State v. Goodall ( 2024 )

2024 UT App 100THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
TAYLOR JAMES GOODALL,
Appellant.
Opinion
No. 20210622-CA
Filed July 18, 2024
Seventh District Court, Price Department
The Honorable Don M. Torgerson
No. 191700160
Staci A. Visser and Ann Marie Taliaferro,
Attorneys for Appellant
Sean D. Reyes and Daniel W. Boyer,
Attorneys for Appellee
JUDGE AMY J. OLIVER authored this Opinion, in which
JUDGES RYAN M. HARRIS and JOHN D. LUTHY concurred.
OLIVER, Judge:
¶1 Taylor James Goodall appeals his convictions for forcible
sodomy and object rape. He first requests a remand to develop the
record for a claim of prosecutorial and police misconduct. Goodall
then argues that his Miranda waivers and incriminating
statements were involuntary and that the trial court erred in
admitting them. Next, Goodall argues that his attorneys rendered
ineffective assistance by requesting a jury instruction that he
claims labeled his incriminating statements as a “confession.”
Finally, Goodall argues that an officer should not have been
allowed to testify about the credibility and consistency of some
State v. Goodall
witnesses’ statements. Because Goodall has not established any
claims of error or ineffective assistance, we affirm his convictions.
BACKGROUND 1
The Incident
¶2 In March 2019, Jenny 2 reported to the police that her
boyfriend, Goodall, had raped her the previous night. The two
had been dating for nine months and lived together with a friend
(Roommate) in a small trailer. Jenny had heard rumors that
Goodall was seeing another woman. One morning, when Jenny
confronted Goodall about the rumors, he became “defensive” and
“agitated.” They later texted each other about whether they
should end their relationship. When Jenny got home from work
and called Goodall to see what time he would be back, he sounded
“really irritable” and “standoffish.” Goodall told Jenny he would
talk to her “when he felt like it,” so Jenny “just went to bed.”
¶3 Around midnight, Jenny woke up to Goodall saying,
“You’re going to do what I say or else.” He took the blanket off
Jenny and told her to take off her clothes. Jenny was “groggy” and
thought at first they were going to have “make-up sex,” so she
took off her pants and underwear. Jenny was alarmed, however,
when Goodall lifted her leg with “his arm on [her] ankle,” put his
other hand on her throat, and penetrated her anus with his penis,
“dry.” Jenny “told him to stop because he knew that [she] did not
like anal” sex, but Goodall continued thrusting “hard” “[a]s far as
he could go” for a “couple of minutes,” which “felt like forever”
1. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v. Liti,
2015 UT App 186, ¶ 3 n.2, 355 P.3d 1078 (cleaned up).
2. A pseudonym.
20210622-CA 2 2024 UT App 100State v. Goodall
to Jenny. Jenny tried to get out from under him, but Goodall
pushed her legs back and kept his hand around her throat.
¶4 Next, Goodall pulled his penis out and “shoved” four
fingers into Jenny’s vagina, knuckle-deep. Goodall “curled his
fingers and twisted them.” Jenny said, “Ow,” and told him to stop
because it was causing “a lot of pain,” but “he would not stop.”
Then, Goodall took those same fingers and “shoved” them into
her mouth. It “disgusted” Jenny. She “told him to stop” and that
she needed to use the bathroom. Jenny passed Roommate on her
way to the bathroom but did not wake him up or call police
because she “didn’t know what to do.” While Jenny was in the
bathroom, she and Goodall exchanged the following texts:
Goodall: Get in here
Now
Jenny: I will give me a sec, I’m still trying to
urinate my bladder is hurting me
Goodall: O well
I’m still mad
Jenny: I know
Goodall: Exactly
And [if you] say it hurts [too] much
we are over as well
Jenny: Okay
Goodall: Hurry
Jenny: Okay
20210622-CA 3 2024 UT App 100State v. Goodall
Goodall: How much longer
Jenny returned to the bedroom because she “didn’t want any
conflict.”
¶5 Goodall then demanded oral sex from Jenny. Grabbing her
hair, Goodall shoved Jenny’s face “in front of his penis and started
to thrust, which made [her] gag.” Jenny did not want his penis in
her mouth because it had just been in her anus—the act felt
“disgusting” and “revolting” to her. Goodall ejaculated in Jenny’s
mouth and told her to swallow it. Jenny instead “spit it out.”
