                 This opinion is subject to revision before
                   publication in the Pacific Reporter

                                2015 UT 18


                                 IN THE
     SUPREME COURT OF THE STATE OF UTAH

                           STATE OF UTAH,
                              Appellee,
                                    v.
                    GLENN HOWARD GRIFFIN,
                          Appellant.

                          No. 20090520
                      Filed January 30, 2015

                   First District, Brigham City
                 The Honorable Ben H. Hadfield
                          No. 051100219


                              Attorneys:
   Sean D. Reyes, Att’y Gen., John J. Nielsen, Asst. Att’y Gen.,
                  Salt Lake City, for appellee
     Jennifer Gowans Vandenberg, Park City, for appellant


    ASSOCIATE CHIEF JUSTICE NEHRING authored the opinion of
  the Court, in which CHIEF JUSTICE DURRANT, JUSTICE DURHAM,
             JUSTICE PARRISH, and JUSTICE LEE joined.



   ASSOCIATE CHIEF JUSTICE NEHRING, opinion of the Court:
                        INTRODUCTION
   ¶ 1 The current case comes before this court both as a direct
appeal of Glenn Howard Griffin’s conviction for first-degree
murder and through motions to remand under rules 23 and 23B of
the Utah Rules of Appellate Procedure. We deny Mr. Griffin’s
motion under rule 23. However, we grant his rule 23B motion in
part and remand to the trial court to enter findings of fact
necessary to evaluate Mr. Griffin’s ineffective assistance of
counsel claims on appeal. We therefore stay Mr. Griffin’s direct
appeal pending the trial court proceedings.
                         STATE v. GRIFFIN
                       Opinion of the Court

                        BACKGROUND
    ¶ 2 On May 26, 1984, Bradley Newell Perry was working as a
night clerk at a Texaco gas station in Box Elder County, Utah. At
some point during the night, one or more individuals entered the
store and attacked Mr. Perry. Mr. Perry was tied up, stabbed, and
beaten. He died as a result of his wounds. Approximately $100 in
cash was taken from the register of the convenience store.
    ¶ 3 Sometime after midnight, two students, Ali Sabbah and
Baseem Barish, pulled up to the Texaco station for gas. Though
the Texaco was a self-service station, a man came out of the store
and offered to help the students pump gas. Mr. Sabbah described
the man as being about six feet tall and lean, with black hair and a
scruffy beard. He guessed the man was approximately thirty
years old. Mr. Barish similarly described the man as around six
feet tall with black eyes and black hair.
    ¶ 4 While the man was pumping gas, Mr. Sabbah noticed
that the man had bruises on his hand and there was what looked
like dried blood on his clothes and fresh blood on his white shoes.
Mr. Sabbah paid the man with five one-dollar bills. At that point,
Mr. Barish started walking towards the store to buy cigarettes.
The man intercepted Mr. Barish and said he would get the
cigarettes for him. Mr. Barish paid for the cigarettes with a five-
dollar bill, and the man gave him back four of the one-dollar bills
as change. Mr. Barish noticed that one of the bills had what
appeared to be a fresh bloodstain on it, and he thought that the
man seemed nervous. After the students left the gas station, they
discussed the strange interaction with the man. Mr. Barish
showed Mr. Sabbah the bloody one-dollar bill and placed the bill
on the dashboard. Concerned about the encounter, the students
sped down the road in an attempt to get pulled over. When that
failed, they found a payphone and called the police.
    ¶ 5 Detective Alan Beard arrived at the students’ location and
escorted them back to the police station in Brigham City. The
students relayed what they had seen and gave Detective Beard the
pack of cigarettes purchased at the station and the four one-dollar
bills they received as change. Mr. Sabbah sketched two drawings
of the man at the gas station.
    ¶ 6 Sheriff Lynn Yates, a patrol officer at the time, responded
to the gas station, arriving at approximately 4:30 a.m. He and
Officer Danny Earl entered the store through the public entrance


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and noticed a blood trail leading to a storage room, which was
locked. Sheriff Yates went around the back of the building and
looked through a window into the storage area, where he saw
Mr. Perry’s body lying on the ground. Sheriff Yates and Officer
Earl then kicked open the locked storage door. Sheriff Yates
determined that Mr. Perry was dead and called for the
investigation team.
    ¶ 7 The murder scene showed evidence of a struggle.
Mr. Perry’s body was covered in bruises and defensive wounds,
and his hands were bound behind his back with an electrical cord.
The autopsy report showed that Mr. Perry had various injuries.
The cause of death was certified as blunt-force injury to the head
and neck along with multiple stab wounds. The head injury was
likely caused by a syrup canister found in the store. Additionally,
approximately $100 was missing from the cash register.
    ¶ 8 Following the murder, police investigated a number of
leads, developing a list of approximately two hundred potential
suspects. Police considered Thomas Nager, an employee at the
station, and Mr. Nager’s friend, Craig Martinez, to be primary
suspects. The lead detective on the case explained that he
believed the perpetrator was someone familiar with the store, and
he testified that Mr. Sabbah had identified Mr. Nager from a
photo lineup as being ―consistent with‖ the man he had seen at
the gas station. Police also received information from Michael
Caldwell, a friend of Mr. Nager and Mr. Martinez. Mr. Caldwell
implicated Mr. Nager and Mr. Martinez in the murder, but his
story was inconsistent and changed during conversations with the
police. At Mr. Griffin’s trial, Mr. Nager admitted that he sold
drugs out of the store, he was late for work on the morning after
the murder, he stole from the store and was fired when the
manager discovered his theft, and he had multiple felony
convictions.1 Mr. Nager also claimed that he heard from others
that Mr. Martinez had bragged about killing Mr. Perry.
Ultimately, however, no DNA evidence connected Mr. Nager or



   1   Mr. Martinez asserted his intention to invoke his Fifth
Amendment right not to incriminate himself if he was called to
testify at trial. The parties therefore stipulated that Mr. Martinez
was ―unavailable‖ under Utah Rule of Evidence 804.


