State v. Perkins

2024 UT App 101

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
CHRISTOPHER JOHN PERKINS,
Appellant.

Opinion
No. 20220746-CA
Filed July 18, 2024

Fifth District Court, St. George Department
The Honorable Jeffrey C. Wilcox
No. 211502451

Nicolas D. Turner and K. Andrew Fitzgerald,
Attorneys for Appellant
Sean D. Reyes and Connor Nelson,
Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and AMY J. OLIVER concurred.

ORME, Judge:

¶1 Christopher John Perkins appeals his convictions for
driving under the influence and driving on a suspended license.
The charges were based on evidence collected after an encounter
between Perkins and a law enforcement officer in a parking lot.
Perkins argues his trial counsel (Trial Counsel) provided
ineffective assistance by not filing a motion to suppress the
evidence. He also asserts the trial court was required to conduct a
colloquy about self-representation or to appoint substitute
counsel after he expressed his dissatisfaction with Trial Counsel’s
performance.
State v. Perkins

¶2 Because Perkins has not shown that Trial Counsel
provided ineffective assistance, he is not entitled to a new trial.
And because Perkins did not make a clear and unequivocal
request to represent himself or show good cause for substitution
of counsel, we discern no reversible error on the part of the trial
court.

BACKGROUND 1

¶3 A woman (Witness) was seated in her vehicle when she
observed Perkins park his truck in front of a gas station
convenience store and enter the building. According to Witness,
Perkins was “staggering” as he walked. She thereafter observed
Perkins exit the store carrying a case of beer. Perkins placed the
beer in a cooler located in the bed of his truck, but he removed one
can and brought it with him into the vehicle. According to
Witness, he opened the can, began drinking from it, and drove off.

¶4 Witness called police dispatch and reported what she had
seen. At the dispatcher’s request, Witness followed Perkins for
approximately half a mile until he turned into a bank parking lot.
Witness did not observe any irregularities with Perkins’s driving.

¶5 Dispatch directed an officer with the St. George Police
Department (Officer) to the bank parking lot. Because Witness
had given a license plate number to dispatch, Officer was
provided with Perkins’s driver license information while en
route, including a report that Perkins’s driving privileges were
suspended and, moreover, that he was restricted to operating
vehicles with ignition interlock devices.

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

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State v. Perkins

¶6 Officer made contact with Perkins, who was sitting in the
truck with the engine running. As they spoke, Officer observed
that Perkins’s speech was slurred. Officer also smelled alcohol
and noticed that Perkins’s eyes were bloodshot and watery.
Perkins told Officer that he had consumed a six-pack of beer that
day, finishing a can approximately fifteen to twenty minutes
before Officer’s arrival. Officer then asked Perkins whether the
vehicle was equipped with an interlock device, and Perkins
confirmed it was not. Officer had Perkins exit his vehicle so he
could administer field sobriety tests. Officer ran three tests, and
Perkins failed each one. Officer, accordingly, arrested Perkins for
suspicion of driving under the influence of alcohol and
transported him to the police station.

¶7 After Perkins refused to take a breath or blood test, Officer
obtained a search warrant, and another officer drew Perkins’s
blood. Toxicology reports showed that Perkins’s blood-alcohol
level was almost three times the legal limit. Perkins was charged
with one count of driving under the influence, one count of failure
to install an interlock device, and one count of driving on a
suspended license. The interlock device charge was subsequently
dismissed on the State’s motion.

¶8 The matter proceeded to trial. During jury selection, but
outside the presence of the prospective jurors, Perkins asked for a
continuance, stating,

Good afternoon, Your Honor. As to making a
motion or just a suggestion, I would like to postpone
these proceedings as to I don’t feel that my counsel
has been conducting himself in accordance with the
rules of professional conduct or due diligence. I feel
that he’s been an ineffective loss of assistance of
counsel. Furthermore, I’m going to file a complaint
with the office of professional conduct. I haven’t met
with [Trial Counsel] in person until today. I’ve

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State v. Perkins

barely talked to him over the phone over the last
nine months. Plus the loss of exculpatory evidence
from testimony due to the memory loss. Also,
falsified documents knowing—that you present
false documents is a second degree felony and to
presenting them to this Court. So that’s all I have,
Your Honor.

¶9 The State opposed Perkins’s request to continue the trial.
After also hearing from Trial Counsel, the trial court denied
Perkins’s request. The court addressed Perkins, stating,

[Y]ou can say what you want, file what you want
against [Trial Counsel], but he knows what he’s
doing. I’ve seen the work that he’s done in this case
and with you. And I would think that State counsel
would also say that he has spent time reviewing
discovery, discussing this case. You haven’t been
left on your own, and he’s ready to go.

