State v. McNeil , 803 Utah Adv. Rep. 40 ( 2016 )


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  •                This opinion is subject to revision before final
    publication in the Pacific Reporter
    
    2016 UT 3
    IN THE
    SUPREME COURT OF THE STATE OF UTAH
    STATE OF UTAH,
    Respondent,
    v.
    ROLAND MCNEIL,
    Petitioner.
    No. 20130664
    Filed January 6, 2016
    On Certiorari to the Utah Court of Appeals
    Third District, Salt Lake
    The Honorable Mark S. Kouris
    No. 081400390
    Attorneys:
    Sean D. Reyes, Att’y Gen., Jeffrey S. Gray, Asst. Att’y Gen.,
    Salt Lake City, for respondent
    Joan C. Watt, E. Rich Hawkes, Salt Lake City, for petitioner
    JUSTICE DURHAM authored the opinion of this Court,
    in which CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
    and JUSTICE HIMONAS joined.
    ASSOCIATE CHIEF JUSTICE LEE filed a concurrence.
    JUSTICE PARRISH sat for oral argument. Due to her resignation from
    this court, however, she did not participate herein.
    JUSTICE JOHN A. PEARCE became a member of the Court on
    December 16, 2015, after oral argument in this matter, and
    accordingly did not participate.
    JUSTICE DURHAM, opinion of the Court:
    INTRODUCTION
    ¶1   Petitioner Roland McNeil was convicted of assaulting
    his co-worker. Mr. McNeil did not commit the actual assault—his
    son Quentin did—but Mr. McNeil was charged as an accomplice
    STATE v. McNeil
    Opinion of the Court
    because phone records showed that calls were made between his
    phone and his son’s phone just before and after the assault.
    ¶2    At trial, the State relied on the phone records to prove
    Mr. McNeil’s involvement. But the State did not introduce the
    phone records directly into evidence; instead, it sought to
    introduce preliminary hearing testimony about the records from a
    detective who had died before trial. The defense objected, arguing
    that the detective’s testimony about the records was hearsay. The
    trial court expressed disagreement, and defense counsel
    apparently acquiesced, saying “Okay, it’s not hearsay,” before
    renewing the objection on other grounds. The testimony was
    ultimately admitted, and the State relied on it heavily, presenting
    little other evidence that the telephone calls occurred.
    ¶3     Ultimately, Mr. McNeil was convicted and decided to
    appeal. Before the court of appeals, he argued again that the
    testimony was hearsay—though on a different basis from the one
    he argued below—and argued further that his lawyer’s objection
    on this point had been so inadequate as to violate Mr. McNeil’s
    right to the effective assistance of counsel. State v. McNeil, 2013 UT
    App 134, ¶¶ 17, 25, 
    302 P.3d 844
    . The court of appeals rejected
    these arguments, concluding that (1) Mr. McNeil’s counsel invited
    the error in admitting the detective’s testimony and (2) any
    ineffective assistance by defense counsel in objecting to the
    admittance of the detective’s testimony was not prejudicial. 
    Id. ¶¶ 23–24,
    32. Mr. McNeil, on certiorari, asks us to reverse.
    BACKGROUND
    ¶4    Mr. McNeil worked at Kennecott Mines in 2006 and
    2007. He became friends with a co-worker and they began
    carpooling to work together, but the arrangement did not last.
    One day the two had a furious argument at work, leaving
    Mr. McNeil so upset that he pounded the dashboard for the entire
    forty-minute ride home. They never spoke again. Mr. McNeil told
    his son Quentin about his conflict at work with his co-worker. He
    also shared with Quentin a tape recording of his co-worker and
    other individuals threatening Mr. McNeil. They threatened to cut
    off Mr. McNeil’s fingers and throw him in a ditch. After hearing
    the tape, Quentin became enraged and began stalking his father’s
    co-worker. Quentin learned where he lived, what car and
    motorcycle he drove, where his daughter worked, his opinion of
    his future son-in-law, and that he did not trust banks and kept his
    savings at home.
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                           Opinion of the Court
    ¶5     Quentin eventually decided to confront his father’s co-
    worker. One morning, he drove to his apartment complex and
    waited for him to return from breakfast. When he arrived home,
    Quentin asked him for a cigarette and a telephone while following
    him to his apartment. The co-worker declined Quentin’s requests
    and began to open the door to his apartment. As he was opening
    the door, Quentin shoved him to the ground inside his apartment.
    Quentin closed the door and began attacking him.
    ¶6   During the attack, Quentin used the information he had
    gathered about his father’s co-worker both to scare him and to
    attempt to locate cash. Quentin was not able to locate any cash,
    but he stole jewelry and broke his victim’s nose and eight teeth.
    Before leaving, Quentin threw him in his bathtub, saying, “big
    daddy is going to let you live.”
    ¶7    When the police investigated the assault, they found
    security footage showing that Quentin was talking on his mobile
    phone as he entered the complex. The police then obtained phone
