State v. Florreich , 2024 UT App 9 ( 2024 )

2024 UT App 9THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
ALAVINA FUNGAIHEA FLORREICH,
Appellant.
Opinion
No. 20200255-CA
Filed January 19, 2024
Third District Court, Salt Lake Department
The Honorable Vernice S. Trease
No. 181903863
Robert Denny, Attorney for Appellant
Sean D. Reyes, William M. Hains, and Emily Sopp,
Attorneys for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
GREGORY K. ORME and RYAN M. HARRIS concurred.
TENNEY, Judge:
¶1 At the close of a four-day trial, a jury convicted Alavina
Florreich of five counts of aggravated sexual abuse of a child and
two counts of forcible sexual abuse. On appeal, Florreich raises
twelve claims of ineffective assistance of counsel, and she also
moves for a remand under rule 23B of the Utah Rules of Appellate
Procedure to develop a record to support two additional
ineffective assistance claims. For the reasons set forth below, we
deny the motion for a remand and affirm Florreich’s convictions.
State v. Florreich
BACKGROUND 1 0F
Sexual Abuse and Investigation
¶2 From 1998 to 2009, Alavina Florreich was the nanny for
Alex and his siblings. Florreich is a Tongan immigrant, and Alex
2
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and his siblings were the homeschooled children of a Jewish
rabbi.
¶3 When Alex was eight years old, Florreich was watching a
movie with Alex and his younger siblings one day when Alex
began giving her a shoulder massage. While doing so, Alex
slipped his hand beneath Florreich’s shirt. Florreich then took
Alex’s hand and guided it to her breast. At the time, Florreich was
50 years old.
¶4 Over the ensuing months and years, Florreich and Alex
had a sexual relationship of increasing intimacy. Sometime after
the initial incident, Florreich asked Alex if he wanted to see what
was under her shirt. When Alex said that he did, Florreich lifted
up her shirt. Alex occasionally asked her to do this again, and she
often (though not always) obliged. On one occasion, Alex became
upset when Florreich accidentally disconnected a video game that
he was playing with his brothers. Florreich told Alex to meet her
in the bathroom in a few minutes and that she “would make it
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.
Suhail, 2023 UT App 15, n.1, 525 P.3d 550 (quotation simplified),
cert. denied, 531 P.3d 730 (Utah 2023).
2. Despite the wide publicity surrounding this case, we’ll adhere
to our general practice of referring to victims of sexual abuse
pseudonymously.
20200255-CA 2 2024 UT App 9State v. Florreich
right.” When Alex arrived, Florreich was standing in her
underwear. “Enjoy it,” she said.
¶5 Florreich soon began asking Alex to touch her breasts.
Most of these encounters took place in a downstairs bathroom. On
one occasion, this occurred in the upstairs bedroom of Alex’s baby
sister. When the two heard the door opening and realized that it
was Alex’s mother, Florreich called out that she was changing
clothes, and without realizing what had been occurring inside the
room, Alex’s mother shut the door.
¶6 Florreich eventually began urging Alex to expose himself
to her. When Alex was 10 or 11, Florreich touched Alex’s penis for
the first time. Alex later recalled that “her face lit up,” that she told
him that he was “so healthy,” and that she made comments about
the size of his penis. Sometime afterward, Florreich stroked Alex’s
penis to ejaculation, and this same thing occurred on many other
occasions moving forward. When Alex was 13, he left the state for
boarding school. Florreich remained employed with his family.
When Alex would return home for breaks, the two would again
engage in sexual contact, including one instance in which
Florreich caused Alex to ejaculate by stroking his penis with her
feet.
¶7 Their last sexual encounter occurred in 2009, which was
shortly after Alex turned 18. According to Alex’s subsequent
account of this encounter, Florreich offered to perform oral sex on
him and then did so, and this was the first time this particular act
had occurred.
¶8 Alex later estimated that over the 10-year period that began
when he was 8 and lasted until he was 18, he and Florreich had
somewhere between 100 and 200 sexual encounters. But Alex had
not yet told anyone about these encounters. In 2016, however,
Alex saw an episode of a popular TV drama that depicted a
nanny’s sexual abuse of a child. Alex later explained that the
20200255-CA 3 2024 UT App 9State v. Florreich
episode’s framing helped him realize that children cannot consent
to sexual activity with adults, regardless of how willing the child
might have been to engage in the behavior. Alex began seeing a
therapist and soon told his therapist what had happened with
Florreich. After that, Alex told his wife, his parents, and, finally,
the police.
¶9 After Alex reported the abuse to police, the detective who
was managing his case (Detective) set up a recorded pretext call
between Alex and Florreich. The first portion of the call was
mostly small talk; during this portion, Florreich repeatedly had
trouble hearing Alex, though the audio issues resolved when Alex
moved closer to his phone and Florreich connected her phone to
a speaker. As the call progressed, Alex then lied to Florreich about
the real purpose for his call. Alex told her that he was having
sexual troubles with his wife and that he was hoping Florreich
could counsel him through those troubles by discussing their own
past encounters.
¶10 During the ensuing discussion, Florreich repeatedly
agreed that there had been sexual contact between them. For
example, Florreich said that she had been impressed with the size
of Alex’s penis, and she confirmed that she had massaged his
penis to the point of ejaculation with her feet on one occasion.
Florreich also recalled the first time that Alex had ejaculated into
her hand, recalling that she had told him that his future wife
would be “very lucky” because “some people don’t get that, you
know?” Florreich then reminded Alex of her own comment that
he was “very healthy,” and she asked him if he was “still the
same.” Florreich also said that she had “sweet memories” about
massaging Alex’s penis, and she told him that “with those
memories, I am able to be with [my husband] to this day.” At one
point in the conversation, Alex vaguely referenced “some of our,
you know, experiences when I was a kid” that involved Florreich
“preparing me for marriage,” at which point Florreich interjected,
“with your curiosity, right?” Florreich agreed that what they had
20200255-CA 4 2024 UT App 9State v. Florreich
done was “kind of like preparing you for your marriage life,” and
she asked Alex whether he thought about her while he was
touching his wife. During this call, the only sexual encounter that
Alex mentioned that Florreich denied was his memory that his
mother had once almost walked in on them while they were in his
baby sister’s room.
¶11 A day or two later (the record is slightly unclear on
which), detectives knocked on Florreich’s door and asked her
to come to the police station for an interview. After reading
Florreich her Miranda rights, detectives asked her about the
phone conversation she’d had with Alex. Florreich then
backtracked on several of the admissions she had made in that
call, telling detectives that she “didn’t mean” some of what she
said. But even so, Florreich still admitted to at least some sexual
contact, including that she had touched Alex’s penis starting
around the age of 12 or 13. Florreich said that she hadn’t wanted
to do it but that Alex had “made” her. When a detective asked
about the alleged oral sex encounter that occurred after Alex
turned 18, Florreich suggested that Alex had “made” her do it and
that it was “rape.” Throughout this interview, Detective was often
combative with Florreich, he frequently accused Florreich of
lying, and he insisted that Alex had been honest when making his
accusations.
Charges and Trial
¶12 The State charged Florreich with five counts of aggravated
sexual abuse of a child and two counts of forcible sexual abuse. A
four-day jury trial was held. In his opening statement, defense
counsel (Counsel) 3 said, “Both sides are going to try to make sense
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of the other side’s story, and we’re going to try to present to you
3. Florreich was represented by two attorneys below. We refer to
them with the singular “Counsel” for convenience.
20200255-CA 5 2024 UT App 9State v. Florreich
the facts in a light that shows you what our point of view in the
case is. And nobody is going to lie to you on this case.”
¶13 The State called three witnesses in its case: Alex, Alex’s
mother, and Detective. Alex testified at length about the details
of his sexual relationship with Florreich that were recounted
above. Alex also testified to feeling intense, religiously inflected
guilt about what had occurred. Alex said that he became
“secretive and sneaky” during those years, simultaneously
hoping the sexual contact would continue while also wishing
it would stop. He admitted that, after the pattern of sexual
contact was first established, he often initiated the encounters
and that Florreich had refused him on “numerous occasions.”
Alex’s mother testified that Florreich spoke English “perfectly”
and had not been a pushover for the kids. She also testified
that the family had a great relationship with Florreich and that
she was shocked to learn about the alleged abuse. She said she
never observed any inappropriate sexual activity between
Florreich and any of her children. In his direct examination,
Detective testified about his involvement in the case, including
the circumstances surrounding the pretext call and the
interrogation.
¶14 The State also played audio of both the pretext call and
Florreich’s interrogation for the jury. While playing these
recordings, the prosecutor (Prosecutor) skipped past parts of the
recording where the conversation had veered into irrelevant
topics.
