District Court, Salt Lake Department The Honorable Paul B.
Parker No. 131902555
L. Welch, Attorney for Appellant
D. Reyes and Jennifer Paisner Williams, Attorneys for
Stephen L. Roth authored this Opinion, in which Judges Kate
A. Toomey and David N. Mortensen concurred.
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
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 . . .
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.
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.
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
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.
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.
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.
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.
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.
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
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. ncjrs.gov/pdffiles1/nij/178240.pdf
[https://perma.cc/TK3E-6XD4]. 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