State v. Uptain

               THE UTAH COURT OF APPEALS

                        STATE OF UTAH,
                           Appellee,
                              v.
                     WILLIAM ALLEN UPTAIN,
                           Appellant.

                             Opinion
                         No. 20210766-CA
                     Filed December 14, 2023

         Seventh District Court, Castle Dale Department
                The Honorable Jeremiah Humes
                          No. 211700031

              Wendy Brown, Debra M. Nelson, and
             Benjamin Miller, Attorneys for Appellant
             Sean D. Reyes and Michael D. Palumbo,
                     Attorneys for Appellee

  JUDGE DAVID N. MORTENSEN authored this Opinion, in which
   JUDGES GREGORY K. ORME and RYAN D. TENNEY concurred.

MORTENSEN, Judge:

¶1     A seventy-two-year-old widow living alone was subjected
to a late-night home invasion and assault. Aware that William
Allen Uptain, a known drug addict, lived nearby, law
enforcement officers developed a hunch that Uptain might be the
perpetrator. Sitting down for an interview with Uptain was easy
enough—he was already in jail on drug charges. After isolating
Uptain in a booking area of the jail, an officer, without providing
Miranda warnings, see Miranda v. Arizona, 

 (1966),
started interviewing Uptain, mainly about drug activity in the
community. The officer then changed gears and brought up the
home invasion case, to which Uptain spontaneously confessed.
Uptain was then given Miranda warnings and confirmed his
                          State v. Uptain


confession. Now having been convicted, Uptain claims that his
trial counsel (Counsel) was ineffective for failing to move to
suppress his confessions and that he was prejudiced by this
failure as the State had no other evidence of his guilt. We agree
with Uptain’s claims, vacate his convictions, and remand the case
for such proceedings as may now be appropriate.


                         BACKGROUND

¶2     Police in Green River, Utah, had an unsolved home
invasion burglary. One February night, an unidentified man
broke into the home of a seventy-two-year-old widow (Vicky 1),
who lived there alone. Vicky heard her dog barking, and she
looked up to see a man standing at her kitchen door. The man
“had on a full face ski mask, dark in color, a black sweater, khaki
colored pants, and cloth-covered gloves.” The invader ran toward
her, grabbed her by the hair, yanked her out of her chair, and
grasped her by the neck, warning, “Don’t scream. All I want is
money.” After saying that she had none, he shoved her back into
the chair and exited toward the kitchen door. Vicky ran after him
because she had seen him take her purse. She grabbed his sweater
in an attempt to stop him, at which point he turned around and
slugged Vicky in the chest. Vicky fell to the floor but got up and
ran after him again as he fled out the door. She went to her back
porch to determine in which direction he went, but it was too
dark. She returned inside and called the police.

¶3      After spending several minutes gathering information
from Vicky, the responding officer drove around the surrounding
streets looking for a suspect. Another officer joined in the search,
but they located no one. The officers gathered no fingerprints,
fiber evidence, or other forensic evidence. They were unable to
find any footprints because the ground was too hard for an



1. A pseudonym.


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                          State v. Uptain


impression to be left. And there was no video evidence available
from surrounding residences.

¶4     The police did have some suspicions about Uptain being
involved in the home invasion. But when asked about Uptain,
Vicky responded that she did not know him. Still, Uptain’s name,
among others, was “floated as a possible suspect in the home
invasion burglary,” but the police did not “have any specific
evidence tying him” to the crime.

¶5    Uptain had some outstanding warrants that had “nothing
to do” with the home invasion. Police arrested Uptain on these
warrants on March 4.

¶6     On March 15, a local drug task force agent (Detective)
interviewed Uptain in the booking area of the jail. Detective was
aware of the home invasion burglary through “normal
conversation with other detectives and with [his] supervisors
requesting . . . follow-up with investigations.” He also knew that
Uptain “lived in very close proximity” to Vicky.