¶15 At one point while playing the recording of the
interrogation, the jury heard a brief exchange in which
Detective had begun to discuss a story Florreich had told
Alex about an instance in which she had sex with a man in a
park. Prosecutor stopped the audio, approached the bench,
and suggested that she had inadvertently played this
exchange. Prosecutor asked for permission to skip over the rest
20200255-CA 6 2024 UT App 9State v. Florreich
of the story, saying that it was not relevant and was potentially
prejudicial to Florreich. Counsel protested, initially saying “we
should listen to the whole thing” and then obtaining assurances
from the court that he would be allowed to play the whole video
under the rule of completeness. Prosecutor did not play the audio
of the rest of that story, and in his own case, Counsel did not
either.
¶16 During the defense’s case, Counsel’s primary theme was
that Alex had “threatened” or even “forced” Florreich into
performing the sexual acts and that Florreich had only complied
out of fear for her job and because she didn’t want to “ruin” his
life. In support, Counsel highlighted the oral sex incident and
Florreich’s claim that Alex had forced her into engaging in the
conduct. He also pointed to various statements from Alex in
which he admitted that he had initiated many of their sexual
encounters and that he was sometimes very determined that the
encounters should continue. Counsel argued that, to Alex,
Florreich was “nothing more than a target, an object, something
that can be used.”
¶17 Counsel advanced this theme throughout his questioning
of various witnesses. While cross-examining Alex’s mother, for
example, Counsel attempted to get her to admit that she had
disparaged Florreich’s intelligence and had said that Florreich
was “easily manipulated” by the children, but Alex’s mother did
not recall making either statement. Counsel also asked Alex’s
mother whether Florreich was “a religious woman,” which
elicited testimony that Florreich had left the “Mormon faith”
because she thought “it was better for the family,” as well as
testimony that she had joined another church.
¶18 During his cross-examination of Alex, Counsel again
pursued his theme by asking Alex whether he had pressured
Florreich into engaging in sexual activity. He also asked Alex
about statements he made to police that suggested he had
20200255-CA 7 2024 UT App 9State v. Florreich
initiated or controlled the sexual encounters. 4 In addition,
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Counsel highlighted certain discrepancies between Alex’s
testimony in direct examination and his past statements to
Detective. In the most relevant example, Alex had told Detective
that his mother had “walked into the room” during the encounter
in his baby sister’s room, whereas in the pretext call with Florreich
and again at trial, Alex had said that the “door began to open” but
that his back was facing the door and that he did not actually
know how far his mother had come into the room. Finally,
Counsel asked Alex a series of questions suggesting that Alex
wanted to become a public figure on the issue of sexual abuse,
highlighting his decision to give a couple of interviews about his
allegations and about his contact with Elizabeth Smart, a well-
known survivor of kidnapping and sexual assault.
¶19 As part of the defense case, Counsel also argued that while
investigating the case, Detective had been too accepting of Alex’s
claims and too hostile toward Florreich. During cross-
examination, Counsel pressed Detective about his various
statements to Florreich during the interrogation in which he told
her he thought she was lying. Counsel asked Detective how many
times he had called her a liar, tried to get Detective to agree that
accusing her of lying was an interrogation technique, and implied
that Detective had failed to investigate Florreich’s “rape”
allegation because he had already come to a conclusion about who
was telling the truth.
¶20 During this cross-examination, Detective repeatedly
defended his own conduct. At one point, Detective said, “I called
her a liar a lot because she lied a lot.” At another point in this
4. At one point during the trial, Counsel disagreed with the trial
court’s suggestion that he was arguing “force or coercion.”
Counsel explained that his strategy was intended to negate the
mens rea of the charges.
20200255-CA 8 2024 UT App 9State v. Florreich
cross-examination, Counsel appeared to agree with Detective that
Florreich had lied about some things:
Counsel: You did investigate her allegations of
rape, though?
Detective: And look how many times she lied
before she made that accusation.
Counsel: Well, that’s true—
While responding to questions from Counsel, Detective also
repeatedly referred to Alex as a “victim.” 5 And in two instances,
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Detective accused Counsel of trying to mislead the jury.
¶21 In the defense’s case-in-chief, the only witness that Counsel
called was a former employer of Florreich’s (Employer). Counsel
asked Employer about a jewelry theft involving a cleaning lady
whom she had hired on Florreich’s recommendation. Before
Employer could get too far into the story, Prosecutor objected
based on relevance. The objection was sustained, thus cutting off
the story. At that point, Counsel then asked Employer for her
opinion of Florreich’s reputation for honesty or trustworthiness.
She responded, in relevant part, “I think she is very honest. I think
she’s very trustworthy.” On cross-examination, Prosecutor asked
Employer if her opinion of Florreich’s trustworthiness would
change if she knew that Florreich “admitted that she touched the
penis of a young boy more than one time in order to teach him
about sex.” Employer responded, “I would say yes”—though in
response to subsequent questioning, Employer expressed doubt
over whether she would believe Florreich’s admission.
5. On at least one occasion, Prosecutor referred to Alex as a victim
as well.
20200255-CA 9 2024 UT App 9State v. Florreich
¶22 In his closing argument, Counsel focused on several key
themes. First, Counsel claimed that, during his in-court testimony,
Alex had exaggerated the number of incidents that could have
occurred during Alex’s childhood—that it was “absurd” to claim
that Florreich could have touched him as often as Alex was now
claiming without others in the household noticing. Second,
Counsel argued that Alex had improperly manipulated police
into targeting Florreich for investigation because of Alex’s desire
for publicity and notoriety. Third, Counsel focused heavily on
Florreich’s claim that Alex had “coerced” her into performing oral
sex on him after he turned eighteen, claiming that Alex had
“threat[ened]” her into doing so and that she should be viewed as
a “victim.” Fourth, Counsel stressed Florreich’s background,
pointing out that she was a Tongan immigrant, that “English is
her second language,” and that she had been described as kind
and “truthful” and “laid back.” Finally, turning to the incidents
that Florreich had seemingly acknowledged in the pretext call and
interrogation, Counsel pointed out that the charged offenses were
“specific intent crime[s]” for which Florreich could be convicted
only if she had “the specific intent to gratify [Alex] sexually.”
Counsel then argued that because Alex was her employer’s
child—and, by Alex’s own admission, the initiator of many of the
incidents—Florreich’s “intent [was] to survive,” as opposed to
having an intent to “cause him sexual arousal.” And in any event,
Counsel also argued that because Florreich was Alex’s nanny, any
touching of his penis was akin to a mother touching a child’s
penis, which Counsel suggested should be viewed as non-sexual.
From all of this, Counsel argued that Florreich “never had the
intent to do anything to cause [Alex] sexual arousal” and that the
jury should conclude that there was “reasonable doubt” that she
had committed the charged crimes.
¶23 During closing argument, Counsel also briefly discussed
the moment from Prosecutor’s cross examination of Employer
wherein Employer admitted that her opinion of Florreich might
20200255-CA 10 2024 UT App 9State v. Florreich
change if she knew that Florreich had engaged in sexual conduct
with a young boy. In an apparent attempt to suggest that this
“what if” did not negate Employer’s previously positive
assessment of Florreich’s character, Counsel said: “If I knew you
were Hitler, that would change my opinion about you too, right?
But from what I know[,] the most kind, loving person . . . has
[been] described.” 6
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¶24 At the close of trial, the jury convicted Florreich on all
counts. Florreich timely appealed.
ISSUES AND STANDARD OF REVIEW
¶25 Florreich raises twelve claims of ineffective assistance of
counsel. “A claim of ineffective assistance of counsel raised for the
first time on appeal presents a question of law.” State v. Calata,
2022 UT App 127, ¶ 13, 521 P.3d 920 (quotation simplified), cert.
denied, 525 P.3d 1268 (Utah 2023).
ANALYSIS
¶26 Florreich raises twelve ineffective assistance claims, and
she also asks for a rule 23B remand to develop a record on two
additional claims of ineffective assistance. To succeed on any of
her ineffective assistance claims, Florreich must establish both
elements set forth by the Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). First, she “must show that
counsel’s performance was deficient,” and second, she “must
show that the deficient performance prejudiced the defense.” Id.
at 687. “Both elements must be present, and if either is lacking, the
6. During a sidebar that occurred a short time later, the district
court mentioned this analogy and ordered Counsel to “not use the
word Hitler again.”
20200255-CA 11 2024 UT App 9State v. Florreich
claim fails and the court need not address the other.” State v.
Nelson, 2015 UT 62, ¶ 12, 355 P.3d 1031.
¶27 To establish deficient performance, Florreich must
“overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.”
Strickland, 466 U.S. at 689 (quotation simplified). The question
of deficient performance “is not whether some strategy other
than the one that counsel employed looks superior given the
actual results of trial. It is whether a reasonable, competent
lawyer could have chosen the strategy that was employed in the
real-time context of trial.” State v. Barela, 2015 UT 22, ¶ 21, 349 P.3d
676.
