State v. Gallegos , 2020 UT 19 ( 2020 )

This opinion is subject to revision before final
publication in the Pacific Reporter
2020 UT 19IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
JOHN EDWARD GALLEGOS,
Petitioner.
No. 20180890
Heard November 12, 2019
Filed April 29, 2020
On Certiorari to the Utah Court of Appeals
Second District, Weber County
The Honorable Judge Mark R. DeCaria
No. 111900879
Attorneys:
Sean D. Reyes, Att‘y Gen., Jeffrey S. Gray, Asst. Solic. Gen.,
Salt Lake City, for respondent
Emily Adams, Bountiful, Cherise Bacalski, Orem, for petitioner
JUSTICE PEARCE authored the opinion of the Court, in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted John Gallegos of attempted murder.
Gallegos asked the court of appeals to overturn that conviction,
arguing that his trial counsel rendered ineffective assistance by,
among other things, failing to call an expert whom his prior counsel
had previously identified and disclosed. This uncalled expert would
have testified about the problems inherent in eyewitness
identifications. Gallegos also moved the court to remand under Utah
Rule of Appellate Procedure 23B so that he could supplement the
STATE v. GALLEGOS
Opinion of the Court
record with facts concerning the uncalled expert and explore the
reasons his trial counsel declined to use the witness at trial.
¶2 The court of appeals affirmed Gallegos‘s conviction. A
partially dissenting member of that court opined that he would have
granted the rule 23B motion to allow Gallegos to try and establish
that he was prejudiced by his trial counsel‘s deficient performance.
We granted a petition for certiorari to address whether the court of
appeals erred by: (1) denying the rule 23B motion; and
(2) concluding that trial counsel‘s failure to call the eyewitness
testimony expert did not result in ineffective assistance. We affirm
the court of appeals.
BACKGROUND1
¶3 On a dark night, the victim (Victim) parked his RV next to
Lester Park in Ogden, intending to spend the evening. While in his
RV, Victim heard the unmistakable hiss of an aerosol can and the
rumpus that sometimes accompanies tagging. Concerned that his RV
might be used as a canvas for someone‘s street art, Victim ventured
outside to protect his vehicle.
¶4 Victim saw a group of men spray painting a building about
fifty feet away. As soon as the group spotted Victim, they sprinted
toward him. Victim tried to back away, but the group encircled him.
Before Victim had a chance to say anything, one member of the
group repeatedly struck Victim. While that man was attacking
Victim, the others in the group began throwing rocks, cans, and
garbage at Victim. The men were accompanied by dogs that they
permitted to attack and bite Victim.
¶5 Throughout the attack, Victim‘s primary assailant stood
about four feet away. The assailant would step forward to punch
Victim, retreat four or five feet, and then repeat the attack. Victim
experienced trouble breathing and realized that he was being
stabbed. Victim testified that when he ―grabbed [his] chest . . . the
blood skirted out.‖ Victim was facing the attacker, and the attacker
was the only person near Victim in that direction. Victim later
testified that if blood were found on any person in the group, it
would be on the attacker.
_____________________________________________________________
1 ―On appeal, we review the record facts in a light most favorable
to the jury‘s verdict and recite the facts accordingly.‖ USA Power,
LLC v. PacifiCorp, 2016 UT 20, ¶ 8 n.3, 372 P.3d 629 (citation omitted)
(internal quotation marks omitted).
2
Cite as: 2020 UT 19Opinion of the Court
¶6 At least four eyewitnesses saw the attack. Three of these
witnesses—N.G., K.C., and D.L.—were driving by the park together
when they saw the altercation. D.L. jumped out of the vehicle to
assist Victim. He yelled at the group of men and started to approach
the crowd. One of the men in the group, who held something in his
hand, shouted at D.L., ―You want some too homey? Get the fuck
back in the truck.‖ D.L. ran back to the truck and yelled for N.G. to
call the police. This apparently motivated the group who had been
attacking Victim to flee.
¶7 Police and paramedics arrived within five minutes of N.G.‘s
call. R.S., who had been in the park with his girlfriend during the
attack, told an officer that Victim‘s assailant was wearing a white
shirt. R.S. also told the officer that he saw some of the group get into
a car to leave the park. By apparent coincidence, as R.S. was
speaking to the officer, he saw that same car drive past. R.S. alerted
the officer.
¶8 Additional officers arrived. One left to investigate the car
that R.S. identified. The officer saw Gallegos walking away from a
vehicle matching the description R.S. had provided. The officer
talked to Gallegos and searched his name for warrants. He testified
that he saw Gallegos‘s age when he ran the search and realized that
Gallegos was under the legal drinking age; a fact that assumed
importance because Gallegos appeared to be intoxicated.
¶9 The officer asked if Gallegos was a gang member. Gallegos
said he was. In response to the officer‘s question, Gallegos indicated
he did not have any weapons on him. After the officer received
Gallegos‘s permission to search him, the officer found a knife in
Gallegos‘s back pocket. The officer told Gallegos that since Gallegos
seemed quite intoxicated, the officer would hold onto the knife, and
Gallegos could retrieve it from the police station after he sobered up.
