State v. Wright , 2021 UT App 7 ( 2021 )

2021 UT App 7THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
EUGENE CHRISTOPHER WRIGHT,
Appellant.
Opinion
No. 20100655-CA
Filed January 22, 2021
Third District Court, Salt Lake Department
The Honorable Royal I. Hansen
No. 111903200
Nathalie S. Skibine, Attorneys for Appellant
Sean D. Reyes and Mark C. Field, Attorneys
for Appellee
JUDGE DAVID N. MORTENSEN authored this Opinion, in which
JUDGES JILL M. POHLMAN and DIANA HAGEN concurred.
MORTENSEN, Judge:
¶1 Eugene Christopher Wright was convicted of murder and
aggravated robbery following a ten-day jury trial. The central
issue at trial was whether Wright was the man who shot and
killed the victim (Victim) in a restaurant parking lot and then
fled the scene in Victim’s vehicle. Wright argues that he would
not have been convicted had the trial court properly excluded
the testimony of an eyewitness to the murder. He further argues
that his trial attorneys (Counsel) provided constitutionally
ineffective assistance based on the way they handled multiple
pieces of evidence before and during the trial. We affirm.
State v. Wright
BACKGROUND 1
¶2 Wright was introduced to Victim about two months
before the murder. Wright worked for a real estate firm that
evaluated commercial bridge loans and was seeking investors
for a new project. Wright mentioned this to a friend (Friend)
who lived in the same building as Wright in downtown Salt
Lake City, and Friend suggested Victim as a potential investor
who could make the type of million-dollar loan that Wright was
seeking. It was in this capacity that Friend introduced Wright
and Victim. And though Wright and Victim met in person at
least one time to hash out the terms of the loan, it appears that
most of their communication was channeled through Friend.
Eventually, Victim agreed to loan Wright two million dollars,
which was supposed to be funded two weeks after Victim was
murdered.
¶3 The day before the murder, an individual using a prepaid
cell phone called Victim twice to arrange the meeting at which
he was killed. The first call was placed at 9:03 a.m. and went to
Victim’s voicemail. The caller left a message (the Voicemail) in
which he identified himself as “Robert” and told Victim to call
him back. The second call was placed at 9:21 a.m., which Victim
answered. Victim’s assistant was nearby, and overheard Victim
respond to the caller by asking which “Robert” was calling him
and then later agreeing to meet the caller at a restaurant in
Sandy (the Restaurant) the next morning at 7:00 a.m. When he
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts
accordingly.” State v. Liti, 2015 UT App 186, ¶ 3 n.2, 355 P.3d
1078 (cleaned up). “We present conflicting evidence only when
necessary to understand issues raised on appeal.” State v. Vallejo,
2019 UT 38, ¶ 2 n.1, 449 P.3d 39 (cleaned up).
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hung up the phone, Victim told his assistant that he was excited
about the meeting.
¶4 The following morning, Victim received a final call from
the prepaid cell phone at approximately 6:31 a.m. and the call
was placed from the general location of the Restaurant. Victim
was subsequently seen arguing with a man in the Restaurant’s
parking lot at approximately 7:00 a.m. A witness (Eyewitness)
was sitting in his parked car and saw Victim and the man
standing by Victim’s white Lincoln Navigator while arguing for
about three to four minutes. The two then walked directly in
front of Eyewitness’s vehicle and argued for about ten to fifteen
more seconds, and then the man pulled a handgun out of his
pocket with his right hand and shot Victim twice. Eyewitness
ducked and hid in his vehicle, and the shooter fired the weapon
three more times. At this point, several witnesses in the parking
lot saw the shooter flee the scene in Victim’s vehicle. Eyewitness
called the police and relayed the license plate number of the
fleeing vehicle.
¶5 Police arrived at the Restaurant just a few minutes later.
They were able to take several witness statements and collect
physical evidence from the scene. The crucial witness statement
was provided by Eyewitness, who relayed a sequential account
of what he had observed and provided a detailed description of
the shooter. Eyewitness described the shooter’s height, weight,
build, clothing, and facial characteristics, and noted that the
shooter was wearing a wig of long, black hair pulled back into a
ponytail.
¶6 Police also recovered two important types of evidence
from the scene, the first being five spent bullet casings that were
ejected from the shooter’s gun. From this evidence, police were
quickly able to determine that the shooter used a 9mm handgun.
The second key piece of evidence was Victim’s cell phone. After
looking at Victim’s call history and listening to the Voicemail,
20100655-CA 3 2021 UT App 7State v. Wright
police suspected that whoever called Victim on the prepaid cell
phone was the shooter.
¶7 Police were able to locate Victim’s vehicle several hours
later, abandoned on a cemetery’s service road just north of the
Restaurant. Police impounded the vehicle so that they could test
for any physical evidence left by the shooter that might help
determine his identity. They eventually found two textured
fingerprints on the outside of the driver’s door, and another on
the inside of the driver’s door. They also took numerous DNA
samples from various parts of the driver’s area, including
multiple samples from the steering wheel, gear shaft, door
surface/handle, and seat controls. They also collected single
samples from the headrest and turn signal assembly.
¶8 Police identified Friend as a possible suspect early on in
their investigation. They were aware that Friend was in regular
contact with Victim and that Friend owed Victim approximately
$1.6 million. This was the amount of money Victim loaned
Friend so that he could create a movie about his life, which
would focus on Friend’s time as an inmate in federal prison on
wire fraud convictions. Victim had also paid Friend tens of
thousands of dollars based on Friend’s apparently false promise
that he could secure a sentence reduction for Victim’s wife (who
was in federal prison for wire fraud) by digging up “dirt” on her
ex-husband/former business partner, and then leveraging
Friend’s alleged connections with a United States senator.
Moreover, Victim had spoken with his wife about the 7:00 a.m.
meeting the night before he was killed, and she believed that he
was meeting with Friend.
¶9 But Friend was ruled out as a possible suspect early in the
case based on follow-up investigations. The day after the
murder, police showed Eyewitness two photographic lineups
that included Friend’s photograph along with photographs of
other individuals, and Eyewitness did not identify the shooter
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from either lineup. The lead investigator (Lead Investigator) also
met with Friend in person and concluded that he did not match
Eyewitness’s description of the shooter, nor did his voice match
the voice on the Voicemail. And police had also compared
Friend’s “historical cell phone data”—the cell phone towers that
his phone was connecting to the day before the murder—against
the prepaid cell phone’s data, and determined that Friend was in
a different location than the prepaid cell phone when it was used
to set up the 7:00 a.m. meeting. From this, police concluded that
Friend could not have been the caller.
