State v. Barlow

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                          Appellee,
                             v.
                  RICHARD MATTHEW BARLOW,
                         Appellant.

                            Opinion
                        No. 20230477-CA
                     Filed October 23, 2025

         First District Court, Brigham City Department
               The Honorable Brandon J. Maynard
                          No. 221100346

           Freyja Johnson, Hannah Leavitt-Howell, and
              Mikayla Irvin, Attorneys for Appellant
             Derek E. Brown and Alexandra Herlong,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN D. TENNEY
                        concurred.

MORTENSEN, Judge:

¶1     Richard Matthew Barlow and his friend Steve 1 stole some
scooters. Barlow believed that Steve subsequently stole one of
those same scooters from him. Obviously unable to go to the
police, Barlow took the matter into his own hands. Armed with a
handgun and donning a ski mask, he went to confront Steve and
James, another acquaintance, about the allegedly stolen scooter.
After a brief argument, Barlow shot both men and left them to die.



1. We use pseudonyms for the non-parties mentioned in this
opinion.
                           State v. Barlow


James managed to call the police for help, and both men survived,
though Steve was left with paraplegia.

¶2      Barlow was convicted on two counts of attempted murder
and three counts of felony discharge of a firearm with serious
bodily injury. Barlow appeals his convictions, arguing that his
trial counsel (Counsel) was ineffective in (1) not requesting a jury
instruction on imperfect self-defense when the evidence
overwhelmingly suggested that Barlow’s use of force was not
legally justified and (2) not cross-examining Steve about an
immunity agreement he secured in exchange for his testimony.
We find no merit in either of Barlow’s arguments and therefore
affirm.


                         BACKGROUND 2

                           The Shootings

¶3      Barlow and Steve had been friends for at least four years.
One day, the two men stole some scooters and e-bikes together
and left a couple of them at Barlow’s apartment. 3 Later that same
day, Barlow saw a man he believed was Steve take one of the
scooters by the apartment and ride off. Barlow called Steve and
left him an angry voicemail:




2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
on appeal.” State v. Holgate, 

, 

 (cleaned
up).

3. For the reader’s ease, and because the distinction does not affect
our analysis, we refer to the scooters and e-bikes interchangeably
as scooters.


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                          State v. Barlow


      Hey, so someone came through and took one of the
      scooters. So I’m just gonna let you know before I
      find out it’s you, your ass is a target. I don’t give a
      fuck. I’m just saying that shit, ‘cause right now I’m
      going down and asking the motherfucker with the
      cameras here that’s at my apartment and see the
      dumb motherfucker that just took it. And then I’m
      headed for their asses, so I hope to God it’s not you,
      bro. Otherwise, you’re fucked. And because they
      have camera footage, your ass is gonna get in hot
      fuckin’ water, so I ain’t, n****. You don’t fucking do
      dumbass little shit like that to me (inaudible). I’m
      not blaming you, but you’re the only motherfucker
      that knows that shit was there, so you better fuckin’
      respond, otherwise I’m gonna think it’s you and I
      will head that way.

Barlow then asked the apartment manager (Manager) if he had
video footage of the apparent theft. Manager said that he did not
and suggested that Barlow file an insurance claim. Ignoring the
suggestion for obvious reasons, Barlow told Manager he was
“going to get [his] gun and go fuckin’ shoot somebody or shoot
those fuckers.” Barlow then called Steve again and left another
voicemail: “You should respond quick because I’m headed your
way, and if I catch you with what I think you took, I ain’t gonna
talk, my n****.”

¶4     Barlow believed that Steve was at a nearby warehouse. He
also thought James would probably be there. Armed with a 9mm
handgun fitted with a laser sight, Barlow went to the warehouse.
Steve and James were listening to music and drinking beer inside
the warehouse and were startled when someone pounded on the
door. Steve opened the door and saw a figure wearing a ski mask.
When the figure spoke, Steve recognized Barlow’s voice and told
James that Barlow was there. Barlow then removed the mask.




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                          State v. Barlow


¶5     Barlow started waving the gun around and accused Steve
and James of stealing from him. Steve, who was unarmed, tried to
de-escalate the situation. He assured Barlow that he was merely
charging the scooter and would return it to him. He also asked
Barlow if he was really going to shoot him, given their years-long
friendship. Steve eventually told Barlow not to “threaten [him]
with a good time” and to “do it then.” Barlow then shot Steve once
from five to ten feet away.