Since Gallegos did not match the initial description of the suspect—
wearing a white shirt—the officer did not detain him. The officer did
not notice any blood on the knife or on Gallegos.
¶10 Within thirty minutes after the encounter with Gallegos, a
police officer interviewed D.L., who had been occupied tending to
Victim‘s injuries. Unlike R.S., D.L. recalled that the primary assailant
was wearing dark clothes. D.L., according to the testimony of two
3
STATE v. GALLEGOS
Opinion of the Court
police officers, also told the officers that Victim‘s assailant had
tripped and fallen to his hands and knees while running away.2
¶11 The officers updated the suspect‘s description. After hearing
the updated description, the officer that initially stopped Gallegos
examined the knife that he had taken from Gallegos and saw, for the
first time, blood. Another officer was then sent to find the dark-shirt
wearing Gallegos.
¶12 A few minutes later, the officer apprehended Gallegos near
the park, close to a vehicle matching the description R.S. had
provided. Another officer noticed that Gallegos had what appeared
to be blood on his ears, knuckles, palms, shirt, and pants. Yet another
officer observed that Gallegos‘s pants were torn at the knee, that
blood, dirt, and black material were on Gallegos‘s knee, and that
Gallegos had scrape marks on his palms.
¶13 Shortly after officers had detained Gallegos, and while still
near the park, an officer drove D.L. to a curb where Gallegos sat,
uncuffed, with a spotlight shining on him. While sitting in the car,
D.L. identified Gallegos as Victim‘s primary assailant. D.L. also
identified Gallegos later that evening at the police station.
¶14 After D.L.‘s identification, the police placed Gallegos in
handcuffs and read him his Miranda rights. Gallegos waived his
rights and spoke to the officers. An officer testified that Gallegos
explained the blood on his hands as a vestige of having been ―boxing
with a homey‖ earlier in the day. Gallegos explained his torn pants
and scraped hands and knees as the result of having tripped while
running from the police prior to having arrived at the park.3
¶15 The following day, Victim, from his hospital bed, was
shown a photo lineup of six men. From that group of photographs,
Victim identified Gallegos as his attacker.
_____________________________________________________________
2 A third officer testified that D.L. saw someone in the group fall
as he was running away, but the record is not clear whether that
officer believed that D.L. was talking about Victim‘s primary
assailant. R.S. also reported seeing one of the men in the group
―jump[ ] off the curb, . . . [fall] and [get] back up and [start running.]‖
3 An officer later testified that he asked police dispatch if any
officer had reported a chase. Police dispatch was not aware of a
chase occurring in Ogden.
4
Cite as: 2020 UT 19Opinion of the Court
¶16 DNA tests showed that the blood found on Gallegos,
Gallegos‘s clothes, and the knife Gallegos was carrying in his back
pocket was Victim‘s.
¶17 The State charged Gallegos with, among other things,
attempted murder.4
¶18 Gallegos had multiple court-appointed attorneys and at one
point was self-represented.5 Gallegos‘s first trial attorney saw the
need to have the jury hear from an expert on eyewitness
identifications and moved the court to appoint Dr. Julie Buck as an
expert on the topic. The court obliged. Dr. Buck prepared a report on
problems that can arise when eyewitnesses are asked to identify
specific suspects. Dr. Buck also discussed issues with the line-up
procedures police employed that, she opined, biased the process
against Gallegos. The attorney who secured Dr. Buck‘s appointment
ceased representing Gallegos.
¶19 Seven months before trial, the district court appointed the
attorney who would represent Gallegos at trial. According to an
affidavit Gallegos submitted in support of his rule 23B motion,
roughly three weeks before trial, trial counsel visited Gallegos at the
prison. During that visit, Gallegos asked trial counsel about Dr.
Buck. Trial counsel had previously told Gallegos that he did not
know that Dr. Buck had been retained. However, on the day of this
visit, trial counsel told Gallegos that he had read Dr. Buck‘s report
and had concluded that her testimony would not be helpful.
¶20 At trial, the State introduced the testimony of a number of
witnesses to the attack, including Victim, D.L., N.G., K.C., and R.S.
Victim and D.L. both testified that they identified Gallegos as the
assailant. As he had informed Gallegos, trial counsel elected not to
put on any expert testimony regarding the limitations of eyewitness
identification.
_____________________________________________________________
4 Gallegos was also charged with, and convicted of, threatening
or using a dangerous weapon in a fight, graffiti, unlawful
consumption of alcohol by a minor, possession or use of a dangerous
weapon by a restricted person, assault by a prisoner, and propelling
a substance or object at a correctional or peace officer. Gallegos does
not challenge these convictions.
5 A different set of attorneys represents Gallegos on appeal and
certiorari.
5
STATE v. GALLEGOS
Opinion of the Court
¶21 The jury convicted Gallegos on all seven counts. Applying
gang and weapons enhancements, the district court sentenced
Gallegos to serve nine years to life for the attempted murder
conviction.6
¶22 Gallegos appealed, arguing, among other things, that his
trial counsel rendered ineffective assistance. Gallegos moved under
Rule of Appellate Procedure 23B to supplement the record with facts
concerning his trial counsel‘s alleged ineffective assistance. In
addition to his own affidavit, Gallegos supported his motion with
two others.
