State v. Hunter , 2021 UT 44 ( 2021 )

2021 UT 44IN THE
SUPREME COURT OF THE STATE OF UTAH
STATE OF UTAH,
Respondent,
v.
GLENN CONWAY HUNTER,
Petitioner.
No. 20190882
Heard April 8, 2021
Filed August 12, 2021
On Certiorari to the Utah Court of Appeals
Third District, Salt Lake
The Honorable William K. Kendall
No. 161401898
Attorneys:
Lori J. Seppi, Salt Lake City, for petitioner
Sean D. Reyes, Att’y Gen., William Hains, Asst. Solic. Gen.,
Tony F. Graf, Salt Lake City, for respondent
JUSTICE PEARCE authored the opinion of the Court in which
CHIEF JUSTICE DURRANT, ASSOCIATE CHIEF JUSTICE LEE,
JUSTICE HIMONAS, and JUSTICE PETERSEN joined.
JUSTICE PEARCE, opinion of the Court:
INTRODUCTION
¶1 A jury convicted Glenn Hunter of distributing or arranging
to distribute a controlled substance. Hunter says the police got the
wrong man. He admits he possessed methamphetamine when police
arrested him, but he says he’s not the same man the police saw
distributing methamphetamine.
¶2 Hunter’s trial counsel presented a theory of mistaken
identification in his opening and closing arguments, and he cross-
examined the prosecution’s witnesses about weaknesses,
inconsistencies, and gaps in their testimony. But Hunter’s trial
STATE v. HUNTER
Opinion of the Court
counsel did not request a jury instruction about the potential
unreliability of eyewitness identification testimony—often referred
to as a Long instruction. See State v. Long, 721 P.2d 483, 492–93 (Utah
1986).
¶3 On appeal, Hunter argued that his trial counsel’s failure to
request a Long instruction constituted ineffective assistance of
counsel. The court of appeals affirmed the conviction, holding that
Hunter’s trial counsel was not deficient because court of appeals
precedent held that Long does not apply to “real-time
identifications” like the identification here.
¶4 We vacate the court of appeals’ holding that Long does not
apply. We nevertheless affirm because Hunter’s trial counsel was not
constitutionally deficient in not requesting a Long instruction. A
competent attorney, on the facts of this case, could reasonably
conclude that a Long instruction might backfire by causing the jury to
think the officers’ identification testimony was more reliable than
they would otherwise think without the instruction.
BACKGROUND
¶5 Two Salt Lake City police officers, Officers Willis and
McNamee (collectively, Surveillance Officers), set up surveillance to
look for drug activity near a downtown homeless shelter. The
Surveillance Officers conducted their surveillance operation in two
adjacent, second-story office rooms in a building “just over a
hundred yards” from the shelter. The Surveillance Officers used
binoculars to observe the goings on. It was around 7:30 p.m. on a
summer’s evening. Willis testified at trial that it was “fairly well lit
outside” when they observed the drug sale at issue in this case. He
also testified that there were no obstructions or weather conditions
that impacted their ability to see.
¶6 At some point, the Surveillance Officers noticed what they
described as a “White male wearing a white tank top, light colored
pants,” and with hair done in a bun. The Surveillance Officers
testified that they saw the White male approach a “Black male” who
was “leaning against” a wooden fence or wall. Hunter and the State
agree that the back of the White man was to the Surveillance
Officers, and the Black man faced the Surveillance Officers. Willis
testified that he had never seen either man before. McNamee
testified that the Black man was “a subject that appeared to be
involved in narcotic—typical narcotic activity in the area.”
¶7 McNamee recalled in his trial testimony that the “Black
male [was] wearing sunglasses, a black hoodie, black T-shirt, he had
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a yellow necklace on, and full length camouflage pants.” McNamee
also described seeing “the White male approach the other subject,
they briefly contacted each other, and then the White male began
walking [away].”
¶8 Willis, in his trial testimony, described the movements of the
interaction with more specificity but did not, during that description,
detail the Black man’s appearance other than to note his perceived
race and gender. Willis testified that he watched the White man
(Buyer) hand cash to the Black man (Seller). The Seller took the cash
and “retrieved from one of his pockets a clear . . . sandwich baggie”
that “had some sort of a white substance in it.” Willis watched the
Seller reach into the bag, remove some of its contents with his hands,
and distribute that into the Buyer’s cupped hand. Willis further
detailed that “it appeared . . . similar to if you had salt or some type
of a substance like that in a plastic bag, and you tried to remove
some and then give that to someone else in their hand without
spilling it.”
¶9 But when the prosecution asked if he could “actually see the
hand motions through the binoculars,” Willis did not directly
answer yes or no. Instead he responded:
[I]t was very obvious to me based on my life
experience that what [the Seller] was doing was
disbursing something that he had taken from the bag
into the hand of the other male. The manner in which
the White male was holding his hand, and the way that
it was being disbursed was consistent with . . . I could
say with confidence that he was -- it appeared to me he
was . . . putting something into his hand.
During cross-examination, Willis similarly explained that the Seller
“appeared to be retrieving [the substance] in a careful manner so as
not to spill any” because, “based on my experience and training,”
“Never want to lose any of your suspected drugs.”
¶10 Both Surveillance Officers spoke to the amount of time the
transaction took. McNamee testified that the Buyer and Seller
“briefly” contacted each other. Willis estimated that the total
transaction took “[p]robably less than 20 seconds. . . . [I]t was quick,
and most of the drug transactions in the area occur quickly like
that.” On cross-examination, Willis detailed that the pass of cash
took “[p]robably a second or . . . two seconds” while the passing of
the controlled substance “[t]ook a little bit longer,” “maybe more like
10 seconds. Eight, 10 seconds, something like that.”
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STATE v. HUNTER
Opinion of the Court
¶11 Once the transaction was complete, the Surveillance Officers
observed the Buyer walk away. Officer Willis then “immediately
notified” the takedown officers that he believed he’d “just seen a
drug transaction, and that the buyer was the White male in the white
tank top with his hair up in a bun, and he was walking northbound.”
Willis described how the Buyer “couldn’t go that far . . . before he
was out of my view.”
¶12 The prosecution asked Willis if he gave any description
about the Seller to the takedown officers. Willis responded:
“Probably not right at that time . . . . I wanted to get the description
out of the White male as he was . . . walking north.” McNamee, on
the other hand, testified that after the Buyer walked away from the
transaction, he provided the takedown officers with “the White
male’s description, and the description of the Black male that I had
observed.”
¶13 Regarding the Surveillance Officers’ focus, McNamee
testified: “I was continuing to watch the White male as he left the
area. Once he left my view, I transitioned back to the other male that
I’d watched,” referring to the Seller. Willis, on the other hand,
initially testified that the Seller remained in his view, but changed
his tune somewhat on cross-examination. During direct examination,
Willis explained that the reason he hadn’t given the takedown
officers a description of the Seller at the same times as he gave a
description of the Buyer was that he “could still see [the Seller] in my
view.” Willis further explained that, while he was waiting for the
takedown officers to apprehend and search the Buyer, he “just tried
to maintain a visual observation of the Black male to make sure he
didn’t get out of our view.” Willis also stated that the Seller
“remained right here in the area . . . just right there in the same area
where he was standing when I first saw him.” And he recalled that
the Seller was “just kind of loitering there, standing in the area . . .
just kind of hanging around.”
¶14 Willis’s cross-examination testimony was less definitive.
Defense counsel asked whether, after having watched the Buyer
walk out of sight, Willis “returned [his] line of view to the area
where the Black male was.” Willis responded: “It was kind of all
right there in the same area. I may have even kept a view of both of
them.” Defense counsel pressed: “[W]hat you’re really saying is, you
don’t remember right now whether you watched both of them.”
Willis responded: “In my report, I noted that the White male walked
north out of my view. When he was out of my view, I returned to
watching the Black male. He was still in the same area where he was
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when I last saw him.” Defense counsel again pressed: “So to be clear,
then, you took eyes off of the Black male and followed the White
male, based on your report and your memory.” Willis did not
directly answer whether he kept his eyes on the Seller. Instead,
Willis responded: “I know I followed the White male. Correct.”
¶15 After Willis and McNamee notified the takedown officers
that the Buyer was walking away, the takedown officers “[a]lmost
immediately” radioed back “they had located the White male and
had stopped him.” And “[v]ery shortly after that,” another officer
radioed that he had found “a white substance in the hand of the
White male.”