Afterwards, Goodall told Jenny to lie in “bed with him,” which
she did, feeling “scared,” “disgusted,” and “violated.”
¶6 The next morning, when Goodall told Jenny he was
breaking up with her, she was upset because she loved him and
wanted to make it work. After Goodall left, Jenny told Roommate
that Goodall had raped her. Roommate responded that he had
“heard whimpering in the night in the bedroom” during the “brief
moments when [he] wasn’t listening to music” with his
earphones. Jenny also told her work manager and two friends
about the rape. At the suggestion of one of her friends, Jenny
contacted the police.
The Investigation
¶7 The Helper City Police Chief (the Chief) responded to
Jenny’s 911 call and took her statement. Afterward, the Chief
drove Jenny to the trailer to collect her clothing from the previous
night and then to the hospital, where a sexual assault nurse
examiner conducted an exam. The exam revealed no visible
injuries other than a small bruise on Jenny’s right shin.
¶8 That evening, Goodall called the police to ask about why
they were at the trailer that day. Goodall told the officer that
answered (Officer) that he was willing to speak with the police, so
20210622-CA 4 2024 UT App 100State v. Goodall
Officer picked him up from the trailer and drove him to the
Helper Police Station, where Officer informed Goodall that Jenny
had made “serious allegations” against him. Officer read Goodall
his Miranda rights, and Goodall filled out a waiver form.
According to Officer, Goodall “seemed pretty clear about the
rights” and “wanted to talk.” Goodall confirmed that he and
Jenny “had sexual intercourse the night before,” and he “believed
she had been fine with all of it.”
¶9 Officer notified the Chief that he was interviewing
Goodall, so the Chief drove over and joined Officer. 3 Goodall gave
his account of what happened that night, saying he and Jenny
“both agreed upon having sex” and had started with vaginal sex
until she said “ow.” Goodall then claimed he asked Jenny if they
could have anal sex and she agreed. He related that during the
anal sex, Jenny “started to wince in pain again.” Goodall also
admitted he vaginally penetrated Jenny with four fingers.
¶10 The Chief, who knew Goodall’s brother and had
“interacted with him [and] his family . . . quite regularly,” asked
Goodall if he would be willing to take a polygraph test. Goodall
agreed and rode with the Chief to the Carbon County
Administration Building, approximately ten minutes away. When
they arrived, the Chief read Goodall his Miranda rights again and
gave him a waiver form, which Goodall initialed and signed.
¶11 Goodall also signed a pre-test waiver that advised him that
he was “free to leave” or end the test whenever he wished and
that “any and all parts of [the] polygraph examination and
interview” “will be used for whatever legal purposes the Helper
City Police Department deems necessary” and the results “will be
released to [the Chief] or any others required by law.” By signing
the waiver, Goodall represented that he was “in good mental and
3. An audio recording was made of this initial interview with
Goodall, and parts of it were played for the jury.
20210622-CA 5 2024 UT App 100State v. Goodall
physical condition” and did not know of any “mental or physical
ailment” that would “be impaired by the interview or
examination.” Goodall also represented that he was taking the test
“voluntarily, without threats, duress, coercion, force, or promise
of immunity or reward.” When the Chief asked Goodall how
much sleep he had gotten the previous night and if he had eaten
that day, Goodall responded that he had slept “[e]ight, nine
hours” and had eaten breakfast but not lunch. Goodall stated he
was in overall good health except for having bipolar disorder,
which caused him “severe anxiety” and “chronic depression.”