Perkins replied, “That’s fine.”

¶10 The jury found Perkins guilty of both crimes. After his
conviction and sentence were entered, Perkins filed this appeal.

ISSUES AND STANDARDS OF REVIEW

¶11 Perkins first argues that Trial Counsel provided ineffective
assistance by not filing a motion to suppress the evidence
gathered as a result of the encounter with Officer. “When a claim
of ineffective assistance of counsel is raised for the first time on
appeal, there is no lower court ruling to review and we must
decide whether the defendant was deprived of the effective
assistance of counsel as a matter of law.” State v. Guerro, 2021 UT
App 136, ¶ 25, 502 P.3d 338 (quotation simplified), cert. denied, 525
P.3d 1254 (Utah 2022).

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State v. Perkins

¶12 Perkins also challenges the trial court’s handling of the
complaints he made about Trial Counsel’s representation,
arguing that the court should have inquired into whether he
wanted to represent himself or whether it was necessary to
appoint substitute counsel. Whether a defendant’s waiver of the
right to counsel was knowing and voluntary presents “a mixed
question of law and fact,” State v. Pedockie, 2006 UT 28, ¶ 23, 137
P.3d 716, and “[w]e review whether the right to counsel has been
properly waived for correctness, but grant the trial court a
reasonable measure of discretion when applying the law to the
facts,” State v. Byington, 936 P.2d 1112, 1115 (Utah Ct. App. 1997).
“Whether a trial court should have inquired further into a
defendant’s dissatisfaction with counsel is reviewed for an abuse
of discretion.” State v. Hall, 2013 UT App 4, ¶ 8, 294 P.3d 632, cert.
denied, 308 P.3d 536 (Utah 2013).

ANALYSIS

I. Ineffective Assistance of Counsel

¶13 To prevail on his ineffective assistance of counsel claim,
Perkins must establish both that “counsel’s performance was
deficient” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
“Unless a defendant makes both showings,” the claim fails. Id. To
demonstrate deficient performance, Perkins “must show that
counsel’s representation fell below an objective standard of
reasonableness.” Id. at 688. To establish prejudice, Perkins “must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Id. at 694.

¶14 The Fourth Amendment to the United States Constitution
guarantees individuals the right to be free from “unreasonable
searches and seizures.” U.S. Const. amend. IV. Perkins argues that

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State v. Perkins

Officer violated his Fourth Amendment rights by detaining him
in the bank parking lot. When a defendant bases his ineffective
assistance claim on his counsel’s failure to raise a Fourth
Amendment challenge, he cannot show actual prejudice unless he
“prove[s] that his Fourth Amendment claim is meritorious and
that there is a reasonable probability that the verdict would have
been different absent the excludable evidence.” Kimmelman v.
Morrison, 477 U.S. 365, 375 (1986). We have held that a meritorious
claim is one that “would likely have been successful.” State v.
Beames, 2022 UT App 61, ¶ 13, 511 P.3d 1226 (quotation
simplified). 2 But at the other end of the spectrum, “[a] futile
motion necessarily fails both the deficiency and prejudice prongs
of the Strickland analysis.” State v. Makaya, 2020 UT App 152, ¶ 9,
476 P.3d 1025, cert. denied, 481 P.3d 1039 (Utah 2021).

¶15 An investigatory detention is not constitutionally infirm if
it is supported by “reasonable, articulable suspicion.” State v.

2. The State argues that State v. Beames, 2022 UT App 61, 511 P.3d
1226, was wrongly decided and should be overruled, asking us to
hold that a defendant claiming ineffective assistance of counsel
cannot show his Fourth Amendment claim is meritorious unless
he can establish that the suppression motion was certain to
succeed. See id. ¶ 13 (recognizing the word “meritorious” is
capable of two interpretations). While this court “has the power
to overrule its own precedent,” we do not do so lightly. State v.
Garcia-Lorenzo, 2022 UT App 101, ¶ 44, 517 P.3d 424, cert. granted,
525 P.3d 1263 (Utah 2022). “[I]t is our supreme court—rather than
some iteration of this court—that possesses primary
responsibility for reviewing the propriety of opinions rendered by
panels of this court.” Id. ¶ 47. And no petition for certiorari was
filed in Beames. But regardless, we decline the invitation to revisit
Beames because, as we conclude below, there was no basis on
which to suppress the evidence against Perkins, meaning
Perkins’s Fourth Amendment claim was not meritorious under
any standard.

