The Appellate Group

State v. Gallegos

State v. Gallegos, 2020 UT 19 (Pearce, J.)


One night, a group of men attacked the victim. One of the men stabbed the victim several times. Several eyewitnesses saw the attack and identified the defendant as the stabber. The State charged the defendant with attempted murder. The defendant had several attorneys. One attorney retained an eyewitness expert who opined that the witness’s identification testimony was unreliable. But the attorney who took the case to trial did not use the expert. The jury convicted the defendant. On appeal at the Utah Court of Appeals, the defendant filed a Rule 23B motion, seeking to bring in extra-record evidence about the eyewitness expert’s report and claiming ineffective assistance of counsel. The Utah Court of Appeals denied the motion and upheld the defendant’s conviction. The Utah Supreme Court affirmed, holding:

  • The Utah Court of Appeals correctly denied the Rule 23B motion. The evidence against the defendant was substantial, and the expert’s testimony was far from likely to have tipped the balance of the evidence towards a more favorable outcome for the defendant. Although the expert would have cast doubt on the eyewitness testimony, the physical evidence against the defendant—the fact that he was found with the knife and had the victim’s blood on him—was substantial.
  • The Strickland inquiry is objective, not subjective; while an attorney’s subjective thinking may inform what an objectively reasonable attorney may have done when presented with the same circumstances, the attorney’s subjective understanding is not the standard by which his actions are judged.
  • The phrase “no conceivable tactical basis” means nothing more than the Strickland reasonableness standard: a reviewing court must always base its deficiency determination on the ultimate question of whether an attorney’s act or omission caused her representation to fall below an objective standard of reasonableness.

Read the full court opinion