Utah Court of Appeals hears challenge to defense strategy in State v. Fitzwater; panel questions unanimity and possession instructions

The Utah Court of Appeals heard oral argument in State v. Fitzwater over whether trial counsel provided ineffective assistance by introducing testimony and statements from a co-defendant identified as Aiken, and over related jury-unanimity and firearm-possession instructions.

The argument focused on whether counsel’s decision to put Aiken’s statements before the jury—statements that at times blamed Fitzwater—fell below prevailing professional norms and, if so, whether any deficiency was prejudicial under Strickland v. Washington. Appellant’s counsel argued that ‘‘we as defense lawyers do not make the state’s case for it,’’ contending the inclusion of Aiken’s inculpatory statements was a textbook example of deficient performance. Daniel Boyer, arguing for the State, said counsel is ‘‘strongly presumed to have rendered adequate assistance’’ and defended the record as sufficient to support conviction even if Aiken’s statements were removed from consideration.

Why the issue matters: the court must decide two linked questions in the appeal. First, whether counsel’s choice to elicit or not exclude Aiken’s statements was so objectively unreasonable that it violated the Sixth Amendment. Second, whether any error was prejudicial—that is, whether there is a reasonable probability the result would have been different absent the challenged conduct. Judges on the panel repeatedly probed both sides on how the case would look in a counterfactual where Aiken’s conviction and statements were not presented to the jury.

At argument, the appellant’s counsel emphasized the centrality of Aiken’s testimony to the state’s case and argued that without it the prosecution had only a limited evidentiary showing: the murder weapon was a Sig Sauer that ‘‘was Fitzwater’s gun at least up through that day,’’ the weapon or its case was found in locations tied to Fitzwater, loose bullets were found in the vehicle seat, and Fitzwater made statements to police placing himself at the scene and giving inconsistent accounts. Counsel argued those facts, standing alone, did not permit a jury to infer beyond speculation that Fitzwater pulled the trigger and that the decision to present Aiken’s statements therefore improperly made ‘‘the state’s case.’’

The State responded that the record contained a ‘‘multitude of facts’’ supporting either principal or accomplice liability: Fitzwater’s own statements placing him near the victim, the physical evidence tying the Sig Sauer to the scene and to Fitzwater’s property, Aiken’s possession of bullets after the shooting, and behavior the State urged showed consciousness of guilt. Daniel Boyer told the panel that even excluding Aiken’s statements the remaining evidence was ‘‘ample enough to support all counts.’’

The panel also addressed a separate but related unanimity issue on a firearm-possession count. The parties debated whether the jury needed to unanimously agree on a single instance or mode of possession (for example, possession during an earlier firearm exchange, possession while traveling to the scene, or possession contemporaneous with alleged marijuana use). Appellant’s counsel argued the record was fuzzy about which instance the State relied on and that unanimity instruction was necessary; the State said the primary focus at trial was the night of the shooting and that, even if multiple instances were argued, the prejudice standard requires showing a reasonable probability of a different outcome on the count. The State pointed to trial evidence it said showed possession and contemporaneous illegal use of a controlled substance (the court referenced metabolite evidence and testimony about marijuana use) sufficient to defeat a unanimity-based prejudice claim.

On the legal framework, the parties and judges discussed (1) Strickland’s two-prong test for ineffective assistance—deficient performance and resulting prejudice—and (2) whether accomplice liability and principal liability for murder constitute separate offenses for unanimity purposes. The State argued that, under Utah law and precedent cited at argument, accomplice liability does not create a distinct offense separate from murder and that jurors need not unanimously agree on the precise theory (principal vs. accomplice) so long as each juror finds the elements of first-degree murder beyond a reasonable doubt. The appellant challenged that view, urging the panel to treat the modes of liability and the factual instances that support related possession counts with the same unanimity rigor applied in recent unanimity cases cited by the court.

The judges asked detailed hypotheticals about what a jury could infer from the non-Aiken evidence (gun ownership, placement of the weapon, changing statements, bullets found in pockets or vehicle, and recorded statements). They also questioned whether a reasonable-strategy presumption under Strickland would insulate tactical choices that, the appellant contends, are plainly contrary to professional norms. The State urged the panel to uphold trial counsel’s choices as within the ambit of reasonable professional judgment or, if questions remain, to treat a Rule 23(b) evidentiary hearing as an appropriate method to fill any gaps in the record about counsel’s reasons.

The court concluded the hearing by taking the matter under advisement and saying it would issue a written decision.

The panel did not issue a ruling from the bench at the end of argument.