State v. Cheek

2015 UT App 243_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
HAYLEE CHEEK,
Appellant.
Opinion
No. 20120900-CA
Filed October 29, 2015
Fifth District Court, Cedar City Department
The Honorable G. Michael Westfall
No. 071500740
Kelly Ann Booth, Attorney for Appellant
Sean D. Reyes and Ryan D. Tenney, Attorneys
for Appellee
JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and JOHN A. PEARCE concurred.
ORME, Judge:
¶1 Appellant Haylee Cheek (Defendant) made a series of
incredibly bad decisions, as a result of which she was convicted
of aggravated kidnapping and aggravated robbery, both first
degree felonies; theft of a firearm, a second degree felony;
possession of methamphetamine and unlawful acquisition of a
financial transaction card, both third degree felonies; and sexual
battery, a class A misdemeanor. She appeals those convictions.
We affirm.
State v. Cheek
BACKGROUND 1
¶2 Shortly before Christmas in 2007, Defendant and her
friend, Ron Parker, drove to Brian Head Ski Resort to break into
cars. While Parker acted as a lookout, Defendant broke into a
truck and stole a wallet containing a credit card and a gas card.
On their way home from the ski resort, they gassed up their car
using one of the stolen cards. A few days later, Defendant and
another friend, Tiffani Davis, drove back to Brian Head Ski
Resort. Defendant again broke into several cars while Davis
acted as a lookout. Defendant stole a handgun from one of the
cars.
¶3 On December 28, 2007, Defendant was in a hotel room in
Mesquite, Nevada, with two friends, Ambree Blackner and
Uriah Suhr. While the group smoked methamphetamine,
Defendant told them about the gun she had stolen a week
earlier, and Suhr agreed to buy it from her later that day in
Cedar City, Utah.
¶4 That afternoon, Suhr and his girlfriend drove to Cedar
City. Before meeting up with Defendant, Suhr decided to
burglarize Blackner’s home, but he was interrupted by
Blackner’s father. When confronted by Blackner’s father, Suhr
claimed that he was looking for Blackner and left. Blackner’s
father was on his way out of town when he encountered Suhr,
and because he was suspicious of Suhr, he called the police and
1. “When reviewing a jury verdict, we examine the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict, and we recite the facts accordingly.”
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. “We present
conflicting evidence only as necessary to understand issues
raised on appeal.” State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.
20120900-CA 2 2015 UT App 243State v. Cheek
asked them to watch his home while he was gone. The police
agreed to do so.
¶5 Later that day, Suhr and his girlfriend picked up
Defendant, Defendant’s son, and Blackner. The group drove to
Defendant’s home to retrieve the stolen handgun and then drove
to Blackner’s house. At Blackner’s house, the group began using
methamphetamine supplied by Suhr’s girlfriend.
¶6 Shortly before midnight, an officer stopped by to check on
the house and spoke with Blackner on the porch. The officer’s
knock on the door awoke Suhr’s girlfriend. Worried that officers
might come back and search the house, she called a friend to
take her home, and they agreed to meet at a nearby truck stop.
The girlfriend was also worried that officers would find
contraband on Suhr (who had had a seizure and passed out) if
they came back to search the house, so she took a small vial of
drugs from Suhr’s pocket, along with some money.
¶7 As the girlfriend was getting ready to leave for the truck
stop, Davis arrived at the home with Ashleigh Walker.
Defendant told Davis that she had seen the girlfriend taking
things from Suhr’s pockets. Defendant and Davis then decided
to rob the girlfriend. When Suhr woke up, Defendant told him
what had happened and he agreed to loan Davis the handgun,
which he had purchased from Defendant earlier that day.
¶8 Davis offered to drive Suhr’s girlfriend to the truck stop
where she was supposed to meet her friend. The girlfriend,
Davis, and Walker got in Davis’s car, and as the group pulled
out of the driveway, a police officer began following them. This
concerned the girlfriend, so she took the small vial of drugs she
had taken from Suhr and hid it inside her vagina. When the
officer stopped following them, Davis drove back to Blackner’s
house instead of taking the girlfriend to the truck stop.
¶9 Once they were back at Blackner’s house, Davis got out of
the car and started talking to Suhr. Sensing trouble, Suhr’s
20120900-CA 3 2015 UT App 243State v. Cheek
girlfriend hid the money that she had taken from Suhr between
the seats of the car. When Davis got back into the car, she pulled
out the handgun, pointed it at Suhr’s girlfriend, told her she was
robbing her, and demanded the drugs and the money. When the
girlfriend said that she did not have them, Davis hit her in the
face with the gun. Davis then unsuccessfully searched the
girlfriend’s purse and went inside the house while Walker
stayed outside the car to make sure the girlfriend “couldn’t get
out” of the car.
¶10 While she was waiting in the car, the girlfriend saw a cell
phone on the seat and used it to call 911. She told the 911
dispatcher where she was, that “there was a gun,” and that she
“needed help.” The girlfriend hung up when Davis came back
outside with Defendant.
¶11 Davis made the girlfriend get out of the car, whereupon
she and Defendant pushed the girlfriend into the garage. Inside
the garage, Defendant and Davis knocked the girlfriend to the
ground and, again, unsuccessfully searched her for the drugs
and money. The two women then took the girlfriend into an
adjoining workroom. When the girlfriend tried to escape,
Defendant grabbed her by the hair, pulled her to the ground, hit
her, and tied her up with rope. At that point, Walker came into
the workroom, placed duct tape over the girlfriend’s mouth, and
went back inside.
¶12 Defendant told Davis to search the girlfriend’s vagina for
the drugs, but Davis refused to touch the girlfriend (hereafter,
“the Victim”) and started searching for pliers or gloves to use in
extracting the drugs. Although she could not see what was
happening, the Victim testified that the women used one “cold
object” and one “rough object” to search her vaginal cavity for
the vial of drugs. Using the “rough object,” Davis extracted the
vial of drugs from the Victim’s vagina and handed it to
Defendant. Around that time, Walker returned to the workroom
and reported that she had found the money in the car.
20120900-CA 4 2015 UT App 243State v. Cheek
Defendant and Davis then released the Victim and told her to
put her clothes back on. Shortly thereafter, the police arrived at
the home.
¶13 One officer looked inside the workroom and saw Davis
and the Victim. He later testified that the Victim appeared “very
nervous” and “visibly upset”; that her “face was red, bruised,”
and swollen; and that blood was coming out of one of her
nostrils. He also noticed a rope, a glove, and a “pair of panties”
on the floor in the workroom. Davis claimed that the Victim’s
boyfriend had beaten her up and that Davis had brought her to
the workroom to see if she could help her. The Victim, however,
told the officer that she had “been beaten up” by “three to four
girls” and that “all the girls were involved.” She also identified
Defendant and Davis as being “responsible for the assault.”
¶14 A short time later, another officer arrived at the house and
found Defendant huddled in a “well darkened” corner of the
garage with her head down and her hands covering her face.
When the officer asked Defendant why she was hiding in the
garage, Defendant told him she was “doing nothing” and that
she was “not involved in what’s going on here.” Thereafter,
officers located a duffel bag near where Defendant had been
hiding and found the gas card that was stolen from the truck
parked at Brian Head Ski Resort inside. After obtaining a search
warrant for Defendant’s car, the officers also found a checkbook
belonging to a California resident who had been vacationing at
the ski resort during the week of Christmas.
