State v. Gedi

2013 UT App 133
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
HUSSEIN GEDI,
Defendant and Appellant.

Memorandum Decision
No. 20111099‐CA
Filed May 23, 2013

Third District, Salt Lake Department
The Honorable Judith S.H. Atherton
No. 111901194

Craig L. Pankratz and David M. Corbett, Attorneys
for Appellant
John E. Swallow and Brett J. DelPorto, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES GREGORY K. ORME and J. FREDERIC VOROS JR.
concurred.

ROTH, Judge:

¶1 Defendant Hussein Gedi appeals his convictions by jury for
violation of a domestic violence protective order and threat of
domestic violence. Gedi argues that his trial counsel rendered
ineffective assistance by opening the door to testimony about
Gedi’s prior domestic violence conviction. We affirm.

¶2 Gedi’s girlfriend (Girlfriend) obtained a domestic violence
protective order against him in February 2010 based on Gedi’s
abuse of her in January 2010. At trial, the issue was whether Gedi
State v. Gedi

had violated that protective order by going to Girlfriend’s family’s
home and whether, at the home, he threatened to kill her family if
she did not leave with him. At trial, Gedi and Girlfriend offered
contradictory testimony.

¶3 Girlfriend testified that after the protective order was issued
and while it was still in force, she and Gedi had briefly reconciled
in July 2010 after he had “bugged” her on several occasions while
she was living at her parents’ home in West Valley City. The two
lived together at Gedi’s home in Logan for a couple of days
without incident until they got into an argument over cigarettes.
Gedi had refused to buy cigarettes for Girlfriend, and she left his
house on foot to “bum a cigarette” off someone. Gedi followed
Girlfriend in his car, talked her into the car, and started to take her
back to his house. Girlfriend became afraid that Gedi would hit her
when they got back to his house, explaining, “I already know what
happens when we go back to the house. He’s going to end up
hitting me inside the house.” So rather than return to the house
with Gedi, Girlfriend jumped out of the moving vehicle. When
Girlfriend was later treated for her injuries by a doctor, Gedi
accompanied her and told the doctor that she had been in a bicycle
accident.

¶4 After that incident, Girlfriend resolved to leave Gedi but
was afraid to try to do so when Gedi was home, explaining, “[H]e
has slammed me against the wall to not leave.” So she instead
waited until Gedi was at work, took his vehicle, and left. Girlfriend
met up with her sister and they drove to Salt Lake City where they
left Gedi’s vehicle at his mother’s house and then returned to their
parents’ house in West Valley City. During this time, Gedi
repeatedly called Girlfriend, saying that he was coming to get her
and that if she did not go with him he was going to hurt or kill her
family. During at least one of the calls, Girlfriend put Gedi on
speaker phone so her sister could also hear the conversation.

¶5 At some point Girlfriend realized that she and Gedi had
inadvertently switched cell phones, so she agreed that Gedi could

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State v. Gedi

come to her parents’ house to exchange phones. When Gedi arrived
at her parents’ home, Girlfriend was waiting on the front porch
with her sister, her brother, and a cousin. After a time, Girlfriend’s
mother and stepfather also arrived at the house. Gedi and
Girlfriend argued for a while. Girlfriend told him to leave while
Gedi repeated his threats that if she did not leave with him he
would kill her family. Eventually, Girlfriend’s sister called the
police. When he realized the police had been called, Gedi hurried
to his car and drove off. Girlfriend’s sister and stepfather also
testified consistently with Girlfriend’s testimony.

¶6 Gedi, however, testified that he had not seen and had not
had any contact with Girlfriend since the protective order had been
issued in February 2010. According to him, he and Girlfriend did
not reconcile at his urging in July 2010, she never returned to live
with him in Logan, they did not have a fight about cigarettes, she
did not jump out of his moving car, and he did not drive to her
parents’ house and threaten her and her family. Rather, according
to Gedi, after approximately five months without any contact,
Girlfriend went to his house in Logan while he was at work and
stole one of his cars and his cell phone. When asked why she and
her family would tell such a story so at odds with his own, Gedi
explained that Girlfriend and her family were “all just making this
up” and were lying because they did not like him, in part because
he had refused to convert from Islam to Mormonism and also
because Girlfriend had told her family in the past that he had
abused her.