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State v. Perkins

Anderson, 2013 UT App 272, ¶ 12, 316 P.3d 949 (quotation
simplified). “Reasonable suspicion requires an objectively
reasonable belief that an individual is engaged in or is about to be
engaged in criminal activity.” State v. Gurule, 2013 UT 58, ¶ 32, 321
P.3d 1039 (quotation simplified). This belief must be “based on
specific, articulable facts drawn from the totality of the
circumstances facing the officer at the time.” State v. Navarro, 2017
UT App 102, ¶ 17, 400 P.3d 1120 (quotation simplified).

¶16 According to Perkins, Officer’s encounter with him was a
level two investigatory detention that was not supported by
reasonable articulable suspicion at its inception. See State v.
Hansen, 2002 UT 125, ¶ 35, 63 P.3d 650 (“A level two encounter
involves an investigative detention that is usually characterized
as brief and non-intrusive.”). He therefore asserts that the
evidence gathered as a result of the detention was suppressible as
“fruit of the poisonous tree” and that Trial Counsel should have
filed the appropriate motion. The State does not concede that the
initial interaction between Perkins and Officer was a level two
investigatory detention. But there is no need to address the
parties’ disagreement on this point because, as we conclude
below, even assuming it was a level two encounter, the articulable
facts overwhelmingly show that at the outset of his encounter
with Perkins, Officer had an objectively reasonable belief that
Perkins was engaged in criminal activity.

¶17 Before Officer approached Perkins, he received a
communication from police dispatch that Witness had observed
Perkins purchase beer, open a can while seated in the driver’s seat
of his vehicle, and then drive onto the highway. Even though
neither Witness nor Officer saw Perkins drive erratically or
commit any traffic infractions, the facts relayed by Witness amply
support the initial investigative detention because operating a
vehicle containing an open container of alcohol or while drinking
alcohol is a criminal offense under Utah law. See Utah Code Ann.
§ 41-6a-526(2) (LexisNexis 2020) (prohibiting an individual from

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State v. Perkins

drinking an alcoholic beverage while operating a motor vehicle
regardless of “whether the vehicle is moving, stopped, or parked
on any highway”); id. § 41-6a-526(3) (prohibiting an individual
from transporting “in the passenger compartment of a motor
vehicle . . . , when the vehicle is on any highway . . . , any container
that contains an alcoholic beverage if the container has been
opened, its seal broken, or the contents of the container partially
consumed”).

¶18 Perkins attempts to discredit Witness, arguing Officer was
not entitled to consider the information she relayed to dispatch
because it was not reliable. “The articulable facts supporting
reasonable suspicion are usually grounded in an officer’s personal
perceptions and inferences, but in some cases the officer may rely
upon external information—e.g., an informant’s tip via police
dispatch.” Kaysville City v. Mulcahy, 943 P.2d 231, 234 (Utah Ct.
App. 1997), cert. denied, 953 P.2d 449 (Utah 1997), abrogated on other
grounds by State v. Saddler, 2004 UT 105, 104 P.3d 1265. When
information suggesting an individual is involved in criminal
activity comes from the observations of a citizen informant,
multiple factors are relevant to whether that information
contributes to an officer’s reasonable suspicion. See id. at 234–36.
These factors include, but are not limited to, “the type of tip or
informant involved,” “whether the informant gave enough detail
about the observed criminal activity to support [an investigatory
detention],” and “corroboration of the information by law
enforcement through a police officer’s personal observations.”
Salt Lake City v. Bench, 2008 UT App 30, ¶ 14, 177 P.3d 655
(quotation simplified), cert. denied, 199 P.3d 367 (Utah 2008).

¶19 Here, Witness was a citizen informant, acting on her own
initiative, who provided police dispatch with her name and
contact information. “A tip from an identified citizen-informant is
generally considered highly reliable,” and we presume the
veracity of the information provided. State v. Roybal, 2010 UT 34,
¶ 16, 232 P.3d 1016 (quotation simplified). This is “because a

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State v. Perkins

citizen informant volunteers information out of concern for the
community and not for personal benefit.” Id. (quotation
simplified). And by providing her contact information, Witness
opened herself up “to possible criminal and civil prosecution” if
her report was shown to be false, thereby boosting the reliability
of her information. Id. (quotation simplified).