¶10 Police eventually determined that Wright was the
individual who purchased the prepaid cell phone, which they
viewed as a major break in the case. It was initially difficult for
police to determine who purchased the prepaid cell phone
because, despite quickly determining that it was purchased from
an AT&T store, there was no real information in the AT&T
records as to who bought it—the name of the purchaser was
listed as “someone someone” and also listed a fake email
address. But police were able to determine that Wright had
purchased the prepaid cell phone by looking at surveillance
footage of the store on the day of its purchase. Wright was
completely unknown to police investigators prior to learning
that he had purchased the prepaid cell phone, but after, they
focused their investigation on him.
¶11 Lead Investigator followed this development by showing
Eyewitness another photographic lineup, this time with Wright’s
photograph included among five others. Eyewitness
immediately identified Wright as the shooter with eighty to
ninety percent confidence, explaining that he could not be one
hundred percent confident because the photograph did not
allow him to see Wright three-dimensionally. With that said,
Eyewitness described in detail how Wright had the same facial
features as the shooter. Eyewitness’s description of the matching
facial features largely focused on details that he provided in his
20100655-CA 5 2021 UT App 7State v. Wright
initial description of the shooter; however, he did emphasize
that Wright and the shooter both had blue eyes, which was the
first time he had ever mentioned the shooter’s eye color to the
police.
¶12 Lead Investigator then interviewed Wright at the latter’s
office to ask if he had any information about Victim that may
lead to the identity of the shooter. Wright explained that he
knew Victim only through the negotiations of the loan
transaction and immediately—without any mention of the
prepaid cell phone by Lead Investigator—discussed how he had
purchased a prepaid cell phone for Victim. Wright claimed that
Victim had asked him to purchase the prepaid cell phone and
then give it to him, which Wright did just days after he bought
it. Wright explained that he thought this was a strange request,
but he agreed to purchase the phone as a small way to endear
himself to Victim in an effort to procure the $2 million loan. Lead
Investigator thought it suspicious that Wright launched into an
unprompted discussion of the prepaid cell phone. He also
determined that Wright matched Eyewitness’s initial description
of the shooter—including his height, weight, and build—and
that his voice matched that recorded on the Voicemail.
¶13 Police later executed a search warrant of Wright’s
condominium, specifically looking for the 9mm handgun used to
shoot Victim. They did not find the gun they were looking for,
but they did find an empty gun case in Wright’s nightstand for a
Springfield XD9, a 9mm handgun. Wright never reported his
Springfield gun as missing, and he had also bought a new
handgun just three days after Victim was murdered. Police
seized Wright’s gun case and booked it into an evidence locker
as “empty Springfield Armory gun” case.
¶14 Wright was arrested shortly after the search warrant was
executed. Weeks later, someone at the district attorney’s office
told Lead Investigator to look inside the gun case because
20100655-CA 6 2021 UT App 7State v. Wright
weapon manufacturers commonly test-fire the weapons before
boxing them for sale and leave the spent casing in the gun box.
Lead Investigator retrieved the gun box out of the evidence
locker and indeed found an envelope left by the manufacturer
with a spent casing inside. A ballistics examiner compared this
test-fired casing with the casings recovered from the Restaurant
and concluded that they were fired from the same weapon.
¶15 Police were also able to take samples of Wright’s
fingerprints and DNA to compare them against what they lifted
from Victim’s vehicle. The fingerprints left in and on the vehicle
were not Wright’s. And after several DNA comparisons, Wright
was excluded as being a contributor to the DNA found on the
steering wheel. As to the other areas in the vehicle, early tests
were “inconclusive” on whether Wright was a possible
contributor, meaning that there was not enough information to
draw any conclusions as to whether Wright was a contributor or
not. However, a later re-test of a comparison between Wright’s
DNA and DNA lifted from the door led one examiner to
conclude that Wright was a “possible contributor.”
Motion to Suppress
¶16 A few weeks before trial, Wright filed a motion to
suppress, seeking to exclude Eyewitness from testifying at trial.
The motion seems to have been spurred by new information that
was revealed to both the State and Counsel about Eyewitness’s
independent investigation as to whether Wright was the shooter.
¶17 As described above, Eyewitness’s first identification of
Wright as the shooter occurred when lead investigator showed
him the photographic lineup, in which Eyewitness identified
Wright with eighty to ninety percent certainty. But after Wright
was arrested and charged, Eyewitness again identified Wright as
the shooter, this time with one hundred percent certainty. This
second identification occurred at Wright’s preliminary hearing,
20100655-CA 7 2021 UT App 7State v. Wright
at which Eyewitness was able to see Wright in person. But
between these two identifications, Eyewitness had apparently
downloaded a photo of Wright that had been circulated by the
media after his arrest. Eyewitness then digitally superimposed
various wigs on the photo until he came up with an image that
he believed matched the shooter.
¶18 Relying on State v. Ramirez, 817 P.2d 774 (Utah 1991),
Wright argued in his motion to suppress that Eyewitness’s
identification was too unreliable to be presented at trial. The
focus of Wright’s argument was that Eyewitness’s photo-
recreation experiment demonstrated that his identification of
Wright was the product of suggestion. The district court denied
Wright’s motion, noting that there was no indication that
Eyewitness’s first identification of Wright was the product of
suggestion, and concluding that his identification of Wright was
sufficiently reliable under Ramirez.
The Trial
¶19 At trial, the primary issue for the jury to resolve was
whether Wright was the shooter. Key to the State’s case was
Eyewitness’s testimony about what he saw on the day Victim
was murdered and identifying Wright as the shooter. But the
State also introduced a variety of circumstantial evidence of
Wright’s guilt.
