Jones v. State

2020 UT App 125

THE UTAH COURT OF APPEALS

MICHAEL JONES,
Appellant,
v.
STATE OF UTAH,
Appellee.

Opinion
No. 20180722-CA
Filed August 27, 2020

Third District Court, Salt Lake Department
The Honorable Mark S. Kouris
No. 160900311

Michael Jones, Appellant Pro Se
Sean D. Reyes and Shane D. Smith,
Attorneys for Appellee

JUDGE JILL M. POHLMAN authored this Opinion, in which
JUDGES GREGORY K. ORME and DAVID N. MORTENSEN concurred.

POHLMAN, Judge:

¶1 In 2010, Michael Jones was convicted of murder,
aggravated robbery, and unlawful distribution of a controlled
substance. His convictions were affirmed on direct appeal. In
2016, he filed a petition for post-conviction relief in which he
raised numerous grounds for a new trial or resentencing. The
State moved for summary judgment. The district court granted
the State’s motion and denied the petition. Jones now appeals,
and we affirm.
Jones v. State

BACKGROUND 1

The Underlying Criminal Case

¶2 In February 2004, officers on patrol spotted a blue Honda
“just parked there by itself.” When they looked inside, they
found Tara Brennan 2 deceased with a belt around her neck, stab
wounds to her face, defensive wounds to her hands, and a
“significant slash” to her neck. The car’s interior bore signs of a
struggle: shoe scuff marks on the ceiling and a window, a broken
rearview mirror, and “blood throughout” the back of the car.

¶3 The killer had taken Brennan’s life, her wallet, and about
$200 cash but had left behind his Y-chromosome DNA under her
fingernails and on the belt used to strangle her. The
Y-chromosome profile was rare; it excluded 99.6% of males.
Jones’s DNA was found on a cigarette butt in the front seat of
the car, and he could not be excluded as a possible contributor of
the Y-chromosome DNA found on the belt and under Brennan’s
fingernails.

1. “A recitation of the facts surrounding [Jones’s] criminal case is
necessary to understand the issues on appeal. We present the
facts in a light favorable to the prosecution, and consistent with
the judgment of conviction.” See Lynch v. State, 2017 UT App 86,
¶ 2 n.1, 400 P.3d 1047 (cleaned up); see also Gregg v. State, 2012
UT 32, ¶ 2, 279 P.3d 396.

2. Although “[t]his court typically does not include the names of
crime victims, witnesses, or other innocent parties in its
decision,” State v. Chavez-Reyes, 2015 UT App 202, ¶ 1 n.2, 357
P.3d 1012, these individuals were identified in the opinion on
Jones’s direct appeal, see State v. Jones, 2015 UT 19, ¶¶ 2, 9 & n.1,
345 P.3d 1195. Thus, “obscuring [their] identit[ies] . . . would
serve no purpose.” See Chavez-Reyes, 2015 UT App 202, ¶ 1 n.2.

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Jones v. State

¶4 Jones admitted to being with Brennan on the night she
was murdered, buying crack cocaine with her and smoking
crack and cigarettes with her. When Jones talked to police, he
claimed to have stayed the night at the homeless shelter, but the
shelter logs did not show that he checked in that night. And
while he claimed to have worn a purple down jacket that night,
police could not find it. He told police that he gave the coat to his
mother, but even after they executed a warrant on the mother’s
house, the coat was never recovered.

¶5 Brennan’s mother (Mother) testified at trial that on the
day before the murder, she and Brennan went to the bank to
cash a check of Brennan’s for about $350. Mother also testified
that Brennan gave her $100 for car insurance and spent about
$50 on a new battery for her Honda.

¶6 After running errands with Mother, Brennan drove the
car around, ostensibly to see if it still ran well after having sat in
Mother’s driveway for a year. Mother testified that she believed
Brennan had about $200 with her—the amount remaining from
the cashed check after the insurance and battery payments.
Brennan habitually carried a wallet in which she kept her money
and identification. But when the police found Brennan’s body
the next day, the wallet and money she had the day before were
gone.

¶7 The State charged Jones with murder, aggravated
robbery, and unlawful distribution of a controlled substance.
Jones moved to exclude the Y-chromosome DNA evidence. The
trial court 3 denied the motion.

3. We use the term “trial court” to refer to the court that presided
over Jones’s original criminal trial, and we use the term “district
court” to refer to the court that presided over the post-conviction
proceedings.

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¶8 At trial, the jury heard the Y-chromosome DNA evidence,
which consisted of results from Y-STR DNA testing. 4 Such
testing focuses only on the Y chromosome and enables analysts
to identify a very small amount of male DNA that might
otherwise go undetected in the presence of a large amount of
female DNA. But because the Y chromosome is usually identical
up and down paternal lines, Y-STR DNA testing can only
exclude suspects rather than affirmatively identify them. Yet
some Y-chromosome profiles, or haplotypes, are rarer than
others.

¶9 Defense counsel cross-examined one of the State’s
investigators about a blond hair found on the side of the Honda.
The investigator testified that it appeared to be the blond crime
lab technician’s hair, so it was not processed. The investigator
also testified that the State did not have the technology necessary
for testing the hair for DNA at the time of the 2004 investigation.

¶10 Defense counsel also cross-examined investigators about
not following up on one of Jones’s associates—Carlaya Yazzie.
Officers received information that Yazzie may have been with
Jones on the night of the murder. Jones told officers that he knew
Yazzie from his time at the homeless shelter, but he denied that
he had been with Yazzie that night.

