State v. Hunt

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                          Appellee,
                              v.
                      BRADLY SCOTT HUNT,
                          Appellant.

                             Opinion
                         No. 20221023-CA
                     Filed December 12, 2024

           Fifth District Court, St. George Department
                 The Honorable Keith C. Barnes
                           No. 201500943

             Michael Winn and K. Andrew Fitzgerald,
                     Attorneys for Appellant
               Sean D. Reyes and William M. Hains,
                     Attorneys for Appellee

    JUDGE GREGORY K. ORME authored this Opinion, in which
    JUDGES MICHELE M. CHRISTIANSEN FORSTER and DAVID N.
                   MORTENSEN concurred.

ORME, Judge:

¶1     Bradly Scott Hunt was convicted of murder and possession
of a dangerous weapon by a restricted person for fatally shooting
his former neighbor (Neighbor). On appeal, he argues his trial
counsel (Counsel) provided ineffective assistance in eliciting
testimony from him on direct examination about his prior
convictions. He also argues he was entitled to a mistrial after the
State asked him about his intent to kill Neighbor, and he argues
this questioning constituted prosecutorial misconduct. We
disagree on all fronts and affirm Hunt’s convictions.
                          State v. Hunt


                        BACKGROUND 1

¶2     Hunt and Neighbor used to spend lots of time together
fixing cars and hanging out at Hunt’s house. But after learning
that Neighbor’s wife, whom Neighbor could observe from Hunt’s
property, had obtained a protective order against Neighbor, Hunt
asked Neighbor to stay away from his house.

¶3     One night, Hunt had just returned home from work
when he heard the gate on the side of his house rattling and saw
Neighbor trying to enter the backyard. Although visitors
usually entered through that side gate, Hunt “saw red”
because he felt that Neighbor was violating his boundaries.
Hunt ran out the front door, yelling that Neighbor was not
supposed to be on his property and warning that if he had his
gun, he would kill Neighbor. Hunt then hit Neighbor in the head,
knocking him unconscious. After Neighbor fell to the ground,
Hunt struck him a few more times and then dragged him by the
legs down the driveway and into the middle of the road, where
he broke a glass bottle next to Neighbor’s head. Police responded
after being called by witnesses and, notwithstanding the
protective order, Neighbor’s wife helped him away. Neighbor
opted not to press charges against Hunt because of their
“friendship.”

¶4     Later that night, after things had calmed down, Hunt, his
father, and two friends were in Hunt’s backyard. Wary that
Neighbor would return with a gun, Hunt and his father had
turned off all the interior and exterior lights and padlocked the
side gate. Hunt’s father had also leaned a shotgun near the front

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

, 

(quotation simplified).


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                           State v. Hunt


door. Hunt’s dogs began barking inside the house, and Hunt got
up and ran inside. He later testified that he saw a “silhouette of a
man” outside the front windows. He immediately grabbed the
shotgun, ran outside, and fired, shooting Neighbor, who was on
the other side of the gate.

¶5     Neighbor lay on the driveway with a wound to his
torso until emergency personnel arrived. He later died at the
hospital. Meanwhile, Hunt was transported to the police station,
where he admitted in an interview to shooting Neighbor and
claimed he had acted in self-defense. He was later charged with
murder and possession of a dangerous weapon by a restricted
person. 2

¶6     Before trial, Hunt filed a motion in limine seeking to
exclude evidence of his prior felony convictions under rule 404(b)
of the Utah Rules of Evidence. But at a hearing on the motion, the
parties indicated that they had reached an agreement regarding
evidence of Hunt’s convictions. The parties stipulated to Hunt’s
status as a convicted felon for purposes of the charge for
possession of a dangerous weapon by a restricted person and they
acknowledged that if Hunt were to testify at trial, the State could
cross-examine him using his prior convictions under rule 609 of
the Utah Rules of Evidence.

