State v. Hulse , 444 P.3d 1158 ( 2019 )

2019 UT App 105THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DOUGLAS JOHN HULSE,
Appellant.
Opinion
No. 20150298-CA
Filed June 13, 2019
First District Court, Brigham City Department
The Honorable Thomas Willmore
No. 141100180
John Robinson Jr., Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and JILL M. POHLMAN concurred.
ORME, Judge:
¶1 Douglas John Hulse (Defendant) appeals his convictions
for aggravated assault and unlawful detention. He argues that
he received ineffective assistance of counsel because his attorney
(Trial Counsel) failed to investigate and use his victim’s prior
fraud conviction to attack her character for truthfulness, failed to
object to allegedly improper expert testimony, failed to object to
inadmissible evidence of his abusive nature, and failed to object
to inappropriate comments made by the State during closing
argument. We affirm.
State v. Hulse
BACKGROUND 1
¶2 Defendant and the victim (Victim) were in a turbulent
on­again, off­again relationship spanning over 14 years. In 2014,
the couple spent Memorial Day weekend camping in Brigham
Canyon, where they both ingested “a lot of drugs.” By early
morning of the following Tuesday—May 27, 2014—Victim
wanted to return to their home in Tremonton. Victim testified
that she had not used any drugs that morning, but she believed
that Defendant had.
¶3 On their way home, the couple decided to visit
Defendant’s father at a construction site in Brigham City. On the
way there, Defendant and Victim started arguing and yelling at
each other. Victim testified that such arguments were common
when Defendant used drugs. Upon arrival at the construction
site, Defendant tried to pull Victim out of the Jeep, but Victim
put the vehicle into drive and drove off, heading to Tremonton
without Defendant. Victim had almost made it home when her
Jeep ran out of gas on the interstate. She texted Defendant, and
he brought her some gas—the record does not reveal how. They
soon recommenced their arguing. Instead of continuing to
Tremonton, they headed back to the construction site in Brigham
City for Defendant to retrieve some tools from his father. At the
site, Defendant placed the tools between the Jeep’s two front
seats. The couple had not ceased arguing, so Defendant’s
father—who at trial described the two as “out of control” and
probably “on something”—requested that they leave.
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
20150298-CA 2 2019 UT App 105State v. Hulse
¶4 Defendant and Victim next pulled into a gas station in
Brigham City. Defendant grabbed the keys out of the ignition
and began walking around. Victim, wanting to go home, began
yelling at Defendant and demanding to know where the keys
were. Defendant replied that he did not have them. The gas
station clerk soon approached them and requested that they
move their vehicle because it was blocking traffic at the pumps.
Frustrated, Victim continued to demand that Defendant return
the keys to the Jeep, and Defendant continued to insist that he
did not have them. They were both “screaming and yelling” at
each other. After approximately 45 minutes, Defendant, who
apparently no longer had the keys or at least pretended he did
not, was able to start the Jeep by “hot-wiring” it with a
screwdriver.
¶5 Defendant and Victim then left the gas station and headed
toward Tremonton, with Defendant behind the wheel. During
the drive home, Victim “tr[ied] to be quiet and stay calm”
because she knew Defendant was irritated with her. Defendant
kept giving Victim “dirty looks,” mumbled that he hated her,
said that it was her fault that he was like this, and called her a
whore. Victim testified that Defendant had previously told her
that men should not hit women but that “whores deserve to be
beat and die.”
¶6 Defendant eventually pulled the Jeep over in Deweyville.
Victim immediately became fearful and attempted to escape
the vehicle, but Defendant grabbed her by the hair and
pulled her back inside. He told her that if she knew “what’s
good for [her], [she] better stay in the . . . f’ing vehicle.” He
then put Victim in a headlock, bent her over toward him,
and started “pounding on” her with his fist and a pellet gun.
Defendant hit her in the ribs, on the back, and on the back of
her head. Victim managed to break away briefly, but Defendant
again grabbed her and slammed her face down onto the
tools that he had stored between the seats. One of the tools cut
20150298-CA 3 2019 UT App 105State v. Hulse
her, leaving a gash across her forehead. While once
more holding Victim in a headlock, Defendant pointed
the screwdriver he had used to hot-wire the Jeep at her head;
again called her a “whore”; and told her “[she] deserved to
die, [she’d] be better off dead,” and “[her] kids would be better
off if [she] was dead.” Fearing for her life, Victim managed to
escape from Defendant’s grasp and ran toward the road.
Defendant did not pursue her, but he shouted for her to return
to the vehicle.
¶7 Victim was able to convince the driver of a passing truck,
who had stopped to see if she needed help, to give her a ride to
Tremonton. Once home, one of her neighbors drove her to the
emergency room. Although Victim did not sustain a concussion
or broken bones, the assault left her covered in cuts and bruises.
The hospital notified the authorities, and Deputy Archuletta and
Deputy Palmer soon arrived. They discussed the assault with
Victim and took photographs of her injuries.