¶23 Michael D. Bouwhuis, trial counsel‘s supervisor, averred
that while trial counsel was representing Gallegos, he was also
assisting Bouwhuis in a capital murder case. Bouwhuis assigned trial
counsel to interview and prepare trial subpoenas for twenty
witnesses. Trial counsel assured Bouwhuis that he was performing
his assigned tasks. However, Bouwhuis later learned that trial
counsel did not speak to ―a substantial number of the witnesses
assigned to him.‖ Bouwhuis also became aware that trial counsel‘s
contract with Weber County to provide indigent defense services
had been terminated.
¶24 Dr. Buck also provided an affidavit. Dr. Buck affirmed that
she provided her report to Gallegos‘s previous counsel in July 2014,
almost a year before the trial. Despite this, trial counsel never
contacted her.
¶25 Dr. Buck described her report. She reported that the photo
lineup shown to Victim was designed in a fashion that made it more
likely that someone would choose Gallegos over the other
possibilities. Dr. Buck had also concluded there were numerous
issues with the ability of the eyewitnesses to make an accurate
identification of the suspect because of the circumstances under
which they viewed the assailant. For example, her report detailed a
number of factors that can impact the ability of a witness to correctly
identify someone. These included the duration of the event, attention
_____________________________________________________________
6 Gallegos was also sentenced to not more than five years for
assault by a prisoner; not more than five years for the possession of a
dangerous weapon by a restricted person; one year for propelling a
substance or object at an officer; one year for use of a dangerous
weapon in a fight; and 180 days each for the convictions related to
graffiti and unlawful possession or consumption of alcohol by a
minor. The court ordered the sentences to run concurrently.
6
Cite as: 2020 UT 19Opinion of the Court
to the perpetrator, the risk of source confusion, the presence of
multiple perpetrators, the presence of a weapon, the eyewitness‘s
stress, and the lighting at the time of the crime.
¶26 The court of appeals denied Gallegos‘s rule 23B motion,
reasoning that Gallegos had failed to explain how the evidence he
wanted to place in the record would have changed the trial‘s
outcome. State v. Gallegos, 2018 UT App 192, ¶ 22, 437 P.3d 388.
¶27 The court of appeals also concluded that trial counsel had
not provided ineffective assistance by failing to call Dr. Buck. It
reasoned that an attorney is not legally obligated to call an expert to
talk about the issues surrounding eyewitness testimony. The court
also concluded that there was a strategic reason why trial counsel
could decide to not use Dr. Buck‘s testimony. Additionally, the court
of appeals determined that an abundance of other evidence tied
Gallegos to the crime such that any testimony Dr. Buck might have
offered would not have changed the result at trial. See id. ¶¶ 29–48.
¶28 One member of the court of appeals panel dissented from
part of the decision. That judge would have granted the rule 23B
motion because he believed that Gallegos should have the
opportunity to augment the record with additional facts concerning
prejudice. The dissent opined that if ―Gallegos is eventually able to
demonstrate that his attorney was unprepared, or that his attorney
acted ineffectively by failing to call an eyewitness identification
expert‖ then the ―contours of the ‗prejudice‘ inquiry may look a lot
different.‖ Id. ¶ 70 (Harris, J., concurring in part and dissenting in
part).
¶29 We granted a petition for certiorari.
ISSUE AND STANDARD OF REVIEW
¶30 Gallegos raises two issues for our review. He first asks us to
agree that the court of appeals erred by concluding he failed to
present a sufficient basis for remand pursuant to rule 23B. He then
asks us to overturn the court of appeals‘ conclusion that he failed to
demonstrate prejudice arising from his counsel‘s alleged ineffective
assistance.7
_____________________________________________________________
7 Before the court of appeals, Gallegos also argued that his
counsel was ineffective in failing to seek to sever the charges against
him. The court of appeals agreed that trial counsel should have
sought severance but concluded that this misstep did not prejudice
Gallegos. We did not grant certiorari on that question.
(continued ...)
7
STATE v. GALLEGOS
Opinion of the Court
¶31 Both of these issues present questions that we review for
correctness. ―‗On a writ of certiorari, we review the decision of the
court of appeals, not that of the district court, and apply the same
standard[s] of review used by the court of appeals. We conduct that
review for correctness, ceding no deference to the court of appeals.‘‖
State v. Wilder, 2018 UT 17, ¶ 15, 420 P.3d 1064 (alteration in original)
(citation omitted).
ANALYSIS
¶32 A majority of the court of appeals concluded that, even if it
were to permit Gallegos to supplement the record with the facts in
his affidavits, Gallegos could not establish that his trial counsel
rendered ineffective assistance of counsel. Gallegos raises four
arguments in an effort to convince us that the court of appeals erred.
First, Gallegos claims that the majority prematurely reached its
conclusion on his rule 23B motion. Second, that the court of appeals
applied the wrong standard to assess whether he received ineffective
assistance of counsel. Third, that trial counsel‘s decision to not call an
already identified expert constituted deficient performance. And
fourth, that the court of appeals incorrectly concluded that Gallegos
suffered no prejudice from trial counsel‘s failure to put Dr. Buck on
the stand.
