State v. Samora

2022 UT App 7THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
EDDIE ANGELO SAMORA,
Appellant.
Opinion
No. 20190662-CA
Filed January 21, 2022
Second District Court, Farmington Department
The Honorable John R. Morris
No. 171701971
Scott L. Wiggins, Attorney for Appellant
Sean D. Reyes and Jeffrey S. Gray,
Attorneys for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN M. HARRIS concurred.
ORME, Judge:
¶1 Eddie Angelo Samora challenges his convictions for
attempted murder and possession of a firearm by a restricted
person. Samora contends that errors made by the district court
and his trial counsel warrant reversal of his convictions and a
new trial. We disagree and affirm.
State v. Samora
BACKGROUND 1
¶2 On October 26, 2017, as the victim (Victim) played with
his three young sons outside the first-floor apartment where the
boys lived with their mother (Wife), Samora shot Victim
multiple times with a .22 revolver in front of Wife and their sons.
Victim was severely injured and would have died absent the
immediate medical attention he fortunately received. Security
cameras at the apartment building captured a portion of the
shooting.
¶3 A witness (Witness 1), who knew Samora, was outside in
the parking lot working on his car when he heard gunshots. He
looked up to see Victim lying on the ground and Samora shoot
Victim. Witness 1 then left the area because he did not want to be
called as a witness. He did, however, have a phone conversation
with police that day, during which he denied seeing who shot
Victim. A few days later, this time speaking to police in person,
Witness 1 confirmed that Samora was the shooter.
¶4 Another witness (Witness 2) heard “some screaming and
yelling” as he stood outside his apartment approximately 80 to
100 yards away. As he turned to look in the direction of the
noise, he saw Victim fall to the ground and then saw a “stocky”
Hispanic male come into view and shoot Victim.
¶5 The day after the shooting, the State charged Samora with
attempted murder and unlawful possession or use of a firearm
by a restricted person. The State alleged that Samora was a
restricted person because he previously served time in federal
prison for armed carjacking and for brandishing a firearm
during a crime of violence. After shooting Victim, Samora fled to
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
20190662-CA 2 2022 UT App 7State v. Samora
Nevada and evaded arrest, but he was apprehended
approximately six weeks later and extradited to Utah.
¶6 Samora, temporarily represented by a public defender,
made his initial appearance on December 15, 2017, and informed
the court that he was unsure whether he could afford to retain
private counsel. The public defender requested that a hearing be
held the next week to give Samora time to obtain private
counsel. The court granted the request and scheduled a hearing
for December 22. For unknown reasons, that hearing was then
rescheduled to January 8, 2018. At the January 8 hearing, Samora
appeared and, through the same public defender, informed the
court that he would not be able to retain private counsel. The
court then appointed a different public defender (Trial Counsel)
to represent Samora. At Samora’s request, another hearing was
scheduled for January 24. At that hearing, Trial Counsel
requested a continuance of “about six weeks.” The court granted
the request and scheduled the hearing for March 9. For
unknown reasons, the March 9 hearing was rescheduled for
April 11.
¶7 At the April 11 hearing, Samora conditionally waived his
right to a preliminary hearing, and the district court bound the
case over for trial. The court then scheduled the next hearing, at
Trial Counsel’s request, for April 30. At the end of this next
hearing, Trial Counsel requested that the matter be set “out a
month,” and the court offered options of four and five weeks
away. Trial Counsel chose the latter date, June 4. At the June 4
hearing, Trial Counsel requested that the case be set for a
preliminary hearing after all and offered three dates on which he
was available. The prosecutor was available only on the latest
proposed date, July 20, and Trial Counsel represented that
Samora was “okay with that.”
¶8 At the July 20 preliminary hearing, the State called as
witnesses, among others, Wife and Witness 1. Wife, however,
refused to testify because she did not want “to put [herself] or
[her] children in any more danger than what they’ve already
20190662-CA 3 2022 UT App 7State v. Samora
been in.” The court held her in contempt and jailed her until she
agreed to testify. Due to Wife’s reluctance to testify, the State
requested a continuance, and the court continued the
preliminary hearing without scheduling a specific date for
resumption of the hearing. At this point, Trial Counsel asserted
that Samora is “asking to have his right to a quick and speedy
trial and invoke that process today.”