¶7     Detective and another officer were present for the
interview with Uptain. Detective said he wanted to talk to Uptain
about drug activity in Green River, including seeking information
about users and dealers. Detective told Uptain that Green River
had a serious drug problem that he was trying to address. Uptain,
apparently offering his assistance, asked Detective, “What do you
need?” Detective responded,

      Whatever you can freaking give me, man. . . . [Y]ou
      got nobody in [this jail]. You got nobody anywhere.
      . . . [T]hat’s why we came out here. . . . [The other
      inmates] don’t know why you’re out here. They
      know you got court tomorrow is what we were
      talking about . . . . So, yeah, don’t worry about that.
      I’m not going to burn you.




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                           State v. Uptain


(Emphasis added.) As they continued talking about various
aspects of the drug activity in the area, Detective stated,

      Well, I appreciate honesty. And really you could be
      honest with me and tell me about other stuff, even
      other stuff you did . . . . I’m not going to hang you up
      over that. Like, if there’s something serious, we’d
      work through it. Pretty much everything else, I’m
      not worried about.

(Emphasis added.) They continued to talk about Uptain’s plans
for pursuing drug treatment when he got out of jail and how he
might assist Detective in addressing the drug problem in the area.
At this point, Detective’s phone rang. After completing the call,
Detective returned to the interview but pivoted to the home
invasion:

      Detective: So I’ve got one thing that I’m hoping that
        you can help me out with. Happened the middle
        of last month . . . middle of February. Do you
        know [Vicky]?

      Uptain: Who? . . . A guy?

      Detective: No. . . . [She lives] kind of through the field
        from you guys, going north.

      Uptain: No, I don’t know her, but, yeah . . . .

      Detective: [Oh] you know what I’m talking about?

      Uptain: Yeah. And I regret it so much, man. I know
        I need help.

      Detective: Okay. So that was—

      Uptain: I was waiting for you to ask me about that.



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                           State v. Uptain


         ....

      Detective: So let me tell you this. . . . I didn’t even ask
        you and you were out with it. It’s perfectly clear
        where your mind is right now and it’s probably
        the clearest it’s been in a while.

         ....

         So I got my hands tied a little bit on this, and so I
         will have to bring this . . . up my chain of
         command. . . . But I’m hoping that it will just
         work out the best way it can. . . .

         So before you tell me anything, we’ll do this, just
         so . . . you’re legit. Okay. You have the right to
         remain silent . . . .

¶8     After Detective completed the Miranda recitation, Uptain
confirmed that he understood the corresponding rights and
agreed to “keep talking” to Detective. Uptain then shared the
details of the home invasion burglary.

¶9      Uptain was charged with robbery and aggravated
burglary. He filed a pro se motion to dismiss, arguing that there
was no evidence apart from his confession to support a
conviction. He also argued—albeit somewhat nebulously and
citing the Fourth Amendment instead of the Fifth Amendment—
for a “suppression hearing.” He filed a second similar motion a
few days later. The district court refused to rule on the pro se
motion because Uptain, who was represented by legal counsel,
had not obtained Counsel’s endorsement.

¶10 Uptain then filed two more pro se motions seeking “new
and sufficient counsel,” arguing, as relevant here, that Counsel
had not sought an evidentiary hearing or spoken to him about
pretrial motions. The court denied the first motion for new



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                          State v. Uptain


counsel because Uptain “provided no legal conflict nor suggested
that the situation could not be resolved by additional meetings
with [Counsel] prior [to] trial.” And Uptain, on the morning of
trial, withdrew his second motion.

¶11 During the trial, Vicky, the responding officer, and
Detective testified to the events described above. During
Detective’s testimony, the State played the portion of Uptain’s
interview in which he confessed to the home invasion. During the
cross-examination of Detective, Counsel played additional
portions of the interview leading up to Uptain’s confession.

¶12 In closing, Counsel argued that the case boiled down to
Uptain’s confession to the home invasion. But Counsel pointed
out that the information in Uptain’s responses was “rambling”
and possibly inaccurate. Counsel also pointed out that Uptain
made the incriminating statements only after Detective told him
that he wouldn’t “hang him up” and that Uptain was “saying
whatever” he needed to say to get into drug treatment.

¶13 The jury convicted Uptain as charged, and he was
sentenced to prison. Uptain appeals.


             ISSUE AND STANDARD OF REVIEW

¶14 The sole issue presented is whether Counsel rendered
ineffective assistance when he did not file a motion to suppress
Uptain’s confession. “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
was deprived of the effective assistance of counsel as a matter of
law.” State v. Guerro, 

, 

 (cleaned
up), cert. denied, 

 (Utah 2022).