¶8 Defendant was arrested later that evening. While being
interrogated by Deputy Palmer, Defendant admitted to being
with Victim at the construction site and gas station in Brigham
City earlier that day. During the course of the interrogation,
however, Defendant gave two differing answers as to where he
had last seen Victim. At one point, he told Deputy Palmer that
he had last seen her in Deweyville—the location of the assault.
But at another time, he stated that he last saw her at the gas
station in Brigham City. When Deputy Palmer asked about
Victim’s injuries, Defendant first stated that “she gets bruises at
work.” 2 But after the deputy recounted Victim’s account to
Defendant, he responded, “If she said so.”
2. Victim acknowledged to the police that she does get bruised at
work, but she insisted that the bruises in the photographs “were
(continued…)
20150298-CA 4 2019 UT App 105State v. Hulse
¶9 The State charged Defendant with one count of
aggravated assault, a third-degree felony, see Utah Code Ann.
§ 76-5-103(1), (2)(a) (LexisNexis 2014), and one count of unlawful
detention, a class B misdemeanor, see id. § 76­5­304(1), (4).
Defendant pled not guilty to both charges. He was tried in
February 2015.
The Prosecution Case
¶10 In its case-in-chief, the State relied on Victim’s testimony,
photographs of Victim’s injuries, the two deputies’ testimonies,
and a video recording of Defendant’s interrogation. 3 Victim’s
injuries were difficult to discern in the photographs, and
the State acknowledged that the injuries were “hard to see.”
For that reason, the State asked Deputy Archuletta, who took
the photographs, to describe each photograph to the jury.
¶11 In laying the foundation for Deputy Archuletta’s
testimony, the State asked generally about her training and
experience. After she replied that she was P.O.S.T. certified, 4
the State inquired whether she had “receive[d] training
(…continued)
not from work.” The record does not disclose the nature of her
job, in connection with which bruising is commonplace.
3. The audio portion of the recording left much to be desired.
The judge noted that “there seems to be a lot of mumbling and
the recording is poor,” but he overruled Defendant’s objection to
its admissibility based on this deficiency.
4. “P.O.S.T.” is an acronym for “Peace Officer Standards and
Training,” the program by which law enforcement officers in
Utah are trained and certified. See Utah Code Ann. § 53-6-205
(LexisNexis 2015); id. § 53-13-105 (Supp. 2018).
20150298-CA 5 2019 UT App 105State v. Hulse
in injuries involving domestic violence.” Deputy Archuletta
responded that she had. The State later asked how many
domestic violence calls she had responded to during her 17 years
of service. Deputy Archuletta responded that she “would not
want to even guess” but that “[she’d] had numerous” calls of
that nature. The State inquired whether some of the calls
involved injuries, to which she replied affirmatively. It then
asked whether she knew “the difference between fresh injuries
and old injuries,” and Deputy Archuletta responded that she
did.
¶12 After laying this foundation, the State requested that
Deputy Archuletta describe each photograph to the jury and
asked whether the injuries depicted in the photographs were
“fresh.” For example, the following exchange addressed
exhibit 2:
[Deputy Archuletta]: Okay. Right here, she had
like psoriasis right here and you can see off to the
inner portion of the knee fresh markings, red
markings. This is a —has, I guess, an abrasion
has taken a portion of the psoriasis off. You can see
through, up through here like a—more still on
the kneecap, the line of like a, I don’t know, some
type of a dragging, but there’s—and this isn’t clear
here, but there’s a line through here and then red
up into here.
....
[The prosecutor]: But this spot right here and these
spots right here that you pointed to outside of the
psoriasis, would you consider those fresh?
[Deputy Archuletta]: . . . [Y]es, this is fresh . . . .
20150298-CA 6 2019 UT App 105State v. Hulse
For the other exhibits, Deputy Archuletta indicated that the
photographs showed “fresh” injuries, including redness on the
back of Victim’s head, right arm and wrist, left rib, chin, jaw,
nose, right cheekbone, right eye, neck, shoulders, and clavicle.
She also identified some scratches, an abrasion on Victim’s
kneecap, “road rash” and the “stippling of . . . blood vessels” on
Victim’s right neck and shoulder area, and a fresh injury behind
her left ear. Deputy Archuletta also identified some “old
bruising” on Victim’s left leg.
¶13 Trial Counsel did not object to the content of Deputy
Archuletta’s testimony as a whole, but he did object twice during
the course of her testimony. Trial Counsel first objected when
the State asked Deputy Archuletta to estimate a time frame for
one of Victim’s injuries. He next objected to the speculative
nature of Deputy Archuletta’s opinion concerning the cause of
one particular mark. The district court sustained both objections.
Trial Counsel did not cross­examine Deputy Archuletta.
¶14 The State next called Deputy Palmer to testify. Because
Deputy Palmer was the officer primarily responsible for
questioning Victim at the hospital about her injuries, his
testimony mainly concerned that conversation and his later
interrogation of Defendant. But the State did ask Deputy Palmer
whether he was able to observe Victim’s injuries at the hospital
and whether they appeared to be “fresh.” He responded in the
affirmative to both questions.