¶6     James was also unarmed. He was looking for a place to
urinate when he heard the gunshot. At that point, James was ten
to twenty-five feet away from Barlow and Steve. James then took
a step or two toward both men before Barlow shot him twice.

¶7    Steve initially told Barlow to call the police for help but
changed his mind. James yelled to Barlow that he would be a
“dick” if he left them to die. Barlow then fled the scene without
helping the two men.

¶8      James managed to call the police. At some point after the
police arrived, Steve identified Barlow as the shooter. He also told
the officers where Barlow lived and that Barlow used a “9mm” in
the shooting.

¶9     Paramedics arrived and took Steve and James to the
hospital. Both men survived, but Steve was paralyzed from the
waist down. James also suffered significant injuries.

                         The Investigation

¶10 Police officers took Barlow into custody. At the police
station, a detective (Detective) questioned Barlow about the day’s
events. Barlow told Detective that his backpack and some of his
other belongings had been stolen. Barlow also acknowledged that
he had “cruise[d] over past [the] warehouse,” but he told
Detective that he did not go inside.




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                         State v. Barlow


¶11 During the conversation, Barlow also told Detective that he
had a 9mm handgun. After this disclosure, Detective told Barlow
that the police had found shell casings at the warehouse. Barlow
acknowledged that officers would find his gun and match the
casings to it. Indeed, officers found the gun during a search of
Barlow’s apartment.

¶12 At this point in the interview, Barlow grew more
forthcoming about what happened. He claimed that Steve was
“screaming” at him and that Steve and James were both
approaching him aggressively. Barlow also said that Steve’s
friends (presumably including James) were “all like heroin and
meth addicts,” which he suggested added to his fear in the
moment. Barlow ultimately told Detective that he shot Steve and
James in self-defense.

¶13 The State charged Barlow with two counts of attempted
murder, three counts of felony discharge of a firearm with serious
bodily injury, and one count of carrying a concealed dangerous
weapon. 4

                     The Pretrial Proceedings

¶14 Before trial, Steve agreed to testify against Barlow in
exchange for the State’s promise not to use any information that
Steve divulged in a potential criminal proceeding against him. 5




4. The State dropped the concealed weapon charge on the first day
of trial.

5. The agreement was one for “use immunity,” which “prohibits
any prosecutorial use of a witness’s testimony or evidence gained
from it against the witness.” State v. Arce, 

, ¶ 12
n.2, 

 (cleaned up), cert. denied, 

 (Utah
2024).


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                           State v. Barlow


¶15 For his part, Barlow moved for a justification hearing
pursuant to section 76-2-309(3) of the Utah Code seeking to
dismiss the case. He was the only witness to testify at the hearing
and claimed he shot Steve and James only after they rushed at him
from different angles. Barlow testified that he always carried the
gun and that he wore the mask to hide his face from James.
Moreover, Barlow suggested that, based on past experience, Steve
and James were dangerous when they were using drugs. And he
believed the two men had been “heavily intoxicated by drugs,
whether it be pills or meth[,]” at the time of the shootings.

¶16 On cross-examination, Barlow testified that he “could
barely see” Steve and James because “[i]t was the middle of the
night, basically.” He also claimed that the two men “were raging
at [him]” and “would have killed [him] with how they came out.”
Nonetheless, Barlow conceded that he could not tell whether
Steve and James were carrying weapons.

¶17 The district court found that Barlow had not established a
prima facie justification defense and that, even if he had, the State
had shown by clear and convincing evidence that his use of force
was not legally justified. Consequently, the court denied the
motion to dismiss.

                             The Trial

¶18 The case proceeded to trial. During the State’s case in chief,
Steve, James, Detective, and Manager testified about the
shootings and the surrounding events as described above. On
cross-examination, Counsel did not ask Steve about his use-immunity agreement.

¶19 Barlow testified in his own defense. His testimony was
largely consistent with his testimony from the justification
hearing and with what he had told Detective.




 20230477-CA                     6               

                          State v. Barlow


¶20 The State then recalled Steve and James in rebuttal. The
prosecutor offered medical records showing that both men tested
negative for various drugs, including methamphetamine, on the
day of the shootings.6

¶21 Barlow initially asked that the jury be instructed on perfect
self-defense and the lesser included offense of aggravated assault.
Before the case was submitted to the jury, however, Barlow
withdrew his request for the aggravated-assault instruction. Over
the objection of the State, the district court found that there was
enough evidence to allow the self-defense instruction to go to the
jury.