¶15 During her several interviews with police, Defendant
offered conflicting stories. She initially stated that she “didn’t
have anything to do with this,” that “she didn’t even know why
she was there,” and that “[s]he was innocent.” But later that day,
she stated that she had been sleeping when she heard voices, so
she went to the garage. When she heard the police, she “sat
down in the garage in an effort to hide from them.” She also
claimed that she did not know Suhr or anything about the
20120900-CA 5 2015 UT App 243State v. Cheek
handgun. Later that day, when a detective asked her about her
“part in this,” Defendant replied, “Look, [Suhr] pointed a gun to
my son’s head and threatened my son that if I didn’t cooperate,
he’d kill my son.” About a week later, Defendant contacted
officers and requested a meeting, during which she told them
that she had heard that a vial of drugs had been hidden inside of
the Victim’s vagina but that it had since been hidden inside the
Blackner home. She described the exact location of the vial.
Based on this information, officers obtained a search warrant
and found the vial inside a cabinet containing syringes and
drugs.
¶16 Defendant was subsequently charged with aggravated
robbery, aggravated kidnapping, object rape, 2 theft by receiving
stolen property, aggravated assault, possession of a firearm by a
restricted person, possession of drug paraphernalia, and
possession of methamphetamine. Defendant was also charged
with theft of a firearm; however, when the federal government
decided to prosecute Defendant for theft of a firearm, the State
filed an amended information, dropping this charge and the
theft-by-receiving charge. Ultimately, the federal government
decided not to prosecute Defendant, and the State, in a separate
case, recharged Defendant with theft of a firearm, along with a
new charge of unlawful acquisition of a financial transaction
card. At a June 22, 2010 hearing, Defendant’s trial counsel agreed
with the State’s request to consolidate the two cases.
¶17 At trial, the Victim, Davis, Walker, and Blackner testified
about Defendant’s role in the robbery of the Victim. Davis and
Parker testified about Defendant’s role in the thefts at Brian
Head Ski Resort, and Walker and Blackner both testified that
Defendant had told them about the thefts. Several police officers
2. The object-rape charge was eventually dismissed and replaced
with the charge of sexual battery.
20120900-CA 6 2015 UT App 243State v. Cheek
also testified about how they found Defendant hiding in
Blackner’s garage and her subsequent inconsistent stories.
Defendant, on the other hand, testified that she was innocent of
all the charges against her. A jury convicted Defendant of
aggravated robbery, aggravated kidnapping, sexual battery,
aggravated assault, possession of methamphetamine, theft of a
firearm, and unlawful acquisition of a financial transaction card.
¶18 After the trial, Defendant’s current counsel entered her
appearance, whereupon Defendant moved to arrest judgment,
arguing that her aggravated kidnapping and aggravated assault
convictions should both merge into her aggravated robbery
conviction. The trial court granted her motion with respect to her
aggravated assault conviction and denied it with respect to her
aggravated kidnapping conviction.
¶19 Defendant also filed a motion for new trial, raising several
claims of ineffective assistance of counsel. Most notably,
Defendant claimed that she had entered into a sexual
relationship with her trial counsel after retaining him and that
she had broken up with him shortly before trial. She alleged that
their sexual relationship and breakup resulted in a conflict of
interest. She also alleged numerous instances of ineffective
assistance of counsel regarding trial counsel’s investigative and
tactical decisions. Finally, Defendant requested a new trial based
on newly discovered evidence—a letter from her former cellmate
claiming that Davis had told the cellmate that she fabricated her
trial testimony.
¶20 In response to Defendant’s claims, trial counsel submitted
an affidavit, which was ultimately accepted as evidence by the
trial court. Trial counsel denied having a sexual relationship
with Defendant and provided explanations for each of his trial
decisions in question. After an evidentiary hearing, the trial
court denied Defendant’s motion for new trial. The court did not
resolve the factual dispute as to whether Defendant and trial
counsel engaged in a sexual relationship. Instead, the court
20120900-CA 7 2015 UT App 243State v. Cheek
concluded that “even if the facts claimed by Defendant in fact
occurred, it did not affect [trial counsel’s] performance at trial,
which was fair in all material respects.” The court also
concluded that the alleged ineffective assistance “did not, either
individually or cumulatively, result in any harm or prejudice to
Defendant’s rights.” Finally, the court denied Defendant’s
newly-discovered-evidence claim, stating that it was “mere
impeachment evidence that would not likely have affected the
result at trial, given the number of witnesses supporting Ms.
Davis’s account.” Defendant appeals.
ISSUES AND STANDARDS OF REVIEW
¶21 First, Defendant contends that the trial court erred in
failing to compel the testimony of a witness at trial. Defendant’s
claim is unpreserved and she therefore seeks review under the
plain error exception to the preservation requirement. “The plain
error standard of review requires an appellant to show the
existence of a harmful error that should have been obvious to the
[trial] court.” State v. Waterfield, 2014 UT App 67, ¶ 18, 322 P.3d
1194.
¶22 Second, Defendant contends that her trial counsel was
constitutionally ineffective and that the trial court erred in
denying her motion for new trial on the basis of ineffective
assistance of counsel. “When reviewing a trial court’s ruling on
ineffective assistance of counsel claims, we utilize a mixed
standard of review.” State v. Stidham, 2014 UT App 32, ¶ 15, 320
P.3d 696. “We review the trial court’s application of the law to
the facts under a correctness standard. If there are factual
findings to review, we will not set them aside unless they are
clearly erroneous.” State v. Lenkart, 2011 UT 27, ¶ 20, 262 P.3d 1(citation footnotes omitted).
¶23 Third, Defendant contends that the trial court erred when
it consolidated the two cases. She contends that this “matter
should be reviewed under the doctrines of plain error and/or
20120900-CA 8 2015 UT App 243State v. Cheek
ineffective assistance of counsel.” The appropriate standards of
review for Defendant’s plain-error and ineffective-assistance
claims are as already explained. See supra ¶¶ 21–22.
¶24 Fourth, Defendant contends that the trial court
erroneously denied her motion for new trial based on newly
discovered evidence. And fifth, she contends that the trial court
erroneously denied her motion for new trial when it concluded
“that the errors of Trial Counsel, either individually or
collectively[,] did not prejudice [D]efendant.” “The denial of a
motion for a new trial is reviewed under an abuse of discretion
standard.” Stidham, 2014 UT App 32, ¶ 14.
ANALYSIS
I. Defendant’s Right to Compulsory Process Was Not Denied.
¶25 Defendant contends that the trial court should have
compelled the testimony of a witness, Kibb Jones, because his
testimony could have been used to impeach the credibility of the
State’s key witness, the Victim. Defendant asserts that this issue
was preserved “when Kibb Jones was called to testify, and he
refused.” The State responds that Defendant failed to preserve
this claim in the trial court because trial counsel “never asked the
court to threaten [Jones] with sanctions if he did not testify.”
¶26 We agree with the State that this issue is not preserved for
appeal. To preserve an issue for appeal, “the issue must be
presented to the trial court in such a way that the trial court has
an opportunity to rule on that issue.” 438 Main St. v. Easy Heat,
Inc., 2004 UT 72, ¶ 51, 99 P.3d 801 (citation and internal
quotation marks omitted). “This requirement puts the trial judge
on notice of the asserted error and allows for correction at that
time in the course of the proceeding.” Id. In this case, trial
counsel never asked the court to threaten Jones with sanctions,
and the trial court therefore never had an opportunity to rule on
20120900-CA 9 2015 UT App 243State v. Cheek
the issue or otherwise compel Jones to testify. See id. Accordingly,
Defendant’s compulsory-process claim is unpreserved.
