State v. Heywood

2015 UT App 191

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
KRISTOPHER K. HEYWOOD,
Defendant and Appellant.

Memorandum Decision
No. 20121051-CA
Filed August 6, 2015

Third District Court, Salt Lake Department
The Honorable Elizabeth A. Hruby-Mills
No. 111907145

Scott L. Wiggins, Attorney for Appellant
Simarjit S. Gill and Colleen K. Magee, Attorneys
for Appellee

JUDGE J. FREDERIC VOROS JR. authored this Memorandum
Decision, in which JUDGES STEPHEN L. ROTH and JOHN A. PEARCE
concurred.

VOROS, Judge:

¶1 A jury convicted Kristopher K. Heywood of exposing
himself to a small child while standing behind a glass storm
door in the entryway of his home. The child’s mother (Mother)
identified Heywood. Heywood contends on appeal that his trial
counsel rendered constitutionally ineffective assistance in
several ways, but chiefly by not calling an eyewitness
identification expert or requesting an eyewitness identification
jury instruction. Yet this case exhibits few if any of the factors
that our caselaw has identified as affecting the accuracy of
eyewitness testimony, such as fatigue, intoxication, bias, mental
problems, cross-racial identification, fright, distractions, news
reports, cross-contamination, suggestive police conduct, or
State v. Heywood

weapon focus. Furthermore, the only other person in the home
at the time was Heywood’s brother, and Heywood does not
suggest that Mother saw his brother at the door. We conclude
that Heywood has not demonstrated that his trial counsel
rendered ineffective assistance. We accordingly affirm.

BACKGROUND1

¶2 In September 2011, Mother and her three-year-old
daughter (Daughter) walked past Heywood’s home on their way
to a school playground. Mother noticed Heywood standing
behind a glass storm door in the front doorway of the house.
Heywood wore a white t-shirt and no pants. Mother saw
Heywood handling his penis.

¶3 While keeping Daughter occupied so that she would not
see Heywood, Mother waved to him and made eye contact with
him to let him know that Mother and Daughter were there. At
that point, Mother hoped that Heywood’s conduct was
inadvertent. But after making eye contact with Heywood,
Mother saw that ‚[h]e just continued to play with his penis.‛
Mother hurried Daughter toward the school playground and
looked back once to make sure Heywood had not left his house.
When Mother made eye contact with Heywood again, he was
‚squished into his doorway‛ so he could ‚watch [them] as far as
he could while still playing with his penis.‛ Mother and
Daughter continued to the playground.

¶4 After only a few minutes at the playground, Daughter
had to go to the bathroom. Mother ‚wasted a little bit of time‛

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.‛
State v. Kruger, 2000 UT 60, ¶ 2, 6 P.3d 1116. ‚We present
conflicting evidence only as necessary to understand issues
raised on appeal.‛ State v. Holgate, 2000 UT 74, ¶ 2, 10 P.3d 346.

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State v. Heywood

before heading home, hoping that Heywood would not be in the
doorway of his house when they passed. But Heywood was
again in the doorway. This time, he wore khaki-colored shorts
but had ‚dropped his shorts‛ and, after making eye contact with
Mother, ‚started to play with his penis‛ again. Daughter pointed
to Heywood and said, ‚Look at that, Mommy.‛ Mother called
the police. While on the phone with the police, Mother waved to
Heywood ‚in frustration‛ as he continued to handle his penis.
When Heywood realized that Mother was on the phone, he
‚finally left the doorway.‛ Mother watched Heywood’s house
while she and Daughter waited outside the house for the police
to arrive.

¶5 When the police arrived, Mother described Heywood to
one of the police officers (Officer) as wearing glasses, a white
t-shirt, and khaki-colored shorts and as being approximately five
feet, ten inches tall. After Mother pointed out the house where
she saw Heywood, she and Daughter went home. Officer
knocked on Heywood’s door and, when Heywood answered,
Officer informed him that he was investigating a lewdness
complaint. Heywood invited Officer into the entryway of the
house to discuss the complaint. When Officer asked him if there
was anyone else in the house, Heywood said that his adoptive
brother (Brother) was there but that his wife (Wife) was not.

¶6 Heywood testified that he was wearing a white t-shirt and
brown shorts on the morning of the offenses and that he was
playing an online video game with Brother uninterrupted from
9:30 a.m. until he heard a knock at the door sometime around
noon or 12:30 p.m. Heywood claimed to have been ‚very
shocked‛ at the accusation against him. He told Officer that he
had not been in the doorway on the day of the offenses. He
stated that he sometimes looked at the school but that he had not
done so that day.

¶7 Heywood offered an explanation for why Mother might
have thought she saw him: ‚I asked *Officer+ did maybe
someone see me in front of the window at some time. I’ve looked
over at the school . . . [and] I’m thinking well maybe someone is

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seeing me and thinks they saw something or something like
that.‛ Officer told Heywood that Mother ‚seemed very
reliable . . . and that she described *Heywood+ exactly.‛ Officer
saw Brother and testified that after comparing Heywood’s
clothing and body structure to Brother’s ‚there was no doubting
that [Heywood] was the right person . . . that [Mother] had
described.‛ Officer then testified that Heywood ‚kind of thought
a little bit and then he says well yes [he] was in the doorway,
that he likes to watch the school building to make sure the
school building is safe.‛

¶8 After Mother and Daughter arrived home, they got into
Mother’s car to drive to a convenience store. Mother drove by
Heywood’s house and saw Officer talking with Heywood. When
Officer and Mother spoke later that day, she told him that she
had seen him talking to the ‚right person.‛ Officer showed
Mother Heywood’s driver-license photograph, and she
confirmed that he was the ‚right person.‛

¶9 The case proceeded to trial, and a jury found Heywood
guilty on two counts of lewdness involving a child, class A
misdemeanors. Heywood appeals.