    records that showed six telephone calls between Quentin and his
    father on the morning of the attack. The police observed that these
    calls included a fourteen-minute call that overlapped with the
    time that Quentin entered the complex, and a thirty-five second
    telephone call shortly after the attack. Based largely on this
    evidence, Mr. McNeil was arrested and charged with aggravated
    assault.
    ¶8     At Mr. McNeil’s preliminary hearing, the State called a
    police detective who testified in detail regarding the times and
    length of the six telephone calls that morning, relying on notes in
    his case file based on his review of the phone records. At trial, the
    State asked to read in the detective’s preliminary hearing
    testimony because the detective had died since the preliminary
    hearing.
    ¶9   Before the detective’s preliminary hearing testimony
    was read to the jury, Mr. McNeil argued that the portion of the
    testimony that related to the telephone calls should not be read.
    He articulated through counsel a number of arguments for his
    position. Defense counsel first argued against reading the
    testimony regarding the telephone calls because he could not
    cross-examine the witness. Counsel then claimed that the
    telephone records were “neutral statements” but that these
    “neutral statements” may not be used when they lead to
    inappropriate inferences.
    –3–
    STATE v. McNeil
    Opinion of the Court
    ¶10 When counsel’s arguments were not immediately
    accepted, counsel expanded the argument, saying that “[t]his is
    hearsay at this point, this is hearsay. It’s a prior recorded
    statement from a witness who is unavailable.” The trial court then
    interjected, saying “Hold the phone here. Hearsay says an out-of-
    court statement. This was in Court.” In response, counsel said,
    “Okay, it’s not hearsay[;] it’s a neutral statement. I said it right the
    first time. I did. I said it right the first time.” The trial court then
    made its ruling:
    This is not hearsay. It’s a sworn statement under
    oath recorded, subject to cross[-]examination. If the
    statement did contain hearsay, we obviously would
    redact that. Both sides at this time are stipulating
    that in fact it doesn’t. [Defense counsel] is objecting
    on different terms than hearsay terms; therefore, we
    will say [the parties are] stipulating to the fact that
    it’s not hearsay. So that being said, it’s going to come
    in.
    Based on this ruling, the testimony regarding the phone calls was
    read to the jury.
    ¶11 After the prosecution rested, Mr. McNeil’s counsel
    attempted to exclude the same portion of the detective’s
    testimony by arguing that the testimony lacked the required
    foundation. The trial court rejected counsel’s argument as
    untimely, ruling for the State without hearing the State’s response
    to the argument.
    ¶12 Mr. McNeil was convicted, and he appealed to the court
    of appeals. He claimed that the trial court erred in failing to
    exclude the detective’s testimony regarding the phone records.
    State v. McNeil, 
    2013 UT App 134
    , ¶¶ 18–32, 
    302 P.3d 844
    . He
    argued that the error constituted “plain error,” that is, an error
    that can be addressed on appeal regardless of whether it was
    preserved. 
    Id. ¶ 24.
    He also argued that his counsel was
    ineffective in not pursuing the hearsay objection, and that the
    trial’s outcome may have been different but for counsel’s
    ineffectiveness. 
    Id. ¶ 25.
        ¶13 The court of appeals held that the plain error claim
    failed because Utah courts do not review plain error claims when
    counsel “invites” the error below. The court concluded that
    defense counsel invited the error because the claim of hearsay was
    made and then withdrawn. 
    Id. ¶ 23.
    The court further ruled that,
    even if defense counsel was ineffective in not pursuing the
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                           Opinion of the Court
    hearsay objection, Mr. McNeil did not demonstrate that this lack
    of an objection was prejudicial. 
    Id. ¶¶ 25–32.
    The court affirmed
    his conviction. 
    Id. ¶ 72.
                        STANDARD OF REVIEW
    ¶14 The doctrines we are asked to address here—invited
    error, plain error, and ineffective assistance of counsel—pertain
    only to claims that are raised after the initial trial. See State v.
    Winfield, 
    2006 UT 4
    , ¶ 14, 
    128 P.3d 1171
    ; State v. Cram, 
    2002 UT 37
    ,
    ¶ 4, 
    46 P.3d 230
    . These doctrines were raised for the first time in
    the court of appeals. We are thus reviewing how the court of
    appeals applied these doctrines. In doing so, we review the court
    of appeals’ decision for correctness. State v. Levin, 
    2006 UT 50
    ,
    ¶ 15, 
    144 P.3d 1096
    . This standard of review allows us to apply the
    doctrines at issue here as if we were the first appellate court to
    consider them.
    ANALYSIS
    ¶15 We granted certiorari on two issues, and we consider
    them in order. First, we address whether any error in admitting
    the detective’s testimony was invited, concluding it was not