¶33 It is well understood that ―‗the right to counsel is the right to
the effective assistance of counsel.‘‖ Strickland v. Washington, 466 U.S.
668, 686 (1984) (citation omitted); see also State v. Garcia, 2017 UT 53,
¶ 35, 424 P.3d 171. In an ineffective assistance of counsel claim, we
employ the two-part test Strickland established, ―which requires the
Gallegos nevertheless briefed the question of whether the court of
appeals erred by concluding that he suffered no prejudice from his
counsel‘s failure to seek severance. Although we did not grant
certiorari on that issue, we can see how Gallegos may have read our
order as including that issue. The State, either because Gallegos
briefed the issue, or because it read our order in the same fashion,
responded to Gallegos‘s argument. Because of the confusion our
order apparently engendered, and because the parties have both
briefed the issue, we will address this question, albeit briefly. For the
reasons the court of appeals articulated in its opinion, we conclude
that trial counsel‘s decision not to move to sever the charges did not
prejudice Gallegos. See State v. Gallegos, 2018 UT App 192, ¶¶ 47–48,
437 P. 333; see also id. ¶ 69 n.15 (Harris, J., concurring in part and
dissenting in part).
8
Cite as: 2020 UT 19Opinion of the Court
defendant to show (1) ‗that counsel‘s performance was deficient‘ and
(2) that ‗the deficient performance prejudiced the defense.‘‖ Menzies
v. State, 2014 UT 40, ¶ 75, 344 P.3d 581 (quoting Strickland, 466 U.S. at
687). ―Strickland‘s prejudice prong requires a court to ‗consider the
totality of the evidence before the judge or jury‘ and then ‗ask if the
defendant has met the burden of showing that the decision reached
would reasonably likely have been different absent the errors.‘‖
Garcia, 2017 UT 53, ¶ 28 (citation omitted).
¶34 As to Strickland‘s first prong, ―the inquiry into counsel‘s
performance should focus on ‗whether counsel‘s assistance was
reasonable considering all the circumstances.‘ We ‗must indulge a
strong presumption that counsel‘s conduct falls within the wide
range of reasonable professional assistance.‘‖ Menzies, 2014 UT 40,
¶ 76 (citations omitted). Furthermore, ―we give wide latitude to trial
counsel to make tactical decisions and ‗will not question such
decisions unless there is no reasonable basis supporting them.‘‖ State
v. Bedell, 2014 UT 1, ¶ 23, 322 P.3d 697 (citations omitted).
¶35 To assess whether counsel‘s performance was deficient, we
―look at the facts and law available to counsel at the time of the
representation.‖ Menzies, 2014 UT 40, ¶ 76 (citation omitted). Hence,
Gallegos must show ―that counsel made errors so serious that
counsel was not functioning as the ‗counsel‘ guaranteed the
defendant by the Sixth Amendment.‖ Strickland, 466 U.S. at 687.
¶36 ―In short, the question of deficient performance ‗is not
whether some strategy other than the one that counsel employed
looks superior given the actual results of trial. It is whether a
reasonable, competent lawyer could have chosen the strategy that
was employed in the real-time context of trial.‘‖ State v. Nelson, 2015
UT 62, ¶ 14, 355 P.3d 1031 (quoting State v. Barela, 2015 UT 22, ¶ 21,
349 P.3d 676).
¶37 Gallegos has the burden to overcome a strong presumption
of reasonableness ―which he must do by ‗identify[ing] the acts or
omissions of counsel that are alleged not to have been the result of
reasonable professional judgment.‘‖ State v. Hutchings, 2012 UT 50,
¶ 18, 285 P.3d 1183 (alteration in original) (quoting Strickland, 466
U.S. at 690).
9
STATE v. GALLEGOS
Opinion of the Court
I. The Court of Appeals Did Not Err in
Denying the Rule 23B Motion
¶38 Gallegos first avers that the court of appeals erred when it
denied his rule 23B motion. Rule 23B embodies our rule-based
attempt to solve a dilemma faced by an appellant who wants to
show that her counsel was ineffective but lacks the facts in the record
she would need to demonstrate that ineffective assistance. The rule
―provides a mechanism for criminal defendants to supplement the
record with facts that are necessary for a finding of ineffective
assistance of counsel but which do not appear in the record.‖ State v.
Griffin, 2015 UT 18, ¶ 17, 441 P.3d 1166.
¶39 Rule 23B(b) requires that the motion be ―accompanied by
affidavits alleging facts not fully appearing in the record on appeal
that show the claimed deficient performance of the attorney. The
affidavits must also allege facts that show the claimed prejudice
suffered by the appellant as a result of the claimed deficient
performance.‖ In short, the attached affidavits and documents must
allege facts, together with those already in the record, that will
demonstrate both deficient performance and prejudice. See UTAH R.
APP. P. 23B(b).