The Defense Case
¶15 Defendant denied that the alleged assault ever took place.
Rather, he claimed that Victim sustained her injuries during the
camping trip from which they had returned that same day.
Specifically, shifting from his initial bruising-at-work theory, he
alleged that Victim sustained her injuries the night before while
gathering firewood in dense underbrush. To corroborate this
20150298-CA 7 2019 UT App 105State v. Hulse
theory, Defendant called a friend who had accompanied them on
the camping trip. The friend testified that she and Victim had
gone searching for firewood on the last night of the trip. She
described the terrain as “pretty rough,” full of rocks, trees, and
fallen branches. As a result, the friend testified that she herself
“hit [her] head a couple of times on the trees” and “had scratches
all over [her]” arms and legs. Trial Counsel showed the
photographs of Victim’s injuries to the friend and asked whether
they were consistent with the kinds of injuries the friend had
sustained while gathering firewood. The friend replied, “Yeah.
Definitely.”
¶16 In addition to providing an alternative theory concerning
the source of Victim’s injuries, Trial Counsel attempted to
impeach Victim’s account in a number of ways. On
cross­examination, Trial Counsel noted that although Victim had
testified that Defendant had threatened her with a screwdriver,
she made no mention of this in her written statement provided
to the police on the day of the assault. To contradict Victim’s
claim that the tools were located between the two front seats of
the Jeep at the time of the assault, Trial Counsel also called
another of Defendant’s friends as a witness. She testified that on
the day of the assault, Defendant had walked to her house in
Brigham City from the construction site and had asked whether
he could leave his tools there. After he stayed at her house for
approximately 45 minutes, she stated that she drove him to the
gas station. Trial Counsel also called Defendant’s mother as a
witness. She testified that Victim was a “chronical liar” and that
Victim admitted to her that, contrary to her denial at trial, she
had also used drugs on the day of the assault. Finally, Trial
Counsel called Victim as an adverse witness and successfully
elicited testimony that she often threatened self-harm to
manipulate Defendant.
¶17 Despite Trial Counsel’s efforts, the jury convicted
Defendant on both charges. He was sentenced to an
20150298-CA 8 2019 UT App 105State v. Hulse
indeterminate term not to exceed five years on the aggravated
assault charge and to a concurrent six-month term on the
unlawful detention charge.
Rule 23B Remand
¶18 Defendant timely appealed his conviction. In conjunction
with the opening brief, Defendant’s prior appellate counsel filed
a motion for remand under rule 23B of the Utah Rules of
Appellate Procedure requesting an evidentiary hearing
regarding four of Defendant’s claims of ineffective assistance,
which motion we granted. The four claims subject to remand
included a claim for Trial Counsel’s failure to investigate and
present Victim’s prior fraud conviction at trial. Following the
hearing, the district court held that all four of the ineffective
assistance of counsel claims “fail[ed] one or both elements of the
[Strickland] test.”
¶19 Shortly after the rule 23B hearing, current appellate
counsel was substituted for prior appellate counsel. With the
stipulation of the State and our approval, current appellate
counsel filed a replacement brief in which he pursued only one
of the four claims of ineffective assistance that were the subject
of the rule 23B remand, namely the fraud matter. As such, the
claim of ineffective assistance for failure to investigate and use
Victim’s prior fraud conviction is the only claim dealt with in the
rule 23B hearing that is currently before us. Therefore, we
address that matter and three other claims of ineffective
assistance newly pursued on appeal, and so we have only
limited occasion to consider the rule 23B hearing.
ISSUES AND STANDARDS OF REVIEW
¶20 Defendant alleges that Trial Counsel rendered ineffective
assistance of counsel when he (1) failed to investigate and use
20150298-CA 9 2019 UT App 105State v. Hulse
Victim’s prior fraud conviction to impeach her testimony at trial,
(2) failed to object to Deputy Archuletta’s improper expert
testimony, (3) allowed the State to introduce inadmissible
character evidence of Defendant’s abusive behavior, and
(4) failed to object to inappropriate comments made by the State
during closing argument. Defendant’s first claim of ineffective
assistance was subject to the rule 23B remand. See Utah R. App.
P. 23B. “In ruling on an ineffective assistance of counsel claim
following a Rule 23B hearing, we defer to the district court’s
findings of fact, but review its legal conclusions for correctness.”
State v. King, 2017 UT App 43, ¶ 13, 392 P.3d 997 (quotation
simplified). The remaining claims were not subject to the
remand. “When a claim of ineffective assistance of 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
¶21 “To ensure a fair trial, the Sixth Amendment of the
U.S. Constitution guarantees [to a criminal defendant] the
right to effective assistance of counsel.” State v. Campos, 2013 UT
App 213, ¶ 23, 309 P.3d 1160. To prevail on an ineffective
assistance of counsel claim, a defendant must first establish that
“counsel’s performance was deficient.” Strickland v. Washington,
466 U.S. 668, 687 (1984). Counsel’s performance is deficient when
it falls below an “objective standard of reasonableness,” id. at
688, which requires a defendant to “overcome the strong
presumption that his trial counsel rendered adequate assistance
by persuading the court that there was no conceivable tactical basis
for counsel’s actions,” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162(emphasis in original) (quotation otherwise simplified). We
will therefore “not second-guess trial counsel’s legitimate
20150298-CA 10 2019 UT App 105State v. Hulse
strategic choices, however flawed those choices might appear in
retrospect,” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App.