    invited because there was no clear affirmative statement by
    counsel inviting the court to err. Second, we address whether the
    alleged error was prejudicial, and we conclude that even if the
    trial court erred, the error did not prejudice Mr. McNeil.
    I. THERE IS NO INVITED ERROR
    ¶16 Mr. McNeil claims that the trial court plainly erred in
    not excluding the testimony regarding the content of the phone
    records as hearsay testimony. Before we address his plain error
    claim, we first review the State’s argument that any error here was
    invited and thus not reviewable.
    ¶17 Under the doctrine of invited error, an error is invited
    when counsel encourages the trial court to make an erroneous
    ruling. The rule discourages “parties from intentionally
    misleading the trial court so as to preserve a hidden ground for
    reversal on appeal” and gives “the trial court the first opportunity
    to address the claim of error.” State v. Geukgeuzian, 
    2004 UT 16
    ,
    ¶ 12, 
    86 P.3d 742
    (internal quotation marks omitted).
    ¶18 In examining whether counsel invited error, we have
    traditionally found invited error when the context reveals that
    counsel independently made a clear affirmative representation of
    the erroneous principle. See, e.g., State v. Hamilton, 
    2003 UT 22
    ,
    ¶ 54, 
    70 P.3d 111
    (holding that invited error exists when counsel
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    STATE v. McNeil
    Opinion of the Court
    “either by statement or act, affirmatively represent[s] to the court”
    an incorrect statement of law). When we invoke this doctrine, we
    encourage counsel not to lead the trial court “into committing the
    error.” 
    Id. (citation omitted);
    see also State v. Lucero, 
    220 P.3d 249
    ,
    256 (Ariz. Ct. App. 2009) (noting a distinction between affirmative
    actions to “initiate the error” and merely acquiescing to the error).
    ¶19 We have held, however, that if the trial court—not
    counsel—is responsible for leading a courtroom discussion into
    error, any resulting error is not invited. 1 In State v. Richardson,
    defense counsel sought to admit testimony both as affirmative
    evidence and to rebut any contradictory evidence that the State
    might choose to put on. 
    2013 UT 50
    , ¶ 15, 
    308 P.3d 526
    . After
    discussion, the trial court allowed the defendant to use the desired
    evidence only for the purpose of rebutting any contradictory
    evidence. 
    Id. ¶ 17.
       ¶20 The defendant was convicted and appealed, arguing
    before us that the testimony was categorically admissible. 
    Id. ¶ 18.
    1 In State v. Medina, a jury indicated that it could not come to a
    unanimous verdict. 
    738 P.2d 1021
    , 1022 (Utah 1987). The trial
    judge drafted a modified Allen charge and asked both the
    prosecution and defense counsel whether they had any objections
    to giving the additional instruction to the jury. 
    Id. Defense counsel
    read the instruction and stated that she had no objection. 
    Id. The defendant
    was convicted and he challenged the Allen instruction
    on appeal. 
    Id. at 1022–23.
    In determining whether to review the
    instruction, this court interpreted the equivalent of the current
    rule 19(e) of the Utah Rules of Criminal Procedure, which states
    that “[u]nless a party objects to an instruction or the failure to give
    an instruction, the instruction may not be assigned as error except
    to avoid a manifest injustice.” We held that the manifest injustice
    exception to rule 19(e) may not be applied where defense counsel
    “actively represented to the court that she had read the instruction
    and had no objection to it.” 
    Id. at 1023.
        Although Medina never applied or mentioned the invited error
    doctrine, we have suggested in subsequent cases that the invited
    error doctrine is relevant to the application of the manifest
    injustice exception to rule 19(e). See State v. Anderson, 
    929 P.2d 1107
    , 1109 (Utah 1996); State v. Bullock, 
    791 P.2d 155
    , 158–59 (Utah
    1989). To the extent that Medina suggests that acquiescence to an
    alleged error initiated by the trial court bars appellate review, we
    repudiate it.
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                           Opinion of the Court
    In response, the State erroneously argued that the defendant
    “sought only a ruling that would allow him to present the
    evidence on cross-examination if prior testimony had rendered it
    relevant.” 
    Id. ¶ 35
    (internal quotation marks omitted). We
    disagreed with the State because the defendant originally made
    the broader argument, and only later focused on the narrow
    argument. 
    Id. ¶¶ 37–38.
    We concluded that the State was incorrect
    in classifying counsel’s choice as invited error because the
    defendant did not “paint himself into his current corner.” 
    Id. ¶ 39.
        ¶21 In this case, the State argues for a definition of invited
    error much broader than that in our caselaw. The State claims that
    the invited error doctrine is triggered by the fact that defense