¶40 Rule 23B is not an invitation to fish for facts. ―The mere
hope that an individual may be able to provide information if
subpoenaed to testify is not sufficient. An affiant must submit
specific facts and details that relate to specific relevant occurrences.‖
Griffin, 2015 UT 18, ¶ 19. A motion that merely speculates about
what a remand might uncover will not suffice because ―[p]ermitting
a remand for speculative allegations would not only ‗be inconsistent
with the presumption of sound trial strategy, it would likely open a
floodgate of incomplete and fragmented ineffective assistance claims
on direct appeal.‘‖ Id. (quoting State v. Hopkins, 1999 UT 98, ¶ 13 n.1,
989 P.2d 1065).
¶41 We acknowledge Gallegos‘s efforts to meet this burden and
commend him for providing affidavits that outline the facts he knew
that support his claim of ineffective assistance of counsel. But we
ultimately agree with the court of appeals majority that ―Gallegos‘s
motion fails to establish facts that, if true, would have likely changed
the result here.‖ State v. Gallegos, 2018 UT App 192, ¶ 25, 437 P.3d
388. As detailed more fully below, the evidence against Gallegos was
substantial, and Dr. Buck‘s testimony was far from likely to have
tipped the balance of the evidence towards a more favorable
outcome for Gallegos. See Strickland v. Washington, 466 U.S. 668, 694
(1984) (―The defendant must show that there is a reasonable probability
10
Cite as: 2020 UT 19Opinion of the Court
that, but for counsel‘s unprofessional errors, the result of the
proceeding would have been different.‖ (emphasis added)).
¶42 Indeed, Gallegos‘s motion and affidavits focus primarily on
his trial counsel‘s decision not to call Dr. Buck to the stand to testify
in his defense. Bouwhuis‘s affidavit suggests that because trial
counsel was not doing his assigned work in the capital case they
were working on together, trial counsel likely did not work on
Gallegos‘s case the way he should have. Gallegos‘s affidavit speaks
to trial counsel‘s lack of interest and familiarity with the case,
including the work Dr. Buck had performed, and the seemingly off-
handed way trial counsel concluded that the expert testimony would
not help Gallegos‘s case. And Dr. Buck‘s affidavit addresses,
generally, the testimony she would have provided. As a result, the
affidavits, as the court of appeals recognized, spoke to trial counsel‘s
deficient performance without addressing, in any substantive way,
the effect that Dr. Buck‘s testimony would have had on the outcome
of trial. See Gallegos, 2018 UT App 192, ¶¶ 22, 25.
¶43 Gallegos repeats that pattern in his briefing before this
court. Gallegos takes aim at trial counsel‘s strategy, or perceived lack
of strategy, but does not hone in on the court of appeals‘ conclusion
that, even if trial counsel‘s performance was deficient, Gallegos
suffered no prejudice. For example, Gallegos argues that the court of
appeals ―engaged in unfounded speculation about trial counsel‘s
strategy.‖ But even if we were to accept the argument, this does not
speak to the court of appeals‘ conclusion that granting the rule 23B
motion would ultimately not help Gallegos because he could not
show prejudice. Id. ¶ 25.
¶44 Gallegos‘s argument also relies heavily on the partially
dissenting court of appeals judge‘s analysis and reasoning. The
dissent would have granted the rule 23B motion to allow Gallegos to
add to the record the subjective reasons why trial counsel decided
not to use Dr. Buck. Id. ¶ 71 (Harris, J., concurring in part and
dissenting in part). The dissent was concerned, justifiably, that
counsel did not pay enough attention to Gallegos‘s case. Id. ¶ 60. The
dissent opined that failure to ―hold even one substantive meeting
with one‘s client for nine months‖ after being retained and only to
do so when ordered by the court is ―substandard attorney conduct in
a case as serious as this one.‖ Id. ¶ 61.
¶45 The dissent was also concerned with counsel‘s failure to call
Dr. Buck at trial. Id. ¶¶ 60, 62. He concluded that the majority
speculates about why trial counsel may have chosen not to use Dr.
Buck. Id. ¶ 68. In the end, the dissent was ―not comfortable definitely
11
STATE v. GALLEGOS
Opinion of the Court
answering the ‗prejudice‘ question in this case until after the rule 23B
motion is resolved.‖ Id. ¶ 70.
¶46 We credit the dissent‘s concerns. Gallegos‘s allegations, if
true, paint the picture of an attorney failing to give his client the
attention his case deserves. And that is, of course, very concerning.
But while we share those concerns with the court of appeals dissent,
we are not persuaded that they dictate a different outcome than the
one the court of appeals majority reached, primarily because it was
not necessary to remand to place counsel‘s subjective reasons for not
calling Dr. Buck into the record.
¶47 The Strickland inquiry is objective, not subjective. See
Strickland, 466 U.S. at 690 (―The court must then determine whether,
in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance.‖)
While trial counsel‘s subjective thinking may inform what an
objectively reasonable attorney may have done when presented with
the same circumstances, counsel‘s subjective understanding is not
the standard by which her actions are judged. See id. at 688 (―[T]he
defendant must show that counsel‘s representation fell below an
objective standard of reasonableness.‖). Counsel can, for example, do
the right thing for the wrong reason. But that would not constitute
ineffective assistance of counsel if an objectively reasonable attorney
would have taken the same approach. See State v. Nelson, 2015 UT 62,
¶ 14, 355 P.3d 1031 (restating the standard is ―whether a reasonable,
competent lawyer could have chosen the strategy that was employed
in the real-time context of trial‖). Accordingly, trial counsel‘s
subjective reasoning is not the critical component of the Strickland
inquiry.8 See e.g., State v. Sessions, 2014 UT 44, ¶ 21, 342 P.3d 738(―Strickland assesses the objective sufficiency of counsel‘s
performance, not the subjective adequacy of counsel‘s knowledge.‖).