4. As explained by an expert at an evidentiary hearing before the
trial court, “Y-STR DNA testing is a form of PCR STR testing,
which stands for polymerase chain reaction using short tandem
repeats. Traditional PCR STR testing . . . analyzes repeating
chemical patterns . . . at specific loci on the twenty-three pairs of
chromosomes that contain DNA.” Jones, 2015 UT 19, ¶ 22. Y-STR
DNA testing “is similar to traditional PCR STR testing in that it
looks to repeating patterns at certain loci; however, Y-STR PCR
analyzes only the Y chromosome, which is carried only by
males.” Id.

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¶11 Defense counsel elicited testimony that Yazzie was one of
about forty people interviewed who may have had contact with
Brennan on the night of the murder. Counsel further elicited that
Yazzie was the only female person of interest in the case and that
officers did not obtain a DNA sample from her. Yazzie was a
convicted felon. Thus, officers had reason to believe that she
would be in the criminal database against which DNA samples
are run to find matches.

¶12 In closing argument, defense counsel argued that the
blond hair on the side of the Honda may have belonged to a man
a witness saw cleaning the vehicle on the morning after the
murder. Counsel argued that investigators’ failure to test the
blond hair was an “oversight” in the investigation. Counsel also
suggested that Yazzie could have been the murderer because she
was a suspect and the State had not excluded her as a potential
contributor to the DNA found at the crime scene.

¶13 The jury convicted Jones on all counts. At the sentencing
hearing, defense counsel raised several concerns with the
presentence investigation report and asked the court to correct
several items on it, including a minimum mandatory sentence of
twenty-four years. Counsel then asked that the court sentence
Jones to concurrent, rather than consecutive, sentences. The State
responded by arguing for consecutive sentences, citing the
circumstances of the murder and noting that Jones committed
the murder only five months after being released from prison
and had been arrested on another felony shortly after the
murder.

¶14 After reviewing the presentence investigation report,
noting defense counsel’s objections to the report, hearing from
Mother, and considering the State’s request, the trial court
sentenced Jones to five years to life in prison for the murder, five
years to life for the aggravated robbery, and one to fifteen years

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Jones v. State

for the drug conviction. The court ordered the prison terms to
run consecutively.

¶15 On direct appeal, Jones argued that (1) “the trial court
erred when it admitted Y-STR DNA evidence linking [him] to
the murder weapon,” (2) “the trial court erred when it denied
admission of [his] second police interview” or his counsel was
ineffective in failing “to put his statements during the police
interview into context,” (3) the trial court erred when it admitted
testimony that Jones believed was “anecdotal statistical
evidence,” (4) the State committed prosecutorial misconduct in
making certain statements in closing argument, and (5) “the
State’s evidence was insufficient to sustain convictions for
murder or aggravated robbery.” State v. Jones, 2015 UT 19, ¶ 1,
345 P.3d 1195. The Utah Supreme Court rejected Jones’s
arguments and affirmed his convictions. Id.

The Post-Conviction Proceedings

¶16 In 2016, Jones filed a pro se petition for post-conviction
relief in which he raised numerous grounds for relief. He
claimed that the trial court had committed several errors and
that he had received constitutionally ineffective assistance of
trial and appellate counsel in other various ways. The State
moved for summary judgment on every ground. According to
the State, Jones’s claims were either procedurally barred or failed
on their merits. Jones opposed the State’s motion, arguing,
among other things, that the procedural bars are
unconstitutional.

¶17 After a hearing, the district court granted the State’s
motion. The court ruled that Jones’s claims of trial court error
were procedurally barred, that his constitutional challenge to the
procedural bars were meritless, and that his claims of ineffective
assistance of counsel all failed as a matter of law. Accordingly,
the district court granted the State’s motion for summary

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judgment and denied Jones’s petition for post-conviction relief.
Jones appeals.

ISSUE AND STANDARD OF REVIEW

¶18 Jones contends that the district court erred in granting
summary judgment to the State and denying his petition for
post-conviction relief. We give no deference to the district court
in reviewing its grant of summary judgment or its order denying
a petition for post-conviction relief. Ross v. State, 2012 UT 93,
¶ 18, 293 P.3d 345. We review such rulings for correctness. Id.
We will affirm the grant of summary judgment “when the record
shows that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law.” Id. (cleaned up); see also Utah R. Civ. P. 56(a). “In making
this assessment, we view the facts and all reasonable inferences
drawn therefrom in the light most favorable to” Jones, the
nonmoving party. See Ross, 2012 UT 93, ¶ 18 (cleaned up).

ANALYSIS

¶19 At the outset, we recognize that Jones is a pro se litigant.
“Appellate courts are generally lenient with pro se litigants,”
Chaparro v. Torero, 2018 UT App 181, ¶ 33, 436 P.3d 339 (cleaned
up), and extend “every consideration that may reasonably be
indulged,” Allen v. Friel, 2008 UT 56, ¶ 11, 194 P.3d 903 (cleaned
up). But “reasonable indulgence is not unlimited indulgence,”
and generally parties who represent themselves “will be held to
the same standard of knowledge and practice as any qualified
member of the bar.” Id. (cleaned up). Thus, while a “lack of
technical knowledge of law and procedure should be accorded
every consideration that may reasonably be indulged,” pro se
litigants are still “required to adhere to procedural rules and the

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law.” State v. Boyles, 2015 UT App 185, ¶ 18 n.7, 356 P.3d 687
(cleaned up). 5

