Utah Court of Appeals
When does failing to conceal visible tattoos constitute ineffective assistance of counsel? State v. Heyen Explained
Summary
Lee Ervin Heyen was convicted of multiple rape counts involving two fifteen-year-old girls. He appealed, claiming ineffective assistance of counsel because his attorney failed to conceal his visible white supremacist tattoos during trial. The court affirmed, finding counsel’s strategic decision to leave tattoos exposed was reasonable.
Practice Areas & Topics
Analysis
Background and Facts
Lee Ervin Heyen was convicted of multiple rape counts involving two fifteen-year-old victims. During trial, Heyen’s white supremacist tattoos remained visible on his face and neck, including “SAC” on his forehead, “88” on his head, and a broken sun cross on his neck. Defense counsel stipulated to admission of photographs showing various tattoos but successfully excluded the swastika tattoo from evidence. Despite growing out his hair and wearing formal attire, several tattoos remained visible to jurors throughout the four-day trial.
Key Legal Issues
Heyen raised an ineffective assistance of counsel claim, arguing his attorney should have insisted on concealing the visible tattoos or requested cautionary jury instructions. He contended that allowing jurors to see the tattoos “essentially nullified” the court’s ruling excluding certain prejudicial tattoo evidence and undermined his defense strategy of challenging victim credibility.
Court’s Analysis and Holding
Applying the Strickland standard, the court found counsel’s performance was not deficient. The court identified several reasonable strategic justifications for leaving tattoos exposed: (1) photographic evidence would show the tattoos anyway, making concealment potentially counterproductive; (2) counsel used the tattoos strategically, arguing Heyen was “the easiest man to blame” because of his appearance; (3) transparency allowed effective voir dire screening to eliminate biased jurors; and (4) concealment might have appeared disingenuous given the defense’s use of penis tattoo evidence to challenge victim credibility.
Practice Implications
The decision demonstrates that trial strategy regarding visible tattoos receives considerable deference under Strickland analysis. Practitioners should document strategic reasoning for appearance-related decisions and consider how concealment efforts might conflict with other defense theories. The court’s analysis shows that apparent tactical disadvantages may actually serve legitimate strategic purposes when properly developed and executed.
Case Details
Case Name
State v. Heyen
Citation
2020 UT App 147
Court
Utah Court of Appeals
Case Number
No. 20180804-CA
Date Decided
October 29, 2020
Outcome
Affirmed
Holding
Trial counsel’s decision not to conceal defendant’s visible tattoos was objectively reasonable trial strategy and did not constitute ineffective assistance of counsel.
Standard of Review
De novo for ineffective assistance of counsel claims raised for the first time on appeal
Practice Tip
When challenging tattoo visibility as ineffective assistance, analyze whether concealment would have been consistent with defense strategy and whether photographic evidence would expose the tattoos regardless.
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