¶9 The preliminary hearing was subsequently rescheduled
for September 10. At the beginning of that hearing, Trial Counsel
requested a six-week continuance to give Samora an opportunity
to obtain private counsel. The court denied that request and
proceeded to bind Samora over for trial without taking
additional evidence because it determined Wife’s testimony was
not needed for the bindover. Trial Counsel then asked for the
arraignment to be scheduled in six weeks, and the court offered
either October 22—six weeks out—or October 29—seven weeks
out—and both Trial Counsel and Samora responded that they
preferred the October 29 option.
¶10 At his October 29 arraignment, Samora pled not guilty
and Trial Counsel asked that the matter be set for further review
in “six to eight weeks.” Samora then personally confirmed that
this was what he wanted. The court inquired whether Samora
wanted it scheduled on, before, or after December 31. Trial
Counsel represented that Samora was content with the matter
being scheduled in January, and the court scheduled it for
January 7, 2019.
¶11 At the January 7 review hearing, Trial Counsel requested
yet another six-week continuance because Samora was in the
process of retaining private counsel and was currently “working
out a payment plan.” Citing the age of the case, the court denied
the request, but granted Samora three weeks to get things in
order and scheduled a pretrial conference for January 28. At the
pretrial conference, Trial Counsel again appeared, Samora
having apparently been unsuccessful in his effort to retain
private counsel. Trial Counsel requested a four-day jury trial.
20190662-CA 4 2022 UT App 7State v. Samora
The court was unable to schedule four consecutive days for a
trial, but Trial Counsel agreed to conduct jury selection a week
before putting on evidence. Trial Counsel then agreed to have
jury selection on April 25 and the rest of the trial on May 1
through May 3.
¶12 At the beginning of jury selection, the district court
mentioned that the State had charged Samora with the “crimes
of attempted murder and purchase, transfer, possession or use of
a firearm by a restricted person.” The court so advised the jury
pool even though the latter charge was to be tried separately and
only after the jury reached a verdict on the primary charge.
Later, the court repeated to the jury pool that “Samora is alleged
to have committed . . . attempted homicide and possession of a
firearm by a restricted person.” One of the prospective jurors
asked for “clarification” about the charges, “attempted murder
and illegal—,” at which point the court interjected and stated
that the second charge was “basically, possession of a firearm or
transport of a firearm as a restricted person” and provided no
further explanation. These were the only references made to the
restricted-person charge during jury selection, and the court did
not disclose that Samora had prior felony convictions.
¶13 At trial, Victim testified about the shooting, as did
Witness 1 and Witness 2. 2 Witness 1 testified that he saw Samora
shoot Victim multiple times. Victim testified that he was shot
just outside Wife’s apartment while reaching down to pick up
one of his sons. He stated he did “[n]ot specifically” see Samora
with a gun but that he could see Samora “in front of [him]
moving around” as he was being shot. He also testified that
Samora and Wife were arguing right before the shooting, and he
just heard “pops” and felt pressure in his torso, hip, and chest
before losing consciousness. Witness 2 testified that while he
2. The prosecution struck a deal with Victim that if he testified
about the shooting, Wife would not be called to testify or
charged with obstruction of justice.
20190662-CA 5 2022 UT App 7State v. Samora
was too far away to identify who shot Victim, he could tell the
shooter was a “Hispanic [male of] stocky build.” 3 The jury was
also shown footage from the surveillance cameras that
corroborated all the testimony. That footage showed Victim
playing with his sons at the apartment complex and Samora
arriving in an SUV and walking toward Wife’s apartment. The
video then showed Victim return to the apartment. The first shot
was not captured on the surveillance video, but Victim is seen
falling into view of the camera and then Samora is seen firing
two more shots at Victim while Wife attempts to stop him.
