State v. Heimuli , 2012 UT App 69 ( 2012 )

IN THE UTAH COURT OF APPEALS
‐‐‐‐ooOoo‐‐‐‐
State of Utah, ) MEMORANDUM DECISION
)
Plaintiff and Appellee, ) Case No. 20091039‐CA
)
v. ) FILED
) (March 15, 2012)
Marco Heimuli, )
) 2012 UT App 69Defendant and Appellant. )
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Third District, Salt Lake Department, 071902588
The Honorable Randall N. Skanchy
Attorneys: Debra M. Nelson, Salt Lake City, for Appellant
Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee
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Before Judges Davis, Thorne, and Roth.
DAVIS, Judge:
¶1 Marco Heimuli appeals his convictions of murder, a first degree felony, see Utah
Code Ann. § 76‐5‐203(2)‐(3) (Supp. 2011), and attempted murder, a second degree
felony, see id. § 76‐4‐101 (2008); id. § 76‐4‐102(2) (2003) (current version at id. § 76‐4‐
102(1)(b)‐(c) (2008)). We affirm.
¶2 Heimuli was convicted, along with his co‐defendant, Anthony David Milligan,
for shooting one man and killing another in July 2006. See State v. Milligan, 2011 UT
App 390, ¶ 2, 265 P.3d 132 (reciting additional background relating to the shooting). At
trial, the State presented evidence that following the shooting, Heimuli fled from the
scene, changed his appearance, and left Utah. A witness who assisted Heimuli in
fleeing the state testified that Heimuli told him that he had just “shot two guys in the
face” and “need[ed] to go, get away.” The State also introduced the testimony of a
number of witnesses who identified Heimuli as one of the shooters. However, the
reliability of the witnesses was questionable because the shooting occurred at night
when visibility was limited, most of the witnesses were under the influence of drugs
and alcohol at the time, and the witnesses’ stories were inconsistent and may have been
influenced by discussions with other witnesses.
¶3 First, Heimuli argues that he is entitled to a new trial because his counsel
performed ineffectively by failing to introduce expert testimony regarding the reliability
of eyewitness testimony. In order to support an ineffective assistance of counsel claim,
a defendant must demonstrate, first, that “counsel’s performance was deficient, in that
it fell below an objective standard of reasonable professional judgment,” and, second,
that “counsel’s deficient performance was prejudicial—i.e., that it affected the outcome
of the case.” State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v.
Washington, 466 U.S. 668, 687‐88 (1984)).
¶4 In analyzing the deficient performance prong, we “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” Strickland, 466 U.S. at 689. Furthermore, because an analysis
regarding the effectiveness of counsel must make “every effort . . . to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s perspective at the time,” see id., we
must consider the law in effect at the time of trial in evaluating whether counsel
performed deficiently, see State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993).
¶5 At the time of Heimuli’s trial in September 2009, Utah trial courts routinely
employed “a de facto presumption against eyewitness expert testimony.” State v.
Clopten, 2009 UT 84, ¶ 13, 223 P.3d 1103. This presumption arose in response to case
law discouraging the use of such testimony,1 as well as the appellate courts’ long
1
Although the supreme court has explained that it did not intend to completely
preclude the use of eyewitness expert testimony, see State v. Clopten, 2009 UT 84, ¶ 12,
223 P.3d 1103, the dilemma created by the fact that such testimony was generally seen
as either too specific, so as to “cause the jury to abdicate its role as fact finder,” or too
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20091039‐CA 2
history of declining to reverse convictions based on failure to admit expert testimony
relating to eyewitness identification. See id. ¶¶ 11, 13. However, three months after
Heimuli’s trial, in the case of State v. Clopten, 2009 UT 84, 223 P.3d 1103, the Utah
Supreme Court reversed this practice, holding that “the testimony of a qualified expert
regarding factors that have been shown to contribute to inaccurate eyewitness
identifications should be admitted whenever it meets the requirements of rule 702 of the
Utah Rules of Evidence.” See id. ¶ 30. See generally Utah R. Evid. 702 (setting forth the
requirements for admission of expert testimony).