¶20 To show that Wright placed the calls to Victim on the
prepaid cell phone, the State had Lead Investigator and a lay
witness familiar with Wright’s voice testify that it was Wright’s
voice on the Voicemail. Additionally, the officer who had
initially compared Friend’s historical cell phone data against that
of the prepaid cell phone testified that he had also compared
Wright’s cell phone data, and Wright’s data was consistent with
Wright’s cell phone being in the same general location as the
prepaid cell phone during the 9:03 and 9:21 a.m. calls. And to
20100655-CA 8 2021 UT App 7State v. Wright
show that Wright’s missing 9mm gun was the murder weapon,
the ballistics expert who compared the spent casings with the
manufacturer test-fired casing testified that all the spent casings
were fired from the same weapon. Finally, to show that Wright
fled the scene in Victim’s vehicle, the State had the examiners
who had performed the comparison of Wright’s DNA against
the DNA found in the car testify as experts. The State attempted
to frame the “inconclusive” results in a favorable manner but
chiefly relied on the conclusion from one examiner that Wright
was a “possible contributor” to DNA found on the driver’s door.
¶21 Wright’s defense was that Friend was the shooter. Wright
pointed out that Friend had both motive and opportunity to kill
Victim, and emphasized that even Victim’s wife believed Victim
met with Friend the morning he was killed. Furthermore, Wright
claimed that his Springfield 9mm handgun went missing months
before the murder and that Friend easily could have taken it
because he had a key to Wright’s condominium. He also noted
that Friend had finished a massive remodel of his condominium
around the time Victim was murdered, yet quickly moved out of
the state early in the police’s investigation. Wright also argued
that most of the circumstantial evidence connecting him to the
murder also connected Friend. So the argument went, had police
not inexplicably terminated their investigation of the “con man”
Friend just days into the case, they would have found that
the fingerprints and DNA on and in Victim’s vehicle belonged
to Friend.
¶22 As to his own innocence, Wright first emphasized that he
had no motive to kill Victim nor any opportunity to do so.
Indeed, Victim’s death prevented the loan from being funded,
and Wright’s wife testified that she was at home with Wright on
the morning of the murder. And to rebut the Voicemail
evidence, Wright invited the jurors to compare several
recordings of his voice against that on the Voicemail so they
could determine for themselves that the voice was not his.
20100655-CA 9 2021 UT App 7State v. Wright
Wright also had an unbiased lay witness familiar with his voice
testify that she could not identify his voice on the Voicemail. To
rebut the ballistics evidence, multiple lay witnesses testified in
support of the theory that Wright could not have used the
missing 9mm gun to shoot Victim because that gun was lost
months before the murder. And to rebut the DNA evidence
possibly placing him in Victim’s vehicle, Wright emphasized
that he was excluded from having left the fingerprints on and in
the vehicle and from being a contributor to the DNA left on the
steering wheel. He further argued that the “possible” match on
the door handle was based on an unreliable DNA test.
¶23 The trial lasted for ten days, during which the jury heard
the testimony of over forty-five witnesses. After hearing all the
evidence, the jury convicted Wright of murder and aggravated
robbery. The district court sentenced him to fifteen years to life
in prison on the murder conviction and five years to life on the
aggravated robbery conviction, with the sentences running
consecutively.
¶24 Wright appealed and moved to remand under rule 23B of
the Utah Rules of Appellate Procedure, alleging his Counsel
provided him with ineffective assistance based on the way they
investigated and presented the Voicemail and DNA evidence at
trial. We granted Wright’s motion, and the rule 23B court held a
four-day evidentiary hearing. The rule 23B court subsequently
entered its findings of fact and ultimate conclusions that Counsel
did not provide deficient performance in either respect.
ISSUES AND STANDARDS OF REVIEW
¶25 Wright first contends the district court erred in denying
his motion to suppress Eyewitness’s identification testimony.
“When reviewing a district court’s denial of a motion to
suppress, the appellate court disturbs the district court’s findings
of fact only when they are clearly erroneous.” State v. Clark, 2015
20100655-CA 10 2021 UT App 7State v. Wright
UT App 289, ¶ 12, 363 P.3d 544 (cleaned up). In the past, we
have reviewed a district court’s decision regarding the reliability
of an eyewitness identification for correctness. See State v.
Glasscock, 2014 UT App 221, ¶¶ 11, 25–26, 336 P.3d 46(articulating the standard of review of a trial court’s analysis of
reliability under State v. Ramirez, 817 P.2d 774 (Utah 1991)).
However, our supreme court recently clarified that for cases to
which the new rule 617 of the Utah Rules of Evidence does not
apply, a district court’s analysis to determine the admissibility of
eyewitness identification is rooted in rule 403 of the Utah Rules
of Evidence. See State v. Lujan, 2020 UT 5, ¶¶ 31, 34–36, 459 P.3d
992. And “[a] trial court’s decision to admit evidence under rule
403 of the Utah Rules of Evidence is reviewed for an abuse of
discretion.” State v. Kell, 2002 UT 106, ¶ 29, 61 P.3d 1019; see also,
e.g., State v. Beverly, 2018 UT 60, ¶ 23, 435 P.3d 160; State v.
Downs, 2008 UT App 247, ¶ 6, 190 P.3d 17.
¶26 Wright next contends that Counsel provided ineffective
assistance based on numerous alleged failures to adequately
respond to the State’s evidence and closing arguments. For the
ineffective assistance claims that were subject to the rule 23B
remand, we “defer to the trial court’s findings of fact, but review
its legal conclusions for correctness.” State v. Wright, 2013 UT
App 142, ¶ 10, 304 P.3d 887 (cleaned up). For Wright’s other
ineffective assistance claims “raised for the first time on appeal”
we “decide whether [he] was deprived of the effective assistance
of counsel as a matter of law.” State v. Craft, 2017 UT App 87,
¶ 15, 397 P.3d 889 (cleaned up).
ANALYSIS
I. Motion to Suppress
¶27 Wright contends the district court erred in denying his
motion to suppress Eyewitness’s identification testimony. The
district court denied his motion based on its application of the
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factors set forth in State v. Ramirez, 817 P.2d 774 (Utah 1991).
Wright’s initial briefing on appeal argues that, under the Ramirez
factors, Eyewitness’s identification of Wright was too unreliable
to be admitted at trial.