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                          State v. Uptain


                            ANALYSIS

¶15 Uptain argues that his constitutional right to effective
assistance was violated when Counsel failed to file a motion to
suppress his confession. He asserts that if Counsel had filed a
motion to suppress, all his statements—both before and after
Miranda warnings—would have been suppressed. More
specifically, he contends that his “pre-Miranda statements should
have been suppressed, because they were obtained absent the
required warnings regarding [his] Fifth Amendment rights” and
that “his post-Miranda statements should have been suppressed,
because they were the result of an impermissible two-step
interrogation.”

   I. The Questioning of Uptain Required Miranda Warnings

¶16 In Miranda v. Arizona, 

 (1966), the United States
Supreme Court gave “concrete constitutional guidelines for law
enforcement agencies and courts to follow” when conducting
custodial interrogations. 

 at 441–42. “Those guidelines
established that the admissibility in evidence of any statement
given during custodial interrogation of a suspect would depend
on whether the police provided the suspect with four warnings.”
Dickerson v. United States, 

 (2000). These warnings
are (1) that a suspect has the right to remain silent, (2) that
anything a suspect says can be used in a court of law, (3) that a
suspect has the right to an attorney, and (4) that a suspect who
cannot afford an attorney has the right to be appointed one prior
to any questioning. 

 Thus, in articulating this right, “Miranda
conditioned the admissibility at trial of any custodial confession
on warning” suspects of their rights, and the “failure to give the
prescribed warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained.” Missouri v. Seibert, 

 (2004)
(plurality opinion).




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                           State v. Uptain


A.     Uptain Was Subject to a Custodial Interrogation

¶17 “By custodial interrogation,” the Miranda court clarified
that it meant “questioning initiated by law enforcement officers
after a person has been taken into custody or otherwise deprived
of his freedom of action in any significant way.” 

.
There is no doubt here that Detective was the one who initiated
contact with Uptain and asked him questions during the jailhouse
interview. And while it might seem obvious that Uptain—being
held in jail—was in custody, that conclusion cannot be hastily
drawn. Indeed, in Howes v. Fields, 

 (2012), the Supreme
Court has clarified that as “used in . . . Miranda case law, ‘custody’
is a term of art that specifies circumstances that are thought
generally to present a serious danger of coercion.” 

 at 508–09.
Instead of concluding that a suspect is in custody from the mere
fact of incarceration, Howes explained that to determine “whether
a person is in custody” for the purposes of Miranda, “the initial
step is to ascertain whether, in light of the objective circumstances
of the interrogation, a reasonable person would have felt he or she
was not at liberty to terminate the interrogation and leave.” 

 (cleaned up). Then, having made this determination, the
second question is to establish “whether the relevant environment
presents the same inherently coercive pressures as the type of
station house questioning at issue in Miranda.” 

¶18 Relying on Howes, the State insists that Counsel could have
concluded that Uptain was not in custody for the purpose of
Miranda. Howes involved an individual (Fields) who was
questioned while incarcerated. 

. Fields was escorted one
evening by a corrections officer to a conference room, where two
sheriff’s deputies questioned him for around six hours about a
crime that had occurred before his incarceration. 

 at 502–03. At
the beginning of the interview, Fields was told he was free to
return to his cell. And later in the interview, he was again told that
he could leave whenever he chose. 

. Miranda warnings
were never given to Fields. 

. Fields eventually confessed



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                           State v. Uptain


to the crime in question. Id. at 503. Over Fields’s objection, the
confession was introduced at trial, and Fields was convicted by a
jury. Id. at 504.

¶19 The state appellate court affirmed, ruling “that Fields had
not been in custody for purposes of Miranda during the interview,
so no Miranda warnings were required” and emphasizing “that
Fields was told that he was free to leave and return to his cell but
that he never asked to do so.” Id. The state supreme court denied
certiorari review. Id.

¶20 Fields filed a petition for a writ of habeas corpus in federal
district court, which granted relief, and the circuit court affirmed,
“holding that the interview in the conference room was a
‘custodial interrogation’ within the meaning of Miranda because
isolation from the general prison population combined with
questioning about conduct occurring outside the prison makes
any such interrogation custodial per se.” Id.

