State v. Garcia-Flores , 2021 UT App 97 ( 2021 )

2021 UT App 97THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
DAVID GARCIA-FLORES,
Appellant.
Opinion
No. 20191012-CA
Filed September 23, 2021
Third District Court, West Jordan Department
The Honorable Dianna Gibson
No. 181401528
Sarah J. Carlquist, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
SENIOR JUDGE KATE APPLEBY authored this Opinion, in which
JUDGES RYAN M. HARRIS and DIANA HAGEN concurred.1
APPLEBY, Judge:
¶1 David Garcia-Flores appeals his two convictions of sexual
exploitation of a minor, which were based on child pornography
found on his computer. He argues that the district court should
have granted his motion to suppress statements from his police
interview because they were obtained in violation of his Miranda
rights. He also argues that his trial counsel rendered
constitutionally ineffective assistance by failing to object to the
1. Senior Judge Kate Appleby sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(7).
State v. Garcia-Flores
admission of an allegedly highly prejudicial video that was not
the basis for any of the charges against him. We affirm.
BACKGROUND
¶2 Police executed a search warrant at Garcia’s2 residence
after obtaining information that a video of child pornography
titled “Spermed Little Girls Mix” was being shared on a peer-to-
peer network3 from a computer there. The search produced one
device with child pornography stored on it—a computer
apparently belonging to Garcia. Garcia was charged with six
counts of sexual exploitation of a minor based on photographs
and videos found on this computer.
¶3 During execution of the search warrant, police also
interviewed Garcia. The officer conducting the interview began
by reading Garcia’s Miranda rights and asking questions about
his education level and English proficiency to ensure he
understood the explanation of those rights. Garcia initially stated
he was “absolutely” willing to proceed with the interview, but
after some further questioning he asked, “[I]s it, uh, possible to
have a lawyer[?]” Despite this apparent reluctance and without
further prompting from the officer, Garcia continued to explain
his situation, elaborating for some time on a “darkness” with
2. When identifying himself for the record at trial, the defendant
used Garcia as his surname. We continue this usage for the sake
of clarity.
3. Peer-to-peer networks allow users to “share files on their
computer with others” over the internet, as well as to download
files shared by others, and they “provide common forums for
those who trade child pornography on the internet.” United
States v. Shipton, 5 F.4th 933, 935 (8th Cir. 2021).
20191012-CA 2 2021 UT App 97State v. Garcia-Flores
which he was struggling. The officer, before asking any other
questions, sought confirmation that Garcia wanted to continue
talking to police, and Garcia again indicated he was “absolutely”
willing to continue the interview. During the questioning that
followed, Garcia admitted the computer was his, he was its sole
user, and no one else knew his password. He also admitted he
had downloaded and viewed child pornography.
¶4 Defense counsel moved to suppress nearly all evidence
obtained during the police interview, arguing that Garcia’s
rights had been violated when police continued to talk with him
after he had invoked his right to counsel. The district court
denied the motion, reasoning that although Garcia had invoked
his right to counsel, he then “knowingly and intelligently”
waived it by immediately initiating further discussion with the
officers. Thus, the State was permitted to introduce at trial the
incriminating admissions Garcia made at the end of his
interview.
¶5 Prior to trial, defense counsel also raised some concerns
regarding files found on Garcia’s computer that were not the
basis for any of the charged offenses. Defense counsel agreed the
file names were relevant and did not object to the State listing
them among the items found on the computer, provided the
images were not shown or characterized as child pornography.
The State clarified its intention to present to the jury a visual
depiction of only the files on which the charges were based, as
well as the “Spermed Little Girls Mix” video (which was the
impetus of the investigation but did not serve as the basis for
any of the charges). After hearing these assurances, defense
counsel said he was “fine with that.”
¶6 Accordingly, at trial the State presented, as its Exhibit 1,
portions of the “Spermed Little Girls Mix” video that originally
led investigators to Garcia. Although it is unclear from the
record which portions of the video were included in the
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approximately half-minute excerpt played for the jury,
investigative documents described the video as follows: “39
video segments of naked prepubescent girl’s [sic] being orally
sodomized (man’s penis to girl’s mouth) and vaginally raped.