    counsel “did not dispute” that the statement was not hearsay. The
    State also terms counsel’s conduct as an “affirmative
    acquiescence.” The State argues that if counsel does not offer a
    proper objection when asked to do so by the trial court, the error
    is invited. The State’s argument is unpersuasive because an error
    of this sort by the trial court is not invited but merely
    unpreserved, and thus remains subject to plain error review. See
    3B CHARLES ALAN WRIGHT ET AL., FEDERAL PRACTICE AND
    PROCEDURE § 856 (4th ed. 2013) (noting that plain error “is
    [ordinarily] invoked by counsel who, in preparing an appeal,
    discover what they consider to be an error to which no objection
    was taken below”). Because the State’s understanding of invited
    error would erode the doctrine of plain error review and is
    contrary to our present caselaw, we reject this broad definition of
    invited error.2
    ¶22 The State also offers a narrower argument, based on the
    fact that after the trial court stated that the evidence was not
    hearsay, defense counsel said, “Okay, it’s not hearsay.” The State
    2  We acknowledge that we have not always been consistent in
    this distinction between invited error and plain error. In State v.
    Gleason, for example, we somewhat cryptically stated that an
    “eleventh hour request [for a jury instruction] should be
    canvassed in an atmosphere of invited error.” 
    405 P.2d 793
    , 795
    (Utah 1965). And in State v. Stone, we held that if a defendant
    “fails to preserve the record” by making an evidentiary objection,
    “it is obvious that one easily could invite error by silence.” 
    422 P.2d 194
    , 195 (Utah 1967). To the extent that these cases contradict
    our holding that counsel does not invite error through mere
    silence, we overrule them.
    –7–
    STATE v. McNeil
    Opinion of the Court
    argues this constitutes invited error. But the context of counsel’s
    arguments reveals otherwise. Defense counsel sought to exclude
    the detective’s testimony about the phone records on a number of
    different grounds: (1) the lack of an ability to cross-examine the
    detective at trial, (2) the argument that neutral statements could
    be prejudicial to Mr. McNeil, and (3) hearsay. Counsel did not
    state that the records were not hearsay until the trial court insisted
    that the detective’s testimony was not hearsay. Until the trial
    court’s statement, counsel argued exactly the opposite.
    ¶23 As in Richardson, Mr. McNeil “did not paint himself into
    his current corner. The trial court did that by its interpretation of
    our rules of [evidence]. That interpretation . . . was not invited by
    [Mr. McNeil].” Richardson, 
    2013 UT 50
    , ¶ 39. We reject the State’s
    arguments and hold that Mr. McNeil did not invite the alleged
    error in this case because his counsel withdrew the hearsay
    argument due to actions of the trial court, and because counsel’s
    failure to object to a trial court’s actions is not invited error in this
    context.
    II. MR. MCNEIL WAS NOT PREJUDICED BY THE ADMISSION
    OF THE DETECTIVE’S TESTIMONY
    ¶24 As noted above, Mr. McNeil argues that the trial court
    erred by failing to exclude the detective’s testimony about the
    telephone records. Because Mr. McNeil did not preserve his
    objection to this error, we may review it only if it falls under one
    of the exceptions to the preservation rule. See State v. Low, 
    2008 UT 58
    , ¶ 19, 
    192 P.3d 867
    . Two such exceptions are at issue here: plain
    error and ineffective assistance of counsel.
    ¶25 Proving plain error or ineffective assistance requires
    proving that any errors by the trial court (under plain error
    review) or counsel (under an ineffective assistance of counsel
    claim) prejudiced the defendant. 3 Because both claims require a
    showing of prejudice, if we conclude that the errors alleged by
    Mr. McNeil were not prejudicial, Mr. McNeil’s claims of
    ineffective assistance of counsel and plain error fail.
    3   The prejudice inquiry is sometimes referred to as a
    harmfulness inquiry. State v. Holgate, 
    2000 UT 74
    , ¶ 13, 
    10 P.3d 346
    (listing elements of plain error review as “(i) [a]n error exists; (ii)
    the error should have been obvious to the trial court; and (iii) the
    error is harmful” (alteration in original) (citation omitted)).
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                            Opinion of the Court
    ¶26 We first explain the standard for prejudice review under
    plain error and ineffective assistance of counsel. We then apply it
    to Mr. McNeil’s claims of error.
    A. An Error Is Prejudicial if It Undermines
    Our Confidence in the Outcome
    ¶27 Our method for evaluating whether an alleged error is
    prejudicial begins with Strickland v. Washington, 
    466 U.S. 668
    (1984). The standard set forth in Strickland is that
    [t]he defendant must show that there is a reasonable
    probability that, but for counsel’s unprofessional
    errors, the result of the proceeding would have been
    different. A reasonable probability is a probability
    sufficient to undermine confidence in the outcome.
    