¶12 After Goodall took the polygraph test, the Chief reviewed
the results and determined that Goodall was lying. The Chief told
Goodall he had “failed the test” and then compared a prosecutor
to a “secondary umpire” in baseball, encouraging Goodall to
“own up” to his mistake instead of denying it and “bumping
bellies with the secondary umpire.” Approximately five minutes
into this post-polygraph interview, Goodall admitted he “did
make a bad decision” and started sobbing, saying he had “never
wanted to hurt [Jenny].” The Chief asked what he meant and
Goodall explained, “I told her to . . . [do] anal . . . and she might
not have like[d] it. . . . She has expressed to me before she didn’t
like it.” Goodall admitted that he and Jenny had started with anal
sex, contrary to what he had told Officer earlier. When asked if
Jenny agreed to the anal sex, Goodall replied, “She didn’t really
tell me; she did shake her head yes. But I, I really don’t, I swear
on my mother’s grave.” As for the oral sex that night, Goodall said
he “might’ve went a little too far” and that he was “the one who
caused her to gag” when he “pushed her head down.” Goodall
also admitted he had ejaculated in Jenny’s mouth.
¶13 The State charged Goodall with three first-degree felonies:
two counts of forcible sodomy and one count of object rape.
Goodall filed a motion to suppress the polygraph test results,
along with his statements made after the polygraph. The State
stipulated to excluding the polygraph test results but opposed
20210622-CA 6 2024 UT App 100State v. Goodall
exclusion of Goodall’s post-polygraph statements. The trial court
accepted the stipulation, held an evidentiary hearing, and heard
oral argument on whether to exclude Goodall’s post-polygraph
statements. The court denied the motion, ruling that Goodall
“voluntarily waived his Miranda rights” and “presented no
evidence that he was overly compliant or more susceptible to
coercion” and that no “improper threats, implied promises, false
friend, or coercive police tactics were present.”
The Trial
¶14 At trial, the jury heard Jenny testify about the assault as
described above. On cross-examination, Jenny admitted that she
and Goodall “frequently engaged in rough sex,” which she
defined as “hair pulling, biting, back clawing, [and] slapping.”
Goodall’s attorneys (Counsel) asked if Jenny had been “preparing
for today’s testimony.” Jenny replied that her attorney, two
county prosecutors, a detective, the Chief, and a victim’s advocate
helped her prepare. The State also elicited testimony from Officer,
the Chief, Roommate, and additional witnesses.
¶15 Goodall’s defense focused on consent and on the Chief,
portraying him as overly eager to get a conviction. Counsel urged
the jury to make its decision “based upon the evidence, not based
upon an officer who has tunnel vision, who wants to go a certain
direction and clearly creates his investigation to reflect that.”
During cross-examination of the Chief, Counsel sought to
minimize discrepancies in Goodall’s interviews, to which the
Chief replied, “It goes back to credibility, I guess, of [Goodall]
when I was talking to him . . . there [were] a few inconsistencies
that I noticed . . . .” Counsel also asked the Chief about a recorded
phone call between Jenny and Goodall’s cousin:
Counsel: Were there any inconsistencies in
what [Jenny] told [Goodall’s cousin]
20210622-CA 7 2024 UT App 100State v. Goodall
versus what she told you in your
interview?
The Chief: [Jenny] was very consistent in that
recorded phone conversation by [the
cousin].
Counsel: Okay. Was her statements [sic]
consistent with what the evidence
showed?
The Chief: All I can say is [Jenny] was consistent
in the statements she provided me in
that recorded phone interview.
¶16 The State asked the Chief about his brief interaction with
Roommate while Jenny was collecting her clothing at the trailer.
When asked what Roommate’s “demeanor was like while [the
Chief was] speaking with him,” the Chief answered, “He seemed
articulate. He seemed knowledgeable, I guess.” When the State
asked if Roommate seemed “questionable in what he was saying
at all,” the Chief replied, “Not at all.”
¶17 At the close of the State’s case, Counsel moved for a
directed verdict, arguing there was possible witness tampering
since Jenny testified that her attorney, a victim’s advocate, a
detective, the Chief, and two county prosecutors had
been “prepping her for her testimony.” The court denied the
motion, finding a lack of evidence “beyond just suspicion” to
support it.
¶18 Counsel recalled the Chief to the witness stand during
Goodall’s case-in-chief and sought to emphasize alleged
inconsistencies in Jenny’s statements. The Chief responded that
during his “three interactions or more with [Jenny], she was
totally consistent every single time. In her written statement, in
20210622-CA 8 2024 UT App 100State v. Goodall
my official police report that I wrote, in my probabl[e] cause
statement, she was consistent.”