During all video segments, the men ejaculate into the girl’s [sic]
mouths and vaginas.” In addition to Exhibit 1, the State
presented the two videos and three photographs providing the
bases for the six sexual exploitation charges.4 These images and
videos were of young girls in various stages of undress,
exposing their buttocks, anuses, genitals, or breasts to the
camera.
¶7 In addition to these several files, the State presented
forensic information gathered from the two searches of Garcia’s
computer—those two searches being the initial forensic preview
conducted during the execution of the search warrant and a
more extensive search after the computer had been seized. For
each search, the State submitted into evidence a list of the files
that its analysis indicated had recently been opened on Garcia’s
computer. The State’s evidence indicated that the two videos
supporting two of the charges against Garcia had recently been
opened, but that the three photographs underlying the
remainder of the charges had not recently been opened.
¶8 As part of his defense, Garcia testified that he had been
trying to download adult pornography and incidentally had
received downloads of child pornography when doing so. He
testified that when he realized he had files that seemed as
though they might contain child pornography, he opened them
to see whether they really did, and then deleted them: “I was
4. Because one of the files was a photograph depicting two
minor girls, it served as the basis for two of the charges. The
other four files each depicted one minor girl. Thus, the six
charges were based on only five files.
20191012-CA 4 2021 UT App 97State v. Garcia-Flores
going to go and check to see if it really was what it was, and if it
was, I would delete it, which I did.”
¶9 The jury convicted Garcia on two counts of sexual
exploitation of a minor—specifically, the two counts related to
the two video files for which there was evidence that the files
recently had been opened—but acquitted him on the remaining
four counts. He now appeals.
ISSUES AND STANDARDS OF REVIEW
¶10 Garcia appeals the district court’s denial of his motion to
suppress portions of his police interview. “We review a district
court’s ruling on a motion to suppress for correctness, and we
review its factual findings in support of its ruling for clear
error.” State v. Gardner, 2018 UT App 126, ¶ 11, 428 P.3d 58.
Therefore, “when a district court bases its ultimate conclusions
concerning the waiver of a defendant’s Miranda rights[] upon
essentially undisputed facts, in particular the transcript of an
officer’s colloquy with the defendant, its conclusions present
questions of law which we review under a correction of error
standard.” Id. (quotation simplified).5
¶11 Garcia also argues that his defense counsel at trial
rendered ineffective assistance by failing to object to the State’s
efforts to present Exhibit 1 to the jury. “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
5. Although the district court did not base its decision on the
written transcript of the interview, but on the sound recording of
that interview, the court’s conclusions were still based on
“essentially undisputed facts,” see State v. Gardner, 2018 UT App
126, ¶ 11, 428 P.3d 58 (quotation simplified).
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decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Beckering, 2015
UT App 53, ¶ 18, 346 P.3d 672 (quotation simplified).
ANALYSIS
I. Motion to Suppress the Police Interview
¶12 Garcia argues that the district court should have granted
his motion to suppress all statements made after he had invoked
the right to counsel during his police interview. The parties
agree that Garcia waived his Miranda rights at the beginning of
the interview. The dispute thus lies in whether he later invoked
his rights and, if so, whether he waived them a second time. The
district court determined that Garcia had “unequivocally
invoked his right to counsel” when he mentioned having an
attorney present, but again waived that right immediately
thereafter when he initiated further discussion with the officer.
Garcia argues that his continued statements were not of the sort
that would have constituted a second waiver. The State, on the
other hand, argues that Garcia never even invoked his rights to
counsel; alternatively, it argues that even if he initially did, his
subsequent statements would have amounted to a second
waiver of those rights. We agree with the State on both counts.
¶13 First, Garcia did not make an unequivocal request for an
attorney. Once law enforcement officers have given the
appropriate Miranda warnings and a suspect has effectively
waived the right to counsel, officers are free to question the
suspect. See Davis v. United States, 512 U.S. 452, 458 (1994). “But if
a suspect requests counsel at any time during the interview, he is
not subject to further questioning until a lawyer has been made
available or the suspect himself reinitiates conversation.” Id. The
request for counsel must be unambiguous. Id. at 459. If the
request is, instead, “ambiguous or equivocal in that a reasonable
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officer in light of the circumstances would have understood only
that the suspect might be invoking the right to counsel,” officers
may continue questioning the suspect. Id.; cf. Miranda v. Arizona,
384 U.S. 436, 485 (1966) (“If [a suspect] is indecisive in his request
for counsel, there may be some question on whether he did or
did not waive [the right to] counsel.”). In sum, “after a knowing
and voluntary waiver of the Miranda rights, law enforcement
officers may continue questioning until and unless the suspect
clearly requests an attorney.” Davis, 512 U.S. at 461.