ISSUES ON APPEAL

¶10 First, Heywood contends that trial counsel rendered
ineffective assistance by failing to call an eyewitness expert to
testify about the ‚deficiencies and pitfalls of eyewitness
identifications.‛

¶11 Second, Heywood contends that trial counsel rendered
ineffective assistance by ‚failing to request a Long instruction
because eyewitness identification was a central issue in the
case.‛ See State v. Long, 721 P.2d 483 (Utah 1986).

¶12 Third, Heywood contends that trial counsel rendered
ineffective assistance by not investigating and presenting
evidence of Officer’s failure to employ a photographic lineup.

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State v. Heywood

¶13 Fourth, Heywood contends that trial counsel rendered
ineffective assistance by failing to file a motion to suppress
Heywood’s statements to the investigating officer.

¶14 Fifth, Heywood contends that trial counsel rendered
ineffective assistance by failing to investigate and present
computer evidence that Heywood and Brother were playing an
online video game at the time of the offenses.

¶15 Finally, Heywood contends that the cumulative effect of
the errors resulting from trial counsel’s ineffective assistance
merits reversal.

ANALYSIS

¶16 Heywood raises a number of claims contending that his
trial counsel rendered constitutionally ineffective assistance. To
succeed on a claim of ineffective assistance of counsel, Heywood
must establish that trial counsel performed deficiently and that
counsel’s deficient performance resulted in prejudice. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Houston,
2015 UT 40, ¶ 70; State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
We review claims of ineffective assistance of counsel raised for
the first time on appeal for correctness. State v. Lucero, 2014 UT
15, ¶ 11, 328 P.3d 841.

I. Eyewitness Expert

¶17 Heywood contends that his trial counsel rendered
ineffective assistance by failing to call an eyewitness expert to
testify about the ‚deficiencies and pitfalls of eyewitness
identifications.‛ Heywood argues that because ‚the State relied
exclusively on the eyewitness identification of [Mother]—a
stranger to [Heywood]‛—and because Mother’s testimony
‚contained numerous inconsistencies,‛ his trial counsel rendered
ineffective assistance by failing to call an expert witness to testify
to the unreliability of eyewitness identification. The State
responds that trial counsel’s performance was not deficient and

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State v. Heywood

that, in any event, any claimed deficiencies did not prejudice
Heywood.

¶18 We begin by examining under what circumstances
eyewitness experts are required at trial. In State v. Clopten, our
supreme court recognized that ‚*d+ecades of study . . . have
established that eyewitnesses are prone to identifying the wrong
person as the perpetrator of a crime, particularly when certain
factors are present.‛ 2009 UT 84, ¶ 15, 223 P.3d 1103. Because
‚there is little doubt that juries are generally unaware of these
deficiencies in human perception and memory and thus give
great weight to eyewitness identifications,‛ id., juries ‚benefit
from assistance as they sort reliable testimony from unreliable
testimony,‛ id. ¶ 17. Thus, when an eyewitness identifies a
stranger, the presence of certain factors may call for expert
testimony ‚to adequately educate a jury regarding these inherent
deficiencies.‛ See id. ¶¶ 16, 32. Here, Mother and Heywood were
strangers. Thus, we must consider whether the Clopten factors
weigh in favor of calling an eyewitness expert. If not, trial
counsel did not render ineffective assistance by not calling one.
See id. ¶ 33 (explaining that where an expert cannot ‚identify
factors that have contributed to a misidentification‛ the
testimony may be excluded).

¶19 Clopten’s first category of factors pertains to the observer:

The first category pertains to the eyewitness and
includes factors such as uncorrected visual defects,
fatigue, injury, intoxication, presence of a bias, an
exceptional mental condition such as an intellectual
disability or extremely low intelligence, age (if the
eyewitness is either a young child or elderly), and
the race of the eyewitness relative to the race of the
suspect (cross-racial identification).

Id. ¶ 32 n.22. This case presents none of these factors. No
testimony at trial suggested that Mother had any ‚uncorrected
visual defects, fatigue, injury, intoxication, presence of a bias,
[or] an exceptional mental condition.‛ See id. Moreover, this is

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State v. Heywood

not a case of cross-racial identification. See id. The factors
pertaining to the eyewitness thus do not favor calling an expert
witness.

¶20 Clopten’s second category of factors pertains to the
circumstances of the observation:

The second category relates to the event witnessed
and includes the effects of stress or fright, limited
visibility, distance, distractions, the presence of a
weapon (weapon focus), disguises, the
distinctiveness of the suspect’s appearance, the
amount of attention given to the event by the
witness, and whether the eyewitness was aware at
the time that a crime was occurring.

Id. Again, this case presents none of these factors. Mother was
aware a crime was occurring and gave the event her full
attention; neither distance nor anything else impeded her view.
And no evidence suggests distractions, disguises, or weapon
focus.