¶20 Utah appellate courts require a party to “explain, with
reasoned analysis supported by citations to legal authority and
the record, why the party should prevail on appeal.” Utah R.
App. P. 24(a)(8). We thus “require the appellant to address
reasons why the district court’s [rulings] should be overturned.”
Allen, 2008 UT 56, ¶ 14. And an appellant’s burden of persuasion
is not met “if the argument merely contains bald citations to
authority without development of that authority and reasoned
analysis based on that authority.” Bank of Am. v. Adamson, 2017
UT 2, ¶ 11, 391 P.3d 196 (cleaned up). While “we are reluctant to
penalize self-represented litigants for technical rule violations,
we will not assume an appellant’s burden of argument and
research.” Allen, 2008 UT 56, ¶ 9 (cleaned up). Our focus is “on
whether the appellant has established error, not on whether
there is a technical deficiency in briefing meriting a default.”
Chaparro, 2018 UT App 181, ¶ 34 (cleaned up).

¶21 With these standards in mind, we turn to the merits of
Jones’s appeal. 6 We first address his claims that the district court
determined were procedurally barred. We then address Jones’s
ineffective assistance of counsel claims.

5. “[T]here is no statutory or constitutional right to counsel in a
civil petition for post-conviction relief.” Hutchings v. State, 2003
UT 52, ¶ 20, 84 P.3d 1150.

6. Jones does not seek post-conviction relief from his conviction
for unlawful distribution of a controlled substance. Thus, our
analysis focuses on Jones’s murder and aggravated robbery
convictions.

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Jones v. State

I. Procedurally Barred Claims

¶22 Under the Post-Conviction Remedies Act (the PCRA), a
petitioner may seek relief from a criminal conviction or sentence
on various grounds. See Utah Code Ann. § 78B-9-104 (LexisNexis
2018). The PCRA has procedural bars that prevent petitioners
from seeking relief “upon any ground that . . . was raised or
addressed at trial or on appeal . . . [or] could have been but was
not raised at trial or on appeal.” Id. § 78B-9-106(1)(b)–(c). But
there is no procedural bar “if the failure to raise” a ground that
“could have been but was not raised at trial or on appeal” was
“due to ineffective assistance of counsel.” Id. § 78B-9-106(3)(a).

¶23 In this case, the district court determined that Jones’s
claims of trial court error were procedurally barred. See id.
§ 78B-9-106(1)(b)–(c). Those claims include that the trial court
erred in (1) denying his motion to sever his drug distribution
charge from his murder or aggravated robbery charges,
(2) denying what Jones described as his “motion to dismiss,”
(3) not granting his motion for a directed verdict, (4) not merging
his murder and aggravated robbery convictions, (5) not giving
the jury a special verdict form that would require jurors to make
express findings on which elements of murder were met,
(6) admitting into evidence alleged hearsay testimony from
Mother, and (7) allegedly ignoring that the car where Brennan
was discovered was “a mobile crime scene.”

¶24 Jones does not take issue with the district court’s
application of the procedural bars to these claims. Instead, he
asserts that (A) he is entitled to the application of the egregious
injustice exception for his procedurally barred claims and (B) the
PCRA’s procedural bars are unconstitutional.

A. Egregious Injustice Exception

¶25 Jones argues that we should apply the egregious injustice
exception to the PCRA’s procedural bars. Jones first raised this

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argument before the district court, which rejected it. The court
explained that there is “some uncertainty” over whether an
egregious injustice exception exists under Utah common law.
Regardless, the court determined that Jones “ha[d] not begun to
meet” the requirements for the exception.

¶26 Like the district court, we recognize that the general
availability of the egregious injustice exception is unsettled. See
Winward v. State, 2012 UT 85, ¶¶ 13–14, 17, 28, 293 P.3d 259;
Gardner v. State, 2010 UT 46, ¶¶ 92–94, 97, 234 P.3d 1115
(declining to decide whether any common law exception to the
PCRA’s procedural bars survived 2008 legislative amendments
to the PCRA). Notwithstanding this open question, in Winward
the Utah Supreme Court articulated “a framework for
considering a petitioner’s claim that he qualifies for an exception
to the PCRA’s procedural bars.” 2012 UT 85, ¶ 17. “First, as a
threshold matter, a petitioner must prove that his case presents
the type of issue that would rise to the level that would warrant
consideration of whether there is an exception to the PCRA’s
procedural bars.” 7 Id. ¶ 18. If the petitioner meets that threshold,
the petitioner must then “fully brief the particulars” of the
egregious injustice exception. Id. Last, the petitioner “must
demonstrate why the particular facts of his case qualify under
the parameters of the proposed exception.” Id. “Under this
framework, the petitioner bears the heavy burden of

7. “To satisfy this threshold question, [the petitioner] must
demonstrate that he has a reasonable justification for missing the
deadline combined with a meritorious defense.” Winward v.
State, 2012 UT 85, ¶ 18, 293 P.3d 259. “To prove that his case
meets the threshold test, a petitioner must persuade the court
that, given the combined weight of the meritoriousness of the
petitioner’s claim and the justifications for raising it late, the
court should consider recognizing an exception to the PCRA’s
procedural rules.” Id. ¶ 20 (cleaned up).

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demonstrating that his case presents . . . significant issues” that
would justify considering an exception to the PCRA’s procedural
bars. Id.