¶16 Willis and McNamee then reported the suspected Seller’s
description and location. Willis testified that he told the takedown
officers that “the suspected dealer, the Black male” was “by the ramp
to the men’s side of the shelter by the fence, and that he was wearing
camouflage pants, a black hoodie type sweater, black sunglasses and
a black hat, and he had a gold chain around his neck.” On cross-
examination, Willis added that he did not take note of any potential
“distinctive markings” on the hoodie, and he agreed it was “not
uncommon” for people in the area to wear hoodies and sunglasses.
Willis also did not notice whether the suspected Seller’s pants were
“any specific or particular kind of camouflage,” stating that it was “a
basic camouflage that could be easily recognizable by most
anyone.” 1 Nor could Willis definitively say whether “no one else
there was wearing camouflage pants.” But he clarified that he
“didn’t see anyone else wearing camouflage pants that could’ve been
confused with the pants that the suspect had on,” so he “didn’t feel
that anything more than camouflage pants was needed to direct the
officers to the appropriate suspect.”
¶17 Willis’s and McNamee’s trial testimony describing the
suspected Seller’s “sunglasses” differed somewhat from that of one
of the takedown officers. The takedown officer testified that he was
not told to look for someone wearing sunglasses. Rather, “[t]he
description [he] was given was a Black male in a black hooded
sweater wearing camo pants and holding an orange sports drink.”
Another takedown officer testified that he was given a description of
“a male, Black, with camouflage pants” and “there would’ve been a
full clothing description.”
1 Thus defeating camouflage’s purpose.
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STATE v. HUNTER
Opinion of the Court
¶18 In addition, Willis testified that he had observed “quite a
number of people” congregated near the shelter that day. Willis
acknowledged during cross-examination that he “didn’t take note”
of the precise number of “Black people in that area that day,” nor the
precise number of people of other races or ethnicities. One of the
takedown officers similarly could not recall whether there were
Black people other than Hunter there that day, though he testified
that the shelter area was “known” to have a large number of Black,
Hispanic, and Asian people and that there were consistently people
of “all races” there. 2
¶19 After Willis and McNamee gave the takedown officers the
description of the person they believed to be the Seller, they waited
for the takedown officers to arrive. Willis testified that, while they
waited, he was “able to remain in visual contact with the Black male
during this time,” and “was able to watch as the other officers
arrived in the area, got out of their cars, and approached him, and
was able to verify that they had contacted the correct male.”
McNamee similarly testified that he saw the takedown officers
“come into the area and contact the subject that I had described and
take him into custody.” One of the takedown officers similarly
verified that, once he placed the person suspected to be the Seller in
handcuffs, he received “verbal confirmation,” presumably from the
Surveillance Officers, “that that was indeed the individual observed
dealing the narcotics.”
¶20 McNamee agreed with the prosecutor’s clarification that,
when he was talking about the person the takedown officers
arrested, he was “talking about the Black male” that he had watched
participate in the drug transaction, and that that man “was in that
same area,” when the takedown officers arrested him. Similarly,
Willis testified during cross-examination that the Seller and the
person arrested were the “same.” Specifically, defense counsel asked
whether, after the Buyer walked away, “[Willis] returned and
viewed a Black male.” (Emphasis added.) Willis responded that it
was “[t]he same Black male.” (Emphasis added.) And when further
pressed, Willis again said, “It was the same Black male,” and again
that “[i]t was the same Black male that was wearing the hat, the
sunglasses, the hoodie, the camouflage pants, and the gold chain . . .
[t]hat was standing there when he made the transaction with the
2 The record before us does not contain any evidence on the race
or ethnicity of the Surveillance Officers and the takedown officers.
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White male.” On re-direct, Willis agreed twice with the prosecution
that the arresting officers responded to “the Black male.” (Emphasis
added.) Finally, the prosecution asked Willis, “during the course of
your investigation, were you able to determine the name of the Black
male?” Willis said “Yes” and that his name was “Glen [sic] Hunter.”
¶21 One of the takedown officers testified that when they
apprehended Hunter, he was wearing a black hooded sweatshirt and
camouflage pants. Hunter was also holding an orange sports drink.
In addition, the takedown officer initially testified during cross-
examination that Hunter was wearing what “appeared to be
sunglasses” at the time of arrest. But he then agreed with defense
counsel that Hunter’s glasses at the time of arrest were the glasses he
was wearing in court, which “look clear.” However, the takedown
officer reiterated that, “[f]rom what I observed on scene, they
appeared to be sunglasses.” The takedown officer did not recall
finding any other pair of glasses during his search of Hunter.
¶22 The takedown officers did find other items during their
search of Hunter. Specifically, the takedown officers found a “bag of
a white crystal like substance,” a firearm, and cash.
¶23 The state crime lab tested the white substances from both
Hunter and the Buyer and determined the substances to be
methamphetamine. But the crime lab witness acknowledged during
cross-examination that the lab did not test the purity of the two
samples to determine if they were the same or cut with different
types or amounts of other substances.
¶24 The takedown officers recorded Hunter’s arrest on body
cameras. But Willis and McNamee did not record or photograph the
alleged transaction between the Buyer and the Seller. No other image
or recording of the transaction was introduced into evidence.
¶25 The State charged Hunter with second-degree felony
distribution of or arranging to distribute a controlled substance. 3 At
trial, Hunter’s defense counsel argued that Hunter had been
misidentified as the man involved in the drug transaction. He raised
that point in opening and closing arguments. During opening
3 The State also charged Hunter with purchase, transfer,
possession or use of a firearm by restricted person, as well as
possession or use of a controlled substance. At a preliminary
hearing, the district court granted the State’s motion to dismiss the
controlled substance possession charge.
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STATE v. HUNTER
Opinion of the Court
arguments, Hunter’s trial counsel asked the jury to consider whether
the evidence shows that Hunter was, in fact, the person who
engaged in the exchange with the Buyer. During closing, he posited
that “the officers took down the wrong person” and that the State
had not proven Hunter was “the individual who distributed
controlled substances.” 4
¶26 Hunter’s counsel stressed in his closing argument that the
Surveillance Officers didn’t “stay focused” on the Seller and “took
eyes off” him, instead following the Buyer before “turn[ing] back
and . . . look[ing] at” the Seller. He also pointed out multiple times in
his opening and closing arguments that, although the Surveillance
Officers viewed the transaction through binoculars, it was “at some
distance,” and the Surveillance Officers had used their “personal
binoculars,” not government-issued ones. Moreover, Hunter’s
counsel pointed out that there were “multiple individuals present at
that time milling about,” including other Black people, according to
photographs of the arrest. Yet, noted Hunter’s counsel, the Officers
could not recall whether there were other Black people in the area
then. And Hunter’s counsel reminded the jury during closing that
the Surveillance Officers had not taken any photographs of the drug
transaction.
¶27 In his closing arguments, Hunter’s counsel also questioned
whether the Surveillance Officers’ description of the suspected Seller
as a Black male in a hoodie, gold chain, sunglasses, and camouflage
pants was “so unique” as to make an accurate identification,
highlighting how the description included nothing about height, age,
weight, size, body type, or distinctive markings. He also identified
multiple discrepancies in the Surveillance Officers’ descriptions of
the suspected Seller, asserting that “there’s no gold chain in
evidence,” nor are there sunglasses. And he pointed out in closing
4 This argument also formed the basis of Hunter’s motion for a
directed verdict. In that motion, Hunter’s counsel contended that
Hunter was “different from the person that the officers were
observing” during the drug transaction, that the State had presented
insufficient evidence to prove Hunter “was the individual who
distributed that methamphetamine,” and that there was “clearly a
break in the [S]tate’s evidence” and only “pure speculation” could
lead a jury to conclude that Hunter was “the individual who was
observed doing the distribution of controlled substances.”
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that the Surveillance Officers did not describe the Seller as having an
orange sports drink, yet Hunter had an orange sports drink in hand
when arrested.
¶28 In addition, Hunter’s counsel pointed out in his opening
and closing arguments that the state crime lab had not conducted a
purity test to determine whether the methamphetamine found on
the Buyer was the same purity as the methamphetamine found on
Hunter.