¶21 Heywood points to the factor of stress or fright. Mother
testified at trial that she had become nervous while waiting for
Officer to arrive at the scene because she ‚didn’t know who else
was in the house and . . . didn’t know if calling the police would
make someone angry.‛ Officer testified that Mother was ‚quite
upset‛ when he arrived at the scene but that he was ‚not sure if
she was actually crying.‛ Officer further described Mother’s
condition as ‚emotionally disturbed . . . nervous, just shaken.‛

¶22 But none of the testimony purports to describe Mother’s
emotional state at the time she observed Heywood in the
doorway. At that time, Mother acted in a calm and rational way.
Mother saw Heywood lurking in his doorway; she made eye
contact with him at several points, twice as she and Daughter
walked to the playground and again once as they walked home.
Mother also waved at Heywood in frustration, called the police,
and stood across the street until they arrived. That she appeared

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State v. Heywood

upset and nervous when they arrived does not suggest that high
emotion interfered with her observation. No factors in the
second Clopten category militate in favor of calling an eyewitness
expert in this case.

¶23 Clopten’s third and final category of factors pertains to the
eyewitness’s later identification of the suspect:

This category includes such factors as the length of
time between observation and identification, any
instances in which the eyewitness failed to identify
the suspect or gave an inconsistent description, the
value of lineups compared to showups, the value
of photo identifications compared to in-person
identifications, and any exposure of the eyewitness
to influences such as news reports or interaction
with other witnesses. It also includes potentially
suggestive police conduct, such as the instructions
given to the eyewitness by police, the composition
of the lineup, the way in which the lineup was
carried out, and the behaviors of the person
conducting the lineup.

Id. Heywood contends that one of these factors suggests an
inaccurate identification: that Mother’s testimony ‚contained
numerous inconsistencies when compared to her previous
statements and the testimony of Officer.‛2

¶24 The inconsistencies were in fact negligible. Heywood
argues that Mother’s testimony at trial that Heywood ‚wore . . .
khaki shorts . . . conflicted with her testimony at the preliminary
hearing‛ that Heywood wore ‚cream colored shorts.‛ But
Mother’s testimony was more nuanced. At the preliminary
hearing, she described Heywood’s shorts as ‚cream-colored
beige, like a beige, off-white, brownish . . . beige.‛ At trial, she

2. We deal in Part III with Heywood’s claim that the lack of a
photo lineup was prejudicial.

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State v. Heywood

described them as ‚khaki-colored.‛ On redirect examination, the
prosecutor asked Mother, ‚*D+o you recall actually testifying
that when you were describing . . . the shorts, that it was a beige,
off-white, brownish, I don’t know, beige?‛ Mother responded,
‚Yeah.‛ The prosecutor then asked, ‚*W+hen you testified
brownish then, is that the khaki color you were trying to
describe today?‛ Mother responded, ‚Yeah, it’s—I mean, it’s all
the same color to me.‛

¶25 We see no inconsistency between Mother’s preliminary
hearing testimony and her trial testimony. In common parlance,
khaki describes a range of colors. See, e.g., Webster’s Third New
Int’l Dictionary 1240 (1966). Mother’s use of the term at trial fits
comfortably within the range she herself described at the
preliminary hearing: off-white, cream-colored, beige, and
brownish.

¶26 Heywood also argues that Mother gave inconsistent
accounts of whether Heywood was wearing glasses at the time
of the offense. At trial both Mother and Heywood testified that
he was not wearing glasses, but Officer testified that Mother
reported to him that Heywood was wearing glasses. This
inconsistency, Heywood now argues, implicates Clopten and
therefore calls for an eyewitness expert. In this instance,
Heywood has at least identified a possible inconsistency,
however minor. But again, Mother made eye contact with
Heywood three times, waved at him twice, stood across the
street from Heywood’s house while waiting for Officer,
described Heywood to Officer while both she and Officer were
at the scene, pointed out to Officer where Heywood lived, and
told Officer that she had seen him interviewing the ‚right
person.‛ One small inconsistency in her description of whether
Heywood was wearing glasses thus falls within the realm of the
normal inconsistencies between two accounts of the same event.

¶27 Furthermore, Heywood’s argument ignores the most
salient feature of Mother’s identification: she identified
Heywood from a universe of only two men present at the house
when the events occurred. No evidence suggests that any man

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State v. Heywood

other than Heywood and Brother was in the house at the time of
the offenses, that Heywood and Brother bear any physical
similarities, or indeed that Brother and not Heywood committed
the crimes. In short, under favorable circumstances Mother
observed and identified one of two men as the perpetrator and,
if the jury believed Mother’s testimony that such a crime
occurred, then the jury had no reason to believe that anyone but
Heywood could have committed it.

¶28 ‚While Clopten certainly suggests that . . . it may be wise
or even expected in appropriate cases to present expert
testimony on the inherent weaknesses of eyewitness . . .
testimony, it does not go so far as to imply that a failure to do so
presumptively renders counsel ineffective without regard for the
circumstances of a particular case.‛ State v. Willey, 2011 UT App
23, ¶ 19, 248 P.3d 1014. Heywood’s case is among those cases ‚in
which a witness viewed the perpetrator under such ideal
conditions that an expert would not be able to identify factors
that could have contributed to a misidentification.‛ State v.
Clopten, 2009 UT 84, ¶ 33, 223 P.3d 1103. Heywood’s trial counsel
could not have rendered ineffective assistance by failing to call
an eyewitness expert when few or none of the Clopten factors
were present in the case.

