Can defense counsel stipulate to damaging evidence as trial strategy? State v. Greenway Explained

In State v. Greenway, the Utah Court of Appeals addressed whether defense counsel provided ineffective assistance by stipulating to the admission of damaging text messages and phone calls rather than objecting under Utah Rule of Evidence 404(b).

Background and Facts

Spencer Greenway killed his girlfriend’s friend Aaron after discovering sexually explicit text messages between them. The State sought to introduce numerous text messages sent months and days before the murder showing Greenway’s threats against Aaron, as well as recorded jail phone calls where Greenway made additional threats. Defense counsel stipulated to admission of all these exhibits rather than objecting under rule 404(b). The jury convicted Greenway of murder under theories of intending serious bodily injury and acting with depraved indifference to human life.

Key Legal Issues

Greenway argued counsel was ineffective for failing to object to the text messages and phone calls under rule 404(b), which generally prohibits character evidence but allows evidence for other purposes like proving motive, intent, or preparation. To establish ineffective assistance, Greenway had to prove both deficient performance and prejudice.

Court’s Analysis and Holding

The court held that counsel’s performance was not deficient regarding the text messages. The messages were likely admissible under rule 404(b) to show motive and intent, meeting the three-part test: genuine noncharacter purpose, relevance, and probative value not substantially outweighed by unfair prejudice. For the more recent threatening messages, even if inadmissible, counsel reasonably used them strategically during cross-examination and closing argument to show Greenway made “outrageous threats” but “never followed through.” Regarding the jail phone calls, the court found no prejudice because the other evidence against Greenway was overwhelming.

Practice Implications

This decision reinforces that courts give “wide latitude” to tactical decisions and will not second-guess reasonable strategic choices. When facing potentially damaging evidence, practitioners should consider whether stipulating and reframing the evidence as part of the defense narrative may be more effective than losing an evidentiary objection and having the evidence come in anyway without the benefit of strategic presentation.