¶27 In the alternative, Defendant argues that we should
review her claim under the plain error exception to the
preservation rule. To show plain error, Defendant must prove
that “(i) [a]n error exists; (ii) the error should have been obvious
to the trial court; and (iii) the error is harmful, i.e., absent the
error, there is a reasonable likelihood of a more favorable
outcome for the appellant, or phrased differently, our confidence
in the verdict is undermined.” State v. Dunn, 850 P.2d 1201,
1208–09 (Utah 1993).
¶28 The day before Jones was scheduled to testify, trial
counsel informed the trial court that Jones had indicated that he
would not testify. Trial counsel told the court that if Jones
refused to testify, he wanted “some record that he’s unavailable”
so that Defendant’s investigator could “then testify without it
being hearsay as to what [Jones] said to [the investigator in] an
interview.” See Utah R. Evid. 804(a)(2). The next day, when Jones
was called to the stand, he indeed refused to testify. During the
ensuing colloquy, the trial court informed Jones, “Now as a
practical matter, all I can do is hold you in contempt and have
you serve some time in contempt.” The court noted that Jones
was already in prison and that there was “not a whole lot” it
could “do to encourage” Jones to testify. When the prosecutor
asked if the court could order Jones to testify, the court
responded, “Well, of course, I can order him to testify, but he’s
already indicated he’s not going to comply with my order. Isn’t
that right?” After Jones again refused to testify, the court
declared him unavailable.
¶29 As a result, the trial court allowed Defendant’s
investigator to testify about his conversations with Jones.
Defendant’s investigator testified about Jones’s opposition to
testifying and that Jones had told him the night before that the
Victim wrote him several letters, one of which stated that Suhr,
20120900-CA 10 2015 UT App 243State v. Cheek
not Defendant, was behind the robbery. In rebuttal, the State
called its own investigator, who testified that during a recorded
interview, Jones “unequivocally” denied receiving any letters
from the Victim.
¶30 Even if the trial court erred by not ordering Jones to
testify, Defendant has not shown that the error was obvious. See
Dunn, 850 P.2d at 1208. To begin with, because Jones was
already in prison, a threat of contempt sanctions was unlikely
to be effective in persuading him to testify. And the trial
court could not force Jones to testify. See State v. Barela, 779 P.2d
1140, 1144 (Utah Ct. App. 1989) (“[I]t is clear that a witness
who[—]though present—refused to testify is just as surely
unavailable as the witness who stepped across a state line to
avoid service of a subpoena.”) (citation and internal quotation
marks omitted). Accordingly, the error, if any, was not obvious.
¶31 Moreover, even if the trial court’s failure to order Jones to
testify was obvious error, Defendant has not shown, or even
argued, that there was a reasonable likelihood of a more
favorable outcome at trial absent the error. See Dunn, 850 P.2d at
1208. Defendant cannot show that the trial court’s threat of
sanctions would have compelled Jones to testify, let alone that he
would have testified in her favor if he had testified. Cf. State v.
Schreuder, 712 P.2d 264, 275 (Utah 1985) (“Testimony is material,
and its exclusion is therefore prejudicial, if there is a reasonable
probability that its presence would affect the outcome of the
trial.”). Besides, the jury ultimately heard Jones’s claims about
Defendant’s lack of involvement with the robbery when
Defendant’s investigator testified about his conversations with
Jones. But Defendant’s investigator’s testimony was contradicted
by the State’s investigator’s testimony and by the testimony of
multiple other witnesses who observed Defendant’s assault and
robbery of the Victim. Consequently, Defendant cannot establish
that there was a reasonable likelihood of a more favorable
outcome at trial had Jones testified. See Dunn, 850 P.2d at 1208.
Because we conclude that any alleged error was not obvious and
20120900-CA 11 2015 UT App 243State v. Cheek
did not result in prejudice, Defendant’s plain-error claim has no
merit.
¶32 Defendant also raises the issue of ineffective assistance of
counsel as an alternate means to have the alleged error examined
on appeal. She asserts that trial counsel provided ineffective
assistance “by failing to argue for the trial court to compel
Jones’[s] testimony.” To establish her claim of ineffective
assistance of counsel, Defendant “must show that counsel’s
performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,
687 (1984). However, “[f]ailure to meet the plain error
requirement of prejudice means that defendant likewise fails to
meet the required showing under the ineffective assistance of
counsel standard.” State v. Ellifritz, 835 P.2d 170, 174 (Utah Ct.
App. 1992). Because we concluded above that Defendant cannot
demonstrate prejudice on this issue, see supra ¶ 31, her
ineffective-assistance claim on this point necessarily fails. 3
II. The Trial Court Did Not Err When It Denied Defendant’s
Motion for New Trial on the Basis of Ineffective Assistance of
Counsel.
A. Trial Counsel Did Not Have an Actual Conflict of Interest.
¶33 Defendant claims that her trial counsel was
constitutionally ineffective because he had an actual conflict of
interest and that prejudice is therefore presumed. Specifically,
3. In any event, Defendant cannot establish deficient
performance under Strickland v. Washington, 466 U.S. 668 (1984),
because any request by trial counsel to order Jones to testify
would have been futile given his refusal to testify. See State v.
Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile
objections does not constitute ineffective assistance of counsel.”).
20120900-CA 12 2015 UT App 243State v. Cheek
she alleges that she and trial counsel had a sexual relationship
that ended shortly before trial when she broke up with him. She
alleges that after she ended the relationship, trial counsel took
several positions contrary to her interests. The trial court
declined to resolve the factual dispute as to whether Defendant
and trial counsel engaged in a sexual relationship but concluded
that “even if the facts claimed by Defendant in fact occurred, it
did not affect [trial counsel’s] performance at trial, which was
fair in all material respects.”
¶34 “The sixth amendment right to effective assistance of
counsel includes the right to counsel free from conflicts of
interest.” State v. Webb, 790 P.2d 65, 72 (Utah Ct. App. 1990).
Ordinarily, ineffective assistance claims are analyzed under the
two-part test set forth in Strickland v. Washington, 466 U.S. 668(1984), which requires a defendant to demonstrate both that
“counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Id. at 687. However, the
United States Supreme Court has held that
a defendant who shows that a conflict of interest
actually affected the adequacy of his representation
need not demonstrate prejudice in order to obtain
relief. But until a defendant shows that his counsel
actively represented conflicting interests, he has
not established the constitutional predicate for his
claim of ineffective assistance.
Cuyler v. Sullivan, 446 U.S. 335, 349–50 (1980) (internal citation
omitted). See also, e.g., State v. Brandley, 972 P.2d 78, 85 (Utah Ct.
App. 1998) (“[W]hen an ineffectiveness claim is grounded on a
conflict of interest, we presume prejudice if the defendant
demonstrates that an actual conflict of interest adversely affected
his lawyer’s performance.”) (citation and internal quotation
marks omitted); People v. Doolin, 198 P.3d 11, 33 (Cal. 2009) (“In
the context of a conflict of interest claim, deficient performance is
demonstrated by a showing that defense counsel labored under
20120900-CA 13 2015 UT App 243State v. Cheek
an actual conflict of interest that affected counsel’s performance—as
opposed to a mere theoretical division of loyalties.”) (emphasis
in original) (citation and internal quotation marks omitted).
