Can trial counsel be ineffective for failing to object to officer testimony about defendant's behavior? West Valley v. Drawn Explained

The Utah Court of Appeals recently addressed whether trial counsel renders deficient performance by failing to object to police officer testimony about a defendant’s behavior during investigation. In West Valley v. Drawn, the court clarified important distinctions between intrinsic evidence and other-acts evidence under Rule 404(b).

Background and Facts

Romeo Drawn was convicted of assault with substantial injury after fighting with his ex-partner’s boyfriend at their son’s baseball game. During trial, a police officer testified extensively about Drawn’s behavior during the investigation, including that Drawn was “animated and argumentative,” demanded that other parties leave, and made multiple 911 calls claiming he was “an unarmed Black man” afraid for his life. Drawn’s trial counsel did not object to this testimony. On appeal, Drawn claimed ineffective assistance of counsel based on counsel’s failure to exclude this and other character evidence.

Key Legal Issues

The court addressed whether trial counsel’s failure to object to officer testimony constituted deficient performance under two theories: (1) the testimony violated Rule 404(b) as improper other-acts evidence, and (2) the testimony should have been excluded under Rule 403 as unfairly prejudicial.

Court’s Analysis and Holding

The court held that the officer’s testimony was intrinsic evidence under State v. Blackwing because there was a “direct relationship between how Drawn interacted with Officer and the crime with which he was charged.” Evidence is intrinsic when there is a direct relationship between the act and the charged crime, and such evidence can arise from conduct occurring after the crime is completed. Because Rule 404(b) does not apply to intrinsic evidence, any objection on those grounds would have been futile, precluding a finding of deficient performance.

Regarding Rule 403, the court acknowledged that testimony about racial dynamics “risks inflaming passions and igniting conscious or subconscious biases,” but found counsel’s decision not to object was reasonable. The officer “spontaneously volunteered” potentially problematic testimony, and objecting risked invoking the “pink-elephant paradox“—drawing more attention to the harmful testimony through a curative instruction.

Practice Implications

This decision reinforces that defendant behavior during police investigations is typically intrinsic evidence not subject to Rule 404(b) restrictions. Practitioners should focus Rule 403 arguments on unfair prejudice rather than other-acts theories when challenging such testimony. The ruling also highlights the tactical considerations attorneys face when witnesses spontaneously offer problematic testimony—sometimes the cure of objection and curative instruction is worse than the disease.