State v. Hart

2020 UT App 25
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
JEREMIAH R AY HART,
Appellant.
Opinion
No. 20180095-CA
Filed February 21, 2020
Third District Court, Salt Lake Department
The Honorable Keith A. Kelly
No. 151905395
Herschel Bullen, Attorney for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE D AVID N. M ORTENSEN authored this Opinion, in which
JUDGES K ATE A PPLEBY and JILL M. POHLMAN concurred.
MORTENSEN, Judge:
¶1 	Jeremiah Ray Hart and Erick Burwell concocted a plot to
pose as drug buyers and, instead of closing the transaction, to
rob the drug dealers of their inventory. But when they put their
plan into action, things went quickly and fatally awry, ending in
an exchange of gunshots, the death of one of the sellers (Victim),
and 	the 	conviction 	of 	Hart 	for 	several 	crimes, 	including
aggravated murder. Hart now appeals his convictions with four
claims of ineffective assistance of counsel. We affirm.

State v. Hart
20180095-CA 	2 	2020 UT App 25
BACKGROUND1
The Attempted Robbery and Murder
¶2 	Hart and Burwell2 came up with a plan to pose as drug
buyers 	and 	then 	to 	steal 	drugs 	from 	unsuspecting 	sellers.
Through 	various 	intermediaries—who 	thought 	they 	were
facilitating a standard drug deal—Burwell found Victim and
Victim’s brother (Brother). Victim and Brother agreed to sell five
pounds of marijuana to Burwell and Hart.
¶3 	Hart prepared for the heist. He borrowed a 9mm Glock
handgun from his cousin (Cousin), who loaded the thirty-one-
round extended magazine with a variety of hollow-point and
round-nose ammunition from different manufacturers.
¶4 	Hart and Burwell put their plan into action. Hart showed
the Glock to Burwell and later went to a restaurant to wait for
Burwell to pick him up. Burwell first picked up Victim and
Brother, with Victim sitting in the front passenger seat and
Brother in the seat behind Burwell. They then picked up Hart—
the supposed buyer—who sat behind Victim with the Glock
concealed. Burwell drove a short distance and turned onto a
residential side street to park. As Burwell stopped, Hart pulled
out the Glock, pointed it at Brother, and announced, “It’s a
robbery. It’s a jack . . . everybody out of the car.” Brother froze,
later testifying, “I just put my hands up and just [sat] still.”
1. “When reviewing a jury verdict, we examine the evidence and
all 	reasonable 	inferences 	drawn 	therefrom 	in 	a 	light 	most
favorable to the verdict, and we recite the facts accordingly. We
present conflicting evidence only when necessary to understand
issues raised on appeal.” State v. Tulley, 2018 UT 35, ¶ 4 n.1, 428
P.3d 1005 (cleaned up).
2. Burwell admitted to his role in the events of this case and pled
guilty to manslaughter and robbery.

State v. Hart
20180095-CA 	3 	2020 UT App 25
Victim, however, pulled out a gun of his own, and an exchange
of shots ensued.
¶5 	Hart and Victim were each hit by a bullet and piled out of
the car. Burwell drove off, but unbeknownst to him, Brother was
still in the car. Burwell feigned surprise and ignorance of the
robbery 	plan 	and 	took 	Brother 	to 	Brother’s 	apartment, 	as
requested. Meanwhile, Victim collapsed in the gutter of the
street, slowly succumbing to his bullet wound. The bullet had
pierced his chest, fatally damaging vital organs, and exited near
his spine. Hart fled the scene, leaving behind the extended
magazine with the assorted ammunition, a 9mm casing, and a
trail of his own blood leading west for about two blocks. He then
called Cousin, who picked him up. Later that night, Cousin took
Hart to the hospital to have his gunshot wound treated.
The Investigation
¶6 	Law 	enforcement 	officers 	arrived 	at 	the 	scene 	to
investigate. They found the evidence Hart left behind. The
officers also found a Taurus .45 caliber handgun used by Victim
and an expended .45 caliber bullet with Hart’s DNA on it.
Officers interviewed Cousin on three occasions, and Cousin’s
account 	of 	the 	events 	changed 	every 	time. 	In 	his 	initial
interview, Cousin said that he shot Victim but later admitted
that he didn’t shoot Victim, explaining that he said he did only
because he agreed to take the blame for Hart. Cousin also said
Hart told him that Hart shot someone. In his second interview,
Cousin retracted his claim about Hart saying he shot someone.
Then, in his third interview, Cousin admitted that indeed Hart
said he shot someone.
¶7 	About a month later, officers arrested Hart. At that time,
Hart was in possession of a 9mm handgun, which was not a
Glock. A forensic firearms examiner (Gun Expert) later test-fired
the handgun to determine whether the impression made on the
casing would match that of the impression on the casing found
at the murder scene. It was not a match. Ultimately, the State
charged Hart with aggravated murder, obstruction of justice,