¶35 To “establish an actual conflict, [the defendant] must
demonstrate as a threshold matter . . . that the defense attorney
was required to make a choice advancing his own interests to the
detriment of his client’s interests.” State v. Taylor, 947 P.2d 681,
686 (Utah 1997) (alteration and omission in original) (citation
and internal quotation marks omitted). “[H]ypothetical or
speculative conflicts will not suffice to establish a violation.”
State v. Humphrey, 793 P.2d 918, 923 (Utah Ct. App. 1990).
¶36 “The most likely scenario for a conflict of interest to
develop is when an attorney represents two co-defendants in the
same case, i.e., multiple or joint representation.” Thompson v.
State, 94 S.W.3d 11, 16 (Tex. App. 2002). Indeed, Cuyler
addressed a situation in which the defendant’s lawyers
concurrently represented two co-defendants with conflicting
interests. 466 U.S. at 337–38. See also Beets v. Scott, 65 F.3d 1258,
1265 (5th Cir. 1995) (“Cuyler, like all the other Supreme Court
cases that have discussed a lawyer’s conflict of interest, solely
concerned the representation of multiple clients.”). Although the
Supreme Court observed that “a possible conflict inheres in
almost every instance of multiple representation,” Cuyler, 446
U.S. at 348, it also concluded that “a reviewing court cannot
presume that the possibility for conflict has resulted in
ineffective assistance of counsel,” id. “Such a presumption would
preclude multiple representation even in cases where [a]
common defense . . . gives strength against a common attack.”
Id. (alteration and omission in original) (citation and internal
quotation marks omitted). The Court held that “[i]n order to
establish a violation of the Sixth Amendment, a defendant . . .
must demonstrate that an actual conflict of interest adversely
affected his lawyer’s performance.” Id.
20120900-CA 14 2015 UT App 243State v. Cheek
¶37 In this case, the “conflict” between Defendant and trial
counsel was not of the same nature as the conflict at issue in
Cuyler, i.e., one in which a division of loyalties between clients
impacts counsel’s representation. Although we recognize the
potential for an attorney’s interests to diverge from his or her
client’s interests in cases like the instant one, “the possibility of
conflict is insufficient to impugn a criminal conviction.” See id. at
350. Defendant must still demonstrate “that an actual conflict of
interest adversely affected [her] lawyer’s performance.” See id.
¶38 The limited number of courts faced with an ineffective-
assistance claim based on a sexual relationship have reached the
same conclusion. For example, in United States v. Babbitt, 22 M.J.
672 (A.C.M.R. 1986), a defense attorney admitted to engaging in
sexual relations with his client on the eve of the last day of trial.
See id. at 677. On appeal, the Army Court of Military Review
rejected the defendant’s argument that “an attorney’s sexual
relations with his client per se create an actual conflict of interest
which violates the client’s Sixth Amendment right to effective
assistance of counsel.” Id. The court noted that while it did not
condone the defense attorney’s conduct, which was a proper
subject for professional discipline, it was “not prepared to say
that the Sixth Amendment and the Sixth Commandment are
coextensive.” 4 Id. See id. n.7. See also, e.g., Ronald W. v. Gina P.W.,
No. 203503/2000, 2001 WL 1327323, at *3 (N.Y. Sup. Ct. Aug. 13,
4. We recognize that different religious traditions divide the Ten
Commandments in different ways. See Ten Commandments,
https://en.wikipedia.org/wiki/Ten_Commandments (last visited
August 18, 2015). But we interpret the Sixth Commandment
referenced by the court in United States v. Babbitt, 22 M.J. 672, 677
(A.C.M.R. 1986), to be “Thou shalt not commit adultery,” not
“Thou shalt not kill,” which is often cited as the Sixth
Commandment. See Ten Commandments, https://en.wikipedia.
org/wiki/Ten_Commandments (last visited Aug. 18, 2015).
20120900-CA 15 2015 UT App 243State v. Cheek
2001) (“There is no rule that sexual relations between defense
counsel and the defendant during his representation of the
defendant per se creates a conflict of interest which violates the
defendant’s right to effective assistance of counsel.”). The court
further concluded that “the conflict must be actual rather than
potential, which is to say that it must adversely affect the
lawyer’s performance.” Babbitt, 22 M.J. at 677.
¶39 In this case, Defendant argues that her sexual relationship
with trial counsel created an actual conflict of interest because it
violated rule 1.8(j) of the Utah Rules of Professional Conduct,
which provides, “A lawyer shall not engage in sexual relations
with a client that exploit the lawyer–client relationship.”
Utah R. Prof’l Conduct 1.8(j). “‘[S]exual relations’ means sexual
intercourse or the touching of an intimate part of another person
for the purpose of sexual arousal, gratification, or abuse[.]” Id. R.
1.8(j)(1).
¶40 The alleged behavior is no doubt a proper subject for
professional discipline, and indeed we are advised that the Utah
State Bar’s Office of Professional Conduct has filed a disciplinary
complaint against trial counsel. Nonetheless, the Utah Supreme
Court has previously held that “a violation of the Utah Rules of
Professional Conduct does not, by itself, constitute ineffective
assistance.” Menzies v. State, 2014 UT 40, ¶ 162, 344 P.3d 581.
Moreover, even though Defendant allegedly broke up with trial
counsel shortly before trial, it is well settled that an
“acrimonious relationship” between a defendant and her
counsel “is not the basis for a conflict of interest.” See Gardner v.
Holden, 888 P.2d 608, 621 (Utah 1994). See also State v. Graham,
2012 UT App 332, ¶ 28, 291 P.3d 243 (concluding that a
defendant who “repeatedly bickered on the record” with trial
counsel “clearly experienced ‘conflict’ in the colloquial sense”
but that this did not amount to a legal conflict of interest).
Rather, Defendant must establish that the sexual relationship
created an actual conflict. She must demonstrate that trial
counsel “was required to make a choice advancing his own
20120900-CA 16 2015 UT App 243State v. Cheek
interests to the detriment of his client’s interests.” State v. Taylor,
947 P.2d 681, 686 (Utah 1997) (citation and internal quotation
marks omitted). Importantly, Defendant “has the burden of
demonstrating with specificity that the actual conflict existed
and adversely affected [trial counsel’s] performance.” State v.
Brandley, 972 P.2d 78, 85 (Utah Ct. App. 1998). Defendant argues
that the alleged sexual relationship resulted in an actual conflict
in three ways: (1) it led counsel to have her sign a malpractice
waiver, (2) it “led him to attempt to rid himself of the case,” and
(3) it “caused him to betray the attorney–client privilege.”
¶41 Defendant first contends that the malpractice waiver
created a conflict of interest because it violated rule 1.8(h)(1) of
the Utah Rules of Professional Conduct, which prohibits a
lawyer from making “an agreement prospectively limiting the
lawyer’s liability to a client for malpractice unless the client is
independently represented in making the agreement.” Utah R.