¶21 The Supreme Court granted certiorari. Id. at 505. It
reversed the federal appellate court: “[O]ur decisions do not
clearly establish that a prisoner is always in custody for purposes
of Miranda whenever a prisoner is isolated from the general prison
population and questioned about conduct outside the prison.” Id.
at 508. And the Court continued,

       Not only does the categorical rule applied below go
       well beyond anything that is clearly established in
       our prior decisions, it is simply wrong. The three
       elements of that rule—(1) imprisonment, (2)
       questioning in private, and (3) questioning about
       events in the outside world—are not necessarily
       enough to create a custodial situation for Miranda
       purposes.

Id. The Court concluded, “Taking into account all of the
circumstances of the questioning—including especially the


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undisputed fact that [the] respondent was told that he was free to end the
questioning and to return to his cell—we hold that [the] respondent
was not in custody within the meaning of Miranda.” Id. at 517
(emphasis added).

¶22 In this case, the State relies heavily on Howes, but its
reliance is oversold. Indeed, Howes has several distinguishing
features from the case at hand.

¶23 The result in Howes is best understood by its context, which
somewhat limits its relevance to our analysis. As a threshold
matter, Howes was a federal habeas case and was thus subject to a
highly deferential standard of review. Id. at 502; see Felkner v.
Jackson, 

 (2011). Moreover, Howes resolved an
insular issue, namely, whether the federal appellate court had
erred in holding that Supreme Court “precedents clearly establish
that a prisoner is in custody within the meaning of Miranda . . . if
the prisoner is taken aside and questioned about events that
occurred outside the prison walls.” Howes, 

. The
Supreme Court said isolated questioning about outside events
was not enough; instead, something more was needed to
constitute custodial interrogation. 

 at 508–09

¶24 And that something more is the second distinguishing
characteristic—the one the Supreme Court denominated as the
“[m]ost important” circumstance, 

 (“These circumstances
[weighing in favor of custodial interrogation], however, were
offset by others. Most important, [the] respondent was told at the
outset of the interrogation, and was reminded again thereafter,
that he could leave and go back to his cell whenever he wanted.”
(emphasis added))—between the situation in Howes and the case
at hand. The prisoner in Howes was expressly told two times that
he was free to leave the questioning. 

. This circumstance
is noticeably lacking from Uptain’s questioning. And this
difference is of no small import. Courts applying Howes have
consistently pointed to whether inmates were told that they were



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                           State v. Uptain


free to leave as being a key factor in determining whether an
interrogation was non-custodial in nature. See Taylor v.
Commonwealth, 

, 743 (Ky. 2020) (“Although the
interrogation here was relatively short, and the defendants were
released back to their cells at the end of the interrogation, when
viewing the circumstances in their totality, the atmosphere was
coercive in nature, and the defendants should have been
Mirandized prior to interrogation due to the use of force, physical
restraints, the interrogation occurring directly after a crime . . . ,
and that neither were told they were free to leave.” (emphasis
added)); People v. Krebs, 

 (Cal. 2019) (“[The]
defendant was, in fact, subject to the coercive pressure associated
with interrogation. At no point was [the] defendant told that he
could leave and go back to his cell at the county jail whenever he
wanted.” (cleaned up)); 

 (noting that in Howes the
Supreme Court “thought the most important factor was that the
prisoner had been told at the outset of the interrogation, and was
reminded again thereafter, that he could leave and go back to his
cell whenever he wanted” (cleaned up)); United States v. Mattox,
No. 3:17-CR-008, 

, at *4 (M.D. Pa. July 30, 2018)
(concluding that an interrogation was custodial within the
meaning of Miranda after observing that “the most important
factor enumerated by Howes was not present, that is, [the inmate]
was never told he could leave and go back to his cell whenever he
wanted” (cleaned up)); Jackson v. Barnes, No. CV 04-8017, 

, at *9 (C.D. Cal. Feb. 4, 2016) (noting that a factor that
“decisively [tilted] the analysis towards a finding that Miranda’s
custody requirement was met” was that the officer “did not
inform [the plaintiff] that he was free to end the interview at any
time and return to his prison cell”), report and recommendation
adopted, No. CV 04-08017, 