State v. Hart
20180095-CA 	4 	2020 UT App 25
and possession of a dangerous weapon by a restricted person. A
preliminary hearing was held. At the hearing, the detective
managing the case (Case Manager) testified about Hart’s blood-
stain 	patterns—showing 	that 	Hart 	stood 	above 	Victim 	and
moved west away from the scene—and about other aspects of
the investigation.
The Rule 404(b) Issue
¶8 	Before trial, the State provided notice that it intended to
offer other acts evidence under rule 404(b) of the Utah Rules of
Evidence. 	The 	evidence 	purported 	to 	show 	that 	Hart 	and
Burwell planned and attempted to carry out another robbery
fifty-four days before the one in which Victim was killed. In the
first attempted robbery, the targeted victims fought back. Hart
and Burwell fled the scene, and Hart left behind a beanie with
his DNA on it. The district court ruled that the evidence was
admissible. This court granted an interlocutory appeal on the
issue 	fourteen 	days 	before 	trial. 	Hart 	moved 	to 	stay 	the
proceedings at the district court pending the outcome of the
appeal. But the State agreed not to offer the 404(b) evidence, so
the 	trial 	could 	move 	forward. 	The 	appeal 	was 	therefore
dismissed.
The Trial
¶9 	During a six-day jury trial, the State presented extensive
evidence, including a litany of exhibits and numerous witnesses.
Hart’s defense centered on challenging the adequacy of the
State’s investigation 	and 	undermining 	the 	credibility 	of 	the
State’s key witnesses against him, including Cousin and Case
Manager. 	Relevant 	to 	this 	appeal, 	the 	following 	events
transpired at trial.
Gun Expert’s Testimony
¶10 	The 	State 	called 	Gun 	Expert 	to 	testify. 	Gun 	Expert
testified that he test-fired and “examined 	[the Taurus] and
another firearm that was submitted as well,” concluding that the

State v. Hart
20180095-CA 	5 	2020 UT App 25
impression 	left 	on 	the 	9mm 	casing 	was 	from 	a 	Glock
handgun, 	not 	from 	the 	Taurus 	or 	the 	other 	submitted
gun. Hart’s trial counsel then requested a bench conference
wherein counsel pointed out that the other gun was taken
from Hart 	when 	Hart 	was arrested. 	Because 	that 	gun 	had
no connection to the shooting of Victim, counsel objected to
any reference tying the gun to Hart. The district court and
the 	prosecutor 	agreed 	that 	any 	such 	reference 	would
be 	problematic, 	but 	the 	court 	noted 	that the 	jury 	had 	not
heard any evidence that “a gun [was] received from [Hart].” To
resolve 	counsel’s 	concern, 	the 	court 	proposed 	having 	the
prosecutor lead Gun Expert to testify that the other gun was
used 	for 	comparison 	purposes 	only 	and 	that 	it 	had 	no
connection to this case. Counsel agreed with this approach, and
the prosecutor proceeded:
Q. [W]hen we talk about two guns, one of those
guns was a comparison gun just available to you in
the lab; is that correct?
A. That’s correct.
Q. It is not affiliated with this case?
A. That’s correct.
Cousin’s Testimony
¶11 	The State also called Cousin to testify. Cousin testified
that 	he 	loaded 	the 	different 	types 	of 	ammunition 	into 	the
extended magazine, loaned the Glock to Hart, picked up Hart
after the attempted robbery, noticed that the extended magazine
was missing from the Glock Hart brought to the car, and heard
Hart say he shot someone.
¶12 	During cross-examination, Hart’s counsel asked about
each of Cousin’s three interviews with 	the officers. Cousin
tried to justify his shifting accounts by explaining that at first he