Prof’l Conduct 1.8(h)(1). The signed waiver provides:
I, [Defendant], hereby waive[] any claims against
[trial counsel] and/or [trial counsel’s firm] for a
conviction in my Cedar City District Court case
. . . . I know I could plead guilty to one first degree
felony, aggravated robbery and enter the plea
without admitting culpability and all other charges
associated with this case would be dismissed. I
understand that if I go to trial on all charges [it is
trial counsel’s] legal opinion that I stand an
extremely high chance of being convicted on all
counts and that the prison time I would receive
may be substantially higher as well as the very real
possibility of being placed on the sex offender
registry for the rest of my life. Despite these risks, I
have chosen not to follow his advice. I wish to go
to trial. I understand that [trial counsel] is ready
willing and able to do the trial and he will give his
20120900-CA 17 2015 UT App 243State v. Cheek
best efforts in the trial, but despite those efforts he
feels this is an inadvisable course of action.
¶42 It is evident that the purpose of the waiver is
mischaracterized by Defendant. Its purpose was not to protect
trial counsel from malpractice claims generally but to explicitly
memorialize the fact that the decision to go to trial was
Defendant’s rather than trial counsel’s, and that it was a decision
that was contrary to trial counsel’s advice. Furthermore, even if
the waiver did violate rule 1.8(h)(1), it did not result in an actual
conflict. As previously discussed, “a violation of the Utah Rules
of Professional Conduct does not, by itself, constitute ineffective
assistance.” Menzies, 2014 UT 40, ¶ 162. And Defendant has
failed to show that trial counsel “made a choice advancing his
own interests” to her detriment—she has failed to indicate how
her alleged sexual relationship with trial counsel prompted trial
counsel to seek the waiver. See id. (citation and internal
quotation marks omitted). But more importantly, the language
of the waiver leads us to the opposite conclusion from that urged
by Defendant. The waiver was not an act of retaliation stemming
from Defendant’s and trial counsel’s failed relationship; it was
principally part of trial counsel’s effort to convince Defendant to
accept a favorable plea deal over going to trial—and, no doubt,
an attempt to make a record in the event Defendant rejected his
advice and later regretted it. Thus, trial counsel’s decision to
seek a waiver was not, as Defendant claims, an effort to put his
interests ahead of hers but, as hindsight confirms, a reasonable
choice on his part. See State v. Person, 2006 UT App 288, ¶ 17, 140
P.3d 584 (“To show that the alleged conflict adversely affected
trial counsel’s performance, Defendant must establish that (1)
other counsel likely would have approached the case differently
and (2) a tactical reason other than the alleged conflict [did not]
exist[ ] for [counsel’s] decisions.”) (alterations in original)
(citation and internal quotation marks omitted). Accordingly,
Defendant’s conflict-of-interest claim regarding the waiver fails.
20120900-CA 18 2015 UT App 243State v. Cheek
¶43 Second, Defendant contends that trial counsel attempted
to “rid himself of the case” by withdrawing from the case and
orchestrating the appearance of substitute counsel to take over
Defendant’s case. Defendant argues that trial counsel emailed
substitute counsel and suggested that she take over Defendant’s
case. According to Defendant, substitute counsel informed trial
counsel that she lacked experience with criminal cases because
she focused on civil litigation, and trial counsel nevertheless
“prepared and filed a substitution of counsel . . . in this
extraordinarily complicated and delicate criminal case less than
a month before trial began,” indicating that trial counsel “no
longer cared about the interests of his client.”
¶44 Even assuming that Defendant established the existence
of an actual conflict of interest, she has nonetheless failed to
demonstrate, or even allege, that trial counsel’s alleged actions
regarding substitute counsel “adversely affected trial counsel’s
performance.” See Person, 2006 UT App 288, ¶ 17. See also Taylor,
947 P.2d at 688 (concluding that the defendant failed to
demonstrate an actual conflict of interest where he “failed to
allege, let alone identify, anything in this particular case to
support the theory that his defense suffered”) (emphasis in
original). We note that although this sequence of events occurred
just a few weeks before Defendant’s trial, and that trial counsel
temporarily withdrew from the case, trial counsel had been
acting as counsel for Defendant for almost a year, and nothing in
the record indicates, nor has Defendant identified, how trial
counsel’s brief withdrawal from the case prevented him from
being adequately prepared for trial once he re-entered his
appearance. Defendant has also failed to identify how the break
in representation adversely affected the quality of trial counsel’s
actual representation at trial. In sum, even if a conflict existed,
Defendant has failed to demonstrate that it adversely affected
trial counsel’s performance. See State v. Brandley, 972 P.2d 78, 85–
86 (Utah Ct. App. 1998).
20120900-CA 19 2015 UT App 243State v. Cheek
¶45 Finally, Defendant contends that trial counsel’s
stipulation to the admissibility of a blood draw showing that
Defendant had used methamphetamine on the night of the
robbery “disregarded his duty to his client in an attempt to
forward his personal interest in gaining credibility with the
Court.”
¶46 After Defendant was arrested, a nurse drew her blood,
which tested positive for methamphetamine. In February 2009,
Defendant’s trial counsel successfully moved to suppress the
blood draw and test results. Subsequently, at Defendant’s trial,
several of the State’s witnesses testified about the effects of
methamphetamine, such as hallucinations, paranoia, and
jitteriness. Additionally, Davis, Suhr, and Blackner testified that
on the night of the Victim’s robbery, they saw Defendant use
methamphetamine. On the fourth day of trial, the prosecutor
stated that even though the blood draw evidence had been
suppressed, he had subpoenaed the nurse who had performed
the blood draw. He further explained that if Defendant chose to
testify and denied using methamphetamine, he would introduce
the blood draw evidence to impeach her testimony.
¶47 Later that afternoon, during a sidebar conference, trial
counsel told the court that Defendant “wants to testify” and
would “be admitting methamphetamine use.” The nurse,
however, was scheduled to go out of town that night, and
Defendant was not scheduled to testify until the next day. To
resolve the potential scheduling problem, trial counsel proposed
a contingent stipulation under which the defense agreed that if
Defendant testified she had not used methamphetamine, the
blood-draw evidence could be admitted in place of the nurse’s
in-court testimony. The next day, as promised, Defendant
testified that she had used methamphetamine. Consequently, the
stipulation was never disclosed to the jury.
¶48 Although trial counsel’s contingent stipulation is atypical,
Defendant has nevertheless failed to establish how her alleged
20120900-CA 20 2015 UT App 243State v. Cheek
sexual relationship with trial counsel led him to stipulate to the
contingent admission of the blood draw evidence. And even if
Defendant could demonstrate a causal connection, she has failed
to prove that no “tactical reason other than the alleged conflict”
existed. See State v. Person, 2006 UT App 288, ¶ 17, 140 P.3d 584(citation and internal quotation marks omitted). Here, we can
discern a tactical reason for trial counsel’s contingent stipulation.
First, Defendant had little to gain from denying that she used
methamphetamine, as several witnesses had already testified
that she did so on the night in question. But more importantly,
trial counsel used Defendant’s admitted methamphetamine use
during closing argument to explain her odd behavior on the
night she was arrested, i.e., why she sat silently in a dark corner
of Blackner’s garage for an hour after the police arrived. Relying
on testimony regarding methamphetamine’s side effects, trial
counsel emphasized that methamphetamine makes a person
“paranoid and scared” and more likely to “run away” and
“hide” when there are signs of trouble. Thus, by embracing
Defendant’s methamphetamine use, trial counsel was able to
attribute Defendant’s behavior on the night of the robbery,
including her efforts to hide from the police, to her
methamphetamine use as opposed to her involvement in the
more serious criminal activity. We therefore decline to view trial
counsel’s contingent stipulation as proof of an actual conflict.