¶29 Hunter’s trial counsel had evinced those details during his
cross-examination of the Surveillance Officers, the takedown officers,
and the state crime lab employee. As discussed above, Hunter’s
counsel pressed Officer Willis on whether or to what extent he took
his eyes off the Seller while the Buyer was walking away. See supra
¶ 14. He also asked Willis about how much time the transaction took
and how long he was able to observe the seller. See supra ¶ 10. He
questioned Willis on whether there was anything more distinct
about the Seller’s clothing and accessories. See supra ¶ 16. And he
pressed Willis on whether Hunter was the same Black man as the
person observed selling the drugs. See supra ¶ 20. Hunter’s counsel
also pressed one of the takedown officers on whether the
Surveillance Officers’ description of the Seller included sunglasses
and whether Hunter was indeed wearing sunglasses or clear glasses
during arrest. See supra ¶¶ 17, 21. And, finally, Hunter’s counsel
questioned the crime lab personnel on why they did not conduct
purity testing on the methamphetamine samples to determine if the
methamphetamine found on the Buyer and Hunter were the same.
See supra ¶ 23.
¶30 Although Hunter’s trial counsel spent much of his
arguments and cross-examination on his theory of mistaken
identification and pointing out weaknesses in the witnesses’
testimonies, he did not ask the judge to give the jury a Long
instruction. A Long instruction educates and cautions a jury about
the factors that might impact the reliability of eyewitness
identifications. See State v. Long, 721 P.2d 483, 492–93 (Utah 1986).
Hunter’s counsel also did not call an eyewitness expert to educate
the jury about the issues that can impact the quality of eyewitness
identification.
¶31 Hunter’s trial counsel did, however, request a jury
instruction on the “Credibility of Witnesses,” which included such
questions as, “How good was the witness’s opportunity to see, hear,
or otherwise observe what the witness testified about?” And
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STATE v. HUNTER
Opinion of the Court
whether the witness’s testimony was “consistent over time,” and
“believable . . . in light of other evidence” and “in light of human
experience.” The judge gave the witness credibility instruction as
part of the jury’s preliminary instructions.
¶32 The jury instructions told jurors that “[t]here has been
evidence suggesting that a person other than the defendant may
have been involved in the crime for which the defendant is on trial,”
and reminded the jury that their duty is to decide whether the State
has “proven, beyond a reasonable doubt, the guilt of the defendant
who is on trial.” The instructions also advised that “[t]he fact that a
witness is employed in law enforcement does not mean that his
testimony deserves more or less consideration than that of any other
witness,” and that it is up to the jurors “to give any witness’s
testimony whatever weight [the jurors] think it deserves.” Further,
the jury instructions included, at Hunter’s request, an instruction on
possession as a lesser-included offense of distribution.
¶33 The jury convicted Hunter of distributing or arranging to
distribute a controlled substance. 5 Hunter appealed.
¶34 In the court of appeals, Hunter argued that his trial
counsel’s failure to request a Long instruction amounted to
ineffective assistance of counsel. State v. Hunter, 2019 UT App 157,
¶ 9, 451 P.3d 272. He also challenged the sufficiency of the evidence
on the distribution charge. Id. The court of appeals rejected both of
Hunter’s arguments and affirmed the conviction. Id. ¶ 21. The court
held that the evidence was sufficient to support Hunter’s conviction.
Id. ¶¶ 16–21. And it held that Hunter’s trial counsel was not deficient
for failing to request a Long instruction because Long does not apply
to “real-time identifications” like the officers’ identifications here. Id.
¶¶ 14–15. To arrive at that conclusion, the court of appeals relied on
State v. Bowdrey, 2019 UT App 3, 438 P.3d 946. The court reasoned
that the Surveillance Officers’ “contemporaneous identification of
Hunter was nearly identical to the real-time identification of the
defendant in Bowdrey,” Hunter, 2019 UT App 157, ¶ 14, and that the
5 The jury also convicted Hunter of the firearm charge, after
Hunter’s trial counsel conceded his guilt on that charge during
closing arguments. State v. Hunter, 2019 UT App 157, ¶¶ 7–8, 451
P.3d 272. The trial court sentenced Hunter to serve prison terms of
one-to-fifteen years for each of the two charges, to run concurrent
with each other.
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Surveillance Officers’ “momentary shift in focus while perceiving
real-time events is not the type of memory-based eyewitness
identification that the Long instruction addresses.” Id.¶35 Hunter petitioned for a writ of certiorari. Hunter seeks
review of the court of appeals’ decision that his trial counsel did not
provide ineffective assistance when it failed to ask for a cautionary
instruction relating to eyewitness identifications. 6 He did not ask us
to review the court of appeals’ sufficiency of evidence determination.
We granted Hunter’s petition.
STANDARD OF REVIEW
¶36 “‘On certiorari, this court reviews the decision of the court
of appeals for correctness, giving no deference to its conclusions of
law.’ An ineffective assistance of counsel claim presents a question of
law that we review for correctness.” State v. Scott, 2020 UT 13, ¶ 27,
462 P.3d 350 (citations omitted).
ANALYSIS
¶37 “The Sixth Amendment to the United States Constitution
guarantees criminal defendants the effective assistance of counsel.”
State v. Ray, 2020 UT 12, ¶ 24, 469 P.3d 871. Hunter argues that he
was deprived of effective assistance of counsel when his trial
attorney failed to request a cautionary jury instruction about the
potential unreliability of eyewitness identification testimony—often
referred to as a Long instruction. See State v. Long, 721 P.2d 483, 492–
93 (Utah 1986).
¶38 “[W]e evaluate claims of ineffective assistance under the
standard articulated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984).” Ray, 2020 UT 12, ¶ 24.
“[W]e employ the two-part test Strickland established, which requires
the defendant to show (1) that counsel’s performance was deficient
and (2) that the deficient performance prejudiced the defense.” State v.
Gallegos, 2020 UT 19, ¶ 33, 463 P.3d 641 (emphases added) (citations
omitted) (internal quotation marks omitted).
6 Specifically, we granted Hunter’s Petition for Writ of Certiorari
on the following issue: “Whether the Court of Appeals erred in
concluding that Petitioner failed to demonstrate reversible error
arising from his claim that his trial counsel had provided ineffective
assistance by failing to seek a cautionary instruction relating to
eyewitness identifications.”
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STATE v. HUNTER
Opinion of the Court
¶39 The court of appeals affirmed Hunter’s conviction, deciding
Hunter’s ineffective assistance of counsel claim on the first prong of
the Strickland test. State v. Hunter, 2019 UT App 157, ¶¶ 11, 21, 451
P.3d 272. The court held that Hunter’s trial counsel was not deficient
for failing to request a Long instruction because “Long doesn’t apply
to this case.” Id. ¶ 12. Specifically, the court of appeals concluded
that Long does not apply to “real-time identifications” and therefore
counsel could not be deficient in failing to make a “futile” request for
an inapplicable Long instruction. Id. ¶¶ 12, 14–15.
¶40 Hunter argues the court of appeals erred because, he
contends, he would have been entitled to a Long instruction if his
trial counsel had requested it. And he contends that it was deficient
for Hunter’s trial counsel to not request such an instruction, and that
his counsel’s failure to ask for one prejudiced his defense.
¶41 The State agrees with the court of appeals that Long doesn’t
apply to this case, and the State largely agrees with the court of
appeals’ rationale. But the State also advances an alternative
argument that, even if Long were available to Hunter, his counsel
was not deficient because a reasonable attorney could surmise that a
Long instruction risked hurting his defense. The State also argues
that Hunter was not prejudiced by his counsel’s performance, even if
it were deficient.
¶42 We vacate the court of appeals’ holding that Hunter would
not have been entitled to a Long instruction had his counsel
requested one. But, because we agree with the State that a reasonable
attorney could surmise that a Long instruction risked hurting his
client’s defense, we nevertheless affirm the court of appeals’
conclusion that Hunter’s counsel was not deficient.
I. THE COURT OF APPEALS ERRED IN HOLDING
THAT LONG DOES NOT APPLY TO
REAL-TIME IDENTIFICATIONS
¶43 A Long instruction is a cautionary jury instruction about
factors that can impact the accuracy or reliability of eyewitness
identification testimony and human perception. See State v. Long, 721
P.2d 483, 492–93 (Utah 1986). The need for such an instruction stems
from the fact that “jurors are, for the most part, unaware of the[]
problems” inherent in human perception and eyewitness testimony.
Id. at 490. “People simply do not accurately understand the
deleterious effects that certain variables can have on the accuracy of
the memory processes of an honest eyewitness.” Id.; see also State v.
Clopten (Clopten I), 2009 UT 84, ¶ 15, 223 P.3d 1103 (“[J]uries are
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generally unaware of these deficiencies in human perception and
memory and thus give great weight to eyewitness identifications.”).