1993), “unless there is no reasonable basis supporting”
those decisions, Clark, 2004 UT 25, ¶ 6 (quotation simplified).
¶22 After a defendant overcomes the high threshold of
demonstrating that his counsel performed deficiently, he must
next “show that the deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. Counsel’s deficient
performance is prejudicial if “there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. “A
defendant’s inability to establish either element defeats a claim
for ineffective assistance of counsel.” State v. Reid, 2018 UT App
146, ¶ 19, 427 P.3d 1261.
I. Prior Fraud Conviction
¶23 Defendant first alleges that Trial Counsel rendered
ineffective assistance by not investigating the facts underlying
Victim’s prior fraud conviction and not using that conviction to
attack her character for truthfulness at trial. Victim had
claimed benefits on behalf of children who no longer resided
with her, and she was consequently convicted of workers’
compensation fraud, a third-degree felony, in October 2011. 5
Defendant argues that Trial Counsel’s failure to investigate and
use her conviction to impeach Victim at trial was particularly
egregious because, due to the he-said-she-said nature of the
evidence, “the entire trial was . . . largely a test of [Victim’s]
credibility.”
5. Although documentary evidence of Victim’s conviction is not
part of the record, the State stipulated at the 23B hearing that
Victim was convicted of workers’ compensation fraud in 2011.
20150298-CA 11 2019 UT App 105State v. Hulse
¶24 Following the rule 23B hearing, the district court
determined that Trial Counsel did not render ineffective
assistance. We agree. 6 Trial Counsel’s decision not to investigate
Victim’s prior fraud conviction or present it at trial did not
prejudice Defendant’s defense for two reasons.
¶25 First, although Trial Counsel did not use Victim’s prior
conviction to attack her character for truthfulness, he directly
challenged the believability of Victim’s testimony in a number of
ways. On cross-examination of Victim during the State’s
case­in­chief, Trial Counsel noted that Victim made no mention
of Defendant threatening her with a screwdriver in the written
statement she made on the day of the assault. Later, during the
defense case, Trial Counsel called Victim as an adverse witness
and elicited testimony that she frequently threatened self-harm
to manipulate Defendant. Trial Counsel also called a number of
6. In reaching this decision, the district court referenced Trial
Counsel’s testimony explaining that he did not bring up Victim’s
past fraud conviction because he did not wish the jury to
perceive him as bullying a sympathetic victim. Determining this
to be an effective trial strategy, the court concluded that
Defendant’s “assertion fails the first element of the ineffective
assistance test.” We affirm the district court’s conclusion, but on
different grounds. See State v. Van Huizen, 2019 UT 01, ¶ 39, 435
P.3d 202 (“An appellate court may affirm the judgment appealed
from on any legal ground or theory apparent on the record.”)
(quotation simplified). Because Trial Counsel’s decision not to
investigate or use Victim’s fraud conviction did not prejudice the
defense, we do not reach the first element of the ineffective
assistance test. See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d
232 (“In the event it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, we will do so
without analyzing whether counsel’s performance was
professionally unreasonable.”) (quotation simplified).
20150298-CA 12 2019 UT App 105State v. Hulse
witnesses who provided testimony that contradicted portions of
Victim’s version of events: Defendant’s mother testified that
Victim had admitted to also using drugs on the day of the
assault; Defendant’s father testified that both Defendant and
Victim appeared to be under the influence of drugs that day;
Defendant’s friend testified that Defendant left his tools—one of
which Victim testified to cutting her forehead on—at her house
in Brigham City; and Defendant’s co-camper friend testified that
Victim’s injuries were similar to those she herself had sustained
on that same camping trip while finding and hauling firewood,
thus providing an alternative explanation for Victim’s injuries.
¶26 Given that Trial Counsel’s efforts to directly contradict the
content of Victim’s testimony failed to sufficiently undermine
her credibility in the eyes of the jury, we are not persuaded that
it is reasonably probable that a limited mention of her prior
workers’ compensation fraud conviction, see infra ¶ 27, would
have tipped the scales in favor of Defendant.
¶27 Second, although Trial Counsel did not know the specific
details of Victim’s fraud conviction, his limited knowledge of
Victim’s criminal past would have nonetheless allowed him to
ask her whether she had ever been convicted of fraud. 7 But we
are not convinced that the specific details and circumstances of
Victim’s fraud conviction that Trial Counsel’s hypothetical
investigation would have uncovered would have been
admissible at trial. Had Trial Counsel chosen to attack Victim’s
character for truthfulness, he likely would have been permitted
to introduce the specific details of her workers’ compensation
fraud conviction only if she first “attempt[ed] to explain away
7. When asked at the rule 23B hearing whether he knew of
Victim’s workers’ compensation fraud conviction, Trial Counsel
responded that he generally “knew that she had a fraud,” but he
did not investigate the matter any further.
