State v. Whitchurch ( 2024 )

2024 UT App 108THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KRISTY LEE WHITCHURCH,
Appellant.
Opinion
No. 20200938-CA
Filed August 1, 2024
Eighth District Court, Duchesne Department
The Honorable Samuel P. Chiara
No. 181800358
Emily Adams and Freyja Johnson,
Attorneys for Appellant
Sean D. Reyes, John J. Nielsen, Christopher A. Bates,
and Andrew F. Peterson, Attorneys for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES GREGORY K. ORME and RYAN M. HARRIS concurred.
LUTHY, Judge:
¶1 Kristy Lee Whitchurch appeals her convictions for murder,
aggravated assault, and aggravated burglary. She argues that she
was denied the effective assistance of counsel due to several
alleged failings of her trial counsel (Counsel) during the
presentation of her case below. After considering each of
Counsel’s alleged failings, we are not convinced that any of them
amounted to deficient performance resulting in prejudice. We
therefore affirm.
State v. Whitchurch
BACKGROUND 1
¶2 On the evening of April 6, 2018, Kristy 2 and her husband
were returning to Roosevelt, Utah, after a day trip to Colorado,
making several stops along the way. Later that same evening,
various members of Kristy’s family were arrested for violently
assaulting Roy and Sandra, 3 a couple who had once been friends
of Kristy’s brother Thomas and his wife, Samantha. Sandra
subsequently died as a result of the injuries she received during
the assault.
The Backstory
¶3 According to Samantha, she and Thomas had previously
been close with Roy and Sandra, but the two couples eventually
“went [their] separate ways.” About a year after the couples
drifted apart, Thomas and Samantha’s four-year-old son (Son)
told Samantha that Roy had sexually abused him and that Sandra
had watched. The abuse was not initially reported to police,
however, because Son “begged [Samantha] not to” do so.
Eventually, after several years, Son “said he was ready to call the
cops,” and Samantha then reported the abuse to police.
¶4 One evening, “probably . . . about three weeks” after the
report to police and without any arrests having been made, family
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.
2. Because there are various family members involved in the
underlying events of this case—many of whom share a common
last name—we use given names for clarity.
3. Pseudonyms.
20200938-CA 2 2024 UT App 108State v. Whitchurch
members were gathered at the home of Kristy’s mother (Mother),
discussing the subject of Roy and the alleged abuse. Son was
there, sitting on Thomas’s lap, and Thomas asked him, “Do you
want Dad to beat him up?” Son answered, “Yeah,” and several
family members immediately responded by heading out the door,
at about 9:00 p.m., to go to Roy and Sandra’s house. Samantha
drove her white van, with Thomas in the passenger seat and
Stephanie (Thomas and Kristy’s sister) and Byron (Stephanie’s
fiancé) in the back.
The Attack
¶5 After the “ten minutes or less” drive to Roy and Sandra’s
house, Thomas jumped out of the van and headed for the front
door. When he reached the door, “he hit it with both of his fists,”
shattering the glass, and entered the house, with Samantha and
Byron close behind. Roy and Sandra had run out the back door
when they realized Kristy’s family was approaching, and
Thomas, Samantha, and Byron followed them into the backyard.
¶6 Thomas and Byron attacked Roy, with Thomas “punching
him in his sides” and Byron also hitting him, including “with a
piece of wood.” Samantha chased after Sandra, who exited the
backyard through a side gate. Stephanie—who had remained
outside and was by now wielding a baseball bat—and Samantha
were then able to corner Sandra. Samantha “grabbed [Sandra] by
her hair,” “dragged her down to the ground,” and “started hitting
her.” Samantha “punched her five or six times” and “kicked her
once” in “her shoulder blade area.” Stephanie then “brought the
bat up over her head and brought it down and hit [Sandra] in the
head with it.”
¶7 Kristy’s cousin (Cousin) was also allegedly present for the
attack, although he purportedly did not arrive in the same vehicle
as the other four. The timing of Cousin’s alleged involvement is
not entirely clear, but at some point, he was said to have kicked
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Sandra “in probably the back of her head” and Roy “in the face.”
Byron also, at some point, left his attack of Roy and “kicked
[Sandra] in the face” as well. Samantha was likewise “going back
and forth between” Roy and Sandra and at one point kicked Roy
“[i]n his side.”
¶8 The attack lasted for less than ten minutes. Then the family
members fled the scene, throwing the bloodied bat out of the van
window during the return trip to Mother’s house.
¶9 One of Roy and Sandra’s neighbors had heard the
commotion and called 911 at 9:23 p.m. While on the phone with
911, the neighbor asked Sandra who had attacked her, and,
although it was “very hard to understand her” (likely due to her
injuries), Sandra identified the family generally and Thomas and
Samantha specifically as her attackers. 4 Police then arrived and
asked Roy who had attacked him and Sandra. He specifically
identified Samantha, Thomas, Byron, and Cousin (who was later
acquitted), but he also referenced both the family generally and
the “sisters” as having been involved.
Samantha’s Disclosure of Kristy’s Involvement in the Attack
¶10 Police arrested Thomas, Samantha, Stephanie, Byron, and
Cousin and charged them with attempted aggravated murder,
aggravated assault, and aggravated burglary. After Sandra
succumbed to her injuries about two weeks after the attack, the
charges were amended from attempted aggravated murder to
aggravated murder.
¶11 That September, while Samantha was in jail awaiting trial,
Son attempted suicide. His suicide attempt “kind of turned
everything around for [Samantha].” She began thinking about
4. Sandra was life-flighted to the hospital and died before police
were able to interview her.
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“the guilt of all this” that Son was experiencing, and she “came to
the decision that [she] needed to try to do the right thing” and tell
“the truth about what [had] happened” on the night of the attack.
So although in previous interviews with police and discussions
with her attorneys Samantha had refused to tell “about anything
that anyone other than [she] and [Thomas] had done that night,”
she then became willing to discuss the involvement of other
family members. It was at this point that Samantha disclosed to
her attorneys and police that Kristy had also participated in the
attack.
¶12 Following this disclosure and Samantha’s “willingness to
accept responsibility,” she entered into a plea agreement with the
State wherein she was able to plead guilty to the reduced charge
of second-degree manslaughter in exchange for her cooperation
as a witness for the State. Also following the disclosure, the State
arrested Kristy and charged her with murder, aggravated assault,
and aggravated burglary.