Moreover, “juries seemed to be swayed the most by the confidence
of an eyewitness, even though such confidence correlates only
weakly with accuracy.” Clopten I, 2009 UT 84, ¶ 15.
¶44 Trial courts must give a Long instruction whenever three
elements are met: (1) “eyewitness identification is a central issue in a
case”; (2) “such an instruction is requested by the defense”; and
(3) the defense has not called an expert witness on eyewitness
testimony. See Long, 721 P.2d at 492, as modified by Clopten I, 2009 UT
84, ¶ 34.
¶45 The court of appeals held that Hunter would not have been
entitled to a Long instruction even if his trial counsel had asked for
one because that court believes that Long applies only to “memory-
based” identifications, not “real-time” identifications. State v. Hunter,
2019 UT App 157, ¶¶ 14–15, 451 P.3d 272. Therefore, the court
continued, Hunter’s counsel could not be deficient in failing to make
a “futile” request for an inapplicable Long instruction. Id. ¶ 15.
¶46 The State urges us to affirm the court of appeals’ holding
and rationale. The State also offers two additional theories for why
Long doesn’t apply to Hunter’s situation. The State posits that Long
only applies to identifications based on facial recognition. The State
further contends that the Surveillance Officers’ testimonies here
weren’t “actual identification[s]” and “never identified Hunter as the
seller.”
¶47 Hunter, naturally, argues that the court of appeals and the
State are incorrect on the applicability of Long. Hunter contends he
would have been entitled to a Long instruction if his trial counsel had
requested it.
¶48 For reasons discussed below, we agree with Hunter that the
court of appeals and the State are incorrect in deeming Long
inapplicable. 7
7 In 2019, after Hunter’s trial was complete, we adopted rule 617
of the Utah Rules of Evidence to govern questions regarding the
admissibility of eyewitness identification evidence. See UTAH R. EVID.
617(b). The rule also governs when a court may and must give a
cautionary instruction. Id. 617(f). We therefore expect that rule 617
will answer most questions which previously would have been
(continued . . .)
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STATE v. HUNTER
Opinion of the Court
A. Identifications Need Not Involve Long-Term
Memory to Invoke Long
¶49 We first vacate the court of appeals’ holding that Long only
applies to “memory-based” identifications, and not “real-time”
identifications. See Hunter, 2019 UT App 157, ¶¶ 14–15. To reach that
conclusion, the court of appeals relied upon its decision in State v.
Bowdrey, 2019 UT App 3, 438 P.3d 946. In Bowdrey, the court of
appeals held that “eyewitness identification based on memory is the
key factor in Long and its progeny,” id. ¶ 16, and that Long did not
apply where an officer had “made a continuous, real-time
observation of Bowdrey as he engaged in selling drugs and was
subsequently detained by the Arrest Team,” id. ¶ 15, and the officers
had kept their eye on Bowdrey “the entire time.” Id. ¶ 17.
¶50 The Hunter court analogized that the “real-time
identification” in Bowdrey was “nearly identical” to the Surveillance
Officers’ “contemporaneous identification of Hunter.” Hunter, 2019
UT App 157, ¶ 14. The court acknowledged that the Surveillance
Officers “momentarily focused on Buyer as he left the scene.” Id. But
the court believed that the “Officers’ fleeting focus on Buyer did not
place their observation of Hunter’s drug dealing in the realm of
Long.” Id. It reasoned that “a mere momentary shift in focus while
perceiving real-time events is not the type of memory-based
eyewitness identification that the Long instruction addresses.” Id.¶51 We disagree with the court of appeals. Although we
discussed “memory” at length in Long, we did not limit the need for
cautionary instructions to only those identifications involving
longer-term memory as the court of appeals did in this case and in
Bowdrey. Rather, Long focused on the “memory process,”
emphasizing that “[r]esearch on human memory has consistently
shown that failures may occur and inaccuracies creep in at any stage
analyzed under Long. However, litigants might use Long and its
progeny when arguing about the rule’s applicability and reach. See
id. 617(a)(1). Further, there may still be pending cases in which the
court of appeals’ Long analysis is a live issue. We therefore deem it
prudent to reject the State’s arguments on what constitutes an
“eyewitness identification” meriting a cautionary instruction and
correct the court of appeals’ error so it does not improperly preclude
future litigants from receiving cautionary instructions in appropriate
cases.
14
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of what is broadly referred to as the ‘memory process.’” Long, 721
P.2d at 488 (emphases added). We explained that the stages of the
memory process “include[] the acquisition of information, its
storage, and its retrieval and communication to others.” Id.
¶52 During the “acquisition stage” of the “memory process,” a
“wide array of factors” may “affect the accuracy of an individual’s
perception,” including the observer’s distance from the event, the
length of time to perceive the event, the lighting, the amount of
movement, and the witness’s physical and emotional conditions. Id.
at 488–89. The “acquisition stage” is also impacted by factors that are
“unique to each observer, includ[ing] the expectations, personal
experiences, biases, and prejudices brought by any individual to a
given situation,” as well as “the significance of the event to the
witness at the time of perception.” Id. at 489. Witnesses also have
“unconscious strategies of selective perception” which “may result
in the exclusion of information that will later prove important in a
court proceeding.” Id. “[T]he observer may have absolutely no
memory of the facts simply because he or she failed to select the
critical information for perception.” Id.
¶53 The “retention stage” is “when information that may or may
not have been accurately perceived is stored in the memory.” Id.
“Just as in the perception stage, where the mind infers what occurred
from what was selected for perception, in the retention stage people
tend to add extraneous details and to fill in memory gaps over
time . . . .” Id. at 489–90. And, to be fair to the court of appeals, we
did say “the length of time between the witness’s experience and the
recollection of that experience” can “affect the accuracy and
completeness of recall.” Id. at 489. But that does not negate that
inaccuracies and imperceptions can occur “at any stage” of the
“memory process.” Id. at 488.
¶54 Finally, “the retrieval stage of the memory process” is
“when the observer recalls the event and communicates that
recollection to others.” Id. at 490. This stage is “fraught with potential
for distortion” for many reasons, including that “few individuals
have such a mastery of language that they will not have some
difficulty in communicating the details and nuances of the original
event.” Id. Research also shows that “the accuracy of an
identification is, at times, inversely related to the confidence with
15
STATE v. HUNTER
Opinion of the Court
which it is made” or communicated. Id.; see also Clopten I, 2009 UT 84,
¶ 15 (“[C]onfidence correlates only weakly with accuracy.”). 8
¶55 The court of appeals failed to acknowledge Long’s attention
to problems with all stages of the memory process, including the
initial acquisition of information. Instead, the court of appeals’
understanding of “memory” seems to be limited to the retention and
retrieval stages of the memory process. The State, on the other hand,
did acknowledge in its brief that “Long discussed potential problems
not just with memory, but with perception as well.” But the State
failed to persuasively explain why Long instructions would be
limited to applying only to memory-based identifications when Long
was concerned with perception and acquisition of details right from
8 Empirical research also supports Long’s concerns with the faults
in eyewitness identifications from the very moment of intaking the
details of an event. See Fredric D. Woocher, Did Your Eyes Deceive
You? Expert Psychological Testimony on the Unreliability of Eyewitness
Identification, 29 STAN. L. REV. 969, 976–82 (1977) (discussing how
perception can be selective based on individual biases, stress, and
poor observation conditions); Jacqueline Marks Bibicoff, Seeing is
Believing? The Need for Cautionary Jury Instructions on the Unreliability
of Eyewitness Identification Testimony, 11 SAN FERN. V. L. REV. 95, 99–
101 (1983) (discussing factors that impact perception, such as stress,
timing, lighting, and race); Robin Sanders, Helping the Jury Evaluate
Eyewitness Testimony: The Need for Additional Safeguards, 12 AM. J.
CRIM. L. 189, 194–96 (1984) (discussing factors that impact perception
and selective memory, such as fear, personal bias, and race); Robert
Buckhout, Eyewitness Testimony, 231 SCI. AM. 23 (1974), reprinted in 15
JURIMETRICS J. 171, 172–76 (1975) (outlining factors impacting the
reliability of perception, including the importance of the event to the
observer, length of observation, stress, distance and lighting, the
observer’s physical capacity to see, race, bias, and expectancy); Gary
L. Wells, Applied Eyewitness-Testimony Research: System Variables and
Estimator Variables, 36 J. PERSONALITY & SOC. PSYCH. 1546, 1550–52
(1978) (discussing how preconceptions and race can impact the
accuracy of the acquisition of details); I. Daniel Stewart, Jr.,
Perception, Memory, and Hearsay: A Criticism of Present Law and the
Proposed Federal Rules of Evidence, 1970 UTAH L. REV. 1, 8–22 (detailing
how perception and memory are impacted by neurological,
psychological, and physiological factors).