 (C.D. Cal. Apr. 13,
2016); Simpson v. Jackson, No. 2:06-CV-127, 

, at
*19 (S.D. Ohio Nov. 10, 2014) (“Additionally, unlike the situation
in Howes, where police repeatedly told [the inmate] he was free to
leave and return to his cell, [the inmate here] was not.”);
MacKendrick v. State, 

 (Fla. Dist. Ct. App. 2013)



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                           State v. Uptain


(determining that an interrogation was custodial, in part, because
an inmate was never told that “he was free to stop talking or leave
the room,” leading the court to agree that the inmate “did not
believe he was free to stop talking, to end the interview, or to
return to his cell anytime”). 2



2. Only one Utah case has relied on Howes for the Miranda custody
analysis of an incarcerated individual. See State v. Butt, 

, ¶¶ 10–22, 

. However, the facts involved in Butt are
distinguishable from the facts at issue here. In Butt, the inmate
was not removed from the general population to a different area
for the interview. Id. ¶ 5. Instead, he was asked a single question
while in his own cell about the ages of his children. Id. ¶¶ 5, 21.
The Butt court concluded, “Despite our misgivings that a
defendant being interviewed in his cell could feel free to leave, we
conclude that the balance tips against requiring Miranda warnings
in this case. [The defendant’s] liberty was not restrained beyond his
usual status as a jail inmate, nor was he coerced in any way.” Id.
¶ 22 (emphasis added). In contrast, Uptain was restrained beyond
his usual status because he was removed from the general
population, placed in the booking area, and never told he was free
to leave or that he could decline to answer questions.
        Other Utah cases have relied on Howes for questioning that
took place in other settings. See State v. Fullerton, 

,
15–36, 

 (interview at a police station); State v.
Goddard, 

, ¶¶ 41–52, 

 (questioning
in an alley), cert. denied, 

 (Utah 2022); State v. Fredrick,

, ¶¶ 27–39, 

 (interview at a police
station), cert. denied, 

 (Utah 2020); State v. MacDonald,

, ¶¶ 19–37, 

 (interviews at a police
station); State v. Reigelsperger, 

, ¶¶ 40–59, 

 (interview at a mental health facility), cert. denied, 

 (Utah 2017); State v. Heywood, 

, ¶¶ 47–55,

 (questioning at a suspect’s residence); State v. Mills,
                                                         (continued…)


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                          State v. Uptain


¶25 Here, we conclude that Uptain was subject to a custodial
interrogation. He was taken from his cell to be interviewed in a
different room in the booking area. He was alone in that room
with two detectives. Uptain was isolated from his peers in the
general population. And most importantly, Detective never told
Uptain that he was free (1) not to answer the questions or (2) to
end the questioning—at least until Detective read Miranda
warnings to Uptain after he had already begun to confess to the
home invasion.

B.    The Statements       Uptain    Made   to    Detective   Were
      Inadmissible

¶26 Given our determination that Uptain was subject to
custodial interrogation, it follows that he was entitled to receive
Miranda warnings prior to questioning. And absent these
warnings before custodial questioning commenced, his
statements should have been excluded. See Missouri v. Seibert, 

 (2004) (plurality opinion) (“[F]ailure to give the
prescribed warnings and obtain a waiver of rights before
custodial questioning generally requires exclusion of any
statements obtained.”). As we will explain, this conclusion applies
to statements Uptain made both before Detective’s recitation and
after the recitation.

1.    Uptain’s Pre-Miranda Statements

¶27 “[T]he admissibility in evidence of any statement given
during custodial interrogation of a suspect [depends] on whether
the police provided the suspect” with Miranda warnings.
Dickerson v. United States, 

 (2000). As we have
already explained, Uptain was subject to custodial interrogation.
And there is no dispute that Detective did not provide Miranda
warnings until after he turned the questioning to the topic of the

, ¶¶ 16–24, 

 (questioning via a long-
distance telephone call), cert. denied, 

 (Utah 2013).


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                          State v. Uptain


home invasion and after Uptain said that he regretted his
involvement in the event and was wondering when Detective was
going to bring it up.