20150298-CA 13 2019 UT App 105State v. Hulse
the effect of the conviction or to minimize [her] guilt.” See State v.
Alzaga, 2015 UT App 133, ¶ 34, 352 P.3d 107 (quotation
simplified). See id. ¶ 33 (stating that rule 609 of the Utah Rules of
Evidence does not generally permit “an examining attorney [to]
parade the details of the prior crime in front of the jury”)
(quotation simplified); State v. Colwell, 2000 UT 8, ¶ 33, 994 P.2d
177 (“When impeaching a defendant, it is permissible to inquire
into the fact and nature of the prior conviction, but not the
details or circumstances surrounding the event, absent unusual
circumstances.”). We decline to speculate whether Victim, if
confronted with her prior fraud conviction, would have
attempted to explain away or minimize the crime, thereby
rendering the fruits of Trial Counsel’s hypothetical investigation
admissible. See State v. Nelson, 2015 UT 62, ¶ 10, 355 P.3d 1031(“Proof that [trial counsel’s] acts or omissions prejudiced [the
defendant] must be a demonstrable reality and not a speculative
matter.”) (quotation simplified).
¶28 Thus, given Trial Counsel’s many other efforts to directly
contradict Victim’s testimony and the limited way in which Trial
Counsel would have been allowed to present the fruits of a
hypothetical investigation, Defendant has not demonstrated a
“reasonable probability of a different outcome at trial sufficient
to undermine our confidence in the jury’s verdict.” See State v.
Garcia, 2017 UT 53, ¶ 48, 424 P.3d 171.
II. Expert Testimony
¶29 Defendant next argues that Trial Counsel furnished
ineffective assistance by permitting Deputy Archuletta to give
improper expert testimony. Defendant asserts that the State
called Deputy Archuletta to testify as an expert without first
notifying the defense and that Trial Counsel was therefore
ineffective by failing to object to her testimony. See Utah Code
Ann. § 77-17-13(1)(a) (LexisNexis 2015) (requiring any party in a
felony case to give “notice [of its intent to use an expert witness]
20150298-CA 14 2019 UT App 105State v. Hulse
to the opposing party as soon as practicable but not less than 30
days before trial”). In support of his contention that Deputy
Archuletta testified in an expert capacity, Defendant points both
to the foundation that the State laid in preparation for her
testimony and to the content of her testimony.
¶30 Defendant first asserts that the State asked two
expert­related questions when laying the foundation for Deputy
Archuletta’s testimony: whether she had received training in
injuries involving domestic violence and whether she knew how
to differentiate between new and old injuries. On that
foundation, Defendant claims, Deputy Archuletta proceeded to
give expert testimony. Defendant argues that although “not all
of [Deputy] Archuletta’s testimony was in the nature of an
expert . . . many of her answers veered into [the territory of]
forensic expert” testimony. Defendant points to Deputy
Archuletta’s use of “technical terms,” such as “stippling of blood
vessels” and “clavicle,” and to her characterization of most of
Victim’s injuries as “fresh,” which Defendant asserts “calls for
some level of forensic expertise.”
¶31 We disagree. Utah Code section 77-17-13(1)(a) did not
apply to Deputy Archuletta’s testimony because, despite the
foundation laid by the State, the subject matter of her testimony
fell within the confines of proper lay opinion. Trial Counsel
therefore did not perform deficiently by not objecting to the
deputy’s testimony.
¶32 A lay witness may offer an opinion about matters that are
“rationally based on the witness’s perception,” helpful to the
jury in “determining a fact in issue,” and “not based on
scientific, technical, or other specialized knowledge.” Utah R.
Evid. 701. Lay opinion testimony is proper and an expert witness
is not required if “an average bystander would be able to
provide the same testimony.” State v. Rothlisberger, 2006 UT 49,
¶ 34, 147 P.3d 1176. If the opinion testimony involves
20150298-CA 15 2019 UT App 105State v. Hulse
“knowledge [that] is not within the ken of the average
bystander,” an expert witness is required. Id.
¶33 In the present case, the State asked Deputy Archuletta to
describe the injuries in the photographs and to opine as to
whether they were “fresh.” Defendant recognizes that Deputy
Archuletta’s description of the injuries depicted in the
photographs was nonexpert testimony 8 and challenges as
improper expert testimony only the portions of her testimony
where she used technical terms and characterized the injuries as
“fresh.”