    Id. at 694;
    see also State v. Lenkart, 
    2011 UT 27
    , ¶ 38, 
    262 P.3d 1
    . This
    test does not require the State to prove that there are no
    conceivable facts under which the alleged error could have led to
    a different result. 
    Strickland, 466 U.S. at 693
    (“It is not enough for
    the defendant to show that the errors had some conceivable effect
    on the outcome of the proceeding. Virtually every act or omission
    of counsel would meet that test . . . .”). Rather, the test requires a
    finding of prejudice only when our confidence in the verdict is
    undermined.
    ¶28 Defendant makes two arguments regarding our
    precedent’s conception of prejudice. First, he argues that we
    should have two different prejudice tests, one for plain error
    claims and one for ineffective assistance of counsel claims.
    Second, he argues that the State bears the burden of proving there
    was no prejudice. We address each argument in turn.
    ¶29 Mr. McNeil’s first argument—that our test for prejudice
    under plain error review should differ from the one articulated by
    Strickland—fails to acknowledge our contradictory precedent. We
    have held that the prejudice test is the same whether under the
    claim of ineffective assistance or plain error. State v. Munguia, 
    2011 UT 5
    , ¶ 13, 
    253 P.3d 1082
    ; State v. Dunn, 
    850 P.2d 1201
    , 1225 (Utah
    1993). Mr. McNeil does not even acknowledge this precedent, and
    we reject his argument.
    ¶30 Second, Mr. McNeil argues that the State bears the
    burden of proving that an error was not prejudicial. This
    argument is incorrect under both federal and state law. Under
    Strickland, the responsibility to prove that confidence in the
    verdict is undermined rests with the 
    defendant. 466 U.S. at 693
    .
    –9–
    STATE v. McNeil
    Opinion of the Court
    (“Conflict of interest claims aside, actual ineffectiveness claims
    alleging a deficiency in attorney performance are subject to a
    general requirement that the defendant affirmatively prove
    prejudice.”). Our caselaw has similarly stated that a defendant
    who appeals from a conviction must show that there is a
    “reasonable probability” that, but for the error, the outcome
    would have been different. State v. Moore, 
    2012 UT 62
    , ¶ 17, 
    289 P.3d 487
    .
    B. Mr. McNeil’s Prejudice Arguments Fail
    ¶31 As applied here, our prejudice analysis asks whether we
    remain confident that the verdict would be the same had the
    detective’s testimony regarding the phone records been excluded.
    In pursuing this analysis, we note first that the State does not
    dispute the importance of the phone records to the verdict. The
    records were nearly the only evidence of the phone conversations
    between Mr. McNeil and Quentin on the morning of the assault,
    and the phone conversations themselves were powerful evidence
    that Mr. McNeil knew what Quentin was doing. Had the jurors
    not known about the content of the phone records, they would
    have been much more likely to doubt that Quentin was acting on
    Mr. McNeil’s instructions or encouragement.
    ¶32 Thus, the question we must answer is whether, if the
    detective’s testimony about the records had been excluded, the
    jurors would have been informed about the content of the records
    by some other means. Our answer to this question proceeds in
    three steps. First, we consider (and reject) Mr. McNeil’s argument
    that we should assume for purposes of the prejudice analysis that
    the telephone records would not have been admitted at all. We
    next answer whether we are confident that evidence of the phone
    calls both existed and would have been admitted absent the
    detective’s testimony. Finally, we examine whether we are
    confident that this alternative evidence would have matched the
    detective’s testimony.
    ¶33 Mr. McNeil argues that we should assume for purposes
    of the prejudice analysis that the telephone records would not
    have been admitted at all. He asserts, in effect, that we cannot
    hypothesize about what the State might have done if the trial
    court had excluded the detective’s testimony about the phone
    records.
    ¶34 In support of this argument, Mr. McNeil relies on State v.
    Moore, 
    2012 UT 62
    , 
    289 P.3d 487
    . In Moore, the defendant was
    accused of showing a pornographic video to a teenage boy and
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                           Opinion of the Court
    sexually abusing him. 
    Id. ¶¶ 1–5.
    It was unclear whether the
    defendant committed the crime in 2002 or 2003. Had the incident
    taken place in 2002, the defendant would have been guilty of both
    the crime of child sex abuse and the crime of showing
    pornography to a minor; had it taken place in 2003, he would only
    have been guilty of showing pornography to a minor. 
    Id. ¶ 4.
    At
    trial, defense counsel never raised the issue of what year the crime
    took place. The defendant was convicted on both counts. 
    Id. ¶ 8
         ¶35 On appeal, the court of appeals reversed both charges.
    