¶13 Kristy thereafter filed a Notice of Alibi, explaining that on
the evening of the attack, she had been traveling back from
Colorado with her husband. She said they left Dinosaur,
Colorado, at approximately 7:00 p.m. and that they made several
stops along the way, including two stops at rest areas as well as
stops in Vernal, Utah, to buy “some pizza to take home” and “dog
food for their dogs.” After that, she said, they stopped at Mother’s
house to drop off the pizza, visited with Mother and Kristy’s
bedridden dad, and then went home, arriving there after 10:00
p.m.
The Trial
¶14 At trial, the State’s first witness was Samantha, who
testified regarding the attack as set forth above. However, she also
included details of Kristy’s involvement that night. Samantha
testified that Kristy had also been at Mother’s house before the
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attack and that she had left with the others when they headed to
Roy and Sandra’s house. Samantha said Kristy did not ride in
Samantha’s van, and Samantha was not entirely sure how Kristy
arrived at Roy and Sandra’s house. But she testified that Kristy
owned a newer, small, gray SUV at that time. 5 In any event,
Samantha remembered that Kristy had participated in the attack,
using a hammer to hit Sandra “in like her hip area” as well as to
hit Roy “in his lower back area.”
¶15 As part of its initial examination of Samantha, the State
asked her about a letter she had written to a male jail inmate in
April or May of 2019 explaining why she was in jail. The State then
moved to have the letter admitted as evidence, and Counsel
responded that he had no objection and that he was “going to
refer to it” during cross-examination.
¶16 During cross-examination, Counsel did ask Samantha
about the letter, emphasizing its elements that cast Samantha and
the victims of the attack in an unfavorable light—specifically, the
letter’s indication that Samantha was carrying on “a romantic
type of relationship” with a man in prison even though she was
married and the letter’s graphic description of the sexual abuse
allegedly perpetrated by Roy against Son while Sandra watched.
¶17 On redirect examination, the State asked Samantha to read
the entire letter to the jury, saying, “[I]t’s important that we hear
the whole thing, to kind of know the context.” Samantha then read
the entirety of the four-page letter. The portion of the letter
relating the attack states as follows:
So one night (April 6, one year ago tonight) Tommy
& I decided we were going to go beat their asses. His
5. Samantha also briefly mentioned that Kristy owned a second
car: “She also had a Mustang, but I don’t believe she had it that
night. I don’t really remember.”
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sister & bro-in-law rode with us. We chased them
through their house, caught up to them outside.
Tommy had [Roy] so I went after [Sandra], grabbed
her, took her to the ground & punched her 5 or 6
times[,] kicked her once, & that was it. As I turned
to go check on Tommy, his sister hit [Sandra] in the
head with a baseball bat. His other sister and cousin
showed up, his sister had a hammer, and trying to
make a long story shorter they both got beat pretty
bad.
¶18 Roy was the next to testify. He explained the tension that
had existed between him and Kristy’s family in the years prior to
the attack due to Son’s abuse allegations. Roy specifically testified
about a time when he had encountered Kristy in a store and she
had told him, “I ought to shoot you.” Roy testified that although
he had tried to tell her that the allegations were not true, Kristy
had still continued to talk of violence:
She just start—“Well, we can fight this. We can go
fight,” and you know, “You ought to die. I ought to
kill you.” She was going to—said, “But it won’t just
be me,” you know. I’m like, “Yeah, I know. It won’t
just be you if we go and fight.”
¶19 Roy then related the details of the attack, also remembering
that Kristy was an active participant. He testified that at the
beginning of the attack, Kristy was one of the family members
who had kicked him. He also said that he remembered that as
Kristy was kicking him, she had said, “You touched my nephew.”
¶20 The State also presented the testimony of a deputy who
had investigated the attack (Deputy). Deputy testified that he had
“worked with the sheriff’s office probably 12 or 13 years” and had
a “little over 17 years” of “total law enforcement experience.”
Among other things, Deputy further testified about his
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background in investigations and answered some specific
questions related to bruises he had seen on Roy’s back following
the attack:
Q. In your career [in] law enforcement do you know
approximately how many different assault cases
you’ve responded to?
A. Oh, numerous.
Q. Do you have an approximate number?
A. Over 30 easily, but I don’t have an exact number.
Q. But you’ve responded to more than one assault
case?
A. Yes.
Q. In those cases have you seen where—incidents
where people have been hit with bats?
A. Yes.
Q. How about with hammers?
A. I don’t think a hammer, but I have with many
other blunt objects.
Q. What type of marks do you typically see from
those blunt objects?
A. They’re consistent with the shape of the object.
Q. Is there anything else that might change what—
possibly what marks are left when they’re hit with
something?
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A. Yes, the type of clothing, the angle of the blow,
whether it was a glancing or a ricochet or direct
impact. If it was half on a belt and half off, things
like that.
Q. As part of your investigation in this case, were
there some distinct marks left on [Roy]?
A. There was.
Q. What were those?
A. Little round circle[s] that were consistent with the
head of [a] hammer.
....
Q. What are you seeing in those pictures?
A. That would be a picture of [Roy’s] back.
Q. What marks do you see on that back?
A. Lots of different areas that are starting to bruise.
Some have the little circles in them that are
consistent with the hammer.
¶21 Deputy also testified regarding interviewing Roy and
obtaining a written statement from him. In connection with that,
Deputy related his experience and opinions regarding the way
people commonly respond in interviews and when giving
statements after a traumatic event:
Q. Okay, in your experience as a law enforcement
officer how many interviews have you done in your
job?
A. Hundreds.
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Q. Okay, have you interviewed people after they’ve
been assaulted?
A. I have.
Q. Or experienced or witnessed a traumatic event?
A. I have.
Q. During those interviews after either being
assaulted or witnessing a traumatic event is it
uncommon for people to leave out details?
A. It’s very common.
Q. Why is that, based on your experience?
A. Your body reacts to everything differently. So
with trauma sometimes there’s certain parts of our
body that shut down. You can fight, you can flight,
you can freeze. They call it traumatic for a reason.
So you—there’s just a lot happening and a lot to take
in all at once.
Q. As your job as a law enforcement [officer] have
you had people fill out witness statements before?
A. Many, many times.
Q. Is it uncommon for people to leave out details in
written witness statements?
A. It’s too common for them to leave out details.
Q. Based on your experience, why is that?
A. Generally we don’t like to write anymore, is what
it seems like to me, but when we’re talking we’re
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faster. So it’s easier to stay on track than when we’re
writing. So when you’re writing, you’re going
slower than what you can process. So [you] just
leave things out. It just happens.