¶28 But after the initial briefs were filed with this court,
Wright’s appeal was recalled and stayed by the Utah Supreme
Court pending issuance of its opinion in State v. Lujan, 2020 UT
5, 459 P.3d 992, which eventually “clarified and reformulated the
framework for the analysis of the admissibility of eyewitness
identification testimony in Utah.” Id. ¶ 52. After Lujan was
issued, the supreme court rescinded its order recalling Wright’s
appeal, and he subsequently filed a supplemental brief with this
court, asking that “[e]ven if this Court concludes that the district
court’s ruling was correct under the Ramirez standard, it should
‘remand to the district court to allow it to apply [the] new
standards to the facts of this case in the first instance.’” (Quoting
Lujan, 2020 UT 5, ¶ 8.)
¶29 Based on the foregoing circumstances, a brief explanation
of the changing state of the law from Ramirez to Lujan is
warranted. We provide this explanation in subsection I.A. and
then address the parties’ arguments in subsections I.B. and I.C.
A. From Ramirez to Lujan
¶30 In State v. Ramirez, 817 P.2d 774 (Utah 1991), our supreme
court “br[oke] new ground under the Utah Constitution” by
providing “the analytical model to be used by a trial court in
determining the admissibility of arguably suggestive eyewitness
identifications under article I, section 7, the Utah due process
provision.” Id. at 778, 779. In doing so, the court explained that
the analytical model under Utah’s due process provision
diverged from its federal counterpart because the latter
incorporated considerations that were “based on assumptions
that are flatly contradicted by well-respected and essentially
20100655-CA 12 2021 UT App 7State v. Wright
unchallenged empirical studies.” Id. at 780 (cleaned up). The
court went on to explain that Utah’s model was a “more
empirically based approach” that seeks to determine “whether,
under the totality of the circumstances, the identification was
reliable.” Id. at 780–81. And to answer this question, the court set
forth five general considerations:
(1) The opportunity of the witness to view the actor
during the event; (2) the witness’s degree of
attention to the actor at the time of the event; (3)
the witness’s capacity to observe the event,
including his or her physical and mental acuity; (4)
whether the witness’s identification was made
spontaneously and remained consistent thereafter,
or whether it was the product of suggestion; and
(5) the nature of the event being observed and the
likelihood that the witness would perceive,
remember and relate it correctly. This last area
includes such factors as whether the event was an
ordinary one in the mind of the observer during
the time it was observed, and whether the race of
the actor was the same as the observer’s.
Id. at 781 (cleaned up).
¶31 The Ramirez court went on to apply these considerations
to the facts of that case, which concerned an armed robbery
outside of a restaurant at approximately 1:00 a.m. See id. at 776.
Three victims left the restaurant and were accosted by a mostly
masked robber wielding a metal pipe. See id. A scuffle ensued,
and the assailant struck one of the individuals—the eventual
eyewitness—with the pipe and then instructed another masked
robber that if the eyewitness moved again, he should shoot him.
See id. This was the first time the eyewitness had noticed the
second robber, who was crouched near the restaurant with a gun
in his hand. See id. Both assailants fled and the victims called the
20100655-CA 13 2021 UT App 7State v. Wright
police, offering conflicting descriptions of the robbers. See id.Ramirez was arrested shortly thereafter when he was walking
down a nearby street. See id. The police conducted a showup of
Ramirez early that same morning by chaining him to a fence and
focusing the headlights of their vehicles on him while the three
victims observed this from the back of a squad car. See id. at 777.
Two of the victims could not identify Ramirez as either robber,
but the eyewitness identified him as the gunman. See id.
¶32 The Ramirez court noted that it was “an extremely close
case” given that “none of the witnesses . . . ever saw the full face
of the gunman,” “[t]he differences in racial characteristics
between [the eyewitness] and Ramirez, and “[t]he blatant
suggestiveness of the showup.” Id. at 784. But because the trial
court “was persuaded that [the eyewitness] observed the
gunman closely enough, including his eyes and clothing, to
identify him less than an hour after the robbery,” the court held
that “admitting the identification [was not a] violation of
Ramirez’s right to due process of law under article I, section 7 of
the Utah Constitution.” Id.
¶33 For decades, the Ramirez due process framework was
interpreted by lower courts as the threshold test for evaluating
the admissibility of eyewitness identification testimony. See, e.g.,
State v. Reyos, 2018 UT App 134, ¶ 17, 427 P.3d 1203; State v.
Gallegos, 2016 UT App 172, ¶ 40, 380 P.3d 44; State v. Guzman,
2004 UT App 211, ¶ 18, 95 P.3d 302. And a common feature
emerged in conducting the Ramirez analysis—comparing the
identification at issue with the identification countenanced in
Ramirez—which often resulted in admission of the identification.
See, e.g., State v. Glasscock, 2014 UT App 221, ¶ 27, 336 P.3d 46(“The circumstances surrounding [v]ictim’s identification of [the
defendant] are far less troubling than those in [Ramirez].”). In
State v. Lujan, 2015 UT App 199, 357 P.3d 20, we expressed
concern over this “disconnect between the legal analysis in
Ramirez and its outcome” and called on our supreme court to
20100655-CA 14 2021 UT App 7State v. Wright
revisit the Ramirez framework in light of scientific and legal
research so that it would “accurately reflect the changed views
about handling” eyewitness identification testimony. See id. ¶ 10
n.1. In response, our supreme court granted certiorari. 2
¶34 In State v. Lujan, 2020 UT 5, 459 P.3d 992, our supreme
court clarified that the admissibility of eyewitness identification
testimony “is to be measured in the first instance by our rules of
evidence” rather than by any due process standard. Id. ¶ 57. The
supreme court explained that the Ramirez factors were “rooted in
evolving social science and legal scholarship” and that these
types of considerations are not an appropriate “basis for
establishing fixed principles of constitutional law.” Id. ¶ 28.
Instead, they are more appropriately addressed by our rules of
evidence because these rules are “subject to nimble
reformulation and revision in response to changes in prevailing
scientific and legal scholarship.” Id. ¶ 29.
¶35 The supreme court went on to note that “our rulemaking
process ha[d] in fact fulfilled this task” because rule 617 of the
Utah Rules of Evidence was promulgated while Lujan was under
advisement. Id. ¶ 30. Rule 617 “establishes factors and standards
for a trial court to employ in judging the admissibility of
eyewitness testimony” based on “recent scholarship in social
science journals and law journals.” Id. And while rule 617 “was
not in place at the time of the trial” and thus “could not have
been applied in the disposition” of the case, the supreme court
held that the district court and court of appeals “could and
should have” applied rule 403 of the Utah Rules of Evidence in
assessing “the admissibility of the eyewitness identification
testimony.” Id. ¶ 31; see also id. ¶¶ 35–36.