¶48 Moreover, we, like the court of appeals majority, do not see
the same link between trial counsel‘s deficient performance and the
prejudice inquiry. The dissent concluded that if ―Gallegos is
_____________________________________________________________
8 We do not mean to suggest that trial counsel‘s subjective
understanding is irrelevant to the inquiry. We can envision instances
where knowing trial counsel‘s thinking will illuminate the question
of what a reasonable attorney would or would not do. But we reject
Gallegos‘s argument that the court of appeals could not conduct the
Strickland inquiry without knowing the actual basis for trial counsel‘s
decision.
12
Cite as: 2020 UT 19Opinion of the Court
eventually able to demonstrate that his attorney was unprepared, or
that his attorney acted ineffectively by failing to call an eyewitness
identification expert, the contours of the ‗prejudice‘ inquiry might
look a lot different.‖ Gallegos, 2018 UT App 192, ¶ 70 (Harris, J.,
concurring in part and dissenting). This seems to conflate Strickland‘s
two prongs into a single inquiry, which is problematic because even
the most blatant error in judgment will not warrant a new trial under
Strickland if the mistake does not prejudice the defendant.9
¶49 Take, for example, an attorney who fails to file a motion to
suppress her client‘s confession that he robbed a bank. In this
hypothetical, appellate counsel can show, through affidavit, that trial
counsel did not file the motion because she fundamentally
misunderstood the law. Appellate counsel can also demonstrate that
this is a motion to suppress that a district court would grant ten
times out of ten because the answer is dictated by existing precedent.
¶50 But further assume that, at the same time, the factual record
contains, in addition to the confession, the trial testimony of a half
dozen witness who saw the defendant rob the bank while exclaiming
his name, social security number, and Hotmail password. The record
also contains surveillance video unambiguously showing the
defendant committing the robbery, and a text the defendant sent
saying, ―Just robbed the bank. Be home soon.‖
¶51 Under Strickland‘s two-part test, even that egregious failure
to file a motion to suppress would not result in a new trial because
no prejudice resulted from counsel‘s objectively unreasonable
_____________________________________________________________
9 The dissent could also be read to say that the prejudice inquiry
might be different because, on remand, Gallegos could supplement
the record with testimony from Dr. Buck that was so powerful no
reasonable attorney would fail to introduce Dr. Buck‘s testimony.
And that testimony would change the prejudice calculus and
undermine confidence in the verdict. That, however, is problematic
for a different reason. Rule 23B requires Gallegos to, as a condition
for remand, outline what Dr. Buck‘s testimony would have been.
Rule 23B does not permit Gallegos to use remand as the mechanism
to find out what Dr. Buck would have said at trial. In other words, if
the court of appeals was not convinced that Dr. Buck‘s testimony
would have materially altered the prejudice analysis from the
affidavits submitted in support of the rule 23B motion, Gallegos did
not meet his burden of establishing the need for a remand to place
facts into the record.
13
STATE v. GALLEGOS
Opinion of the Court
decision. See Strickland, 466 U.S. at 687. Thus, we cannot accept the
dissent‘s suggestion that additional facts coming into the record
about trial counsel‘s performance would change the prejudice
inquiry; at least, none of the facts about trial counsel‘s performance
that Gallegos wanted to place into the record would have changed
the prejudice inquiry here.
¶52 For these reasons, the court of appeals majority correctly
denied Gallegos‘s rule 23B motion.
II. The Court of Appeals Did Not Apply
an Incorrect Strickland Standard
¶53 Gallegos next argues that the court of appeals applied a
legally incorrect version of the Strickland standard to reach its
conclusion. The court of appeals reasoned that there ―was a
conceivable basis for trial counsel‘s decision,‖ and that therefore,
Gallegos did not receive ineffective assistance of counsel. State v.
Gallegos, 2018 UT App 192, ¶¶ 27, 56, 437 P.3d 388. Gallegos argues
that the ―no-conceivable-tactical-basis tool has no support in United
States Supreme Court jurisprudence on ineffectiveness.‖
¶54 Gallegos surveys the legal field and reports that he can find
no United States Supreme Court case using a ―no conceivable tactical
basis‖ articulation of the Strickland standard. Gallegos then looks to
federal circuit cases and offers that the standard appears in only ten
cases in the thirty-five post-Strickland years and that in none of those
cases is the phrase a centerpiece of the analysis.10 Gallegos contrasts
that with Utah jurisprudence where, according to Gallegos, it has
become a hallmark.
¶55 Gallegos has a point. We, and to a larger degree the court of
appeals, have developed a tendency to ask whether there is a
conceivable tactical basis for an attorney‘s decision as a proxy for
analyzing whether a trial attorney‘s challenged decision is
objectively reasonable. See e.g., State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d
162; State v. Garcia, 2017 UT App 200, ¶ 19, 407 P.3d 1061; State v.
