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State v. Ray, 2020 UT 12 (Mar. 9, 2020)

Mar 9, 2020

On a petition for writ of certiorari, the supreme court reversed the court of appeals’ ruling that the criminal defendant received ineffective assistance of counsel when his trial counsel did not object to the use of the undefined term “indecent liberties” in a jury instruction regarding the charge of forcible sexual abuse. Although the court agreed with the court of appeals that a jury instruction on forcible sexual abuse should define the term “indecent liberties,” it held defense counsel’s failure to object to this error is not necessarily ineffective. “Defense counsel did not have a Sixth Amendment obligation to correct every error that might have occurred at trial, regardless of whether it affected the defendant. Counsel could pick his battles.” The court noted that “Strickland demands reasonable assistance, not strategic assistance,” and even then a “reviewing court must always base its deficiency determination on the ultimate question of whether counsel’s act or omission fell below an objective standard of reasonableness.” After clarifying the standard, the court held that counsel’s decision not to object to the jury instruction could have been sound strategy.