¶49 In summary, we reject Defendant’s argument that trial
counsel labored under a conflict of interest due to his alleged
sexual relationship with Defendant. Defendant has failed to
establish that an actual conflict occurred, i.e., that trial counsel
was required to make a choice advancing his interests to her
detriment. See State v. Taylor, 947 P.2d 681, 686 (Utah 1997). And
in any event, she has failed to establish that the “alleged conflict
adversely affected trial counsel’s performance.” See Person, 2006
UT App 288, ¶ 17. The trial court concluded that trial counsel’s
performance at trial “was fair in all material respects.” While
trial counsel’s alleged sexual relationship with Defendant may
have violated the Utah Rules of Professional Conduct,
20120900-CA 21 2015 UT App 243State v. Cheek
Defendant has not demonstrated that it adversely affected his
representation of her interests. Consequently, Defendant is not
entitled to a presumption of prejudice under Cuyler and her
ineffective-assistance claim based on a conflict of interest fails.
The trial court did not err in denying her motion for new trial on
this basis.
B. Defendant Fails to Demonstrate That Trial Counsel Was
Ineffective Under Strickland.
¶50 The Sixth Amendment grants criminal defendants the
“right to the effective assistance of counsel.” Strickland v.
Washington, 466 U.S. 668, 686 (1984) (citation and internal
quotation marks omitted). See id. at 685. Under Strickland,
Defendant must demonstrate both that trial “counsel’s
performance was deficient” and that “the deficient performance
prejudiced the defense.” Id. at 687. We “must indulge a strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action might be considered sound trial strategy.” Id.
at 689 (citation and internal quotation marks omitted). Moreover,
“[t]o show prejudice . . . the defendant bears the burden of
proving that counsel’s errors actually had an adverse effect on
the defense and that there is a reasonable probability that, but
for counsel’s . . . errors, the result of the proceeding would have
been different.” State v. Ott, 2010 UT 1, ¶ 40, 247 P.3d 344(second omission in original) (citation and internal quotation
marks omitted). “If a defendant fails to establish either of the
two parts of the Strickland test, counsel’s assistance was
constitutionally sufficient, and we need not address the other
part of the test.” State v. Medina-Juarez, 2001 UT 79, ¶ 14, 34 P.3d
187.
¶51 Defendant first contends that even if her conflict-of-
interest claim fails, the four issues raised there should be
separately analyzed under Strickland. Defendant offers no
20120900-CA 22 2015 UT App 243State v. Cheek
additional analysis under Strickland with regard to these four
claims. She simply asserts, “This section incorporates by
reference all preceding section[s] of the argument[.]” However,
we previously concluded that Defendant is not entitled to a
presumption of prejudice under Cuyler. See supra ¶ 49.
Consequently, because Defendant has failed to include any
specific prejudice analysis, let alone demonstrated prejudice,
with regard to these four claims, her ineffective-assistance claims
necessarily fail under Strickland. See Medina-Juarez, 2001 UT 79,
¶ 14.
¶52 Defendant also alleges numerous additional instances of
ineffective assistance of counsel to be evaluated under Strickland.
We discuss each in turn.
¶53 First, Defendant argues that trial counsel was ineffective
when he “failed to adequately investigate, as evidenced by his
failure to issue timely subpoenas.” Specifically, she asserts that
trial counsel did not issue a subpoena for a “single witness”
because he believed “the matter would be continued.” But trial
counsel did call and examine several witnesses. We therefore
presume that Defendant’s claim is that trial counsel should have
called additional witnesses. However, because Defendant “does
not identify the [additional] witnesses or the content of their
expected testimony,” she has failed to establish either deficient
performance or prejudice. See State v. Gunter, 2013 UT App 140,
¶ 33, 304 P.3d 866.
¶54 Second, Defendant argues that trial counsel was
ineffective when he failed to give proper notice of an alibi
witness—Defendant’s father. Beyond Defendant’s bare assertion
that the alibi witness could “provide exculpatory testimony
pertaining to the theft and credit card related charges,”
Defendant has not stated what the alibi witness’s testimony
would be or how that testimony would have created a
reasonable likelihood of a different outcome at trial.
20120900-CA 23 2015 UT App 243State v. Cheek
Accordingly, Defendant has again failed to establish either
deficient performance or prejudice.
¶55 Third, Defendant argues that “[t]rial counsel was
ineffective when he failed to object to Sergeant Sheldon Barney’s
expert testimony” when Barney was asked “to testify about the
effects of methamphetamine, and to opine as to whether Tiffani
Davis and/or [Defendant] exhibited signs of drug intoxication,
and conversely if [the Victim’s] jitters were unrelated to drug
intoxication.” Specifically, Defendant asserts that “[n]o
foundation was ever provided for Mr. Barney’s expertise, nor
was he ever noticed to be an expert witness.”
¶56 Our review of the record indicates that Sergeant Barney
was not initially called to testify as an expert witness even
though he arguably veered into giving expert testimony when
he testified about the effects of methamphetamine. Nevertheless,
even if trial counsel performed deficiently by not objecting to
questions about the effects of methamphetamine, Defendant has
not established how objecting to Barney’s testimony would have
created a reasonable likelihood of a different result at trial, see
Medina-Juarez, 2001 UT 79, ¶ 15, 34 P.3d 187, especially given that
the jury heard testimony from two other witnesses about the
effects of methamphetamine. And nothing in the record suggests
that Barney would not have been qualified as an expert witness
had trial counsel objected.
¶57 Likewise, Defendant has not established how objecting to
a question from the jury about whether Davis or Defendant
appeared to be on methamphetamine on the night of the robbery
would have created a reasonable likelihood of a different result
at trial. See id. This is especially so where, as here, Defendant
admitted to using methamphetamine during her testimony and
trial counsel embraced her methamphetamine use during closing
argument to explain her odd behavior on the night she was
arrested. Consequently, this ineffective-assistance claim fails for
lack of prejudice.
20120900-CA 24 2015 UT App 243State v. Cheek
¶58 Finally, Defendant argues that “[t]rial counsel was
ineffective when he failed to argue that the aggravated robbery
and aggravated kidnapping charges should merge.” Defendant
was convicted on July 16, 2010. On July 20, 2010, trial counsel
filed a motion to withdraw, stating, “Client wishes to hire other
counsel.” On August 3, 2010, the trial court denied, without
prejudice, trial counsel’s motion to withdraw. But on August 11,
2010, another attorney entered an appearance as Defendant’s
counsel and filed a motion to vacate Defendant’s aggravated
kidnapping conviction. Thereafter, on August 25, 2010,
Defendant’s current counsel entered an appearance as
Defendant’s counsel. Before Defendant’s sentencing, current
counsel filed a motion to arrest judgment, arguing that (1)
Defendant’s aggravated kidnapping charge should merge into
her aggravated robbery charge and (2) her aggravated assault
charge should merge into her aggravated robbery charge under
the lesser-included-offense doctrine. The trial court merged
Defendant’s aggravated assault and aggravated robbery charges
but declined to merge the aggravated kidnapping and
aggravated robbery charges. Defendant’s claim that trial counsel
was ineffective for failing “to argue that the aggravated robbery
and aggravated kidnapping charges should merge” is,
accordingly, without merit.