16
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the very start. The State only points out Long’s use of the term
“memory process.”
¶56 In sum, the court of appeals erred in holding that cautionary
instructions are unwarranted unless the identification at issue
involved “memory.”
B. Identifications Need Not Involve Facial
Recognition to Invoke Long
¶57 The State urges us to narrow the applicability of cautionary
instructions even more than the court of appeals did. The State posits
that “Long and its progeny are limited to identifications based on
facial recognition.” And it asserts that the Surveillance Officers did not
use facial recognition, so a request for a Long instruction would have
been futile.
¶58 Long is not limited to identifications featuring facial
recognition. The State even acknowledges as much. The State simply
asserts that facial recognition is a “prominent[]” part of studies on
eyewitness identification, but it acknowledges that those studies “do
not focus exclusively on facial recognition.” For example, one study
cited in Long discusses not only issues with facial recognition, but
also witnesses’ “failure to observe the details of an event” due to
“selective perceptual processes,” including non-facial physical
characteristics of a perpetrator. Fredric D. Woocher, Did Your Eyes
Deceive You? Expert Psychological Testimony on the Unreliability of
Eyewitness Identification, 29 STAN. L. REV. 969, 977 (1977). It laments
that “even trained observers find it difficult to describe such obvious
physical characteristics as height, weight and age.” Id.¶59 Further, as discussed above, supra ¶¶ 51–55, Long was
concerned with the “process of perceiving events and remembering
them,” and how “failures may occur and inaccuracies creep in at any
stage” of that process. Long, 721 P.2d at 488. “[T]he observer may
have absolutely no memory of the facts simply because he or she
failed to select the critical information for perception.” Id. at 489.
¶60 Identifications primarily utilizing facial recognition may be
more wrought with inaccuracies—particularly when they involve
cross-racial identifications—and thus would more strongly merit a
cautionary instruction. See Sheri Lynn Johnson, Cross-Racial
Identification Errors in Criminal Cases, 69 CORNELL L. REV. 934, 935–51
(1984); Gary L. Wells & Elizabeth A. Olson, Eyewitness Testimony, 54
ANN. REV. PSYCH. 277, 280–81 (2003). But facial recognition is not the
only way to identify a perpetrator. Consider, for example, if a
witness identified a perpetrator by the tattoos on his arms. That
17
STATE v. HUNTER
Opinion of the Court
identification would implicate the memory process and raise the
same concerns Long identified. Even though the identification did
not involve facial features, we would still want the jury to know
about the factors that can impact a witness’s recollection, including
the witness’s ability to view the actor during the event, the witness’s
degree of attention to the actor, and whether the identification was
spontaneous and consistent, or the product of suggestion. 9
¶61 Simply put, eyewitness identifications utilizing facial
recognition are not the only kind of eyewitness identifications that
can merit a cautionary instruction. Long does not require a facial
recognition to warrant a cautionary instruction. 10
C. The Surveillance Officers Identified Hunter
¶62 The State’s final push to constrict the applicability of
cautionary instructions on eyewitness testimony asks us to conclude
that the Surveillance Officers’ testimonies here weren’t “actual
identification[s]” and “never identified Hunter as the seller.” The
State relies on State v. Clopten (Clopten II), where we said that the
rules of admissibility of “eyewitness identifications” under another
since-abrogated case, Ramirez, “appl[y] only when the state seeks to
inform the jury that an eyewitness has recognized the defendant as
the perpetrator.” Clopten II, 2015 UT 82, ¶ 35, 362 P.3d 1216 (citing
9 We note that Utah Rule of Evidence 617 does not limit itself to
identifications involving facial recognition. See UTAH R. EVID.
617(a)(1). Nor, for that matter, does it exclude real-time
identifications. Id. Rather, it defines “Eyewitness Identification[s]” as
“witness testimony or conduct in a criminal trial that identifies the
defendant as the person who committed a charged crime.” Id. While
rule 617 does not govern our analysis of Hunter’s case, as we
adopted that rule after completion of Hunter’s trial, we nevertheless
find rule 617 instructive and consistent with this court’s thinking on
eyewitness identifications and cautionary instructions under Long
and its progeny.
10 Even if cautionary instructions under Long were limited to
identifications utilizing facial recognition, it’s not clear that would
help the State’s argument. The State’s brief asserts that the “seller
was facing the officers.” If that is true, it would seem that the
Surveillance Officers’ identification of Hunter did involve viewing
faces, even though the description they gave to the takedown officers
and at trial focused on Hunter’s clothing and accessories.
18
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State v. Ramirez, 817 P.2d 774 (Utah 1991), abrogated by State v. Lujan,
2020 UT 5, ¶ 4, 459 P.3d 992 (holding that the Utah Constitution does
not mandate the factors used in Ramirez for assessing reliability and
admissibility of eyewitness identification testimony, and that the
rules of evidence are what apply)).
¶63 First, we are not convinced that Clopten II and Ramirez
apply, as those cases involved the reliability of eyewitness
identification testimony for the threshold purpose of admissibility,
not whether a cautionary instruction is warranted after evidence is
admitted. Clopten II, 2015 UT 82, ¶¶ 31–32; Ramirez, 817 P.2d at 778,
782. And, given our general rule to admit relevant evidence, see
UTAH R. EVID. 402, it makes sense that we might have had a
narrower understanding of what eyewitness identification testimony
should be altogether excluded as compared to when admitted
testimony merits a cautionary instruction.
¶64 Even if what we said in Clopten II did apply to this situation,
the Surveillance Officers informed the jury multiple times that the
man arrested—Hunter—was the person they saw selling the drugs.
The State’s assertions to the contrary are simply inconsistent with the
record. At the time of Hunter’s arrest, the takedown officer received
a “verbal confirmation,” impliedly from the Surveillance Officers,
that the person they were arresting “was indeed the individual
observed dealing the narcotics,” according to the trial testimony of
one of the takedown officers. See supra ¶ 19. Willis testified that he
“watch[ed] as the other officers arrived in the area, got out of their
cars, and approached him, and was able to verify that they had
contacted the correct male.” See supra ¶ 19. McNamee similarly
testified that he saw the takedown officers “come into the area and
contact the subject that I had described,” referring to the Seller, “and
take him into custody.” See supra ¶ 19.
¶65 Further, Willis testified that the Seller and the person
arrested were the “same.” See supra ¶ 20. When pressed by defense
counsel, he repeated two more times that it was “the same Black
male.” Supra ¶ 20. And again on re-direct, Willis agreed that the
arresting officers responded to “the Black male” that had been
involved in the drug transaction. Supra ¶ 20. Finally, the prosecution
asked Willis if he was “able to determine the name of the Black
male?” Willis responded, “Yes. . . . Glen [sic] Hunter.” Supra ¶ 20.
¶66 The Surveillance Officers’ identification of Hunter could not
be much clearer. The State’s argument that the Surveillance Officers
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STATE v. HUNTER
Opinion of the Court
did not “identify” Hunter within the meaning of what merits a
cautionary instruction, therefore, does not hold water. 11
¶67 In sum, both the court of appeals and the State are incorrect
in their assertions that Long is categorically and factually
inapplicable to situations like Hunter’s. 12
II. COUNSEL’S FAILURE TO REQUEST A LONG
INSTRUCTION WAS NOT CONSTITUTIONALLY DEFICIENT
¶68 An attorney’s performance is constitutionally deficient if
“counsel’s act or omission caused her representation to fall below an
objective standard of reasonableness.” State v. Gallegos, 2020 UT 19,
¶ 57, 463 P.3d 641. “If an attorney’s decisions can be explained by a
reasonable trial strategy, the defendant has necessarily failed to
show deficient performance.” Id. ¶ 56 (citing State v. Ray, 2020 UT 12,
¶ 34, 469 P.3d 871; and Strickland v. Washington, 466 U.S. 668, 688
(1984)). The defendant has the burden to overcome a “strong
presumption that counsel’s conduct falls within the wide range of
11 The State also attempts to support its theory with Lujan, 2020
UT 5. As with Ramirez and Clopten II, see supra ¶ 63, Lujan dealt with
the admissibility of eyewitness identification testimony. Lujan, 2020
UT 5, ¶ 4. Lujan held that the rules of evidence, not the Utah
Constitution, “prescribe the factors that trial courts should consider
in judging the reliability and admissibility of eyewitness
identification evidence.” Id. Therefore, for the same reasons we are
not convinced that Ramirez and Clopten II have much to tell us in this
case, we are not convinced that Lujan applies here either. See supra
¶ 63.
