State v. Cunningham

1. The Honorable Russell W. Bench, Senior Judge, sat by special
assignment as authorized by law. See generally Utah Code Jud.
Admin. R. 11-201(6).
2013 UT App 277
_________________________________________________________
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Plaintiff and Appellee,
v.
JUSTIN CUNNINGHAM,
Defendant and Appellant.
Opinion
No. 20120475-CA
Filed November 21, 2013
Eighth District Court, Vernal Department
The Honorable Clark A. McClellan
No. 111800327
Colleen K. Coebergh, Attorney for Appellant
John E. Swallow and Michelle I. Young,
Attorneys for Appellee
JUDGE CAROLYN B. MCHUGH authored this Opinion,
in which JUDGE MICHELE M. CHRISTIANSEN and SENIOR JUDGE
RUSSELL W. BENCH concurred.1
McHUGH, Judge:
¶1 Justin Cunningham appeals from his conviction for distribu-
tion of a controlled substance within 1,000 feet of a church and
recreation center, a first degree felony, see Utah Code Ann. § 58-37-

State v. Cunningham
2. Because there have been no substantive changes to the relevant
sections of the Utah Code, we cite the current version for the
convenience of the reader.
3. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346 (citation and internal
quotation marks omitted).
20120475-CA 2 2013 UT App 277
8(1)(a)(ii), (4)(a), (4)(b)(i) (LexisNexis 2012). In particular, he argues2
that trial counsel performed ineffectively and that the trial court
plainly erred because trial counsel did not withdraw as counsel to
provide testimony on behalf of the defense. We conclude that trial
counsel did not perform deficiently and that there was no obvious
error that should have been corrected by the trial court. As a result,
we affirm.
BACKGROUND3
¶2 On April 1, 2011, a confidential informant (Informant)
working for local law enforcement arranged to meet Mr.
Cunningham, with whom she was already acquainted, to purchase
methamphetamine in Uintah County, Utah. Although police
officers typically have an informant wear a transmitting wire so the
officers can ensure the safety of the informant during drug
transactions, there was a risk that Mr. Cunningham would check
Informant for such a device before the drug deal. Consequently,
Officer Bevan Watkins decided to monitor the transaction by
having Informant carry a cellular telephone with an open line to his
telephone. In accordance with that plan, Informant called Officer
Watkins’s cellular telephone and then placed her cellular telephone
in her pocket while still connected. Officer Watkins then activated
the speaker on his telephone so that he and Officer Michael
Gledhill, another officer involved in the operation, could hear the

State v. Cunningham
4. The microphone on Officer Watkins’s cellular telephone was
muted so that nothing could be heard by Mr. Cunningham.
20120475-CA 3 2013 UT App 277
deal through the open line. Officer Watkins also tried to record4
what was transmitted over the open telephone line but explained
at trial, “I’m not very good at the smartphone and so it didn’t—I
couldn’t pull it back up. But my main concern was that I could hear
[Informant].”
¶3 Although Officers Watkins and Gledhill listened to the
transaction over the open telephone line, they did not arrest Mr.
Cunningham at that time in order to preserve Informant’s
effectiveness as an informant. Mr. Cunningham was arrested
several months later at a different location and charged with one
count of distribution of a controlled substance, enhanced to a first
degree felony because the offense occurred within 1,000 feet of a
church and a recreation center.
¶4 At a jury trial held on April 2, 2012, Officer Watkins related
in detail what he heard during the transaction. He explained that
Informant proceeded to Mr. Cunningham’s location and that
Officer Watkins was able to hear a “short conversation” over the
telephone during their exchange that was “something about come
back later.” Informant then left Mr. Cunningham and returned to
the officers. They waited about forty minutes before Informant
returned to Mr. Cunningham’s location. With respect to this second
exchange between Informant and Mr. Cunningham, Officer
Watkins testified as follows:
Q. Let me just ask you then the second time, let’s
get more details about that. Were you able to
hear anything on the phone during the second
time that there was an attempt to make
contact with [Mr.] Cunningham?
A. I could hear a male subject that mentioned
he’d have to go get the meth. I don’t

