Can counsel be ineffective for not requesting imperfect self-defense instructions in Utah? State v. Barlow Explained

The Utah Court of Appeals recently addressed whether trial counsel’s strategic decisions regarding jury instructions and witness examination can constitute ineffective assistance of counsel in State v. Barlow. The case provides important guidance for appellate practitioners on the Strickland standard and strategic decision-making in criminal defense.

Background and Facts

Barlow shot two men after believing one had stolen a scooter from him. Armed with a handgun and wearing a ski mask, Barlow confronted the victims at a warehouse. During the encounter, he shot both men, leaving one paralyzed. The State charged Barlow with attempted murder and felony discharge of a firearm. At trial, counsel obtained a perfect self-defense instruction but did not request an imperfect self-defense instruction, nor did counsel cross-examine one victim about his use immunity agreement for unrelated crimes.

Key Legal Issues

Barlow raised two ineffective assistance claims: (1) counsel’s failure to request an imperfect self-defense instruction, and (2) counsel’s failure to cross-examine a witness about his immunity agreement. Both claims required analysis under the two-prong Strickland test: deficient performance and resulting prejudice.

Court’s Analysis and Holding

The court affirmed, finding no ineffective assistance. On the instruction issue, the court declined to address deficient performance because Barlow failed to demonstrate prejudice. Given the overwhelming evidence against Barlow—including threatening voicemails, his armed confrontation of unarmed victims, and shooting from close range—the court found no reasonable probability the jury would have reached a different verdict with an imperfect self-defense instruction. On the immunity agreement, the court found no deficient performance because the agreement covered unrelated crimes that did not affect the witness’s credibility, and introducing it could have made the jury less sympathetic to Barlow.

Practice Implications

This decision reinforces that strategic choices by competent counsel are virtually unassailable on appeal. When challenging instruction decisions, practitioners must demonstrate actual prejudice, not merely theoretical benefits. The court’s analysis also shows that even sympathetic ineffective assistance arguments will fail without concrete evidence that counsel’s performance affected the outcome.