2. Any further references we make to “Lujan,” if not otherwise
specified, refers to our supreme court’s opinion in State v. Lujan,
2020 UT 5, 459 P.3d 992.
20100655-CA 15 2021 UT App 7State v. Wright
¶36 Rule 403 provides that a “court may exclude relevant
evidence if its probative value is substantially outweighed by a
danger of . . . unfair prejudice.” Utah R. Evid. 403. The supreme
court explained that “important research has identified both
‘estimator variables’ and ‘system variables’ that may tend to
undermine the reliability of a given eyewitness account,” and
these variables “may be considered in assessing both the
probative value of a given piece of eyewitness identification
testimony and the possibility of it producing unfair prejudice.”
Lujan, 2020 UT 5, ¶ 36 (cleaned up). And the supreme court
provided an exemplary list of these variables:
Estimator variables are factors connected to the
event, witness, or perpetrator—items over which
the justice system has no control. These are factors
that may affect the reliability of an eyewitness
account. They include (among others) the viewing
conditions at the time of the event (distance,
lighting, etc.), the amount of stress (or duress) the
witness was under, whether there was a weapon
that the witness focused on, witness characteristics
(age, impairment, etc.), perpetrator characteristics
(like age and race, given that witnesses are better at
identifying persons of their own age and race), and
factors affecting memory decay.
System variables consist of factors controlled by
the court or law enforcement. Examples of system
variables that may affect the reliability of an
eyewitness account are the use of double-blind
identification procedures, the quality of pre-
identification instructions, and the use of proper
lineup construction.
Id. ¶¶ 37–38 (cleaned up).
20100655-CA 16 2021 UT App 7State v. Wright
¶37 Acknowledging that it had “clarified and reformulated
the framework for the analysis of the admissibility of eyewitness
identification testimony,” id. ¶ 52, the supreme court stated it
“might, in an ordinary case, be inclined to remand to the district
court to allow it to apply our new standards to the facts of this
case in the first instance,” id. ¶ 8. 3 But it saw no need to remand
because “any arguable error in admitting the eyewitness
identification evidence . . . was harmless in light of the other
evidence in the record establishing [the defendant’s] guilt.” Id.
3. Lujan never specifically articulates which new standards the
district court would be obliged to apply had it remanded the
case. But we think the opinion otherwise makes clear that the
district court would have been required to apply rule 403 only,
given that rule 617 was not in effect at the time of trial. See State
v. Clopten, 2009 UT 84, ¶ 37, 223 P.3d 1103 (recognizing that the
district court’s decision to exclude expert testimony must be
reviewed in light of the rules of evidence in effect at the time of
trial). We acknowledge that Lujan sometimes speaks, in plural
terms, of the rules that the district court “could and should have
. . . applied.” See Lujan, 2020 UT 5, ¶ 31. But Lujan never
identifies any specific rule of evidence that “could and should”
have been applied other than rule 403. See id. ¶¶ 31, 34–36.
Indeed, aside from rule 617, rule 403 is the only rule mentioned
after the court’s specific directive that it would, “[i]n the
paragraphs below[,] . . . highlight the standards in our rules of
evidence (both at the time of trial and under newly adopted rule
617) that should have formed the basis for the threshold inquiry
into the admissibility of the eyewitness testimony in this case.”
See id. ¶¶ 33–45. And aside from rule 403, we are unable to
divine any rules of evidence in existence at the time of trial that
otherwise informed the determination of whether eyewitness
testimony is admissible. Perhaps more importantly, neither
party on appeal has argued that any rule besides rule 403
is in play.
20100655-CA 17 2021 UT App 7State v. Wright
¶38 With the foregoing history of the standard for assessing
the admissibility of eyewitness identification testimony from
Ramirez to Lujan in mind, we move on to address the parties’
arguments. We first address how Lujan impacts our review of
the district court’s order. We next evaluate whether the district
court abused its discretion in concluding that Eyewitness’s
testimony was sufficiently reliable and, consequently,
admissible. 4
B. Impact of Lujan on this Case
¶39 Wright maintains that we should still review the district
court’s determination that Eyewitness’s testimony was
admissible under Ramirez and reverse if we find that a proper
application of Ramirez should have led to exclusion. He argues
that only if we find that the district court properly applied
Ramirez should we then “remand to the district court to” conduct
a rule 403 analysis. (Quoting Lujan, 2020 UT 5, ¶ 8.) On the other
hand, the State argues that neither course of action suggested by
Wright is necessary because any error in admitting Eyewitness’s
testimony was “harmless beyond a reasonable doubt in light of”
4. In its initial brief filed with this court, the State argued that we
should clarify the admissibility of eyewitness identification
testimony under Utah’s due process standard by interpreting it
in line with the federal due process standard, which requires a
threshold showing of police suggestiveness. The State
apparently argued the same to the supreme court in Lujan, but
the court declined to take up the issue because police
suggestiveness was conceded in that case. In its supplemental
brief, the State appears to have withdrawn its request that we
reformulate the law.
20100655-CA 18 2021 UT App 7State v. Wright
the other evidence introduced at trial. 5 (Quoting Lujan, 2020 UT
5, ¶ 32.) But the State agrees that if Lujan mandates a remand in
this case, it would only be for the district court to conduct a rule
403 inquiry.
¶40 We reject Wright’s invitation to review whether the
district court’s admissibility determination ran afoul of Ramirez.
We acknowledge that the Ramirez framework was the analytical
model explicitly argued by the parties in the motion to suppress
and consequently applied by the district court in its
determination that Eyewitness’s testimony was admissible. But
Lujan instructs that, even when the motion to suppress was
argued and ruled on in 2010, “the threshold standard of
admissibility of eyewitness testimony” was provided by our
rules of evidence—specifically rule 403, the only applicable rule
of evidence identified by the Lujan court in existence at that time.