¶34 Defendant identifies only two technical terms used by the
deputy in her testimony: “stippling of blood vessels” and
“clavicle.” Even assuming, without deciding, that both qualify as
technical terms, the use of a total of two such terms throughout
8. However, Defendant does challenge those nonexpert portions
of Deputy Archuletta’s testimony as independently inadmissible
under rule 701 of the Utah Rules of Evidence. Rule 701 states that
lay opinion is proper when it, among other things, helps the jury
“to clearly understand[] the witness’s testimony or to
determin[e] a fact in issue.” Utah R. Evid. 701(b). Defendant
asserts that Deputy Archuletta’s description of the injuries
depicted in the photographs was unhelpful because “the jury
could see the photos for themselves and use their shared
experience to evaluate them.” We disagree. Although the jury
was certainly not prevented from forming its own conclusions
based on its observations of the photographs, the extent of
Victim’s injuries was difficult to discern in the photographs. The
jury therefore benefitted from hearing descriptions of the injuries
from Deputy Archuletta—the person who took the photographs
and was able to observe the injuries in person—because it
helped focus the jurors on important aspects of the photographs.
20150298-CA 16 2019 UT App 105State v. Hulse
the course of her entire testimony is insufficient to elevate her
testimony to expert status.
¶35 More importantly, the average person is generally capable
of differentiating new scratches and bruises from old scratches
and bruises. As such, Deputy Archuletta’s opinion as to the
freshness of Victim’s wounds was well “within the ken of the
average bystander.” See id. Cf. State v. Lagasse, 410 A.2d 537, 543
(Me. 1980) (holding that a witness’s observation that the victim’s
“skin [was] swollen and red, it looked like she had been
slapped” was proper lay opinion testimony because “[t]he
bruises [the witness] observed are consistent in common
knowledge with those which would be present on the face of one
who had been ‘slapped’”); In re J.C., 892 S.W.2d 87, 89 (Tex. Ct.
App. 1995) (holding that testimony regarding the age of bruises
was properly admitted as lay opinion testimony). Having
personally observed Victim’s injuries at the hospital, Deputy
Archuletta went no further than to state that she believed most
of the injuries to be “fresh.” On the few occasions that the State
sought her opinion on matters that would arguably require
specialized knowledge—when she was asked to estimate the
timeframe of one injury and when she speculated as to the cause
of another injury—Trial Counsel immediately objected, and the
court sustained the objections.
¶36 Thus, despite the nature of the foundation that the State
laid for Deputy Archuletta’s testimony, we conclude that the
subject matter of the testimony, to the extent it was opinion
testimony at all, was lay opinion and well within the confines set
by rule 701 of the Utah Rules of Evidence. 9 Trial Counsel
9. Moreover, even if Deputy Archuletta’s testimony had
amounted to improper expert testimony, Trial Counsel still
would not have been deficient for not objecting. Defendant cites
State v. Doutre, 2014 UT App 192, 335 P.3d 366, in which we held
(continued…)
20150298-CA 17 2019 UT App 105State v. Hulse
(…continued)
that “[t]rial counsel was . . . deficient for failing to object to the
State’s failure to give reasonable prior notice of [a witness’s]
expert testimony.” Id. ¶ 29. However, we can conceive of a
sound tactical basis in the present case for not objecting to the
deputy’s testimony, which was not the situation in Doutre. Cf. id.
¶ 21 (“[W]e cannot conceive of a sound [tactical] basis for failing
to object [to expert witness testimony] on rule 702 grounds in
this case.”). Trial Counsel may have chosen not to object to
Deputy Archuletta’s testimony concerning Victim’s injuries
given his plan to later elicit similar testimony from Defendant’s
co-camper friend. Both Deputy Archuletta and Defendant’s
friend were shown pictures of Victim’s injuries and were asked
to opine about them. The State asked Deputy Archuletta to
describe the injuries and to give her opinion whether they were
“fresh.” Similarly, Trial Counsel asked Defendant’s friend
whether Victim’s injuries were consistent with those she had
obtained while gathering firewood with Victim. We can readily
conceive that a competent attorney in Trial Counsel’s position
may have deliberately chosen not to object to Deputy
Archuletta’s testimony in order to set a testimonial baseline that
would help overcome potential objections to the content of
Defendant’s co-camper friend’s testimony—especially
considering that the friend’s testimony was crucial in
establishing the defense’s alternate theory as to the source of
Victim’s injuries.
Furthermore, Deputy Palmer also testified that Victim’s
injuries appeared to be “fresh,” but Defendant does not
challenge his testimony on appeal. Therefore, at least for
purposes of his ineffective assistance of counsel claims,
Defendant was not prejudiced by Deputy Archuletta’s testimony
because “the jury would have had the same information before it
and likely would have reached the same conclusions.” See State
v. Yalowski, 2017 UT App 177, ¶ 38, 404 P.3d 53.
20150298-CA 18 2019 UT App 105State v. Hulse
therefore did not perform deficiently by not objecting to the
testimony on that ground. See State v. Akers, 2018 UT App 235,
¶ 22, 438 P.3d 70 (“Defense counsel does not render deficient
performance if counsel refrains from making futile objections.”).