Allgood, 2017 UT App 92, ¶ 30, 400 P.3d 1088; State v. Bryant, 965 P.2d
539, 542–43 (Utah Ct. App. 1998).
¶56 We recently addressed this practice and its potential to
distort the Strickland analysis. See State v. Ray, 2020 UT 12, — P.3d —.
_____________________________________________________________
10 Based on our own research expanding on variations of
―conceivable tactical basis,‖ we agree that this term has not been
used frequently or prominently outside of the Beehive State.
14
Cite as: 2020 UT 19Opinion of the Court
We explained that an appellate court does not err by asking whether
counsel may have had a sound strategic reason for the challenged
action or omission. Id. ¶ 36. Strickland instructs that a defendant must
ultimately overcome the presumption that an attorney‘s decision
―falls within the wide range of reasonable professional assistance.‖
Strickland, 466 U.S. at 689. If an attorney‘s decisions can be explained
by a reasonable trial strategy, the defendant has necessarily failed to
show deficient performance. Ray, 2020 UT 12, ¶ 34 (citing Strickland,
466 U.S. at 688).
¶57 ―But the converse is not true.‖ Ray, 2020 UT 12, ¶ 34. The
Strickland inquiry does not necessarily end just because the
reviewing court cannot conceive of a sound strategic reason for
counsel‘s challenged action. A reviewing court must always base its
deficiency determination on the ultimate question of whether
counsel‘s act or omission caused her representation to fall below an
objective standard of reasonableness. Id. Here, that would mean
assessing whether failure to call Dr. Buck caused Gallegos‘s trial
counsel‘s representation to fall below a standard of objective
reasonableness. See, e.g., id. ¶ 36 (―[W]e must ask whether defining
indecent liberties was sufficiently important under the circumstances
that counsel‘s failure to argue for a clarifying jury instruction fell
below an objective standard of reasonableness.‖). Although
determining whether there may have been a sound strategic reason
for counsel‘s act or omission is a way to try and answer the question
of whether counsel‘s performance was objectively reasonable, it is
neither the only way, nor the end of the inquiry.
¶58 Here, the court of appeals considered whether Gallegos‘s
counsel may have had a ―conceivable tactical basis‖ for not calling
the expert witness, which we view as synonymous with asking
whether counsel may have had a sound strategic reason for this
decision. We nevertheless understand Gallegos‘s concern with the
use and application of the ―conceivable tactical basis‖ test. Language
matters and, over time, even small variations can take on lives of
their own and distort the analysis. We persist in thinking that if there
exists a ―conceivable tactical basis‖ that explains how a reasonably
objective attorney could have chosen the same course as trial
counsel, a court can conclude that counsel‘s performance satisfies
Strickland. But we take this opportunity to disavow any notion that
the ―no conceivable tactical basis‖ language means anything other
than the Strickland standard. The Supreme Court has spoken. And
we are duty bound to follow.
¶59 Although we have acknowledged that variations in
language might cause a court to stray from the appropriate test, the
15
STATE v. GALLEGOS
Opinion of the Court
court of appeals‘ use of a ―conceivable tactical basis‖ test did not do
so here. The court of appeals looked to see whether Gallegos‘s trial
counsel‘s decision to not call Dr. Buck to testify was objectively
reasonable. The court of appeals reasoned that it did not need to
conclude that counsel had ―a specific strategy in mind‖ but only that
there existed a ―plausible strategic explanation for counsel‘s
behavior‖ which calls for ―an inquiry into the objective
reasonableness of counsel‘s performance, not counsel‘s subjective
state of mind.‖ Gallegos, 2018 UT App 192, ¶ 26 (citation omitted)
(internal quotation marks omitted).
¶60 The court of appeals concluded that there was a conceivable
basis that putting Dr. Buck on the stand ―carried too significant a
possibility that cross-examination by the State would serve only to
solidify and repeatedly highlight the State‘s arguments concerning
factors that made the eyewitness identification credible.‖ Id. ¶ 27.
Additionally, the court of appeals cited its own as-of-yet
unchallenged precedent that it is not per se ineffective to fail to call an
expert on eyewitness testimony. See id. ¶ 26.
¶61 Accordingly, the court of appeals‘ reasoning comports with
the Strickland standard. Once the court of appeals determined that
there was a reasonable strategic explanation for not calling Dr. Buck,
Gallegos had necessarily failed to show that counsel was deficient.
See Ray, 2020 UT 12, ¶ 34. We cannot agree with Gallegos that the
court of appeals broke rank with Strickland when it relied upon the
―no conceivable basis‖ articulation to evaluate whether Gallegos
received ineffective assistance from his counsel.11
III. Gallegos Has Not Shown Prejudice
¶62 Even if trial counsel‘s conduct was professionally
unreasonable, this ―does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.‖
Strickland v. Washington, 466 U.S. 668, 691 (1984).
