any objection that Wilson’s attorney might have lodged to
exclude the Audio Clips in their entirety would have certainly
been overruled. At minimum, the court would have admitted
the relevant and most probative portions of the Audio Clips.
Accordingly, counsel did not perform deficiently by failing to
lodge a futile blanket objection. See Kelley, 2000 UT 41, ¶ 26.

¶32 And a more limited objection, even had it been granted,
would not have made a difference to the outcome of the trial.
Instead of lodging a blanket objection to the admission of any
portion of the jailhouse phone calls, Wilson’s attorney could
have asked the court to limit admission to only a few statements,
the ones with the highest probative value, including the ones
quoted above. While such a limited objection might well have
been sustained, it is not reasonably likely that elimination of

(…continued)
potentially prejudicial than the Audio Clips, and much more
likely to have led the jury to convict for improper reasons. See
State v. Alzaga, 2015 UT App 133, ¶ 51, 352 P.3d 107
(distinguishing Maurer for similar reasons, and stating that “the
core concern with the letter in Maurer was not so much the
letter’s language but what it revealed about the defendant’s
character: he wrote it to inflict additional emotional pain upon
the victim’s father, literally to add insult to injury”).

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 State v. Wilson

only the less-probative statements would have made a difference
to the outcome of the case, and we therefore conclude that
Wilson cannot have been prejudiced by his attorney’s failure to
lodge such an objection. The State’s evidence against Wilson was
strong. Wilson did not deny stabbing Friend, and both Friend
and Girlfriend testified that Friend did not threaten Girlfriend.
Even Wilson himself, when interviewed by the police, made no
statements indicating that he stabbed Friend to protect
Girlfriend. And under our present hypothetical, the jury would
also have heard those portions of the Audio Clips in which
Wilson admits that his story is not credible, that he was prepared
to “kill” Friend if he so much as “touch[ed]” him, and that he
used “too much force” on Friend, who merely pushed him.
In sum, we do not view it as reasonably likely that a paring-
down of the Audio Clips would have resulted in a different
outcome.

¶33 Accordingly, Wilson has not carried his burden of
demonstrating that his attorney rendered constitutionally
ineffective assistance by failing to raise a rule 403 objection to all
or part of the Audio Clips. Any such objection aimed at the
Audio Clips in their entirety would have been denied, and a
more limited objection, even if granted, would not have changed
the outcome.

B

¶34 Next, Wilson argues that his attorney provided ineffective
assistance when he “essentially promised” the jury, during
opening statements, that he would demonstrate that the
statements made in the Audio Clips were “absolutely not true,”
and then failed to deliver on that promise. This claim is infirm,
because Wilson misinterprets trial counsel’s statements, and fails
to demonstrate that counsel performed deficiently.

¶35 When the trial began, Wilson’s attorney was operating on
the assumption that the Audio Clips would be introduced to the
jury during the State’s case-in-chief, and he decided to address

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 State v. Wilson

the issue head-on during his opening statement. In that
statement, counsel expressed his hope that the jury would come
to understand the Audio Clips as a reflection of jailhouse
bravado, which he believed Wilson had adopted as a way to
“puff himself up.” In addition, counsel described Wilson as
saying things in the Audio Clips “that are absolutely not true in
order to make himself seem tougher and better and bigger than
what he really is.” On appeal, Wilson construes these statements
as a “promise” on the part of counsel to introduce evidence
debunking Wilson’s jailhouse statements, and concludes that
counsel performed deficiently by failing to do so.

¶36 We disagree. As an initial matter, Wilson overreads
counsel’s opening statement. By attempting to explain away the
Audio Clips, counsel was not making any sort of binding
“promise” to the jury that he would present any particular
evidence. Rather, we think counsel’s statement is best
understood as an attempt to convey to the jury his belief that the
man they were going to hear on the Audio Clips was not a fair or
complete depiction of who Wilson really was, and an attempt to
explain away, as best he could, some relatively damning
statements made by Wilson himself.