¶29 Moreover, reasonable trial strategy supports trial
counsel’s decision not to call an eyewitness expert. See Strickland
v. Washington, 466 U.S. 668, 689 (1984); State v. Bedell, 2014 UT 1,
¶ 23, 322 P.3d 697. ‚*I+f the challenged act or omission might be
considered sound trial strategy, we will not find that it
demonstrates inadequacy of counsel.‛ State v. Dunn, 850 P.2d
1201, 1225 (Utah 1993). Here, as noted, almost all of the Clopten
factors favor Mother’s identification. Trial counsel may have
reasonably calculated that calling an expert witness might
prejudice Heywood by drawing the jury’s attention to the
strength of Mother’s identification. Heywood candidly allows as
much: ‚Admittedly,‛ he concedes, ‚it is possible that the
prosecution and the defense may both benefit in some respects
from the testimony of an expert witness on the established
[Clopten] factors.‛

20121051-CA 10 2015 UT App 191
State v. Heywood

¶30 In sum, Heywood has not established that in this case any
of the Clopten factors favor calling an expert witness to testify to
the unreliability of eyewitness testimony. Moreover, the decision
not to call an expert ‚might be considered sound trial strategy.‛
Id. Accordingly, Heywood’s ineffective-assistance-of-counsel
claim fails on this ground.

¶31 Heywood also moves this court to remand this case to the
trial court to enter findings of fact pursuant to rule 23B of the
Utah Rules of Appellate Procedure. His motion relates to his
claim that trial counsel rendered ineffective assistance in failing
to present the testimony of an eyewitness expert.

¶32 Rule 23B allows a remand ‚to the trial court for entry of
findings of fact, necessary for the appellate court’s determination
of a claim of ineffective assistance of counsel.‛ Utah R. App. P.
23B(a). ‚The motion shall be available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.‛ Id. ‚The motion shall include or be
accompanied by affidavits alleging facts not fully appearing in
the record on appeal that show the claimed deficient
performance of the attorney‛ and that show ‚the claimed
prejudice suffered by the appellant as a result of the claimed
deficient performance.‛ Id. R. 23B(b). Rule 23B does not require
remand if the record is adequate to allow assertion of the claim.

¶33 Heywood’s eyewitness expert’s supporting affidavit
includes his expert report concerning the unreliability of
eyewitness identifications. In the report, the expert surveys the
literature in the field of eyewitness identification, identifies the
memory processes triggered in eyewitness identification, and
analyzes how Mother’s memory processes may have been
compromised under the circumstances of this case. Despite its
thoroughness, the expert’s report ignores the facts of this case in
one crucial respect: as noted above, see supra ¶¶ 17–27, this case
does not present the classic eyewitness identification problems
that Clopten contemplates. In particular, the universe of potential
suspects included only two men: Heywood and Brother. Mother

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State v. Heywood

witnessed someone exposing himself in Heywood’s front door.
Heywood concedes that only he and Brother were in the home at
the time. Therefore, the only hurdle Mother faced in identifying
Heywood was in distinguishing two adoptive brothers who do
not resemble each other. Thus, any analysis focusing on Clopten’s
factors is of no moment. Accordingly, Heywood’s rule 23B
motion is denied.

II. Long Instruction

¶34 Heywood next contends that trial counsel rendered
ineffective assistance by ‚failing to request a Long instruction,
because eyewitness identification was a central issue in the
case.‛

¶35 The Utah Rules of Appellate Procedure require an
appellant’s brief to ‚contain the contentions and reasons of the
appellant with respect to the issues presented, . . . with citations
to the authorities, statutes, and parts of the record relied on.‛
Utah R. App. P. 24(a)(9). ‚Briefs must contain reasoned analysis
based on relevant legal authority. An issue is inadequately
briefed when the overall analysis of the issue is so lacking as to
shift the burden of research and argument to the reviewing
court.‛ State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770
(citation and internal quotation marks omitted). ‚Utah courts
routinely decline to consider inadequately briefed arguments.‛
Id. (citations and internal quotation marks omitted); see also State
v. Thomas, 961 P.2d 299, 305 (Utah 1998).

¶36 Under these standards, Heywood has inadequately
briefed his Long-instruction claim. In State v. Long, our supreme
court held that ‚trial courts shall give *a cautionary jury+
instruction whenever eyewitness identification is a central issue
in a case and such an instruction is requested by the defense.‛
721 P.2d 483, 492 (Utah 1986). The court identified several factors
supporting the need for a Long instruction in certain cases, id. at
488–90, including ‚the more important factors affecting the
accuracy of one’s perception . . . originating with the observer,‛
such as an individual’s physical condition and emotional state,

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State v. Heywood

id. at 488–89. The court also identified ‚the distance of the
observer from the event, the length of time available to perceive
the event, the amount of light available, and the amount of
movement involved‛ as important considerations. Id. at 488.
Heywood fails to analyze any of these factors and whether they
are present in this case.

¶37 Heywood’s Long-instruction claim would fail in any
event. In Clopten, our supreme court noted that ‚research . . . has
shown that a cautionary instruction does little to help a jury spot
a mistaken identification.‛ State v. Clopten, 2009 UT 84, ¶ 24, 223
P.3d 1103. ‚As a result, instructions have been shown to be less
effective than expert testimony.‛ Id. Where, as here, the Sixth
Amendment did not require trial counsel to employ the more
effective means of challenging eyewitness testimony, we see no
logical reason—and Heywood has offered none—that it should
require the less effective one.