¶28 To establish prejudice, Florreich “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “[T]o
evaluate prejudice, we assess counterfactual[] scenarios—that is,
what would have happened but for the ineffective assistance,”
and “we may do so with the evidence available to us, even when
not part of the original record.” Ross v. State, 2019 UT 48, ¶ 76, 448
P.3d 1203. And in “the event it is easier to dispose of an
ineffectiveness claim on the ground of lack of sufficient prejudice,
we will do so without analyzing whether counsel’s performance
was professionally unreasonable.” Archuleta v. Galetka, 2011 UT
73, ¶ 41, 267 P.3d 232 (quotation simplified).
¶29 We’ll address Florreich’s claims as follows: first, we’ll
address her claim that Counsel was ineffective for not filing a
motion to exclude the admissions that she made during the
pretext call and the interrogation; second, we’ll address her claim
that Counsel rendered ineffective assistance through his choice of
strategy, and alongside that claim, we’ll address her request for a
rule 23B remand on two related claims of ineffective assistance;
20200255-CA 12 2024 UT App 9State v. Florreich
and finally, we’ll address Florreich’s remaining ineffective
assistance claims.
I. Florreich’s Admissions
¶30 Florreich argues that Counsel was ineffective for not
moving to suppress the admissions she made during the
pretext call and the police interrogation. In Florreich’s view,
the admissions she made during the pretext call were the
product of unconstitutional coercion and the admissions she
made in the interrogation were suppressible as fruits of that
earlier constitutional violation. But “because the decision not
to pursue a futile motion is almost always a sound trial
strategy, counsel’s failure to make a motion that would be futile
if raised does not constitute deficient performance.” State v.
Powell, 2020 UT App 63, ¶ 20, 463 P.3d 705 (quotation simplified).
In our view, there was no meritorious basis for moving to
suppress these admissions. As a result, we conclude that Counsel
did not perform deficiently.
¶31 The Constitution provides two guarantees against
involuntary confessions that are potentially implicated by
Florreich’s arguments here:
The Fifth Amendment protects individuals from
being compelled to give evidence against
themselves. Furthermore, under the Due Process
Clause of the Fourteenth Amendment, certain
interrogation techniques, either in isolation or as
applied to the unique characteristics of a particular
suspect, are so offensive to a civilized system of
justice that they must be condemned.
State v. Bunting, 2002 UT App 195, ¶ 14, 51 P.3d 37 (quotation
simplified).
20200255-CA 13 2024 UT App 9State v. Florreich
¶32 For these purposes, a confession is involuntary where,
under the totality of the circumstances, a defendant’s “will
was overborne.” State v. Rettenberger, 1999 UT 80, ¶ 19, 984 P.2d
1009 (quotation simplified). Courts consider a range of
objective and subjective factors when evaluating whether this
was so in a given case. See id. ¶¶ 20, 37. The objective
factors include “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 by the officers.” Id.
¶ 14. The subjective factors include “the defendant’s mental
health, mental deficiency, emotional instability, education, age,
and familiarity with the judicial system.” Id. ¶ 15. Importantly, a
“defendant’s mental condition is not in itself sufficient to make a
confession involuntary.” Id. ¶ 17. And “[a]bsent police conduct
causally related to the confession, there is simply no basis for
concluding that any state actor has deprived a criminal defendant
of due process of law.” Colorado v. Connelly, 479 U.S. 157, 164
(1986). 7
6F
¶33 Florreich argues that her admissions were coerced because
of a combination of (1) misrepresentations by Alex; (2) Alex’s use
of the “false friend” technique; (3) Alex’s threats and promises;
(4) the close relationship they had as nanny and child; and
(5) her own subjective characteristics that allegedly made her
susceptible to a false confession. We stress upfront that
because this is a totality of the circumstances analysis, the
factors must ultimately be assessed together to determine
whether Florreich’s admissions were involuntary. But we begin
7. The State agrees that Alex was acting as a state agent for
purposes of the pretext phone call in this case. Cf. Orem City v.
Santos, 2013 UT App 155, ¶ 7, 304 P.3d 883 (noting that “[w]hen a
private party acts as an agent of the government authority, any
search performed by that private party becomes subject to state
and federal constitutional protections”).
20200255-CA 14 2024 UT App 9State v. Florreich
by examining each argument in turn, and in doing so, we
conclude that Florreich has failed to persuade us that any
particular factor rendered her statements involuntary. As a
result, whether viewed individually or collectively, we see no
basis for concluding that her admissions were unconstitutionally
coerced.
¶34 Misrepresentations. Cases that have focused on
misrepresentations made during an interrogation have most
commonly considered misrepresentations about how much
evidence police officers have obtained of the defendant’s guilt.
See, e.g., State v. Fullerton, 2018 UT 49, ¶ 40, 428 P.3d 1052;
Rettenberger, 1999 UT 80, ¶ 20; State v. Galli, 967 P.2d 930, 936 (Utah
1998); State v. Apodaca, 2018 UT App 131, ¶¶ 55–56, 428 P.3d 99,
aff’d, 2019 UT 54, 448 P.3d 1255; State v. Leiva-Perez, 2016 UT App
237, ¶¶ 22–23, 391 P.3d 287; State v. Maestas, 2012 UT App 53, ¶ 32,
272 P.3d 769. As explained by our supreme court in Rettenberger,
the constitutional concern in such cases is that “a suspect may well
determine that continued resistance is futile (because the police
have evidence that will convict him despite his innocence),” thus
causing the suspect to “conclude that, given the futility of
resistance, it is most prudent to cooperate and even confess falsely
in order to get leniency.” 1999 UT 80, ¶ 22 (quotation simplified).
In such a scenario, courts thus consider whether the state actor’s
misrepresentations were “sufficiently egregious to overcome a
defendant’s will so as to render” the resultant “confession
involuntary.” Id. ¶ 20. In Rettenberger, for example, our supreme
court concluded that the confession in question was coerced
where police had made 36 false statements to the defendant, many
of which involved “complete fabrications about testimonial and
physical evidence” of guilt. Id. ¶ 21.
¶35 The misrepresentations at issue here occurred during a
pretext call, not a police interrogation. And it’s true that a pretext
call will by definition involve at least some deception—after all,
it’s the misrepresentation about the call’s purpose that turns an
20200255-CA 15 2024 UT App 9State v. Florreich
ordinary call into a pretext call. 8 But still, it’s simply not the case
7F
that any misrepresentation by a state actor is enough to render a
confession involuntary as a categorical rule. As noted, the
question of involuntariness is ultimately assessed under the
totality of the circumstances. And while cases involving
“egregious” misrepresentations about the collected evidence can
sometimes render a confession involuntary, the reason for this is
the possibility that the suspect will be convinced that further
resistance is futile. Id. ¶¶ 20, 22 (quotation simplified). We see no
similar cause for concern stemming from the misrepresentation at
issue here.
¶36 The only misrepresentation that Florreich points to is
Alex’s misrepresentation about the purpose of his call—namely,
that he was calling to discuss the alleged sexual dysfunction in his
marriage. But while this misrepresentation may have caused
Florreich to feel more comfortable talking to Alex, we simply
don’t believe that it was the type of misrepresentation that would
have overcome Florreich’s will and coerced her into confessing
things to him. Unlike the false-evidence scenario described above
(where a suspect might worry about personal ramifications that
would result from non-cooperation), Florreich could have
declined to discuss any past sexual encounters or offer any advice.
¶37 The particular nature of this conversation supports this
conclusion. After all, the misrepresentation at issue was made
during a phone call with someone she considered to be a friend.
8. As explained in one article on the subject, “pretext calls” are
understood to be those where “police ask the alleged victim to
make a recorded call to a suspect, typically from the police station.
Police instruct the person about what kinds of admissions are
needed to secure conviction, as well as suggested strategies to try
and elicit them.” Deborah Davis et al., Interrogation by Proxy: The
Growing Role of Lay and Undercover Interrogators in Eliciting
Criminal Confessions, 59 Crim. L. Bull. 395, 399 (2023).
20200255-CA 16 2024 UT App 9State v. Florreich
This was a qualitatively different kind of conversation than, say,
a conversation between a police officer and a suspect during an
interrogation. Unlike the pressures involved in that scenario,
Florreich had no particular reason here to believe that she had no
choice but to talk to Alex about these things. If she didn’t want to
talk to him, she could have hung up. Due in part to such realities,
our supreme court recently noted in the Miranda context that the
“‘inherently compelling pressures’ of an interrogation are simply
not present during phone calls to friends and family.” State v.
Wood, 2023 UT 15, ¶ 47 n.7, 532 P.3d 997 (quotation simplified).
