2020 UT App 25
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JEREMIAH RAY HART,
Appellant.
Opinion
No. 20180095-CA
Filed February 21, 2020
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 151905395
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES KATE APPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 Jeremiah Ray Hart and Erick Burwell concocted a plot to
pose as drug buyers and, instead of closing the transaction, to
rob the drug dealers of their inventory. But when they put their
plan into action, things went quickly and fatally awry, ending in
an exchange of gunshots, the death of one of the sellers (Victim),
and the conviction of Hart for several crimes, including
aggravated murder. Hart now appeals his convictions with four
claims of ineffective assistance of counsel. We affirm.
State v. Hart
BACKGROUND 1
The Attempted Robbery and Murder
¶2 Hart and Burwell 2 came up with a plan to pose as drug
buyers and then to steal drugs from unsuspecting sellers.
Through various intermediaries—who thought they were
facilitating a standard drug deal—Burwell found Victim and
Victim’s brother (Brother). Victim and Brother agreed to sell five
pounds of marijuana to Burwell and Hart.
¶3 Hart prepared for the heist. He borrowed a 9mm Glock
handgun from his cousin (Cousin), who loaded the thirty-one-
round extended magazine with a variety of hollow-point and
round-nose ammunition from different manufacturers.
¶4 Hart and Burwell put their plan into action. Hart showed
the Glock to Burwell and later went to a restaurant to wait for
Burwell to pick him up. Burwell first picked up Victim and
Brother, with Victim sitting in the front passenger seat and
Brother in the seat behind Burwell. They then picked up Hart—
the supposed buyer—who sat behind Victim with the Glock
concealed. Burwell drove a short distance and turned onto a
residential side street to park. As Burwell stopped, Hart pulled
out the Glock, pointed it at Brother, and announced, “It’s a
robbery. It’s a jack . . . everybody out of the car.” Brother froze,
later testifying, “I just put my hands up and just [sat] still.”
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (cleaned up).
2. Burwell admitted to his role in the events of this case and pled
guilty to manslaughter and robbery.
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State v. Hart
Victim, however, pulled out a gun of his own, and an exchange
of shots ensued.
¶5 Hart and Victim were each hit by a bullet and piled out of
the car. Burwell drove off, but unbeknownst to him, Brother was
still in the car. Burwell feigned surprise and ignorance of the
robbery plan and took Brother to Brother’s apartment, as
requested. Meanwhile, Victim collapsed in the gutter of the
street, slowly succumbing to his bullet wound. The bullet had
pierced his chest, fatally damaging vital organs, and exited near
his spine. Hart fled the scene, leaving behind the extended
magazine with the assorted ammunition, a 9mm casing, and a
trail of his own blood leading west for about two blocks. He then
called Cousin, who picked him up. Later that night, Cousin took
Hart to the hospital to have his gunshot wound treated.
The Investigation
¶6 Law enforcement officers arrived at the scene to
investigate. They found the evidence Hart left behind. The
officers also found a Taurus .45 caliber handgun used by Victim
and an expended .45 caliber bullet with Hart’s DNA on it.
Officers interviewed Cousin on three occasions, and Cousin’s
account of the events changed every time. In his initial
interview, Cousin said that he shot Victim but later admitted
that he didn’t shoot Victim, explaining that he said he did only
because he agreed to take the blame for Hart. Cousin also said
Hart told him that Hart shot someone. In his second interview,
Cousin retracted his claim about Hart saying he shot someone.
Then, in his third interview, Cousin admitted that indeed Hart
said he shot someone.
¶7 About a month later, officers arrested Hart. At that time,
Hart was in possession of a 9mm handgun, which was not a
Glock. A forensic firearms examiner (Gun Expert) later test-fired
the handgun to determine whether the impression made on the
casing would match that of the impression on the casing found
at the murder scene. It was not a match. Ultimately, the State
charged Hart with aggravated murder, obstruction of justice,
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State v. Hart
and possession of a dangerous weapon by a restricted person. A
preliminary hearing was held. At the hearing, the detective
managing the case (Case Manager) testified about Hart’s blood-
stain patterns—showing that Hart stood above Victim and
moved west away from the scene—and about other aspects of
the investigation.