¶14 We disagree with the district court’s determination that
Garcia unequivocally invoked his right to counsel. The police
interview began with the officer explaining Garcia’s Miranda
rights and asking him questions about his level of education and
his proficiency in English to be certain that Garcia understood
the explanation of those rights. The officer then asked, “So
having that in mind, do you want to talk to us?” Garcia
responded, “Umm, yeah, yeah absolutely, yeah.” This was a
clear waiver of the right to counsel. After the officer continued to
discuss the case, including sharing information about the search
warrant and explaining that the police were trying to determine
who had downloaded child pornography at Garcia’s residence,
and after Garcia answered some other questions, the following
exchange took place:
[Garcia]: Can I say something?
[Officer]: Sure
[Garcia]: Is, is, is it, uh, possible to have a lawyer,
um I-I want, I wanna be upfront with this—
[Officer]: Ok.
[Garcia]: —and I don’t even know if that’s gonna
help me at all.
20191012-CA 7 2021 UT App 97State v. Garcia-Flores
[Officer]: Ok.
[Garcia]: I don’t know.
[Officer]: K.
Garcia then continued, “I don’t want them to go through
anything” and explained that he had “been suffering with
darkness,” that he was not happy about it, that he had “been
fighting” it, and that he hated himself and had “contemplated
suicide.” During this time, the officer’s comments were limited
to brief responses of acknowledgement, such as “Ok” or “I
understand.”
¶15 Garcia’s question about the possibility of having an
attorney present did not amount to an unambiguous request for
counsel. Rather, a reasonable officer in these circumstances
would have, at most, understood that Garcia might be invoking
the right to counsel with his question about getting a lawyer. See
Davis, 512 U.S. at 462 (determining that a suspect saying “Maybe
I should talk to a lawyer” was not an unambiguous request for
counsel and did not require officers to stop the questioning).
Accordingly, the officer was not required to stop questioning
Garcia.
¶16 Of course, when a suspect’s equivocal statement leaves an
officer unsure of whether the suspect is requesting counsel, it is
good practice for the officer to seek clarification. See id. at 461.
“Clarifying questions help protect the rights of the suspect by
ensuring that he gets an attorney if he wants one, and will
minimize the chance of a confession being suppressed due to
subsequent judicial second-guessing as to the meaning of the
suspect’s statement regarding counsel.” Id.
¶17 Indeed, that is what happened here. After Garcia’s
multiple spontaneous statements, the officer expressed some
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sympathy and encouragement, but also said, “Now I need to
make sure that you’re in the right place and you’re ok to talk
with us about this because we wanna try to figure [it] out . . . .”
Garcia did not directly reply but, instead, made more statements
explaining his struggle, including the following: “I have this
weird thing that I want it to go away”; “this is something that
psychologically we can’t get rid of”; “I do ask God for help”; “if
there was something I could wish for it’s to get rid of this”; and
“you know, after I’m done, all this guilt comes in.” Then the
officer, after thanking him for his candor and expressing a desire
to ask more questions, again attempted to clarify whether Garcia
was willing to continue the interview:
[Officer]: I need you to tell me that you’re ok with
talking to us—
[Garcia]: Absolutely sir—
[Officer]: —and answering some questions.
[Garcia]: —absolutely [Officer].
Thus, the officer clarified that Garcia was not invoking his right
to counsel and confirmed that he was willing to continue the
conversation before the officer asked any further questions.
¶18 Second, even if we were to construe Garcia’s question
about counsel as an unambiguous request for an attorney, we
also agree with the State’s alternative argument that Garcia
waived his right to counsel, for a second time, immediately after
he posed this question. If “the accused himself initiates further
communication, exchanges, or conversations with the police,
then he has effectively waived his right to counsel and the
interrogation may continue.” State v. Medina, 2019 UT App 49,
¶ 13, 440 P.3d 846 (quotation simplified). Such a waiver exists if
three conditions are met:
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First, it must be the accused, not the law
enforcement officers, who initiates the
conversations in which the incriminating
statements are made. Second, the prosecution must
show a knowing and intelligent waiver of the right
to counsel. Third, the accused’s statements must be
shown by a preponderance of the evidence to have
been voluntarily made.