State v. Hart
20180095-CA 	6 	2020 UT App 25
tried to take the blame for Hart, but later decided not to, saying,
“I was still trying to protect him. . . . [A]t that time they had
me in a cell with a person who was taking care of me.” Later,
as counsel was trying to highlight Cousin’s inconsistencies,
Cousin volunteered explicit information about Hart’s criminal
history, 	including 	a 	reference 	to 	parole 	and 	to 	being
incarcerated.
¶13 	Then, Hart’s counsel elicited testimony from Cousin that
he and Hart shared a jail cell for about a year. Counsel further
questioned Cousin about whether he ever read through Hart’s
legal paperwork associated with this case that was in their cell.
Cousin denied looking through Hart’s legal papers. He also
denied talking to Hart about this case. But he conceded that he
had ample opportunity to do both. And he specifically admitted
that he had unimpeded access to Hart’s legal papers while Hart
was 	working 	out, 	taking 	a 	shower, 	visiting 	the 	doctor, 	or
attending court. Cousin also admitted on cross-examination that
for his willingness to testify he received a “pretty glowing letter”
from the State for his upcoming parole review.
¶14 	Outside the presence of the jury, counsel went on record
stating that his focus on Hart’s incarceration was a strategic
choice: “[T]his was not some kind of mistake or issue like that, it
was a strategic decision the defense has made in consultation
with [Hart].” In closing argument, counsel emphasized Cousin’s
opportunity to talk with Hart about his case and read through
his paperwork. Counsel argued that Cousin likely crafted his
testimony 	to 	coincide 	with 	the 	State’s case 	to 	improve 	his
chances of parole.
Case Manager’s Testimony
¶15 	The State also called Case Manager to testify, who offered
his opinion on the blood at the scene, among other things.
He testified that the pattern of blood indicated that Hart initially
moved 	from 	the 	east 	side 	of 	Victim, 	momentarily 	stood
over Victim, and finally fled the scene to the west. On cross-
examination, 	Hart’s 	counsel 	garnered 	several 	concessions.

State v. Hart
20180095-CA 	7 	2020 UT App 25
Case Manager conceded that, even though all the stains weren’t
tested, there was abundant time to test all of them; that it was a
“pretty big assumption” that the eastern-most stain was Hart’s
blood; 	and 	that 	testing 	the 	stain 	would 	have 	foreclosed
speculation completely. A defense expert added his testimony
that the eastern-most stain would have been the most important
one to test. In closing, Hart’s counsel argued that the State’s
investigation 	was 	inadequate. 	Counsel 	pieced 	together 	the
blood-stain 	evidence 	by 	discussing 	the 	extended 	magazine,
which was farther east than any of the blood stains, arguing,
“[T]he reason that they want . . . Hart further this way is because
they can’t explain how that magazine ends . . . up 15 feet the
other way . . . [or] at least 10.”
The Jury’s Question
¶16 	A DNA analyst testified that Hart’s DNA was on the
left sleeve of a jacket. But the analyst did not identify the
jacket 	as 	Hart’s 	due 	to 	her 	inability 	to 	lay 	foundation 	for
whose jacket she tested. The parties therefore stipulated that
the 	jacket 	was 	Hart’s, 	and 	the 	stipulation 	was 	read 	into
the record. Case Manager later identified the jacket as Hart’s
and confirmed that it was collected from the hospital Hart
visited to treat his gunshot wound. He further explained that
Hart’s DNA was found on one sleeve of the jacket. Brother also
testified that Hart was wearing the jacket the night of the
murder.
¶17 	After both sides fully presented their cases, the district
court directed the jury to deliberate. During its deliberation, the
jury sought 	clarification 	on the 	testimony 	from 	the analyst
regarding the jacket, asking to whom the jacket belonged and
whose DNA was on it. The district court responded, “This issue
was the subject of a stipulation read into the record by counsel.
Please 	rely 	on 	your 	collective 	memory 	of 	the 	evidence
presented.” The jury ultimately found Hart guilty of aggravated
murder, 	obstructing 	justice, 	and 	possession 	of 	a 	dangerous
weapon by a restricted person. Hart appeals.