¶20 Witness also relayed detailed information to the
dispatcher. At trial, she testified that she “called dispatch and let
them know that [she] saw someone go to the gas station, get the
beer, possibly already drunk or had a few beers before that, and
let them know that he was opening a can and that he drove off
from the gas station.” She not only gave dispatch a description of
Perkins’s vehicle and his license plate number, but she also
followed Perkins for a short distance and told dispatch when he
turned into a parking lot. These details were Witness’s personal
observations, not her chronicle of second-hand information.
Perkins nevertheless argues that Witness’s observations are
insufficient to support reasonable suspicion that he was driving
under the influence because Witness did not know him and, thus,
had no foundation on which to base her belief that he was drunk.
But this court has held that members of the public have “common
knowledge about whether a person is under the influence of
alcohol.” Salt Lake City v. Street, 2011 UT App 111, ¶ 13, 251 P.3d
862 (quotation simplified). And, although Witness did not
specifically explain to dispatch why she believed Perkins was
intoxicated, 3 she did relay that she observed Perkins drinking

3. At trial, Witness testified that Perkins was “staggering” as he
entered the convenience store, providing a basis for her belief that
Perkins was intoxicated. Nothing in the record, however,
confirms that Witness told dispatch that Perkins was staggering.
Thus, we do not treat Witness’s observation as a fact that supports
Officer’s reasonable suspicion.

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State v. Perkins

from a can of beer as he drove off.4 Thus, even assuming Witness
incorrectly believed Perkins was drunk, the articulable facts she
provided to dispatch are sufficient to support a reasonable
suspicion that Perkins was committing the crime of driving while
consuming alcohol. And this is the very information dispatch
conveyed to Officer, who reported that he “responded to a radio
call of a subject who appeared to be drinking while driving.”

¶21 Finally, the information Witness provided to dispatch was
corroborated by Officer’s own observations. Witness followed
Perkins’s vehicle until he turned into a parking lot, and Officer
found the vehicle parked in that lot. The vehicle was the color and
make described by Witness, and the license plate number
provided by Witness matched the plate on the vehicle.

¶22 In sum, Witness was a highly reliable citizen informant
who personally observed behavior supporting a reasonable
suspicion that Perkins was engaged in criminal activity. She
conveyed detailed facts supporting that suspicion to a police
dispatcher. The dispatcher communicated the information to
Officer, whose own observations corroborated much of Witness’s
account. Thus, Officer was entitled to rely on Witness’s report
even though he did not personally observe Perkins’s behavior at
the convenience store.

4. Perkins argues Witness’s tip was a mere assumption or hunch
because, according to him, she testified at trial that she “was not
certain he was drinking from a can of alcohol.” This is a
mischaracterization of Witness’s testimony. Witness testified that
she did not remember if the can from which Perkins was drinking
had the name of a beer brand on it. But she also testified that she
was parked not far from Perkins, she saw him go into the beer
cooler in the convenience store, and she “know[s] what a beer can
looks like.”

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State v. Perkins

¶23 When Officer approached Perkins, he was aware that
Perkins had driven from the convenience store to the bank
parking lot while drinking from an open container of alcohol, a
crime under Utah law. Under the totality of the circumstances, we
have no difficulty concluding that Officer had a reasonable
suspicion that Perkins was involved in criminal activity. It follows
that a motion to suppress the evidence collected as a result of the
investigative detention would have had no merit. And “[a] futile
motion necessarily fails both the deficiency and prejudice prongs
of the Strickland analysis because it is not unreasonable for counsel
to choose not to make a motion that would not have been granted,
and forgoing such a motion does not prejudice the outcome.” State
v. Makaya, 2020 UT App 152, ¶ 9, 476 P.3d 1025, cert. denied, 481
P.3d 1039 (Utah 2021).

¶24 Accordingly, Perkins is not entitled to relief on his
ineffective assistance of counsel claim because he cannot show
either deficient performance or prejudice flowing from the alleged
deficient performance.

II. Self-representation and Substitution of Counsel

¶25 During a break in jury selection, Perkins asked the court to
“postpone” his trial because he was unhappy with Trial Counsel’s
representation. The State voiced its opposition to the idea, and
Trial Counsel responded to Perkins’s accusations about him. The
trial court denied Perkins’s request, and the trial proceeded.

¶26 Perkins raises two arguments related to this exchange. He
asserts the trial court erred by not recognizing he was requesting
the opportunity to represent himself and by, therefore, neglecting
to conduct a colloquy on self-representation. Alternatively,
Perkins faults the court for not further inquiring into his
dissatisfaction with Trial Counsel to determine whether
substitute counsel should have been appointed. Both claims are
unavailing.