12The State argues that mistaken identification was not a “central
issue” in the case, which is one of the requirements for Long to apply.
721 P.2d at 492. We need not devote much airtime to that argument
because it has no impact on our ultimate affirmance of Hunter’s
conviction and because we anticipate that future cases fighting over
eyewitness identification evidence will be governed by rule 617,
which does not include a “central issue” requirement. See UTAH R.
EVID. 617(a)(1), (f). But we observe that Hunter’s trial counsel
discussed his theory that police had arrested the wrong person at-
length in his opening statement, closing statement, and in a motion
for directed verdict. See supra ¶¶ 25–32. Therefore, we agree with
Hunter that mistaken identification was a “central issue” in his trial
counsel’s defense theory.
20
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reasonable professional assistance.” Id. ¶ 34 (citation omitted); see
also id. ¶ 37. “[T]he question of deficient performance ‘is not whether
some strategy other than the one that counsel employed looks
superior given the actual results of trial. It is whether a reasonable,
competent lawyer could have chosen the strategy that was employed
in the real-time context of trial.’” Id. ¶ 36 (citations omitted); see also
Harrington v. Richter, 562 U.S. 86, 105 (2011) (“The question is
whether an attorney’s representation amounted to incompetence
under ‘prevailing professional norms,’ not whether it deviated from
best practices or most common custom.” (quoting Strickland, 466 U.S.
at 690)).
¶69 Hunter argues that his trial counsel was deficient for not
requesting a Long instruction. While trial courts have “some
latitude” to craft the content of each Long instruction, the instruction
should address the following factors:
(1) the opportunity of the witness to view the actor
during the event; (2) the witness’s degree of attention
to the actor at the time of the event; (3) the witness’s
capacity to observe the event, including his or her
physical and mental acuity; (4) whether the witness’s
identification was made spontaneously and remained
consistent thereafter, or whether it was the product of
suggestion; and (5) the nature of the event being
observed and the likelihood that the witness would
perceive, remember and relate it correctly. This last
area includes such factors as whether the event was an
ordinary one in the mind of the observer during the
time it was observed, and whether the race of the actor
was the same as the observer’s.
State v. Long, 721 P.2d 483, 492–93 (Utah 1986). Further, “a proper
instruction should sensitize the jury to the factors that empirical
research have shown to be of importance in determining the
accuracy of eyewitness identifications, especially those that
laypersons most likely would not appreciate.” Id. at 492. Factors
impacting accuracy can include “the quality of the lighting and the
time available for observation.” Id. at 492–93; see also State v. Clopten
(Clopten I), 2009 UT 84, ¶ 15, 223 P.3d 1103. It can also include the
“use of a disguise, distinctiveness of the culprit’s appearance, and
the presence of a weapon or other distractions.” Clopten I, 2009 UT
84, ¶ 15. In addition, “people identify members of their own race
with greater accuracy than they do members of a different race.” Id.;
see also Long, 721 P.2d at 493.
21
STATE v. HUNTER
Opinion of the Court
¶70 Hunter argues that instructing the jury on these Long factors
would have alerted the jury to weaknesses in the Surveillance
Officers’ testimony and, therefore, trial counsel was deficient for not
requesting such an instruction.
¶71 To support his argument, Hunter invokes what we said in
State v. Maestas—that “unless obvious tactical reasons exist to forego
an instruction, trial counsel faced with . . . eyewitnesses who, with
varying degrees of certainty and consistency, all identify his client as
the perpetrator, should request a cautionary eyewitness instruction.”
1999 UT 32, ¶ 28, 984 P.2d 376. Hunter also highlights that we found
the performance of the trial counsel in Maestas to be deficient in part
because “none of the identifications in [that] case were impervious to
attack under the criteria set forth in Long,” id. ¶ 29, and in part
because the “counsel did nothing to focus the jury’s attention on the
limitations of eyewitness identification,” id. ¶ 30. Hunter contends
that, like in Maestas, his trial counsel’s failure to request a Long
instruction was deficient because the Surveillance Officers’
testimonies were not “impervious to attack” under the Long factors.
¶72 Maestas is legally and factually distinguishable from the
situation here. First, whether a witness’s testimony was “impervious
to attack” is not the proper test for determining whether counsel was
constitutionally deficient under Strickland. The test is whether
counsel’s act or omission fell “below an objective standard of
reasonableness.” Gallegos, 2020 UT 19, ¶ 57. And the court in Maestas
acknowledged as much, clarifying that it did “not wish to imply that
in every case in which eyewitness identification is an issue, trial
counsel’s performance is per se deficient if a cautionary instruction is
not requested.” Maestas, 1999 UT 32, ¶ 32 n.2. We predicted that the
“facts in another case might provide a plausible justification for such
a tactic.” Id. The court’s conclusion flowed from the fact that the
record did “not reveal any reasonable tactic that would ameliorate or
explain” why counsel had not requested a Long instruction. Id. ¶ 32.
¶73 Second, Maestas presented a different factual situation than
the one Hunter’s counsel faced. The witness testimony in Maestas
suffered from greater inconsistencies than those here. And the issues
with eyewitness testimony that Long alerts the jury to were far more
acute in Maestas. The robberies and identifications in Maestas
occurred at night. Maestas, 1999 UT 32, ¶ 23. All of the witnesses in
Maestas “had a limited opportunity to observe the robber” because
“the robberies were completed quickly and the robber’s face and
head were covered.” Id. ¶ 29. Further, the robber had pointed a gun
at several of the witnesses, id. ¶¶ 2, 5, 9, 11, and many of the
22
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witnesses were “afraid or fixat[ed] on the weapon rather than on the
robber,” id. ¶ 29. The descriptions the eyewitnesses gave “varied
widely.” Id. ¶ 24. Descriptions varied as to whether the robber had a
limp or no limp, had brown eyes or green eyes, and spoke with an
accent or no accent. Id. ¶ 24. Further, “at least some of the witnesses
were making a cross-racial identification,” id. ¶ 29, and “only three
of the seven eyewitnesses could positively identify Maestas in a line-
up when asked to choose among him and six other Hispanic males,”
id. ¶ 24.
¶74 The identifications in Maestas were also procedurally tainted
because the police had employed a “highly suggestive show-up
prior to the line-up in which they selected” the defendant. Id. ¶ 29.
At that show-up, police had handcuffed Maestas, surrounded him
with police cars with their lights shining on him at night, the officers
told the eyewitnesses they had caught a suspect, and at least one of
the witnesses “heard a report over the radio that the suspect was
involved in another robbery, increasing the likelihood that he would
believe Maestas also committed the robbery to which he was a
witness.” Id. ¶ 23.
¶75 Finally, Maestas’s trial counsel “did nothing to focus the
jury’s attention on the limitations of eyewitness identification.”
Id. ¶ 30. Nor did he object to, attempt to correct, or ask questions on
cross-examination about the “inaccurate testimony” of a detective
who testified “without foundation that it is possible to identify a
person when a witness sees the person, but to be unable to describe
the person accurately.” Id. ¶ 31.
¶76 Maestas is not this case. Unlike in Maestas, Hunter’s trial
counsel highlighted in his opening and closing arguments to the jury
various weaknesses in the Surveillance Officers’ testimony. See supra
¶¶ 25–29. Hunter’s counsel noted that the Surveillance Officers had
taken their eyes off of the Seller and that there was some distance
between the Surveillance Officers and the drug transaction. See supra
¶ 26. He noted that the Surveillance Officers had used their personal
binoculars and had not taken any photographs of the transaction.
Supra ¶ 26. He further noted that the area was crowded and that the
Surveillance Officers could not recall if there were other Black people
in the area whom they could have confused with the Seller. See supra
¶ 26. Hunter’s counsel also highlighted the inconsistencies between
the Surveillance Officers’ descriptions of the Seller and the takedown
officers’ descriptions of Hunter. See supra ¶ 27. And he emphasized
other weaknesses in the State’s evidence, including that the State
hadn’t tested the purity of the methamphetamine found on Hunter
23
STATE v. HUNTER
Opinion of the Court
to verify if it was the same as that found on the Buyer. 13 See supra
¶ 28.