¶7      At trial, the State called several witnesses, some of whom
testified about Hunt’s prior convictions. An officer, who
responded to the earlier physical altercation between Hunt and
Neighbor, testified that he was familiar with Hunt and had told
him, “[H]ey, look, you don’t want to go back to prison since
you’ve been there for ten years.” While testifying about the events

2. Hunt was also charged with possession or use of a controlled
substance and possession of drug paraphernalia based on
materials recovered during the search of his home after the
shooting, but he was acquitted of these charges at trial.


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                           State v. Hunt


surrounding the shooting, Hunt’s father also verified that Hunt
was a convicted felon.

¶8     After the State rested, Counsel 3 informed the court that the
defense would be calling a sheriff’s deputy who had “a
rapport with” Hunt “from the jail.” The deputy testified that he
had worked as a corrections officer during Hunt’s prior periods
of incarceration and that Hunt had been a respectful and
cooperative inmate. The deputy also happened to respond to the
aftermath of the shooting and testified that Hunt had posed “no
problems” as he was transported to the police station for
questioning.

¶9     Hunt also testified. He stated that after his dogs began
barking, he went inside and saw the “silhouette” of a man “trying
to manipulate” the front windows of his house. He claimed he
was “terrified” thinking it was Neighbor “breaking into” his
home to kill him. Counsel also asked Hunt, “[Y]ou’ve been to
prison, right?” Hunt answered, “I have,” and he explained he had
prior convictions for drug-related charges, retail theft, and
forgery. Hunt indicated he had taken plea deals in these prior
cases and “accepted responsibility,” the implication being that he
would have done the same in this case if he were guilty.

¶10 During Hunt’s cross-examination, the State elicited the
following exchange:

       [The State]: And just to be clear, [Neighbor] wasn’t
       killed accidentally, correct?

       [Hunt]: Correct.



3. The defense team included two attorneys. Because Hunt raises
his ineffective assistance claim against only one of them, we focus
on her actions alone.


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                           State v. Hunt


       [The State]: You intentionally pointed the shotgun
       at [Neighbor] and you pulled the trigger intending
       to kill or seriously wound [Neighbor]; is that true?

       [Hunt]: Correct.

Counsel then objected, stating, “Intentionally is a legal term” that
“calls for a legal conclusion my client can’t make” and that it was
“defined in the jury instructions as a legal term.” After a sidebar,
the court sustained the objection. But later, the State again
inquired about Hunt’s intent:

       [The State]: It wasn’t until after you made that
       decision, after you popped the door open with the
       desire to shoot the gun, that at that point you say
       you saw something, correct?

       [Hunt]: So when you say desire—

       [The State]: Well, I say intent, but apparently
       counsel has issue with that.

       [Hunt]: Did I desire to shoot [Neighbor]? No.

       [The State]: Did you intend to shoot [Neighbor]?

       [Hunt]: Yes.

¶11 Counsel again objected, stating, “Your Honor, this is
twice.” At a sidebar, Counsel said, “I’m inclined to move for a
mistrial.” The defense pointed out that the “jury will specifically
get mens rea terms that will say intent” and noted that the State
had “used that word several times.” The court sustained the
objection, stating, “We’ve already gone through this earlier,” but
it declined to grant a mistrial and suggested a curative instruction
instead.




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                            State v. Hunt


¶12 After the defense rested, the court instructed the jury,
including with this curative instruction:

              The terms “intend,” “intentional,” or
       “intentionally” are terms of common usage which
       have plain meanings.

              However,     there   are   specific legal
       implications of these terms which go towards the
       mens rea or state of mind elements to certain
       offenses; namely, murder.

             The common usage of these terms should not
       be confused with the legal meanings of these terms.

             “Intentionally” is a legal term of art as
       defined in jury instructions.

The instructions also addressed perfect and imperfect self-defense
and defense of habitation, each of which Hunt had argued at trial.
The jury found Hunt guilty of murder and possession of a
dangerous weapon by a restricted person.

¶13    Hunt appeals.