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State v. Perkins

¶27 The Sixth Amendment to the United States Constitution
guarantees every criminal defendant the right to counsel, but
defendants may waive that right and represent themselves in the
criminal proceedings. Faretta v. California, 422 U.S. 806, 819–21
(1975); State v. Smith, 2018 UT App 28, ¶ 16, 414 P.3d 1092. “Before
permitting a defendant to waive the right to counsel, a trial court
should ensure that the waiver is voluntary, knowing, and
intelligent.” Smith, 2018 UT App 28, ¶ 16 (quotation simplified).
According to Perkins, he waived his right to counsel but the trial
court failed to conduct the necessary inquiry into whether the
waiver was voluntary, knowing, and intelligent.

¶28 “A true waiver is one in which the defendant affirmatively
represents that he wishes to proceed without counsel.” Id. ¶ 18.
The waiver must be made “clearly and unequivocally” to ensure
that the defendant did “not unthinkingly waive the right to
counsel through sporadic musings or, on appeal, mischaracterize
statements he made in the trial court and claim . . . he was denied
the right to self-representation if he was represented by counsel.”
State v. Bakalov, 1999 UT 45, ¶ 16, 979 P.2d 799 (quotation
simplified). Here, Perkins’s statement to the trial court does not
even come close to a clear and unequivocal request to represent
himself. And he concedes as much in his principal brief when he
describes his statements as “alluding to the idea of representing
himself.” Because Perkins did not clearly and unequivocally
communicate to the trial court that he wanted to exercise his right
of self-representation, the court did not err in not conducting a
colloquy about self-representation.

¶29 Perkins alternatively argues that the trial court was
required to inquire further into his frustration with Trial Counsel,
including exploring the possibility of appointing substitute
counsel. When an indigent defendant expresses dissatisfaction
with counsel, the trial court “must make some reasonable,
non-suggestive efforts to determine the nature of the defendant’s
complaints and to apprise itself of the facts necessary to determine

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State v. Perkins

whether the defendant’s relationship with his or her appointed
attorney has deteriorated to the point that sound discretion
requires substitution.” State v. Pursifell, 746 P.2d 270, 273 (Utah Ct.
App. 1987). But a court’s failure to conduct an inquiry does not
automatically entitle the defendant to a remand. See id. at 274. See
also State v. Lovell, 1999 UT 40, ¶ 30, 984 P.2d 382. The defendant
must also show he or she was prejudiced. See Lovell, 1999 UT 40,
¶ 35.

¶30 “While an indigent defendant has a right to have counsel
appointed to represent him, he does not have a constitutional
right to a lawyer other than the one appointed, absent good
cause.” Pursifell, 746 P.2d at 272 (quotation simplified).
Mandatory grounds for substitution include “a conflict of interest,
a complete breakdown of communication, or an irreconcilable
conflict with” counsel. Id. at 274. Here, even if we assume the trial
court’s inquiry was inadequate, none of the complaints Perkins
voiced to the court satisfy the substitution standard, and Perkins
has not shown that further inquiry would have uncovered good
cause for substitution.

¶31 Perkins told the trial court that he had not met with Trial
Counsel in person and that he had “barely talked” to Trial
Counsel. General complaints about the amount of time spent with
counsel do not, in themselves, warrant the appointment of
substitute counsel. See id. at 273–74 (concluding that “a single,
face-to-face meeting before trial is not, in itself, indicative of a lack
of [trial] preparation”). Perkins also alluded to the loss of
“exculpatory evidence” and made a vague reference to “falsified
documents.” But he did not expound on these accusations and has
not presented any appellate argument on the point. His appellate
argument is limited to the conclusory assertion that further
inquiry on the part of the trial court would have elicited “further
information.” Without identifying this “further information,”
Perkins cannot show that further inquiry on the part of the trial
court would have led to the appointment of substitute counsel.

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¶32 Accordingly, Perkins has not shown that he is entitled to
relief on his claims related to the trial court’s alleged failure to
investigate the complaints he raised about Trial Counsel.

CONCLUSION

¶33 Because any motion to suppress the evidence collected as
a result of Officer’s interactions with Perkins would have been
futile, Perkins has not shown that Trial Counsel was ineffective
for not filing such a motion. The complaints about Trial Counsel
that Perkins voiced to the trial court were not a clear and
unequivocal request to represent himself at trial. And Perkins has
not shown that the court would have appointed substitute
counsel if it had engaged in a more in-depth inquiry into the
complaints he voiced about Trial Counsel. Thus, the court did not
commit reversible error when it did not engage in a colloquy with
Perkins on self-representation or substitution of counsel.

¶34 Affirmed.

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