¶14 As part of his defense, Samora called a detective from the
county sheriff’s office to testify about the recoil of the weapon
used to shoot Victim, as seen on the surveillance footage. 4 The
detective testified that the height of the suspected shooter’s arm
after shooting the gun was not consistent with “the recoil that
would come with the weapon shooting [a .22] caliber” round,
and he would have expected it to be a larger caliber. On
cross-examination, the detective conceded that he had not
examined the actual revolver used in the case and as such could
not “testify with certainty regarding the recoil of that particular
weapon.” Samora did not testify in his own defense. The jury
convicted Samora of attempted murder. Following that
conviction, the restricted person charge was tried before the
same jury, which also convicted him on that charge. Samora
appeals.
3. Witness 2’s description of the shooter was consistent with
Samora’s appearance.
4. Samora also called his mother to testify, but her testimony was
limited to simply stating that she was Samora’s mother and that
he was her only son. Trial Counsel asked her no other questions.
20190662-CA 6 2022 UT App 7State v. Samora
ISSUES AND STANDARDS OF REVIEW
¶15 Samora raises four issues on appeal. First, he asserts that
the district court erred in not ruling, sua sponte, that he had been
deprived of his constitutional right to a speedy trial. Second, he
asserts that Trial Counsel was ineffective for not requesting a
dismissal on the ground that his right to a speedy trial was
violated. Third, he contends that the court erred in telling the
prospective jurors that he was charged with unlawfully
possessing or using a firearm as a restricted person. Finally,
Samora argues that Trial Counsel was ineffective for not
objecting to the court’s references to the restricted-person charge
during jury selection.
¶16 Samora concedes that he did not preserve these issues but
nonetheless asks us to review them under the plain error and
ineffective assistance of counsel exceptions to the preservation
requirement. See generally State v. Johnson, 2017 UT 76, ¶ 19, 416
P.3d 443. Claims for plain error and ineffective assistance of
counsel present questions of law, which we evaluate for
correctness. See State v. Popp, 2019 UT App 173, ¶ 19, 453 P.3d
657. “To establish plain error, [a defendant] must show that
(i) an error exists; (ii) the error should have been obvious to the
trial court; and (iii) the error was harmful.” State v. Marquina,
2020 UT 66, ¶ 30, 478 P.3d 37 (quotation simplified). An
ineffective assistance of counsel claim, on the other hand,
requires a defendant to prove both that “counsel’s performance
was deficient” and “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
ANALYSIS
I. Speedy Trial
¶17 Samora raises two issues with regard to his right to a
speedy trial. First, he asserts that the district court erred in not
ruling, sua sponte, that his right had been violated. Next, he
20190662-CA 7 2022 UT App 7State v. Samora
contends that Trial Counsel was ineffective for failing to move
for a dismissal based the violation of his right to a speedy trial.
As we discuss below, Samora’s right to a speedy trial was not
violated, and therefore both of these claims are unavailing.
Samora has not shown any error, let alone obvious error, to
support a plain error claim, and he cannot establish that Trial
Counsel was ineffective for forgoing a futile motion.
¶18 The Sixth Amendment to the United States Constitution
grants defendants “the right to a speedy and public trial.” U.S.
Const. amend. VI. “The right does not arise until there has been
an indictment or information.” State v. Younge, 2013 UT 71, ¶ 16,
321 P.3d 1127 (quotation simplified). The “right is amorphous,
slippery, and necessarily relative,” Vermont v. Brillon, 556 U.S. 81,
89 (2009) (quotation simplified), as it must take into account the
defendant’s rights as well as “the rights of public justice,”
Beavers v. Haubert, 198 U.S. 77, 87 (1905). Thus, a speedy trial
does not mean an immediate trial because “[o]ur speedy trial
standards recognize that pretrial delay is often both inevitable
and wholly justifiable.” See Doggett v. United States, 505 U.S. 647,
656 (1992). See also Beavers, 198 U.S. at 87 (“The right of a speedy
trial is necessarily relative. It is consistent with delays and
depends upon circumstances.”). Therefore, there is no “specified
number of days or months” that dictate when a defendant’s right
to a speedy trial has been violated. Brillon, 556 U.S. at 89(quotation simplified). Rather, the United States Supreme Court
has established a test, known as the Barker inquiry, that courts
must undertake to determine whether the speedy-trial right has
been violated. See Barker v. Wingo, 407 U.S. 514, 530 (1972).