Id. ¶ 14 (quotation simplified).
¶19 As to the first element, it is clear that Garcia—not the
officer—initiated further conversation after the alleged
invocation. We recognize that when the initiated conversation is
“a routine conversation about something unrelated to the crime
charged,” it will not amount to a waiver. Id. ¶ 15 (quotation
simplified). “In order for a defendant to initiate a conversation
with authorities that will be held to constitute a willingness to
talk about the charges without counsel, he or she must indicate a
desire to open up a more generalized discussion relating directly
or indirectly to the investigation.” Id. ¶ 16 (quotation simplified).
Garcia’s conversation here was neither routine nor unrelated to
the crime charged; instead, the comments were directly related
to the ongoing investigation. See id. ¶¶ 20–21 (determining the
first element was met when the defendant “spontaneously
launched into an extensive and elaborate explanation for the
circumstances” and drawing a parallel to another case in which
the defendant “went on to—without invitation or provocation—
explain himself and divulge further details regarding the crime
charged”). Garcia stated that he did not want people looking
through his things, spoke of the “darkness” with which he had
been struggling, and lamented the consequences the
investigation would have on his life—all of which was entirely
unprompted. He now argues that such statements were simply
“self-reflective statements” regarding mental health struggles he
was experiencing and worries about how the charges would
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affect his life even if he had done nothing wrong. We disagree.
His other statements appear to indicate that the “darkness” with
which he struggled was not simply a mental health challenge,
but was instead connected to his consumption of child
pornography. For example, his statements—that “this is not who
I am, I’m a very ethical per[son], my parents raised me right,”
and “people look at, this kind of society like, people are
monsters and, you don’t even know, like it’s, I cry sometimes”—
appear directly related to the subject of the investigation.
Furthermore, his statements were not introspective, but were
directed toward the officer—for example, “You understand
that[?]” and “You think it’s easy? You think it’s something we
choose?” Thus, it is apparent from the record that Garcia
initiated the continued conversation with the investigating
officers.
¶20 As to the second element, “the determination of whether a
waiver of the right to counsel was made knowingly and
intelligently depends upon the particular facts and
circumstances surrounding the case, including the background,
experience, and conduct of the accused.” Id. ¶ 23 (quotation
simplified). Garcia was in his late 20s, had attended two years of
college, was bilingual, and just a few minutes earlier had been
informed of—and affirmed that he understood—his Miranda
rights. If Garcia initially understood his rights and what he
would waive by talking to police, he certainly retained that
understanding a few minutes later. Yet he continued talking to
the officer, demonstrating that he was willing to talk
notwithstanding his right not to. See Berghuis v. Thompkins, 560
U.S. 370, 385 (2010) (“As a general proposition, the law can
presume that an individual who, with a full understanding of his
or her rights, acts in a manner inconsistent with their exercise
has made a deliberate choice to relinquish the protection those
rights afford.”). And again, before asking any other questions,
the officer twice sought clarification from Garcia that he was
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comfortable proceeding with the interview. Therefore, we agree
with the district court that Garcia knowingly and intelligently
waived his rights.
¶21 Finally, as to the third element of voluntariness, “the
ultimate inquiry is whether physical or psychological force or
other improper threats or promises prompted the accused to talk
when he otherwise would not have done so.” Medina, 2019 UT
App 49, ¶ 29 (quotation simplified). Immediately after the officer
responded “Ok” when Garcia asked about the possibility of
counsel being present, Garcia initiated a two-minute explanation
of his situation, with the officer only interjecting words such as
“Ok” and “yeah” along the way. Garcia’s statements were
unprompted and not the result of any force—or even any
questioning—on the officer’s part. Indeed, when the officer
subsequently tried the first time to clarify whether Garcia was
willing to continue talking with him, Garcia did not directly
answer and shared even more information. And when the officer
asked for clarification a second time, Garcia confirmed that he
was “absolutely” willing to continue talking with the officer.
Those clarifying questions were the only questions the officer
asked until Garcia specifically stated his willingness to talk.
Therefore, we see no indicia of Garcia’s waiver being in any way
nonvoluntary.