¶27 We conclude that even affording Jones every reasonable
consideration that he is due as a pro se litigant, see Allen v. Friel,
2008 UT 56, ¶ 11, 194 P.3d 903, and even assuming that the
egregious injustice exception could be available to Jones, he has
not satisfied his heavy burden under Winward. In an attempt to
surmount Winward’s threshold requirement, Jones emphasizes
that by the time of trial, this was a “cold case.” But this alone
does not persuade us that Jones’s “case presents the type of issue
that would rise to the level that would warrant consideration of
whether there is an exception to the PCRA’s procedural bars.”
See Winward, 2012 UT 85, ¶ 18. Jones also asserts that “ineffective
trial and appellate counsel” were responsible for not properly
raising issues at trial and on appeal. “But the mere allegation
that counsel was ineffective” is not sufficient to overcome
Winward’s threshold. See id. ¶ 21. Because Jones has not met
Winward’s threshold, much less briefed the particulars of the
exception or shown why his case qualifies “under the
parameters of the proposed exception,” see id. ¶ 18, we affirm the
district court’s refusal to invoke the egregious injustice
exception.

B. Constitutionality of the PCRA’s Procedural Bars

¶28 Jones next contends that the PCRA’s procedural bars
unconstitutionally invade the judiciary’s powers. In particular,
he argues that the PCRA’s procedural bars in Utah Code
subsections 78B-9-106(1)(b), (1)(c), (2), (3), and (4) violate the
Sixth and Fourteenth Amendments to the United States
Constitution, violate the open courts provision of the Utah
Constitution, and “encroach on the supreme court’s rulemaking
authority consistent with” Brown v. Cox, 2017 UT 3, 387 P.3d
1040.

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Jones v. State

¶29 The district court rejected Jones’s constitutional challenge
to the PCRA’s procedural bars. It explained that the Utah
Supreme Court “has already decided that Utah courts will
exercise whatever authority they have over post-conviction
remedies by applying the PCRA.” It also quoted the Advisory
Committee Notes to rule 65C of the Utah Rules of Civil
Procedure, which state that “it ‘is the committee’s view that the
added restrictions which the [PCRA] places on post-conviction
petitions do not amount to a suspension of the writ of habeas
corpus.’” And the district court concluded that “[b]y itself,
current rule 65C(a) defeats any claim that the PCRA encroaches
on the judiciary’s constitutional writ power.”

¶30 Although we give every reasonable indulgence to Jones
due to his pro se status, see Allen, 2008 UT 56, ¶ 11, his
constitutional argument falls short of showing why he should
prevail on appeal, see Utah R. App. P. 24(a)(8). We do appreciate
that Jones has acknowledged the district court’s rationale and
has cited some legal authority in support of his position. Yet his
argument lacks development and “reasoned analysis based on
. . . authority.” Bank of Am. v. Adamson, 2017 UT 2, ¶ 11, 391 P.3d
196 (cleaned up). Moreover, the issue Jones raises—the
constitutionality of the PCRA’s procedural bars—is complex and
demands a deeper analysis than Jones provides on appeal. See
Ramos v. Cobblestone Centre, 2020 UT 55, ¶ 48 (explaining that the
“mere mention of a constitutional right, phrase, or principle does
not raise a constitutional claim” and that “in addition to
identifying the provision allegedly infringed, a party must
develop an argument as to how that provision has been
violated” (cleaned up)). Thus, while we afford Jones “some
leeway because he is a pro se appellant, we cannot write his
appeal for him or decide his case without sufficient briefing.” See
Allen, 2008 UT 56, ¶ 17; see also Utah Physicians for a Healthy Env’t
v. Executive Dir. of the Utah Dep’t of Envtl. Quality, 2016 UT 49,
¶ 27, 391 P.3d 148 (“If we were to ignore the Petitioners’ error
and supplement the Petitioners’ inadequate brief with our own

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research and arguments, we would be abandoning our proper
judicial function.”). As a result, we are in no position to overturn
the district court’s decision rejecting Jones’s constitutional
challenge to the PCRA’s procedural bars.

¶31 For these reasons, we affirm the district court’s grant of
summary judgment to the State on Jones’s procedurally barred
claims. We now shift our attention to Jones’s ineffective
assistance of counsel claims.

II. Ineffective Assistance of Counsel Claims

¶32 Jones contends that the district court erred in granting
summary judgment on his claims of ineffective assistance of
counsel. Although “claims relating to ineffective assistance of
counsel may be procedurally barred under the PCRA,” a claim
in a post-conviction petition that could have been but was not
raised at trial or on appeal “is not barred if the failure to raise [it]
was due to ineffective assistance of counsel.” See Johnson v. State,
2011 UT 59, ¶¶ 10–11, 267 P.3d 880 (cleaned up); see also Utah
Code Ann. § 78B-9-106(3)(a) (LexisNexis 2018). Because Jones
alleges that his claims of trial counsel’s ineffectiveness were not
raised on his direct appeal due to appellate counsel’s ineffective
assistance, his ineffective assistance claims are not procedurally
barred. “To determine whether appellate counsel’s failure to
raise trial counsel’s ineffectiveness was itself due to ineffective
assistance of counsel, we must examine the merits of the claim of
ineffective assistance of trial counsel.” Ross v. State, 2012 UT 93,
¶ 25, 293 P.3d 345 (cleaned up). We examine the merits of that
claim “only to the extent required to address the ineffective
assistance of appellate counsel claim.” Id. (cleaned up); see also
Utah Code Ann. § 78B-9-106(4). If Jones is unable to establish
ineffective assistance of his trial counsel, it follows that his
claims of appellate counsel’s ineffectiveness necessarily fail. See,
e.g., Zaragoza v. State, 2017 UT App 215, ¶¶ 29, 36, 40, 407 P.3d
1122.

