State v. Aiken
State v. Aiken, 2023 UT App 44 (Hagen, J.)
Aiken was convicted of murder after a homeless person was shot and killed in the
woods. On appeal, Aiken argued trial counsel was ineffective for not objecting to
the State’s crime scene reconstruction evidence and testimony from the victim’s
mother. Aiken also sought a rule 23B remand arguing counsel was ineffective for
failing to request an unanimity instruction and failing to call an expert to testify
regarding false confessions. The Court of Appeals affirmed, holding in part:
- A rule 23B remand was unnecessary because
- Aiken’s claim that counsel performed deficiently in failing to request an unanimity instruction does not depend on facts absent from the record; and
- Aiken had not established a reasonable probability that the jury’s verdict would have been different had counsel called an expert to testify about false confessions.
- Practice tip: When asking the court to consider a rule 23B argument on the merits if the court concludes the record is adequate regarding that issue, practitioners should raise that issue and brief it in the petitioner’s principal brief.