¶19 Before sending the jury to deliberate, the trial court gave
the jury instructions, including one requested by Counsel
(Instruction 34). Unlike most of the other jury instructions,
Instruction 34 did not have a heading, and it stated as follows:
When the Prosecution introduces evidence
that the defendant confessed, that confession must
be viewed in light of its overall trustworthiness.
There are several factors that you may consider
when deciding whether the statement is sufficiently
trustworthy:. . . .
If you find that there is sufficient evidence to
believe that the defendant’s statement is
trustworthy, then you may consider it as evidence
among the other evidence presented. However, if
you find that there is not sufficient evidence to
establish that the defendant’s statement is
trustworthy, you may disregard the statement.
¶20 The jury found Goodall guilty of forcible sodomy (based
on the anal sex), not guilty of forcible sodomy (based on the oral
sex), and guilty of object rape (based on the digital penetration).
The trial court later sentenced Goodall to two concurrent terms of
five years to life in prison.
¶21 After Goodall timely appealed, he filed a motion to stay his
appeal so he could develop evidence of “misconduct” by the
prosecution in the trial court. We denied that motion, noting that
with “the exception of rule 23B [for ineffective assistance of
counsel], which is not applicable here, the Utah Rules of Appellate
Procedure do not provide a mechanism to develop evidence for
20210622-CA 9 2024 UT App 100State v. Goodall
an appeal after a notice of appeal has been filed.” Goodall filed a
motion to reconsider that order, which we also denied.
ISSUES AND STANDARDS OF REVIEW
¶22 Goodall raises four issues on appeal. First, Goodall
requests that this court grant him the opportunity to develop a
record of prosecutorial misconduct “by whatever remedy.”
Because Goodall’s request to develop the record for such a claim
during the pendency of this appeal “is procedurally improper,”
we “need not address the standard[] of review applicable” to this
issue. State v. Robinson, 2023 UT 25, ¶ 11, 540 P.3d 614.
¶23 Second, Goodall asserts that his Miranda waivers and
incriminating statements were involuntary. “In reviewing a trial
court’s determination on the voluntariness of a confession, we
apply a bifurcated standard of review.” State v. Rettenberger, 1999
UT 80, ¶ 10, 984 P.2d 1009 (cleaned up). “The ultimate
determination of voluntariness is a legal question” reviewed for
correctness, and a trial court’s factual findings are reviewed for
clear error. Id.¶24 Third, Goodall contends that Counsel rendered
constitutionally ineffective assistance by requesting a jury
instruction that, according to Goodall, characterized his
statements to law enforcement as a “confession.” “When a claim
of ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Calvert, 2017 UT
App 212, ¶ 17, 407 P.3d 1098 (cleaned up).
¶25 Finally, Goodall asserts that improper evidence was
admitted under rule 608(a) of the Utah Rules of Evidence in
relation to the Chief’s testimony. Goodall admits he failed to
20210622-CA 10 2024 UT App 100State v. Goodall
preserve this issue by raising it below and asks us to review it
under “both the plain error and ineffective assistance of counsel
exceptions to our preservation requirement.” State v. Popp, 2019
UT App 173, ¶ 19, 453 P.3d 657. “Plain error is a question of law
reviewed for correctness.” Id. (cleaned up). And, again, “we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” Id. (cleaned up).
ANALYSIS
I. Prosecutorial Misconduct
¶26 Goodall argues that his state constitutional rights to
appeal, have counsel, and be afforded due process will be violated
if he is denied an opportunity to develop a record of alleged
prosecutorial misconduct during this direct appeal. Goodall
acknowledges that “the record is insufficient to raise known
claims of prosecutorial misconduct.” The State points out that this
is Goodall’s second request for reconsideration of our ruling
denying his request to stay his appeal so he can develop the
record on prosecutorial misconduct, and that the appellate rules
allow the development of evidence outside the record after filing
a notice of appeal only for a claim of ineffective assistance of
counsel. We agree with the State.