See Lujan, 2020 UT 5, ¶¶ 34–36, 46. And while the Ramirez factors
did provide “guidance” in “assessing whether evidence
produced as a result of suggestive police activity should be
excluded on the ground that it leads to a substantial likelihood
of misidentification,” they were not a “freestanding standard of
evidentiary admissibility.” See id. ¶¶ 23, 49 (emphasis added). 6
5. We simply note that we disagree with the State’s assessment
that Eyewitness’s testimony was harmless.
6. There was no allegation of suggestive police procedures raised
before the district court. Wright argues on appeal that the
photographic lineup used to identify him was the product of
suggestive police procedures—which we will not consider. See
State v. Gonzalez, 2015 UT 10, ¶ 24, 345 P.3d 1168 (discussing that
grounds not raised in a motion are generally dismissed by
appellate courts for lack of preservation). We reject Wright’s
implicit assertion that the district court was required to sua
sponte address the issues he waited to raise until now—such as
(continued…)
20100655-CA 19 2021 UT App 7State v. Wright
The dispositive question before the district court was whether
the eyewitness identification was admissible—or in the parlance
of rule 403—whether the probative value of Eyewitness’s
testimony was “substantially outweighed by a danger” of
“unfair prejudice.” Utah R. Evid. 403; see also Lujan, 2020 UT 5,
¶ 51 (“It seems likely that whenever there is a substantial
likelihood of misidentification under the due process framework
there will also be a basis for exclusion under our rules of
evidence.” (cleaned up)).
¶41 Consequently, our review is limited to determining
whether the district court abused its discretion under rule 403 in
admitting Eyewitness’s testimony. 7 And the fact that the district
(…continued)
whether the lineup complied with National Institute of Justice
Guidelines—because it “t[ook] up the question” of suggestion by
applying the Ramirez factors. See Patterson v. Patterson, 2011 UT
68, ¶ 17, 266 P.3d 828 (“[T]he Utah Court of Appeals ha[s] on
countless occasions exercised [its] discretion to refuse to consider
new issues, arguments, claims, or matters on appeal.”); Federated
Cap. Corp. v. Deutsch, 2018 UT App 118, ¶ 19, 428 P.3d 51 (“It
generally would be unfair to reverse a district court for a reason
presented first on appeal.” (cleaned up)).
7. The original briefing in this case filed prior to Lujan focused on
whether the district court erred by admitting Eyewitness’s
testimony under Ramirez. A review under Ramirez without the
clarification of Lujan would also lead to affirmance. As the
district court’s findings demonstrate, and we agree, “[t]he
circumstances surrounding [Eyewitness’s] identification of
[Wright] are far less troubling than those in [Ramirez].” See State
v. Glasscock, 2014 UT App 221, ¶ 27, 336 P.3d 46. We also note
that, aside from initially framing the argument under the
Ramirez framework, Wright never invokes an independent due
(continued…)
20100655-CA 20 2021 UT App 7State v. Wright
court evaluated the admissibility of Eyewitness’s testimony
through explicit reference to the Ramirez factors does not, in and
of itself, necessitate either reversal or remand. For one thing,
“scrupulous examination under rule 403 . . . can be inferred
when the trial court has heard arguments on the relevant issues
and has made sufficient inquiry, even if that inquiry was not
expressly identified by the court.” See State v. Lomu, 2014 UT
App 41, ¶ 34, 321 P.3d 243 (cleaned up) (referencing the now
defunct Shickles and Verde factors). And more fundamentally,
“appellate review of evidentiary decisions” should only “assess
whether the district judge made an error in admitting or excluding
the evidence in question” and should thus affirm so long as the
trial court made the “right decision,” even if it was for “a
mistaken reason.” See State v. Thornton, 2017 UT 9, ¶¶ 51, 53, 391
P.3d 1016.
¶42 With that said, it is important to note that there are
appreciable similarities between a rule 403 analysis and the
Ramirez framework. Applying rule 403 to an eyewitness
identification invites a district court to “tak[e] account of both . . .
‘estimator variables’ and ‘system variables’” to “assess whether
such variables have undermined the reliability of a given
eyewitness account.” See Lujan, 2020 UT 5, ¶¶ 34–38, 41, 44. This
is because the reliability of an eyewitness account determines
both its probative value and the possibility that its admission
into evidence will result in unfair prejudice. A reliable
identification has a high probative value because there is a
likelihood that the identification is accurate. But an unreliable
identification presents a much weaker, or in some cases
(…continued)
process argument. See Lujan, 2020 UT 5, ¶ 51 (explaining that
conducting the required inquiry under the rules of evidence
should obviate the need to conduct a separate constitutional
inquiry “in the run of cases”).
20100655-CA 21 2021 UT App 7State v. Wright
nonexistent, likelihood and may nevertheless be perceived by
the jury as nearly irrefutable evidence of the defendant’s
involvement in the crime:
[Eyewitness testimony] is sometimes viewed as the
gold standard. It is tempting to say that there is
almost nothing more convincing than a live human
being who takes the stand, points a finger at the
defendant, and says “That’s the one!” But some
eyewitness accounts are fool’s gold. An eyewitness
who is affected by significant estimator or system
variables may appear to present a highly probative
account of the crime; but false appearance of
probity may ultimately translate into unfair
prejudice.
Id. ¶ 41 (cleaned up). Under Lujan, the district court should have
evaluated various factors, including whether the viewing
conditions at the time of the observation allowed for a reliable
identification, before weighing the probative value against the
danger of unfair prejudice under rule 403. The analysis under
the Ramirez framework is quite similar, as it is itself a lengthy
evaluation of estimator and system variables that is explicitly
geared toward “determining the reliability of the identification.”
Ramirez, 817 P.2d at 782; see also id. at 779 (noting that the need
for courts to serve as the gatekeeper to the admissibility of
eyewitness testimony is “particularly serious . . . because of the
probability that such evidence[,] even [if] thoroughly
discredited[,] has a powerful effect on a jury”). Indeed, Lujan
directly acknowledges the overlap between the Ramirez and rule
403 analyses, noting that Ramirez’s estimator and system
variables encompass many of the factors that could be
considered in the rule 403 framework. See Lujan, 2020 UT 5, ¶ 51.
¶43 With the foregoing similarities in mind, on the record
before us—particularly the district court’s twenty-page order
20100655-CA 22 2021 UT App 7State v. Wright
addressing the reliability of Eyewitness’s testimony—we can
determine that the district court evaluated the relevant reliability
factors and thus substantively made a rule 403 inquiry, even if it
never explicitly invoked the rule. See Lomu, 2014 UT App 41, ¶ 34.