And in the pretext call context, a recent peer-reviewed study was
“unable to find” a single case where a court has held that a pretext
call overcame a suspect’s will. Deborah Davis et al., Interrogation
by Proxy: The Growing Role of Lay and Undercover Interrogators in
Eliciting Criminal Confessions, 59 Crim. L. Bull. 395, 417 (2023).
¶38 In her reply brief, Florreich points to a recent case from
Utah’s First District in which a pretext call was suppressed, and
we note that the decision in question is currently pending before
this court on appeal. See State v. Lewis, No. 191101288, (Utah 1st
Dist., June 29, 2021). The district court’s suppression decision in
Lewis is not binding in this appeal, however. And we also note
that the facts of that case (which were set forth in the order that
was provided to us by Florreich) are different and at least
arguably distinguishable. We have no need to definitively rule
here that pretext calls as a category are or are not coercive. But in
light of the question before us in this case, we do conclude that the
nature of this call at least somewhat undermines the suggestion
that Alex’s misrepresentation made the call coercive.
¶39 And finally, we note that Florreich’s own conduct during
the remainder of the call also suggests that she did not feel forced
by this misrepresentation to say things that she didn’t want to say.
For example, when Alex asked Florreich if she remembered his
mother walking in on them in the baby sister’s room, she
emphatically disagreed, saying, “No way.” While perhaps not
20200255-CA 17 2024 UT App 9State v. Florreich
dispositive on its own, this showed that Florreich retained the
wherewithal to push back if Alex made an assertion with which
she disagreed.
¶40 Pulling all this together, we don’t regard the kind of
misrepresentation at issue as having been particularly
problematic from a coercion standpoint, and the circumstances
surrounding the misrepresentation and Florreich’s response to it
corroborate that conclusion.
¶41 False Friend Technique. In a related vein, Florreich claims
that her admissions were involuntary because Alex had used the
“false friend” technique. We disagree.
¶42 The false friend technique is not implicated simply because
the questioner was friendly or even friends with the suspect.
Rather, this technique is understood to involve a situation where
“the interrogator represents that he is a friend acting in the suspect’s
best interest.” State v. Montero, 2008 UT App 285, ¶ 18, 191 P.3d 828(emphasis added). In a variety of cases, Utah’s appellate courts
have analyzed false friend claims along these lines—i.e., by
considering whether the questioner suggested that he or she was
acting in the suspect’s best interests by encouraging the suspect to
confess or cooperate. See, e.g., Apodaca, 2019 UT 54, ¶ 36 (one
detective that said he “understood” the suspect’s “hard life” but
“that other officers might not be so understanding,” while another
offered to protect the suspect from retribution if he named his
accomplice (quotation simplified)); State v. Arriaga-Luna, 2013 UT
56, ¶ 4, 311 P.3d 1028 (a detective spoke to the suspect in his native
language, made small talk before the interview, and told the
suspect that “he wanted to help him and his family”); Montero,
2008 UT App 285, ¶ 18 (the officer offered to “do whatever [he]
can to help” the suspect out); State v. Werner, 2003 UT App 268,
¶ 21, 76 P.3d 204 (the officer encouraged the suspect to “tell me
something that makes” the suspected criminal activity “not a first
degree” (quotation simplified)); Bunting, 2002 UT App 195, ¶ 26
20200255-CA 18 2024 UT App 9State v. Florreich
(detectives “suggested that they would act on” the suspect’s
“behalf in going to the district attorney”).
¶43 Here, Alex never suggested that Florreich needed to talk to
him about their past encounters to serve Florreich’s interests.
Instead, Alex told Florreich that the reason for this call was to
serve Alex’s interests. Again, he told Florreich that he was trying
to heal his sexual relationship with his wife and that he was trying
to figure out “how [he] should feel” about his past with Florreich.
And Florreich confirmed that this was her understanding of the
conversation too, telling him that she would “be happy to talk
with” him to help him “know . . . how [he] can deal with [his]
wife.” The Alex-centered nature of this exchange was further
underlined by a moment in which Alex said, “[I]nstead of paying
my therapist all that money, I should have just called you,” to
which Florreich responded, “Well, [Alex], you know I’m a
teacher.” Thus, we see no place in the record of this call where
Alex falsely suggested that he was trying to help Florreich as her
friend by encouraging her to talk about these things, which
distinguishes this call from those that have been analyzed under
the false friend rubric. 9
8F
9. In any event, even if this call could be construed as having
involved this technique, we have recognized that “standing alone,
the false-friend technique is not sufficiently coercive to produce
an involuntary confession, but may be significant in relation to
other tactics and factors.” State v. Apodaca, 2019 UT 54, ¶ 37, 448
P.3d 1255 (quotation simplified). In particular, the “false-friend
technique may be coercive if a defendant has below-average
cognitive abilities or other cognitive disabilities.” State v. Leiva-
Perez, 2016 UT App 237, ¶ 19, 391 P.3d 287 (quotation simplified).
For the reasons set forth shortly, we see no basis for concluding
that Florreich had any subjective factors that made her
particularly susceptible to manipulative or coercive conduct. As a
(continued…)
20200255-CA 19 2024 UT App 9State v. Florreich
¶44 Threats and Promises. Florreich next argues that Alex’s
attempts to keep her on the call while they were experiencing
connection issues “were akin to threats and promises.”
Specifically, she points to Alex’s suggestion that, if she hung up,
“he might not be able to speak again before she left town.” But
this isn’t akin to the type of “threat” or “promise” contemplated
by past coercion cases.
¶45 The standalone phrase “threats and promises” originated
as a section heading in Rettenberger, and it referred to a specific
kind of threat and promise: “a threat of greater punishment or a
promise for lesser punishment depending on whether a
defendant confessed.” 1999 UT 80, ¶ 29 (quotation simplified). By
contrast, we’ve suggested that “possibilities over which the police
clearly exercise no control” do not “amount[] to a threat or
promise of the kind pertinent to our inquiry.” State v. Prows, 2011
UT App 9, ¶ 10 n.4, 246 P.3d 1200. In Prows, for example, we held
that police officers’ suggestion that a man’s stepdaughter could
repeat “the cycle of abuse” if he did not confess did not constitute
coercion, since officers had no control over the stepdaughter’s life
outcomes. Id. And this makes sense. As explained by the Supreme
Court, the “Fifth Amendment privilege is not concerned with
moral and psychological pressures to confess emanating from
sources other than official coercion.” Connelly, 479 U.S. at 170(quotation simplified).
¶46 The potential wrinkle here is that this was a pretext call. On
the one hand, it’s true (as the State has conceded) that Alex was
functioning as a state actor. But on the other hand, Florreich didn’t
know that he was acting with any state involvement, so it’s
somewhat unclear to us whether this statement from this call even
result, even if we construed this call as having employed this
technique, we would still not regard the call as being coercive.
20200255-CA 20 2024 UT App 9State v. Florreich
could qualify as “official coercion” for purposes of this kind of
analysis.
¶47 But we need not decide whether this was so, because the
supposed “threat”—that Florreich might not have another chance
to talk to Alex again before she left—was something of a benign
statement of the sort that would commonly be made during
conversations between friends. In this sense, any pressure that it
created was “moral and psychological,” id. (quotation simplified),
not a threat of official coercion. Florreich points to no case (and
we’re aware of none) in which a statement like this was ever
deemed to have rendered a resultant statement involuntary. And
we see no basis for concluding that this was so here.
¶48 Close Relationship. Florreich argues that the close
relationship she had with Alex as his childhood nanny also made
her admissions to him involuntary. In support, Florreich points to
Arriaga-Luna, a case in which our supreme court held that “the
intense loyalty and emotion present in most parent-child
relationships” can provide “an opportunity for coercion” if it is
improperly used by police during an interrogation. 2013 UT 56,
¶ 14.
¶49 As with the threats and promises factor we just discussed,
we have some question about whether this factor translates
directly to the context of a pretext call. It’s one thing for officers to
make direct reference to a suspect’s children—depending on the
statement and context, such references might cause the suspect to
worry about the interplay between state power and the suspect’s
children. It may well be different, however, when a person who’s
perceived to be family or a friend makes reference to the suspect’s
children.
¶50 In any event, assuming for argument only that this factor
can apply in this context, we still see nothing coercive here. We
have no doubt that a nanny-child relationship can be close and
20200255-CA 21 2024 UT App 9State v. Florreich
even familial in some instances. But the same is obviously true
about a parent-child relationship, and yet Arriaga-Luna refused to
“adopt any per se rule regarding the effect of references to a
defendant’s children on the voluntariness of a confession.” Id.Thus, even though officers in that case had procured a suspect’s
confession, in part, through targeted appeals to the suspect’s love
for his children, the supreme court still engaged in a totality of the
circumstances assessment of the various factors and, of note,
ultimately concluded that the statements in question were
voluntary. See id. ¶¶ 15–22.