¶27 The Utah Constitution guarantees criminal defendants a
number of rights, including the right to appeal, see Utah Const.
art. 1, § 12, the right to counsel, see id., and the right to due process,
see id. art. 1, § 7. The Utah Rules of Appellate Procedure outline
the contours of the right to appeal. Under those rules, parties to
an appeal may not develop extra-record evidence after filing the
notice of appeal. See Utah R. App. P. 11(a). Rule 23B is the only
exception to that rule and allows an appellate court to grant
criminal defendants a limited remand of their case to the trial
court so the record may be developed on an ineffective assistance
20210622-CA 11 2024 UT App 100State v. Goodall
of counsel claim. See id. R. 23B(a). This procedure is available only
for findings of fact that are “necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.” Id.¶28 Goodall invokes our court’s “inherent authority” in
making his request that, despite the absence of any rule allowing
it, we create a rule permitting remand for a prosecutorial
misconduct claim. But our authority does not extend to rule-
making. Utah’s constitution grants our supreme court the
“primary authority over the adoption of rules of procedure and
evidence,” but even that court is limited by existing rules when
reviewing an appeal. See Cougar Canyon Loan, LLC v. Cypress Fund,
LLC, 2020 UT 28, ¶ 13, 466 P.3d 171 (cleaned up); see also id. (“An
appeal to this court is not the appropriate means to amend a court
rule.” (cleaned up)). Indeed, the supreme court stated, “Even
where an appellant presents compelling reasons for a policy shift
that is not currently supported by the plain language of our rules
of procedure, we do not rewrite the rule on the fly. Rather, we
refer the issue to the appropriate rules committee for additional
study, and, if appropriate, we amend the language of the relevant
rule through our normal rule-making process.” Id. ¶ 15 (cleaned
up). Accordingly, we reject Goodall’s request that we exercise our
“inherent authority” to devise a remedy not provided for in the
current rules.
¶29 But Goodall is not without a potential avenue for relief. He
may raise this claim in postconviction proceedings, pursuant to
the Post-Conviction Remedies Act (the PCRA). See Utah Code
§§ 78B-9-101 to -503; id. § 78B-9-102(1)(a) (establishing the PCRA
as “the sole remedy for any person who challenges a conviction
or sentence for a criminal offense and who has exhausted all other
legal remedies, including a direct appeal”). Goodall contends that
being required to raise his claim in postconviction proceedings
violates his state constitutional right to appeal because he is not
guaranteed counsel at that stage. Our supreme court faced a
similar argument in Gailey v. State, 2016 UT 35, 379 P.3d 1278, and
20210622-CA 12 2024 UT App 100State v. Goodall
acknowledged that although neither “the right to state-paid
counsel nor the right to effective assistance of counsel is
constitutionally or statutorily guaranteed in postconviction
proceedings,” that, “the court may, upon the request of an
indigent petitioner, appoint counsel on a pro bono basis,” id. ¶ 28
(cleaned up). Thus, the supreme court held that the claim was
unripe because the defendant had not yet sought postconviction
relief nor been denied postconviction counsel. Id. ¶¶ 28–30. So too
here. Although Goodall is not guaranteed counsel under the
PCRA, he may be appointed counsel, making his argument that
he is being denied the right to counsel unripe at this stage.
¶30 Because the appellate rules do not allow the development
of evidence outside the record after filing a notice of appeal unless
it is for a claim of ineffective assistance of counsel, we deny for a
third time Goodall’s request to develop the record for his claim of
prosecutorial misconduct. But we note that he may raise his claim
in postconviction proceedings should he choose to do so.
II. Goodall’s Statements to Police
¶31 Next, Goodall contends the trial court erred in admitting
statements he made that “were the product of involuntary . . .
waivers and coercion.” The Fifth Amendment prohibits the use of
statements obtained by coercion and guarantees that individuals
will not be “compelled in any criminal case” to be “a witness
against” themselves. U.S. Const. amend. V. The “ultimate test” of
whether this protection has been violated and a defendant’s
statement is involuntary is whether the defendant’s “will has been
overborne.” Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)
(cleaned up). Courts must “assess[] the totality of all the
surrounding circumstances—both the characteristics of the
accused and the details of the interrogation”—in “determining
whether a defendant’s will was overborne.” Id. at 226. In other
words, courts must consider internal factors such “as the
defendant’s mental health, mental deficiency, emotional
20210622-CA 13 2024 UT App 100State v. Goodall
instability, education, age, and familiarity with the judicial
system,” as well as “external factors [such] as the duration of the
interrogation, the persistence of the officers, police trickery,
absence of family and counsel, and threats and promises made to
the defendant.” State v. Rettenberger, 1999 UT 80, ¶¶ 14–15, 984
P.2d 1009.