¶19 The Barker inquiry essentially boils down to a two-part
test. First, the court must determine whether “the interval
between accusation and trial has crossed the threshold dividing
ordinary from presumptively prejudicial delay.” See Doggett, 505
U.S. at 651–52 (quotation simplified). Following the United
States Supreme Court’s suggestion, the Utah Supreme Court has
recognized that an accusation-to-trial interval “approaching one
year is presumptively prejudicial.” Younge, 2013 UT 71, ¶ 18. If a
20190662-CA 8 2022 UT App 7State v. Samora
defendant cannot prove that this threshold has been met, then
the inquiry ends because the defendant “cannot complain that
the government has denied him a ‘speedy’ trial if it has, in fact,
prosecuted his case with customary promptness.” Doggett, 505
U.S. at 652. See also Younge, 2013 UT 71, ¶ 18 (“If the delay is not
uncommonly long, the inquiry ends there.”) (quotation
simplified). But if the defendant can show that the time from
accusation to trial is “presumptively prejudicial,” 5 then courts
proceed to step two of the inquiry and employ “a balancing test,
in which the conduct of both the prosecution and the defendant
are weighed.” Barker, 407 U.S. at 530. This balancing
encompasses four factors: (1) the “[l]ength of delay,” (2) “the
reason for the delay,” (3) “the defendant’s assertion of his right,”
and (4) “prejudice to the defendant.” Id. The Barker court also
noted:
We regard none of the four factors identified
above as either a necessary or sufficient condition
to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and
must be considered together with such other
circumstances as may be relevant. In sum, these
factors have no talismanic qualities; courts must
still engage in a difficult and sensitive balancing
process.
Id. at 533.
5. The United States Supreme Court has “note[d] that, as the
term is used in this threshold context, ‘presumptive prejudice’
does not necessarily indicate a statistical probability of prejudice;
it simply marks the point at which courts deem the delay
unreasonable enough to trigger [step two of] the Barker enquiry.”
Doggett v. United States, 505 U.S. 647, 652 n.1 (1992).
20190662-CA 9 2022 UT App 7State v. Samora
¶20 Here, approximately eighteen months passed between the
time the State charged Samora and the beginning of the trial.
Because this delay was well beyond one year, it was
presumptively prejudicial. Accordingly, we proceed to address
step two of the Barker inquiry and consider the four factors.
A. Length of Delay
¶21 Under the first of the four factors, we “consider . . . the
extent to which the delay stretche[d] beyond the bare minimum
needed to trigger judicial examination of the claim.” See Doggett,
505 U.S. at 652. This “enquiry is significant to the speedy trial
analysis because . . . the presumption that pretrial delay has
prejudiced the accused intensifies over time.” Id.¶22 Here, the delay was about six months beyond the
presumptively prejudicial time of approximately one year
between being charged and being tried. But considering the
seriousness of the principal charge against Samora—attempted
murder—we do not see an additional six-month delay as being
cause for significant concern. This is so because cases of this
magnitude often require more time for both the prosecution and
the defense to prepare for trial. Therefore, this factor is relatively
inconsequential in this case.