III. Additional Claims
¶37 Defendant makes two additional claims of ineffective
assistance of counsel. 10 First, Defendant argues that Trial
10. Defendant primarily argues these two claims in terms of the
cumulative error doctrine. He alleges that the prejudicial effect
of these two additional claims combined with the prejudicial
effect of the claims discussed in sections I and II justify the
application of the doctrine. See State v. Perea, 2013 UT 68, ¶ 33,
322 P.3d 624 (“We will reverse under the cumulative error
doctrine only if the cumulative effect of the several errors
undermines confidence that a fair trial was had.”) (quotation
simplified). Because we determine Trial Counsel did not perform
deficiently in connection with the claims discussed in sections
II and III.B., see id. (“[I]f [a defendant’s] claims do not constitute
error . . . we will not apply the doctrine.”), it follows that even
assuming Trial Counsel performed deficiently in the claims
discussed in sections I and III.A., the prejudice that resulted from
Trial Counsel’s deficient performance is still insufficient to
undermine our confidence that Defendant was given a fair trial.
In ruling as we do, we rely on the limited way in which Trial
Counsel would have likely been permitted to present the fruits
of his hypothetical investigation to the jury. See supra ¶ 27. And
we are mindful of the fact that the jury would still have heard
testimony of Defendant’s abusive behavior regardless of
whether Trial Counsel objected to the second exchange. See infra
¶¶ 41–42; State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428 P.3d
1038 (stating that “before reversing a verdict or sentence under
the cumulative error doctrine,” appellate courts “must
(continued…)
20150298-CA 19 2019 UT App 105State v. Hulse
Counsel erred by allowing the State to introduce improper
character evidence of Defendant’s abusive nature. Second,
Defendant claims that Trial Counsel performed deficiently when
he did not object to inappropriate comments made by the State
during its closing argument. We hold that neither claim supports
a determination of ineffective assistance of counsel.
A. Character Evidence
¶38 Defendant argues that by not objecting, Trial Counsel
twice allowed the State to introduce otherwise inadmissible
evidence of his abusive nature. He asserts that the evidence was
inadmissible because he had not opened the door to evidence of
that character trait. 11 See Utah R. Evid. 404(a)(1), (a)(2)(B); State v.
Leber, 2009 UT 59, ¶ 13, 216 P.3d 964. The State also referenced
this evidence during its opening statement and closing
argument—again without Trial Counsel’s objection.
¶39 The first instance occurred during the State’s direct
examination of Victim. The State asked Victim for the reason she
surmised that Defendant had used drugs on the day of the
assault, and this exchange ensued:
(…continued)
determine that (1) an error occurred, (2) the error, standing alone,
has a conceivable potential for harm, and (3) the cumulative effect of
all the potentially harmful errors undermines its confidence in
the outcome”) (emphasis added).
11. Although Defendant is correct in so stating with regards to
the first and second exchanges, see infra ¶ 39, Defendant did
open the door to evidence of that particular character trait in a
third exchange that Defendant has not addressed on appeal, see
infra ¶ 41.
20150298-CA 20 2019 UT App 105State v. Hulse
[Victim]: I know that there was still dope around
with us.
[The prosecutor]: And do you know his behavior?
[Victim]: Evil.
[The prosecutor]: Well, in terms of the drugs . . .
was it consistent with that behavior?
[Victim]: Yes.
Trial Counsel did not object to this brief exchange. The
second instance occurred after Defendant called Victim as
an adverse witness and elicited testimony that she often
threatened self­harm in order to manipulate Defendant. During
the State’s cross­examination of Victim, the following exchange
unfolded:
[The prosecutor]: You mentioned in your
testimony that you only got upset and threatened
to hurt yourself when, in your words, “he beats the
hell out of me?”
[Victim]: Uh-huh (affirmative).
[The prosecutor]: Is that what was happening
[when you sent Defendant a text message
threatening self-harm]?
[Victim]: You know what, it started to get to where
we went through a pattern . . . [proceeds to
describe pattern of abuse].
[The prosecutor]: So this behavior that you’re
talking about, on May 27th, 2014, the incident
20150298-CA 21 2019 UT App 105State v. Hulse
we’re talking about, was he in one of those
moments?
[Victim]: He had been up, like I said, I know for six
days for sure that he’d been up, maybe seven.
[The prosecutor]: Violent?
[Victim]: Very violent.
...
[The prosecutor]: And did this for 14 years?
[Victim]: He’s been doing it for a lot longer.
Trial Counsel once more did not object to this line of
questioning. Defendant argues that Victim’s testimony about
Defendant’s prior abuse was inadmissible character evidence
under rule 404(a) of the Utah Rules of Evidence because he had
not opened the door to it and that Trial Counsel’s performance
was deficient because he allowed it to reach the jury. We
disagree.
¶40 The first exchange during which Victim called Defendant
“evil” was brief, unprompted, and quickly passed over by the
State. It is conceivable that a competent attorney would have
chosen not to draw the jury’s further attention to the fleeting
exchange by objecting to its content. See State v. Spinks, 2003 UT
App 182U, para. 8 (“[I]t is conceivable that defense counsel
opted for the sound strategy of not calling further attention to
those remarks by objecting to them.”); State v. Shepherd, 2015 UT
App 208, ¶ 52, 357 P.3d 598.