¶32 First, none of Goodall’s personal characteristics weigh in
favor of his claim that his statements were involuntary or coerced.
Goodall received two Miranda warnings in short succession: one
by Officer at the beginning of his interview at the Helper Police
Station and another by the Chief before his interview at the
Carbon County Administration Building. When the Chief asked
Goodall how much sleep he had gotten the previous night and if
he had eaten that day, Goodall responded that he had slept
“[e]ight, nine hours” and had eaten breakfast, but not lunch.
Goodall also confirmed he was in overall good health except for
having “bipolar” disorder, which caused him “severe anxiety”
and “chronic depression.” Goodall was familiar with the justice
system (having been arrested more than once), responded clearly
to questions, and showed no signs that his “will was overborne,”
Schneckcloth, 412 U.S. at 226.
¶33 Second, none of the external factors support Goodall’s
claim that his statements were involuntary or coerced. His two
interviews spanned just over two hours, far shorter than
interviews where coercion has been found based on the length of
interviews. See, e.g., Davis v. North Carolina, 384 U.S. 737, 746–47
(1966) (holding that sixteen days of interrogation was coercive);
Chambers v. Florida, 309 U.S. 227, 230 (1940) (holding that an “all
night vigil” at the end of five days’ questioning was coercive).
The trial court did not err in determining that the officers used
no “improper threats, implied promises, false friend, or
coercive police tactics” and were, in fact, “cautious in obtaining
two Miranda waivers within a short period of time.” The
recordings of the interviews support the trial court’s finding and
20210622-CA 14 2024 UT App 100State v. Goodall
show not only that Officer’s and the Chief’s actions and
statements were permissible, but that they also made notable
efforts to accommodate Goodall and ensure he understood his
rights.
¶34 Finally, the Chief’s use of the polygraph test and results as
an interview technique was not coercive; it was a permissible form
of interrogation. See Wyrick v. Fields, 459 U.S. 42, 48 (1982) (per
curiam) (rejecting a lower court’s determination that the use of
polygraph results in police questioning “is inherently coercive”).
The record indicates the Chief did not tell Goodall the polygraph
test results would be used at trial; instead, the waiver simply
stated that the results of the test “will be released to [the Chief], or
any others required by law.”
¶35 Under the totality of the circumstances, the police
employed no coercive tactics and there is no indication on
the record that Goodall’s two Miranda waivers were
involuntary. Therefore, the trial court correctly determined that
Goodall’s incriminating statements and Miranda waivers were
voluntary.
III. Jury Instruction
¶36 Next, Goodall contends Counsel rendered ineffective
assistance in requesting an instruction that, according to Goodall,
labeled his incriminating statements as a “confession.” While
Goodall concedes it was proper for Counsel to seek “an
instruction that would allow the jury to consider the
untrustworthy nature of Goodall’s statements,” he argues the
wording of Instruction 34 was problematic because it “allowed
jurors to begin their analysis from the premise that Goodall
confessed.” The State counters that had the jury viewed
Instruction 34 as “a judicial pronouncement that Goodall
confessed,” it would not have reached a mixed verdict. We agree
with the State.
20210622-CA 15 2024 UT App 100State v. Goodall
¶37 An ineffective assistance of counsel claim requires a
defendant to “demonstrate both that counsel’s performance was
deficient, in that it fell below an objective standard of reasonable
professional judgment, and that counsel’s deficient performance
prejudiced” the defendant. State v. Powell, 2020 UT App 63, ¶ 19,
463 P.3d 705 (cleaned up). “Both elements must be present, and if
either is lacking, the claim fails and the court need not address the
other.” Id. (cleaned up). “If it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
that course should be followed.” Strickland v. Washington, 466 U.S.
668, 670 (1984).