¶51 Having considered the matter here, we disagree with
Florreich’s suggestion that her relationship with Alex alone was
so close that her statements were involuntary. And in light of our
assessment of the various other factors at issue, we likewise see
no basis for concluding that her admissions to him were
involuntary.
¶52 Subjective Factors. Finally, Florreich points to several
characteristics that, in her estimation, made her more susceptible
to manipulation or coercion: that she was an older immigrant with
limited education, that she has an IQ “in the low-average range,”
that her work history consisted of “low-paying childcare jobs,”
and that she has no experience with the criminal justice system.
¶53 Florreich suggests that these characteristics rendered her
confession involuntary. But as an initial matter, it’s not clear that
Florreich was as subjectively compromised as she now suggests.
As the State points out, testing had shown that Florreich had an
IQ in the average range for adults, Florreich had attended two
years of post-secondary education, Florreich had worked for
several years as a teacher, and Florreich had lived in the United
States for almost four decades at the time of this call.
¶54 Moreover, in such cases, the critical question is whether the
defendant’s subjective characteristics affected her “ability to
20200255-CA 22 2024 UT App 9State v. Florreich
understand what [was] happening.” Leiva-Perez, 2016 UT App
237, ¶ 33 (quotation simplified). But “[a]bsent police conduct
causally related to the confession, there is simply no basis for
concluding that any state actor has deprived a criminal defendant
of due process of law.” Connelly, 479 U.S. at 170; see also
Rettenberger, 1999 UT 80, ¶ 18 (a “confession may be suppressed
in circumstances in which a police officer knows of a suspect’s
mental illness or deficiencies at the time of the interrogation and
effectively exploits those weaknesses to obtain a confession”).
¶55 In attempting to show that there was a “causal connection”
between her subjective characteristics and her admissions,
Florreich claims that she “was having difficulty understanding
Alex yet remained on the line at his insistence.” But in the call
itself, her complaints about her inability to understand Alex were
focused on the quality of the phone connection, and, with a single
exception, those complaints ceased before the discussion turned
to their past sexual encounters. And that single exception only
confirms this point. Midway through the call, and after the two
had already talked about the sexual encounters, the phone
connection dropped. Alex immediately called back, however, and
when Florreich answered, the conversation continued where it
had left off. So while the record of this call shows that Florreich
sometimes had difficulty understanding Alex on an auditory
level, that was temporary, not permanent, and we see nothing
suggesting that she was incapable of understanding the meaning
or substance of what they were talking about.
¶56 And this leads back to the ultimate question, which is
whether, under the totality of the circumstances, the conversation
was so coercive that Florreich’s will was overborne. On the record
and arguments that have been presented to us, we see no basis for
concluding that any combination of factors identified from the
pretext call rose to that level. As a result, we see no basis for
concluding that Counsel performed deficiently by not moving to
suppress those admissions.
20200255-CA 23 2024 UT App 9State v. Florreich
¶57 And because of this, we likewise reject Florreich’s claim
that Counsel performed deficiently by not moving to suppress her
statements from the police interrogation. As noted, Florreich’s
argument here is that these statements were the fruit of the
poisonous tree. But since we’ve rejected her attack on the pretext
call itself, this argument necessarily fails too. See Oregon v. Elstad,
470 U.S. 298, 305 (1985) (“Respondent’s contention that his
confession . . . must be excluded as ‘fruit of the poisonous tree’
assumes the existence of a [prior] constitutional violation.”); State
v. Lee, 633 P.2d 48, 52 (Utah 1981) (where the initial “search was
not unconstitutional, the subsequent seizure could not be ‘fruit of
the poisonous tree’”).
II. Defense Strategy
¶58 As noted, Counsel’s strategy at trial was to argue that Alex
initiated and even pressured Florreich into the sexual acts, and
Counsel secondarily argued that Detective’s investigation was
one-sided and slanted. Florreich now argues that this strategy was
objectively unreasonable and that Counsel provided ineffective
assistance by choosing it. In addition, Florreich has filed a motion
under rule 23B of the Utah Rules of Appellate Procedure
contemporaneous with her brief, wherein she requests a remand
for factual development of whether Counsel was ineffective for
not investigating and presenting a false confession defense
instead. We disagree with Florreich’s claim, and, for related
reasons, we likewise reject the request for a rule 23B remand.
¶59 “Judicial scrutiny of counsel’s performance must be highly
deferential.” Strickland, 466 U.S. at 689. When assessing an
ineffective assistance claim, “every effort [must] be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.” Id. Because
“of the difficulties inherent in making the evaluation, a court must
indulge a strong presumption that counsel’s conduct falls within
20200255-CA 24 2024 UT App 9State v. Florreich
the wide range of reasonable professional assistance.” Id. When
considering a choice-of-strategy claim like Florreich’s, the
relevant question “is not whether some strategy other than the
one that counsel employed looks superior given the actual results
of trial.” Barela, 2015 UT 22, ¶ 21. Rather, the question is “whether
a reasonable, competent lawyer could have chosen the strategy
that was employed in the real-time context of trial.” Id. In making
this assessment, an appellate court must recognize that the
“calculations of counsel in weighing the pros and cons of one
strategy over another are, in essence, a judgment about what is
most likely to work to the client’s benefit in a complex trial process
that requires that many choices be made.” State v. Rivera, 2022 UT
App 44, ¶ 38, 509 P.3d 257 (quotation simplified). “In such cases,
so long as counsel could have reasonably chosen the strategy in
question, and so long as the strategy is itself reasonable, the claim
must fail.” Id.¶60 Moreover, this review must take into account the facts and
information that were available to trial counsel when making
these strategic decisions. “After all, an attorney must play the
hand he or she is dealt, and an attorney’s decision about how to
deal with adverse facts is the sort of thing that courts should not
second-guess in the context of ineffective assistance claims.” State
v. Garcia, 2017 UT App 200, ¶ 23, 407 P.3d 1061.
¶61 The State’s case here largely relied on two things: (1) Alex’s
in-court testimony, wherein Alex detailed the alleged sexual
encounters, and (2) Florreich’s statements from the pretext call
and her interrogation, wherein Florreich had admitted to much of
the alleged conduct. Counsel could only deal with Alex’s in-court
testimony through cross-examination. The question at issue in
this claim centers on how Counsel chose to deal with Florreich’s
own admissions.
¶62 As framed by the parties on appeal, it appears that Counsel
essentially had two options: he could try to go through those
20200255-CA 25 2024 UT App 9State v. Florreich
admissions, or he could instead try to go around them. First, he
could try to go through those admissions by challenging them
directly, such as by trying to show that they were false
confessions. Or second, Counsel could accept the admissions at
face value but then try to get around them by arguing that even if
they established that the conduct occurred, Florreich should still
be acquitted.
¶63 Counsel chose the latter approach. And there was at least
some factual hook for doing so. After all, Alex had admitted that
he did initiate many of the sexual encounters. Also, Florreich was
a Tongan immigrant who was employed as a nanny by Alex’s
family, thus providing some basis for Counsel to argue that
Florreich had complied with Alex’s requests only because Alex
had power over her. Moreover, Florreich had told Detective
during the interrogation that she thought the oral sex incident
was “rape,” which further advanced a defense that was
partially based on her assertion that she had been compelled
to engage in the conduct. As explained above, Counsel thus
argued that Florreich’s only intent was “to survive,” as opposed
to having an intent to “cause [Alex] sexual arousal,” and that
there was accordingly reasonable doubt as to whether the State
had proven the mens rea elements of the specific intent crimes at
issue.
¶64 Florreich nevertheless argues on appeal that this strategy
was problematic. And we do agree that this was so. After all, one
of its underlying themes was that Alex was the sexual aggressor,
even though he was a young boy when the encounters started and
Florreich was an adult woman throughout. Moreover, under Utah
law, all the State had to show was that Florreich intended to
“arouse or gratify the sexual desire of any individual”—which
would have included Alex’s sexual desires. Utah Code § 76-5-
404(2)(a)(ii)(B) (emphasis added). For these reasons, Florreich has
persuaded us that there were indeed problems with the chosen
approach.
20200255-CA 26 2024 UT App 9State v. Florreich
¶65 But even so, Counsel still had to advance some defense.
So to prevail on this ineffective assistance claim, it’s not
enough for Florreich to just show that the approach Counsel
took was problematic. She also needs to show that Counsel
should have done something else instead. The alternative
approach that she advances on appeal, however, had clear
problems of its own. Again, Florreich argues that instead of
offering an explanation for the sexual conduct, Counsel should
have argued that she had falsely confessed to the allegations
during the pretext call—in effect, contending that the
alleged conduct never happened. But the problem with that
proposed defense is that the jury had heard Florreich
acknowledge, in recordings of two separate conversations, that
this conduct had in fact occurred. So to have worked, this
approach would have required Counsel to have argued that
Florreich was not credible.