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¶33 Jones “bears the burden of pleading and proving that he
is entitled to relief under the PCRA.” Arriaga v. State, 2020 UT 37,
¶ 12; see also Utah Code Ann. § 78B-9-105(1)(a) (LexisNexis 2018).
When “the State responds to a PCRA petition by filing a motion
for summary judgment,” it must show “it is entitled to judgment
and there is no genuine issue of material fact that would
preclude summary judgment in its favor.” Arriaga, 2020 UT 37,
¶ 12 (cleaned up). When “the burden of production falls on the
nonmoving party”—here, Jones—“the moving party may carry
its burden of persuasion . . . by showing that the nonmoving
party has no evidence to support an essential element of a
claim.” Id. (cleaned up). Because Jones “bears the burden of
proving ineffective assistance, he cannot rest on his allegations
alone, particularly when the parties had an opportunity to
conduct discovery.” See Menzies v. State, 2014 UT 40, ¶ 81, 344
P.3d 581 (cleaned up). “Instead, he must set forth specific facts
showing that there is a genuine issue for trial.” 8 See id. (cleaned
up).

¶34 To prevail on an ineffective assistance of counsel claim
under the PCRA, Jones must meet his burden of proof on the
two elements of Strickland v. Washington, 466 U.S. 668 (1984). See
Arriaga, 2020 UT 37, ¶ 45. The failure to make the required
showing on either element “defeats the ineffectiveness claim.”
Strickland, 466 U.S. at 700.

¶35 Under Strickland, Jones must first establish that his
counsel rendered “deficient performance” in that “counsel’s
representation fell below an objective standard of

8. Jones complains that the district court did not hold an
evidentiary hearing. But when, as here, there is no genuine issue
of material fact, a court does not abuse its discretion in denying
an evidentiary hearing before ruling on summary judgment. See
Menzies v. State, 2014 UT 40, ¶ 69, 344 P.3d 581.

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reasonableness.” Id. at 687–88. “Counsel’s performance,
however, is not deficient if counsel refrains from making futile
objections, motions, or requests.” Lucero v. State, 2016 UT App
50, ¶ 7, 369 P.3d 469 (cleaned up).

¶36 Second, Jones must establish that “the deficient
performance prejudiced the defense,” which means that “there is
a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 687, 694. This element “requires a court
to ‘consider the totality of the evidence before the judge or
jury’ and then ‘ask if the defendant has met the burden
of showing that the decision reached would reasonably
likely have been different absent the errors.’” State v. Garcia,
2017 UT 53, ¶ 28, 424 P.3d 171 (quoting Strickland, 466 U.S. at
695–96). “It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the
proceeding.” Strickland, 466 U.S. at 693. Rather, “[t]he likelihood
of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011); accord State v.
Gallegos, 2020 UT 19, ¶ 64, 463 P.3d 641. Thus, the second
Strickland element “is a relatively high hurdle to overcome.”
Garcia, 2017 UT 53, ¶ 44. Moreover, “proof of ineffective
assistance of counsel cannot be a speculative matter but must be
a demonstrable reality.” Lynch v. State, 2017 UT App 86, ¶ 67, 400
P.3d 1047 (cleaned up).

¶37 Jones’s various ineffective assistance of counsel
claims break down into the following categories: (A) trial
counsel’s allegedly insufficient pretrial investigation, (B)
trial counsel’s failure to make certain objections or
arguments, and (C) appellate counsel’s failure to raise these
claims of trial counsel’s ineffectiveness on direct appeal. Having
set forth the relevant standards, we address each of Jones’s
claims below.

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A. Trial Counsel’s Alleged Failure to Investigate

¶38 Jones contends that his trial counsel provided ineffective
assistance by failing to conduct certain pretrial investigations,
which he claims would have led to evidence helpful to his
defense. Specifically, he asserts that trial counsel should have
requested DNA testing on a blond hair found on the side of the
car and DNA testing on Brennan’s pants; should not have
allowed the State to dispose of the car; should have investigated
local park cameras for footage of Brennan’s car; and should have
investigated Yazzie, as well as other individuals mentioned in
the police reports.

¶39 Even if we assume, without deciding, that trial
counsel performed deficiently in these ways, we conclude
that Jones has not shown prejudice resulting from counsel’s
deficient performance. Generally, counsel’s failure “to
reasonably investigate and present evidence that was crucial to
the defense” is prejudicial “when [the] evidence would have
affected the entire evidentiary picture.” Gregg v. State, 2012 UT
32, ¶ 26, 279 P.3d 396 (cleaned up). “To determine the overall
effect of such evidence,” appellate courts “consider the totality of
the evidence, taking into account such factors as whether the
errors affect the entire evidentiary picture or have an isolated
effect and how strongly the verdict is supported by the record.”
Id. (cleaned up).