¶22 The jury convicted Barlow on all counts. The court merged
the unlawful discharge counts with the attempted murder counts
and sentenced Barlow to two consecutive terms of three years to
life.

¶23 Barlow timely appeals, asserting two claims of ineffective
assistance of counsel.


             ISSUES AND STANDARD OF REVIEW

¶24 On appeal, Barlow argues that Counsel provided
ineffective assistance by (1) not requesting a jury instruction on
imperfect self-defense and (2) failing to cross-examine Steve about
his immunity agreement. “When a claim of ineffective assistance
of counsel is raised for the first time on appeal, there is no lower
court ruling to review and we must decide whether the defendant


6. Nonetheless, Steve’s blood tested positive for 80 mg of ethanol
(which is equivalent to a .08% blood alcohol level), and he had an
“abnormal” cannabinoid test. James’s blood apparently was not
tested for ethanol, but he did concede that he “was intoxicated”
on the night of the shootings.



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                           State v. Barlow


was deprived of the effective assistance of counsel as a matter of
law.” State v. Gonzalez, 

, 

(cleaned up).


                            ANALYSIS

¶25 “To prevail on an ineffective assistance of counsel claim, a
defendant must meet the two-prong Strickland test: (1) counsel’s
performance was objectively deficient and (2) the deficient
performance resulted in prejudice.” State v. Fleming, 

, 

 (citing Strickland v. Washington, 

,
687–88 (1984)). And “because both prongs of the Strickland test
must be met to establish ineffective assistance of counsel, we need
not always address both prongs.” 

 (cleaned up).

¶26 For the first prong, a defendant must establish that
counsel’s representation was not “within the wide range of
reasonable professional assistance.” State v. Wilkes, 

, 

 (cleaned up). And a court does not assess
deficient performance “in a vacuum.” 

 Instead, the court must
“ask[] whether the strategy counsel employed was that of a
reasonable, competent lawyer in the real-time context of a trial.”
State v. Arce, 

, 

 (cleaned up), cert.
denied, 

 (Utah 2024). “[T]he ultimate question is
always whether, considering all the circumstances, counsel’s acts
or omissions were objectively unreasonable.” State v. Scott, 

, 

.

¶27 As for the second prong, “a defendant must show . . . a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
State v. Gonzalez, 

, 

 (cleaned up).
And “the impact of such alleged errors must be a demonstrable
reality.” Arce, 

 (cleaned up). Stated
otherwise, “the defendant’s showing must undermine our
confidence in the outcome.” 

 (cleaned up).


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                           State v. Barlow


                         I. Jury Instruction

¶28 Barlow argues that Counsel should have requested a jury
instruction on imperfect self-defense based on the facts of the case.
“Imperfect self-defense is a partial justification” and applies
“when a defendant reasonably, but mistakenly, believes that the
circumstances provide[] a legal justification or excuse for the use
of deadly force.” State v. Silva, 

, 

(cleaned up). When successfully invoked, the defense “reduces
murder to manslaughter [and] attempted murder to attempted
manslaughter.” State v. Low, 

, 

. By
contrast, “perfect self-defense is a complete justification and bars
a conviction. It applies when a defendant reasonably believes that
unlawful force against him is imminent and he is legally justified
in using force to defend himself.” Silva, 

 (cleaned
up).

¶29 Barlow argues that Counsel’s failure to request the
instruction constituted deficient performance for at least three
reasons. First, he asserts he was entitled to the instruction and that
Counsel’s alleged failure therefore prevented the jury from being
fairly instructed on the law related to self-defense and attempted
murder. Second, Barlow maintains that ample evidence showed
he was not legally justified in shooting Steve and James, so
competent counsel would not have forgone an instruction on
imperfect self-defense in his case. Third, he claims that the lack of
an instruction on imperfect self-defense effectively reduced the
State’s burden because the State did not have to disprove the
defense beyond a reasonable doubt.

¶30 In response, the State characterizes Counsel’s decision not
to request the imperfect self-defense instruction as an “all-ornothing” strategy of not asking for an instruction on a lesser
included offense. According to the State, if Counsel would have
requested the imperfect-self-defense instruction, then the jury




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                           State v. Barlow


would have had the “out” of convicting Barlow on a lesser
included offense instead of acquitting him.

¶31 We need not address the parties’ deficient-performance
arguments on this claim, however, because Barlow has not
demonstrated that he was prejudiced by Counsel’s performance.