III. Photographic Identification

¶38 Heywood next contends that trial counsel rendered
ineffective assistance by failing to ‚investigate and present
evidence of the failure of [Officer] to utilize a photo lineup.‛ He
argues that trial counsel’s decision constituted ineffective
assistance of counsel because, according to police policy, ‚photo
lineups or photo spreads are to be part of the customary
investigation of eyewitness identifications.‛ Heywood argues
that ‚*h+ad trial counsel properly investigated and researched
the evidence pertaining to the failed investigation of Officer . . . ,
the incomplete and questionable evidence presented to the court
would have been corrected.‛ The State responds that Heywood’s
counsel was effective because ‚*t+rial counsel adequately
investigated and presented evidence of Officer*’s+ failure to *use+
a photo lineup.‛

¶39 In support of this argument, Heywood relies on an
affidavit submitted in support of his rule 23B motion. Rule 23B
permits entry of additional findings of fact under certain
circumstances:

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State v. Heywood

A party to an appeal in a criminal case may move
the court to remand the case to the trial court for
entry of findings of fact, necessary for the appellate
court’s determination of a claim of ineffective
assistance of counsel.

Utah R. App. P. 23B(a).

The motion shall include or be accompanied by
affidavits alleging facts not fully appearing in the
record on appeal that show the claimed deficient
performance of the attorney. The affidavits shall
also allege facts that show the claimed prejudice
suffered by the appellant as a result of the claimed
deficient performance.

Id. R. 23B(b). ‚The purpose of a rule 23B remand is to develop
new evidence in the record, without which a defendant cannot
bring his ineffective assistance of counsel claim on appeal.‛ State
v. Griffin, 2015 UT 18, ¶ 18.

¶40 However, we do not consider affidavits supporting rule
23B motions in deciding issues on appeal. ‚We consider
affidavits supporting Rule 23B motions solely to determine the
propriety of remanding ineffective assistance of counsel claims
for evidentiary hearings.‛ State v. Bredehoft, 966 P.2d 285, 290
(Utah Ct. App. 1998); see also Low v. Bonacci, 788 P.2d 512, 513
(Utah 1990) (noting that appellate courts ‚do not consider new
evidence on appeal‛); State v. Gunter, 2013 UT App 140, ¶ 12 n.4,
304 P.3d 866. Accordingly, we do not consider materials offered
in support of Heywood’s rule 23B motion in evaluating his
ineffective-assistance-of-counsel claim.

¶41 To succeed on his ineffective-assistance claim, Heywood
must first establish that trial counsel performed deficiently. See
Strickland v. Washington, 466 U.S. 668, 687 (1984); State v. Houston,
2015 UT 40, ¶ 70; State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92.
‚There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not

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State v. Heywood

defend a particular client in the same way.‛ Strickland, 466 U.S.
at 689. We conclude that Heywood’s trial counsel did not
perform deficiently by choosing to attack Heywood’s
identification through cross-examination rather than by
adducing more evidence of police policy.

¶42 Under cross-examination by trial counsel, Officer testified
that he was familiar with lineups, that he was aware of the
purpose of lineups, and that he did not conduct a lineup in this
case. Instead, he showed Heywood’s driver-license photograph
to Mother after she had identified Heywood by telling Officer
she had seen him talking to ‚the right person.‛ When the
prosecutor asked Officer why he had shown Mother Heywood’s
driver-license photograph, he responded, ‚It was just something
on my computer at that time so I sa[id] is this the right one that
you’re referring to *and+ . . . she just looked in and sa*id+ yeah.‛
Moreover, trial counsel cross-examined Officer on the problems
associated with a single-photograph identification. Trial counsel
asked Officer to explain why photographic lineups should
contain multiple photographs:

*Counsel+: What’s the purpose of showing multiple
photos when you’re doing a lineup?

*Officer+: So there’s other people of similar looks to
compare it with?

*Counsel+: Right. What’s the danger of showing
just one picture.

*Officer+: That the person would assume that that’s
the guilty person.

And in closing, trial counsel elaborated on the problems
associated with Mother’s eyewitness identification:

[Officer] . . . then goes back to *Mother+ after he’s
talked to [Heywood and Brother] and shows one
photo. Our minds are not video recorders. Our

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minds aren’t that accurate. Our memories are not
that accurate, and so sometimes we’ll get a
suggestion about what we might have remembered
and then that becomes our memory. She gets one
picture. She wants to find this guy. She’s angry.
She’s upset. She’s shocked. She wants to find this
guy. [Officer] says was this the guy? She says yep.

¶43 While it is true that counsel did not introduce evidence
that police customarily employ photographic lineups, Officer’s
testimony conveyed the danger of single-photograph
identification. On these facts, Heywood has not established that
trial counsel failed to ‚present evidence of the failure of *Officer+
to utilize a photo lineup.‛

¶44 Furthermore, ‚a court deciding an actual ineffectiveness
claim must judge the reasonableness of counsel’s challenged
conduct on the facts of the particular case, viewed as of the time
of counsel’s conduct.‛ Id. at 690. We reject Heywood’s ineffective
assistance claim because it fails to address the most salient facts
of this particular case: this crime was committed by a man in
Heywood’s house; Heywood and Brother were the only men in
the house at the time; no evidence implicated Brother; Mother
watched outside the house until police arrived; and no evidence
suggested that any man entered or left the house between the
time Mother observed the crime and the time police arrived.
Heywood himself claimed that he was downstairs at the time of
the crime. Under no reading of the facts did a third man enter
the house, commit the crime, and then leave.3 In short, Heywood
has not demonstrated that his trial counsel performed deficiently

3. In oral argument on appeal, Heywood’s counsel suggested for
the first time that Mother might have identified the wrong house,
thereby widening the universe of potential perpetrators. No trial
evidence supports this speculation. Mother testified that she
stood in front of Heywood’s house, watched it, and waited for
police to arrive.