¶40 Jones has not proffered what specific evidence
further investigation would have yielded and how that
evidence “would have affected the entire evidentiary picture.”
See id. (cleaned up). All he does is “rest on his allegations
alone,” but that is not enough to defeat summary judgment.
See Menzies v. State, 2014 UT 40, ¶ 81, 344 P.3d 581 (cleaned up).
Rather, because Jones has the burden of proving his claims
of ineffective assistance of counsel, see Arriaga v. State, 2020
UT 37, ¶ 12, he “must set forth specific facts” showing a

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reasonable likelihood of a different result had trial
counsel pursued the various lines of investigation, see
Menzies, 2014 UT 40, ¶ 81 (cleaned up). Jones has not met
that burden. For example, he has not shown, or even surmised,
what additional testing on the blond hair outside the car
would have revealed, what park cameras (assuming they
even existed) would have shown, what keeping the car
would have produced, or what investigation into Yazzie
would have revealed. He merely speculates that further
investigation would have produced evidence favorable to
the defense that in turn would have created reasonable doubt
for the jury. But this speculation falls short of establishing
that the likelihood a different result in this case is “substantial,
not just conceivable.” See Harrington v. Richter, 562 U.S. 86,
112 (2011); accord State v. Gallegos, 2020 UT 19, ¶ 64, 463 P.3d
641; see also Lynch v. State, 2017 UT App 86, ¶ 67, 400 P.3d
1047 (“Proof of ineffective assistance of counsel cannot be
a speculative matter but must be a demonstrable reality.”
(cleaned up)).

¶41 Moreover, the record evidence against Jones was
strong. See Gregg, 2012 UT 32, ¶ 26. Although Jones describes
the State’s case as weak and circumstantial, the State’s case
was far from that. There was Y-STR DNA evidence linking
Jones to Brennan and the belt used to strangle her. Additionally,
Jones admitted to being with Brennan on the night she
was murdered, and there were inconsistencies in the story
he told police. Because Jones has not shown that more
investigation would have uncovered something that would
have undermined the State’s case or materially altered the
evidentiary landscape in a manner that would have reasonably
led to a more favorable result at trial, we conclude that
Jones’s ineffective assistance of counsel claims tied to trial
counsel’s pretrial investigation fail as a matter of law due to lack
of prejudice.

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Jones v. State

B. Trial Counsel’s Failure to Make Certain Objections and
Arguments

¶42 Jones contends that his trial counsel rendered ineffective
assistance by failing (1) to properly explain the science on Y-STR
DNA, (2) to argue that the investigation concerned a “mobile
crime scene,” (3) to object to Mother’s alleged hearsay testimony,
(4) to request a special verdict form, (5) to move for merger of
Jones’s convictions for murder and aggravated robbery, and
(6) to object to consecutive sentences.

1. Y-STR DNA Evidence

¶43 Jones contends that trial counsel did not properly address
the Y-STR DNA and “failed to argue that the Y-STR [DNA]
cannot conclusively identify him as the perpetrator.” But he
acknowledges that “arguing a statistical probability with the
Y-STR DNA test . . . standing alone would not have been a
worthy objection or argument.”

¶44 The district court determined that this ineffectiveness
claim failed as a matter of law. On deficient performance, the
district court determined that dwelling further on the Y-STR
DNA evidence “would not have played well for the defense”
and that trial counsel “instead reasonably chose to focus on other
alleged gaps in the State’s forensic case,” including “not testing
Yazzie, not testing the blond hair sample, along with other
evidence at the crime scene suggesting other suspects.” We
discern no error in the district court’s rationale.

¶45 First, the record undermines Jones’s complaint that trial
counsel did not argue to the jury that the Y-STR DNA evidence
failed to prove beyond a reasonable doubt that Jones was the
perpetrator. Referencing the testimony of the DNA experts, trial
counsel argued that “it’s easier to catch someone’s DNA than it
is to catch their cold,” and thus it would not be surprising to find
Jones’s DNA in Brennan’s car and under her fingernails where

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Jones v. State

Jones claimed they sat in the car and shared a cigarette and a
crack pipe. 9 Hence, trial counsel made the very argument Jones
claims counsel did not make.

¶46 Second, trial counsel’s approach to the Y-STR DNA
evidence did not fall below an objective standard of
reasonableness. See State v. Ray, 2020 UT 12, ¶ 34 (“If it appears
counsel’s actions could have been intended to further a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance.”). Apart from offering the jury an
explanation for how Jones’s DNA may have found its way under
Brennan’s fingernails, it was not objectively unreasonable for
trial counsel to focus on other unanswered questions. After all,
the DNA evidence was damaging to Jones where only 0.4% of
the male population was not excluded by the DNA testing, while
other gaps in the State’s investigation—including the untested
blond hair and questions about Yazzie—provided trial counsel
with grounds to attack the State’s case and to argue for
reasonable doubt.

¶47 Because Jones has not shown that trial counsel’s treatment
of the DNA evidence was objectively deficient, he has not
established ineffective assistance in this regard.

2. Mobile Crime Scene

¶48 Jones also claims that trial counsel should have further
argued that the investigation concerned a “mobile crime scene.”
The district court rejected this ineffective assistance claim
because Jones did not show how emphasizing the “mobile crime
scene” would have been “an obvious strategy” or how doing so
would have helped the defense, especially when the “jury was
well aware that the murder took place in [Brennan’s] Honda.”

9. On appeal, Jones states, “I’m not contesting the fact of whether
or not my DNA was in the car.”

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Jones v. State

Jones’s arguments on appeal suffer from these same
shortcomings. We thus conclude that Jones has not established
either deficient performance or prejudice, and we affirm the
district court’s conclusion that this claim fails as a matter of law.

3. Mother’s Testimony

¶49 Jones contends that his trial counsel should have objected
to Mother’s testimony about the money that Brennan had in her
wallet. In his view, Mother’s testimony was inadmissible
hearsay and the only evidence of robbery. The district court
determined that this ineffective assistance claim failed as a
matter of law because any objection to Mother’s testimony
would have been futile. The district court was correct.

