2011 UT App 255
Filed August 4, 2011
Memorandum Decision
Lucia and Vanessa Arnold were charged with retail theft after security guards at Dillard’s department store saw them go into dressing rooms with clothes and shopping bags and then come out later with no clothes and bags that appeared much fuller. Store security cameras corroborated the guards’ observations. The shopping bags contained shoe boxes filled with bundled clothes. Police found similar bundles in the Arnolds’ car. At their preliminary hearing, the Arnolds stated that after their arrest a deputy sheriff had threatened Vanessa with a gun and demanded that she drop a pending civil law suit against him. The State made a motion to exclude evidence of the alleged threat, which the district court granted. A jury convicted the Arnolds at trial and they appealed to the Utah Court of Appeals.
On appeal, the Arnolds argued ineffective assistance of counsel. They argued that the State opened the door to the treat evidence at trial when the prosecution asked witnesses why Dillard’s personnel would want to hurt the Arnolds, and so at that point their criminal defense attorney should have sought a release from the exclusion order.
In order to prove ineffective assistance of counsel, the Arnolds were required to show, first, that their criminal defense attorney’s failure to reintroduce the threat evidence fell below and objective standard of professional judgment. The court of appeals found that their lawyer’s decision did not meet this standard because there was a valid tactical basis for the lawyer’s decision. Specifically, the officer who allegedly threatened Vanessa Arnold was out of the country at the time of the arrest. Since the Arnold’s case depended on their credibility with the jury, their criminal defense attorney made a reasonable tactical decision not to introduce allegations that would have reflected negatively on their credibility.
To prevail on appeal, the Arnolds must also have proved that they were prejudiced by their criminal defense attorney’s tactical decision; that absent this decision the outcome of their trial would have been different. The Court of Appeals held that there was such an abundance of evidence against the Arnolds that any error on the part of their criminal defense attorney would not have changed the verdict.