¶7 During his direct examination, Gedi’s counsel asked him
about the January 2010 incident that led Girlfriend to obtain the
protective order. In a somewhat rambling response that his counsel
did not interrupt, Gedi explained that Girlfriend was jealous and
did not like him coming home late or his efforts to keep her from
smoking and doing drugs, which he insinuated led to a fight that
in turn led to the issuance of the protective order. On cross‐
examination, the State asked Gedi for more details about the
January 2010 incident. Specifically, the State elicited testimony that

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State v. Gedi

Gedi had pleaded guilty to domestic violence assault and criminal
mischief for punching a car window. Because of this incident,
Girlfriend applied for, and Gedi stipulated to the issuance of, the
protective order. Then on redirect examination, Gedi’s counsel
elicited an explanation from Gedi that he had pleaded guilty to the
assault and criminal mischief charges because he was guilty but
had not pleaded guilty to charges he was currently being tried for
because he was not guilty:

[Trial Counsel]: And you testified to the jury that you
pled guilty to assault and criminal mischief.

[Gedi]: Yes.

...

[Trial Counsel]: [Y]ou pled guilty to it because you
are guilty of it?

[Gedi]: Yes. I did it. . . .

[Trial Counsel]: And you pled . . . not guilty[ here]
because you are not guilty of this?

[Gedi]: This one, the truth, I’m not [the one that] did
it. But that one, I did it, and I take responsibility what
I done . . . .

[Trial Counsel]: So you’re the kind of person that
would plead guilty if you were guilty.

[Gedi]: Yes.

[Trial Counsel]: But you’re not.

[Gedi]: This one, no. I’m not.

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State v. Gedi

The jury found Gedi guilty of the charged offenses. Gedi now
appeals, arguing that his trial counsel rendered ineffective
assistance.

¶8 In order to prevail on a claim for ineffective assistance, the
defendant “‘must show that counsel’s performance was deficient’”
and that counsel’s “‘deficient performance prejudiced the
defense.’” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct. App. 1993)
(quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). To
establish that counsel’s performance was deficient, the defendant
“‘must show that counsel’s representation fell below an objective
standard of reasonableness.’” Id. (quoting Strickland, 466 U.S. at
688). And in order to do so, the defendant must “overcome the
strong presumption that counsel’s performance fell ‘within the
wide range of reasonable professional assistance’ and that ‘under
the circumstances, the challenged action might be considered
sound trial strategy.’” Id. (quoting Strickland, 466 U.S. at 689). In
this regard, a reviewing court “need not come to a conclusion that
counsel, in fact, had a specific strategy in mind” but instead “need
only articulate some plausible strategic explanation for counsel’s
behavior.” Id. at 468. To establish that counsel’s performance was
prejudicial, defendant must show that “there is a reasonable
probability that ‘but for counsel’s unprofessional errors, the result
of the proceeding would have been different.’” Id. at 466 (quoting
Strickland, 466 U.S. at 694). Failure to establish either prong is fatal
to a claim for ineffective assistance. See id.

¶9 Gedi claims that his trial counsel rendered ineffective
assistance by opening the door to otherwise inadmissible testimony
about the January 2010 incident that led to the issuance of the
domestic violence protective order and his related domestic
violence and criminal mischief convictions.1 Gedi argues that

1
The State does not challenge Gedi’s assertion that the
evidence was inadmissible, and we therefore do not reach the

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State v. Gedi

counsel’s performance was deficient because no reasonable trial
strategy justified its admission. Gedi also argues that he was
prejudiced by the admission of this evidence because the jury was
presented with a credibility contest between the testimony offered
by him and the testimonies offered by Girlfriend and her family.
According to Gedi, the evidence about this underlying act of
domestic violence destroyed his credibility and prevented the jury
from believing his testimony over Girlfriend’s.