    Id. ¶ 10.
    On certiorari, the State argued that the pornography
    charge should not have been reversed because the date of the
    crime was irrelevant to whether the defendant was guilty of
    showing pornography to a minor. 
    Id. ¶ 13.
    The State argued that,
    had the issue been raised, the prosecution could have simply
    changed the year stated in the complaint and the jury would have
    still convicted the defendant. 
    Id. ¶36 We
    concluded in Moore that, if the State had been forced
    to amend the complaint, defense counsel’s strategy could have
    been different. We explained that “[d]epending on which of many
    paths was chosen, there were several possible outcomes, some of
    which may have resulted in conviction, and some of which may
    have resulted in acquittal.” 
    Id. ¶ 19.
    We held that it would be
    inappropriate to uphold the conviction because the defendant had
    “shown that there is a reasonable probability that the result of the
    proceeding would have been different.” 
    Id. ¶ 21.
        ¶37 Here, Mr. McNeil argues that, just as we did not permit
    the State in Moore to assert on appeal that it could have amended
    its complaint, we cannot permit the State in this case to assert on
    appeal that the telephone records would have been admitted even
    if the detective’s testimony would have been excluded. We
    disagree. The Moore court did not hold that appellate courts may
    never speculate about how the trial would have been different
    had the error not occurred; instead, it engaged in such speculation
    itself and concluded that, because amending the complaint would
    have opened up new strategies for the defense, it could not be
    confident that the trial would still have resulted in conviction. As
    nothing in our caselaw requires us to assume that the State would
    not have presented alternative evidence, we consider whether the
    phone records would likely have been admitted in some other
    form if the trial court had excluded the detective’s testimony.
    ¶38 Mr. McNeil argues that it is not entirely clear whether
    the telephone records even existed. We disagree. Based on the
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    STATE v. McNeil
    Opinion of the Court
    record before us, there is ample evidence that the records existed. 4
    The record shows that during discovery, defense counsel
    requested copies of several pieces of evidence, including all the
    telephone records that the State had in its possession from Mr.
    McNeil’s or Quentin’s telephones the day of the attacks. The
    State’s response to the discovery request enclosed “all telephone
    records in [the] possession of the state.”5 The State’s response also
    indicated that it was not in possession of several other items
    requested by the defense. Since the State both claimed to send
    copies of the requested phone records and identified several items
    that it did not send, we can infer that the State had possession of
    the telephone records.
    ¶39 Having determined that we are confident the telephone
    records existed, we next consider whether the State would have
    provided a proper foundation for their admission under our rules
    of evidence. Foundation for admitting telephone records can be
    laid in a number of ways. See UTAH R. EVID. 901, 902; see also
    United States v. Yeley-Davis, 
    632 F.3d 673
    , 679 (10th Cir. 2011)
    (discussing generally the admissibility of cell phone records).
    However, it appears that, aside from the detective’s testimony, the
    State intended to rely on just one of these ways. The State’s chosen
    method is outlined in Utah Rules of Evidence 901(b)(1), which
    allows for a foundation to be laid by the “[t]estimony of a
    [w]itness with [k]nowledge” that the records are what they say
    they are. The State prepared to provide this foundation by issuing
    a subpoena to cell phone service provider Cricket
    Communications and by stating prior to trial that it “may or may
    not” call a witness to testify from Cricket Communications.
    ¶40 Mr. McNeil argues that because the State never provided
    foundation for the phone records, we cannot infer that it would
    have provided a witness able to verify the actual phone records.
    We disagree because the State stated before trial that it had two
    separate paths for admitting the telephone records, and the first
    4  We acknowledge that at oral argument, Mr. McNeil’s
    appellate counsel—while certainly well prepared—believed that
    the record did not contain any discovery requests regarding the
    phone records, and the State did not dispute that issue. The record
    contradicts this claim.
    5 As is customary, the trial court did not receive a copy of the
    records during discovery. See UTAH R. CIV. P. 34 (articulating no
    requirement to file all discovery with the court).
    – 12 –
    Cite as: 
    2016 UT 3
                           Opinion of the Court
    one it tried—the detective’s testimony about the records—
    succeeded. It is obvious why the State did not try the second path
    of introducing the telephone records through the Cricket
    employee’s testimony: it was unnecessary.
    ¶41 Mr. McNeil argues, however, that if a witness had been
    able to provide a foundation for the phone records, the State
    would have indicated as much during trial. He argues in
    particular that counsel should have indicated how he was going
    to provide foundation both when the hearsay objection was raised
    and when the untimely foundation objection was raised.
    ¶42 We disagree with Mr. McNeil’s arguments. It seems
    implausible to us that counsel for the State would have indicated
    how he would provide foundation at the points Mr. McNeil
    mentions, for a simple reason: when the two potentially relevant
    arguments were made—hearsay and foundation—the trial court
    rejected the arguments without giving counsel for the State the
    opportunity to respond. The record shows that in order to explain
    how it would have laid a foundation, the State would have had to
    interrupt either defense counsel’s argument or the judge’s. We do
    not expect this of counsel, and we conclude that Mr. McNeil’s
    assertion that we must reverse because the State did not articulate
    a method of laying foundation at trial is incorrect.
    ¶43 Even if the telephone records existed and a foundation
    could have been provided, we must reverse if the properly
    admitted evidence might have raised new arguments for the
    defense. See Moore, 
    2012 UT 62
    , ¶¶ 17–18. In this respect, Mr.
    McNeil argues that the records might have been contrary to the
    detective’s testimony and thus, had the actual phone records been
    admitted, he might have had stronger arguments about their
    relevance or value as proof of guilt. Notably, he does not argue
    that the outcome would have been different if the phone records
    had been admitted but matched the detective’s testimony about
    their contents.
