Court of Appeals of Utah Finds Deficient Performance, But No Prejudice, In Defense Counsel’s Failure to Object to Sergeant’s Legal Conclusion

Similar to its federal counterpart, Utah Rule of Evidence 704(b) provides that

In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone.

The recent opinion of the Court of Appeals of Utah in State v. Marshall, 2025 WL 1481881 (Utah App. 2025), is similar to every case I’ve seen in which testimony violates Rule 704(b), and it makes me wonder whether a court would ever reverse for such a violation.

In Marshall, 

Damon Jay Marshall did not show up on time for his own trial, where he was being tried before a jury for possession of a controlled substance with the intent to distribute. The judge conferred briefly with counsel about Marshall’s absence and decided to start the trial in absentia. About fifty minutes in, Marshall appeared and was present for the rest of the trial. At trial, a police sergeant opined that the amount of heroin Marshall was carrying suggested that he possessed the drug “with the intent to distribute.” Marshall’s counsel never objected to this statement. Marshall was convicted and now appeals, arguing that the court erred when it began the trial in his absence and that his trial counsel was ineffective for not objecting to the sergeant’s opinion about the intent to distribute.

The Court of Appeals of Utah rejected Marshall’s first ground for appeal, finding that the evidence of his guilt was overwhelming.

On the ineffective assistance of counsel claim, the court began by noting that trial counsel rendered deficient performance by failing to object to the police sergeant’s testimony about Marshall possessing the drug with intent to distribute under Rule 704(b). But, in terms of the prejudice prong, the court ruled that

this was just an isolated phrase in Sergeant’s overall testimony, which—even absent the “intent to distribute” statement—clearly demonstrated that the amount of heroin Marshall possessed was not for personal use….

Sergeant also testified that the nearly seven grams of heroin that Marshall possessed, much of it packaged for individual sale, represented seventy dosage units. Sergeant testified that drug dealers commonly buy in bulk with an eye to sell the contraband in “as small a quantity as possible.” He explained, “So if you purchase a large amount and sell it on the street [as] single dosage units, you can upcharge those lower dosage units and make money off of your bulk purchase.” Sergeant testified that regular heroin users, on the other hand, would be unlikely to keep a large supply. Instead, Sergeant said, they “only would keep enough on hand to get them high in that moment and sell off as much of the rest as they possibly could.” The only reasonable conclusion, based on Sergeant’s testimony, is that a seventy-dose supply such as Marshall possessed would be for distribution. The jury members did not need Sergeant to spell it out for them by stating that Marshall had the drugs with the “intent to distribute.” The evidence spoke for itself that he was intending to sell his stock. Thus, had Sergeant not uttered the ill-advised phrase “intent to distribute,” the jury’s conclusion almost certainly would have been the same based on the overall testimony of Sergeant. Accordingly, Marshall cannot demonstrate a reasonable likelihood of a more favorable outcome even if Counsel had successfully objected to Sergeant’s isolated statement.

As I noted in the intro, this is similar to every other case under Rule 704(b) I can remember, with the court finding that any error was harmless and not grounds for reversal. It makes me wonder what it would take for a court to reverse based on a Rule 704(b) violation and what that means about whether courts think we should have the rule in the first place.

-CM