¶28 This sequence of events was in direct violation of Miranda’s
explicit directive: “Prior to any questioning, the person must be
warned that he has a right to remain silent, that any statement he
does make may be used as evidence against him, and that he has
a right to the presence of an attorney, either retained or
appointed.” Miranda v. Arizona, 

 (1966). Detective
failed to provide Miranda warnings prior to his questioning,
giving rise to a violation of Uptain’s constitutional rights “upon
the admission of unwarned statements into evidence at trial.”
United States v. Patane, 

 (2004).

2.    Uptain’s Post-Miranda Statements

¶29 Detective eventually gave Miranda warnings after it
became apparent Uptain was confessing to the home invasion.
But it was too late. To allow Uptain’s post-Miranda statements into
evidence would constitute an end run around the warning
requirement and do violence to the privilege against self-
incrimination.

¶30 This issue was addressed in Missouri v. Seibert, 

(2004) (plurality opinion), where the Supreme Court said in a
four-justice plurality opinion that “midstream recitation of
warnings after interrogation and unwarned confession [do] not
effectively comply with Miranda’s constitutional requirement,”
making “a statement repeated after a warning in such
circumstances . . . inadmissible.” 

. In Seibert, a woman
was arrested and taken to a police station. 

 The questioning
began without Miranda warnings, and she eventually admitted to
the crime. 

 at 604–05. The officer then gave Miranda warnings,
obtained a waiver, and continued questioning, confronting her
with her pre-Miranda statements. 

. She again confessed
to the crime. 

 Before trial, she sought to exclude both her pre-


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                           State v. Uptain


Miranda and post-Miranda statements. 

 The officer who
conducted the interview testified at the suppression hearing “that
he made a ‘conscious decision’ to withhold Miranda warnings,
thus resorting to an interrogation technique he had been taught:
question first, then give the warnings, and then repeat the question
‘until I get the answer that she’s already provided once.’” 

 at
605–06. The trial court suppressed the pre-Miranda statements but
admitted the post-Miranda responses. Id. at 606.

¶31 The suspect was convicted, but the state supreme court
reversed the conviction, explaining that “where the interrogation
was nearly continuous, . . . the second statement, clearly the
product of the invalid first statement, should have been
suppressed.” State v. Seibert, 

 (Mo. 2002) (en
banc), aff’d sub nom. Missouri v. Seibert 

 (2004). The
United States Supreme Court affirmed. Missouri v. Seibert, 

; 

 at 618–22 (Kennedy, J., concurring in judgment). The
Court explained,

       [T]he reason that [the] question-first [technique] is
       catching on is as obvious as its manifest purpose,
       which is to get a confession the suspect would not
       make if he understood his rights at the outset; the
       sensible underlying assumption is that with one
       confession in hand before the warnings, the
       interrogator can count on getting its duplicate, with
       trifling additional trouble. Upon hearing warnings
       only in the aftermath of interrogation and just after
       making a confession, a suspect would hardly think
       he had a genuine right to remain silent, let alone
       persist in so believing once the police began to lead
       him over the same ground again.

 (plurality opinion). Given this concern, the Court offered
guidance on how to resolve situations involving statements that
are the fruit of the question-first technique:



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                           State v. Uptain


       The threshold issue when interrogators question
       first and warn later is thus whether it would be
       reasonable to find that in these circumstances the
       warnings could function ‘effectively’ as Miranda
       requires. Could the warnings effectively advise the
       suspect that he had a real choice about giving an
       admissible statement at that juncture? Could they
       reasonably convey that he could choose to stop
       talking even if he had talked earlier? For unless the
       warnings could place a suspect who has just been
       interrogated in a position to make such an informed
       choice, there is no practical justification for
       accepting the formal warnings as compliance with
       Miranda, or for treating the second stage of
       interrogation as distinct from the first, unwarned
       and inadmissible segment.

 at 611–12. The Court went on to warn that the question-first
technique reveals “a police strategy adapted to undermine the
Miranda warnings” and challenge “the comprehensibility and
efficacy of the Miranda warnings to the point that a reasonable
person in the suspect’s shoes would not have understood them to
convey a message that she retained a choice about continuing to
talk.” 

 at 616–17.