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                         STATE v. GRIFFIN
                      Opinion of the Court

Mr. Martinez to the murder, and neither man was charged. The
case went cold for several years.
    ¶ 9 Mr. Griffin became a suspect in 2005 when DNA from the
blood-stained one-dollar bill was matched to him. Investigators
then tested hair samples that were collected from the murder
scene for mitochondrial DNA (mtDNA) and determined that
99.94 percent of the population could be excluded as the donor
but Mr. Griffin could not. Additionally, a fellow inmate of Mr.
Griffin’s, Benjamin Britt, told police that Mr. Griffin made
incriminating statements about the murder to him while they
were in prison together.
   ¶ 10 The State charged Mr. Griffin with first-degree murder
under Utah Code section 76-5-202 (1984),2 and a jury convicted
him. The State sought the death penalty, but the jury returned a
sentence of life without parole. Mr. Griffin timely appealed.
Mr. Griffin also filed motions to remand under Utah Rules of
Appellate Procedure 23 and 23B. We deferred consideration of
those motions in order to address the claims in conjunction with
the issues raised on his direct appeal.
                           ANALYSIS
    ¶ 11 We first consider Mr. Griffin’s rule 23 motion for remand
to supplement the record on appeal. We determine that this relief
cannot be granted under rule 23, and we therefore deny the
motion. We next address Mr. Griffin’s rule 23B motion and
conclude that, for certain claims, he alleges sufficient facts that
could support a finding of ineffective assistance of counsel. We
therefore grant the motion in part and temporarily remand to the
trial court for the entry of findings of fact. We stay a ruling on
Mr. Griffin’s direct appeal pending the outcome of the trial court
proceeding.
                  I. MOTION UNDER RULE 23
   ¶ 12 Mr. Griffin alleges that a number of errors occurred
during trial for which there is no evidence on record. He
therefore requests that we remand his case under rule 23 of the


   2Mr. Griffin was also charged with aggravated robbery under
Utah Code section 76-6-302 (1984), but that charge was later
dismissed by stipulation of the parties as time barred.


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                       Opinion of the Court

Utah Rules of Appellate Procedure to make findings on claims
regarding a conflict of interest with counsel, inadequate
compensation for counsel, and the State’s failure to preserve
evidence for testing by the defense.
    ¶ 13 Mr. Griffin cites no authority that permits this court to
grant his requested relief under rule 23. Rule 23 merely governs
the form of motions; it does not grant parties any substantive
rights.3   Mr. Griffin therefore cannot base his motion to
supplement the record on rule 23 alone. The rules do provide two
mechanisms to supplement the record for appeal. Under Utah
Rule of Appellate Procedure 11(h), a party may make a
―correction‖ or ―modification‖ to the record in circumstances
when ―any difference arises as to whether the record truly
discloses what occurred in the trial court‖ or if ―anything material
to either party is misstated or is omitted from the record by error
[or] by accident.‖ Alternatively, a party may, as Mr. Griffin also
does, bring a motion under rule 23B to remand for findings of fact
not in the record that relate to an ineffective assistance of counsel
claim. However, Mr. Griffin’s motion under rule 23 does not
implicate the concerns addressed in rules 11(h) or 23B. 4 He
simply desires to augment the record for the benefit of arguments
on appeal unrelated to his ineffective assistance of counsel claims.
This is not permitted.5 His request runs contrary to our
traditional rule that ―this court need not, and will not[,] consider
any facts not properly cited to, or supported by, the record.‖6 To


   3 For example, rule 23 provides the required content of a
motion, the timing for response and reply, and the format and
number of copies needed.
   4 In his rule 23 motion, Mr. Griffin asserts a claim of counsel’s
conflict of interest. This claim is more properly brought under
rule 23B, and we therefore address that argument as it was raised
in his rule 23B motion. See infra Part II.A.1.
   5 Doctors’ Co. v. Drezga, 2009 UT 60, ¶ 5 n.3, 218 P.3d 598
(―[M]otions to supplement the record are inappropriate if used to
introduce new material into the record.‖ (internal quotation
marks omitted)).
   6  W. Jordan City v. Goodman, 2006 UT 27, ¶ 33, 135 P.3d 874
(alteration in original) (internal quotation marks omitted); see also
                                                              (con’t.)

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                           STATE v. GRIFFIN
                         Opinion of the Court

allow parties to enlarge the record posttrial would eviscerate our
longstanding rules of preservation and finality and open the door
to never-ending litigation. We therefore deny Mr. Griffin’s
motion under rule 23.
                        II. RULE 23B MOTION
    ¶ 14 Mr. Griffin also filed a motion under Utah Rule of
Appellate Procedure 23B to remand the case to the trial court for
findings bearing on his claims of ineffective assistance of counsel.
A number of Mr. Griffin’s 23B claims fail, and we therefore deny
the motion in part. However, we determine that for several of his
claims, Mr. Griffin has satisfied the requirements of rule 23B, and
we therefore remand this case to the trial court on those claims.
    ¶ 15 In Strickland v. Washington, the United States Supreme
Court articulated a two-part test to evaluate claims of ineffective
assistance of counsel.7 First, the burden is on the defendant to
establish that ―his counsel rendered a deficient performance in
some demonstrable manner, which performance fell below an
objective standard of reasonable professional judgment.‖8
Second, the defendant must show ―that counsel’s performance
prejudiced the defendant,‖ meaning that there is ―a reasonable
probability that, but for counsel’s unprofessional errors, the result
of the proceeding would have been different.‖9
    ¶ 16 A claim of ineffective assistance of counsel may be raised
on appeal ―if the trial record is adequate to permit decision of the
issue.‖10 Consequently, a defendant cannot bring an ineffective
assistance of counsel claim on appeal without pointing to specific
instances in the record demonstrating both counsel’s deficient

UTAH R. APP. P. 57(a) (providing that the record on appeal consists
of ―the legal file, any exhibits admitted as evidence, and any
transcripts‖).
   7 466 U.S. 668, 687 (1984); see Archuleta v. Galetka, 2011 UT 73,
¶ 38, 267 P.3d 232.
   8 Archuleta, 2011 UT 73, ¶ 38 (internal quotation marks
omitted).
   9   Id. ¶¶ 38, 40 (internal quotation marks omitted).
   10State v. Hopkins, 1999 UT 98, ¶ 12, 989 P.2d 1065 (internal
quotation marks omitted).


