When does failing to object to flight evidence constitute ineffective assistance of counsel? State v. Harter Explained

In State v. Harter, the Utah Court of Appeals examined whether defense counsel’s failure to object to various evidence and arguments constituted ineffective assistance of counsel. The case provides important guidance on when strategic decisions by counsel will be deemed reasonable trial tactics rather than deficient performance.

Background and Facts

Harter was convicted of unlawful detention, assault, and violation of a protective order after detaining his ex-girlfriend Nicole Hopping in an apartment for approximately five hours. During the incident, Harter threw Hopping across the room, hit and kicked her, and prevented her from leaving the bedroom. When police later attempted to speak with Harter, he immediately fled. At trial, the State presented evidence of Harter’s prior acts of violence against Hopping and argued during closing that his flight from police indicated guilt.

Key Legal Issues

Harter raised four ineffective assistance of counsel claims: (1) counsel failed to object to the State’s closing argument about his flight from police; (2) counsel failed to object to a police officer’s testimony about the age of bruises shown in photographs; (3) counsel failed to challenge two jurors who had previously been represented by the prosecutor; and (4) counsel failed to adequately object to admission of prior bad act evidence. Harter also argued the trial court committed plain error by not giving a curative flight instruction and abused its discretion in admitting the prior bad act evidence.

Court’s Analysis and Holding

The Court of Appeals applied the familiar Strickland test, requiring defendants to show both deficient performance and prejudice. Regarding the flight argument, the court found that avoiding a curative instruction could constitute sound trial strategy to prevent drawing additional attention to Harter’s flight. For the police officer’s testimony about bruise age, the court concluded that even if counsel’s performance was deficient, Harter could not show prejudice because the victim also testified about the bruises’ age and photographs were available for the jury’s review.

Concerning the potentially biased jurors, the court applied a strong presumption that counsel’s decision was a “plausibly justifiable conscious choice,” noting that counsel was clearly engaged during jury selection and questioned both jurors about their relationship with the prosecutor. Finally, the court found that counsel had sufficiently objected to the prior bad act evidence and that the trial court properly admitted it under Rule 404(b) for the non-character purpose of showing the victim’s state of mind and fear.

Practice Implications

This decision demonstrates the difficulty of succeeding on ineffective assistance claims when counsel’s decisions can be characterized as strategic choices. Defense attorneys should carefully document their strategic reasoning for key decisions during trial. The case also illustrates that prior bad act evidence may be admissible to show a victim’s state of mind when relevant to an element of the charged offense, such as whether detention was against the victim’s will in kidnapping cases.