¶66 As an initial matter, Counsel may have had some
understandable reluctance at advancing a defense that was based
on discrediting his own client in the eyes of the jury that was being
asked to judge her. This alone is reason why Counsel may have
been skeptical of this potential defense.
¶67 In addition, Florreich acknowledges on appeal that this
particular defense would have needed the support of expert
testimony. But taking this route would have opened the door to
contrary testimony from a State expert. And this matters. After all,
when evaluating an ineffective assistance claim, courts 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, 2019 UT 48, ¶ 76
(quotation simplified). So here, Counsel could reasonably have
been concerned that if he put on expert testimony suggesting that
these were false confessions, he’d be gambling that the jury would
not instead be more persuaded by any contrary testimony from
the anticipated experts from the State. As recognized by our
20200255-CA 27 2024 UT App 9State v. Florreich
supreme court in the similar context of eyewitness identification
experts, if proposed expert testimony from the defense backfires
(i.e., if the jury finds the State’s experts more credible), this might
embolden the jury “to give more weight” to the very evidence that
the defense was trying to undermine by presenting the expert
testimony in question. State v. Perea, 2013 UT 68, ¶ 73, 322 P.3d 624(emphasis added).
¶68 Indeed, this potential danger is actually illustrated by
Florreich’s request for a rule 23B remand in this case.
¶69 As an initial matter, we deny Florreich’s request for a
remand on the question of whether Counsel inadequately
investigated this potential defense. Under Strickland, “counsel has
a duty to make reasonable investigations or to make a
reasonable decision that makes particular investigations
unnecessary.” 466 U.S. at 690–91. And in support of her rule 23B
motion, Florreich has submitted an affidavit from Counsel in
which he avers that a false confession strategy was his first choice
and that he spoke to two false confession experts while
investigating the possibility of using it, both of whom reportedly
advised Counsel that, on these facts, they could not be of
assistance.
¶70 In opposing this motion, the State suggests that the number
of experts that Counsel consulted might actually have been
higher. On this, the State points to statements from the record that,
though a touch unclear, seem to indicate that Counsel spoke to
four experts. Florreich pushes back on the State’s reading of the
record, claiming that it doesn’t show that Counsel spoke to four
experts. And with respect to Counsel’s affidavit in support of the
rule 23B remand, Florreich points out that the second expert
identified by Counsel had no recollection of the events when
appellate counsel contacted him; from this, Florreich asks us to
assume that Counsel might not have actually spoken to this expert
either.
20200255-CA 28 2024 UT App 9State v. Florreich
¶71 On the lack of investigation claim, we need not decide
whether the actual number of experts Counsel consulted was one,
two, or four. On the investigation front, Strickland requires a
reasonable investigation, not a limitless one. Florreich points to no
authority establishing that an attorney who found and then
consulted with one or more experts in support of a possible
strategy had an obligation under the Sixth Amendment to do
more. We’re accordingly not persuaded that Counsel was
required to do more here than he did.
¶72 This leaves Florreich’s next (and primary) argument,
which is that Counsel should have presented a false confession
theory at trial. And in support of this aspect of her rule 23B
motion, Florreich attaches affidavits from two experts who claim
that they would have testified that her admissions carried the
hallmarks of a false confession.
¶73 But the one expert who both parties agree Counsel did
consult at the time was Dr. Daniel Reisberg, and Dr. Reisberg
expressed the opposite view. In an affidavit from Counsel that
Florreich filed in conjunction with her rule 23B motion, Counsel
says that Dr. Reisberg told him that “the interview(s) did not have
the type of hallmarks [he] would look for in order to testify as an
expert that the confession was false.” According to Counsel, Dr.
Reisberg affirmatively “advised” him “to find an alternate
defense.” In light of this, Counsel says that he concluded that
calling an expert to support a false confession defense would
“probably be more damaging than helpful” to Florreich because,
on cross-examination, the expert would have to acknowledge that
her confession might not have borne the hallmarks of a false
confession.
¶74 Florreich now assails Counsel’s decision. In Florreich’s
view, the sole role of an expert at trial would have been to testify
about the general hallmarks of a false confession. From this, she
surmises that there was no risk of a damaging cross-examination
20200255-CA 29 2024 UT App 9State v. Florreich
because the rules of evidence bar expert witnesses from
“testifying that a particular witness is or is not testifying
truthfully.” But the rule she relies on, rule 608(a), “does not
prohibit an expert . . . from giving testimony from which a jury
could infer the veracity of the witness. Rather, it only bars direct
testimony regarding the truthfulness of a witness on a particular
occasion.” State v. Adams, 2000 UT 42, ¶ 14, 5 P.3d 642 (quotation
simplified). So here, it’s true that an expert couldn’t have testified
that Florreich was (or wasn’t) actually giving a false confession
during the pretext call. But if an expert could have testified that
Florreich’s testimony had some of the hallmarks of false
confession (which is what Florreich argues is the useful testimony
that Counsel should have presented), then that same expert could
have also testified that Florreich’s confession instead lacked the
hallmarks of a false confession.
¶75 And this was the problem. Suppose that Counsel had
kept investigating, and suppose that Counsel had found an
expert who was willing to testify that Florreich’s confession
carried the hallmarks of a false confession. At this point,
Counsel would have known from his own investigation that the
State could and very likely would then produce an expert to say
that these confessions didn’t carry the hallmarks of a false
confession. Because of this, the result of this proposed approach
wouldn’t have only been the addition of unchallenged expert
testimony suggesting that Florreich had falsely confessed; rather,
the likely result would have additionally included expert
testimony suggesting that Florreich’s confession was not false,
thus resulting in a battle of dueling experts; and if the jury found
the State’s experts to be more credible, this jury would now have
even more reason to focus on and then credit Florreich’s
seemingly damning admissions. And this is precisely what Dr.
Reisberg had warned about—that presenting this defense would
“probably be more damaging than helpful” to Florreich in the
end.
20200255-CA 30 2024 UT App 9State v. Florreich
¶76 Against this backdrop, we can still envision some (or
maybe even many) attorneys who would have preferred this
approach to the one that was actually presented by Counsel at
Florreich’s trial. But again, Counsel had been advised by an expert
in this field that a potential defense based on a false confession
theory was problematic and that he needed “to find an alternate
defense.” And “courts have long held that it is reasonable for
counsel to rely on the judgment and recommendations of
qualified experts with expertise beyond counsel’s knowledge.”
Archuleta, 2011 UT 73, ¶ 129. We remain cognizant of Strickland’s
caution that there “are countless ways to provide effective
assistance in any given case” and that “even the best criminal
defense attorneys would not defend a particular client in the same
way.” 466 U.S. at 689 (quotation simplified). Even if we might
have chosen the approach proposed by Florreich on appeal, the
question before us is whether the approach that was chosen by
Counsel was so objectively unreasonable that it violated the Sixth
Amendment. On this record, we don’t believe that it was.
¶77 As a final and related matter, Florreich also argues in her
23B motion that Counsel should have called two additional fact
witnesses. The first witness had employed Florreich as a nanny
for several years. In an affidavit, this witness says that Florreich
had a tendency to say yes or no even when she did not understand
something, as well as a tendency to be agreeable as a means of
avoiding potential confrontation. This witness also remembered
Florreich telling her that Alex had several behavioral problems
(including some involving aggression) and that Florreich was not
permitted to discipline Alex or his siblings. The second witness
was someone from another family whom Florreich had nannied
during the same period that she was nannying the children in
Alex’s family. (In her affidavit, she explained that Florreich
nannied Alex and his siblings during the day and that Florreich
would nanny this witness and her siblings at night.) This witness
said that Florreich “did not handle confrontation well,” and she
20200255-CA 31 2024 UT App 9State v. Florreich
also recalled Florreich telling her that Alex and his siblings
“would bully her, make fun of her, and play games on her.”
¶78 To the extent that these witnesses would have supported a
false confession defense, we see no need for a remand. Again, the
crux of the proposed defense would have been expert testimony,
but it was within Counsel’s prerogative to prefer an approach that
tried to explain the admissions away, rather than provoking a
battle of dueling experts in the hopes that the jury would conclude
that Florreich hadn’t been telling the truth in either the pretext call
or the interrogation.