¶59 While the argument is a bit confusing, to the extent
Defendant intends to argue that trial counsel should have made
a merger argument before trial, Defendant misunderstands the
law. “Courts apply the merger doctrine as one means of
alleviating the concern of double jeopardy that a defendant
should not be punished twice for the same crime.” State v. Lopez,
2004 UT App 410, ¶ 8, 103 P.3d 153. However, “[t]he merger
doctrine does not apply before trial because the double jeopardy
protections attach only when an accused is put on trial . . . and a
jury has been sworn and impaneled.” Id. (omission in original)
(citation and internal quotation marks omitted). Therefore, “the
protections provided by the merger doctrine are not applicable
before trial.” Id. “The trial court cannot assess whether . . . one
20120900-CA 25 2015 UT App 243State v. Cheek
charge merges into another until the prosecution has presented
its case and the jury has convicted the defendant of multiple
charges.” Id. Thus, trial counsel was not ineffective for failing to
make a pretrial motion to merge the charges. See id. ¶ 9.
¶60 Moreover, to the extent Defendant is arguing that trial
counsel should have made a merger argument after her
conviction, this claim is equally without merit because
Defendant’s current counsel entered an appearance and moved
to arrest judgment, before sentencing, on the same grounds
Defendant now faults trial counsel for failing to argue. The trial
court ruled on Defendant’s merger arguments on the merits and
even merged her aggravated assault and aggravated robbery
charges. And Defendant does not assert that the trial court erred
in its rulings. Consequently, Defendant’s ineffective-assistance
claim fails because she has not established how an earlier merger
motion, as opposed to the one current counsel filed, would have
created a reasonable likelihood of a better result for Defendant.
Accordingly, the trial court did not err in denying Defendant’s
motion for new trial on ineffective-assistance grounds.
III. The Trial Court Did Not Err When It Consolidated the
Robbery and Theft Cases.
¶61 Defendant next argues that the trial court erred when it
“improperly consolidated two separate criminal episodes into
one trial,” i.e., the robbery and theft cases. 5 This claim is
unpreserved and therefore she seeks review under the plain
error exception to the preservation requirement. See State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346. “Plain error is error that is
both harmful and obvious.” State v. Emmett, 839 P.2d 781, 785
(Utah 1992).
5. The “theft” case included the charges for theft of a firearm and
unlawful acquisition of a financial card.
20120900-CA 26 2015 UT App 243State v. Cheek
¶62 Under the doctrine of invited error, however, Utah courts
“have declined to engage in even plain error review when
counsel, either by statement or act, affirmatively represented to
the [trial] court that he or she had no objection to the
[proceedings].” State v. Winfield, 2006 UT 4, ¶ 14, 128 P.3d 1171(alterations in original) (citation and internal quotation marks
omitted). “The ‘invited-error’ doctrine prohibits a party from
setting up an error at trial and then complaining of it on appeal.”
State v. Layman, 953 P.2d 782, 785 (Utah Ct. App. 1998) (citation
and additional internal quotation marks omitted).
¶63 Here, the State and trial counsel agreed to consolidate the
robbery and theft cases. At a June 22, 2010 hearing, the trial court
expressed its understanding that “the State and the defense have
agreed” that the two cases would be “consolidated.” Trial
counsel replied, “That’s correct, your Honor.” Thus, trial counsel
expressly agreed to the consolidation, and we conclude that even
if the trial court erroneously consolidated the two cases, the error
was invited.
¶64 Defendant also asserts, in a single sentence, that “should
the Court find that Trial Counsel invited the error made by the
trial court, such invitation is further demonstration of the
ineffectiveness of his overall representation.” While the
argument lacks focus, to the extent Defendant means to raise an
additional ineffective-assistance claim, her claim is inadequately
briefed. See State v. Perea, 2013 UT 68, ¶ 120, 322 P.3d 624 (“[A]n
issue is inadequately briefed when it merely contains bald
citation[s] to authority [without] development of that authority
and reasoned analysis based on that authority.”) (second and
third alterations in original) (citation and internal quotation
marks omitted); Utah R. App. P. 24(a)(9). Defendant has not
cited any authority for this argument, let alone provided any
analysis. Accordingly, we decline to further address Defendant’s
assertion that trial counsel was ineffective for agreeing to
consolidate the robbery and theft cases.
20120900-CA 27 2015 UT App 243State v. Cheek
¶65 Defendant asserts an additional ineffective-assistance
claim related to her joinder argument. She contends that “[t]rial
counsel was ineffective when he failed to object to inadmissible
character evidence” under rule 404(b) of the Utah Rules of
Evidence. Specifically, she argues that trial counsel should have
objected to testimony regarding other alleged illegal acts she
committed at Brian Head Ski Resort and that the testimony
prejudiced her “by allowing the jury to convict her by
inference—once a thief always a thief.” To establish her claim of
ineffective assistance of counsel, Defendant “must show that
counsel’s performance was deficient” and that “the deficient
performance prejudiced the defense.” Strickland v. Washington,
466 U.S. 668, 687 (1984).
¶66 “While Utah Rule of Evidence 404(b) excludes evidence of
prior bad acts to show that a defendant acted in conformity with
those acts, it does allow admission of prior crimes, wrongs, or
acts to prove, among other things, intent.” State v. Johnson, 784
P.2d 1135, 1141 (Utah 1989). See also Utah R. Evid. 404(b). But if
prior bad acts were committed at “the beginning of a string of
events all closely related in time that ended with” the charges at
issue, evidence of those prior bad acts is admissible as “part of a
single criminal episode.” See Johnson, 784 P.2d at 1141. Moreover,
“if the evidence has relevancy to explain the circumstances
surrounding the instant crime, it is admissible for that purpose;
and the fact that it may tend to connect the defendant with
another crime[, wrong, or act] will not render it incompetent.” Id.
(alteration in original) (citation and internal quotation marks
omitted). Here, the other alleged thefts occurred during the same
crime spree that resulted in the two theft charges at issue in this
case, i.e., the other alleged thefts occurred on the same nights
during which Defendant stole the handgun, credit card, and gas
card from cars at Brian Head Ski Resort.
¶67 Because the alleged instances of theft were committed at
“the beginning of a string of events all closely related in time” to
Defendant’s charges for theft of a firearm and unlawful
20120900-CA 28 2015 UT App 243State v. Cheek
acquisition of a financial card, see id., we conclude that any
objection based on rule 404(b) would have been futile, see
Codianna v. Morris, 660 P.2d 1101, 1109 (Utah 1983) (“The failure
of counsel to make motions or objections which would be futile
if raised does not constitute ineffective assistance.”) (citation and
internal quotation marks omitted). In this case, the testimony
pertaining to the alleged instances of theft was relevant to show
Defendant’s intent and “to explain the circumstances
surrounding the instant crime,” see Johnson, 784 P.2d at 1141
(citation and internal quotation marks omitted), i.e., Defendant’s
theft of the handgun, gas card, and credit card. Accordingly, trial
counsel did not perform deficiently when he did not object.
¶68 Defendant also claims that trial counsel was ineffective for
not objecting to the testimony of a man whose checkbook was
stolen from his car at Brian Head Ski Resort between December
22 and 27 of 2010. But trial counsel did object to the man’s
testimony, and the trial court overruled his objection, agreeing
with the State that (1) the man’s testimony was relevant because
“the time frame and . . . where it was located” made it more
likely that Defendant was “the one that was in Brian Head
taking the property” and (2) its prejudicial impact did not
outweigh its probative value. On appeal, Defendant has not
directly challenged this ruling. Accordingly, we decline to
address this argument any further and conclude that Defendant
has not demonstrated that trial counsel was ineffective in this
regard.