            ISSUES AND STANDARDS OF REVIEW

¶14 On appeal, Hunt argues Counsel provided ineffective
assistance when she elicited testimony from him regarding his
prior convictions. “An ineffective assistance of counsel claim
raised for the first time on appeal presents a question of law.” State
v. Lee, 

, 

 (quotation simplified).

¶15 Hunt also argues the district court erred in denying his
motion for a mistrial after the State cross-examined him regarding
his intent to kill Neighbor. “We review the denial of a motion for



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                            State v. Hunt


a mistrial under an abuse of discretion standard, and we will not
reverse the court’s decision unless it is plainly wrong in that the
incident so likely influenced the jury that the defendant cannot be
said to have had a fair trial.” State v. Kufrin, 

,

 (quotation simplified).

¶16 Relatedly, Hunt argues this cross-examination regarding
his intent constituted prosecutorial misconduct. “Prosecutorial
misconduct is not a standalone basis for independent judicial
review, meaning that we do not review the prosecutor’s actions;
rather, when a prosecutorial misconduct objection is made below,
we review the district court’s ruling on the objection for abuse of
discretion.” State v. Lyden, 

, 

(quotation simplified). But “when a prosecutorial misconduct
objection is not made, . . . the law of preservation controls and we
review the issues under established exceptions to the law of
preservation.” 

 (quotation simplified).


                            ANALYSIS

                      I. Ineffective Assistance

¶17 Hunt argues Counsel provided ineffective assistance in
eliciting testimony from the deputy and Hunt himself about
his prior convictions. “To succeed on a claim of ineffective
assistance of counsel, a defendant must show both that
counsel’s performance was deficient and that the deficient
performance prejudiced the defense.” State v. Lee, 

, 

 (quotation simplified). “To establish that
counsel’s performance was deficient, a defendant must show that
counsel’s representation fell below an objective standard of
reasonableness,” which requires the defendant to “overcome the
presumption that, under the circumstances, the challenged action
might be considered sound trial strategy.” 

 (quotation
simplified). “To establish the prejudice prong of an



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                            State v. Hunt


ineffective assistance of counsel claim, the defendant must
show that a reasonable probability exists that, but for counsel’s
error, the result would have been different.” 

 (quotation
simplified).

¶18 Turning to the first prong, we conclude that bringing up
Hunt’s prior convictions did not constitute deficient performance
by Counsel. In State v. Bedell, 

, 

, prior to the
trial of a doctor charged with sexual abuse of a patient, the district
court prevented the State from admitting evidence of nine other
sexual misconduct allegations against him, concluding the
evidence was inadmissible under rule 403 of the Utah Rules of
Evidence. Id. ¶ 6. Despite this, the doctor’s defense counsel
mentioned during opening statements that the accusing patient
had learned that the doctor was “being investigated for
allegations of sexual impropriety against [other] patients.” Id. ¶ 7
(quotation simplified). Defense counsel then repeatedly brought
up the other allegations while cross-examining the investigating
detective and again during closing argument “to argue that the
State had not thoroughly investigated [the patient’s] claims
‘because there was already an investigation going on’” and to
establish “a theme that [the patient] had limited credibility and
had only reported her claims after she learned of an ongoing
investigation.” Id. ¶ 21. Our Supreme Court concluded that
defense counsel’s “affirmative decision from the outset to utilize
the . . . evidence to attack the State’s case and [the patient’s]
credibility” and to create a “theme” for the defense was a
“legitimate strategic decision” and thus not deficient
performance. Id. ¶¶ 21, 24–25.

¶19 Similarly, Counsel used Hunt’s prior convictions
strategically, introducing the evidence to minimize its damage
and in an attempt to spin the narrative to Hunt’s advantage.
During its case-in-chief, the State admitted exhibits by stipulation,
including a copy of a judgment in which Hunt pled guilty to a
prior felony charge. And testimony from two of the State’s


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                           State v. Hunt


witnesses—a police officer who responded to the earlier physical
altercation between Hunt and Neighbor and Hunt’s own father—
had already alluded to these convictions. The State had also made
it clear that should Hunt choose to testify, it would introduce
evidence of his convictions to cross-examine him pursuant to rule
609 of the Utah Rules of Evidence. Counsel chose to deal with the
prior convictions “up front . . . to build credibility” for Hunt and
try to “minimize the prejudicial impact of the convictions”—
which is “often a sound strategic decision.” See Lee, 

.