State v. Cunningham
20120475-CA 4 2013 UT App 277
remember the exact wording. It was
somewhat hard to hear because the phone
was in [Informant’s] pocket. We didn’t want
it obvious. Of course, it was easier to hear
[Informant] because the phone was on her.
¶5 Officer Watkins continued his testimony, stating that
Informant gave Mr. Cunningham $120 and Mr. Cunningham then
left to retrieve the methamphetamine from a different location
while Informant waited. Officer Watkins reported that when Mr.
Cunningham returned, he gave the methamphetamine to
Informant. The direct examination of Officer Watkins included the
following exchange:
Q. Were you able to hear any of that
conversation?
A. It was muffled, I couldn’t tell you verbatim
what it was, just that there was something
mentioned about possibly smoking meth, but
I don’t know the details. Like I say, it was
kind of difficult to hear. Something about she
gave an excuse that she had to leave. Don’t
know the details of that. But I could just hear
bits and pieces. Once again, this was kind of a
last minute setup. It was basically a safety
issue, make sure that [Informant] was safe.
¶6 The prosecutor then asked Officer Watkins whether he was
“able to identify the sound or the voice,” and trial counsel objected.
After a discussion off the record, the prosecutor provided
foundation for his prior question to Officer Watkins:
Q. Without going into any detail, have you had
any occasion to hear Mr. Cunningham’s voice
prior to April 1st of 2011?
. . . .
A. No, I did not.

State v. Cunningham
20120475-CA 5 2013 UT App 277
Q. So the voice that you heard, were you able to
identify who it was?
A. Later I was.
Q. Okay. Let me ask you then, after this
occurred, have you had any chance to listen to
[Mr.] Cunningham’s voice?
A. I have.
Q. But at the time you hadn’t heard his voice?
A. That is correct.
Q. Having heard his voice after April 1st of 2011,
were you able to make any conclusions as to
who you believed you heard on the
telephone, the male subject on the telephone
on April 1st, 2011?
A. It was my belief that it was Mr. Cunningham.
There was a comparison. I couldn’t tell you
for 100—you know, I just, once again, it was
kind of hard to hear him. But listening
to—afterwards there was a comparison, yes.
¶7 During cross-examination, trial counsel established that
Officer Watkins never saw Mr. Cunningham during the transaction
and that he relied on Informant’s report that she met with Mr.
Cunningham. Trial counsel then questioned Officer Watkins about
his attempts to record the incident.
Q. And you said that you tried to record
something; is that correct?
A. As far as a phone conversation I did, yes.
Q. Yeah, with a telephone, correct?
A. That is correct.
Q. Now, I met with you about a month ago, do
you remember?
A. Yes.
Q. In your office, do you remember?
A. Yes, I do.

State v. Cunningham
20120475-CA 6 2013 UT App 277
Q. And we tried to listen to that tape recording,
correct?
A. Yes, I couldn’t open the phone one up, yes.
Q. And we couldn’t—there wasn’t anything on
there, was there?
A. I couldn’t even get it to open in my computer.
Once again, that was the first time I ever tried
that.
Q. So we—the technology that you had didn’t
have anybody’s voice on it the day that I sat
with you, did it?
A. I was unable to open that recording.
¶8 Following Officer Watkins’s cross-examination and outside
of the presence of the jury, Mr. Cunningham’s trial counsel moved
to dismiss the case, alleging that the State had failed to disclose
exculpatory evidence because it had never provided the recording
of the drug transaction to the defense. Trial counsel explained that
the court had ordered the State to turn over a copy of the recording
of the transaction but that the State had asked the court to modify
that order so that trial counsel would only be allowed to listen to
the recording. Trial counsel reported, “[M]y recollection of what
happened is that [the] tape was played and you couldn’t hear
anything on it whatsoever.” He then argued that now that
“[Officer] Watkins has testified that he could hear something and
that the voice was similar to my client’s, I believe that I’m entitled
to now play that to the jury to show them that nobody—to impeach
his testimony.”
¶9 In response, the prosecutor explained that Officer Watkins
was not testifying as to the content of the recording but from his
own memory of the conversation that he had heard through the
cellular telephone. The prosecutor confirmed that the recording
made by Officer Watkins could not be retrieved and, therefore, the
State had not withheld any evidence from Mr. Cunningham. The
trial court agreed with the prosecutor, stating, “The evidence is
clear that there was never a recording provided because it wasn’t