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                         Opinion of the Court

performance and the prejudice it caused the defendant.11 Thus,
where the record is silent regarding counsel’s conduct, a
defendant could not carry his or her burden of demonstrating
deficient performance and resulting prejudice.12 Unfortunately
for defendants, however, the insufficient record may often be the
result of the very inadequate assistance alleged.
    ¶ 17 Rule 23B was therefore ―specifically designed to address
the inadequate record dilemma.‖13 It provides a mechanism for
criminal defendants to supplement the record with facts that are
necessary for a finding of ineffective assistance of counsel but
which do not appear in the record. The rule states that ―[a] party
to an appeal in a criminal case may move the court to remand the
case to the trial court for entry of findings of fact, necessary for the
appellate court’s determination of a claim of ineffective assistance
of counsel.‖14 Defendants face a high bar, however, because ―[t]he
motion shall be available only upon a nonspeculative allegation of
facts, not fully appearing in the record on appeal, which, if true,
could support a determination that counsel was ineffective.‖15


   11 Our appellate rules require citation to the record for each
error alleged on appeal. See UTAH R. APP. P. 24(a)(7) (―All
statements of fact and references to the proceedings below shall
be supported by citations to the record . . . .‖); id. 24(a)(9) (―The
argument shall contain the contentions and reasons of the
appellant with respect to the issues presented, including the . . .
parts of the record relied on.‖); State v. Ison, 2006 UT 26, ¶¶ 38–39,
135 P.3d 864 (―[C]laims of error cannot ordinarily be founded on
matters not present in the record on appeal . . . .‖).
   12 See State v. Litherland, 2000 UT 76, ¶ 16, 12 P.3d 92 (―[W]here,
on direct appeal, defendant raises a claim that trial counsel was
ineffective[,] . . . defendant bears the burden of assuring the record
is adequate.‖).
   13 Id. ¶ 14; see also id. ¶ 16 (―Where trial counsel’s alleged
ineffectiveness caused or exacerbated record deficiencies,
defendants now have an appropriate procedural tool for
remedying those deficiencies.‖).
   14   UTAH R. APP. P. 23B(a).
   15   Id.


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                           STATE v. GRIFFIN
                         Opinion of the Court

And to support its contentions, the party must submit affidavits
that demonstrate both the deficient performance by counsel and
the resulting prejudice to the defendant.16
    ¶ 18 We have had little opportunity to consider rule 23B
motions for remand, though our court of appeals has often
addressed the issue.17 In State v. Johnston, the court of appeals laid
out a four-part test to evaluate rule 23B motions.18 First, remand is
not appropriate where the alleged facts are already in the record.19
The purpose of a rule 23B remand is to develop new evidence in
the record, without which a defendant cannot bring his ineffective
assistance of counsel claim on appeal. But if the facts necessary
for an ineffective assistance of counsel determination are apparent
on the record, there is no need for a remand for additional
findings, and the motion should be denied.20
    ¶ 19 Second, the defendant must provide allegations of fact
that are not speculative.21 ―Speculation‖ is ―mere guesswork or
surmise,‖ a ―conjecture,‖ or a ―guess.‖22 In the context of rule
23B, speculative allegations are those that have little basis in
articulable facts but instead rest on generalized assertions.
Permitting a remand for speculative allegations would not only
―be inconsistent with the presumption of sound trial strategy, it
would likely open a floodgate of incomplete and fragmented



   16   Id. 23B(b).
   17 See, e.g., State v. Curtis, 2013 UT App 287, 317 P.3d 968; State
v. Christensen, 2013 UT App 163, 305 P.3d 222 (per curiam); State v.
Garrett, 849 P.2d 578 (Utah Ct. App. 1993).
   18   2000 UT App 290, ¶¶ 8–13, 13 P.3d 175.
   19   Id. ¶ 9.
   20  State v. Alinas, 2007 UT 83, ¶¶ 38–42, 171 P.3d 1046
(affirming that defendant ―was not entitled to remand because the
alleged omissions [were] apparent from the record‖ (alteration in
original) (internal quotation marks omitted)).
   21   Johnston, 2000 UT App 290, ¶ 10.
   22  WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY 2189
(2002).


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ineffective assistance claims on direct appeal.‖23 Thus, for
example, the court of appeals has held that when a defendant
seeks to admit evidence of photographs, tests, or reports, those
documents must be included in the motion.24 And when a
defendant alleges that counsel failed to investigate or call a
witness, the defendant must, at the very least, identify the
witness.25 It is therefore ―improper to remand a claim under rule
23B for a fishing expedition.‖26 The mere hope that an individual
may be able to provide information if subpoenaed to testify is not
sufficient. An affiant must submit specific facts and details that
relate to specific relevant occurrences. As we discuss in greater
detail below, however, we reject a strict rule suggested by the
court of appeals in Johnston that the affidavit must come from the
potential witness himself.27 The court should consider all aspects
of the allegation, not simply the identity of the affiant.
    ¶ 20 The third and fourth elements of the Johnston test come
from the rule’s mandate that the alleged facts ―could support a
determination that counsel was ineffective.‖28 It stands to reason
that if the defendant could not meet the test for ineffective
assistance of counsel, even if his new factual allegations were true,
there is no reason to remand the case, and we should deny the
motion.29


   23State v. Hopkins, 1999 UT 98, ¶ 13 n.1, 989 P.2d 1065 (internal
quotation marks omitted).
   24   Curtis, 2013 UT App 287, ¶ 19; Christensen, 2013 UT App 163,
¶ 4.
   25   Curtis, 2013 UT App 287, ¶ 16.
   26 Hopkins, 1999 UT 98, ¶ 13 n.1 (internal quotation marks
omitted).
   27   2000 UT App 290, ¶ 11; see infra ¶¶ 27–28.
   28UTAH R. APP. P. 23B(a); accord Johnston, 2000 UT App 290,
¶¶ 12–13 & n.1.
   29See Christensen, 2013 UT App 163, ¶ 4 (―An appellant must
present this court with the evidence he intends to present on
remand and explain how that evidence supports both prongs of
the ineffective assistance of counsel test.‖ (internal quotation
marks omitted)).