State v. Hart
20180095-CA 	8 	2020 UT App 25
ISSUE AND STANDARD OF REVIEW
¶18 	Hart 	raises 	four 	claims 	of 	ineffective 	assistance 	of
counsel.3 Thus, the sole issue for us to decide is whether Hart’s
counsel rendered constitutionally 	ineffective assistance, 	as a
matter of law. State v. Ott, 2010 UT 1, ¶ 16, 247 P.3d 344 (“An
ineffective assistance of counsel claim raised for the first time on
appeal presents a question of law.” (cleaned up)).
ANALYSIS
¶19 	To prevail on an ineffective assistance of counsel claim, a
defendant must establish both that counsel’s performance was
objectively 	deficient 	and 	that 	the 	deficient 	performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668,
687–88 (1984); State v. Wilder, 2018 UT 17, ¶ 17, 420 P.3d 1064. “A
failure to prove either element defeats the claim.” State v. Ricks,
2018 UT App 183, ¶ 11, 436 P.3d 350 (cleaned up). Here, we
address only the deficient performance element of each of Hart’s
four claims.
¶20 	To 	prove 	deficient 	performance, 	a 	“defendant 	must
overcome the strong presumption that his trial counsel rendered
3. Hart also contends that the cumulative effect of the claimed
errors 	requires 	us 	to 	reverse. 	Under 	the 	cumulative 	error
doctrine, “we will reverse a jury verdict or sentence only if the
cumulative 	effect 	of 	the 	several 	errors 	undermines 	our
confidence that a fair trial was had.” State v. Martinez-Castellanos,
2018 UT 46, ¶ 39, 428 P.3d 1038 (cleaned up). Because we
conclude that Hart’s trial counsel did not perform deficiently in
any of the ways Hart claims, there is no cumulative error here.
See State v. Maestas, 2012 UT 46, ¶ 363, 299 P.3d 892 (“If the
claims are found on appeal to not constitute error, or the errors
are found to be so minor as to result in no harm, the doctrine
will not be applied.” (cleaned up)).

State v. Hart
20180095-CA 	9 	2020 UT App 25
adequate assistance.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162
(cleaned 	up); 	see 	also 	Strickland, 	466 	U.S. 	at 	689. 	Counsel’s
performance is not deficient when there is a conceivable strategic
basis for counsel’s actions. Clark, 2004 UT 25, ¶ 6. Further,
counsel’s performance is not deficient for declining to make a
motion, objection, or request that surely would have failed
before the district court. E.g., Menzies v. State, 2014 UT 40, ¶ 223,
344 	P.3d 	581 	(“[C]ounsel 	was 	not 	ineffective 	in 	failing 	to
challenge the beyond reasonable doubt instruction because the
claim would have almost assuredly failed.”); State v. Kelley, 2000
UT 41, ¶ 26, 1 P.3d 546 (“Failure to raise futile objections does
not constitute ineffective assistance of counsel.”).
¶21 	Here, 	Hart’s 	first 	three 	claims 	are 	that 	his 	counsel
should have requested a mistrial, and his last claim is that
his 	counsel 	should 	have 	objected 	to 	certain 	testimony 	as
not 	qualifying 	as 	expert 	testimony. 	Hart’s 	first 	and 	third
claims fail because his proposed request surely would have
been 	denied 	by 	the 	district 	court. 	And 	his 	second 	and
fourth claims fail because there was a conceivable strategic basis
for 	counsel’s 	actions. 	We 	further 	explain 	these 	conclusions
below.
I. Gun Expert’s Testimony
¶22 	Hart first contends that his counsel should have moved
for a mistrial based on Gun Expert’s testimony. Gun Expert
testified that he test-fired and examined Victim’s gun “and
another firearm that was submitted as well” and concluded that
the 	impression 	left 	on 	the 	9mm 	casing 	was 	from 	a 	Glock
handgun, but not from Victim’s handgun or the other submitted
gun. The other gun was the one found in Hart’s possession upon
his 	arrest. 	Hart 	posits 	that 	“the 	jury 	would 	have 	been
unnecessarily confused and would have believed the firearm
was” Hart’s and that his counsel was ineffective in failing to
request a mistrial when the State introduced evidence of the
other gun. We disagree. The facts simply do not support Hart’s
conclusion.