The Rule 404(b) Issue
¶8 Before trial, the State provided notice that it intended to
offer other acts evidence under rule 404(b) of the Utah Rules of
Evidence. The evidence purported to show that Hart and
Burwell planned and attempted to carry out another robbery
fifty-four days before the one in which Victim was killed. In the
first attempted robbery, the targeted victims fought back. Hart
and Burwell fled the scene, and Hart left behind a beanie with
his DNA on it. The district court ruled that the evidence was
admissible. This court granted an interlocutory appeal on the
issue fourteen days before trial. Hart moved to stay the
proceedings at the district court pending the outcome of the
appeal. But the State agreed not to offer the 404(b) evidence, so
the trial could move forward. The appeal was therefore
dismissed.
The Trial
¶9 During a six-day jury trial, the State presented extensive
evidence, including a litany of exhibits and numerous witnesses.
Hart’s defense centered on challenging the adequacy of the
State’s investigation and undermining the credibility of the
State’s key witnesses against him, including Cousin and Case
Manager. Relevant to this appeal, the following events
transpired at trial.
Gun Expert’s Testimony
¶10 The State called Gun Expert to testify. Gun Expert
testified that he test-fired and “examined [the Taurus] and
another firearm that was submitted as well,” concluding that the
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State v. Hart
impression left on the 9mm casing was from a Glock
handgun, not from the Taurus or the other submitted
gun. Hart’s trial counsel then requested a bench conference
wherein counsel pointed out that the other gun was taken
from Hart when Hart was arrested. Because that gun had
no connection to the shooting of Victim, counsel objected to
any reference tying the gun to Hart. The district court and
the prosecutor agreed that any such reference would
be problematic, but the court noted that the jury had not
heard any evidence that “a gun [was] received from [Hart].” To
resolve counsel’s concern, the court proposed having the
prosecutor lead Gun Expert to testify that the other gun was
used for comparison purposes only and that it had no
connection to this case. Counsel agreed with this approach, and
the prosecutor proceeded:
Q. [W]hen we talk about two guns, one of those
guns was a comparison gun just available to you in
the lab; is that correct?
A. That’s correct.
Q. It is not affiliated with this case?
A. That’s correct.
Cousin’s Testimony
¶11 The State also called Cousin to testify. Cousin testified
that he loaded the different types of ammunition into the
extended magazine, loaned the Glock to Hart, picked up Hart
after the attempted robbery, noticed that the extended magazine
was missing from the Glock Hart brought to the car, and heard
Hart say he shot someone.
¶12 During cross-examination, Hart’s counsel asked about
each of Cousin’s three interviews with the officers. Cousin
tried to justify his shifting accounts by explaining that at first he
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State v. Hart
tried to take the blame for Hart, but later decided not to, saying,
“I was still trying to protect him. . . . [A]t that time they had
me in a cell with a person who was taking care of me.” Later,
as counsel was trying to highlight Cousin’s inconsistencies,
Cousin volunteered explicit information about Hart’s criminal
history, including a reference to parole and to being
incarcerated.
¶13 Then, Hart’s counsel elicited testimony from Cousin that
he and Hart shared a jail cell for about a year. Counsel further
questioned Cousin about whether he ever read through Hart’s
legal paperwork associated with this case that was in their cell.
Cousin denied looking through Hart’s legal papers. He also
denied talking to Hart about this case. But he conceded that he
had ample opportunity to do both. And he specifically admitted
that he had unimpeded access to Hart’s legal papers while Hart
was working out, taking a shower, visiting the doctor, or
attending court. Cousin also admitted on cross-examination that
for his willingness to testify he received a “pretty glowing letter”
from the State for his upcoming parole review.
¶14 Outside the presence of the jury, counsel went on record
stating that his focus on Hart’s incarceration was a strategic
choice: “[T]his was not some kind of mistake or issue like that, it
was a strategic decision the defense has made in consultation
with [Hart].” In closing argument, counsel emphasized Cousin’s
opportunity to talk with Hart about his case and read through
his paperwork. Counsel argued that Cousin likely crafted his
testimony to coincide with the State’s case to improve his
chances of parole.
Case Manager’s Testimony
¶15 The State also called Case Manager to testify, who offered
his opinion on the blood at the scene, among other things.
He testified that the pattern of blood indicated that Hart initially
moved from the east side of Victim, momentarily stood
over Victim, and finally fled the scene to the west. On cross-
examination, Hart’s counsel garnered several concessions.