State v. Cunningham
20120475-CA 7 2013 UT App 277
available.” The trial court also noted, “[Officer Watkins’s]
credibility won’t be impeached . . . because the basis of [his
testimony] is not the recording. The basis of it is his recollection of
the conversation.” Accordingly, the trial court denied the motion
and instructed trial counsel that he could “cross-examine [Officer
Watkins] all [he] want[s] on” what happened when Officer Watkins
tried to play the recording for trial counsel.
¶10 Trial counsel urged the trial court to reconsider its ruling,
reiterating that Officer Watkins was able to open the audio file, but
that they “sat there for 20 minutes to 30 minutes and heard
nothing.” He argued that if he had the disk, he could play it for the
jurors and say, “[N]o, that’s not right, here’s what it sounded like.”
The trial court then interjected, “But Mr. Watkins didn’t testify that
his memory was based on the recording. His testimony is based on
his recollection.” At that point, trial counsel interrupted, stating, “I
understand that.” But he asserted that with the recording, he could
impeach Officer Watkins’s recollection and credibility by showing
that nothing was on the recording. The trial court refused to
reconsider its decision to deny the motion to dismiss, again
explaining that Officer Watkins’s credibility would not be
impeached by playing the recording on which no voices could be
heard because the basis of his testimony was not the recording but
his recollection of the conversation.
¶11 Next, Informant testified. She admitted that she has used
illegal drugs, including methamphetamine and pills, that she has
been arrested for theft, and that she first became a police informant
to “work off a theft charge.” She took a job as an informant with
the Uintah Basin Narcotic Strike Force and earned $80 per deal.
Informant then explained that she knew Mr. Cunningham before
the April 1, 2011 deal as her stepsister’s methamphetamine dealer.
Informant proceeded to describe the transaction and visually
identify Mr. Cunningham as the individual who had sold her the
drugs.

State v. Cunningham
5. We are unable to determine from the record whether there were
two attempts to record the transaction, namely one by the
application on Officer Watkins’s smartphone and one by a separate
digital recorder.
20120475-CA 8 2013 UT App 277
¶12 Officer Gledhill also testified and indicated that he was with
Officer Watkins when they listened to the drug transaction over
Officer Watkins’s telephone. Officer Gledhill reported that Officer
Watkins “also had a digital recorder and that’s how we were
recording the transaction so we could listen to what was going on
at the residence.” Officer Gledhill was unaware whether the5
attempt to record the conversation had been successful.
¶13 After the State rested, the defense called a witness
(Resident), who testified that he lived at the address where the
drug transaction with Informant took place on the date of the
transaction and that Mr. Cunningham did not live there. On cross-
examination, Resident denied selling the methamphetamine to
Informant and stated that he did not know if someone else at the
house had sold it to her. He admitted that he had been convicted
of possession of controlled substances, including
methamphetamine, and of obstructing the police. Resident also
conceded that he and Mr. Cunningham are friends.
¶14 The defense next called a woman who testified that Mr.
Cunningham was living with her and her family at the time of the
drug transaction. She was certain of the date because she returned
from a trip to visit her sick mother on April 1, 2011. The woman
testified that Mr. Cunningham was in the basement with her son
when she came in from the airport. However, she admitted on
cross-examination that she went to bed at 7 p.m. and had “no idea
what [Mr. Cunningham] did after that.” The woman’s son also
testified for the defense. He corroborated his mother’s testimony
that Mr. Cunningham lived with their family on April 1, 2011, and
that Mr. Cunningham was home on that day. According to the son,
he and Mr. Cunningham were together at the family’s house on

State v. Cunningham
20120475-CA 9 2013 UT App 277
April 1, 2011, until after midnight. A neighbor of the woman also
testified that Mr. Cunningham lived with the family for a period of
time; however, the neighbor did not have “any idea on [the] time
period.”
¶15 The jury convicted Mr. Cunningham of distributing a
controlled substance within 1,000 feet of a church and a recreation
center. Mr. Cunningham was subsequently sentenced to five years
to life in the Utah State Prison. Mr. Cunningham appeals.
ISSUES AND STANDARDS OF REVIEW
¶16 Mr. Cunningham argues that his trial counsel provided
ineffective assistance when he failed to obtain exculpatory material
in the form of trial counsel’s own testimony regarding Officer
Watkins’s recording of the drug deal. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a question
of law.” State v. Clark, 2004 UT 25, ¶ 6, 89 P.3d 162.
¶17 Mr. Cunningham also claims that the trial court plainly
erred by not sua sponte declaring a mistrial and replacing trial
counsel so that counsel could testify regarding the failed recording.
“To prevail under plain error review, a defendant must
demonstrate three elements. First, he must establish that an error
did in fact occur. Second, he must establish that the error should
have been obvious to the trial court. Third, the defendant must
establish that the error was harmful . . . .” State v. King, 2006 UT 3,
¶ 21, 131 P.3d 202 (citation and internal quotation marks omitted).
ANALYSIS
¶18 Mr. Cunningham contends that his trial counsel provided
ineffective assistance that affected the outcome of his case. To
prevail on an ineffective assistance of counsel claim, a defendant
must show both “(1) that counsel’s performance was objectively