    ¶44 We disagree with Mr. McNeil’s contention that the
    records would have revealed different information. Since we have
    inferred above that the telephone records existed and that defense
    counsel had a copy of the records, it seems all but certain that
    defense counsel would have found a way to admit the telephone
    records if counsel’s copy of them had contradicted the detective’s
    testimony. This is sufficient for us to conclude that there is not a
    reasonable probability of the records differing from the testimony
    about them offered by the prosecution.
    – 13 –
    STATE v. MCNEIL
    ASSOCIATE CHIEF JUSTICE LEE, concurring
    ¶45 As we are confident that the phone records would have
    been admitted and would not have raised additional arguments
    for Mr. McNeil, we hold that Mr. McNeil was not prejudiced by
    any error at trial.
    CONCLUSION
    ¶46 We hold that defense counsel’s withdrawal of the
    hearsay argument at trial was not invited error. But we also hold
    that the error Mr. McNeil alleges on appeal was not prejudicial.
    We therefore affirm.
    ASSOCIATE CHIEF JUSTICE LEE, concurring:
    ¶47 I concur in the majority opinion as far as it goes. I write
    separately, however, to note my continuing objection to the
    standard set forth in the majority opinion in State v. Moore, 
    2012 UT 62
    , 
    289 P.3d 487
    , and to register my vote to overrule that
    decision. I applaud the court in this case for giving a limiting
    construction to the Moore standard for assessing prejudice on a
    claim for ineffective assistance of counsel. See supra ¶ 37. But in
    my view that is not enough. We should openly repudiate Moore.
    Unless and until we do so, it will stand as a potential source of
    confusion in this area.
    ¶48 The majority opinion in Moore appeared to erase the
    burden of proving prejudice—of establishing a substantial
    likelihood of a more favorable verdict in the absence of counsel’s
    ineffectiveness—in cases involving “speculation” as to what
    “might have” happened absent counsel’s ineffective assistance.
    Moore, 
    2012 UT 62
    ¶ 21. Mr. Moore failed to present any proof or
    even argument as to how his case might have proceeded if his
    counsel had performed effectively. Yet the majority nonetheless
    concluded that he had “shown that there [was] a reasonable
    probability that the result of the proceeding would have been
    different.” 
    Id. And it
    appeared to base that conclusion on its
    concern that the likely outcome was a matter of “speculation,”
    given that it was “unclear” how the defense might have
    proceeded in the alternative and “unclear how the jury” might
    have decided the matter. 
    Id. ¶49 That
    standard cannot stand. As I noted in my dissent in
    Moore, binding federal precedent requires a claimant asserting
    ineffective assistance to carry the burden of proving prejudice—of
    establishing, in other words, a substantial probability of a
    different outcome absent counsel’s missteps. See 
    id. ¶ 29
    (Lee, J.,
    – 14 –
    Cite as: 
    2016 UT 3
                  ASSOCIATE CHIEF JUSTICE LEE, concurring
    dissenting) (highlighting problems with the majority’s standard
    and citing U.S. Supreme Court authority that is incompatible with
    it). That standard, moreover, necessarily requires an analysis of
    the hypothetical—of what “might have” happened if counsel had
    been effective, and of a “substantial” likelihood that the outcome
    would have been more favorable. See Harrington v. Richter, 
    562 U.S. 86
    , 111–12 (2011) (explaining that a Strickland claimant must
    establish a “substantial” “likelihood of a different result”). The
    prospect of “speculation” as to an alternative approach at trial is
    thus no basis for excusing a Strickland claimant from carrying his
    burden of proving prejudice; that, in fact, is the essence of the
    burden. 1
    ¶50 The majority in this case, to its credit, rightly reaches this
    same conclusion. It says that “nothing in our caselaw” forecloses
    hypothetical analysis of what “would likely have” happened
    absent counsel’s missteps. Supra ¶ 37. And it reinforces that the
    Strickland claimant’s burden of proving prejudice must be
    centered on such questions. Importantly, the majority gives a
    1 See Cullen v. Pinholster, 
    563 U.S. 170
    , 200–02 (2011) (affirming
    the California Supreme Court’s dismissal of an ineffective
    assistance of counsel petition, and finding that defendant had
    failed to carry his burden of proving prejudice based on analysis
    of the prosecution’s likely response in the hypothetical event that
    counsel had fulfilled his duty); Wong v. Belmontes, 
    558 U.S. 15
    , 19–
    20 (2009) (per curiam) (reversing lower court decision vacating
    murder conviction on grounds of ineffective assistance at
    sentencing phase; emphasizing the defendant’s burden of
    showing “a reasonable probability that . . . the result of the
    proceeding would have been different,” while assessing that
    question on the basis of a hypothetical analysis of what the
    prosecution likely would have done if counsel had fulfilled his
    duty of presenting mitigating evidence (citation omitted)); Darden
    v. Wainwright, 
    477 U.S. 168
    , 186 (1986) (concluding that defendant
    had failed to carry his burden of establishing prejudice from
    counsel’s failure to introduce sufficient mitigating evidence;
    noting that “[a]ny attempt to portray petitioner as a nonviolent
    man would have opened the door for the State to rebut with evidence
    of petitioner’s prior convictions,” and explaining that “[t]his
    evidence had not previously been admitted in evidence,” but
    “trial counsel reasonably could have viewed it as particularly
    damaging” (emphasis added)).
    – 15 –
    STATE v.McNeil
    ASSOCIATE CHIEF JUSTICE LEE, concurring
    limiting construction to Moore. It concludes that Moore does not
    “hold that appellate courts may never speculate about how the
    trial would have been different had the error not occurred,” but
    “instead” requires consideration of the likely train of events—of
    the response by the prosecution and possible “new strategies for
    the defense”—in assessing whether the court is “confident that
    the trial would still have resulted in conviction.” Supra ¶ 37.
    ¶51 This is an important step in the right direction. Until
    today, Moore could quite easily—and in fact most correctly—be
    read to foreclose hypothetical analysis of what “might have”
    happened absent counsel’s missteps. That reading of Moore is
    legally untenable, however, and the court quite rightly rejects it.
    ¶52 Yet I would take the matter a step further. I would
    openly repudiate Moore. Unless and until we do so, Moore will
    stand as a confusing—and quite erroneous—gloss on the
    governing standard of proving prejudice under Strickland. I would
    do so here to avoid any possibility of more confusion in future
    cases.
    – 16 –
    