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State v. Hart
Case Manager conceded that, even though all the stains weren’t
tested, there was abundant time to test all of them; that it was a
“pretty big assumption” that the eastern-most stain was Hart’s
blood; and that testing the stain would have foreclosed
speculation completely. A defense expert added his testimony
that the eastern-most stain would have been the most important
one to test. In closing, Hart’s counsel argued that the State’s
investigation was inadequate. Counsel pieced together the
blood-stain evidence by discussing the extended magazine,
which was farther east than any of the blood stains, arguing,
“[T]he reason that they want . . . Hart further this way is because
they can’t explain how that magazine ends . . . up 15 feet the
other way . . . [or] at least 10.”
The Jury’s Question
¶16 A DNA analyst testified that Hart’s DNA was on the
left sleeve of a jacket. But the analyst did not identify the
jacket as Hart’s due to her inability to lay foundation for
whose jacket she tested. The parties therefore stipulated that
the jacket was Hart’s, and the stipulation was read into
the record. Case Manager later identified the jacket as Hart’s
and confirmed that it was collected from the hospital Hart
visited to treat his gunshot wound. He further explained that
Hart’s DNA was found on one sleeve of the jacket. Brother also
testified that Hart was wearing the jacket the night of the
murder.
¶17 After both sides fully presented their cases, the district
court directed the jury to deliberate. During its deliberation, the
jury sought clarification on the testimony from the analyst
regarding the jacket, asking to whom the jacket belonged and
whose DNA was on it. The district court responded, “This issue
was the subject of a stipulation read into the record by counsel.
Please rely on your collective memory of the evidence
presented.” The jury ultimately found Hart guilty of aggravated
murder, obstructing justice, and possession of a dangerous
weapon by a restricted person. Hart appeals.
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State v. Hart
ISSUE AND STANDARD OF REVIEW
¶18 Hart raises four claims of ineffective assistance of
counsel. 3 Thus, the sole issue for us to decide is whether Hart’s
counsel rendered constitutionally ineffective assistance, as a
matter of law. State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (“An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” (cleaned up)).
ANALYSIS
¶19 To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that counsel’s performance was
objectively deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687–88 (1984); State v. Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064. “A
failure to prove either element defeats the claim.” State v. Ricks,
2018 UT App 183, ¶ 11, 436 P.3d 350 (cleaned up). Here, we
address only the deficient performance element of each of Hart’s
four claims.
¶20 To prove deficient performance, a “defendant must
overcome the strong presumption that his trial counsel rendered
3. Hart also contends that the cumulative effect of the claimed
errors requires us to reverse. Under the cumulative error
doctrine, “we will reverse a jury verdict or sentence only if the
cumulative effect of the several errors undermines our
confidence that a fair trial was had.” State v. Martinez-Castellanos,
2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). Because we
conclude that Hart’s trial counsel did not perform deficiently in
any of the ways Hart claims, there is no cumulative error here.
See State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (“If the
claims are found on appeal to not constitute error, or the errors
are found to be so minor as to result in no harm, the doctrine
will not be applied.” (cleaned up)).
20180095-CA 8 2020 UT App 25
State v. Hart
adequate assistance.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(cleaned up); see also Strickland, 466 U.S. at 689. Counsel’s
performance is not deficient when there is a conceivable strategic
basis for counsel’s actions. Clark, 2004 UT 25, ¶ 6. Further,
counsel’s performance is not deficient for declining to make a
motion, objection, or request that surely would have failed
before the district court. E.g., Menzies v. State, 2014 UT 40, ¶ 223,
344 P.3d 581 (“[C]ounsel was not ineffective in failing to
challenge the beyond reasonable doubt instruction because the
claim would have almost assuredly failed.”); State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does
not constitute ineffective assistance of counsel.”).
¶21 Here, Hart’s first three claims are that his counsel
should have requested a mistrial, and his last claim is that
his counsel should have objected to certain testimony as
not qualifying as expert testimony. Hart’s first and third
claims fail because his proposed request surely would have
been denied by the district court. And his second and
fourth claims fail because there was a conceivable strategic basis
for counsel’s actions. We further explain these conclusions
below.
