Does failing to file a futile motion constitute ineffective assistance of counsel? State v. Makaya Explained

In State v. Makaya, the Utah Court of Appeals addressed whether trial counsel’s failure to move for a directed verdict can constitute ineffective assistance of counsel when such a motion would have been futile.

Background and Facts

Nephi Makaya caused his pregnant girlfriend’s death by driving around lowered railroad crossing gates directly into the path of an oncoming FrontRunner train. After waiting briefly at the activated guard gate, Makaya reversed 115 feet, drove around a concrete median into the opposing traffic lane, and accelerated toward the tracks. Video evidence showed he was traveling 27-29 mph upon impact and had not attempted to brake. His girlfriend was thrown from the vehicle and killed. Makaya was charged with manslaughter and convicted by a jury, despite arguing he was only guilty of the lesser offense of negligent homicide.

Key Legal Issues

On appeal, Makaya claimed ineffective assistance of counsel because his attorney failed to move for a directed verdict on the manslaughter charge. The key distinction between manslaughter and negligent homicide lies in the defendant’s mental state: manslaughter requires proof the defendant acted recklessly (aware of but consciously disregarding a substantial risk), while negligent homicide requires only criminal negligence (should have been aware of the risk).

Court’s Analysis and Holding

The court applied the Strickland test, requiring proof of both deficient performance and prejudice. However, the court found Makaya could establish neither prong because a directed verdict motion would have been futile. The State presented ample evidence from which a reasonable jury could find Makaya was aware of the substantial risk: he saw lowered crossing gates with flashing lights, backed up to circumvent safety devices, drove into oncoming traffic, and accelerated rather than stopping. The court emphasized that “failure to raise futile objections does not constitute ineffective assistance of counsel.”

Practice Implications

This decision reinforces that ineffective assistance claims based on counsel’s failure to file motions must demonstrate the motion had a reasonable chance of success. Attorneys cannot be faulted for strategic decisions to avoid futile motions. For practitioners, this case illustrates the importance of carefully analyzing the sufficiency of evidence before claiming counsel should have moved for directed verdict, as such claims will fail when the record contains sufficient evidence to support conviction.