                                   9
                            STATE v. GRIFFIN
                         Opinion of the Court

    ¶ 21 Ineffective assistance of counsel claims present a high
hurdle for defendants. In reviewing counsel’s performance,
appellate courts ―must keep in mind the variety of circumstances
faced by defense counsel [and] the range of legitimate decisions
regarding how best to represent a criminal defendant.‖30 For this
reason, we ―indulge in the strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance; that is the defendant must overcome the presumption
that, under the circumstances, the challenged action might be
considered sound trial strategy.‖31 And even where a defendant
can show deficient performance by counsel, the defendant must
also demonstrate that he was prejudiced—―that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.‖32
In evaluating whether prejudice exists, we ―consider the totality of
the evidence, taking into account such factors as whether the
errors affect the entire evidentiary picture or have an isolated
effect and how strongly the verdict is supported by the record.‖33
    ¶ 22 Finally, for the issues that we determine warrant remand
under rule 23B, we express no opinion here as to the ultimate
merits of the ineffective assistance of counsel claim. Because the
record is undeveloped and the State has had little opportunity to
counter the factual allegations presented, it would be imprudent
and contrary to the purposes of the rule to consider the merits of
the claim at this stage of the proceeding. Such a decision is best
left for evaluation on appeal after the trial court has concluded
its proceedings. With these principles in mind, we turn to
Mr. Griffin’s allegations.




   30 State v. Templin, 805 P.2d 182, 186 (Utah 1990) (alteration in
original) (internal quotation marks omitted).

   31   Id. (internal quotation marks omitted).
   32   Id. at 187 (internal quotation marks omitted).
   33   Id.


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                      Opinion of the Court

    A. Remand Is Necessary to Supplement the Record Regarding
        Mr. Griffin’s Claims of Conflict of Interest, Failure to
          Investigate a Witness, and Failure to Introduce
         Evidence of Mr. Martinez’s Burglary Conviction
   ¶ 23 Upon review of Mr. Griffin’s numerous allegations
regarding ineffective assistance from counsel, we determine that
three of his claims satisfy the requirements of rule 23B and
therefore warrant remand to the trial court.
1. Counsel’s Alleged Conflict of Interest
   ¶ 24 Mr. Griffin claims that one of his attorneys, Shannon
Demler, had an actual conflict of interest while representing him.
Mr. Demler represented Mr. Griffin in a limited capacity,
appearing at trial only to cross-examine Mr. Britt, a fellow inmate
who claimed to overhear incriminating statements Mr. Griffin
made while in prison.
    ¶ 25 To support his rule 23B motion, Mr. Griffin submitted
affidavits from his lead trial attorney, Randall Richards, and the
lead investigator on the case, Scott Cosgrove. Detective Cosgrove
stated that in 2006, Mr. Demler represented Frank Archuletta.
Mr. Demler contacted the detective on behalf of Mr. Archuletta
because he claimed to have information that would incriminate
Wade Maughan34 and Mr. Griffin in the murder of Mr. Perry.
Detective Cosgrove explained that he met with Mr. Demler and
Mr. Archuletta at the Utah State Prison, and Mr. Archuletta
claimed he heard Mr. Maughan make statements while in prison
that incriminated both him and Mr. Griffin. Mr. Archuletta
expressed willingness to aid in the State’s investigation and to
appear as a witness for the State.
   ¶ 26 In his affidavit, Mr. Richards stated that he retained
Mr. Demler to cross-examine Mr. Britt at trial because
Mr. Richards and co-counsel had a conflict of interest with

   34 Mr. Maughan confessed to helping Mr. Griffin commit the
murder. State v. Maughan, 2013 UT 37, ¶ 1, 305 P.3d 1058. The
State charged both Mr. Maughan and Mr. Griffin with murder,
but granted Mr. Maughan use immunity to testify against
Mr. Griffin.    Id. ¶¶ 4–5.      Despite the grant of immunity,
Mr. Maughan refused to testify at trial and was charged with
obstruction of justice. Id. ¶ 7.


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                          STATE v. GRIFFIN
                        Opinion of the Court

Mr. Britt. Mr. Richards asserted that he became aware that
Mr. Demler had represented Mr. Archuletta and that
Mr. Archuletta wanted to testify against Mr. Griffin and
Mr. Maughan. Mr. Richards explained that when he retained
Mr. Demler as Mr. Griffin’s counsel, he ―must have forgotten
about his representation of [Mr.] Archuletta.‖
    ¶ 27 We conclude that Mr. Griffin’s allegations that
Mr. Demler had a conflict of interest satisfy the requirements of
rule 23B and require remand for entry of factual findings. First,
there is no mention of Mr. Archuletta or his association with
Mr. Demler anywhere in the record. Second, the affidavits of
Detective Cosgrove and Mr. Richards both supply nonspeculative
allegations of a conflict of interest. The State argues that
Mr. Griffin’s failure to provide an affidavit directly from either
Mr. Demler or Mr. Archuletta is sufficient to defeat his claim.
We disagree. We recognize that in Johnston, the court of appeals
adopted a strict rule for rule 23B affidavits. The court stated that,
in addition to submitting affidavits identifying the witnesses and
averring that they are able to testify, a defendant ―must ordinarily
submit affidavits from the witnesses detailing their testimony.‖35
This requirement appears to represent an effort by the court of
appeals to cut off the possibility of speculative allegations.
However, we believe that requiring the potential witness to
submit an affidavit himself goes too far. Nowhere does the text of
the rule specify from whom the affidavit must be submitted. It is
true that the identity of the affiant will almost certainly factor into
the evaluation of whether the allegations are speculative. An
affidavit from the witness himself, who presumably has firsthand
knowledge, will almost always be less speculative than one from a
third party. But we believe that the inquiry must focus on the
content of the affidavit, not simply the identity of the affiant.
   ¶ 28 Such     a requirement would also present practical
problems for      defendants who seek to bring legitimate,
nonspeculative   claims. It may often be the case that potential
witnesses will   be uncooperative with defendants who request

   35 Johnston, 2000 UT App 290, ¶ 11 (emphasis added); see also
Curtis, 2013 UT App 287, ¶ 16 (denying motion because the
potential witnesses did not provide affidavits detailing proposed
testimony).