I. Gun Expert’s Testimony
¶22 Hart first contends that his counsel should have moved
for a mistrial based on Gun Expert’s testimony. Gun Expert
testified that he test-fired and examined Victim’s gun “and
another firearm that was submitted as well” and concluded that
the impression left on the 9mm casing was from a Glock
handgun, but not from Victim’s handgun or the other submitted
gun. The other gun was the one found in Hart’s possession upon
his arrest. Hart posits that “the jury would have been
unnecessarily confused and would have believed the firearm
was” Hart’s and that his counsel was ineffective in failing to
request a mistrial when the State introduced evidence of the
other gun. We disagree. The facts simply do not support Hart’s
conclusion.
20180095-CA 9 2020 UT App 25
State v. Hart
¶23 A district court “should not grant a mistrial except where
the circumstances are such as to reasonably indicate that a fair
trial cannot be had and that a mistrial is necessary in order to
avoid injustice.” State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892
(cleaned up). A mistrial is not required where a potentially
“improper statement is not intentionally elicited, is made in
passing, and is relatively innocuous in light of all the testimony
presented.” State v. Allen, 2005 UT 11, ¶ 40, 108 P.3d 730; see also
State v. Butterfield, 2001 UT 59, ¶¶ 18, 47, 27 P.3d 1133 (holding
that the district court did not abuse its discretion in denying a
motion for mistrial after a detective made a vague and fleeting
remark that he obtained the defendant’s photograph from a jail).
¶24 Here, even if Hart’s counsel had moved for a mistrial, the
motion surely would have failed because nothing about Gun
Expert’s testimony made the trial unfair or made “a mistrial . . .
necessary in order to avoid injustice.” Maestas, 2012 UT 46, ¶ 325
(cleaned up). Gun Expert’s testimony about the other gun was
initially vague and innocuous because it in no way connected
the other gun to Hart. Indeed, Gun Expert referred to the other
handgun merely as “another firearm that was submitted as
well.” And after Hart’s counsel pointed out in a bench
conference that connecting the gun to Hart would be
problematic, the prosecutor led Gun Expert to specifically testify
that the other gun was used for “comparison purposes only” and
that it had no connection to this case. Thus, any possible
inference in the jurors’ minds up to that point that the gun was
connected to Hart was explicitly put to rest. Accordingly, a
mistrial motion would have been futile, and Hart’s counsel was
therefore not deficient in failing to move for a mistrial. See Kelley,
2000 UT 41, ¶ 26.
II. Cousin’s Testimony
¶25 Hart also contends that his counsel was ineffective for
failing to request a mistrial when Cousin testified that Hart was
previously in prison and was further ineffective for emphasizing
that fact. “Whether to move for a mistrial . . . is a strategic
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State v. Hart
decision that is generally left to the professional judgment of
counsel.” State v. Padilla, 2018 UT App 108, ¶ 27, 427 P.3d 542
(cleaned up).
¶26 Here, counsel had a clear strategic reason to acknowledge
Hart’s incarceration, which was to discredit Cousin’s testimony.
Counsel illustrated Cousin’s potential motive and opportunities
to fabricate his testimony: his motive being improvement of his
prospects of parole 4 and his opportunities being easy access to
Hart’s legal papers in their shared cell and innumerable
discussions with Hart. Counsel also went to the extent of
clarifying, on the record, that this “was a strategic decision the
defense . . . made in consultation with [Hart].” Thus, counsel did
not perform deficiently because he reasonably used his
professional judgment in deciding to use the evidence of Hart’s
incarceration and not to move for a mistrial. See id.; see also State
v. Bedell, 2014 UT 1, ¶¶ 21, 25, 322 P.3d 697 (holding that the
attorney’s performance was not deficient for discussing evidence
of previous investigations of the defendant’s alleged sexual
misconduct because counsel’s strategic basis was to undermine
the accuser’s credibility, arguing that she fabricated her story
only after she knew of the other accusations against the
defendant with “hopes . . . [of] favorable treatment in her own
criminal case”).
¶27 Additionally, given the pretrial wrangling over the
admission of evidence of Hart’s previous robbery attempt as a
prior act under rule 404(b), reasonable counsel would have
recognized that a mistrial would allow the State to seek to offer
the evidence thereof, resulting in its potential admission in any
subsequent trial. Regardless of the academic merits of the
interlocutory appeal, counsel objectively would have been facing
a decidedly uphill battle to reverse a discretionary evidentiary
4. In fact, Cousin admitted on cross-examination that for his
willingness to testify he received a “pretty glowing letter” from
the State for his upcoming parole review. See supra ¶ 13.