¶77 A “reasonable, competent lawyer” could have looked at the
factors that a Long instruction would have highlighted and
determined that such an instruction would be unhelpful, or even
hurtful, to his client’s defense. See Gallegos, 2020 UT 19, ¶ 36 (citation
omitted). That is, reasonable counsel could have concluded that
focusing the jury’s attention on frequently encountered problems
with eyewitness testimony might have highlighted for the jury that
the Surveillance Officers’ identification did not suffer from many of
those problems. Competent counsel could have reasonably
concluded that using opening and closing arguments and cross-
examinations to highlight specific weaknesses in the State’s case was
the safer route. And competent counsel could have considered that
the “Credibility of Witnesses” instruction, which told the jury to
assess factors such as “How good was the witness’s opportunity to
see, hear, or otherwise observe what the witness testified about” and
whether the testimony was “consistent over time,” see supra ¶ 31,
gave him some of the Long instruction’s upside with less of its
potential downside.
¶78 Our conclusion comes into clearer focus when we compare
the evidence before the jury to the factors the Long instruction
details. First, there was nothing significantly impeding the
“opportunity of the [Surveillance Officers] to view the [Seller] during
the event.” See Long, 721 P.2d at 493. Hunter asserts in his briefing to
us that the lighting was “imperfect” and that the “sun’s angle was
casting long shadows that may have interfered with the
[Surveillance Officers’] view.” But that speculation is contrary to the
record, which shows that area was “fairly well lit” and the weather
was good at the time. See supra ¶ 5. Hunter’s brief acknowledges that
testimony but speculates about what the conditions “may have”
been. Even if Hunter’s speculations about the late-in-the-day “long
shadows” were accurate, that still is nothing like Maestas, where the
robberies occurred in the dark of night. Maestas, 1999 UT 32, ¶ 23. A
reasonable, competent lawyer could have determined that further
emphasizing the lighting and viewing conditions with a Long
instruction might have hurt his defense.
13 Hunter’s counsel had extracted these details during cross-
examination of the various officers and crime lab personnel. See
supra ¶ 29.
24
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¶79 Hunter also asserts that the Surveillance Officers had an
“obstructed” view of the Seller during the transaction. Hunter
asserts that the Buyer blocked McNamee’s view of the Seller. But the
evidence was less than definitive on that point. McNamee’s
testimony on his line of sight to the Seller’s face was not clear. 14
Hunter also speculates that “Willis’s view must also have been at
least partially obstructed.” But Willis testified that there were not
“any obstructions” to his view, that the Seller was facing him, 15 and
that he “could clearly see” the transaction.16
¶80 Hunter also characterizes the “length of time the officers
had to observe the [Seller]” as “very short.” The entire transaction
took “less than 20 seconds,” including the passing of the drugs,
which took about ten seconds. See supra ¶ 10. During cross-
examination, Hunter’s trial counsel counted out a full ten seconds for
the jury. Reasonable counsel could have concluded, after watching
the jury’s reaction to that demonstration, that ten to twenty seconds
felt like a significant enough time that it would have been imprudent
to further emphasize how long the Surveillance Officers had
observed the suspect.
14 On direct examination, McNamee said he saw the Buyer
“approach the subject I described earlier,” referring to the Seller, and
that “subject’s back was to me.” In other words, McNamee indicated
that the Seller’s back was to him. But on cross-examination,
McNamee agreed that “the back of the White male was to [him]” and
“the front of the White male was to the Black male,” implying that
Seller was facing McNamee. In their briefing to us, however, both
Hunter and the State agree that the back of the Buyer was to the
Surveillance Officers, and the Seller faced the Surveillance Officers.
15 Willis testified that the Seller was “facing to the south,” and
that the windows from which he and McNamee observed the
transaction faced north and west, indicating that the Seller was
facing them.
16 Hunter also points out that Willis acknowledged that part of
his interpretation of what he perceived was based on his “experience
and training,” rather than direct observation. But that statement by
Willis was in response to the prosecution’s question about whether
he could “[a]ctually see the hand motions,” see supra ¶ 9, and speaks
more to the question of whether or not a drug transaction occurred,
not whether Hunter was misidentified as the alleged seller.
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STATE v. HUNTER
Opinion of the Court
¶81 As to the second Long factor, Hunter does not point to
evidence before the jury that would show that the Surveillance
Officers’ “degree of attention to the [Seller] at the time of the event”
was so compromised that the only reasonable strategy of a
competent attorney would have been to highlight it with a Long
instruction. See Long, 721 P.2d at 493. For example, Hunter asserts
that “the area the officers were observing was full of distracting
noises,” but he points to nothing in the record that suggests the
Surveillance Officers would have been distracted by noise. Hunter
does accurately note that the area was crowded, but he again points
to nothing in the record to show that the Surveillance Officers found
the number of people to be a “distraction[].” To the contrary, the
Surveillance Officers observed the event from the solitude of
enclosed offices, and their sole purpose of sitting there was to watch
the area to observe potential drug transactions. See supra ¶ 5. And
Hunter’s trial counsel pointed out multiple times in his opening and
closing arguments that there were “multiple individuals present at
that time milling about,” including other Black people. A reasonable,
competent attorney could have concluded that a Long instruction
that further attuned the jury to the Officers’ level of focus might have
hurt Hunter’s defense.
¶82 Hunter’s better arguments about the Surveillance Officers’
degree of attention and capacity to perceive and recall the pertinent
details are, first, that men involved in the transaction were
“stranger[s]” to the Officers. And second, that Willis provided a
“detailed” description of the drug transaction but only a “general”
description of the suspected Seller. Hunter notes that Willis gave a
“general description of the man’s clothing—camouflage pants, a
black hoodie, black sunglasses, a black hat, and a gold necklace,” but
no description of his “facial features, height, age, hairstyle, facial hair
(if any), or any distinguishing marks or characteristics.” Hunter also
highlights that neither the Surveillance Officers nor the takedown
officers could recall how many other Black men or men of other
races or ethnicities were in the area that day. See supra ¶ 18. Hunter
additionally asserts that the Surveillance Officers “focused their
attention on the white man until he walked out of sight.” Hunter
highlights how Willis stated he only “may have even kept view of
both” the Buyer and the Seller, and how McNamee implied that he
took eyes off of the Seller and then “transitioned back” and
“returned to watching” the Black man he believed to be the Seller
after the Buyer walked out of sight. (Emphasis added.)
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¶83 We agree that the potential reliability of the Surveillance
Officers’ identifications may be undermined if the Seller was a
“stranger” to them. See Clopten I, 2009 UT 84, ¶ 33 (“The research on
eyewitness identifications . . . almost exclusively focuses on
individuals who are attempting to identify a stranger.”). We further
agree that the reliability of the Surveillance Officers’ identifications is
somewhat undermined by the generality of their descriptions of the
Seller, as well as their testimonies implying they were not
exclusively focused on the Seller.
¶84 And that may be why during closing arguments, Hunter’s
counsel highlighted those facts. Hunter’s counsel asked the jury to
consider whether the Surveillance Officers’ description of the
suspected Seller was “so unique” as to make an accurate
identification. And he highlighted how the description included
nothing about height, age, weight, size, body type, or distinctive
markings. See supra ¶ 27. Hunter’s counsel also stressed that the
Surveillance Officers didn’t “stay focused” on the Seller and “took
eyes off” him. Instead, they watched the Buyer before “turn[ing]
back and . . . look[ing] at” the Seller. Although the Surveillance
Officers’ descriptions of the suspected Seller could have been more
detailed, we are not convinced they were so lacking in detail or
“attention” that it required Hunter’s counsel to go beyond
highlighting those deficiencies in his closing arguments. Cf. Long, 721
P.2d at 493. It is not difficult to conclude that reasonable counsel
could decide to not request a Long instruction to emphasize this
point, when the other Long factors were a mixed bag at best. Indeed,
as we point out above and below, reasonable counsel could decide
that much of what the jury would take from the Long instruction
would encourage the jury to judge the Surveillance Officers’
observations to be reliable.