State v. Cunningham
20120475-CA 10 2013 UT App 277
deficient, and (2) [that] a reasonable probability exists that but for
the deficient conduct defendant would have obtained a more
favorable outcome at trial.” Clark, 2004 UT 25, ¶ 6. In order to
establish deficient performance, “a defendant ‘must show that
counsel’s representation fell below an objective standard of
reasonableness.’” State v. Tennyson, 850 P.2d 461, 465 (Utah Ct.
App. 1993) (quoting Strickland v. Washington, 466 U.S. 668, 688
(1984)). “A defendant must . . . overcome the strong presumptions
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). Even if Mr.
Cunningham can establish that “no conceivable legitimate tactic or
strategy can be surmised from counsel’s actions,” see id. at 468, he
is not entitled to a new trial unless, in the absence of trial counsel’s
deficient performance, there is a reasonable probability that he
could have obtained a more favorable outcome at trial, see Clark,
2004 UT 25, ¶ 6. If Mr. Cunningham fails to establish either prong
of the foregoing test, his ineffective assistance claim fails. See
Tennyson, 850 P.2d at 466.
¶19 Mr. Cunningham argues that his trial counsel provided
deficient assistance by failing to withdraw as counsel and testify
that nothing could be heard when Officer Watkins played the
recording. Specifically, Mr. Cunningham contends, “[O]nly one
witness was in a position to refute [Officer Watkins’s] testimony
that [Mr. Cunningham’s] voice could be heard on the recording of
the buy. That witness was trial counsel himself . . . .” Mr.
Cunningham further claims that because of his trial counsel’s
failure, his “defense was impaired to the degree that a different
result likely would have [been] obtained had counsel testified.” In
response, the State contends that Mr. Cunningham’s “arguments
are grounded in a single mistake of fact: that Officer Watkins
testified ‘that [Mr. Cunningham’s] voice could be heard on the
recording of the buy.’” We agree with the State that Mr.
Cunningham has misapprehended Officer Watkins’s trial
testimony.

State v. Cunningham
20120475-CA 11 2013 UT App 277
¶20 Officer Watkins never testified that he had heard Mr.
Cunningham’s voice on the recording. To the contrary, Officer
Watkins repeatedly testified that he was unable to retrieve or play
the recording. He indicated that he was able to hear the
conversation between Informant and Mr. Cunningham through the
open telephone line during the transaction, and his trial testimony
was based on what he had heard at that time. During the argument
on the motion to dismiss, trial counsel indicated that he understood
that Officer Watkins’s description of the conversations between Mr.
Cunningham and Informant was based on his memory of what he
heard over the telephone on April 1, 2011.
¶21 On appeal, Mr. Cunningham argues that trial counsel’s
testimony about the recording being played and no voices being
audible was critical to challenge Officer Watkins’s testimony “to
the effect that [Mr.] Cunningham’s voice could be heard” on the
recording. According to Mr. Cunningham, impeachment of Officer
Watkins was “vital to the defense because [Officer Watkins] was
the only person aside from [Informant], who admittedly had
credibility problems, who could place Mr. Cunningham at the
scene of the crime.” However, Mr. Cunningham’s argument
presupposes that Officer Watkins’s testimony about hearing an
unidentified male voice referred to a recording of the drug
transaction rather than the live feed of the actual transaction. We
are not convinced that this is a fair reading of Officer Watkins’s
testimony.
¶22 The record reflects that Officer Watkins admitted that
during the transaction, he was unable to identify the male voice he
heard. He then explained that after the drug transaction he had an
opportunity to listen to Mr. Cunningham’s voice. He elaborated,
“There was a comparison. I couldn’t tell you for 100—you know,
I just, once again, it was kind of hard to hear him. But listening
to—afterwards there was a comparison, yes.” Based on that
subsequent comparison of Mr. Cunningham’s voice to the male
voice he had heard during the transaction, Officer Watkins testified