¶10 We conclude that Gedi’s trial counsel’s performance was not
deficient. At trial, Gedi’s chosen defense placed him in a very
difficult position. There was no dispute that Girlfriend had been
granted a domestic violence protective order against him, and Gedi
took the position that he had not seen or spoken to her since it was
issued. His explanation for the charges brought against him was
that five months after the protective order was issued, Girlfriend,
for no apparent reason, had traveled to Logan, entered his house
while he was at work and took his cell phone and car, then drove
directly to his mother’s house in Salt Lake City where she left the
car. Gedi’s testimony was uncorroborated and contradicted
Girlfriend’s testimony that Gedi contacted her frequently after the
protective order was issued and that they ended up living together
for a time in Logan before the renewed relationship deteriorated
into further conflict. Gedi also contradicted Girlfriend’s testimony
that the ongoing conflict led her to take his car to escape him and
return to her family’s house in West Valley City after dropping off
Gedi’s car at his mother’s house. In an effort to take her back, Gedi
pursued her to her family’s house where he threatened her and her
family. Girlfriend’s testimony was corroborated by the testimony
of her sister and stepfather. Gedi’s explanation for the
contradictory testimony was that Girlfriend and her family were
lying and that they had concocted this story five months after he
had ceased all contact because he had not converted to Mormonism

1
(...continued)
issue.

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State v. Gedi

as they had wished and because Girlfriend had told her family
during their relationship that he had abused her.

¶11 Gedi’s trial counsel faced the difficult task of portraying
Gedi’s implausible version of the events as more credible than the
State’s, and the only tool he apparently had to work with was
Gedi’s own credibility. While disclosure of a defendant’s prior
conviction is generally something defense counsel would seek to
avoid, under these circumstances, such a risk could be seen as part
of a plausible trial strategy, i.e., to attempt to make Gedi seem more
credible by using his guilty plea to the charges that underlie the
protective order to make the point that he had willingly taken
responsibility for his actions when he was guilty and therefore was
telling the truth now.2 And the risk of revealing these prior
convictions was somewhat mitigated by the fact that the jury knew
that Girlfriend had a domestic violence protective order against
Gedi. So disclosing the underlying January 2010 incident that had
led to the issuance of the protective order may have prevented the
jury from speculating, to Gedi’s possible detriment, about the
nature of the incident that led to the issuance of the protective

2
Gedi’s argument suggests that his counsel inadvertently
let Gedi open the door to evidence about his prior convictions by
not controlling Gedi’s narrative answer to a question on direct
examination. In other words, the strategy we describe as plausi‐
ble was not counsel’s deliberate choice but one he stumbled into
by inadvertently opening the door and then tried to make the
best of on redirect and in closing argument. Nevertheless, as we
have discussed above, it is not necessary that we “come to a
conclusion that counsel, in fact, had a specific strategy in mind,”
only that counsel’s actions lend themselves to some “plausible
strategic explanation.” See State v. Tennyson, 850 P.2d 461, 465
(Utah Ct. App. 1993) (citing Strickland v. Washington, 466 U.S.
668, 689 (1984)).

20111099‐CA 7 2013 UT App 133
State v. Gedi

order in the first place.3 In asserting the importance of the
credibility contest between his testimony and Girlfriend’s, Gedi
correctly points out that the jury may elect to believe the testimony
of one witness over the testimonies of several witnesses and that
family members may have a motivation to lie for each other. But
under the facts of this case such considerations cannot be seen as
so favorable to him that they would change the risk/benefit balance
to the point of significantly undercutting the plausibility of the
strategy we have described, especially when the jury knew that
Girlfriend had already obtained a domestic violence protective
order against Gedi. Finally, the facts elicited about Gedi’s prior
convictions were sparse and describe behavior less serious than
what Girlfriend had already offered in her testimony about the
circumstances underlying the charges tried. Thus, given the
“strong presumption” that counsel’s performance “‘might be
considered sound trial strategy’” and fall “‘within the wide range
of reasonable professional assistance,’” see Tennyson, 850 P.2d at 465
(quoting Strickland, 466 U.S. at 689), we conclude that Gedi’s trial
counsel’s performance was not deficient. For similar reasons, we
also conclude that Gedi was not prejudiced by his trial counsel’s
performance. See Strickland, 466 U.S. at 691–92, 694.

¶12 We affirm.

3
Gedi argues that if his trial counsel wished to alleviate
the jury’s curiosity about the reason for the domestic violence
protective order, he could have simply elicited testimony that
Girlfriend had requested a protective order and Gedi had stipu‐
lated to its issuance. However, had Gedi’s trial counsel elicited
such testimony, he would certainly have run the risk that it also
would have been enough to open the door for the State to cross‐
examine Gedi about the underlying incident that had led to the
protective order’s issuance to counter the inference that he had
done nothing to warrant the order.

20111099‐CA 8 2013 UT App 133