IV. The Trial Court Did Not Err When It Denied Defendant’s
Motion for New Trial Based on Newly Discovered Evidence.
¶69 Defendant argues that the trial court “abused its
discretion by failing to order a new trial based upon newly
discovered evidence.” In her motion for new trial, Defendant
claimed that her former cellmate would testify that Davis told
her that she had fabricated her claims against Defendant.
20120900-CA 29 2015 UT App 243State v. Cheek
Defendant supported her claim with a handwritten letter,
allegedly written by the cellmate.
¶70 At an evidentiary hearing, the cellmate testified that she
had written the letter. However, when the prosecutor produced
two additional sets of handwritten notes during cross-
examination—one in the cellmate’s handwriting and one in
Defendant’s handwriting—the cellmate claimed that she
dictated the note that was in Defendant’s handwriting to
Defendant and that Defendant dictated the note that was in the
cellmate’s handwriting. The cellmate then expressed confusion,
stating that she did not “really recall” anything. But then she
backtracked and agreed with the prosecutor that Defendant
wrote an account of Davis’s alleged recantation, which she then
copied when writing her letter. On re-direct, she shifted course
again and stated that Davis had recanted. She then expressed
more confusion, stating, “I don’t really recall any of this. . . .
Yeah, I don’t know who these people are. I don’t know who this
is.”
¶71 The State then called a detective, who testified that he had
met with the cellmate twice to discuss the letters. He testified
that in the first meeting, the cellmate denied the existence of any
letter but that in the second meeting she told him that Defendant
had dictated what she should write. The cellmate told the
detective that she cooperated because she was afraid
Defendant’s family would hire someone to hurt her family since
they “had money” and because Defendant had contacts within
the jail.
¶72 “We afford trial judges a wide range of discretion in
determining whether newly discovered evidence warrants the
grant of a new trial.” State v. Pinder, 2005 UT 15, ¶ 66, 114 P.3d
551 (citation and internal quotation marks omitted). This is
partly due to “the superior position the trial judge holds when
assessing the credibility of the new evidence, an essential
component of the determination of whether the evidence would
20120900-CA 30 2015 UT App 243State v. Cheek
make a different result on retrial probable.” Id. Therefore, “it is
proper for the trial court, when confronted with a motion for a
new trial due to newly discovered evidence, to consider the
credibility of new witnesses as well as the manner in which new
evidence meshes or clashes with evidence presented at trial.” Id.
¶ 67.
Evidence must meet three criteria in order to
constitute grounds for a new trial: (1) [i]t must be
such as could not with reasonable diligence have
been discovered and produced at the trial; (2) it
must not be merely cumulative; [and] (3) it must be
such as to render a different result probable on the
retrial of the case.
State v. Montoya, 2004 UT 5, ¶ 11, 84 P.3d 1183 (alterations in
original) (citation and internal quotation marks omitted).
¶73 The trial court concluded that the cellmate’s account of
Davis’s “alleged perjury is mere impeachment evidence that
would not likely have affected the result at trial, given the
number of witnesses supporting Ms. Davis’s account.” We
readily agree.
¶74 The cellmate’s testimony was seriously flawed, and her
varying accounts regarding the source of the letter’s content was
reason enough for the trial court to question her credibility as a
witness. See Pinder, 2005 UT 15, ¶ 67. Moreover, “[a]s a general
rule, newly discovered evidence does not warrant a new trial
where its only use is impeachment.” State v. Boyd, 2001 UT 30,
¶ 28, 25 P.3d 985. Here, the cellmate did not have any personal
knowledge of the case. Thus, “[a]t best, the new revelations
could serve only to impeach” Davis’s testimony. See id. And
even if we were to disregard this rule, Defendant cannot
demonstrate that a different result is likely upon retrial, see
Montoya, 2004 UT 5, ¶ 11, because there was ample evidence
beyond Davis’s testimony that supported Defendant’s
convictions, see State v. Wengreen, 2007 UT App 264, ¶ 27, 167
20120900-CA 31 2015 UT App 243State v. Cheek
P.3d 516. For example, the jury heard the Victim’s first-hand
testimony about Defendant’s role in her assault and robbery,
Blackner’s corroborating testimony, testimony from the officers
who found Defendant hiding in the garage, and the officers’
accounts of Defendant’s shifting stories. Therefore, even
assuming Defendant could satisfy the first two prongs of the
newly-discovered-evidence test, the trial court did not abuse its
discretion in concluding that the evidence regarding Davis’s
recantation after trial, especially when offered by a witness who
did not “really recall any of this” and who did not “know who
these people are,” would be unlikely to lead to a different result
on retrial. See Montoya, 2004 UT 5, ¶ 11. We affirm the trial
court’s decision to deny Defendant’s motion for new trial based
on newly discovered evidence.
V. The Trial Court Did Not Err When It Denied Defendant’s
Motion for New Trial Based on Alleged Cumulative Error.
¶75 Finally, although the argument is somewhat unclear,
Defendant appears to assert that the doctrine of cumulative error
applies. Defendant contends that the trial court improperly
denied her motion for new trial, claiming: “While [Defendant]
argues that several of the individual errors are, by themselves,
sufficient to merit reversal, . . . one wonders what it would take
for the trial court to find for a defendant in this situation.”
“Under the cumulative error doctrine, we will reverse only if the
cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.” State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). “In assessing a claim of
cumulative error, we consider all the identified errors, as well as
any errors we assume may have occurred.” Id. Although we did
not determine that there were any errors in this case, aside from
the invited one, we did assume error in multiple instances.
Nevertheless, we conclude that the cumulative effect of the
assumed errors does not undermine our confidence in the
essential fairness of Defendant’s trial. See id. Therefore, the trial
20120900-CA 32 2015 UT App 243State v. Cheek
court did not err in denying Defendant’s motion for new trial on
this basis.
CONCLUSION
¶76 We conclude that the trial court did not plainly err in
failing to order a defense witness to testify at trial. Nor was trial
counsel ineffective for failing to ask the trial court to compel the
witness’s testimony.
¶77 We affirm the trial court’s denial of Defendant’s motion
for new trial on the grounds of ineffective assistance of counsel.
Trial counsel’s alleged sexual relationship with Defendant, while
inappropriate under the Utah Rules of Professional Conduct, did
not result in an actual conflict of interest as a matter of law.
Additionally, under Strickland, Defendant failed to establish
deficient performance, prejudice, or both for her remaining
ineffective-assistance claims.
¶78 The trial court did not err when it consolidated
Defendant’s robbery and theft cases because any error was
invited by trial counsel. And Defendant’s ineffective-assistance
claim pertaining to the consolidation is inadequately briefed.
¶79 We affirm the trial court’s denial of Defendant’s motion
for new trial based on newly discovered evidence. The evidence
did not render a different result probable on retrial.
¶80 Finally, the trial court did not err when it denied
Defendant’s motion for new trial on the ground of cumulative
error. The cumulative effect of the assumed errors does not
undermine our confidence in the fairness of Defendant’s trial.
¶81 Affirmed.
20120900-CA 33 2015 UT App 243