State v. Hart
20180095-CA 	10 	2020 UT App 25
¶23 	A district court “should not grant a mistrial except where
the circumstances are such as to reasonably indicate that a fair
trial cannot be had and that a mistrial is necessary in order to
avoid injustice.” State v. Maestas, 2012 UT 46, ¶ 325, 299 P.3d 892
(cleaned up). A mistrial is not required where a potentially
“improper statement is not intentionally elicited, is made in
passing, and is relatively innocuous in light of all the testimony
presented.” State v. Allen, 2005 UT 11, ¶ 40, 108 P.3d 730; see also
State v. Butterfield, 2001 UT 59, ¶¶ 18, 47, 27 P.3d 1133 (holding
that the district court did not abuse its discretion in denying a
motion for mistrial after a detective made a vague and fleeting
remark that he obtained the defendant’s photograph from a jail).
¶24 	Here, even if Hart’s counsel had moved for a mistrial, the
motion surely would have failed because nothing about Gun
Expert’s testimony made the trial unfair or made “a mistrial . . .
necessary in order to avoid injustice.” Maestas, 2012 UT 46, ¶ 325
(cleaned up). Gun Expert’s testimony about the other gun was
initially vague and innocuous because it in no way connected
the other gun to Hart. Indeed, Gun Expert referred to the other
handgun merely as “another firearm that was submitted as
well.” 	And 	after 	Hart’s 	counsel 	pointed 	out 	in 	a 	bench
conference 	that 	connecting 	the 	gun 	to 	Hart 	would 	be
problematic, the prosecutor led Gun Expert to specifically testify
that the other gun was used for “comparison purposes only” and
that 	it 	had 	no 	connection 	to 	this 	case. 	Thus, 	any 	possible
inference in the jurors’ minds up to that point that the gun was
connected to Hart was explicitly put to rest. Accordingly, a
mistrial motion would have been futile, and Hart’s counsel was
therefore not deficient in failing to move for a mistrial. See Kelley,
2000 UT 41, ¶ 26.
II. Cousin’s Testimony
¶25 	Hart also contends that his counsel was ineffective for
failing to request a mistrial when Cousin testified that Hart was
previously in prison and was further ineffective for emphasizing
that fact. “Whether to move for a mistrial . . . is a strategic

State v. Hart
20180095-CA 	11 	2020 UT App 25
decision that is generally left to the professional judgment of
counsel.” State v. Padilla, 2018 UT App 108, ¶ 27, 427 P.3d 542
(cleaned up).
¶26 	Here, counsel had a clear strategic reason to acknowledge
Hart’s incarceration, which was to discredit Cousin’s testimony.
Counsel illustrated Cousin’s potential motive and opportunities
to fabricate his testimony: his motive being improvement of his
prospects of parole4 and his opportunities being easy access to
Hart’s 	legal 	papers 	in 	their 	shared 	cell 	and 	innumerable
discussions 	with 	Hart. 	Counsel 	also 	went 	to 	the 	extent 	of
clarifying, on the record, that this “was a strategic decision the
defense . . . made in consultation with [Hart].” Thus, counsel did
not 	perform 	deficiently 	because 	he 	reasonably 	used 	his
professional judgment in deciding to use the evidence of Hart’s
incarceration and not to move for a mistrial. See id.; see also State
v. Bedell, 2014 UT 1, ¶¶ 21, 25, 322 P.3d 697 (holding that the
attorney’s performance was not deficient for discussing evidence
of previous investigations of the defendant’s alleged sexual
misconduct because counsel’s strategic basis was to undermine
the accuser’s credibility, arguing that she fabricated her story
only 	after 	she 	knew 	of 	the 	other 	accusations 	against 	the
defendant with “hopes . . . [of] favorable treatment in her own
criminal case”).
¶27 	Additionally, 	given 	the 	pretrial 	wrangling 	over 	the
admission of evidence of Hart’s previous robbery attempt as a
prior act under rule 404(b), reasonable counsel would have
recognized that a mistrial would allow the State to seek to offer
the evidence thereof, resulting in its potential admission in any
subsequent 	trial. 	Regardless 	of 	the 	academic 	merits 	of 	the
interlocutory appeal, counsel objectively would have been facing
a decidedly uphill battle to reverse a discretionary evidentiary
4. In fact, Cousin admitted on cross-examination that for his
willingness to testify he received a “pretty glowing letter” from
the State for his upcoming parole review. See supra ¶ 13.