¶79 Florreich also suggests that these witnesses might have
supported the defense that Counsel actually ran—which, again,
was that Florreich had only performed the sexual acts because she
was generally agreeable or even felt threatened, and that she
never had the specific intent to gratify Alex’s sexual desires. But
much of this proposed testimony would have been hearsay, and
Florreich has not carried her burden of persuading us that any
hearsay exception applied. And while some of this testimony was
not hearsay (such as testimony about the witnesses’ firsthand
observations of Florreich’s tendency to act agreeably), this
testimony would have been cumulative of testimony of the
witness Counsel did call. In any event, given the strength of Alex’s
testimony and the specificity of Florreich’s admissions during the
pretext call and then the interrogation, we don’t believe that
adding these additional facts would have persuaded the jury that
Florreich had not performed the sexual acts in question. We thus
deny this aspect of the rule 23B motion.
¶80 In short, this seems to have been a case in which Counsel
had no good strategic options. The one he chose had obvious
problems. But the one that Florreich now proposes on appeal had
obvious problems too. While one could certainly disagree about
which set of problems was worse, we ultimately conclude that
Counsel could reasonably take the advice of the consulted expert
20200255-CA 32 2024 UT App 9State v. Florreich
and reasonably decide against presenting a false confession
defense. From there, we see no basis for concluding that Counsel
acted in an objectively unreasonable manner with the strategy
that he did advance at trial. We accordingly reject this ineffective
assistance claim and deny the associated motion for a rule 23B
remand. 10
9F
III. Remaining Ineffective Assistance Claims
¶81 Florreich raises ten other ineffective assistance claims.
Specifically, Florreich claims that Counsel was ineffective for:
• telling jurors in the opening statement that “no one was
going to lie” to them;
• not objecting when Detective repeatedly called Florreich a
liar;
• not objecting when Detective bolstered Alex’s testimony;
10. In the memo supporting her rule 23B motion, Florreich also
argued that the rule 23B scheme is unconstitutional because it
does not grant defendants discovery powers. But before Florreich
filed her rule 23B motion and appellate brief, Florreich’s appellate
counsel raised concerns relating to Counsel’s lack of cooperation
in providing his files. In response, we issued an order suggesting
that we might compel Counsel to cooperate if Counsel did not
provide the requested information forthwith. Florreich did not
subsequently ask for further assistance, nor has she indicated that
she did not receive the requested information. As a result, she has
not shown that she “has been or will be injured” in this case by
any alleged infirmity with respect to this aspect of the rule 23B
scheme, so we reject this argument and need not address it. See
State v. Roberts, 2015 UT 24, ¶¶ 46–47, 345 P.3d 1226.
20200255-CA 33 2024 UT App 9State v. Florreich
• not objecting when Detective claimed at trial that Counsel
was misleading the jury;
• not objecting to various references to Alex as a “victim”;
• abandoning the initial objection to testimony about the
sexual encounter between Alex and Florreich that occurred
after Alex turned 18;
• making a comparison that used Hitler as a reference point;
• eliciting testimony about Florreich’s religious beliefs and
activity;
• failing to object to unsubstantiated evidence that Florreich
had extramarital sex with someone else; and
• eliciting damaging testimony from the defense’s only
witness. 11
10F
¶82 As noted, an appellate court can reject an ineffective
assistance claim for a lack of either deficient performance or
prejudice. If an appellate court’s decision rests on the lack of
prejudice, the court must take into account “the totality of the
evidence before the judge or jury.” Strickland, 466 U.S. at 695. This
means that “it is necessary to consider all the relevant evidence
that the jury would have had before it if [trial counsel] had
pursued the different path.” Wong v. Belmontes, 558 U.S. 15, 20
(2009) (per curiam) (emphasis in original).
¶83 Given the large number of claims that remain, it’s
appropriate to first address a few of the claims for which we think
11. We recognize that we did not provide full accounts of the
circumstances surrounding each of these claims in the
Background. To the extent necessary for resolution of this appeal,
we do so as necessary below.
20200255-CA 34 2024 UT App 9State v. Florreich
it fairly clear that there was no deficient performance. From there,
we then conclude that Florreich was not prejudiced by any
deficient performance with respect to the remaining claims (either
individually or even cumulatively), and with respect to these
claims, we do so without deciding whether there was in fact
deficient performance.
A. Claims for Which There Was No Deficient Performance
¶84 Telling jurors that “no one was going to lie” to them. In
his opening statement, Counsel told the jury, “Both sides are
going to try to make sense of the other side’s story, and we’re
going to try to present to you the facts in a light that shows you
what our point of view in the case is. And nobody is going to lie
to you on this case.” On appeal, Florreich argues that Counsel
performed deficiently by making this statement because the jury
would likely have interpreted this statement as Counsel somehow
vouching for Alex’s credibility as a witness.
¶85 Even in isolation, however, the word “nobody” in this
claim is best understood as a reference to the attorneys, not the
witnesses. In this sense, the assertion seems to have been that
the attorneys were all proceeding in good faith, which could
have served the goal of trying to curry favor with the jury
by appearing reasonable. While Counsel certainly could
have been clearer about this, the statement still must be read in
its broader context. And in light of that context, there was no real
risk that the jury would have thought that Counsel was saying
that Alex was always telling the whole truth. After all, the point
of the pretext call was that Alex had lied to Florreich about the
call’s purpose, a point that Counsel emphasized to the jury. And
while it’s true that Counsel’s strategy acknowledged that many of
the alleged sexual encounters had occurred, it’s also true that
Counsel repeatedly suggested that Alex was the initiator and that,
contrary to Alex’s claims, Florreich had effectively been coerced.
Indeed, Counsel ended his opening statement with the line,
20200255-CA 35 2024 UT App 9State v. Florreich
“Remember that the best . . . lies that are ever told are mostly
true.”
¶86 The Sixth Amendment is not violated by the occasional
poor word choice, particularly where counsel’s intended meaning
would have been plain enough to those in the room. In this
instance, we see no realistic chance that the jury would have
interpreted this isolated statement in the manner that Florreich is
now suggesting. We see no basis for concluding that it was
deficient performance.
¶87 Not objecting when Detective called Florreich a liar.
During portions of the interrogation, Detective repeatedly told
Florreich that he thought she was lying. During cross-
examination at trial, Counsel elicited admissions from Detective
that he had repeatedly raised his voice with Florreich and that he
had called her a liar “a lot.” Florreich now argues that it was
objectively unreasonable for Counsel to ask questions that
effectively elicited unfavorable testimony about Florreich’s
truthfulness, particularly given that it may have violated rule 608
of the Utah Rules of Evidence.
¶88 Reviewing the record more closely, however, we
disagree with Florreich’s assertion that Counsel did elicit
testimony about her truthfulness. As pointed out by the State
in its brief, Counsel never “asked [Detective] whether
Florreich actually lied or whether he believed Florreich lied.”
Instead, Counsel’s questions focused on Detective’s behavior
during the interrogation, asking how many times he had called her
a liar. And the reason for doing so was clear. As explained, part
of the defense strategy was to argue that Detective had prejudged
the case and that his investigation was tainted. As part of this, for
example, Counsel repeatedly argued that Detective had
improperly decided not to investigate Florreich’s own claim that
Alex had “raped” her.
20200255-CA 36 2024 UT App 9State v. Florreich
¶89 This is reason enough to reject this claim of deficient
performance. In addition, we also note that audio of the
interrogation had already been played for the jury; and, as
discussed, Florreich has not persuaded us that it could have been
excluded. As a result, even before this cross-examination, the jury
had already heard Detective’s statements from the interrogation
in which he said that he thought Florreich was lying to him. Since
Counsel could not have excluded those references, the apparent
goal during cross-examination was to try and blunt their effect.
Because the questions at issue seemed directed at serving that
goal, we see no deficient performance.
¶90 Failing to object to unsubstantiated evidence of
extramarital sex. At trial, the jury heard a brief snippet of the
interrogation in which Detective referred to a moment from the
pretext call in which Florreich had told Alex about a time she had
sex with a man in a park. When Prosecutor stopped the recording,
approached the bench, and asked for permission to skip over that
story, Counsel protested. Counsel initially argued that they
“should listen to the whole thing,” after which Counsel obtained
the court’s agreement that he could play the rest of the story later
under the rule of completeness. Counsel did not later play the rest
of that story for the jury.
¶91 On appeal, Florreich first argues that the portion of the
interview that was played for the jury was improper. We agree.
But this leaves the question of what Counsel should have done
about it. Florreich now argues that Counsel was ineffective for
not requesting a curative instruction to combat its effects. While
we agree that Counsel could have requested such an instruction,
we don’t believe that Counsel was constitutionally required to do
so.
Utah courts have long recognized that defense
counsel’s decision not to request an available
curative instruction may be construed as sound trial
20200255-CA 37 2024 UT App 9State v. Florreich
strategy. Indeed, a curative instruction may actually
serve to draw the jury’s attention toward the subject
matter of the instruction and further emphasize the
issue the instruction is attempting to cure. Counsel
could have reasonably determined that [they]
would be ill-advised to call undue attention to the
testimony, particularly when it was unanticipated
and brief.