¶38 To prevail on the prejudice prong, Goodall “must
demonstrate that but for the error, there is a reasonable
probability that the verdict would have been more favorable to
him.” State v. Apodaca, 2019 UT 54, ¶ 50, 448 P.3d 1255 (cleaned
up). “This requirement is a relatively high hurdle to overcome”
because “the likelihood of a different result must be substantial.”
Id. (cleaned up). Goodall has not met this burden.
¶39 The jury was given Instruction 34 so it could assess the
trustworthiness of Goodall’s incriminating statements. The
instruction had no title and used a version of the word
“confession” only twice, both times in its opening sentence:
“When the Prosecution introduces evidence that the defendant
confessed, that confession must be viewed in light of its overall
trustworthiness.” This sentence reads more as an abstract “if-
then” statement than as a judicial pronouncement that Goodall
had confessed. The instruction then ends with emphasis on the
sufficiency of the evidence to support what it terms as Goodall’s
“statement,” not confession:
If you find that there is sufficient evidence to believe
that the defendant’s statement is trustworthy, then
you may consider it as evidence among the other
evidence presented. However, if you find that there
20210622-CA 16 2024 UT App 100State v. Goodall
is not sufficient evidence to establish that the
defendant’s statement is trustworthy, you may
disregard the statement.
(Emphases added.) Taken as a whole, Instruction 34 did not
prejudice Goodall by its inclusion of “confession” at its outset; its
focus was on whether the evidence presented matched the
statements made by Goodall, thus framing the idea of Goodall’s
statements as a “confession” as the State’s theory to prove.
¶40 When we assess whether Goodall was prejudiced by
Counsel’s actions, we “must consider the totality of the evidence
before the judge or jury.” State v. Garcia, 2017 UT 53, ¶ 42, 424 P.3d
171 (cleaned up). We are not convinced that without Instruction
34’s use of the word “confession,” there is a reasonable probability
that the result of the trial would have been different. The jury
heard Jenny’s account of the assault, which was corroborated by
Roommate’s testimony about the “whimpering” he heard that
night and by Goodall’s callous text messages to Jenny while she
was in the bathroom. The jury also heard Goodall make
contradictory statements during his police interviews, such as
which sexual act he and Jenny started with, whether he ejaculated
in Jenny’s mouth, and whether Jenny gagged herself or was
caused to gag by Goodall pushing her head down. Finally, the
jury heard Goodall remorsefully admit he “might’ve went a little
too far,” and that Jenny had “expressed to [him] before she didn’t
like [anal sex].” On this record, it is unlikely that the jury would
have found Goodall not guilty. Thus, Goodall has not established
that without this instruction there is a “reasonable probability that
the verdict would have been more favorable to him.” Apodaca,
2019 UT 54, ¶ 50 (cleaned up).
IV. Rule 608(a) Evidence
¶41 Finally, Goodall contends that Counsel was ineffective in
not objecting to the Chief’s comments about the credibility of
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Goodall’s, Jenny’s, and Roommate’s statements to the police.
Goodall also argues the trial court committed plain error when it
did not sua sponte strike this testimony. Goodall did not raise this
concern at trial and asks us to review this unpreserved issue
under the doctrines of ineffective assistance of counsel or plain
error. See generally State v. Johnson, 2017 UT 76, ¶ 19, 416 P.3d 443(explaining that plain error and ineffective assistance are
exceptions to the preservation requirement). Because we conclude
that the evidence did not violate rule 608(a) of the Utah Rules of
Evidence and that Counsel reasonably could have decided to use
these statements to support the theory that the Chief conducted a
targeted investigation against Goodall, we conclude that Counsel
was not ineffective in not objecting to it. We also conclude it was
not plain error for the court to allow it.
¶42 Goodall contends the Chief made three statements on the
credibility of witnesses that violate rule 608(a):
First Statement
It goes back to credibility, I guess, of [Goodall] when
I was talking to him. He was—there [were] a few
inconsistencies that I noticed and that was one of
them. His initial statement was that she took her
own clothes off. And then at the end, he told me that
he told her to take her clothes off.
Second Statement
Counsel: Were there any inconsistencies in
what [Jenny] told [the cousin] versus
what she told you in your interview?
