State v. Whytock
State v. Whytock, 2020 UT App 107 (Harris, J.)
The defendant was convicted of raping his girlfriend’s fourteen-year-old Daughter. After the rape, the defendant told the Daughter he would rape her younger sisters if she told anyone. The Daughter eventually told police about the rape, and the Defendant showed up at her father’s doorstep demanding that she recant the statement. The defendant was found guilty of rape and witness tampering. The Utah Court of Appeals affirmed the guilty verdict, holding:
- The district court did not abuse its discretion in denying the motion for a mistrial after Girlfriend mentioned that she got the defendant out of jail “on an ankle monitor.” The statement was not voluntarily elicited; it was an isolated, off-hand remark; the State did not mention it again; and counsel rejected the court’s offer for a curative instruction. As well, the defendant himself elicited similar testimony from a different witness.
- Counsel did not render ineffective assistance when he failed to make a motion clarifying which conduct supported the witness tampering charge after the State admitted evidence of two potential instances of witness tampering: his threat and his demand that she recant. Counsel could have strategically failed to request such a clarification, as it might have resulted in two charges being filed.
- Counsel did not render ineffective assistance when he failed to raise an objection under rule 404(b) of the Utah Rules of Evidence. The doorstep conversation could have supported the witness tampering charge and, therefore, was not necessarily evidence of another uncharged crime or wrongdoing. It is also tethered to the rape itself, and so it is not 404(b) evidence in any event.
- Counsel did not render ineffective assistance of counsel when he failed to object to admission of the doorstep conversation under rule 403 of the Utah Rules of Evidence. The evidence did not unfairly prejudice the defendant, and such an objection would have been futile.
- Counsel did not render ineffective assistance when he failed to move for a mistrial once the doorstep conversation was put into evidence. Rather than grant a motion for a mistrial, the trial court would likely have solved any potential jury unanimity problem with an instruction. If there was a problem, seeking relief via a mistrial motion would have been futile.
- Counsel did not render ineffective assistance when he failed to object to a jury instruction for witness tampering that lacked a discussion of the mens rea requirement for that charge. There is no reasonable probability that the outcome of the case would have been different with the addition of the mens rea requirement to the jury instruction.