State v. Arnold, 2023 UT App 68, ¶ 79, 532 P.3d 1267 (quotation
simplified), cert. denied, 532 P.3d 1267 (Utah 2023).
¶92 The exchange at issue here fits comfortably within these
parameters. After all, the jury heard only a brief portion of this
inadmissible story, and that story was cut off before it was
developed at any length. Indeed, from what the record tells us, it’s
possible that some jurors might not have even registered what
had occurred. 12 If Counsel had requested a curative instruction,
11F
this instruction could have caused jurors to now focus on this
story. Under these circumstances, Counsel could reasonably have
decided that the best course of action was to let the moment slide,
rather than calling any more attention to it through the issuance
of a curative instruction. There accordingly was no deficient
performance on this point.
¶93 Abandoning an objection to evidence of the adult sexual
encounter between Alex and Florreich. Before trial, Counsel
moved to exclude any evidence of sexual contact that had
occurred between Alex and Florreich after Alex had turned 18.
The apparent basis for this motion was that such activity would
have been consensual activity between adults and thus irrelevant
to charges based on Alex’s status as a minor. The State did not
respond, but Counsel withdrew the objection before the court
12. The portion of the trial transcript that recounts the portion of
the story that the jury heard spans just three lines of text.
20200255-CA 38 2024 UT App 9State v. Florreich
ruled on it. Counsel offered no explanation for withdrawing this
objection. At trial, Alex then testified that Florreich had
performed oral sex on him after he turned 18.
¶94 On appeal, Florreich now claims that Counsel should have
objected to this testimony (or, perhaps more accurately, that
Counsel should have renewed the earlier objection). But we
disagree, because Counsel had a reasonable strategic basis for not
doing so. After Alex testified about this encounter, Counsel used
this to again assail Detective’s decision not to investigate
Florreich’s claim that Alex had “raped” her in this encounter. Not
only did this implicate the investigation, but it also reinforced
Florreich’s claim that Alex had been the aggressor. Indeed,
Counsel used this encounter to argue that Alex’s years-long
pattern of initiating sexual contact with Florreich had continued
into his adulthood. Given this, even if Counsel could have
objected, we conclude that Counsel had a reasonable basis for not
doing so. There accordingly was no deficient performance. Cf.
State v. Bedell, 2014 UT 1, ¶ 25, 322 P.3d 697 (holding that counsel
could make a “legitimate strategic decision” to use evidence that
might have properly been objected to under rule 404(b) of the
Utah Rules of Evidence).
¶95 Eliciting potentially damaging testimony from the
defense’s only witness. In the defense’s case, Counsel asked
Employer about a jewelry theft involving a cleaning lady that she
had hired on Florreich’s recommendation. Before Counsel could
get far into the story, Prosecutor objected based on relevance. The
objection was sustained. On appeal, Florreich argues that Counsel
should not have asked about the theft in the first place. In
addition, Florreich maintains that Counsel was obligated to either
request a limiting instruction or instead ask additional questions
to “clarify Florreich’s role.”
¶96 With respect to the questioning itself, it’s clear enough that
Counsel was attempting to elicit testimony that he thought would
20200255-CA 39 2024 UT App 9State v. Florreich
reflect favorably on Florreich. (Though, due to Prosecutor’s
preemptive objection, the story was cut off before this purpose
was fully explained.) Counsel did not know in advance that
Prosecutor would object or that the objection would be sustained,
and Florreich has not persuaded us that there was any deficient
performance in the attempt.
¶97 With respect to its aftermath, Counsel did what Florreich
now argues he was required to do. After the court sustained the
objection, meaning that Counsel could no longer ask questions
about the jewelry incident, Counsel asked Employer about her
opinion of Florreich’s reputation for honesty or trustworthiness.
She responded, in relevant part, “I think she is very honest. I think
she’s very trustworthy.” So far as we can surmise, eliciting such
an opinion was the apparent point of the attempted jewelry story,
as well as of the curative actions that Florreich proposes on
appeal. Given this, Florreich has not persuaded us that Counsel
performed deficiently.
B. Remaining Claims and Prejudice
¶98 This leaves five remaining claims. In brief, these claims are
that Counsel was ineffective for:
• not objecting to alleged instances of bolstering by
Detective;
• not objecting when Detective said he thought Counsel was
misleading the jury;
• not objecting to references to Alex as a “victim”;
• eliciting testimony about Florreich’s religiosity (or lack
thereof); and
• making a comparison that involved Hitler.
20200255-CA 40 2024 UT App 9State v. Florreich
We need not decide whether Counsel performed deficiently in
any of these respects. This is so because we conclude that Florreich
was not prejudiced by any of them, either individually or
collectively. 13
12F
¶99 Again, for purposes of this prejudice analysis, the question
is whether there is a reasonable probability that “the result of the
proceeding would have been different” but for the deficient
performance. Strickland, 466 U.S. at 694. In support of her
prejudice arguments, Florreich asserts that, in a pure credibility
contest between a victim and a defendant, even a small change to
the evidentiary picture could conceivably alter the trial’s
outcome. See, e.g., State v. Stefaniak, 900 P.2d 1094, 1096 (Utah Ct.
App. 1995). But this wasn’t a pure he-said/she-said case. As
discussed above, Florreich has not persuaded us that there was
any basis for excluding either the pretext call or the interrogation,
which means that the admissions Florreich made in those
conversations were going to come in. These included Florreich’s
admissions that she had massaged Alex’s penis with her feet, that
she was impressed with the size of his penis, and that his wife
would be “very lucky.” And these also included the colorful
flourishes that Florreich added, such as her statement that she had
13. Although we need not assess whether there was also deficient
performance in any of these instances, we do think it important to
note our discomfort with Counsel’s decision to make an analogy
involving Hitler. A decision to use Hitler as a reference point is
one that is fraught with peril and should be avoided in most any
case. And there was particular reason to avoid it here, where the
trial involved an alleged crime victim who was the son of a rabbi
and whose religion had been discussed by several witnesses.
There were any number of better comparators, and even
accounting for the seemingly off-the-cuff nature of this comment,
we’re hard pressed to imagine how Counsel could have thought
this was a good idea. But even so, for the reasons expressed below,
we conclude that Florreich was not prejudiced.
20200255-CA 41 2024 UT App 9State v. Florreich
“sweet memories” of her encounters with Alex and that “with
those memories, I am able to be with [my husband] to this day.”
¶100 The inculpatory nature of these admissions is the reason
why Florreich has argued on appeal that Counsel should have
advanced a false confession defense. As we’ve discussed,
however, there were problems with that approach, so Counsel
could reasonably decide to try explaining the admissions away,
rather than trying to show that Florreich wasn’t telling the truth
when she made them. In addition, we’ve also concluded above
that there was no real basis for excluding these statements, so
under either approach, the jury would have still heard them.
Under Florreich’s proposed approach, the jury would simply
have additional expert testimony, some of which would very
likely have suggested that these admissions did not have the
hallmarks of false confessions.
¶101 Moreover, the State’s case did not rest solely on Florreich’s
admissions. Alex also testified under oath at trial. In a case like
this one, it seems reasonable to surmise that the jury would have
placed much weight on such testimony. Alex was an adult by the
time of trial, and he testified at length about his sexual encounters
with Florreich, beginning with their first encounter through the
end. Alex described his deep and religiously inflected guilt and
shame. And he freely admitted that he had often initiated the
encounters and that Florreich had sometimes turned him down.
While Counsel managed to highlight a couple of discrepancies
during his cross-examination of Alex, none of them were
particularly serious. 14 Thus, his testimony as a whole largely
13F
supported the charges.
14. In one instance we’ve recounted above as an illustrative
example, Alex told Detective that his mother “walked into the
room” during one encounter before being turned away, whereas
(continued…)
20200255-CA 42 2024 UT App 9State v. Florreich
¶102 Given the combined effect of Alex’s sworn testimony and
Florreich’s recorded and admissible admissions, we see no
reasonable probability that, if the trial did not involve any of the
five instances of alleged deficient performance, Florreich would
have received a more favorable outcome. We thus reject these
remaining claims for lack of prejudice.
CONCLUSION
¶103 Florreich has raised multiple ineffective assistance claims.
We have reviewed Florreich’s arguments and the record. We
ultimately see this as a difficult case that presented Counsel with
difficult strategic choices. But we see no basis for reversing her
convictions due to any of the challenged decisions, nor do we see
any basis for granting her rule 23B motion. Her convictions are
therefore affirmed.
Alex had said in the pretext call that the “door began to open”
before she was turned away. But in neither instance did Alex
affirmatively say that his mother had caught him and Florreich in
an actual sexual act.
20200255-CA 43 2024 UT App 9