The Chief: [Jenny] was very consistent in that
recorded phone conversation by [the
cousin].
20210622-CA 18 2024 UT App 100State v. Goodall
Counsel: [Were] her statements consistent with
what the evidence showed?
The Chief: All I can say is [Jenny] was consistent
in the statements she provided me in
that recorded phone interview.
Third Statement
The Chief: [Roommate] seemed articulate. He
seemed knowledgeable, I guess.
The State: Did he seem questionable in what he
was saying at all?
The Chief: Not at all.
Goodall claims that Counsel should have objected to each of these
statements or the trial court should have intervened sua sponte to
strike the testimony. We disagree.
¶43 Generally, we “give wide latitude to Counsel to make
tactical decisions and will not question such decisions unless
there is no reasonable basis supporting them.” State v. Bedell, 2014
UT 1, ¶ 23, 322 P.3d 697 (cleaned up). Accordingly, our analysis
of plain error and ineffective assistance are interwoven
because “plain error does not exist when a conceivable strategic
purpose exists to support the use of the evidence.” Id. ¶ 26
(cleaned up).
¶44 First, one of Counsel’s theories was that the Chief had
“tunnel vision” during his investigation. Counsel effectively
demonstrated this theory by his use of the Chief as a witness in
Goodall’s case-in-chief and by remarks in closing when
Counsel urged the jury to make its decision “based upon the
evidence, not based upon an officer who has tunnel vision, who
wants to go a certain direction and clearly creates his investigation
20210622-CA 19 2024 UT App 100State v. Goodall
to reflect that.” The Chief’s statement about Goodall’s credibility
came unsolicited during cross-examination when Counsel was
seeking to minimize discrepancies in Goodall’s interviews. It was
sound strategy for Counsel to let that statement go rather than to
draw unwanted attention to it with an objection. Similarly, the
Chief’s statements about Jenny’s consistency and Roommate not
being questionable corroborated the idea that the Chief had
“tunnel vision” in taking their statements at face value and
relying too much on their words rather than on actual evidence.
Counsel therefore had good reason not to object to these
statements.
¶45 Second, Counsel could have reasonably decided that the
statements did not violate rule 608(a). Rule 608(a) “prohibits any
testimony as to a witness’s truthfulness on a particular occasion.”
State v. Adams, 2000 UT 42, ¶ 11, 5 P.3d 642 (cleaned up). Thus, a
witness may not “offer a subjective credibility determination that
[another witness] was telling the truth,” but the rule does not
prohibit a witness “from giving testimony from which a jury
could infer the veracity of the [other] witness.” Id. ¶¶ 13–14. Our
case law distinguishes between statements made about a
witness’s truthfulness generally and a witness’s statement
specifically. See, e.g., State v. Bair, 2012 UT App 106, ¶ 47, 275 P.3d
1050 (determining an officer’s “observation that [a witness’s] trial
testimony was consistent with the allegations she made” earlier
did not violate rule 608(a)); State v. Cruz, 2002 UT App 106U, para.
1, (concluding that testimony “that the victim’s story never
wavered in its specifics” during her interviews was not an
impermissible comment on the victim’s credibility). Thus,
Counsel’s performance was not deficient where there were valid
strategic reasons not to object to the Chief’s statements.
“Accordingly, it was not plain error for the trial court to refrain
from interfering with . . . Counsel’s strategic decision-making.”
State v. Gourdin, 2024 UT App 74, ¶ 59 n.13, 549 P.3d 685 (cleaned
up).
20210622-CA 20 2024 UT App 100State v. Goodall
CONCLUSION
¶46 In the absence of a rule expressly granting a defendant the
opportunity to develop the record for a prosecutorial misconduct
claim during an appeal, we reject Goodall’s request to create such
a mechanism. The trial court correctly determined that Goodall’s
incriminating statements and Miranda waivers were voluntary.
We conclude that Counsel did not render ineffective assistance of
counsel by introducing Instruction 34. We also conclude Counsel
was not constitutionally ineffective for not objecting to the Chief’s
testimony, and the trial court did not plainly err when it did not
sua sponte strike the testimony. We therefore affirm Goodall’s
convictions.
20210622-CA 21 2024 UT App 100