B. Reasons for the Delay
¶23 The second factor considers “whether the government or
the criminal defendant is more to blame for [the] delay.” Id. at
651. Under this factor, the prosecution’s reasons for delay can be
entirely reasonable, such as “need[ing] time to collect witnesses
against the accused, oppos[ing] his pretrial motions, or, if he
goes into hiding, track[ing] him down.” Id. at 656. Such reasons
are “wholly justifiable” and given “great weight . . . when
balancing them against the costs of going forward with a trial
whose probative accuracy the passage of time has begun by
degrees to throw into question.” Id. But “[a] deliberate attempt to
delay the trial in order to hamper the defense should be
20190662-CA 10 2022 UT App 7State v. Samora
weighted heavily against the government.” Barker, 407 U.S. at
531. Finally, “[a] more neutral reason such as negligence or
overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the
government rather than with the defendant.” Id.¶24 On the other hand, when a defendant “acts to delay trial,
he indicates his willingness to temporarily waive his right to a
speedy trial. This is true whether or not the reason for the delay
is meritorious.” State v. Ossana, 739 P.2d 628, 631 (Utah 1987)
(footnote omitted). See Barker, 407 U.S. at 529 (“We hardly need
add that if delay is attributable to the defendant, then his waiver
may be given effect under standard waiver doctrine, the demand
rule aside.”). “Consequently, when a defendant affirmatively
agrees to a scheduled [hearing] date and offers no subsequent
objection to that date, he cannot then turn around and count
those days leading up to the agreed upon trial date in his
determination of delay for speedy trial purposes.” State v.
Cornejo, 2006 UT App 215, ¶ 28, 138 P.3d 97.
¶25 Here, Samora delayed his trial by nearly eight months
through his own continuance requests. The following were all
delays that Samora requested and was granted:
• At his initial appearance on December 15, 2017,
Samora requested a one-week delay to
determine if he could hire private counsel.
• At the hearing on January 24, 2018, Trial
Counsel requested a six-week continuance to
obtain discovery and review it with Samora. 6
6. On appeal, Samora has not argued that the State was late in
providing discovery.
20190662-CA 11 2022 UT App 7State v. Samora
• At the hearing on April 11, 2018, after Samora
conditionally waived his right to a preliminary
hearing, Trial Counsel requested a roughly
two-and-a-half-week delay for the next hearing
to be held.
• At the hearing on April 30, 2018, the court
asked Trial Counsel when he would like to
schedule the next hearing and Trial Counsel
suggested the hearing be held in a month. The
court only had a date either three weeks or five
weeks out, and Trial Counsel asked for the date
five weeks out.
• At the continued preliminary hearing, held on
September 10, 2018, Trial Counsel asked for the
hearing to be continued six weeks because
Samora’s family was attempting to gather funds
to retain private counsel for Samora. The court
denied the request and proceeded to bind
Samora over for trial. When the court inquired
about a date to hold the upcoming arraignment,
Trial Counsel suggested a date six weeks out,
and the court offered either October 22—six
weeks out—or October 29—seven weeks out—
and both Trial Counsel and Samora responded
that they preferred the later date, October 29.
• At the October 29 arraignment, Samora pled not
guilty and Trial Counsel sought another
continuance of six to eight weeks, which
Samora personally confirmed. The court then
asked whether Samora wanted this review
hearing scheduled on, before, or after December
31. Trial Counsel represented that Samora was
content with it being scheduled in January and
20190662-CA 12 2022 UT App 7State v. Samora
the court scheduled it for January 7, 2019—ten
weeks out.
• At the January 7 review hearing, Samora asked
for another six-week continuance to obtain
private counsel. Due to how long the case had
already run, the court denied that request but
did grant Samora three more weeks, until
January 28, to see if he could hire private
counsel.
¶26 By our tally, Samora requested continuances totaling 34½
weeks, or approximately eight months. These eight months were
directly attributable to Samora and thus count as a waiver of the
right to a speedy trial during that time period. See Ossana, 739
P.2d at 631. Furthermore, Samora fled from the State in an
attempt to evade justice, further delaying his case by
approximately six weeks. This time is of course attributed to
Samora because the delay from the time the State filed charges
on October 27, 2017, until his arrest on December 12 in Nevada,
“was through no fault of the prosecution and not the result of
overcrowded courts or negligence on the part of the State.” See
State v. Younge, 2013 UT 71, ¶ 16, 321 P.3d 1127. See also Doggett,
505 U.S. at 656 (stating that if a defendant “goes into hiding,”
the time taken by the government to “track him down” is
“wholly justifiable”). But see Doggett, 505 U.S. at 652–53 (holding
that the 8½ years it took the government to track down the
defendant following the indictment was attributable to the
government because the defendant was unaware of his
indictment and “[f]or six years, the Government’s investigators
made no serious effort” to locate the defendant, whom “they
could have found . . . within minutes”).