Document Info

Docket Number: Case No. 20130664

Citation Numbers: 2016 UT 3, 365 P.3d 699, 803 Utah Adv. Rep. 40, 2016 Utah LEXIS 1, 2016 WL 82453

Judges: Durham, Durrant, Lee, Himonas, Due, Pearce

Filed Date: 1/6/2016

Precedential Status: Precedential

Modified Date: 11/13/2024

Authorities (19)

Harrington v. Richter , 131 S. Ct. 770 ( 2011 )

Cullen v. Pinholster , 131 S. Ct. 1388 ( 2011 )

State v. Cram , 444 Utah Adv. Rep. 15 ( 2002 )

State v. Hamilton , 473 Utah Adv. Rep. 18 ( 2003 )

State v. Geukgeuzian , 494 Utah Adv. Rep. 12 ( 2004 )

State v. Lenkart , 262 P.3d 1 ( 2011 )

State v. Lucero , 223 Ariz. 129 ( 2009 )

State v. Dunn , 208 Utah Adv. Rep. 100 ( 1993 )

State v. Levin , 560 Utah Adv. Rep. 9 ( 2006 )

United States v. Yeley-Davis , 632 F.3d 673 ( 2011 )

State v. Winfield , 2006 Utah LEXIS 4 ( 2006 )

State v. Stone , 18 Utah 2d 289 ( 1967 )

State v. McNeil , 2016 UT 3 ( 2016 )

Wong v. Belmontes , 130 S. Ct. 383 ( 2009 )

State v. Gleason , 17 Utah 2d 150 ( 1965 )

State v. Medina , 56 Utah Adv. Rep. 17 ( 1987 )

State v. Anderson , 305 Utah Adv. Rep. 36 ( 1996 )

State v. Holgate , 404 Utah Adv. Rep. 3 ( 2000 )

Strickland v. Washington , 104 S. Ct. 2052 ( 1984 )

View All Authorities »

Cited By (38)

In re D.A.T. , 2021 UT App 69 ( 2021 )

State v. Sanchez , 2016 Utah App. LEXIS 189 ( 2016 )

In re Estate of Anderson , 2016 UT App 179 ( 2016 )

State v. Marquina , 437 P.3d 628 ( 2018 )

UDOT v. LEJ Investments , 2018 UT App 213 ( 2018 )

State v. Klenz , 437 P.3d 504 ( 2018 )

State v. Argueta , 429 P.3d 764 ( 2018 )

State v. Norton , 427 P.3d 312 ( 2018 )

State v. Popp , 2019 UT App 173 ( 2019 )

State v. Alires , 2019 UT App 206 ( 2019 )

State v. Martinez , 2019 UT App 166 ( 2019 )

State v. Morrison , 440 P.3d 942 ( 2019 )

State v. Roberts , 438 P.3d 885 ( 2019 )

State v. Rivera , 440 P.3d 694 ( 2019 )

State v. Henfling , 2020 UT App 129 ( 2020 )

State v. Leech , 2020 UT App 116 ( 2020 )

Somer v. Somer , 2020 UT App 93 ( 2020 )

State v. Williams , 2020 UT App 67 ( 2020 )

State v. Nunez-Vazquez , 2020 UT App 98 ( 2020 )

Onysko v. Dept. of Envntl. Quality , 2020 UT App 51 ( 2020 )

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