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State v. Heywood

in his representation. Accordingly, we reject Heywood’s
ineffective-assistance-of-counsel claim on this ground.

¶45 Even assuming that trial counsel performed deficiently in
not challenging Officer’s decision not to employ a lineup, no
prejudice ensued. Id. at 687; Litherland, 2000 UT 76, ¶ 29. ‚An
error by counsel, even if professionally unreasonable, does not
warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.‛ Strickland, 466 U.S. at
691.

¶46 Taken separately or together, trial counsel’s cross-
examination of Officer and closing statement called into question
the use of single-photograph eyewitness identification. Thus,
having cross-examined Officer and having brought to the jury’s
attention the problems associated with single-photograph
eyewitness identification, the additional fact that Officer’s
decision not to present Mother with a lineup violated police
policy is of no consequence. That appellate counsel ‚would not
defend a particular client in the same way‛ does not establish
ineffective assistance of counsel. See Strickland v. Washington, 466
U.S. 668, 689 (1984).

IV. Miranda

¶47 Heywood next contends that trial counsel rendered
ineffective assistance by failing to file a motion to suppress his
statements to Officer. He argues that Officer obtained his
statements in violation of Miranda v. Arizona. 384 U.S. 436 (1966).
The State responds that trial counsel did not render
constitutionally ineffective assistance, ‚because Miranda
warnings were not required and any motion . . . to suppress
those statements would have been denied.‛

¶48 Failing to file a futile motion does not constitute
ineffective assistance of counsel. See State v. Kelley, 2000 UT 41,
¶ 26, 1 P.3d 546. Accordingly, trial counsel’s decision not to file a
Miranda motion constitutes ineffective assistance only if that
motion would likely have succeeded. See State v. Kooyman, 2005

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State v. Heywood

UT App 222, ¶ 31, 112 P.3d 1252; State v. Snyder, 860 P.2d 351,
354 (Utah Ct. App. 1993). Likewise, if Officer did not violate
Heywood’s Miranda rights, trial counsel’s decision not to move
to suppress Heywood’s statements to Officer ‚was not
prejudicial and the ineffective assistance claim fails.‛ See Snyder,
860 P.2d at 354. ‚If it is easier to dispose of an ineffectiveness
claim on the ground of lack of sufficient prejudice, . . . that
course should be followed.‛ Strickland, 466 U.S. at 697.
Accordingly, we first turn to whether Officer violated
Heywood’s Miranda rights.

¶49 Miranda applies only to ‚statements, whether exculpatory
or inculpatory, stemming from custodial interrogation.‛
Miranda, 384 U.S. at 444. Custodial interrogation means
questioning initiated by law enforcement after a suspect has
been ‚taken into custody or otherwise deprived of his freedom
of action in any significant way.‛ Id. ‚*T+he initial step is to
ascertain whether, in light of the objective circumstances of the
interrogation, a reasonable person [would] have felt he or she
was not at liberty to terminate the interrogation and leave.‛
Howes v. Fields, 132 S. Ct. 1181, 1189 (2012) (second alteration in
original) (citations and internal quotation marks omitted).
‚Relevant factors include the location of the questioning, its
duration, statements made during the interview, the presence or
absence of physical restraints during the questioning, and the
release of the interviewee at the end of the questioning.‛ Id.
(citations and internal quotation marks omitted). ‚Determining
whether an individual’s freedom of movement was curtailed,
however, is simply the first step in the analysis, not the last.‛ Id.
A court must also consider ‚whether the relevant environment
presents the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.‛ Id. at 1190.

¶50 Our supreme court has identified four factors relevant in
determining when a person is in custody under Miranda:

(1) the site of interrogation; (2) whether the
investigation focused on the accused; (3) whether

20121051-CA 18 2015 UT App 191
State v. Heywood

the objective indicia of arrest were present; and (4)
the length and form of interrogation.

State v. Mirquet, 914 P.2d 1144, 1147 (Utah 1996) (footnote,
citation, and internal quotation marks omitted).4

¶51 The record evidence in this case indicates that Heywood
was not in custody and was therefore not entitled to a Miranda
warning. Heywood does not argue that he was under arrest
when Officer questioned him. Nor has he addressed the relevant
factors to show that he was in custody. See Mirquet, 914 P.2d at
1147; Layton City v. Carr, 2014 UT App 227, ¶ 18, 336 P.3d 587.
Clearly, based on Mother’s report and description of the
perpetrator, Officer’s investigation did focus on Heywood.
However, all of the other Mirquet factors weigh heavily against a
finding of custody. The site of the interrogation was within
Heywood’s house after Heywood invited Officer into the house,
‚not at a police station or in a patrol car.‛ See id. ‚‘[N]o
[objective] indicia of arrest such as readied handcuffs, locked
doors[,] or drawn guns were present’‛ at the time of the
interview. See State v. Levin, 2007 UT App 65, ¶ 15, 156 P.3d 178

4. Although our supreme court identified ‚whether the
investigation focused on the accused‛ as a factor for determining
custody under Miranda, see State v. Mirquet, 914 P.2d 1144, 1147
(Utah 1996) (citation and internal quotation marks omitted), it is
‚well settled‛ that ‚a police officer’s subjective view that the
individual under questioning is a suspect, if undisclosed, does
not bear upon the question whether the individual is in custody
for purposes of Miranda,‛ see Stansbury v. California, 511 U.S. 318,
324 (1994). United States Supreme Court cases ‚make clear, in no
uncertain terms, that any inquiry into whether the interrogating
officers have focused their suspicions upon the individual being
questioned (assuming those suspicions remain undisclosed) is
not relevant for purposes of Miranda.‛ Id. at 326. Accordingly,
we read Mirquet’s reference to focus as limited to situations
where, as here, the officers disclose to the individual being
questioned that he or she is the focus of an investigation.

