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State v. Craft

Court of Appeals of Utah

May 25, 2017

State of Utah, Appellee,
Justin Paul Craft, Appellant.

         Third District Court, Salt Lake Department The Honorable Paul B. Parker No. 131902555

          Teresa L. Welch, Attorney for Appellant

          Sean D. Reyes and Jennifer Paisner Williams, Attorneys for Appellee

          Judge Stephen L. Roth authored this Opinion, in which Judges Kate A. Toomey and David N. Mortensen concurred.


          ROTH, Judge:

         ¶1 Justin Paul Craft appeals his convictions for aggravated robbery and aggravated burglary, both first degree felonies. See Utah Code Ann. §§ 76-6-203, -302 (LexisNexis 2012). While we reject Craft's claim that the eyewitness identifications were unreliable, we ultimately vacate Craft's convictions and remand for a new trial based upon trial counsel's ineffective assistance in failing to move for a mistrial due to a detective's statement that codefendants had placed Craft at the scene of the crime.


         ¶2 On March 12, 2013, at around 2:00 a.m., a man (the witness) was awakened in his bedroom by two men in ski masks "punching [him] in the face . . . with guns pointing at [his] head." During this assault, he was also pistol-whipped. The assault left "his whole face . . . bloody."

         ¶3 Around the same time, the witness's mother, who was also in the house, woke to a flashlight shining in her eyes and a man pointing a gun at her. This man also wore a mask.

         ¶4 After the two men searched the witness's room, they took him into a living area and held him there at gunpoint. He was ordered to stay on his knees with his head down and his "hands over [his] head." The men began searching the living area, closets, and bathrooms. While the witness was in the living area, the third man brought the witness's mother into the same room at gunpoint and ordered her to kneel facedown as well.

         ¶5 At some point, one of the men removed his mask. The witness could see the man in his "peripheral vision." Ambient light from one of the closets lit the living area. According to the witness's mother, "there was enough light that the whole room was very well visible to the eye." The witness later described the man who removed his mask as being "white, with reddish-brown hair and a goatee."

         ¶6 After the witness had been in the living room for about "five to ten minutes, " the men left the house, taking with them cellphones, the witness's wallet, an iPad, two laptops, golf clubs, and two sets of car keys. The witness and his mother stayed on the floor for about a minute after the men left before going to a neighbor's house to call the police.

         ¶7 When the police arrived, they were able to track some of the witness's electronic devices to a trailer park. Soon after arriving at the park, the officers saw two individuals run toward the trailers. The officers ordered the individuals to stop, but they ran into a trailer. The officers waited outside until backup arrived and then ordered everyone out of the trailer one at a time. Craft was one of the people in the trailer. In a vehicle behind the trailer, police found several of the stolen items as well as a mask and a gun. The seven individuals from the trailer were taken to the police station and interviewed. After speaking with each of them, police arrested Craft and two other people.

         ¶8 A detective interviewed the witness approximately seven to eight hours after the robbery. During the interview, the detective showed the witness a color photo lineup, or photo array, that included Craft's photograph as well as the photographs of five other men who resembled Craft. The detective displayed the photos one at a time and gave the witness a chance to review each one. When the witness indicated that Craft looked familiar to him, the detective asked, "[W]as that the guy standing by your bed?" The witness confirmed that it was.

         ¶9 Craft and the other two arrested individuals were prosecuted for the robbery. The trial court granted a motion to sever Craft's case from that of his codefendants so incriminating admissions by the codefendants could not be used against him.

         ¶10 At trial, the State's primary evidence consisted of the witness's testimony and a phone call made by Craft to an unidentified woman while he was in jail. An officer who reviewed the call testified that the woman was giving Craft "a hard time" and telling him that he "messed up." Craft responded, "I know, " and stated, "I'm probably going to do a nickel." In the portion of the call played for the jury, Craft stated, "I guess my homeboys . . . are a little crazy man. . . . I told 'em to leave all the electronics, 'don't . . . touch nothing like that.' 'Leave it.'" Following the State's presentation of evidence, defense counsel moved for a directed verdict, which the court denied.

         ¶11 In his defense, Craft called an expert witness on eyewitness identification, Dr. David Dodd. Dodd testified generally about the reliability of eyewitness identifications. He testified that an eyewitness's ability to acquire a memory may be compromised by several factors, including the limited time to view the assailant; stress and fright at the time of the assault; and distractions, such as being threatened by a weapon and having multiple assailants to focus on. He testified that, in his opinion, the witness in this case was in a sufficiently stressful, frightening situation to disrupt his "mental processes." Dodd also testified about an eyewitness's ability to retain memory. He explained that memory fades over time and emphasized the importance of making a report of the observations soon after the events. He noted that, in this case, the witness's initial description of the suspect "was very limited"-that, for example, the description failed to give "any idea . . . what the age of the perpetrator was." He also explained that memory retention can be affected by subtle suggestion that might take place, such as in the wording of questions during police interviews.

         ¶12 Dodd also suggested that the photo lineup procedure did not fully conform to the National Institute of Justice's recommended practices for conducting photo lineups. See U.S. Dep't of Justice, Eyewitness Evidence: A Guide for Law Enforcement 29-38 (1999), available at https://www. []. Specifically, he indicated that the officer conducting the lineup did not tell the witness "that the perpetrator may or may not be in the lineup" and that the investigation would continue regardless of whether the witness made an identification; that detailed interviews and reports were not made immediately after the crime was reported; and that the officer did not ask the witness about his degree of certainty after the witness identified Craft. Dodd also suggested that the best practice for the lineup would have been a double-blind procedure, that is, one in which the officer ...

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