¶50 Hearsay is an out-of-court statement made to prove
the truth of the matter asserted. 10 Utah R. Evid. 801(c). We
agree with the district court that Mother’s testimony about
the amount of money she believed Brennan had at the time
of the murder was not hearsay; indeed, it was an in-court
statement based on Mother’s personal observations and was not
about an out-of-court statement. As a result, trial counsel had no
basis to lodge a hearsay objection and cannot be deemed
ineffective for failing to object. See Lucero v. State, 2016 UT App
50, ¶ 7, 369 P.3d 469 (noting that counsel does not perform
deficiently by “refrain[ing] from making futile objections”
(cleaned up)).

10. Because an ineffective assistance of counsel claim
“necessarily requires the court to look at the substantive issue
the defendant argues his counsel should have raised, and
whether the substantive issue had any merit,” we look at the
substantive issue only “through the lens of counsel’s
performance.” State v. Johnson, 2017 UT 76, ¶ 22, 416 P.3d 443.

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Jones v. State

4. Special Verdict Form

¶51 Jones contends that because there were three possible
variants of murder presented to the jury, his trial counsel should
have requested a special verdict form that would have required
the jury to identify the variant of murder on which all jurors
agreed. He believes that the failure led to a “patchwork verdict,”
resulting in the possibility that jurors were not unanimous
regarding the variant of murder.

¶52 The jury was instructed on three variants of murder.
Specifically, it was instructed that Jones committed murder if he
caused Brennan’s death

(a) intentionally or knowingly; or

(b) acting under circumstances evidencing a
depraved indifference to human life, he knowingly
engaged in conduct which created a grave risk of
death to another and which conduct caused
[Brennan’s] death . . . ; or

(c) engaged in the commission, attempted
commission, or immediate flight from the
commission or attempted commission of Robbery,
and caused [Brennan’s] death . . . in the course of
the commission or attempted commission, or
immediate flight from the commission or
attempted commission of Robbery.

See Utah Code Ann. § 76-5-203(2)(a), (c), (d) (LexisNexis Supp.
2003). Without identifying a specific variant, the jury found
Jones guilty of murder.

¶53 The district court concluded that Jones had not shown
prejudice from his trial counsel’s failure to request a special
verdict form. In other words, the court concluded that had the

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Jones v. State

jury been given a special verdict form, there was no reasonable
likelihood of a different result. See Strickland v. Washington, 466
U.S. 668, 687, 694 (1984).

¶54 The district court reasoned that even if a special verdict
form should have been used, “the record evidence amply
supported any one of the variants” of murder. On felony
murder, the court concluded that “[t]here is no . . . reasonable
dispute that [Jones] murdered [Brennan] or that he committed
felony murder by killing [her] during a robbery.” On depraved
indifference, the court explained that the mental state was
“evident from [Brennan’s] wounds alone”; she was “found in the
back of her car, strangled to death with a belt, with a slash to her
throat and defensive wounds on her hands.” The court
concluded that “the violent strangling and throat slashing”
established “depraved indifference to human life.” On
intentional or knowing murder, the court noted that Brennan’s
“wounds alone” evidenced a knowing mental state, and the
“manner of the killing supports nothing less than an intentional
murder.” According to the court, the intentional mental state
was also corroborated by other evidence, including Brennan’s
lost wallet and money, Jones’s “admitted association with” her,
“his rare [DNA profile] under [Brennan’s] fingernails and on the
murder weapon,” and “inconsistencies in [Jones’s] accounts.”
Because of the ample evidence on each variant of murder
presented to the jury, the district court determined that no
prejudice resulted from trial counsel’s failure to request a special
verdict form.

¶55 Jones has not shown error in the court’s decision. Far
from discussing the record evidence to explain why the district
court was wrong, Jones simply maintains that there is “want for
evidence in this case for all elements for all offenses.” But this
falls short of demonstrating a reasonable likelihood that a special
verdict form would have led to a different verdict. And where
there was ample evidence on each variant of murder, it is

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Jones v. State

unlikely that the jury would have acquitted Jones had it been
asked to agree on a single variant. See State v. Percival, 2020 UT
App 75, ¶¶ 27, 29, 33–34, 464 P.3d 1184. As a result, we affirm
the district court’s ruling that this ineffective assistance claim
failed as a matter of law based on lack of demonstrated
prejudice.

5. Merger

¶56 Jones contends that after the jury found him guilty, trial
counsel should have moved to merge his murder and
aggravated robbery convictions. He argues that the convictions
would merge because robbery is a predicate offense of felony
murder, which was the third variant of murder given to the jury.
See Utah Code Ann. § 76-5-203(2)(d) (LexisNexis Supp. 2003); see
also id. § 76-5-203(1)(s), (t) (listing robbery and aggravated
robbery as a “predicate offense” for felony murder). 11 The
district court concluded that any such merger motion would
have been futile and that trial counsel’s performance therefore
did not fall below an objective standard of reasonableness. The
district court was correct.

¶57 Under the merger statute, a defendant “may be convicted
of an offense included in the offense charged but may not be
convicted of both the offense charged and the included offense.”
Id. § 76-1-402(3) (2017). An offense is included and must be
merged when it “is established by proof of the same or less than

11. The current version of the murder statute explicitly provides
that aggravated robbery as the predicate offense to murder
“constitutes a separate offense” and “does not merge with the
crime of murder.” Utah Code Ann. § 76-5-203(1)(t), (5)
(LexisNexis 2017). The version in effect at the time of Jones’s
offenses, however, did not have such a provision. See generally id.
§ 76-5-203 (Supp. 2003).