¶20 Using this evidence also allowed Counsel to highlight that
in each prior case, Hunt had “accepted responsibility” by
pleading guilty. See State v. Gedi, 

, 

 (holding that, although “disclosure of a defendant’s prior
conviction is generally something defense counsel would seek to
avoid,” defense counsel had not performed deficiently in bringing
up a defendant’s prior convictions “to make the point that he had
willingly taken responsibility for his actions when he was guilty
and therefore was telling the truth now”). Counsel further
attempted to salvage Hunt’s image by eliciting testimony about
his cooperative and respectful behavior during his prior
incarceration.

¶21 Bringing up the convictions again—despite the earlier
motion seeking to exclude them—allowed Counsel “to take the
wind out of the sails” of the State before it could cross-examine
Hunt. See Lee, 

 (quotation simplified).
Considering the “wide latitude” we give “to trial counsel to make
tactical decisions,” it was certainly reasonable for Counsel to use
the evidence this way. Bedell, 

. Accordingly,
Counsel did not perform deficiently, and Hunt’s ineffective
assistance claim fails.




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                           State v. Hunt


                      II. Motion for Mistrial

¶22 Hunt next argues the district court should have granted his
motion for a mistrial. During cross-examination, the State twice
asked Hunt about his intent to shoot Neighbor. It first asked, “You
intentionally pointed the shotgun at [Neighbor] and you pulled
the trigger intending to kill or seriously wound [Neighbor]; is that
true?” Counsel objected, arguing that “[i]ntentionally is a legal
term” that was “defined in the jury instructions” and the State’s
question thus called “for a legal conclusion” that Hunt could not
make. The court sustained the objection. Later, the State elicited
the following exchange, which we repeat:

       [The State]: It wasn’t until after you made that
       decision, after you popped the door open with the
       desire to shoot the gun, that at that point you say
       you saw something, correct?

       [Hunt]: So when you say the desire—

       [The State]: Well, I say intent, but apparently
       counsel has issue with that.

       [Hunt]: Did I desire to shoot [Neighbor]? No.

       [The State]: Did you intend to shoot [Neighbor]?

       [Hunt]: Yes.

Counsel again objected, saying, “Your Honor, this is twice.” The
court sustained this objection, indicating that the parties had
“already gone through this earlier.” Counsel later moved for a
mistrial, arguing that the word “intent” and its variations “have a
very specific legal definition” that the jury would read in the jury
instructions after having already heard the State’s
cross-examination. The court denied the motion, observing that a




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                           State v. Hunt


curative instruction would be an adequate remedy. Hunt argues
this was an abuse of the court’s discretion.

¶23 “A mistrial is strong medicine.” State v. Bermejo, 

, 

 (quotation simplified). And “in view
of the practical necessity of avoiding mistrials and getting
litigation finished, the trial court should not grant a mistrial
except where the circumstances are such as to reasonably indicate
that a fair trial cannot be had and that a mistrial is necessary to
avoid injustice.” 

 (quotation simplified). “Because a district
judge is in an advantaged position to determine the impact of
courtroom events on the total proceedings, once a district court
has exercised its discretion and denied a motion for a mistrial, an
appellate court will not reverse the court’s decision unless it is
plainly wrong in that the incident so likely influenced the jury that
the defendant cannot be said to have had a fair trial.” 

(quotation simplified). Ultimately, “[e]valuating a denial of a
mistrial motion requires us to consider the totality of evidence
against the defendant and the circumstances surrounding the
improper statements.” Id. ¶ 76. Under the circumstances here, we
conclude the district court did not abuse its discretion in denying
Hunt’s motion for a mistrial.