¶22 Kristy testified in her defense. She said that on the day of
the attack, she had traveled with her husband to Colorado to buy
lottery tickets and go to a marijuana dispensary. The lottery
tickets, which were introduced at trial, were time-stamped as
having been purchased at 6:16 p.m. and 6:17 p.m. Kristy testified
that on their way home, she and her husband made frequent
stops, including stops in Vernal, Utah, to purchase pizza and do
some shopping. Kristy thought they left Vernal around 9:00 p.m.
Kristy then detailed arriving at Mother’s house with the pizza,
visiting with her dad and Mother for about ten minutes, teasing
her nephews for a few minutes, and then leaving to go to her own
home. She testified that on her way out of Mother’s house, she
saw Samantha returning to the house and Thomas outside
smoking.
¶23 On cross-examination, the State showed Kristy a video
from a security camera on a school building that showed a road
close to Mother’s house. The video showed a vehicle that looked
like Samantha’s white van driving along the road at 9:10 p.m. in
the direction of Roy and Sandra’s house, followed closely by
another vehicle that the State suggested looked like Kristy’s gray
SUV. Kristy denied that the second vehicle looked like her SUV,
differentiating the two based on characteristics of her SUV that
she said did not match the vehicle in the video.
¶24 The remainder of Kristy’s defense relied on testimony from
other family members. One testified that on the night of the attack,
Kristy had arrived at Mother’s house with pizza after Samantha
and Thomas had exited the house. Mother testified that Thomas
had gotten angry at one point on the night of the attack, that he
and Samantha had then gone outside, and that Kristy brought
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pizza sometime after that. Kristy’s husband also testified, but he
could not remember much about the events of that day due to
“problems with memory” that were “connected to [an] injury and
fall in the oil field.”
¶25 Ultimately, the jury convicted Kristy on all three counts,
and she was thereafter sentenced to concurrent prison terms.
Kristy then timely appealed.
The Rule 23B Remand
¶26 On appeal and in relation to one of her ineffective
assistance of counsel claims, Kristy moved for a rule 23B remand.
See Utah R. App. P. 23B(a) (“A party to an appeal in a criminal
case may move the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”).
Her relevant ineffective assistance claim concerns the security
camera video that captured Samantha’s van and another vehicle
driving toward Roy and Sandra’s house at 9:10 p.m. Kristy claims
that a later portion of the same video shows a car that looks like a
yellow Ford Mustang she owned at the time also driving toward
Roy and Sandra’s house “one minute after the assault finished.”
Kristy argues that this later portion of the video, if it had been
shown to the jury, would have supported her alibi defense
because if the car in that portion of the video was her Ford
Mustang and if she had been driving it, that would confirm that
Kristy could not have been at Roy and Sandra’s house at the time
of the attack.
¶27 We granted the rule 23B motion and temporarily
remanded the case to the district court for further findings. The
district court held an evidentiary hearing and issued findings
related to when Counsel first received and reviewed the security
camera video and why the later portion of the video was not
presented to the jury.
20200938-CA 12 2024 UT App 108State v. Whitchurch
¶28 The court found that “Counsel was not aware of [the video]
until trial” and that “Counsel does not recall why he was not
aware of [the video] until trial.” Relatedly, the court found that
“[t]he prosecutor told [Counsel] that the video had been provided
in discovery and emailed to [Counsel]”; that “Counsel was having
some problems with his email at the time, and sometimes he
would have to call the prosecutor’s office for assistance”; and that
“Counsel believed the prosecutor sent [the video] to him in an
email that was not properly flagged for his review by his staff.”
After Counsel became aware of the video at trial, and “shortly
before it was admitted,” he reviewed with Kristy the portion of
the video that the State intended to present to the jury. They did
not review the entire video, and Counsel did not request
additional time to review the entire video.
¶29 The court further found that Kristy “did not say anything
to [Counsel] before, during, or after trial about owning a Ford
Mustang”; that Kristy “did not tell [Counsel] that she was driving
a Ford Mustang on the day or evening in question”; and that
Kristy “did not tell [Counsel] . . . that the car she and her husband
took to Colorado was not [her SUV].” And apparently with
reference to when Counsel learned during trial of the existence of
the video, the court found that “Counsel had the impression that
[Kristy’s] husband drove the . . . silver or white SUV[] on the trip
to Colorado the day of the assault and that [Kristy] rode as a
passenger, although there was no specific testimony at trial about
which car [Kristy] and her husband drove that day.” Finally, the
court found that “[t]he car in [the later portion of] the video
appears to be a different color and lack the striping of [Kristy’s]
Mustang.”
ISSUES AND STANDARD OF REVIEW
¶30 Kristy raises several claims of ineffective assistance of
counsel, which she asks us to consider both individually and
20200938-CA 13 2024 UT App 108State v. Whitchurch
cumulatively. Specifically, she finds fault with Counsel’s failure
to make three different objections to Deputy’s opinion testimony:
(1) an objection to Deputy’s expert opinion testimony on the
ground that it was impermissible anecdotal statistical evidence,
(2) an objection to Deputy’s opinion testimony regarding the
impact of trauma on memory, and (3) an objection to Deputy’s
opinion testimony regarding the bruising on Roy’s body. Kristy
also finds fault with Counsel’s failure to object to Samantha
reading the jailhouse letter as part of her testimony and to the
letter’s subsequent introduction into evidence. Finally, Kristy
finds fault with Counsel’s failure to introduce the later portion of
the security camera video that showed the yellow car. “An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law, which we review for
correctness.” State v. Cook, 2017 UT App 8, ¶ 5, 391 P.3d 391(cleaned up).
ANALYSIS
¶31 “To prevail on an ineffective assistance of counsel claim, a
defendant must meet the two-prong Strickland test: (1) counsel’s
performance was objectively deficient and (2) the deficient
performance resulted in prejudice.” State v. Fleming, 2019 UT App
181, ¶ 9, 454 P.3d 862 (citing Strickland v. Washington, 466 U.S. 668,
687–88 (1984)), cert. denied, 462 P.3d 803 (Utah 2020). “Because
both prongs of the Strickland test must be met to establish
ineffective assistance of counsel, we need not always address both
prongs.” Id. (cleaned up).
¶32 In considering the first prong—whether counsel
performed deficiently—our review “must be highly deferential.”
Strickland, 466 U.S. at 689. “A fair assessment of attorney
performance requires that every effort be made to eliminate
the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
20200938-CA 14 2024 UT App 108State v. Whitchurch
the conduct from counsel’s perspective at the time.” Id. We
therefore “indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance;
that is, . . . that, under the circumstances, the challenged action
might be considered sound trial strategy.” Id. (cleaned up). “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. Gallegos, 2020 UT 19, ¶ 34, 463
P.3d 641 (cleaned up).