¶27 When these time periods are combined, Samora was
directly accountable for nearly 9½ months of delay, or slightly
more than half of the eighteen-month period from when he was
charged until trial. Although there was an additional 8½ months
of delay, we need not detail the causes for delay during those
20190662-CA 13 2022 UT App 7State v. Samora
months specifically because they fall well short of the
presumptively prejudicial trigger of approximately one year.
Had the 9½ months of delays attributable to Samora not
occurred, the case would have proceeded to trial well before
approaching one year and the presumptively prejudicial time
would not have been met. See Cornejo, 2006 UT App 215, ¶ 28
(holding that a defendant responsible for the delay “cannot then
turn around and count those days leading up to the agreed upon
trial date in his determination of delay for speedy trial
purposes”). Thus, the reasons for delay weigh against
concluding that Samora was deprived of his right to a speedy
trial. 7
7. Samora asserts that “the record demonstrates a lack of
diligence by the court and the State to bring the matter to trial.”
But Samora points only to the State’s request for a continuance
after Wife refused to testify at the first preliminary hearing,
which testimony ultimately proved unnecessary for bindover.
Based solely on this, Samora claims that “[t]he State’s lethargy in
bringing the matter to trial is demonstrated by the requested
continuance of the preliminary hearing and the subsequent
proceedings in which it at least became aware that [Wife’s]
refusal to cooperate had no significant bearing on the court’s
probable cause determination.” We do not see how seeking one
continuance after a witness becomes uncooperative makes the
State lethargic in bringing the case to trial. Rather, the State was
granted this continuance and at the next preliminary hearing, the
matter was promptly bound over. But even if we were to agree
with Samora on this point, this single continuance accounts for
only seven weeks of the eighteen months it took for the case to
get to trial, and Samora points to no other delays that were
attributable to the State. Thus, with respect to the reasons for
delay, there is little to weigh against the State.
20190662-CA 14 2022 UT App 7State v. Samora
C. Samora’s Assertion of his Right
¶28 At the end of the first preliminary hearing on July 20,
2018, when the district court stated it would reschedule the
hearing for an unspecified date due to Wife’s refusal to testify,
Trial Counsel asserted that Samora was “asking to have his right
to a quick and speedy trial and invoke that process today.” This
factor does not weigh heavily against the State because after
invoking his right at that hearing, in subsequent hearings
Samora asked for, and was granted, continuances of seven, ten,
and three weeks. See United States v. Oliva, 909 F.3d 1292, 1301
n.11 (11th Cir. 2018) (“[T]his Court has also determined that,
where a defendant asserted his right to a speedy trial but also
moved for four continuances prior to that trial, the third Barker
factor did not weigh ‘heavily’ against the Government.”). When
the court twice offered earlier dates for the hearings, Samora
instead chose later dates. Seemingly exasperated at the length of
time the case had dragged on, at the January 7, 2019 pretrial
conference, the State opposed Samora’s requested extension,
stating that it was “[t]he State’s preference . . . just to set this for
trial.”
¶29 Thus, even after Samora invoked his right to a speedy
trial, it was almost exclusively Samora who delayed the trial—
not the district court or the State. Accordingly, this factor does
not weigh in favor of concluding that Samora’s speedy-trial right
was violated.
D. Prejudice to Samora
¶30 “In Barker, the Supreme Court identified three different
forms of prejudice that the speedy trial right serves to protect
against: ‘(i) to prevent oppressive pretrial incarceration; (ii) to
minimize anxiety and concern of the accused; and (iii) to limit
the possibility that the defense will be impaired.’” Younge, 2013
UT 71, ¶ 25 (quoting Barker v. Wingo, 407 U.S. 514, 532 (1972)).
Samora claims that he suffered all three forms of prejudice from
the eighteen-month delay.