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                       Opinion of the Court

affidavits regarding possible past criminal activity. In such a
situation, though a witness may have crucial information relating
to the ineffectiveness of counsel, a defendant would have no
means to compel the acquisition of relevant evidence. It is only
through the subpoena power of the court that the needed
testimony can be entered into the record. For this reason, we
conclude that a defendant must have the opportunity to submit,
and a court must consider, affidavits providing nonspeculative
allegations from individuals other than the potential witness.
    ¶ 29 In this case, we conclude that the allegations contained
in the affidavits from Mr. Richards and Detective Cosgrove are
sufficiently nonspeculative. Their allegations are not the product
of guesswork or conjecture, but are based on their firsthand
knowledge and experience. They provide specific allegations
regarding Mr. Demler’s representation of Mr. Archuletta,
Mr. Archuletta’s proffer to the State, and Mr. Demler’s
involvement with Mr. Griffin’s case.
    ¶ 30 Third, we conclude that the allegations, if true, could
constitute deficient performance. If the trial court finds that
Mr. Griffin has indeed demonstrated an actual conflict of
interest,36 then Mr. Demler’s conduct violated Mr. Griffin’s right
to counsel.37      Fourth, these allegations could support a
determination that counsel’s ineffectiveness prejudiced the
result.38 Remand to the trial court is therefore appropriate to
supplement the record with facts related to Mr. Griffin’s conflict
of interest claim.


   36―In order to establish an actual conflict, [the defendant] must
demonstrate as a threshold matter . . . that the defense attorney
was required to make a choice advancing his own interests to the
detriment of his client’s interests.‖ State v. Taylor, 947 P.2d 681,
686 (Utah 1997) (alterations in original) (internal quotation marks
omitted).
   37 State v. Lovell, 1999 UT 40, ¶ 22, 984 P.2d 382 (―The right to
conflict-free representation is guaranteed by the Sixth
Amendment.‖).
   38 See Fernandez v. Cook, 870 P.2d 870, 878 (Utah 1993) (noting
that prejudice may be presumed ―when counsel is burdened by a
conflict of interest‖).


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                         STATE v. GRIFFIN
                       Opinion of the Court

2. Counsel’s Failure to Investigate Statements Made by Steven
   Wells
    ¶ 31 Mr. Griffin argues that his counsel provided ineffective
assistance when they failed to investigate witnesses who told
police that they saw Mr. Martinez, a primary suspect, with blood
on his clothes the night of the murder. In his affidavit, Detective
Cosgrove named a possible eyewitness, Steven Wells, who
claimed to have seen Mr. Martinez wearing a shirt covered in
blood the night of Mr. Perry’s murder. Mr. Richards asserted in
his affidavit that they did not investigate Mr. Wells or any of the
other witnesses who claimed to have seen Mr. Martinez that
night. Ron Edwards, Mr. Griffin’s private investigator, provided
an affidavit stating that Mr. Wells was uncooperative but could be
served with a subpoena.
   ¶ 32 Mr. Griffin identifies only one potential witness,
Mr. Wells, but asserts that there are others who witnessed
Mr. Martinez that night. Allegations that counsel did not follow
up with these additional unnamed witnesses fail because they are
too speculative. Mr. Griffin must at least be able to identify the
potential witnesses. However, his allegation that counsel did not
investigate whether Mr. Wells possessed exculpatory information
merits remand under rule 23B. First, there is no evidence in the
record that Mr. Martinez was seen on the night of the murder
with blood on his clothes.          Second, the allegation is
nonspeculative. As discussed above, that Mr. Griffin could not
secure an affidavit from an uncooperative Mr. Wells does not
defeat his claim. The affidavit of Detective Cosgrove supplies a
specific allegation that an identifiable witness—Mr. Wells—
provided evidence that implicated Mr. Martinez, a key suspect, in
the murder. And the affidavit of Mr. Richards confirms that he
was aware of Mr. Wells’s claims but declined to investigate them.
   ¶ 33 Third, we believe that the failure to investigate could
constitute deficient performance because of the importance of the
evidence. In general, counsel has the ―duty to adequately
investigate the underlying facts of the case‖ because
―investigation sets the foundation for counsel’s strategic decisions
about how to build the best defense.‖39 However, counsel is not

   39Menzies v. State, 2014 UT 40, ¶ 132, __ P.3d __ (internal
quotation marks omitted).


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                         Opinion of the Court

obligated to investigate every possible lead or present every
theory of defense. We have explained that ―[i]f counsel believes
that pursuing certain investigations would be fruitless or harmful,
we will not question that decision in the absence of a showing that
counsel’s belief was unreasonable.‖40 But here, the eyewitness
testimony that Mr. Martinez was wearing bloody clothes on the
night of the murder is highly probative, particularly in light of
other evidence implicating Mr. Martinez. We therefore conclude
that it was unreasonable for counsel to believe that this lead was
not worth investigating.
   ¶ 34 Finally, Mr. Griffin’s allegations could support a
determination that counsel’s ineffectiveness prejudiced him. We
have explained that ―when trial counsel fails to reasonably
investigate and present evidence that was crucial to the defense, it
amounts to prejudice when this evidence would have affect[ed]
the entire evidentiary picture.‖41 We believe that evidence that
another suspect was seen with blood on him the night of the
murder could alter ―the entire evidentiary picture‖ before the
jury. Accordingly, we remand this issue to the trial court.
3. Counsel’s Failure to Introduce Evidence that Mr. Martinez
   Burglarized Mr. Perry’s Home
    ¶ 35 Mr. Griffin next alleges that counsel was ineffective for
failing to introduce evidence that Mr. Martinez burglarized the
home of Mr. Perry on the day of Mr. Perry’s funeral. In 2000,
Detective Cosgrove submitted a sworn affidavit to a district court
to obtain a search warrant against Mr. Martinez. In his search
warrant affidavit, the detective represented to the court that
Mr. Martinez burglarized Mr. Perry’s home on the day of
Mr. Perry’s funeral. He destroyed some of Mr. Perry’s personal
property and stole items from his room. Mr. Martinez was
convicted for the offense. Mr. Griffin now includes that affidavit
in his rule 23B motion to show that counsel was aware of the
burglary but failed to introduce it at trial.