State v. Hart
20180095-CA 	12 	2020 UT App 25
ruling—an 	uncertain 	outcome 	upon 	which 	he 	could 	not
reasonably 	rely. 	Put 	differently, 	if 	counsel 	moved 	for 	and
received a mistrial, he ran the risk of the 404(b) evidence’s
admission in a retrial. Not assuming that risk was reasonable
under the circumstances, particularly where counsel could use
the evidence surrounding Hart’s incarceration with Cousin to
Hart’s 	benefit. 	Therefore, 	counsel 	did 	not 	render 	deficient
assistance, and Hart’s ineffective assistance claim fails.
III. The Jury Question
¶28 	Hart 	additionally 	contends 	that 	his 	counsel 	was
ineffective for failing to request a mistrial when the jury asked
for 	clarification 	on 	the 	jacket 	DNA 	evidence 	during
deliberations. We disagree. Hart does not and cannot show that
the jury’s confusion, if any after the court’s instruction, rose to
mistrial levels of unfairness or injustice. See Maestas, 2012 UT 46,
¶ 325. That the jacket was Hart’s was an insignificant piece of the
evidentiary picture supporting Hart’s guilt. It is hardly shocking
that Hart’s jacket had Hart’s DNA on it. And neither party
referred to the evidence of the jacket in closing argument. Thus,
even though the jury sought clarification about the evidence on
this 	issue, 	a 	mistrial 	motion 	would 	have 	been 	futile.
Accordingly, Hart’s counsel was not ineffective in failing to
move for a mistrial. See Kelley, 2000 UT 41, ¶ 26.
IV. Case Manager’s Testimony
¶29 	Hart finally contends that his counsel was ineffective for
failing to object to a portion of Case Manager’s testimony. In
particular, Hart asserts that counsel should have objected, under
rule 702 of the Utah Rules of Evidence, and argued that Case
Manager 	was 	not 	qualified 	as 	an 	expert 	regarding 	blood
patterns. But just because counsel can make an objection does not
mean 	counsel 	must 	make 	an 	objection 	to 	avoid 	rendering
ineffective assistance. Legal objections are an inherently strategic
business. See State v. Gonzales, 2005 UT 72, ¶ 72, 125 P.3d 878
(holding that counsel was not ineffective when she withdrew an

State v. Hart
20180095-CA 	13 	2020 UT App 25
objection and did not renew it because she may have chosen not
to “object for strategic reasons . . . such as not drawing attention
to th[e] unfortunate information”).
¶30 	Here, although Hart’s counsel could have objected to
Case Manager’s testimony, counsel was not ineffective for not
doing so. He had at least two strategic bases for his decision.
First, 	counsel 	sought 	to 	use 	Case 	Manager’s 	testimony 	to
undermine 	the 	quality 	of 	the 	State’s 	investigation, 	as 	the
attorney did in State v. Bedell, 2014 UT 1, 322 P.3d 697. Bedell’s
counsel discussed arguably inadmissible evidence of previous
investigations 	into 	Bedell’s 	alleged 	sexual 	misconduct 	to
undermine 	the 	quality 	and 	thoroughness 	of 	the 	State’s
investigation. Id. ¶ 21. Our supreme court held that Bedell’s
ineffective assistance of counsel claim failed “because there was
a legitimate strategic decision for . . . Bedell’s counsel to use” the
evidence of the previous investigations. Id. ¶ 25; see also State v.
Morley, 2019 UT App 172, ¶ 33, 452 P.3d 529 (concluding that
counsel acted reasonably in emphasizing shortcomings in the
State’s investigation rather than seeking exclusion of potentially
objectionable evidence). Second, reasonable counsel could have
worried that an objection would have provided the State an
opportunity to lay foundation in front of the jury that would
simultaneously satisfy rule 702 and strengthen Case Manager’s
testimony in the eyes of the jury. Hart has not pointed us to
anything in the record that establishes that Case Manager was
not actually qualified to offer the opinion he did. In short,
because we conclude that there was a conceivable strategic basis
for counsel’s decision not to object to Case Manager’s testimony,
Hart’s counsel did not act deficiently in this regard.5
5. Citing United States v. Cronic, 466 U.S. 648 (1984), Hart argues
that counsel’s performance was so deficient that the trial lost its
requisite adversarial 	testing. But we 	do 	not view counsel’s
performance in this case as so devoid of “meaningful adversarial
testing” that “there has been a denial of Sixth Amendment rights
(continued…)

State v. Hart
20180095-CA 	14 	2020 UT App 25
CONCLUSION
¶31 	We 	hold 	that 	Hart’s 	trial 	counsel 	did 	not 	render
ineffective 	assistance 	because 	counsel 	did 	not 	perform
deficiently in any of the ways Hart claims. We therefore affirm.
(…continued)
that 	makes 	the 	adversary 	process 	itself 	presumptively
unreliable.” Id. at 659. We therefore reject Hart’s argument.