¶32 This is exactly what happened to Uptain. As the Seibert
court explained, “[t]he object of [the] question-first [technique] is
to render Miranda warnings ineffective by waiting for a
particularly opportune time to give them, after the suspect has
already confessed.” Id. at 611. Thus, even though Detective
eventually gave Miranda warnings, they came too late to be
effective. Uptain’s rights had already been violated to such an
extent that they could not be restored by Detective’s late-in-time
effort. As Uptain points out, “the successive interrogation . . . was
immediate in time and identical in content.” At the very least, for
Uptain’s post-Miranda statement to have been admissible,



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                          State v. Uptain


substantial curative measures would have been necessary. But no
such measures were taken to ensure Uptain understood that his
pre-Miranda statements in no way compelled him to continue
answering questions. 3 Accordingly, Uptain’s post-Miranda
statements were also inadmissible.

           II. Counsel Rendered Ineffective Assistance

¶33 To succeed on a claim of ineffective assistance of counsel,
an appellant must satisfy both prongs of the test articulated in
Strickland v. Washington, 

 (1984). “First, the defendant
must show that counsel’s performance was deficient,” such that
“counsel’s representation fell below an objective standard of
reasonableness.” 

 at 687–88. “Second, the defendant must show
that the deficient performance prejudiced the defense,” 

,
meaning “that there is a reasonable probability that, but for


3. As Justice Kennedy explained,
       Curative measures should be designed to ensure
       that a reasonable person in the suspect’s situation
       would understand the import and effect of the
       Miranda warning and of the Miranda waiver. For
       example, a substantial break in time and
       circumstances between the prewarning statement
       and the Miranda warning may suffice in most
       circumstances, as it allows the accused to
       distinguish the two contexts and appreciate that the
       interrogation has taken a new turn. Alternatively,
       an additional warning that explains the likely
       inadmissibility of the prewarning custodial
       statement may be sufficient. No curative steps were
       taken in this case, however, so the postwarning
       statements are inadmissible and the conviction
       cannot stand.
Missouri v. Seibert, 

 (2004) (Kennedy, J.,
concurring in judgment) (cleaned up).


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                           State v. Uptain


counsel’s unprofessional errors, the result of the proceeding
would have been different,” id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id.

A.     Counsel Rendered Deficient Performance

¶34 The State contends that Uptain “has not provided, nor
sought to provide, any evidence of [Counsel’s] actual decision-
making process.” Quoting Burt v. Titlow, 

 (2013), the
State argues that “it should go without saying that the absence of
evidence cannot overcome the strong presumption that counsel’s
conduct fell within the wide range of reasonable professional
assistance.” 

 (cleaned up). This apparent deficiency, the
State argues, should “be construed in favor of a finding that
counsel performed effectively.” (Quoting State v. Litherland, 

, 

.) From this, the State argues that this court
“must also presume that [Counsel] knew of additional facts not
contained in the record, which further support that reasonable
decision, and which [Counsel] also reasonably took into
consideration.”

¶35 But the State goes a step too far. This is not a case where
there was an “absence of evidence” of Counsel’s deficient
performance. See Burt, 

. The record may not have
included anything about Counsel’s internal decision-making
process not to seek exclusion of the confession, but insofar as our
analysis is concerned, it doesn’t really need to. This is because the
record is in no way silent as to Counsel’s deficiency; nor does the
record require us to make an inferential leap to fill in the gaps.
Rather, the record contains facts that paint a complete picture of
Counsel’s objectively evident deficient performance. The record
is unambiguous that (1) Uptain was removed from the general jail
population; (2) Uptain was never told he was free to leave or not
continue the interview; (3) Detective developed a rapport with
Uptain in discussing how Uptain could help him reduce the flow



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                           State v. Uptain


of drugs into the area; (4) Detective did not give Uptain Miranda
warnings prior to asking about the home invasion; (5) Uptain,
perhaps finding comfort in his rapport with Detective, confessed
to the crime without receiving the benefit of Miranda warnings; (6)
Detective stopped Uptain midstream and recited the warnings;
(7) Uptain continued to reveal the details of the home invasion;
and (8) Counsel never sought to suppress the confession that was
rendered absent Miranda warnings. This is not a silent record
characterized by an absence of evidence. Instead, it is a fulsome
record replete with facts that objectively establish Counsel’s
deficient performance.