¶6 The State argues that counsel’s decision not to attempt to introduce eyewitness
expert testimony could not be considered deficient performance because under the law
at the time of Heimuli’s trial, the de facto presumption against admission of such
testimony was still in force. Though Heimuli acknowledges the state of the law at the
time of trial, including the “seeming reinforcement [of the presumption] by appellate
courts,” he contends that the presumption “did not relieve counsel of his responsibility
to request an eyewitness identification expert” in light of scientific evidence
demonstrating that “cross‐examination and cautionary instructions alone were an
insufficient safeguard against mistaken identifications.” We disagree with Heimuli’s
assertion that counsel had an obligation to request that the trial court admit eyewitness
expert testimony under the circumstances. The de facto presumption against such
testimony, which enjoyed a long precedent prior to the supreme court’s decision in
Clopten, would have effectively foreclosed any effort counsel might have made to admit
the testimony. The fact that counsel could have or even should have2 been aware of the
1
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general, so as to “constitute a lecture to the jury about how it should judge the
evidence,” led to the effective exclusion of such testimony in most cases. See id. ¶ 13(internal quotation marks omitted).
2
Heimuli cites case law discussing counsel’s “duty to adequately investigate the
underlying facts of the case,” State v. Lenkart, 2011 UT 27, ¶ 27, 262 P.3d 1 (internal
quotation marks omitted), and asserts that counsel performed deficiently by failing to
look into “the uncontroverted research establishing expert testimony is necessary in
cases like Heimuli’s.” Heimuli correctly points out that “failing to investigate because
counsel does not think it will help does not constitute a strategic decision, but rather an
abdication of advocacy.” See id. ¶ 28 (internal quotation marks omitted). However, the
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20091039‐CA 3
research Heimuli refers to does not alter the fact that our supreme court, prior to its
decision in Clopten, had consistently upheld trial courts’ exclusion of eyewitness expert
testimony even in the face of such research. See, e.g., State v. Maestas, 2002 UT 123,
¶¶ 62‐69, 63 P.3d 621 (Durrant, J., dissenting and concurring); id. ¶¶ 135‐39 (Russon, J.,
concurring and dissenting); State v. Hubbard, 2002 UT 45, ¶¶ 14‐20, 48 P.3d 953; State v.
Butterfield, 2001 UT 59, ¶¶ 42‐44, 27 P.3d 1133. Thus, regardless of the scientific research
that may have supported admission, Heimuli’s counsel did not perform below an
objective standard of reasonableness by not pursuing admission of expert testimony.
See generally State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 (“[T]he failure of counsel to
make motions or objections which would be futile if raised does not constitute
ineffective assistance.” (alteration in original) (internal quotation marks omitted)).
¶7 In any case, we are not convinced that “the result of the proceeding would have
been different,” see Strickland, 466 U.S. at 694, had the jury been educated by an expert
on the reliability of eyewitness testimony. Although eyewitness testimony comprised a
large part of the State’s case, the jury’s verdict is also supported by evidence that
Heimuli fled the state following the shooting and admitted to an acquaintance that he
had “shot two guys in the face.” It is unlikely, under these circumstances, that expert
testimony would have sufficiently undermined the eyewitnesses’ credibility3 so as to
have led the jury to have “a reasonable doubt respecting guilt,” see id. at 695.
2
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fact that counsel did not introduce eyewitness expert testimony—testimony that had
been routinely rejected by our trial courts—does not demonstrate a lack of
investigation. While the failure to investigate a possible avenue of defense may
constitute ineffective assistance, the failure to actually employ such a defense, either for
strategic reasons or because the defense would be futile, does not. An advocate’s
responsibility is not to present every possible defense but merely to investigate the facts
in a manner adequate to “set[] the foundation for counsel’s strategic decisions about
how to build the best defense.” Id. ¶ 27 (internal quotation marks omitted).
