State v. Hill

2018 UT App 140
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
M ICHAEL R OBERT HILL,
Appellant.
Opinion
No. 20160489-CA
Filed July 19, 2018
Sixth District Court, Manti Department
The Honorable Marvin D. Bagley
No. 141600182
Douglas L. Neeley, Attorney for Appellant
Sean D. Reyes and Thomas Brunker, Attorneys
for Appellee
JUDGE M ICHELE M. C HRISTIANSEN authored this Opinion, in
which JUDGES K ATE A. TOOMEY and JILL M. POHLMAN concurred.
CHRISTIANSEN, Judge:
¶1 	Defendant Michael Robert Hill appeals his convictions for
burglary and theft by receiving stolen property. We affirm.
BACKGROUND
¶2 	On September 18, 2014, Hill accompanied his girlfriend
(Girlfriend) to a cabin owned by her ex-boyfriend (Victim). Hill
assisted Girlfriend in removing a number of items from the
cabin, including guns, ammunition, a compound bow, men’s
outdoor clothing, fishing poles, binoculars, candles, and beach
towels.

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¶3 	Victim 	reported 	the 	items 	missing. 	When 	police
investigated, they found a broken window and pry marks on the
front door deadbolt. Victim suspected that Hill and Girlfriend
were responsible, and he provided police with photographs of
them and their vehicle. Eyewitnesses who had observed a man
and woman carrying property to a vehicle near the cabin on the
day of the robbery identified Hill, Girlfriend, and their vehicle.
Police discovered that Hill had pawned the compound bow, and
they also found several more of the stolen items both in the
house Hill shared with a roommate and in the roommate’s car.
¶4 	During a police interview, Hill admitted that he helped
Girlfriend remove the items from the cabin, but he insisted that
he believed they belonged to her. He claimed he did not initially
accompany Girlfriend to the cabin but only helped her carry the
items to the vehicle after they had already been removed from
the cabin. He claimed he never saw the broken window. He also
claimed he had pawned the bow on Girlfriend’s behalf.
¶5 	The 	State 	charged 	Hill 	with 	second-degree-felony
burglary 	and 	second-degree-felony 	theft by 	receiving 	stolen
property. The State subpoenaed Girlfriend to testify at trial, but
she 	refused 	to 	appear, 	asserting 	her 	right 	against 	self-
incrimination. Following trial, the jury convicted Hill of second-
degree-felony 	burglary 	and 	third-degree-felony 	theft 	by
receiving stolen property.
¶6 	Hill moved for a new trial. He asserted that his counsel
performed ineffectively by failing to (1) call Girlfriend to testify,
(2) introduce into evidence an email written five months after
the burglary that Victim purportedly sent to Girlfriend, and
(3) introduce a recording of Girlfriend’s police interview.
¶7 	After an evidentiary hearing, the district court denied
Hill’s motion for a new trial. The court reasoned that Hill had
failed to prove that Girlfriend would have testified even if she
had 	been 	called 	by 	the 	defense, 	that 	counsel 	had 	acted
appropriately in choosing not to introduce the email because it

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20160489-CA 	3 	2018 UT App 140
was 	fabricated, 	and 	that 	Girlfriend’s 	police 	interview 	was
unhelpful 	to 	the 	defense 	because 	it 	included 	statements
contradicting Hill’s trial testimony. Hill 	appeals the district
court’s ruling.
ISSUE AND STANDARD OF REVIEW
¶8 	Hill asserts that the district court erred in denying his
motion for a new trial. In reviewing an appeal from the denial of
a motion for a new trial based on ineffective assistance of
counsel, we review the district court’s factual findings for clear
error and its application of the law to the facts for correctness.
See State v. J.A.L., 2011 UT 27, ¶ 20, 262 P.3d 1.
ANALYSIS
¶9 	As he did in his motion for a new trial, Hill asserts on
appeal that his counsel performed deficiently at trial by failing to
call Girlfriend as a witness, by failing to introduce into evidence
an 	email 	purportedly written 	by 	Victim, 	and 	by 	failing 	to
introduce Girlfriend’s police interview. To establish ineffective
assistance 	of 	counsel, 	Hill 	must 	demonstrate, 	first, 	“that
counsel’s performance was deficient” and, second, “that the
deficient performance prejudiced the outcome of his case.” See
State v. J.A.L., 2011 UT 27, ¶ 25, 262 P.3d 1 (quotation simplified);
see also Strickland v. Washington, 466 U.S. 668, 687 (1984).
¶10 	First, Hill argues that his trial counsel should have called
Girlfriend as a witness at trial. Hill claims that Girlfriend would
have 	corroborated 	his assertion 	that 	he believed 	the 	stolen
property 	belonged 	to 	her, 	and 	that 	his 	counsel 	did 	not
adequately investigate or make reasonable efforts to secure her
testimony.
¶11 	“If 	counsel 	does 	not 	adequately 	investigate 	the
underlying 	facts 	of 	a 	case, 	including 	the 	availability 	of