¶24 Hunt relied on self-defense and defense-of-habitation
arguments throughout trial. And these arguments assumed the
fact that he did intend to shoot Neighbor—albeit justifiably. True,
the jury instructions asked the jury to determine beyond a
reasonable doubt whether Hunt “intentionally or knowingly
caused the death of” Neighbor. And the State cross-examined him
regarding his intent. But, in making his self-defense and defense-of-habitation arguments, Hunt had essentially conceded that he
had such intent. We cannot say that the State’s questioning
regarding intent so influenced the jury as to deprive Hunt of a fair




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                             State v. Hunt


trial. Thus, the district court did not abuse its discretion in
denying his motion for a mistrial. 4

                    III. Prosecutorial Misconduct

¶25 Relatedly, Hunt argues the State’s cross-examination
regarding his intent constituted prosecutorial misconduct.
Because “prosecutorial misconduct is not a standalone basis for
independent judicial review,” “when a defendant raises a claim
of prosecutorial misconduct on appeal,” our task on review “is
not . . . to question the prosecutor’s actions.” State v. Reid, 

, 

 (quotation simplified), cert. denied,

 (Utah 2018). “Instead, appellate courts review the
decisions of lower courts, not the actions of the prosecutor—at
least not directly.” Id. (quotation simplified). But for us to do so,
the issue must be preserved. See State v. Davis, 

, 

 (“Claims of prosecutorial misconduct are
subject to the preservation rule.”) (quotation simplified), abrogated
on other grounds by State v. Ringstad, 

, 

.

¶26 “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on it”—meaning the issue has been
“specifically raised . . . in a timely manner” and is “supported by


4. It is far from clear that the court should have sustained either of
Counsel’s objections to the questions about Hunt’s intent in the
first place. As the court itself later noted in its curative instruction,
while the word “intentionally” is “a legal term of art as defined in
the jury instructions,” it also has a “common usage.” And “when
witnesses have used a term in its ordinary meaning rather than its
legal meaning, we have determined that their testimony was
appropriately admitted.” State v. Zimpfer, 

(quotation simplified).



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                           State v. Hunt


evidence and relevant legal authority.” State v. Johnson, 

, 

 (quotation simplified). Thus, “when a
defendant fails to raise the issue before the district court, the law
of preservation controls and we review the issues under
established exceptions to the law of preservation, namely, plain
error, exceptional circumstances, or ineffective assistance of
counsel, if the appellant argues that one of these exceptions
apply.” Reid, 

 (quotation simplified).

¶27 The State argues that Hunt has not preserved this issue for
appeal. Given that the State’s questions regarding Hunt’s intent
likely were not improper, see supra note 4, we are far from certain
that any prosecutorial misconduct occurred here. In any event, we
agree with the State that Hunt’s prosecutorial misconduct
argument is unpreserved. Counsel moved for a mistrial, arguing
that the words “intend,” “intends,” “intention,” and the like
“have a very specific legal definition” and the last thing the jury
had heard from Hunt during his testimony were the words
“intention and shoot and intention and kill.” Counsel argued a
curative instruction would not be a sufficient remedy. But
Counsel did not invoke prosecutorial misconduct while arguing
for a mistrial, nor did the court address it. Accordingly, the issue
was not raised with specificity. And because Hunt does not urge
us to review the claim under an exception to our preservation
rule, “we have no occasion to address the merits of this issue.”
State v. Murphy, 

, 

, cert. denied,

 (Utah 2020).


                          CONCLUSION

¶28 Counsel’s attempt to use Hunt’s prior convictions to his
advantage did not constitute deficient performance and thus,
Hunt’s ineffective assistance claim fails. Because Hunt’s defenses
rested on what amounted to a concession of intent, the district
court did not abuse its discretion in denying his motion for a



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                          State v. Hunt


mistrial based on the State’s cross-examination regarding intent.
And we do not address Hunt’s unpreserved claim that this
cross-examination constituted prosecutorial misconduct.

¶29   Affirmed.




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