¶33 As to the second prong—whether prejudice resulted—“[i]t
is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding.” Strickland,
466 U.S. at 693. Instead, “a court making the prejudice inquiry
must ask if the defendant has met the burden of showing that the
decision reached would reasonably likely have been different
absent the errors.” Id. at 696.
¶34 We consider in turn each of Kristy’s claims of ineffective
assistance of counsel. We ultimately conclude that each claim fails
under at least one of the prongs of the Strickland test.
I. Deputy’s Opinion Testimony
¶35 Kristy first asserts that Counsel provided ineffective
assistance by failing to object to Deputy’s “unqualified and
improper expert testimony.” Specifically, she contends that
Counsel performed deficiently by not objecting to Deputy’s
testimony that it is “very common” for witnesses to leave out
details when they are first interviewed after a traumatic event and
his testimony that it is “too common” for people to omit details
when writing witness statements, arguing that this testimony was
inadmissible anecdotal statistical evidence. She also contends that
Counsel performed deficiently by not objecting to Deputy’s
testimony regarding the effect of trauma on memory and his
testimony regarding the cause of Roy’s bruising because both
20200938-CA 15 2024 UT App 108State v. Whitchurch
constituted unqualified expert testimony. We address Kristy’s
contentions in turn and conclude, as to each, that Counsel did not
perform deficiently.
A. Anecdotal Statistical Evidence
¶36 Kristy contends that Counsel performed deficiently by
not objecting to Deputy’s testimony that it is “very common” for
witnesses to leave out details after experiencing a traumatic
event and “too common” for people to omit details when
writing witness statements, because such testimony amounts to
anecdotal statistical evidence. This testimony was apparently
designed to provide a reason for Roy’s failure initially to
identify Kristy as one of the people involved in the attack.
Kristy relies on State v. Rammel, 721 P.2d 498 (Utah 1986), to argue
that Deputy’s testimony in this regard amounted to
impermissible anecdotal evidence and that Counsel rendered
ineffective assistance by not objecting to the testimony on that
ground.
¶37 In Rammel, a detective testified that “[b]ased on his
experience interviewing several hundred criminal suspects,”
it was his opinion that “no criminal suspect ever admitted
‘right off the bat’ to committing a crime” and, therefore, that “it
would not have been ‘unusual’ for [the witness] to lie during
the first police interrogation.” Id. at 500. The Rammel trial
court “held that [the detective] was an expert apparently
qualified to testify on [a particular witness’s] capacity for
telling the truth and admitted the evidence.” Id. On appeal,
our supreme court held that the trial court’s ruling was
“erroneous for several reasons,” only one of which Kristy
relies on here: namely, that evidence related to a witness’s
character for truthfulness “must go to that individual’s
character for veracity” and must not “invite[] the jury to
draw inferences about [one person’s] character based on [an
20200938-CA 16 2024 UT App 108State v. Whitchurch
officer’s] past experience with other suspects.” 6 Id. A reasonable
attorney could have concluded, however, that the testimony
given by Deputy in this case is materially distinguishable from the
testimony given by the deputy in Rammel and, thus, that an
objection to Deputy’s testimony on the basis that it invited an
impermissible inference would have been unavailing.
¶38 The detective in Rammel had been deemed an expert as to
another witness’s “capacity for telling the truth” and testified that
“it would not have been ‘unusual’ for [the witness] to lie during
[his] first police interrogation.” Id. (emphasis added). The
detective’s testimony thus “invited the jury to draw inferences
about [the witness’s] character.” Id. (emphasis added). In contrast
here, there is a strong argument that Deputy’s testimony did not
invite the jury to draw inferences about Roy’s character or
capacity for telling the truth. Instead—as Kristy herself
contends—Deputy’s testimony arguably invited the jury to
instead infer that when Roy was first interviewed he could not
remember some details about the attack—including Kristy’s
involvement—and that “[i]t just happen[ed]” that he did not write
these details in his initial statement because “[g]enerally [people]
don’t like to write anymore” and their “slower” writing is unable
to keep up with “what [they] can process” mentally.
¶39 Indeed, several months before Kristy’s trial, we issued an
opinion in State v. Nunez-Vasquez, 2020 UT App 98, 468 P.3d 585,
6. Kristy identifies one of the other reasons why the supreme court
held the anecdotal statistical evidence in Rammel to be
inadmissible—i.e., because its “foundation was utterly lacking”
since “[t]here was no showing that the anecdotal data from which
the detective drew his conclusions had any statistical validity.”
State v. Rammel, 721 P.2d 498, 501 (Utah 1986). But Kristy never
explicitly argues that Deputy’s testimony was inadmissible on
this basis, and to the extent that she meant to make that argument,
it is inadequately briefed.
20200938-CA 17 2024 UT App 108State v. Whitchurch
cert. denied, 474 P.3d 945 (Utah 2020), distinguishing that case from
Rammel on very similar facts. In Nunez-Vasquez, a nurse “provided
anecdotal testimony, based on her general experience, as to why
[a victim] may have forgotten major portions of [a] sexual assault.”
Id. ¶ 66 (emphasis added). We said that the nurse’s testimony
about memory was materially different than the Rammel
detective’s testimony, which was “directly [about] the witness’s
‘capacity for telling the truth.’” Id. And because the nurse’s
testimony “did not comment on [the victim’s] veracity,” we held
that her “anecdotal testimony” “was not improper.” Id.
¶40 Given that Deputy’s testimony in this case arguably related
to memory and what “just happens” when people write witness
statements and not to any particular person’s capacity for telling
the truth, reasonable counsel in this case could have determined,
based on Nunez-Vasquez, that an objection to Deputy’s testimony
on the ground that it invited an impermissible inference would be
unavailing and, thus, elected not to make that objection. See
generally State v. Huey, 2022 UT App 94, ¶ 53, 516 P.3d 345 (“Our
role in this appeal is not to categorically determine if [the evidence
was] inadmissible . . . . Rather, we must determine whether
reasonable counsel, when considering all the circumstances,
could have determined that [the evidence was admissible] and
decided to forgo an objection on that basis.” (cleaned up)).