20190662-CA 15 2022 UT App 7State v. Samora
¶31 While it is true that Samora was incarcerated for nearly a
year and a half while awaiting trial, this factor does not weigh in
favor of Samora because he is the one who requested most of the
delay. When a defendant causes the delay, “there is no merit to
his speedy trial claim,” because he cannot claim prejudice from
an action he caused. See Gattis v. Snyder, 278 F.3d 222, 230 (3d
Cir. 2002). Indeed, in briefing, Samora concedes that his
“affirmative showing of prejudice is lacking.” We agree, and
conclude that this factor does not weigh in favor of concluding
that his right to a speedy trial was violated.
E. Summary
¶32 Not a single factor weighs in favor of concluding that
Samora was denied his right to a speedy trial. Accordingly, no
error existed, let alone an obvious error, and Samora’s plain
error claim is unavailing. See State v. Marquina, 2020 UT 66, ¶ 30,
478 P.3d 37. Additionally, because Samora was not denied the
right to a speedy trial, his claim that Trial Counsel was
ineffective for not requesting a dismissal on that basis is likewise
unsuccessful because any such request would have been
properly rejected by the district court. See State v. Makaya, 2020
UT App 152, ¶ 9, 476 P.3d 1025 (“A futile motion necessarily fails
both the deficiency and prejudice prongs of the Strickland
analysis because it is not unreasonable for counsel to choose not
to make a motion that would not have been granted, and
forgoing such a motion does not prejudice the outcome.”).
II. References to the Restricted Person Charge
¶33 Samora contends that the district court plainly erred in
informing the jury pool three times that he had been charged
with possessing a weapon as a restricted person and that Trial
Counsel was ineffective for not objecting to the court’s
references. As explained above, the plain error standard and the
ineffective assistance standard both require a defendant to
establish prejudice. See Strickland v. Washington, 466 U.S. 668, 687
(1984); State v. Marquina, 2020 UT 66, ¶ 30, 478 P.3d 37. And “the
20190662-CA 16 2022 UT App 7State v. Samora
prejudice test is the same whether under the claim of ineffective
assistance or plain error.” State v. McNeil, 2016 UT 3, ¶ 29, 365
P.3d 699.
¶34 To establish prejudice, “a defendant must present
sufficient evidence to support a reasonable probability that, but
for [the] errors, the result of the proceeding would have been
different.” Archuleta v. Galetka, 2011 UT 73, ¶ 40, 267 P.3d 232(quotation simplified). “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” Strickland,
466 U.S. at 694. Here, even assuming that the court erred in
thrice informing the jury pool that Samora was charged with
possession of a firearm by a restricted person, we readily
conclude that Samora was not prejudiced by this alleged error
and resolve both of Samora’s claims on that basis.
¶35 First, the evidence against Samora on the attempted
murder charge was overwhelming. See State v. Lopez, 2019 UT
App 11, ¶ 35, 438 P.3d 950 (holding that based on the
“overwhelming evidence . . . introduced at trial,” there was “no
reasonable probability that,” absent the error, the outcome
would have been more favorable to the defendant); State v. King,
2010 UT App 396, ¶ 35, 248 P.3d 984 (“While we more readily
find errors to be harmless when confronted with overwhelming
evidence of the defendant’s guilt, we are more willing to reverse
when a conviction is based on comparatively thin evidence.”)
(quotation simplified). Although Victim testified that he did
“[n]ot specifically” see Samora with a gun, he could see Samora
“in front of [him] moving around.” Thus, it is logical to conclude
that the person moving around in front of Victim while he was
being shot would be the one responsible for the shooting. But
this was not all the jury heard. It also heard from Witness 1, who
categorically stated that he saw Samora shoot Victim multiple
times. The jury then heard from Witness 2, who, while not able
to specifically identify Samora as the shooter, did witness a
Hispanic male of “stocky build,” a description that matched
Samora, shooting at another man on the ground. As damning as
this evidence was, the jury was then able to corroborate all that
20190662-CA 17 2022 UT App 7State v. Samora
testimony by watching the surveillance footage. This footage
showed Victim collapse into view after being shot and then be
shot two more times by a man who matched all three witnesses’
descriptions. And these descriptions were consistent with the
appearance of Samora, whom the jurors could see with their
own eyes in the courtroom. Thus, there is not “a reasonable
probability” that, had the court not informed the potential jurors
that Samora was charged with possession of a firearm by a
restricted person, the result of the trial on the attempted murder
charge would have been different. See Archuleta, 2011 UT 73, ¶ 40
(quotation simplified).