¶22 Garcia resists this conclusion, arguing that although the
officer did not ask any questions until after he had received
another assurance that Garcia was “absolutely” willing to talk,
the officer made other statements in the interim that amounted
to a “well-worn interrogative technique” in which the officer
displays confidence in the suspect’s guilt and makes comments
as to why—not whether—he committed the crime. Although we
do not necessarily agree with this characterization, Garcia’s
argument on this matter is unavailing because the statements he
finds questionable were made much later in the dialogue, after
Garcia had already waived his right to counsel by continuing to
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speak with the officer. After Garcia’s reference to counsel, the
officer made no statements aside from one-word interjections
such as “Ok” and “yeah” for a solid two minutes while Garcia
kept talking and explaining his struggles with the “darkness.”
The officer employed no force, psychological or otherwise, to
induce Garcia to talk. And by the time the officer made
additional statements a few minutes later, waiver had already
occurred.
¶23 In sum, Garcia’s question regarding the presence of an
attorney—“is it, uh, possible to have a lawyer”—did not amount
to an unambiguous request for counsel and did not invoke his
right to counsel. And even if Garcia’s question had invoked the
right, we agree with the district court that his subsequent
voluntary initiation of further dialogue constituted a second
waiver. We therefore see no error in the court’s denial of Garcia’s
motion to suppress.6
II. Ineffective Assistance of Counsel
¶24 Garcia argues that his defense counsel rendered
ineffective assistance when failing to object to the admission of
Exhibit 1. To succeed on his ineffective assistance of counsel
claim, Garcia must show both that his defense counsel’s
performance was “deficient” and that it “prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
6. Garcia also argues that the cumulative effect of multiple errors
requires reversal. But because he makes only two claims of error
and we determine that the first is not well taken, the cumulative
error doctrine does not apply and we need not address
cumulative prejudicial impact. See State v. Galindo, 2019 UT App
171, ¶ 17 n.4, 452 P.3d 519 (“There are no errors to accumulate
here, rendering the cumulative error doctrine inapplicable in this
case.”).
20191012-CA 13 2021 UT App 97State v. Garcia-Flores
¶25 Deficient performance is that which is unreasonable based
on “prevailing professional norms.” Id. at 688. We are persuaded
that under the facts of this case, the failure to object to Exhibit 1
was deficient performance. Although Exhibit 1 was relevant
because it was the video that triggered the investigation, its
probative value was limited because it was not the basis for any
of the charges against Garcia. Additionally, according to its
description in the search warrant application, Exhibit 1 was
significantly more repulsive in nature than the child
pornography that underlay the charges, thus making its danger
of unfair prejudice very high in comparison to its probative
value. Therefore, an objection under rule 403 of the Utah Rules
of Evidence almost certainly would have been successful, see
Utah R. Evid. 403 (“The court may exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . .
unfair prejudice . . . .”), and would have prevented the jury from
seeing the highly prejudicial footage. We are convinced that
under these circumstances, the failure to object to the admission
of Exhibit 1 “fell below an objective standard of reasonableness.”
See Strickland, 466 U.S. at 688.
¶26 But “[a]n error by counsel, even if professionally
unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.”
Id. at 691. Instead, “[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. Garcia has not met his
burden to show prejudice under the facts of this case.
¶27 To evaluate prejudice under Strickland, “we assess
counterfactual scenarios—that is, what would have happened
but for the ineffective assistance.” Ross v. State, 2019 UT 48, ¶ 76,
448 P.3d 1203. The counterfactual analysis requires us “to
consider a hypothetical—an alternative universe in which the
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trial went off without the error.” State v. Ellis, 2018 UT 2, ¶ 42,
417 P.3d 86. Where the error resulted in the admission of
evidence that should have been excluded, we ask “whether, in
the absence of the improperly admitted evidence, the likelihood
of a different outcome is sufficiently high to undermine our
confidence in the verdict.” State v. Leech, 2020 UT App 116, ¶ 67,
473 P.3d 218. Here, we assess the likely outcome of a trial in
which Exhibit 1 was excluded leaving the jury to consider the
remainder of the prosecution’s case. See id.