¶36 The standard for determining deficient performance has
long been—and remains—that found in Strickland: “When a
convicted defendant complains of the ineffectiveness of counsel’s
assistance, the defendant must show that counsel’s representation
fell below an objective standard of reasonableness.” Strickland v.
Washington, 

, 687–88 (1984) (emphasis added).
Accordingly, we decline the State’s invitation to require positive
evidence of Counsel’s decision-making process here because we
are at a loss to think of (1) anything that Counsel could say about
his decision-making process or (2) additional facts that he knew
about that would justify his choice not to file a motion to suppress
in a situation involving a Miranda violation such as this one. Given
the facts in the record, we have no trouble concluding that any
reasonable attorney would have filed a motion to suppress a
confession that was obtained absent the fundamental protection
afforded by Miranda warnings. In failing to object, Counsel
rendered deficient performance, depriving Uptain of the
constitutional right against self-incrimination.

¶37 Moreover, our supreme court has said that an ineffective-
assistance claim premised on the failure to bring a meritorious
motion to suppress will likely be successful. See State v. Martinez-
Castellanos, 

, 

 (“It is clear that if his
motion to suppress would have been successful had it been



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                          State v. Uptain


properly argued before the trial court, then [the appellant] would
have succeeded on his ineffective assistance of counsel claim.”).
Here, for the reasons articulated above, see supra ¶¶ 26–32, we
conclude that a motion to suppress Uptain’s confession would
have been meritorious. Indeed, we are convinced that there is no
apparent reason that the district court would not have granted a
motion to suppress given that Uptain was subject to a custodial
interrogation but was not initially given his Miranda warnings and
the statements he made post-Miranda were also inadmissible
because the late warnings were ineffective to protect Uptain’s
constitutional rights.

B.     Uptain Was        Prejudiced    by    Counsel’s    Deficient
       Performance

¶38 That Uptain was prejudiced by Counsel’s failure to
suppress the confession is almost self-evident. But for the sake of
completeness, we point out the obvious: there was no evidence—
apart from his confession—tying Uptain to the crime. Indeed, the
State concedes that Uptain’s confession was the only evidence of
his guilt, stating as follows in its brief: “With no leads, the case
remained unsolved. [Vicky’s] description was broad enough to
describe many possible suspects, including [Uptain]. But police
had no other evidence tying anyone to the crime.”

¶39 Our appellate courts have repeatedly explained that if a
conviction heavily depends on only one piece of evidence that
should have been excluded, the inclusion of that evidence is very
likely prejudicial. See State v. Hamilton, 

 (Utah
1992) (“[I]f it were the only evidence or one of the only pieces of
evidence before the jury, we might well consider it so prejudicial
as to undermine our confidence in the verdict.”); State v. Shockley,

 (Utah 1905) (“[T]he state depended almost entirely
upon the confession made by the defendant for conviction. For
without this confession it is extremely doubtful if a conviction
could have been procured.”); State v. Jones, 

,



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                           State v. Uptain

 (“If the challenged testimony had been the only
evidence [on a point], it might have been highly prejudicial.”).
And we have previously determined that when a conviction rests
entirely on a piece of evidence that should have been excluded,
prejudice is certain. State v. Gallegos, 

 (Utah Ct.
App. 1998) (“[T]he only substantive evidence supporting those
convictions was the . . . evidence obtained from the unreasonable
search. Because [this] evidence . . . was essential to the State’s case
on those charges, admission of that evidence was obviously
prejudicial to [the] defendant . . . . Thus, defense counsel’s failure
to move for exclusion of the evidence constituted ineffective
assistance of counsel.”).

¶40 Because Uptain’s confession was the only evidence of him
having committed the home invasion, we necessarily conclude
that Counsel’s failure to file a motion to suppress it was
prejudicial to Uptain.


                          CONCLUSION

¶41 Had a motion to suppress Uptain’s confession been filed, it
would have been meritorious. Counsel was ineffective in failing
to file that motion, and Uptain was prejudiced by that failure.
Accordingly, we vacate Uptain’s convictions and remand this
matter for such proceedings as may now be appropriate.




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