   40   Fernandez, 870 P.2d at 876–77.
   41 Gregg v. State, 2012 UT 32, ¶ 26, 279 P.3d 396 (alteration in
original) (internal quotation marks omitted).


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                           STATE v. GRIFFIN
                         Opinion of the Court

    ¶ 36 We determine that these allegations are sufficient for a
rule 23B remand. First, there is no mention of the burglary in the
record. Second, Mr. Griffin’s allegations are nonspeculative.
Mr. Griffin did not include a record of the burglary conviction in
his motion, and while it is generally insufficient to merely point to
the existence of omitted evidence without attaching it to the
motion,42 Mr. Griffin did include a sworn affidavit from Detective
Cosgrove confirming that Mr. Martinez was convicted for the
burglary. We conclude the allegations contained in the detective’s
affidavit are nonspeculative.
    ¶ 37 Third, Mr. Griffin could demonstrate that counsel
rendered deficient performance. The affidavit from trial counsel
does not address evidence of the burglary and thus does not
explain whether the evidence was investigated or why it was not
introduced. Generally, we ―indulge in the strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance,‖ and thus we employ a presumption that
―the challenged action might be considered sound trial
strategy.‖43 Therefore, where a defendant alleges that omitted
evidence should have been introduced by counsel at trial,
defendant’s rule 23B motion must overcome the presumption that
the omission was part of a reasonable trial strategy. It may be
possible to overcome this presumption where trial counsel
supplies an affidavit stating that the omission was the result of
error or a failure to investigate, meaning that counsel
affirmatively avers that the omission served no trial strategy. But
where no such affidavit exists, the burden is on the defendant to
show that the omission was so egregious that it could not possibly
have been part of a sound trial strategy.
   ¶ 38 We conclude that this is a rare situation in which the
defendant could show that an omission by trial counsel could




   42See Christensen, 2013 UT App 163, ¶¶ 2, 4 (denying rule 23B
motion for failing to include in the motion the medical records
and insurance report that defendant sought to introduce into the
record).
   43   Templin, 805 P.2d at 186 (internal quotation marks omitted).


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                         Opinion of the Court

have served no reasonable trial strategy.44          Evidence that
Mr. Martinez broke into the victim’s house on the very day of
Mr. Perry’s funeral and damaged his personal belongings is
probative of Mr. Martinez’s possible involvement in the crime.
This is particularly true given that police considered Mr. Martinez
a primary suspect. We can see no reasonable strategy for omitting
this evidence at trial.
    ¶ 39 Fourth, this allegation could support a determination
that counsel’s failure to elicit the evidence prejudiced Mr. Griffin.
Evidence that another individual committed the crime is highly
exculpatory, and when we ―consider the totality of the evidence,‖
the burglary evidence could have altered the outcome of the
proceeding.45 We therefore grant Mr. Griffin’s rule 23B motion on
the issue of Mr. Martinez’s burglary, and remand to the trial court
for the entry of findings.
               B. Remand Is not Necessary for Mr. Griffin’s
                        Remaining Allegations
   ¶ 40 Mr. Griffin brings numerous additional allegations that
counsel rendered ineffective assistance. We address each in turn
and determine that each claim fails.
1. Mitochondrial DNA
   ¶ 41 Mr. Griffin argues that his defense counsel did not
investigate the unreliability of mtDNA evidence, did not retain an
expert to educate themselves about the issue, and did not present
expert testimony to rebut mtDNA testimony by the State’s expert,
Dr. Terry Melton.
    ¶ 42 It is not necessary to remand this issue for factual
findings because sufficient evidence exists in the record to
demonstrate that counsel’s performance was not deficient. The
record shows that in preparation for trial, Mr. Griffin’s defense
counsel did engage two experts—Todd Rigley, an expert in
cellular and molecular biology, and Dr. Greg Hampikian, an
expert in genetics. Additionally, Mr. Griffin’s defense counsel

   44 Fernandez, 870 P.2d at 876 (explaining that trial strategy is
not effective if there is ―no reasonable basis for the decision‖
(internal quotation marks omitted)).
   45   Templin, 805 P.2d at 187.


                                    17
                              STATE v. GRIFFIN
                           Opinion of the Court

challenged the conclusions of Dr. Melton through cross-
examination. Utilizing cross-examination to expose defects in an
expert’s presentation can be a sound trial strategy.46 As the
Supreme Court has recognized, ―Strickland does not enact
Newton’s third law for the presentation of evidence, requiring for
every prosecution expert an equal and opposite expert from the
defense.‖47 In this case, defense counsel explicitly stated during a
pretrial hearing to exclude the mtDNA evidence that his strategy
was to focus on cross-examination of the State’s expert.48 Then,
during trial, defense counsel cross-examined Dr. Melton on the
very issues that Mr. Griffin now seeks to introduce: that mtDNA
is maternally inherited, that the DNA database used had fewer
than 5,000 samples, and that Dr. Melton’s conclusion did not take
into account population demographics for the relevant area of
northern Utah. Therefore, there is no reason to remand to the trial
court to enter findings on these challenges to the State’s expert.
2. Mr. Britt’s Identification of Mr. Griffin
    ¶ 43 Mr. Griffin argues that a remand is necessary to
supplement the record with facts related to Mr. Britt’s
identification of Mr. Griffin. However, we determine that remand
is not necessary on this issue. At trial, the State called Mr. Britt to
testify that, while in jail, Mr. Britt overheard Mr. Griffin confess to
the murder. However, at the beginning of the State’s direct
examination, Mr. Britt conceded that he could not identify
Mr. Griffin in the courtroom and defense counsel objected to his
testimony. The court acknowledged that Mr. Griffin looked
substantially different at trial than he had in prison and therefore