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20160489-CA 	4 	2018 UT App 140
prospective defense witnesses, counsel’s performance cannot fall
within the ‘wide range of reasonable professional assistance.’”
State v. Templin, 805 P.2d 182, 188 (Utah 1990) (quoting Strickland,
466 U.S. at 686). But in this case, Hill’s counsel was precluded
from 	obtaining 	Girlfriend’s 	testimony 	not 	by 	his 	failure 	to
investigate, but by Girlfriend’s refusal to appear at trial. Hill’s
counsel intended to question Girlfriend and even requested a
continuance 	when 	she 	refused 	to 	comply 	with 	the 	State’s
subpoena. 	The 	court 	determined, 	both 	at 	the 	time 	of 	trial
counsel’s 	continuance 	motion 	and 	at 	the 	hearing 	on 	Hill’s
motion for a new trial, that Girlfriend’s refusal to comply with
the State’s subpoena on Fifth Amendment grounds made it
unlikely that she would comply with a subpoena from the
defense and testify at trial. Given Girlfriend’s refusal to comply
with the State’s subpoena, we agree with the district court that
any attempt by trial counsel to subpoena her would have been
futile, and the failure of counsel to undertake futile acts does not
constitute ineffective assistance. See State v. Gunter, 2013 UT App
140, ¶ 35, 304 P.3d 866 (“There is no requirement that counsel
engage in futile acts.”).
¶12 	Hill next asserts that his counsel should have introduced
an email purportedly written by Victim to Girlfriend five months
after the burglary. The email apparently stated Victim’s desire to
divide his property with Girlfriend. At the evidentiary hearing
on Hill’s motion for a new trial, Victim testified that he did not
write the email and that Girlfriend had access to his email
account and password. Victim reported the email to police
within twenty-four hours of discovering it. The court found
Victim’s testimony credible, further observing that Girlfriend
had motivation to falsify the email. Hill has failed to challenge
these findings on appeal.
¶13 	In any event, as noted, the email was sent nearly five
months after the burglary, and Hill therefore could not have
relied upon it as support for his assertion that it influenced his
belief that the property belonged to Girlfriend at the time of the
burglary. Rather, the email’s only potential usefulness would

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have been to establish that the property belonged to Girlfriend.
Given the district court’s finding that the email was fabricated,
we conclude that counsel did not perform ineffectively by not
seeking to admit the email. Indeed, a reasonable attorney could
have concluded that the jury was likely to draw a negative
inference from the email—that Girlfriend actually forged the
email because the property did not belong to her. See State v.
Taylor, 947 P.2d 681, 687 (Utah 1997) (holding that counsel need
not introduce potential mitigating evidence if counsel “believes
after a thorough investigation that it will harm the case or if
other strategic reasons for its omission exist”).
¶14 	Finally, Hill asserts that his counsel performed deficiently
by 	failing 	to 	review 	and 	introduce 	the 	audio 	recording 	of
Girlfriend’s police interview. After reviewing the recording, the
district court found that attempting to use that information at
trial would not have been helpful to Hill because Girlfriend
“made 	statements 	in 	her 	interview 	that 	in 	many 	ways
contradicted [Hill’s] testimony at trial as well as both [Hill’s and
her own] interview statements.” Hill has failed to challenge the
district court’s finding, asserting only that his counsel performed
deficiently by failing to review the recording. But we need not
determine whether counsel performed deficiently, because Hill
has failed to assert that he was prejudiced by counsel’s actions.
See Archuleta v. Galetka, 2011 UT 73, ¶ 41, 267 P.3d 232 (“In the
event it is ‘easier to dispose of an ineffectiveness claim on the
ground of lack of sufficient prejudice,’ we will do so without
analyzing whether counsel’s performance was professionally
unreasonable.” 	(quoting 	Strickland, 	466 	U.S. 	at 	697)).
Accordingly, Hill has not established that his counsel’s failure to
introduce 	the 	police 	interview 	at 	trial 	rose 	to 	the 	level 	of
ineffective assistance of counsel.
CONCLUSION
¶15 	We 	determine 	that 	Hill 	did 	not 	receive 	ineffective
assistance of counsel because it would have been futile for

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defense counsel to subpoena Girlfriend, because the decision to
omit the email from evidence was sound trial strategy, and
because Hill has not established that he was prejudiced by
counsel’s 	failure 	to 	introduce 	Girlfriend’s 	police 	interview.
Accordingly, we affirm.