Accordingly, Kristy’s ineffective assistance claim based on
Deputy’s anecdotal statistical testimony fails. 7
7. Kristy also cites State v. Lewis, 2020 UT App 132, 475 P.3d 956,
which addressed testimony more similar to Deputy’s testimony
here. In Lewis, two officers testified that based on their experience
interviewing hundreds of sexual assault victims, it was common
for there to be “variations when victims give multiple accounts of
their assaults.” Id. ¶¶ 11–12. However, while we noted that the
officers’ testimony in Lewis “potentially [ran] afoul of [Rammel],”
(continued…)
20200938-CA 18 2024 UT App 108State v. Whitchurch
B. Testimony Regarding Memory and Trauma
¶41 Kristy further contends that Deputy was unqualified to
give expert testimony regarding the effect of trauma on memory
and that Counsel therefore rendered ineffective assistance by not
objecting to Deputy’s testimony on that topic. We conclude that
competent counsel could have decided not to object to Deputy’s
testimony on this ground and, thus, that Counsel did not perform
deficiently in this regard.
¶42 Under rule 702(a) of the Utah Rules of Evidence, “a witness
who is qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or
otherwise if the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence
or to determine a fact in issue.” Utah R. Evid. 702(a). “We have
routinely allowed persons to testify as experts based on the
totality of their qualifications and experience, and not on licensing
or formal standards alone.” State v. Kelley, 2000 UT 41, ¶ 15, 1 P.3d
546. “An officer can therefore qualify as an expert to testify on [a
particular] subject based on the officer’s training or experience or
some combination of the qualifications listed in rule 702(a).” State
v. Prettyman, 2024 UT App 20, ¶ 21, 544 P.3d 1059 (emphasis
added), cert. denied, 550 P.3d 996 (Utah 2024).
¶43 Deputy testified that he had “worked with the sheriff’s
office probably 12 or 13 years” and had a “little over 17 years” of
“total law enforcement experience” at the time of trial. He testified
that during that time, he had conducted “[h]undreds” of
interviews, which number included “numerous” people—“[o]ver
30 easily”—who had specifically experienced an assault and
we ultimately resolved that case on other grounds. Id. ¶¶ 17 n.2,
51. Our recognition of a potential Rammel issue in that case does
not alter our analysis that the testimony here did not clearly
violate Rammel as Kristy claims.
20200938-CA 19 2024 UT App 108State v. Whitchurch
additional people who had “experienced or witnessed [some
other] traumatic event.” Deputy further testified that “[m]any,
many times” he had also asked people to fill out witness
statements. Having heard that account of Deputy’s relevant
experience, Counsel could reasonably have believed that Deputy
either already had established or could establish through
additional questioning sufficient expertise, based on his
experience, to allow him to testify as an expert regarding
witnesses’ ability generally to recall and express the details of
traumatic events shortly after those events. Counsel could have
therefore strategically decided against objecting based on an
assertion that Deputy lacked relevant expertise, so as to not
“thereby allow [Deputy] to amplify [his] credibility by relating
additional qualifications under questioning by the State.” Id. ¶ 24.
¶44 After Deputy had testified to his relevant experience, he
opined that it is “very common” for people to “leave out details”
when relating a traumatic event. Then he explained the reason for
his opinion:
Your body reacts to everything differently. So with
trauma sometimes there’s certain parts of our body
that shut down. You can fight, you can flight, you
can freeze. They call it traumatic for a reason. So
you—there’s just a lot happening and a lot to take in
all at once.
¶45 We recognize that the explanation Deputy gave for his
opinion—that it is very common for people to leave out details
when relating a traumatic event—at least hinted at a medical or
neurologic basis for that opinion. And Kristy correctly points out
that the State “never qualified Deputy as an expert on repressed
memory, medicine, or the effect of trauma on the brain.” Thus,
Counsel could have objected on this ground to Deputy’s
explanation for why it is very common for people to leave out
details when relating a traumatic event. However, Counsel could
20200938-CA 20 2024 UT App 108State v. Whitchurch
have reasonably believed that the result of such an objection
would have been, at a minimum, to highlight the explanation to
the jury and to allow the State to elicit another explanation, one
drawn from Deputy’s relevant experience. Counsel might also
have reasonably recognized the possibility that the State might
instead have been able to elicit from Deputy additional
qualifications, in the form of specialized knowledge, education, or
training that he might have received on the subject over the course
of a rather lengthy law enforcement career. For these reasons,
Counsel could have reasonably made the strategic decision not to
object to the lack of foundation for Deputy’s explanation for his
expert opinion and, instead, let that brief testimony pass un-
highlighted and un-augmented. See State v. Nunes, 2020 UT App
145, ¶ 20, 476 P.3d 172 (“Counsel may well have made a
reasonable tactical choice in forgoing the objection even if there
may have been grounds to object. Thus, the dispositive question
is whether counsel’s actions fell below an objective standard of
reasonableness . . . .” (cleaned up)), cert. denied, 485 P.3d 943 (Utah
2021).
¶46 In short, Kristy has not established the deficient
performance element of her ineffective assistance claim based on
Deputy’s testimony regarding the effects of trauma on memory.
Hence, that claim fails.
C. Testimony Regarding Bruising
¶47 Kristy asserts that Deputy was also unqualified to give
expert testimony regarding the cause of Roy’s bruising because
Deputy “had no medical qualifications and never investigated a
hammer assault” and that Deputy’s testimony about Roy’s
bruising also was not permissible lay opinion testimony because,
generally, “[a]n average bystander cannot testify about what
caused a bruise on another person.” Because Kristy believes that
Deputy’s testimony about Roy’s bruising was inadmissible as
both expert opinion testimony and lay opinion testimony, she
20200938-CA 21 2024 UT App 108State v. Whitchurch
asserts that Counsel’s failure to object to Deputy’s testimony on
this point amounted to ineffective assistance. We disagree and
conclude that Deputy’s testimony on this point was admissible as
lay opinion testimony.
¶48 Under the Utah Rules of Evidence, both lay and expert
witnesses may give opinion testimony. Utah R. Evid. 701, 702.
Rule 701 provides that for a lay witness to give “testimony in the
form of an opinion,” that testimony must be “(a) rationally based
on the witness’s perception; (b) helpful to clearly understanding
the witness’s testimony or to determining a fact in issue; and (c)
not based on scientific, technical, or other specialized
knowledge.” Id. R. 701. Rule 702 addresses testimony provided by
experts, that is, testimony that is based on “scientific, technical, or
other specialized knowledge.” Id. R. 702. Thus, “the test for
determining whether testimony must be provided by an expert is
whether the testimony requires that the witness have scientific,
technical, or other specialized knowledge; in other words,
whether an average bystander would be able to provide the same
testimony.” State v. Rothlisberger, 2006 UT 49, ¶ 34, 147 P.3d 1176.