   46 See Harrington v. Richter, 131 S. Ct. 770, 791 (2011) (―In many
instances cross-examination will be sufficient to expose defects in
an expert’s presentation.‖); Jones v. Suthers, 130 Fed. App’x 235,
242–43 (10th Cir. 2005) (holding that counsel was not ineffective in
calling a rebuttal expert because ―[c]ounsel was able to cover the
same ground in cross-examination that she would have if she had
called her own expert witness‖).
   47   Richter, 131 S. Ct. at 791.
   48 Following cross-examination of Dr. Melton, defense counsel
stated, ―I think we covered everything on cross-examination that I
would put on with [Dr.] Hampikian, so we rest.‖


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                       Opinion of the Court

ruled that Mr. Britt could testify if he could identify an older
photo of Mr. Griffin from a photo lineup. Subsequently, and
while Mr. Griffin was outside the courtroom, Mr. Britt did
identify Mr. Griffin from the lineup, and he was allowed to
continue his testimony. Mr. Griffin now argues that counsel was
ineffective for failing to object to the identification process.
Mr. Richards submitted an affidavit stating that when Mr. Britt
left the witness stand after failing to identify Mr. Griffin in the
courtroom, he was led ―directly in front of [the defense] table‖
and he ―look[ed] closely at Griffin as he passed.‖
    ¶ 44 Remand is unnecessary on this issue because the record
reflects that Mr. Britt was on the witness stand and therefore had
an opportunity to observe Mr. Griffin in the courtroom before the
photo lineup. Thus, it is not necessary to supplement the record
with additional facts that Mr. Britt stared at Mr. Griffin.
3. Blood on the One-Dollar Bill
   ¶ 45 Mr. Griffin claims that defense counsel inadvertently
forgot to elicit testimony that because Mr. Griffin was a sheet
metal worker in Logan, he frequently had cuts on his hands,
which could have introduced his DNA onto the one-dollar bill.
He also argues that counsel failed to present exculpatory evidence
in the form of an expert opinion that there was no way to
determine how or when Mr. Griffin’s blood was transferred to the
one-dollar bill.
    ¶ 46 At trial, Mr. Griffin called expert Dr. James Gaskill, who
explained that ―studies reveal that D.N.A. is easily transferred.
And that very small quantities of D.N.A. can be analyzed and
profiled, extremely small amounts . . . . It’s touch D.N.A. That
touch D.N.A. has been found on all sorts of surfaces.‖ Dr. Gaskill
further stated that ―any cell that could get on this dollar bill could
have D.N.A. on it.‖ For this reason, he explained, bills are
particularly ―good candidates for D.N.A.‖ because they ―tend to
absorb biological fluids.‖ Dr. Gaskill also testified that he tested
six bills he collected at random in the regular course of business,
and from two of the bills he was able to detect the presence of
DNA.
    ¶ 47 We conclude that Mr. Griffin has not shown that this
allegation could support a determination that his counsel was
ineffective. Trial counsel did provide the jury with expert
testimony that DNA can easily be transferred to bills in the stream

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                          STATE v. GRIFFIN
                       Opinion of the Court

of commerce. Thus, evidence that Mr. Griffin was a sheet metal
worker would have been cumulative. Moreover, Mr. Griffin’s
argument that the blood was transferred at another time
contradicts testimony by the students that the blood on the bill
was damp when they received it from the suspect. As a result, the
jury could discredit his argument altogether. We therefore
determine that Mr. Griffin has not demonstrated that his
allegation could support an ineffective assistance claim.
4. Vehicle at Crime Scene
    ¶ 48 Mr. Griffin next charges his counsel with failure to
introduce evidence that his vehicle at the time of the murder did
not match the vehicle observed at the Texaco gas station, but that
the father of another possible suspect, Michael Caldwell, owned a
car that did match. Mr. Griffin’s argument fails because there is
enough testimony regarding the vehicle on the record for this
court to determine that counsel was not ineffective.
    ¶ 49 At trial, the vehicle at the gas station on the night of the
murder was mentioned several times. Mr. Barish, one of the
students, testified that he saw a white older-model pickup truck at
the station—either a Ford or a Chevy brand. Detective Cosgrove
later testified that a potential suspect, Mr. Caldwell, stated that he
drove his father’s truck—a 1960s pickup truck—to the Texaco gas
station at about 11 p.m. with other suspects, and waited in the
truck while the others entered the store. Defense counsel also
reminded the jury of the detective’s testimony about the truck
during closing arguments, stating that Mr. Caldwell admitted
―that he was there,‖ and ―that he drove a 1969 or ’70 white
pickup, which Ali Sabbah saw at the scene.‖
    ¶ 50 Mr. Griffin alleges that counsel should have also
introduced evidence that he drove a black truck that did not
match the description of the vehicle at the gas station. We
conclude, however, that in light of the testimony provided, the
evidence would have added nothing to improve the evidentiary
picture. The jury heard that Mr. Caldwell claimed he drove a
white pickup truck, matching the description from Mr. Barish, to
the scene of the murder. We do not believe that additional
testimony that Mr. Griffin’s car was black would have added
anything. Therefore, there is sufficient evidence in the record for
us to conclude that defense counsel was not ineffective in failing
to elicit additional information about the vehicle.