¶41 Regarding the second exchange, Defendant has not
demonstrated that Trial Counsel’s failure to object to the
exchange prejudiced his defense, particularly in light of a third
20150298-CA 22 2019 UT App 105State v. Hulse
exchange that Defendant does not challenge. 12 This prior, third
exchange occurred during the State’s case-in-chief. While
cross­examining Victim, Trial Counsel asked whether she hit
Defendant at the gas station in Brigham City. Victim replied that
she did not remember, but that it was possible. On redirect, the
topic was revisited during this exchange:
[The prosecutor]: Now, there was a discussion,
[Trial Counsel] asked . . . if you hit [Defendant]
when you were at [the gas station].
[Victim]: Uh-huh (affirmative).
[The prosecutor]: And you said, “I may have.”
[Victim]: I—I may have, I may not have. I honestly
don’t know and—
[The prosecutor]: Is hitting each other typical of
this relationship?
[Victim]: Yes.
[The prosecutor]: You wouldn’t deny that you hit
him before?
[Victim]: Oh, I’ve hit him before.
[The prosecutor]: And you wouldn’t deny that he’s
hit you before?
[Victim]: Oh, he’s hit me many . . . times.
12. We do not decide whether Trial Counsel performed
deficiently by not objecting to the second exchange.
20150298-CA 23 2019 UT App 105State v. Hulse
¶42 In light of this third exchange, in which the jury heard
testimony regarding Defendant’s abusive behavior toward
Victim, Defendant has failed to demonstrate how the second
exchange prejudiced his defense. The jury had already heard
testimony covering ostensibly the same subject matter as the
second exchange and, in light of this, it is unlikely that a jury
would have reached a different verdict had Trial Counsel
objected to the second exchange. Cf. State v. Yalowski, 2017 UT
App 177, ¶ 38, 404 P.3d 53 (stating that because “nearly identical
testimony was introduced” by another witness, “the jury would
have had the same information before it and likely would have
reached the same conclusions”).
B. Prosecutorial Misconduct
¶43 Defendant lastly challenges Trial Counsel’s failure to
object to an inappropriate statement the State made during
closing argument. Toward the middle of its rebuttal, the State
referenced the 14 years of abuse by Defendant that Victim had
suffered, stating,
Finally, finally, finally, she comes forward and she
says, “I’ve had enough, I’m done.” And that’s why
we’re here today, not because she was a drug
addict, not because she liked [being] abused,
because she finally said, “I don’t want this life
anymore. Help me.” That’s why we’re here.
Defendant argues that this statement amounted to prosecutorial
misconduct and that Trial Counsel performed deficiently by not
objecting or taking other action to address the misconduct.
¶44 “When we review an attorney’s failure to object to a
prosecutor’s statements during closing argument, the question is
not whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to
20150298-CA 24 2019 UT App 105State v. Hulse
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (emphasis in original) (quotation
otherwise simplified). Although the State’s comment likely did
cross the line in terms of proper argument, it was not so
improper as to render Trial Counsel ineffective for not objecting
to it. Moreover, there appears to be a sound tactical basis not to
object to the statement.
¶45 The challenged statement was in the middle of the
rebuttal portion of the State’s closing argument. The statement
was followed by a lengthy discussion of, among other things, the
evidence, the credibility of Defendant’s witnesses, and the
elements of the crime. An appeal to the jurors’ emotions and
sense of duty to protect Victim was certainly not the main focus
of the rebuttal. Trial Counsel therefore may well have chosen not
to object to the statement to avoid highlighting Defendant’s past
abuse of Victim to the jury. See State v. Hummel, 2017 UT 19,
¶ 110, 393 P.3d 314 (“[T]he law recognizes the prerogative of
opposing counsel to swallow their tongue [during closing
argument] instead of making an objection that might have the
risk of highlighting problematic evidence or even just annoying
the jury.”). Accordingly, Trial Counsel did not perform
deficiently by not objecting to the statement made by the State
during rebuttal.
CONCLUSION
¶46 Defendant did not receive ineffective assistance in any of
the four instances to which he has directed our attention.
Defendant was not prejudiced by Trial Counsel’s failure to
investigate the underlying facts of Victim’s fraud conviction,
because the fruits of the hypothetical investigation would very
likely have been inadmissible at trial. Trial Counsel did not
perform deficiently by not objecting to Deputy Archuletta’s
testimony regarding Victim’s injuries, because it did not amount
20150298-CA 25 2019 UT App 105State v. Hulse
to expert testimony. Defendant has not demonstrated that he
was prejudiced by the admission of evidence of his abusive
behavior toward Victim, because such evidence was admitted at
a different point during trial. Finally, the inappropriate
statement made by the State during closing argument was not so
egregious as to require competent counsel to object.
¶47 Affirmed.
20150298-CA 26 2019 UT App 105