¶28 Because the State’s case is unusually strong, we are not
convinced that even if Exhibit 1 had been kept from the jury,
there is a reasonable probability the result would have been
better for Garcia. The files underlying the two charges of which
he was convicted were on Garcia’s computer and there was
evidence that each had recently been opened. And most
importantly, Garcia confessed to police that he had viewed child
pornography, describing in some detail his child pornography
addiction, the search terms he used to find child pornography,
and his intentional downloading and viewing of child
pornography. Of course, Garcia testified somewhat differently at
trial, but his testimony was still that the computer was his, that
he downloaded the child pornography, and that he opened the
files that were on the forensic lists identifying recently opened
files. The changes between his trial testimony and his earlier
statements to police were that the downloads were unintentional
and he had opened the videos only to verify that they were child
pornography and should be deleted. But, as the questions on
cross-examination highlighted, this explanation was suspect, not
only because it contradicted what he told officers during his
interview, but also because many of the recently opened files
had highly graphic and offensive names clearly indicative of
child pornography. Considering the strength of the State’s case
and the evidence supporting the charge that Garcia knowingly
possessed or intentionally viewed the two files on which his
20191012-CA 15 2021 UT App 97State v. Garcia-Flores
convictions rest, we do not see a reasonable probability of a
different result in the absence of the admission of Exhibit 1, and
Garcia’s ineffective assistance claim therefore fails.7
7. Garcia argues that admission of such inflammatory material is
always prejudicial, relying on United States v. Cunningham, 694
F.3d 372 (3d Cir. 2012), and United States v. Loughry, 660 F.3d 965(7th Cir. 2011). But we do not agree that these cases support such
a sweeping proposition.
First, the procedural footing of these cases is different.
The errors at issue in these federal cases had been objected to by
defense counsel and preserved for appeal. Cunningham, 694 F.3d
at 379–80; Loughry, 660 F.3d at 970. Thus, the question was
whether the government had carried its burden to prove that the
errors were harmless. Cunningham, 694 F.3d at 391–92; Loughry,
660 F.3d at 975. See generally United States v. Olano, 507 U.S. 725,
734–35 (1993) (explaining that, under the Federal Rules of
Criminal Procedure, the government bears the burden on appeal
to show that a preserved error was harmless); State v. Leech, 2020
UT App 116, ¶ 43 n.7, 473 P.3d 218 (explaining the differences
between the federal and state rules regarding the placement of
appellate burdens of persuasion on preserved and unpreserved
claims of error). But the issue before us admittedly was not
preserved and instead is considered in the context of an
ineffective assistance of counsel claim, in which the defendant
has the burden to show that an error was not harmless.
Second, the harmless error standard applied in those
federal cases is substantively different from the prejudice
standard we must apply in ineffective assistance cases. Under
Cunningham, “the test for harmless error is whether it is highly
probable that the error did not contribute to the judgment. This
high probability requires that the court possess a sure conviction
that the error did not prejudice the defendant.” 694 F.3d at 391–
(continued…)
20191012-CA 16 2021 UT App 97State v. Garcia-Flores
CONCLUSION
¶29 The district court did not err in denying the motion to
suppress portions of the police interview. And because Garcia
has not carried his burden of demonstrating prejudice from the
admission of Exhibit 1, his claim of ineffective assistance of
counsel fails. Therefore, we affirm.
(…continued)
92 (quotation simplified). But when assessing prejudice under an
ineffective assistance of counsel claim, “the question is not
whether a court can be certain counsel’s performance had no
effect on the outcome or whether it is possible a reasonable
doubt might have been established if counsel acted differently.
Instead, [the question is] whether it is reasonably likely the result
would have been different.” Harrington v. Richter, 562 U.S. 86,
111 (2011) (quotation simplified); accord State v. Gallegos, 2020 UT
19, ¶ 64, 463 P.3d 641. That is, “‘[t]he likelihood of a different
result must be substantial, not just conceivable.’” Gallegos, 2020
UT 19, ¶ 64 (quoting Harrington, 562 U.S. at 112).
Furthermore, although the presentation of child
pornography in Cunningham and Loughry was not harmless, we
do not see that these cases support a broad assertion that
improperly admitted child pornography can never be harmless.
See Cunningham, 694 F.3d at 390–92 (determining only that “at
least two” of the seven very disturbing child pornography video
excerpts were “patently prejudicial”); Loughry, 660 F.3d at 975(recognizing that the harmlessness analysis rested not just on the
inflammatory nature of the child pornography, but also on the
weakness of the prosecution’s case).
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