20121051-CA 19 2015 UT App 191
State v. Heywood

(second and third alterations in original) (quoting State v. Carner,
664 P.2d 1168, 1171 (Utah 1983)). Finally, the interview was
brief—Officer questioned Heywood for approximately thirty
minutes. See Layton City, 2014 UT App 227, ¶ 18; Levin, 2007 UT
App 65, ¶ 17 (approving an interrogation of over an hour as ‚a
reasonable amount of time for the officers to pursue their
investigation‛ under the circumstances).

¶52 Thus, while Officer disclosed to Heywood that he was the
focus of the police investigation, ‚the other three factors indicate
an absence of custody, and [we] ha[ve] emphasized that these
factors may outweigh the single factor that the investigation had
focused on [the defendant].‛ See Levin, 2007 UT App 65, ¶ 18
(third alteration in original) (citation and internal quotation
marks omitted). As our supreme court has noted, ‚The necessary
coercive environment cannot be established by accusatory
questioning alone.‛ Mirquet, 914 P.2d at 1148. Moreover,
Heywood has not shown, nor does the record suggest, that the
environment of this interview ‚present*ed+ the same inherently
coercive pressures as the type of station house questioning at
issue in Miranda.‛ See Howes v. Fields, 132 S. Ct. 1181, 1190 (2012).

¶53 Rather, the present case resembles State v. Shuman, where
our supreme court concluded that a defendant was not in
custody for Miranda purposes. 639 P.2d 155 (Utah 1981). In
Shuman, two officers went to the defendant’s home to investigate
a possible homicide. Id. at 156. The officers questioned the
defendant about the events from the previous evening and from
that day. Id. Later that day, the defendant confessed to
committing a murder. Before trial, he moved to suppress that
confession on the ground that he gave the statements before
receiving a Miranda warning. Id. at 157. The supreme court
concluded that he was not in custody, because ‚he had not been
placed under arrest or given any indication that he would have
been compelled to go [with the police] if he had resisted or been
restrained from leaving if he had desired.‛ Id. ‚That defendant
was not in custody at his own apartment . . . is obvious from the
fact that the officers left him there unrestrained when they
departed.‛ Id.

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State v. Heywood

¶54 Here, as in Shuman, officers visited Heywood’s home to
question him about the crimes Mother reported. They left after
talking to Heywood for less than thirty minutes. The officers
never arrested Heywood or gave him any indication that he
‚was not at liberty to terminate the interrogation and leave‛ or
to ask the officers to leave. See State v. Butt, 2012 UT 34, ¶ 17, 284
P.3d 605.

¶55 ‚Since Miranda warnings are required only where a
person has been taken into custody or otherwise deprived of his
freedom in a significant way,‛ Shuman, 639 P.2d at 157, and
because Heywood was not in custody at the time he gave his
statements to Officer, Heywood was not entitled to a Miranda
warning before giving the challenged statements. Trial counsel
therefore did not prejudice Heywood by not moving to suppress
his statements to police. Furthermore, trial counsel did not
perform deficiently, because filing a motion to suppress would
have been futile. See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d 546.
Accordingly, Heywood’s ineffective-assistance-of-counsel claim
on this ground also fails.

V. Video-Game Evidence

¶56 Heywood next contends that his trial counsel rendered
ineffective assistance ‚by failing to investigate and present
evidence of the computer games being played by [Heywood]
with [Brother] at the time of the alleged incident.‛ Heywood
argues that the video-game time log ‚buttresses the alibi upon
which trial counsel relied‛ and ‚significantly alters the
evidentiary picture upon which the jury relied‛ in convicting
him. The State responds that the ‚fact that *Heywood+ was
playing video games on the day of the offenses was uncontested
at trial, and therefore, [Heywood] was not deprived of effective
assistance of counsel for failure to further investigate the game
playing.‛

¶57 Heywood moves this court to remand this case for the
trial court to enter findings of fact on this issue pursuant to rule
23B of the Utah Rules of Appellate Procedure. He supports his

20121051-CA 21 2015 UT App 191
State v. Heywood

motion with a video-game time log attached to the affidavit of a
computer expert.

¶58 As explained above, rule 23B allows a remand ‚to the trial
court for entry of findings of fact, necessary for the appellate
court’s determination of a claim of ineffective assistance of
counsel.‛ Utah R. App. P. 23B(a). ‚The motion shall be available
only upon a nonspeculative allegation of facts, not fully
appearing in the record on appeal, which, if true, could support
a determination that counsel was ineffective.‛ Id. ‚The motion
shall include or be accompanied by affidavits alleging facts not
fully appearing in the record on appeal that show the claimed
deficient performance of the attorney‛ and that show ‚the
claimed prejudice suffered by the appellant as a result of the
claimed deficient performance.‛ Id. R. 23B(b). Rule 23B does not
require remand if the record is adequate to allow review of the
claim.