¶36 Second, it is far from obvious that the potential jurors
understood what being a “restricted person” meant, at least until
being instructed on that matter during the bifurcated portion of
the trial, given that the term was not explained to them at the
time. Samora, however, claims that these references “tainted”
“the jury’s deliberations . . . from the beginning.” In State v. Toki,
2011 UT App 293, 263 P.3d 481, we dealt with a nearly identical
issue. In that case, the phrase “restricted person” was also
mentioned to the prospective jurors but, unlike here, it was
erroneously presented to the jury as part of an instruction that it
took into deliberations. Id. ¶ 26. During deliberations, the jury
asked for “clarification” of the phrase “restricted person.” Id. The
district court simply told the jury not to concern itself with the
phrase. Id. On appeal, the defendant claimed that the jury drew
inappropriate inferences about him from the use of the term,
which tainted his trial. Id. ¶ 27. This court disagreed, stating,
“[T]he jury’s question indicates that it did not understand the
reference in [the instruction] to ‘restricted person,’ . . . thus
undermining Defendant’s argument that the improper
references had ‘necessarily tainted’ the jury’s deliberations from
the beginning.” Id. ¶ 32. That situation is similar to what
happened in the case before us. During voir dire, a prospective
juror, who was not selected for the jury, asked for “clarification”
about the charges, “attempted murder and illegal—.” The court
responded that it was “basically, possession of a firearm as a
restricted person” and provided no further explanation. Because
20190662-CA 18 2022 UT App 7State v. Samora
the term is not as widely known by laypersons as more common
terms like “felon,” “criminal,” “inmate,” and the like, the jurors
who actually sat were likely also unfamiliar with the phrase, like
the prospective juror in our case and the jurors in Toki were.
Under the circumstances present here, we cannot conclude there
is “a reasonable probability that, but for [the] error, the result of
the [attempted murder trial] would have been different.” See
Archuleta, 2011 UT 73, ¶ 40 (quotation simplified).
¶37 Lastly, Samora contends that the court’s references to the
restricted person charge “caused the jury to speculate that [he]
was unable to posses a firearm because of a criminal past.” But
until the time came for presenting evidence on that charge, the
jury was never informed that Samora was a restricted person—
just that he was accused of being one. And the jury did not hear
any of the details concerning the criminal conduct that underlay
the State’s restricted person charge against Samora and never
learned that he had prior felony convictions until the subsequent
trial on the restricted-person charge. In a prior case, we
determined that no prejudice was shown even where a jury was
informed that a defendant was a restricted person. See State v.
Vu, 2017 UT App 179, ¶ 17, 405 P.3d 879 (stating that “[w]hile
learning of [the defendant’s] restricted status without additional
explanation could cause the jury to speculate as to the reason
behind it, a mere possibility of speculation is not sufficient to
demonstrate prejudice”). Here, where the jury was told only that
Samora was charged with possession of a firearm by a restricted
person—and not that he actually was a restricted person—the
court’s references are even less prejudicial.
CONCLUSION
¶38 The district court did not plainly err by declining to
dismiss Samora’s case on the ground that his right to a speedy
trial was violated because, due to Samora’s own actions delaying
the proceedings, there was no error, let alone obvious error, in
that regard. It follows that Trial Counsel could not have
20190662-CA 19 2022 UT App 7State v. Samora
provided ineffective assistance of counsel for not moving for
dismissal on that basis because any such motion would have
been futile. Finally, even assuming it was error to inform the jury
pool of the restricted person charge, such error did not prejudice
Samora.
¶39 Affirmed.
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