As will be more fully discussed below, the district court
evaluated each and every estimator and system variable
specifically delineated in Lujan as “crucial” to the rule 403
inquiry. See Lujan, 2020 UT 5, ¶¶ 36–37, 41. We thus reject
Wright’s assertion that we must remand for the district court to
apply rule 403, as doing so would only elevate form over
substance. And we accordingly proceed by evaluating
whether the district court abused its discretion in admitting
Eyewitness’s testimony.
C. Reviewing the District Court’s Decision
¶44 Wright argues that the district court incorrectly found
that various factual circumstances supported a determination
that Eyewitness’s identification was sufficiently reliable. Wright
asserts that Eyewitness had little opportunity to see the shooter,
that he was focused on the shooter’s wig, and that he provided
inconsistent details about the shooter as time progressed—
particularly with regard to the shooter’s eye color and facial hair.
But as he did in arguing the motion to suppress to the district
court, Wright particularly emphasizes that Eyewitness’s
exposure to Wright’s booking photo and subsequent photo-
recreation cast doubt on the reliability of his identification.
¶45 First, the district court evaluated whether Eyewitness had
a sufficient opportunity to view the shooter. It found that
Eyewitness observed the shooter and Victim for about three to
four minutes before the shooting and then observed them as
close as six to seven feet in front of his vehicle for another ten to
fifteen seconds, during which he saw both profiles of the
20100655-CA 23 2021 UT App 7State v. Wright
shooter’s face and that it was light outside, 8 with no distracting
noises, activity, or other circumstances affecting Eyewitness’s
opportunity to observe the shooter. The district court thus
evaluated the “viewing conditions at the time of the event
(distance, lighting, etc.),” and resolved that these estimator
variables supported a finding of reliability. See Lujan, 2020 UT 5,
¶ 37.
¶46 Second, the district court evaluated whether Eyewitness’s
attention was focused on the shooter. It emphasized that, despite
Eyewitness’s own statements indicating that the shooter’s wig
stood out to him, he was able to provide a number of details
about the shooter’s height, weight, build, facial structure, facial
features, and clothing on the day of the shooting—and that his
ability to do so demonstrated that his attention was focused on
the shooter. The district court also made several findings about
Eyewitness’s observations of the shooter’s gun and appeared to
agree with the State that Eyewitness had sufficient opportunity
to view and make a number of observations about the shooter
before the gun was ever drawn. The district court thus evaluated
whether there was a “weapon that the witness focused on,” and
resolved that Eyewitness’s attention was sufficiently focused on
the shooter to provide a reliable identification. See Lujan, 2020
UT 5, ¶ 37.
8. Wright appears to implicitly argue that this finding was
clearly erroneous based solely on conflicting trial testimony. We
do not consider this argument or any others in which Wright
attempts to show that that the district court’s findings of facts
are clearly erroneous by directing us only to trial testimony. The
district court’s findings cannot be “against the clear weight of
the evidence,” Wittingham, LLC v. TNE Ltd. P’ship, 2020 UT 49,
¶ 14, 469 P.3d 1035, when the only contrary evidence was
not presented until after the pre-trial motion was argued
and ruled on.
20100655-CA 24 2021 UT App 7State v. Wright
¶47 Third, the district court evaluated whether Eyewitness
had sufficient capacity to observe the event. The district court
found that, for the bulk of Eyewitness’s observation of the
shooter, he was witnessing only a verbal altercation from the
safety of his own car. It thus resolved that Eyewitness’s capacity
to observe the shooter was not impaired by stress or fright
because, despite witnessing the eventual shooting, he still had
the wherewithal to immediately call the police when the
shooting stopped and memorize the license plate number of the
fleeing vehicle. The district court also found that there was
nothing to suggest Eyewitness’s “capacity to observe was
hindered by personal motivations, biases, or prejudices, or by
uncorrected visual defects, or by fatigue, injury, drugs, or
alcohol.” The district court thus evaluated both “the amount of
stress (or duress) the witness was under,” and “witness
characteristics (age, impairment, etc.),” and determined that
neither had any appreciable impact on Eyewitness’s capacity to
observe the shooter. See Lujan, 2020 UT 5, ¶ 37.
¶48 Fourth, the district court evaluated whether Eyewitness’s
identification was sufficiently spontaneous and remained
consistent, or was instead the product of suggestion. The district
court found that the “core of [Eyewitness’s] identification was
made spontaneously” on the day of the murder and “remained
consistent thereafter”:
The eyewitness described the shooter as over six
feet tall, wearing a tan suede jacket, medium build,
thick brown hair pulled back into a pony tail and it
looked like a wig. The eyewitness described the
shooter’s face as elongated with a point noise,
buggy eyes, and distinct jaw.
It did note that “each time [Eyewitness] gave a description of the
shooting incident and the shooter, there were additional facts
about the shooter” such as the shooter possibly speaking with an
20100655-CA 25 2021 UT App 7State v. Wright
Eastern European accent, having bright blue eyes, and having a
long mustache that hung all the way to his chin, and that the wig
consisted of black rather than dark brown hair. But the district
court found that these additions did not negate that Eyewitness’s
description was largely consistent and that it was reasonably
likely that Eyewitness’s recall of additional facts was the product
of being asked different questions that prompted different
answers. The district court also noted that Eyewitness’s exposure
to information from outside sources came from the media’s
circulation of Wright’s booking photo and Eyewitness’s
subsequent photo-recreation experiment but explained that this
all occurred “after the identification” of Wright in the “photo-
lineup with 80–90% accuracy,” and thus there was no evidence
that this identification was the product of suggestion. The
district court therefore evaluated factors relevant to “memory
decay” and resolved that the details Eyewitness was able to
provide on the day of the shooting and consistently recall
thereafter demonstrated that his eventual identification of
Wright in the photo-lineup was not tainted by memory decay.