¶49 Hence, the test of whether expert testimony is required is
“based on the level of knowledge that witnesses have from which
they can draw their conclusions.” Id. “If that knowledge is not
within the ken of the average bystander, then it is properly
characterized as specialized knowledge” and testimony based on
that knowledge may be given only by an expert. Id. Such
specialized knowledge includes, for example, knowledge as to
what quantity of drugs typifies personal drug use, see id. ¶ 36, and
knowledge as to how square footage is calculated in commercial
real estate, see Clifford P.D. Redekop Family LLC v. Utah County Real
Estate LLC, 2016 UT App 121, ¶ 20, 378 P.3d 109.
¶50 On the other hand, “where most people have sufficient
experience with a subject, a lay opinion on that subject is by
definition within the ken of the average bystander” and would
20200938-CA 22 2024 UT App 108State v. Whitchurch
not require the witness’s designation as an expert. State v. Garcia-
Lorenzo, 2022 UT App 101, ¶ 66, 517 P.3d 424 (cleaned up), cert.
granted, 525 P.3d 1263 (Utah Oct. 21, 2022) (No. 20220802).
Knowledge within the ken of the average bystander includes, for
example, knowledge as to whether wounds are fresh, see State v.
Hulse, 2019 UT App 105, ¶ 35, 444 P.3d 1158, cert. denied, 456 P.3d
389 (Utah 2019); knowledge allowing comparisons between a
shoe and shoeprints left at a crime scene, see State v. Yalowski, 2017
UT App 177, ¶ 37, 404 P.3d 53, cert. denied, 417 P.3d 580 (Utah
2018); and knowledge allowing an assessment of a person’s state
of intoxication, see State v. Sellers, 2011 UT App 38, ¶ 26, 248
P.3d 70.
¶51 Thus, whether Deputy’s testimony amounted to improper
expert testimony depends on whether his testimony was based on
specialized knowledge. We accordingly consider the knowledge
underlying Deputy’s allegedly inappropriate testimony.
¶52 Deputy did not testify that the bruising on Roy’s back was
caused by repeated hits by a hammer. Instead, Deputy’s
testimony was that when people are hit with blunt objects, it
typically leaves a mark “consistent with the shape of the object”
but that “the angle of the blow,” “the type of clothing” covering
the area, or other such factors might affect the shape of the mark.
Then, in relation to the “little circle” marks on Roy’s back, Deputy
testified that they “were consistent with the head of [a] hammer.”
¶53 Such testimony relied on knowledge “within the ken of the
average bystander.” Rothlisberger, 2006 UT 49, ¶ 34. The average
person has had sufficient life experience with bruising to know
that the shape of a bruise is often similar to the shape of the object
that hit the body and that the shape may, nonetheless, be distorted
by the angle of the blow or nature of the contact. Additionally, an
average bystander is familiar with the shape of a hammer head
and could have looked at the pictures of Roy’s injuries and
testified as to whether the round marks visible were consistent
20200938-CA 23 2024 UT App 108State v. Whitchurch
with that shape. None of this testimony required specialized
knowledge.
¶54 Our determination on this point is supported by this
court’s opinion in In re K.C., 2013 UT App 201, 309 P.3d 255. That
case involved the question of whether marks on a child’s buttock
supported a determination that the child suffered “nonaccidental
harm by the father spanking [the child] with his hand.” Id. ¶ 18
(cleaned up). The father argued that “the evidence was
insufficient to determine that a bruise even existed because no
expert testified that the mark on [the child’s] buttock was a
bruise.” Id. ¶ 14 (cleaned up). This court determined that such
expert testimony was not required, reasoning that “whether the
mark constituted a bruise and what caused it did not involve
obscure medical factors but [were] within the common experience
of laypersons.” Id. ¶ 17 (cleaned up).
¶55 Because Deputy’s testimony regarding the bruises on
Roy’s back did not rely on specialized knowledge but, instead,
could have been provided by an average bystander, it was lay
testimony, not improper expert testimony. As a result, Counsel’s
failure to object to this testimony on the ground that it was
improper expert testimony did not amount to deficient
performance, see State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546(“Failure to raise futile objections does not constitute ineffective
assistance of counsel.”), and Kristy’s ineffective assistance claim
based on this point fails.
II. Jailhouse Letter
¶56 Kristy argues that Counsel provided ineffective assistance
by failing to object to the presentation of an inadmissible letter to
the jury—both through Samantha’s reading of the letter aloud
during her testimony and through the letter’s admission as an
exhibit and resultant availability to the jury during its
20200938-CA 24 2024 UT App 108State v. Whitchurch
deliberations. Kristy argues that the letter constituted hearsay for
which no applicable exception existed.
¶57 For its part, the State does not argue that the letter was not
inadmissible hearsay; instead, it argues that Counsel could have
forgone an objection because the evidence was largely
advantageous to the defense. Specifically, the State points out that
the letter (1) reflected negatively on Samantha’s character by
exposing her romantic connection to a fellow inmate while she
was married to another man, (2) made Roy and Sandra appear to
be unsympathetic victims by providing evidence detailing the
alleged underlying child molestation, and (3) supported the
defense theory that Samantha belatedly identified Kristy as a
participant in the assault in order for Samantha to get more
favorable treatment in the case against her.
¶58 The State is correct that portions of the letter benefitted the
defense by painting the victims and Samantha in a negative light
and by providing some impeachment value. Thus, reasonable
defense counsel could have wanted portions of the letter’s
contents to be before the jury; indeed, Counsel indicated that he
planned to use the letter during his cross-examination of
Samantha, which he then did. And while the letter also included
a written account of Kristy’s involvement in the attack—the
introduction of which allowed the State to argue that once
Samantha decided “to tell the whole story,” she was “consistent
about what everybody else did”—deciding between the pros and
cons of allowing the jury to hear evidence that has the potential to
cut both for and against a defendant’s case is a quintessentially
tactical decision, which we “will not question . . . unless there is
no reasonable basis supporting [it],” State v. Morley, 2019 UT App
172, ¶ 30, 452 P.3d 529 (cleaned up), cert. denied, 462 P.3d 804 (Utah
2020); see also State v. Bedell, 2014 UT 1, ¶ 24, 322 P.3d 697 (holding
that defense counsel’s decision “to not object to the State’s use of”
evidence regarding prior bad acts by the defendant was not
deficient performance where “defense counsel [had] made an
20200938-CA 25 2024 UT App 108State v. Whitchurch
affirmative decision from the outset to utilize the [prior bad acts]
evidence to attack the State’s case”). Therefore, we cannot say that
Counsel lacked any reasonable basis for believing that the
potential advantage to be gained by putting Samantha’s jailhouse
romance, the details of Roy’s alleged abuse of Son, and the plea-
bargain incentive for Samantha to belatedly identify Kristy as one
of the attackers would outweigh the potentially detrimental effect
of allowing the jury to also receive a second, consistent account of
the attack from Samantha.