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Jones v. State

all the facts required to establish the commission of the offense
charged.” Id. § 76-1-402(3)(a). The Utah Supreme Court has held
that “a conviction for felony murder does not merge with its
underlying predicate felony.” State v. Fedorowicz, 2002 UT 67,
¶ 60, 52 P.3d 1194. It has also rejected merger in a case with
analogous facts. In State v. Bisner, 2001 UT 99, 37 P.3d 1073, the
defendant, like Jones, was convicted of murder and aggravated
robbery and argued that the convictions should merge. Id. ¶¶ 1,
62. Also like Jones, the defendant there had been charged “with
murder under three alternate theories,” including killing the
victim “intentionally or knowingly” and “that he did so while in
the commission of aggravated robbery.” Id. ¶ 64. And in light of
the case law holding that such convictions do not merge and the
fact that the evidence was sufficient for the jury to find that the
murder was committed intentionally or knowingly, the supreme
court held that the defendant’s convictions did not merge. Id.
¶¶ 62–65.

¶58 The same circumstances exist here. Jones attempts to
distinguish this precedent on two grounds. He first claims that
Bisner did “not involve cold cases,” but we fail to see the
relevance of this distinction and conclude that Bisner applies
regardless of whether this was a cold case. He next claims that
Bisner, unlike his case, involved sufficient evidence of guilt. But
we agree with the district court that the State’s evidence,
particularly the manner of killing, “showed nothing less than an
intentional or knowing mental state.” See generally State v. Jones,
2015 UT 19, ¶¶ 69–70, 345 P.3d 1195 (noting the three alternative
theories for the murder and concluding that “the State presented
sufficient evidence to allow the jury to reasonably find all
required elements for the crime of murder”).

¶59 Because of the authority on this subject, any motion to
merge Jones’s murder and aggravated robbery convictions
would have been futile. Trial counsel therefore did not perform
deficiently. See Lucero v. State, 2016 UT App 50, ¶ 7, 369 P.3d 469

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Jones v. State

(noting that counsel does not perform deficiently by
“refrain[ing] from making futile objections, motions, or
requests” (cleaned up)). Accordingly, as a matter of law, Jones
cannot establish ineffective assistance of counsel in this regard.

6. Consecutive Sentences

¶60 Jones next contends that his trial counsel was ineffective
at the sentencing stage by failing to adequately oppose the
imposition of consecutive sentences. The district court concluded
that this claim failed because Jones had not shown deficient
performance or prejudice. Again, we agree with the district
court.

¶61 If “a defendant has been adjudged guilty of more than
one felony offense,” the sentencing court “shall determine . . .
whether to impose concurrent or consecutive sentences for the
offenses.” Utah Code Ann. § 76-3-401(1) (LexisNexis 2017). “In
determining whether state offenses are to run concurrently or
consecutively, the court shall consider the gravity and
circumstances of the offenses, the number of victims, and the
history, character, and rehabilitative needs of the defendant.” Id.
§ 76-3-401(2). Generally, “we presume that the district court
made all the necessary considerations when making a sentencing
decision.” State v. Moa, 2012 UT 28, ¶ 35, 282 P.3d 985.

¶62 We agree with the district court that Jones has not shown
that trial counsel’s performance at sentencing fell below an
objective standard of reasonableness. Rather, trial counsel
reasonably advocated for Jones by asking for concurrent
sentences and requesting that the court correct several items on
the presentence investigation report. We also agree that Jones
cannot show a reasonable likelihood of a different sentence.
Jones has given us no reason to believe that the trial court did
not consider all the relevant statutory factors and that additional
argument from trial counsel had a reasonable likelihood of
persuading the court that his sentences should run concurrently.

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Jones v. State

Accordingly, we affirm the district court’s ruling on this claim of
ineffective assistance of counsel.

C. Appellate Counsel’s Performance

¶63 Finally, Jones contends that his claims of ineffective
assistance of appellate counsel do not fail as a matter of law.
“The standard for evaluating whether appellate counsel is
ineffective is the same Strickland standard used to determine
whether trial counsel is ineffective.” Kell v. State, 2008 UT 62,
¶ 42, 194 P.3d 913. And “to show that appellate counsel was
ineffective in failing to raise a claim, the petitioner must show
that the issue was obvious from the trial record and probably
would have resulted in reversal on appeal.” Id. (cleaned up). The
district court thus determined that because Jones’s trial counsel
was not ineffective, “appellate counsel would have been unable
to argue ineffectiveness” and Jones had shown “nothing obvious
from the record that would have compelled appellate counsel to
raise trial counsel’s ineffectiveness or that would have likely
resulted in reversal.” We agree with the district court. Because
Jones’s trial counsel was not constitutionally ineffective in the
ways Jones alleges, Jones’s appellate counsel was not ineffective
for failing to argue on direct appeal that trial counsel was
ineffective. See, e.g., Zaragoza v. State, 2017 UT App 215, ¶ 40, 407
P.3d 1122.

CONCLUSION

¶64 Jones has not shown that the district court erred in
granting summary judgment to the State on his claims of trial
court error. Nor has he shown that the district court erred in
determining that his claims of ineffective assistance of counsel
failed as a matter of law. Accordingly, we affirm.

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