¶32 Barlow asserts that Counsel’s performance prejudiced him
because, “even though the jury rejected perfect self-defense, there
is a reasonable likelihood that the jury would have questioned
whether the State disproved imperfect self-defense beyond a
reasonable doubt.” Barlow suggests that the jury could have
found reasonable doubt because he was outnumbered in a dark
area by two men who were acting erratically and the dispute
“sudden[ly] escalat[ed] from talking to an impending attack from
the two men.”

¶33 We disagree. Counsel’s failure to request the instruction
does not undermine our confidence in the outcome because, even
if the instruction had been given, it is quite unlikely that the jury’s
verdict would have been different. See State v. Ramos, 

, 

 (“[J]ust because there was enough
evidence to justify giving the imperfect-self-defense instruction
does not mean that the jury would have found that it applied.”).
After seeing Steve take the scooter, Barlow left him two extremely
threatening voicemails. Barlow also told Manager he was going to
shoot the people who stole his scooter. He tracked Steve and
James down and angrily confronted them while he was armed
with a 9mm handgun fitted with a laser sight. Moreover, Steve
and James testified that they were unarmed, and even Barlow
conceded that he could not tell whether the two men were armed
when he confronted them. Finally, Barlow shot James from at least
ten feet away and shot Steve from between five and ten feet away.
On these facts, we are not convinced there is a reasonable
probability that the jury would have done anything other than
convict Barlow of attempted murder had Counsel successfully



 20230477-CA                      10               

                           State v. Barlow


requested the imperfect-self-defense instruction. Cf. State v.
Garcia, 

, 

 (concluding that the
defendant was not prejudiced by an erroneous jury instruction on
imperfect-self-defense because the evidence that the defendant
“was motivated by a desire to kill . . . overwhelmed the evidence
that [the defendant] acted in imperfect self-defense”). Therefore,
Barlow’s first ineffective-assistance claim falls short.

               II. Steve’s Use-Immunity Agreement

¶34 Barlow argues that Counsel provided ineffective assistance
by failing to introduce evidence of Steve’s use-immunity
agreement. This claim fails for lack of deficient performance.

¶35 Barlow argues that Steve’s “credibility was a key element
of the State’s case.” Consequently, he argues, Counsel’s failure to
introduce evidence of Steve’s use-immunity agreement enabled
the State to offer the “narrative that [Barlow] pursued vigilante
justice by shooting [Steve] and [James], rather than acting in self-defense.” According to Barlow, that narrative depended “on
[Steve’s] account of [Barlow and Steve’s] purported criminal
activity, for which [Steve] had immunity.” The problem with the
argument is that Steve’s use-immunity agreement related to his
and Barlow’s thefts of the scooters, not to the shootings. We fail to
see how the thefts could have affected Steve’s credibility with the
jury, given that he openly testified about committing those
unrelated crimes. In fact, as a practical matter, the jury may well
have inferred based on Steve’s testimony that he had some form
of immunity. And it bears noting that use immunity is a relatively
weak form of immunity in that it “does not prohibit a subsequent
prosecution based on independent evidence.” State v. Ward, 

 (Utah 1977) (Wilkins, J., dissenting).

¶36 Moreover, given that Steve’s use-immunity deal was based
on relatively minor crimes, Counsel had a clear strategic reason
not to introduce the use-immunity deal: Barlow admitted
shooting Steve, who now must use a wheelchair due to paralysis.


 20230477-CA                     11              

                          State v. Barlow


Bringing up the agreement could have caused the jury to think
Counsel was unnecessarily attacking a sympathetic victim and
thereby undermined Barlow’s defense.

¶37 In short, the use-immunity agreement was based on crimes
unrelated to the charges on which Barlow was ultimately
convicted. And bringing up the agreement could have made the
jury less sympathetic to Barlow. For these reasons, Counsel’s
failure to ask Steve about the use-immunity agreement was not
objectively unreasonable. Barlow’s second claim for ineffective
assistance therefore also misses the mark because Counsel was
not deficient in failing to question Steve about the agreement.


                         CONCLUSION

¶38 Barlow has not demonstrated that Counsel’s failure to
request a jury instruction on imperfect self-defense was
prejudicial, because even if the jury had been so instructed, we are
confident that he would have been convicted. Moreover,
Counsel’s apparent decision not to introduce evidence of Steve’s
use-immunity agreement was not deficient, because Steve’s
unrelated crimes were irrelevant to his credibility in this case and
because introducing the evidence would have risked making the
jury less sympathetic to Barlow.

¶39    Affirmed.




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