State v. Cunningham
20120475-CA 12 2013 UT App 277
that “it was [his] belief that it was Mr. Cunningham” he heard on
April 1, 2011, selling methamphetamine to Informant.
¶23 While the testimony is not as clear as it could have been, it
does not state that Officer Watkins identified Mr. Cunningham’s
voice by listening to the recording. A more reasonable
interpretation of the testimony is that Officer Watkins had an
opportunity to hear Mr. Cunningham speak after he was arrested
and compared the voice he heard directly from Mr. Cunningham
with the unidentified male voice he had heard over the telephone
during the April 1, 2011 transaction.
¶24 The only evidence that trial counsel could have provided
was that Officer Watkins played the recording, but no voices could
be heard. Thus, trial counsel may have challenged Officer
Watkins’s statements that the recording could not be opened and
played. However, trial counsel’s testimony would not have proved
that Officers Watkins and Gledhill were unable to hear the
transaction over the speaker phone while it transpired. Likewise,
it would have had little impeachment value in terms of Officer
Watkins’s identification of Mr. Cunningham as the male voice he
heard on April 1, 2011, because Officer Watkins did not assert that
he used the recording for that purpose and any inference from his
testimony to that effect is weak.
¶25 Under these circumstances, trial counsel did not perform
deficiently. Rule 3.7 of the Utah Rules of Professional Conduct
states, “A lawyer shall not act as advocate at a trial in which the
lawyer is likely to be a necessary witness . . . .” Given the minimal
impeachment value that trial counsel’s testimony would have
provided, trial counsel would not have been a necessary witness.
Furthermore, withdrawal may not have been permissible under the
facts of this case. See Utah R. Prof’l Conduct 1.16(b) (“[A] lawyer
may withdraw from representing a client if . . . withdrawal can be
accomplished without material adverse effect on the interests of the
client . . . .”); id. R. 3.7 (forbidding counsel who is a necessary
witness from withdrawing when “disqualification of the lawyer

State v. Cunningham
20120475-CA 13 2013 UT App 277
would work substantial hardship on the client”). Thus, any motion
to withdraw may well have been futile. And trial counsel’s decision
not to withdraw midtrial to testify was sound strategy given that
trial counsel’s testimony would not have effectively contradicted
Officer Watkins’s testimony. Cf. Fernandez v. Cook, 870 P.2d 870, 876
(Utah 1993) (“[I]ncluded as a strategic decision is counsel’s decision
to call or not to call a certain witness.”); see also Adams v. State, 2005
UT 62, ¶ 25, 123 P.3d 400 (“[T]actical decisions such as ‘what
witnesses to call, what objections to make, and, by and large, what
defenses to interpose, are generally left to the professional
judgment of counsel.’” (quoting State v. Wood, 648 P.2d 71, 91 (Utah
1982))). Accordingly, trial counsel’s representation did not fall
“below an objective standard of reasonable professional
judgment,” see State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92, and
he was therefore not ineffective for failing to withdraw and testify
as a witness, see generally State v. Tennyson, 850 P.2d 461, 466 (Utah
Ct. App. 1993) (noting that failure on either prong of the Strickland
analysis will defeat a defendant’s claim).
¶26 Mr. Cunningham also argues that the trial court plainly
erred by not sua sponte declaring a mistrial and removing trial
counsel. Because trial counsel’s decision not to withdraw midtrial
was sound strategy, Mr. Cunningham cannot establish any obvious
error that the trial court should have corrected. Cf. State v.
Litherland, 2000 UT 76, ¶ 31, 12 P.3d 92 (“Under the[] circumstances
[of the case], we cannot say the trial court abused its discretion by
respecting trial counsel’s choices. In other contexts, we have
refused to give defendants the benefit of traditional plain error
analysis where doing so would create an incentive for invited
error.”); State v. Jimenez, 2007 UT App 116, ¶ 12, 158 P.3d 1128
(“Because trial counsel’s decision not to object ‘was reasonable in
light of his trial strategy, we do not address [D]efendant’s plain-
error arguments . . . .’” (alteration in original) (quoting State v. Hall,
946 P.2d 712, 717 (Utah Ct. App. 1997))).

State v. Cunningham
20120475-CA 14 2013 UT App 277
CONCLUSION
¶27 Trial counsel did not perform deficiently in failing to
withdraw as counsel and instead testify as a witness for the
defense. Consequently, the trial court did not plainly err in failing
to override trial counsel’s reasonable professional choice.
¶28 Affirmed.