¶59 Kristy contends that “[i]f there was anything in that letter
that was useful [to the defense] for impeachment purposes,
[Counsel] could have simply questioned Samantha about the few
relevant lines without having the entire letter submitted into
evidence.” But if the State had not introduced the letter, there
would have been no testimony about the jailhouse romance to
impeach. Similarly, because Samantha’s testimony regarding
Roy’s alleged abuse of Son was consistent with the letter’s more
detailed account of that abuse, that portion of the letter also would
not have been admissible for impeachment purposes. See Utah R.
Evid. 801(d)(1)(A) (defining a witness’s prior statement that is
inconsistent with the witness’s testimony as non-hearsay that is
admissible on cross-examination). Thus, Counsel could have
reasonably believed that acquiescence to the admission of the
letter as a whole would be the only way to place before the jury
those portions of the letter that cast a particularly bad light on
Samantha, Roy, and Sandra.
¶60 It is likewise far from clear that Counsel could have
obtained admission of only that portion of the letter that did have
impeachment value—the lines suggesting that Samantha
belatedly identified Kristy as a participant in the assault not out
of concern for Son but, rather, to get a more favorable plea deal
for herself—without also triggering the simultaneous admission
of the letter’s account of Kristy participating in the attack. Rule
106 of the Utah Rules of Evidence, which “is often referred to as
20200938-CA 26 2024 UT App 108State v. Whitchurch
the rule of completeness,” “requires admission of those [parts of
a writing] that are relevant and necessary to qualify, explain, or
place into context the portion [of the writing] already
introduced.” State v. Johnson, 2016 UT App 223, ¶ 60, 387 P.3d 1048(cleaned up), cert. denied, 393 P.3d 284 (Utah 2017); see also Utah R.
Evid. 106 (“If a party introduces . . . part of a writing . . . , an
adverse party may require the introduction, at that time, of any
other part . . . that in fairness ought to be considered at the same
time.”). If Counsel had sought admission of the part of the letter
that sheds light on Samantha’s motivation for accepting a plea
deal, the State likely would have sought the simultaneous
admission under rule 106 of the part of the letter containing the
account of the attack the State would have expected Samantha to
testify to as part of the deal.
¶61 We need not decide whether the State would have
succeeded in making such a request. 8 In this case, it is sufficient
that Counsel had reason to want three different portions of the
letter presented to the jury and could have reasonably believed
that acquiescence to admission of the letter as a whole would be
the only way to place at least two, and possibly all three, of those
portions of the letter before the jury. And, as already noted,
Counsel could have also reasonably concluded that the risks to
Kristy of placing the letter’s full contents before the jury—both
orally during trial and in hard copy during deliberations—was
outweighed by the potential benefits to Kristy of doing the same.
Thus, Counsel’s decision not to object to the letter’s admission
into evidence did not amount to deficient performance, and
Kristy’s claim of ineffective assistance on this ground fails.
8. Among other things, we recognize that “whether rule 106 can
defeat other rules of evidence that work against admissibility,
such as the rules on hearsay,” or “is solely a rule of timing” is an
open question in this state. State v. Sanchez, 2018 UT 31, ¶¶ 19, 24,
422 P.3d 866.
20200938-CA 27 2024 UT App 108State v. Whitchurch
III. Security Camera Video
¶62 Kristy argues that Counsel provided ineffective assistance
related to his failure to show at trial additional portions of the
security camera video. First, she contends that she received
ineffective assistance because Counsel “litigated [her] case while
knowing he was having difficulty receiving discovery in his
email,” which resulted in Counsel being unaware that the video
existed until mid-trial. Second, she contends that she received
ineffective assistance because Counsel “failed to ask for a
continuance or a recess to fully watch the security camera footage
so that he could properly assess the State’s evidence” by watching
the video in its entirety. Without deciding whether Counsel’s
performance was deficient in these regards, we conclude that
Kristy has failed to show that the allegedly deficient performance
prejudiced her defense. See generally Honie v. State, 2014 UT 19,
¶ 31, 342 P.3d 182 (“Because failure to establish either prong of the
[Strickland] test is fatal to an ineffective assistance of counsel
claim, we are free to address [a defendant’s] claims under either
prong.”).
¶63 “To evaluate prejudice under Strickland, we assess
counterfactual scenarios—that is, what would have happened but
for the [allegedly] ineffective assistance.” State v. Garcia-Flores,
2021 UT App 97, ¶ 27, 497 P.3d 847 (cleaned up), cert. denied, 502
P.3d 271 (Utah 2021). In other words, when evaluating prejudice,
we must “consider not just what did happen at trial, but also what
would have happened, including evidence that would have come
in but didn’t as a result of counsel’s decisions.” Ross v. State, 2019
UT 48, ¶ 76, 448 P.3d 1203 (cleaned up). Under such a
counterfactual analysis, the “proof of ineffective assistance of
counsel cannot be a speculative matter but must be a
demonstrable reality.” State v. Rivera, 2022 UT App 44, ¶ 43, 509
P.3d 257 (cleaned up). Thus, “speculation is not a substitute for
proof of prejudice, and proof of prejudice may not be based purely
upon a speculative matter.” Id. (cleaned up).
20200938-CA 28 2024 UT App 108State v. Whitchurch
¶64 The first relevant counterfactual scenario in this case is one
in which Counsel reviewed the security camera video before trial.
To satisfy the prejudice prong of Strickland in light of this
counterfactual scenario, Kristy must show that if Counsel had
reviewed the video prior to trial, there is a reasonable probability
(1) that the later portion of the video would have been shown to
the jury and (2) as a result, the jury would have returned a verdict
more favorable to Kristy. On the record before us, Kristy has not
made such a showing.
¶65 There is no evidence in the record indicating that Counsel
would have shown the later portion of the video to the jury if he
had reviewed the video before trial. The trial court found that
Kristy “did not say anything to [Counsel] before . . . trial about
owning a Ford Mustang” and that Kristy “did not tell [Counsel]
that she was driving a Ford Mustang on the day or evening in
question.” Thus, even if Counsel had reviewed the video prior to
trial, including the later portion in which a yellow car that
arguably looks like a Ford Mustang can be seen driving toward
Roy and Sandra’s house after the attack ended, he would have
had no reason to independently recognize the relevance of that
portion of the video. And, thus, there is no reasonable probability
that he would have shown it to the jury based on his own review
of the video prior to trial.