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State v. Hart
ruling—an uncertain outcome upon which he could not
reasonably rely. Put differently, if counsel moved for and
received a mistrial, he ran the risk of the 404(b) evidence’s
admission in a retrial. Not assuming that risk was reasonable
under the circumstances, particularly where counsel could use
the evidence surrounding Hart’s incarceration with Cousin to
Hart’s benefit. Therefore, counsel did not render deficient
assistance, and Hart’s ineffective assistance claim fails.
III. The Jury Question
¶28 Hart additionally contends that his counsel was
ineffective for failing to request a mistrial when the jury asked
for clarification on the jacket DNA evidence during
deliberations. We disagree. Hart does not and cannot show that
the jury’s confusion, if any after the court’s instruction, rose to
mistrial levels of unfairness or injustice. See Maestas, 2012 UT 46,
¶ 325. That the jacket was Hart’s was an insignificant piece of the
evidentiary picture supporting Hart’s guilt. It is hardly shocking
that Hart’s jacket had Hart’s DNA on it. And neither party
referred to the evidence of the jacket in closing argument. Thus,
even though the jury sought clarification about the evidence on
this issue, a mistrial motion would have been futile.
Accordingly, Hart’s counsel was not ineffective in failing to
move for a mistrial. See Kelley, 2000 UT 41, ¶ 26.
IV. Case Manager’s Testimony
¶29 Hart finally contends that his counsel was ineffective for
failing to object to a portion of Case Manager’s testimony. In
particular, Hart asserts that counsel should have objected, under
rule 702 of the Utah Rules of Evidence, and argued that Case
Manager was not qualified as an expert regarding blood
patterns. But just because counsel can make an objection does not
mean counsel must make an objection to avoid rendering
ineffective assistance. Legal objections are an inherently strategic
business. See State v. Gonzales, 2005 UT 72, ¶ 72, 125 P.3d 878
(holding that counsel was not ineffective when she withdrew an
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State v. Hart
objection and did not renew it because she may have chosen not
to “object for strategic reasons . . . such as not drawing attention
to th[e] unfortunate information”).
¶30 Here, although Hart’s counsel could have objected to
Case Manager’s testimony, counsel was not ineffective for not
doing so. He had at least two strategic bases for his decision.
First, counsel sought to use Case Manager’s testimony to
undermine the quality of the State’s investigation, as the
attorney did in State v. Bedell, 2014 UT 1, 322 P.3d 697. Bedell’s
counsel discussed arguably inadmissible evidence of previous
investigations into Bedell’s alleged sexual misconduct to
undermine the quality and thoroughness of the State’s
investigation. Id. ¶ 21. Our supreme court held that Bedell’s
ineffective assistance of counsel claim failed “because there was
a legitimate strategic decision for . . . Bedell’s counsel to use” the
evidence of the previous investigations. Id. ¶ 25; see also State v.
Morley, 2019 UT App 172, ¶ 33, 452 P.3d 529 (concluding that
counsel acted reasonably in emphasizing shortcomings in the
State’s investigation rather than seeking exclusion of potentially
objectionable evidence). Second, reasonable counsel could have
worried that an objection would have provided the State an
opportunity to lay foundation in front of the jury that would
simultaneously satisfy rule 702 and strengthen Case Manager’s
testimony in the eyes of the jury. Hart has not pointed us to
anything in the record that establishes that Case Manager was
not actually qualified to offer the opinion he did. In short,
because we conclude that there was a conceivable strategic basis
for counsel’s decision not to object to Case Manager’s testimony,
Hart’s counsel did not act deficiently in this regard.5
5. Citing United States v. Cronic, 466 U.S. 648 (1984), Hart argues
that counsel’s performance was so deficient that the trial lost its
requisite adversarial testing. But we do not view counsel’s
performance in this case as so devoid of “meaningful adversarial
testing” that “there has been a denial of Sixth Amendment rights
(continued…)
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State v. Hart
CONCLUSION
¶31 We hold that Hart’s trial counsel did not render
ineffective assistance because counsel did not perform
deficiently in any of the ways Hart claims. We therefore affirm.
(…continued)
that makes the adversary process itself presumptively
unreliable.” Id. at 659. We therefore reject Hart’s argument.
20180095-CA 14 2020 UT App 25