¶63 ―Strickland requires that ‗any deficiencies in counsel‘s
performance must be prejudicial to the defense.‘ The defendant
_____________________________________________________________
11 As noted above, Gallegos raises an additional argument—that
the court of appeals erred by concluding that the decision to not call
Dr. Buck to the stand was objectively reasonable. Because this court
unanimously agrees that Gallegos was not prejudiced by his
counsel‘s failure to call Dr. Buck, we deliberately do not offer an
opinion on whether the failure to use Dr. Buck in this instance fell
below an objective standard of reasonableness.
16
Cite as: 2020 UT 19Opinion of the Court
generally has the obligation to affirmatively prove prejudice and
‗must show that there is a reasonable probability that, but for
counsel‘s unprofessional errors, the result of the proceeding would
have been different.‘‖ Menzies v. State, 2014 UT 40, ¶ 77, 344 P.3d 581(citations omitted). ―A reasonable probability is a probability
sufficient to undermine confidence in the outcome.‖ Id. ¶ 91 (quoting
Strickland, 466 U.S. at 694).
¶64 ―Further, ‗[i]t is not enough to show that the errors had
some conceivable effect on the outcome of the proceeding.‘ Instead,
‗[t]he likelihood of a different result must be substantial, not just
conceivable.‘‖ Menzies, 2014 UT 40, ¶ 91 (alterations in original)
(citations omitted); see also State v. Nelson, 2015 UT 62, ¶ 28, 355 P.3d
1031. ―Strickland asks whether it is ‗reasonably likely‘ the result
would have been different . . . . The likelihood of a different result
must be substantial, not just conceivable.‖ Harrington v. Richter, 562
U.S. 86, 111–12 (2011) (citations omitted).
¶65 Here there is no substantial probability of a different result
had Gallegos‘s trial counsel called Dr. Buck to testify. There is no
information or testimony that Dr. Buck, as an expert on suspect
identifications by eyewitnesses, would have offered that would have
countered the other evidence the jury heard that pointed to Gallegos.
¶66 Gallegos was found with a knife in his back pocket. This
knife tested positive for Victim‘s blood. When asked about the knife,
the officer testified that Gallegos indicated he had given it to one of
his colleagues earlier and had just been given it back when the
officer stopped him.
¶67 Gallegos was found with Victim‘s blood on his body and
clothing. A swab of blood from behind Gallegos‘s ear tested positive
for Victim‘s blood. Victim‘s blood was also found on Gallegos‘s shirt
and pants. The jury did not hear any expert testimony on how much
blood would come from the stab wound or how the blood would
spatter or spray. But the jury did hear Victim testify that when he
grabbed his chest ―blood skirted out,‖ and he was facing the
assailant. Victim stated that only one person was stabbing him, that
there was only one person ―around nearly that close,‖ and that ―the
guy that was stabbing me was the only one that was around at that
point that was in that direction.‖ Victim further testified that ―I have
a good feeling if there was any blood on anybody, it‘s a very good
chance that‘s probably where it came from.‖
¶68 Finally, the jury heard testimony from two police officers
that they were told that the man who stabbed Victim tripped and fell
when fleeing the scene. Another officer testified that D.L. told him
17
STATE v. GALLEGOS
Opinion of the Court
someone in the group fell while running away from the park. R.S.
also testified that a man in the group tripped, fell, got up, and
continued running away. When Gallegos was taken into custody, he
had skinned knees and scraped hands consistent with tripping and
falling. The jury saw photographs and heard testimony regarding
Gallegos‘s scraped hands and knees.
¶69 Gallegos indicated he got those injuries when he ran from
officers earlier that night. But the jury heard a police officer testify
there had been no foot chases reported that evening.
¶70 Dr. Buck‘s report and likely testimony related only to D.L.‘s
and Victim‘s identifications of Gallegos as the assailant. Specifically,
Dr. Buck‘s affidavit and report opine that the lineup shown to Victim
was not fair, and there was significant bias toward Gallegos.
Additionally, Dr. Buck reported that there were ―significant issues‖
regarding the reliability of the identifications by Victim and D.L.,
especially relating to the quality of the lineup, the use of a showup
identification, the cross-race effect, duration of the event, attention to
the perpetrator, the risk of source confusion, the presence of multiple
perpetrators, the presence of a weapon, the eyewitnesses‘ stress, and
the lighting at the time of the attack.
¶71 Dr. Buck‘s testimony would have been aimed at casting
doubt on the testimony of the two witnesses who identified Gallegos
as the assailant. But Dr. Buck‘s testimony would have done nothing
to diminish the strength of the other evidence the State introduced.
The jury heard that Gallegos was found with the knife with Victim‘s
blood, Victim‘s blood on his body and clothes, and injuries
consistent with testimony that the attacker, whoever it was, tripped
and fell as he was fleeing the park.
¶72 Thus, we are not convinced there is a substantial likelihood
of a different result such that it undermines our confidence in the
outcome of the trial. See Nelson, 2015 UT 62, ¶ 28. Accordingly,
Gallegos cannot show prejudice, and his claim for ineffective
assistance of counsel fails.
CONCLUSION
¶73 The court of appeals did not err in denying Gallegos‘s rule
23B motion, nor was Gallegos prejudiced by his trial counsel‘s
decision not to call Dr. Buck. We affirm.
18