¶66 Additionally, if Counsel had also shown the video to Kristy
or explained its contents to her prior to trial, there is no
evidence—even following the rule 23B remand—as to what she
would have told Counsel or the jury regarding her Ford Mustang.
If at that point Kristy would have neglected to tell Counsel that
she owned a yellow Ford Mustang, or if she would have told him
that she was not driving her Ford Mustang on the night of the
attack, Counsel would, again, have had no reason to show the jury
that later portion of the video. Only if Kristy had told Counsel that
she owned and was driving a yellow Ford Mustang on the night
of the attack, or that she owned a yellow Ford Mustang and could
20200938-CA 29 2024 UT App 108State v. Whitchurch
not remember which car she was driving on the night of the
attack, would Counsel have had any reason to show the jury the
later portion of the video. Because we have no evidence to suggest
what Kristy would have told Counsel or the jury about her Ford
Mustang had she seen the video before trial, we can only
speculate as to whether Counsel’s review of the video prior to trial
would have resulted in a reasonable probability of a more
favorable outcome for Kristy.
¶67 For the foregoing reasons, Kristy’s ineffective assistance
claim based on Counsel’s failure to review the video prior to trial
fails.
¶68 The second counterfactual scenario we must consider is
one in which Counsel requested additional time and reviewed the
entire video after he learned about it at trial. But here again, Kristy
has failed to demonstrate a reasonable probability that had
Counsel reviewed the entire video after he learned about it during
trial, he would have shown the later portion of the video to the
jury or a reasonable probability that had the jury seen the later
portion of the video, it would have returned a more favorable
verdict for Kristy. The only material difference between this
counterfactual scenario and the last one is that by the time
Counsel learned of the video during trial, he had heard testimony
that Kristy owned a Ford Mustang. Thus, if Counsel had reviewed
the entire video (perhaps with Kristy) and seen the yellow sports
car later in the video, he might have asked Kristy (or Kristy might
have volunteered) whether she was driving her Mustang that
night. 9 But again, there is no evidence to suggest what Kristy
9. The testimony Counsel had heard during trial about Kristy
owning a Ford Mustang did not include testimony about the color
of the Mustang. For that reason, if he had watched the entire video
but without Kristy, it is just as likely that Counsel, after seeing a
nondescript yellow sports car later in the video, justifiably would
(continued…)
20200938-CA 30 2024 UT App 108State v. Whitchurch
would have told Counsel—or the jury—at that point, though
Kristy could have provided such evidence through the 23B
remand. Hence, as with the counterfactual scenario addressed
above, we can only speculate as to whether Counsel’s review of
the entire video during trial would have resulted in Counsel
seeking admission of the later part of the video.
¶69 A less likely but still potential option that Counsel might
have pursued under this second counterfactual scenario would
have been for him—after seeing in the video a car arguably similar
to Kristy’s Ford Mustang traveling toward Roy and Sandra’s
home immediately after the attack—to not ask Kristy whether she
was driving her Mustang that evening and simply abandon his
anticipated strategy of having Kristy testify in her own defense.
Counsel could have then shown the jury the later part of the video
and argued that the appearance of a car similar to Kristy’s
Mustang traveling toward Roy and Sandra’s house immediately
after the attack created a reasonable doubt as to whether Kristy
was at the scene of the attack while the attack was happening.
¶70 However, adoption of this strategy would have required
midtrial abandonment of any defense based on the timeline of
Kristy and her husband’s return from Colorado since only Kristy
knew and recalled the details of that return trip. Moreover, the
new strategy would have been vulnerable to attack on the
grounds that (1) the video also showed an SUV that was arguably
similar to Kristy’s SUV following Samantha’s car toward Roy and
Sandra’s house prior to the attack and (2) the yellow car in the
later portion of the video “appears to be a different color and lack
the striping of [Kristy’s] Mustang,” a fact about which Samantha
would likely have been able to testify. For these reasons, we
conclude that Kristy has not demonstrated that had Counsel
reviewed the entire video during trial, he would have abandoned
not have thought to ask her whether she was driving her Mustang
that night.
20200938-CA 31 2024 UT App 108State v. Whitchurch
the timeline strategy in favor of a strategy based on showing the
later portion of the video. Nor has she demonstrated a reasonable
probability that, even had Counsel made such a change in
strategy, doing so would have yielded a different result.
¶71 Accordingly, Kristy’s ineffective assistance claim based on
Counsel not reviewing the entire video after learning about it at
trial also fails. 10
IV. Cumulative Error
¶72 Kristy additionally raises a cumulative error argument,
urging us to consider the combined prejudicial effect of the
several alleged failures of Counsel. For purposes of our analysis
above, we have assumed that Counsel performed deficiently in
his actions related to the security camera video, but we have
otherwise concluded that Counsel did not perform deficiently. As
to Counsel’s actions related to the security camera video, we have
determined that whether Counsel’s conduct even had the
potential to impact the outcome for Kristy is purely speculative.
And because there are no additional errors by Counsel to
cumulate, Kristy’s cumulative error argument fails. See State v.
Torres-Orellana, 2021 UT App 74, ¶ 30 n.11, 493 P.3d 711 (holding
that where there was “no other error with which to cumulate
10. In her motion for a remand under rule 23B, Kristy also
suggests that Counsel was ineffective in not conducting a
reasonable investigation, which she submits would have alerted
him to the fact that Kristy owned a yellow Ford Mustang. But
even assuming additional investigation would have put Counsel
on notice of Kristy’s yellow Mustang, the record is still devoid of
evidence suggesting that Kristy would have claimed to have been
driving her Mustang on the night of the attack. Thus, to the extent
that Kristy’s investigation argument is a separate assertion of
ineffective assistance, she has again failed to show prejudice
resulting from the allegedly deficient performance.
20200938-CA 32 2024 UT App 108State v. Whitchurch
[t]rial [c]ounsel’s presumed . . . errors,” which had already been
deemed non-prejudicial, “the cumulative error doctrine [did] not
apply”).
CONCLUSION
¶73 Counsel’s conduct in not objecting to Deputy’s opinion
testimony and in not objecting to admission of the jailhouse letter
did not amount to deficient performance. And even if Counsel’s
conduct in not taking additional action related to the security
camera video was deficient, any resulting prejudice from that
action is purely speculative. Thus, each of Kristy’s claims of
ineffective assistance of counsel fails, as does her cumulative error
argument. Accordingly, we affirm.
20200938-CA 33 2024 UT App 108