¶85 Third, Hunter points to nothing in the record indicating that
the Surveillance Officers lacked “capacity to observe the event” or
lacked “physical and mental acuity.” See id. Hunter highlights that
the Surveillance Officers were stationed approximately a football
field away from the transaction. But they both had binoculars
through which they viewed the event, and they were able to describe
details about the appearances of both the Buyer and Seller, their
hand movements, and the substances they passed back and forth. See
supra ¶¶ 5–9. Hunter’s trial counsel pointed out multiple times in his
opening and closing arguments that, although the Surveillance
Officers viewed the transaction through binoculars, it was “at some
distance.” Supra ¶ 26. And he highlighted that the binoculars were
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STATE v. HUNTER
Opinion of the Court
the Surveillance Officers’ personal ones, not those issued by the
police department. Supra ¶ 26. A reasonable, competent attorney
could conclude that the Long instruction would actually focus the
jury on the Surveillance Officers’ otherwise unimpaired physical and
mental capacity to observe, and that this would undermine the
points he wanted to hammer home in his closing arguments.
¶86 As to the fourth Long factor—“whether the witness’s
identification was made spontaneously and remained consistent
thereafter, or whether it was the product of suggestion,” Long, 721
P.2d at 493—there were some inconsistencies between how the
Surveillance Officers described the attire and accessories of the
suspected Seller and how the takedown officers described Hunter.
But these discrepancies in Hunter’s accessories were not the same
level or type of inconsistencies that caused us to say in Maestas that
counsel had rendered ineffective assistance by failing to request the
Long instruction. See Maestas, 1999 UT 32, ¶ 24 (describing
eyewitness inconsistencies regarding permanent characteristics of
robber, including eye color and whether robber had a limp and
accent). And unlike in Maestas, Hunter’s trial counsel, in his closing
argument to the jury, did highlight these discrepancies as to whether
Hunter wore a gold chain and sunglasses, and whether the Seller
had an orange sports drink. See supra ¶ 27. A reasonable, competent
attorney could have concluded that a Long instruction could cut both
ways and it was not worth the potential downside.
¶87 As to whether the identifications were “the product of
suggestion,” see Long, 721 P.2d at 493, Hunter argues that
“McNamee’s belief that the men had engaged in a drug deal must
have been the product of suggestion because he, by his own
admission, did not see any behavior that looked like a drug deal.”
But that’s not what McNamee said. He testified that he saw a “White
male approach the other subject, they briefly contacted each other,
and then the White male began walking away.” While McNamee’s
description does not alone definitively establish that a drug deal
happened, it certainly is not an “admission” that he “did not see any
behavior that looked like a drug deal.” The jury also heard Willis
provide detailed testimony about observing a drug transaction, see
supra ¶¶ 8–9, which frustrates Hunter’s argument about the import
of any gaps in McNamee’s testimony.
¶88 A reasonable, competent attorney could have concluded
that the better avenue for undermining the State’s identification of
Hunter as the Seller was by highlighting the inconsistencies between
the various witnesses’ descriptions of the Seller and Hunter, and by
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highlighting that the State did not test the purity of the drug samples
to determine if the methamphetamine found on the buyer and on
Hunter were the same—all of which Hunter’s trial counsel indeed
did in closing arguments and in cross-examinations. See supra ¶¶ 26–
29.
¶89 Finally, we are also not convinced that evidence the fifth
Long factor implicates—“the nature of the event being observed and
the likelihood that the witness would perceive, remember and relate
it correctly”—was such that reasonable counsel would have wanted
a Long instruction. See Long, 721 P.2d at 493. This case is not like
Maestas, where the robber had pointed a gun at several of the
witnesses, Maestas, 1999 UT 32, ¶¶ 2, 5, 9, 11, and where many of the
witnesses were “afraid or fixat[ed] on the weapon rather than on the
robber.” Id. ¶ 29. Nor is this case like Long, where the witness, “[a]t
the same time he was identifying his assailant, . . . was shot, was
thrown back against the wall by the force of the blast, returned the
fire, and experienced ‘glossy’ vision,” and failed to identify the
defendant in a photo array. Long, 721 P.2d at 487–88. By contrast
here, the Surveillance Officers had no weapons pointed at them, nor
were there other similarly traumatizing distractions. Instead, the
Surveillance Officers observed the event from the solitude of
enclosed offices, and their sole purpose was to watch the area to
observe potential drug transactions. See supra ¶ 81.
¶90 Under these circumstances—where the Surveillance Officers
were not distracted by weapons or physical threats to their well-
being—we cannot say it was unreasonable for counsel to choose not
to attune a jury through a Long instruction about how eyewitness
reliability is impacted by “the nature of the event being observed
and the likelihood that the witness would perceive, remember and
relate it correctly.” Long, 721 P.2d at 493. 17
17 Another subfactor within the fifth Long factor is whether the
race of the perpetrator was the same as the witness’s. Long, 721 P.2d
at 493; see also Clopten I, 2009 UT 84, ¶ 15 (“[P]eople identify
members of their own race with greater accuracy than they do
members of a different race.”); Maestas, 1999 UT 32, ¶ 29 (noting that
at least some of the identifications meriting a Long instruction in that
case involved “cross-racial identification”). Hunter speculates that
“there may have been a cross-racial identification” of Hunter by the
Surveillance Officers. But Hunter acknowledges that the record does
(continued . . .)
29
STATE v. HUNTER
Opinion of the Court
¶91 Hunter argues that his trial counsel “could not reasonably
rely on cross-examination without requesting a Long instruction”
because the Surveillance Officers expressed “almost absolute
certainty” in their identifications and because we said in Clopten I
that where witnesses express that level of certainty, “the
effectiveness of cross-examination is badly hampered.” 2009 UT 84,
¶ 21. Hunter further highlights that in Clopten I, we said that that
“[e]ven if cross-examination reveals flaws in the identification,” a
jury may nevertheless “have difficulty assessing the import” of those
flaws and “in gauging the reliability of the identification,” unless the
jury has specific help in understanding the factors that may make
eyewitness testimony more or less reliable. Id. ¶ 22.
¶92 But in Clopten I we were examining whether a trial court
must admit expert eyewitness testimony regarding the reliability of
eyewitness identification when timely requested. Id. ¶ 6. We were
not analyzing whether it would be constitutionally deficient for a
defense counsel not to request expert eyewitness testimony, let alone
whether it would be constitutionally deficient for defense counsel
not to request a cautionary instruction.
¶93 The question before us is simply whether Hunter’s trial
counsel’s failure to request a Long instruction “caused [his]
representation to fall below an objective standard of
reasonableness,” Gallegos, 2020 UT 19, ¶ 57, or “whether a
reasonable, competent lawyer could have chosen the strategy that
was employed in the real-time context of trial,” id. ¶ 36 (citations
omitted).
¶94 We conclude that a “reasonable, competent lawyer” could
have chosen to not request a Long instruction. A reasonable,
competent lawyer could look at the Long factors, compare them to
the facts the jury heard, and reasonably determine that a Long
instruction carried an unacceptable risk of increasing the jury’s
confidence in the Surveillance Officers’ identification. And that
competent attorney could conclude that highlighting inconsistencies
not include any evidence that would allow us to conclude that the
identification of Seller was potentially tainted by the problems
inherent in cross-racial identification. We are not at liberty to make
guesses about facts that are not in the record, and therefore we
cannot weigh this aspect of Long in our consideration of the
performance of Hunter’s trial counsel.
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and weaknesses through cross-examination and opening and closing
arguments was the less risky way to go.
¶95 We are not saying that was the best strategy or the right
approach. But the question is “not whether some strategy other than
the one that counsel employed looks superior given the actual
results of trial.” Id. ¶ 36 (citation omitted). Hunter’s counsel “was
entitled to formulate a strategy that was reasonable at the time and
to balance limited resources in accord with effective trial tactics and
strategies.” Harrington, 562 U.S. at 107. There are “countless ways to
provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same
way.” Id. at 106 (citation omitted). Hunter has not met his burden to
overcome a “strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” See Gallegos,
2020 UT 19, ¶ 34 (citation omitted); see also id. ¶ 37.
¶96 We therefore affirm the court of appeals’ judgment that
Hunter’s trial counsel was not constitutionally deficient, though on a
different ground than the one the court of appeals articulated.
CONCLUSION
¶97 We hold that the court of appeals erred when it ruled that
Long only applies to “memory-based” identifications. We
nevertheless affirm Hunter’s conviction because Hunter did not
receive ineffective assistance of counsel. Hunter’s trial counsel was
not constitutionally deficient when he failed to request a Long
instruction because a reasonable attorney could conclude that a Long
instruction risked increasing the perceived reliability of the officers’
testimonies and hurting Hunter’s defense. Although we repudiate
the reasoning the court of appeals employed to reach its decision, we
affirm.
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