¶37 Moreover, and more substantively, we think counsel’s
actions during opening statement fall squarely within the
bounds of “sound trial strategy,” as Strickland allows, and
Wilson has not carried his burden of demonstrating that
counsel’s actions were unreasonable. See Strickland v. Washington,
466 U.S. 668, 689 (1984) (quotation simplified). A reasonable
attorney could—and here, did—anticipate that the Audio Clips
would reflect poorly on Wilson, and therefore could choose to
characterize them as mere puffery rather than as realistic
reflections of the situation.

¶38 Thus, Wilson has failed to demonstrate that his attorney
performed deficiently in the manner in which he discussed the
Audio Clips in his opening statement, and Wilson’s second claim
for ineffective assistance of counsel fails on this basis.

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 State v. Wilson

C

¶39 Finally, Wilson argues that trial counsel rendered
ineffective assistance by failing to request a separate and
additional instruction on attempted manslaughter as a lesser-
included offense. Under the circumstances, we disagree.

¶40 In this case, counsel decided to center Wilson’s defense
strategy around a defense-of-others theory: that Wilson had
stabbed Friend in an effort to protect Girlfriend and their unborn
child from Friend’s perceived aggression, and that Wilson never
intended to murder Friend. Counsel had other options—he
could have, for instance, also advanced a jealous-lover theory in
which Wilson stabbed Friend because he thought there was
something romantic going on between Friend and Girlfriend, or
he could have focused more on a self-defense theory given that
Friend pushed Wilson in the moments before the stabbing.

¶41 The choice of which primary defense theory to advance is
a strategic decision that will not often be second-guessed on
appeal. See State v. Pascual, 804 P.2d 553, 556 (Utah Ct. App.
1991) (stating that “any election between inconsistent defenses
was a legitimate exercise of trial strategy rather than ineffective
assistance of counsel”); State v. Wight, 765 P.2d 12, 15 (Utah Ct.
App. 1988) (stating that we “will not second-guess a trial
attorney’s legitimate use of judgment as to trial tactics or
strategy”). In this case, Wilson’s attorney had to choose which
defenses (among several less-than-optimal options) to advance,
and he elected to advance primarily a defense-of-others theory.
While the evidence in support of this theory was by no means
overwhelming, it was arguably better supported than a jealous-
lover theory or a self-defense theory. Indeed, the evidence
showed that Friend walked quickly toward the car in which
Girlfriend was waiting, and Girlfriend testified that she was
“freaking out” because she did not know what Friend was going
to do. The evidence supporting a “jealous lover” defense was
nothing more than speculation, and—as Wilson himself
recognized in the Audio Clips—the “self-defense” theory was

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 State v. Wilson

weak because Friend’s only act of physical aggression was a
light push. On the facts of this case, we cannot conclude that
counsel’s choice of defense was unreasonable.

¶42 And given counsel’s choice of defenses, his actions with
regard to jury instructions and the verdict form were entirely
appropriate. His chosen theory—defense of others—allowed him
to request and obtain jury instructions on both perfect and
imperfect self-defense, and allowed him to obtain an option on
the verdict form for both attempted manslaughter as well as
aggravated assault. 6 Wilson has not demonstrated that these
choices were unreasonable, and therefore has fallen short of
showing that his trial counsel performed deficiently. His third
claim for ineffective assistance of counsel fails on this basis.

CONCLUSION

¶43 Wilson’s trial counsel did not provide ineffective
assistance in any of the three respects Wilson argues on appeal.
Accordingly, we affirm.

6. On appeal, Wilson is critical of trial counsel for not affording
the jury a “third option—the choice of conviction of a lesser
offense rather than conviction of the greater or acquittal.” But
Wilson overlooks that the verdict form that counsel obtained
actually had four options: guilty, not guilty, guilty of aggravated
assault, and guilty of attempted manslaughter.

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