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State v. Heyen

State v. Heyen, 2020 UT App 147 (Christiansen Forster, J.)

Criminal

Before the defendant stood trial for raping two fifteen-year-old girls, the district court ruled that the State would not be permitted to introduce evidence of the defendant’s SAC, swastika, and “Supreme White Power” tattoos at trial, among others. The defense was able to introduce evidence that the defendant had a spider web tattoo on his penis without opening the door to admission of the other evidence. Even though the defendant had grown out his head and facial hair and wore long sleeves at trial, some tattoos on the defendant’s neck and face were still visible to the jury. At trial, both victims testified that they did not see the tattoo on the defendant’s penis. During voir dire, all of the seated jurors represented to the court that they did not know the meaning of the defendant’s visible tattoos. The defendant was convicted of four counts of rape and three counts of distribution; he was acquitted of three counts of rape. The defendant appealed, arguing that his counsel should have insisted he cover his face and neck tattoos. The Utah Court of Appeals affirmed, holding:

  1. Trial counsel was not ineffective when he failed to advise or insist that the defendant cover the tattoos on his face and neck in light of his favorable ruling. Transparency about the existence of the tattoos, along with their strategic use to paint the defendant as an easy target, was a reasonable decision and, under the circumstances, might be considered sound trial strategy. And being upfront about the existence of the tattoos—to the point of allowing them to be visible during voir dire—also allowed counsel to screen the prospective jurors to eliminate those who might bear an overt bias against tattooed persons, as the jury was going to see a good number of the tattoos anyway through admissible photographic evidence. Therefore, counsel could reasonably have concluded that covering the defendant’s tattoos would have been counterproductive.

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