¶59 Heywood’s computer expert’s supporting affidavit
includes a video-game time log showing that someone played an
online video game on the morning of the offenses using
Heywood’s account identification. The computer expert
reviewed the time log and concluded (1) that the time log
‚accurately reflects the video game[] information regarding the
games played by . . . Heywood on the date in question,‛ (2) that
‚times reflected on the time log . . . indicate the ending time of
the video game type and account so listed,‛ and (3) that ‚the
type of games reflected on the time log . . . could last anywhere
from forty-five (45) to seventy-five (75) minutes.‛

¶60 We agree with the State that this time log adds nothing
that the State did not already concede at trial. Specifically, the
computer expert’s affidavit sheds no light on the disputed
question of which of the two brothers was actually using
Heywood’s video-game account when Mother observed the
crimes. The State never challenged Heywood or Brother on
cross-examination about whether they had been playing video
games that morning. Indeed, the State conceded the fact in
closing and never argued or presented evidence that Heywood

20121051-CA 22 2015 UT App 191
State v. Heywood

might not have been playing video games that morning. The
State argued only that Heywood could have taken a break from
playing the game without Brother noticing, allowing Heywood
sufficient time to commit the crimes. Heywood’s rule 23B motion
fails to identify who was playing the game or whether Heywood
was playing the game throughout the entire morning. Thus, the
rule 23B motion adds nothing that the State did not already
concede.

¶61 Furthermore, the time-log analysis is consistent with
Mother’s account of the events. Mother testified that she and
Daughter headed to the school playground ‚around lunch time.‛
Officer testified that he was dispatched to the scene at 11:59 a.m.
The video-game time log shows games in progress at 10:16 a.m.
and again at 12:38 p.m. local time. Even accepting that the time
log ‚accurately reflects the video games information regarding
the games played by . . . Heywood on the date in question,‛
including ‚the ending time of the video game type and account
so listed,‛ such testimony does not contradict Mother’s
testimony or what the State conceded at trial.

¶62 Consequently, the computer expert’s affidavit does not
allege ‚facts not fully appearing in the record on appeal that
show the claimed deficient performance of the attorney‛ or ‚that
show the claimed prejudice suffered by the appellant as a result
of the claimed deficient performance.‛ Utah R. App. P. 23B(b).
Accordingly, Heywood’s rule 23B motion is denied, and his
ineffective-assistance-of-counsel claim fails on this ground.

VI. Cumulative Error

¶63 Finally, Heywood contends that ‚the cumulative effect of
the errors resulting from the ineffective assistance of counsel . . .
merits reversal.‛ He argues that ‚*t+he cumulative effect of the
numerous deficiencies . . . prejudiced [Heywood], which
undermines [the] confidence that a fair trial was provided
*him+.‛

20121051-CA 23 2015 UT App 191
State v. Heywood

¶64 Heywood has inadequately briefed this claim. See, e.g.,
Utah R. App. P. 24(a)(9); State v. Thomas, 961 P.2d 299, 305 (Utah
1998); State v. Davie, 2011 UT App 380, ¶ 16, 264 P.3d 770. Under
the cumulative-error doctrine, we ‚will reverse only if the
cumulative effect of the several errors undermines our
confidence . . . that a fair trial was had.‛ State v. Dunn, 850 P.2d
1201, 1229 (Utah 1993) (omission in original) (citation and
internal quotation marks omitted). Heywood’s brief sets forth
this standard and identifies trial counsel’s alleged errors but his
argument does not ‚contain the contentions and reasons of the
appellant with respect to the issues presented, . . . with citations
to the authorities, statutes, and parts of the record relied on.‛
Utah R. App. P. 24(a)(9). Instead, he restates his claim that trial
counsel erred and argues that the evidence adduced at trial was
insufficient to support his conviction: ‚But for the numerous
deficiencies and ineffective assistance of trial counsel both prior
to and during trial, the evidence presented at trial did not
implicate [Heywood] as the man who allegedly exposed
himself.‛ This argument, standing alone, does not satisfy our
briefing requirements. Accordingly, Heywood’s cumulative-
error argument fails.

¶65 Heywood’s cumulative-error argument would have failed
in any event. He asserts that but for trial counsel’s errors, ‚the
evidence presented at trial did not implicate [him] as the man
who allegedly exposed himself.‛ But even assuming the errors
he asserts, the evidence implicates Heywood as the man who
exposed himself. Mother observed someone at Heywood’s front
door. And as Heywood testified, only he and Brother were in the
house at the time of the offenses. Thus, Mother observed either
Heywood or Brother at the front door. But Heywood never
implicated Brother as the one Mother observed. Furthermore,
Brother is Heywood’s adoptive sibling, and as Officer testified,
the two have different body structures and appearances. That
Mother could have mistaken the two seems highly unlikely,
especially considering that Mother identified Heywood from his
driver-license photograph and described Heywood, not Brother,
to Officer when Officer arrived at the scene. Thus, our

20121051-CA 24 2015 UT App 191
State v. Heywood

confidence in the essential fairness of Heywood’s trial is not
undermined.

CONCLUSION

¶66 Heywood has failed to carry his burden of persuasion on
any of his ineffective-assistance-of-counsel claims. Accordingly,
his convictions are affirmed. Heywood’s rule 23B motions are
denied.

20121051-CA 25 2015 UT App 191