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                       Opinion of the Court

5. Additional Information About Other Suspects
    ¶ 51 Mr. Griffin next points to various sources providing
numerous allegations that he claims constitute substantial
evidence that others committed the murder. We address them
briefly here.
         A. Mr. Nager’s Similarity to Gas Station Attendant
    ¶ 52 Mr. Griffin asks this court to remand to supplement the
record with additional evidence that Mr. Nager matched a
description of the man at the gas station. However, there is
sufficient evidence on the record for a determination that trial
counsel did not perform ineffectively.        At trial, Detective
Cosgrove stated that Mr. Sabbah identified Mr. Nager out of a
photo lineup and said that he was ―consistent with‖ the man from
the gas station. We determine that Mr. Griffin did not suffer
prejudice for counsel’s failure to introduce additional testimony
that Mr. Nager looked like the man from the gas station.
Mr. Sabbah was a primary eyewitness in the case, and the defense
elicited testimony that he had selected Mr. Nager out of a lineup.
Additional evidence that Mr. Nager fit the description of the
station attendant therefore would have been cumulative.
               B. Mr. Nager Lied About His Location
                    on the Night of the Murder
    ¶ 53 Mr. Griffin next alleges that counsel was ineffective for
failing to introduce evidence showing that Mr. Nager lied to
police about his whereabouts on the night of the murder. This
claim is based on a statement in Detective Cosgrove’s affidavit
that during his investigation he ―became aware‖ of additional
allegations, including that Mr. Nager ―lied to police about his
whereabouts around the time of the homicide.‖ We determine
that this allegation is speculative. Detective Cosgrove does not
explain in the affidavit how he knows these facts, only that at
some point he ―became aware.‖ The detective also does not
provide any additional details about where Mr. Nager claimed to
be or where he actually was. To satisfy the standard under
rule 23B, Mr. Griffin must provide a more specific allegation.




                                21
                          STATE v. GRIFFIN
                       Opinion of the Court

                  C. Testimony of Michael Caldwell
    ¶ 54 Mr. Griffin argues that it was error for defense counsel
not to call Mr. Caldwell, who made numerous statements
implicating Mr. Martinez and Mr. Nager,49 to testify at trial. This
claim fails, however, because at trial the parties stipulated that if
called to testify, Mr. Caldwell would have invoked his Fifth
Amendment right not to incriminate himself. Thus, Mr. Griffin
cannot demonstrate ineffective assistance because Mr. Caldwell
would not have testified even if called.
    ¶ 55 Moreover, in his affidavit, Mr. Richards explained that
they decided not to call Mr. Caldwell for strategic reasons because
they ―believed he was not a credible witness.‖ Detective
Cosgrove affirmed this determination, testifying at trial that
Mr. Caldwell’s story changed numerous times.              We have
recognized that counsel’s conduct is not unreasonable when he
chooses not to call a potential witness whom he deems to be
inconsistent and lacking credibility.50 Such a witness represents
an unknown for the defense, and counsel could reasonably
believe that the testimony may prove more damaging than
helpful.   In this case, defense counsel elicited substantial
testimony through Detective Cosgrove that Mr. Caldwell had
implicated Mr. Nager and Mr. Martinez in the murder. And


   49 For example, at trial, Detective Cosgrove testified that
Mr. Caldwell said that he drove Mr. Martinez in his family truck
to the gas station because Mr. Nager wanted the clerk ―dealt
with.‖ Mr. Caldwell stated that he waited outside while the two
men were in the store, and when he entered the store later he saw
blood everywhere. He did not know if Mr. Martinez killed
Mr. Perry; he only ―saw the mess afterwards.‖
   50 See Fernandez, 870 P.2d at 876 (explaining that ―counsel’s
decision to call or not to call a certain witness‖ is a ―strategic
decision‖); see also Williamson v. Moore, 221 F.3d 1177, 1181 (11th
Cir. 2000) (finding no ineffective assistance for failure to call
witness who made inconsistent statements about a murder
because ―a reasonable attorney could have decided not to call
non-credible witnesses‖); United States v. Harden, 846 F.2d 1229,
1232 (9th Cir. 1988) (holding that it was not ineffective assistance
to decide not to call a witness whose credibility was at issue).


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                        Cite as: 2015 UT 18
                       Opinion of the Court

particularly where police also considered Mr. Caldwell to lack
credibility, we cannot say that it was unreasonable for counsel to
refrain from calling him and instead rely on the detective’s
testimony. We thus hold that counsel’s performance was not
deficient.
             D. Additional Evidence Implicating Others
    ¶ 56 Finally, Mr. Griffin points to additional allegations that
he claims provide substantial evidence that another individual
committed the crime. He alleges that, for example: Mr. Nager
accused Mr. Martinez of the murder during a police interview but
later changed his story; police thought the crime was committed
with rage and Mr. Martinez fit the profile of an angry youth;
police received information that Mr. Perry caught Mr. Martinez
and Mr. Ritter burglarizing cars by the gas station; police had
believed Mr. Nager and Mr. Martinez committed the crime until
the DNA from the one-dollar bill matched Mr. Griffin; and police
received information about two other possible suspects—Delmont
Gentry and Glenn Dansey—who both wore tennis shoes, drove
white pickup trucks, and allegedly bragged about a murder.
Additionally, Mr. Griffin makes general allegations that ―police
and investigators were contacted by many witnesses and received
numerous tips implicating Nager and Martinez.‖ Mr. Griffin does
not identify these witnesses, provide supporting affidavits, or
indicate with any specificity what their testimony would be. We
determine that each of these claims fails because the allegations
are too speculative.
                         CONCLUSION
    ¶ 57 We deny Mr. Griffin’s motion under rule 23 as an
improper means to supplement the record for appeal. We grant
Mr. Griffin’s rule 23B motion as to the claims of counsel’s conflict
of interest, the failure to investigate statements by Mr. Wells, and
the failure to introduce evidence of Mr. Martinez’s burglary of the
victim’s home.        Therefore, under Utah Rule of Appellate
Procedure 23B, we temporarily remand the case to the trial court
to enter findings of fact on these claims. The trial court is to
complete its proceedings within ninety days of the issuance of this
order unless the trial court finds good cause for a reasonable
delay. Mr. Griffin’s direct appeal is stayed pending the trial
court’s proceedings.



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