3
In fact, as the State points out, some of the factors affecting eyewitness
credibility actually strengthen the reliability of the witnesses, such as the fact that most
of the witnesses were the same race as Heimuli and the fact that Heimuli is larger than
an average man. See generally Clopten, 2009 UT 84, ¶ 32 n.22 (listing factors that affect
eyewitness reliability).
20091039‐CA 4
¶8 Next, Heimuli argues that there was insufficient evidence to prove that he caused
the victim’s death. However, Heimuli failed to satisfy his marshaling burden because
his brief merely lists the evidence presented at trial and then concludes, without any
analysis, that the evidence was insufficient to support the verdict. See generally Kimball
v. Kimball, 2009 UT App 233, ¶ 21, 217 P.3d 733 (“The marshaling requirement is not
satisfied if parties just list all the evidence presented at trial . . . .”); id. ¶ 20 n.5 (“If there
is some supportive evidence, once that evidence is marshaled it is the challenger’s
burden to show the ‘fatal flaw’ in that supportive evidence, and explain why the
evidence is legally insufficient to support the [verdict].” (citation omitted)). To the
extent that Heimuli’s brief may be construed as providing any analysis, it focuses on his
assertion that Heimuli could not be found guilty as a principal because it was
impossible to determine whether the victim was killed by a bullet from his gun or
Milligan’s. But Heimuli was charged as a party, not a principal: he was specifically
charged as a party in the information, the State explained at trial that both Milligan and
Heimuli were being charged as parties because it was unknown which bullet killed the
victim, and the jury instructions included an instruction on party liability.4 Thus, even
if Heimuli had appropriately marshaled the evidence, his assertion that the evidence
was insufficient to show that his bullet killed the victim would not undermine the jury’s
verdict.5
4
Heimuli asserts that “the jury instruction given to find [him] guilty of murder
did not include the elements of party liability.” However, Jury Instruction 36 tracks the
party liability statute nearly word for word and was provided as a general instruction
applicable to all the charges. See generally Utah Code Ann. § 76‐2‐202 (2008) (“Every
person, acting with the mental state required for the commission of an offense who
directly commits the offense, who solicits, requests, commands, encourages, or
intentionally aids another person to engage in conduct which constitutes an offense
shall be criminally liable as a party for such conduct.”). The fact that the language was
not repeated specifically in the instruction that listed the elements of the murder charge
does not negate the applicability of Instruction 36 to that charge, particularly in light of
the fact that it was made apparent at trial that Heimuli was being charged as a party.
5
Heimuli’s last‐minute assertion in his reply brief that “the evidence as
marshaled by Heimuli in his opening brief also demonstrates the evidence was
insufficient to convict Heimuli as a party” provides insufficient analysis of the
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20091039‐CA 5
¶9 Because a de facto presumption against the admission of expert eyewitness
testimony existed at the time of Heimuli’s trial, his counsel did not perform deficiently
by not requesting that the trial court admit such testimony. And because the
eyewitness testimony was corroborated by Heimuli’s flight and his own statements, the
lack of expert testimony was not prejudicial. Furthermore, we reject Heimuli’s claim
regarding the sufficiency of the evidence because he was convicted as a party, rather
than a principal, and because he did not adequately analyze the marshaled evidence.
We therefore affirm Heimuli’s convictions.
____________________________________
James Z. Davis, Judge
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¶10 WE CONCUR:
____________________________________
William A. Thorne Jr., Judge
____________________________________
Stephen L. Roth, Judge
5
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marshaled evidence. In any case, we do not generally consider arguments “raised for
the first time in the reply brief.” See Coleman v. Stevens, 2000 UT 98, ¶ 9, 17 P.3d 1122.
20091039‐CA 6