See Lujan, 2020 UT 5, ¶ 37. 9
¶49 Fifth, the district court evaluated whether the nature of
the event Eyewitness observed presented a likelihood that he
would perceive, remember and relate it correctly. The district
court found that, because it was not ordinary for Eyewitness to
observe an argument escalating to murder, the nature of the
event made it highly likely that Eyewitness would correctly
9. The district court’s evaluation of system variables was
necessarily brief because Wright never argued that the police
utilized any suggestive procedures, but it nevertheless explained
that the presence of suggestive procedures was relevant to its
evaluation. The district court went on to conclude that there was
no indication of suggestive police procedures that would
otherwise weigh against admission of Eyewitness’s testimony.
20100655-CA 26 2021 UT App 7State v. Wright
perceive, remember, and relate his observations. It further found
that Eyewitness and the shooter were the same race, and that
this circumstance further increased the likelihood that he would
correctly perceive and relate his observations. The district court
thus again evaluated “factors affecting memory decay” as well
as “perpetrator characteristics,” and resolved that neither
supported a finding that Eyewitness’s observation was
unreliable. See Lujan, 2020 UT 5, ¶ 37.
¶50 The district court then synthesized these findings and
found that Eyewitness’s identification was sufficiently reliable to
allow him to testify at trial. It stated that “[a]lthough there [we]re
some contradictions in [Eyewitness’s] opinion and
identification,” the district court was “persuaded that
[Eyewitness] observed the shooter closely enough to identify
him less than five weeks after the shooting” in the photographic
lineup. This analysis was tantamount to the district court finding
that Eyewitness’s identification was highly probative because it
was not negatively impacted by estimator or system variables in
any significant way. Correspondingly, the trial court’s
consideration of each factor and the totality of the circumstances
extensively and effectively weighed any unfair prejudice and
whether that prejudice would substantially outweigh its
probative value—resolving that the few contradictions in
Eyewitness’s identifications did not present an appreciable risk
of a “false appearance of probity [to] ultimately translate into
unfair prejudice.” See Lujan, 2020 UT 5, ¶ 41.
¶51 The foregoing makes clear that the district court did
weigh the probative value of Eyewitness’s testimony against any
unfair prejudice, and its analysis was guided by the specific
estimator and system variables referenced in Lujan as “crucial”
to a rule 403 determination. See id. And we see no abuse of
discretion in the district court’s conclusion that Eyewitness’s
testimony was admissible based on its evaluation of the
foregoing variables. To the extent that they are preserved,
20100655-CA 27 2021 UT App 7State v. Wright
Wright’s arguments amount to asserting that the district court
should have given more or less emphasis to certain facts, and do
not come anywhere close to demonstrating that the district
court’s decision was “beyond the limits of reasonability.” See
State v. Cuttler, 2015 UT 95, ¶ 12, 367 P.3d 981 (cleaned up). We
thus decline to disturb Wright’s convictions based on the
admission of Eyewitness’s testimony at trial.
II. Ineffective Assistance of Counsel
¶52 Wright contends that Counsel provided ineffective
assistance in a number of instances. To prevail on a claim of
ineffective assistance of counsel, the defendant must show that
“(1) his counsel’s performance was deficient in that it fell below
an objective standard of reasonableness and (2) the deficient
performance prejudiced the defense.” State v. Ray, 2020 UT 12,
¶ 24, 469 P.3d 871 (cleaned up). “A defendant’s inability to
establish either element defeats a claim for ineffective assistance
of counsel.” State v. Hatch, 2019 UT App 203, ¶ 29, 455 P.3d 1103(cleaned up).
¶53 To demonstrate that counsel performed deficiently, the
defendant must overcome the “strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Ray, 2020 UT 12, ¶ 34 (cleaned up). As a
result, it is not enough for the defendant to simply point to
“some strategy other than the one that counsel employed [that]
looks superior given the actual results of trial.” State v. Nelson,
2015 UT 62, ¶ 14, 355 P.3d 1031 (cleaned up). And “decisions as
to what witnesses to call, what objections to make, and by and
large, what defenses to interpose, are generally left to the
professional judgment of counsel.” State v. Curtis, 2013 UT App
287, ¶ 33, 317 P.3d 968 (cleaned up). It follows that “[i]f it
appears counsel’s actions could have been intended to further a
reasonable strategy, a defendant has necessarily failed to show
unreasonable performance.” Ray, 2020 UT 12, ¶ 34. But “even
20100655-CA 28 2021 UT App 7State v. Wright
where a court cannot conceive of a sound strategic reason for
counsel’s challenged conduct, it does not automatically follow
that counsel was deficient.” State v. Scott, 2020 UT 13, ¶ 36, 462
P.3d 350. Instead, “[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.” Ray, 2020 UT 12, ¶ 36.
¶54 Counsel’s performance is prejudicial if the defendant can
demonstrate that there is “a reasonable probability that the
outcome of his or her case would have been different absent
counsel’s error.” Scott, 2020 UT 13, ¶ 43. Accordingly, the
defendant must do more than simply “show that the errors had
some conceivable effect on the outcome of the proceeding.” State
v. Gallegos, 2020 UT 19, ¶ 64, 463 P.3d 641 (cleaned up). Instead,
the defendant must demonstrate that “the likelihood of a
different result . . . [is] substantial.” Id. (cleaned up).
A. Ballistics Evidence
¶55 Wright first argues that Counsel performed deficiently
with regard to the State’s use of ballistics evidence presented
through an expert witness. Wright argues that we can infer
Counsel failed to investigate the ballistics evidence because “[a]
cursory Google/Westlaw search would have revealed that a
debate was raging about the reliability and admissibility of this
evidence” due to its purported reliance on the subjective
assessments of the examiner. Wright argues that we can make
this inference because Counsel failed to use this readily available
information to cross-examine the expert or otherwise move to
exclude his testimony.
¶56 The State’s ballistics expert testified as to his examination
of the six bullet casings recovered by the police. He testified that
he analyzed these casings using a method called “toolmark
identification,” which is based on the premise that the barrel of a
20100655-CA 29 2021 UT App 7State v. Wright
gun has microscopic irregularities unique to the weapon that
will leave corresponding unique marks on the bullet casings
fired from the weapon. When asked by the State whether he was
“confident that all six cartridge casings were shot from the same
firearm,” the ballistics expert responded that he was.
¶57 Wright asks us to infer that Counsel failed to investigate
the ballistics evidence, positing that this is “[t]he only
explanation” for Counsel’s failure to challenge the reliability of
toolmark identification. But “[w]here the record appears
inadequate in any fashion, ambiguities or deficiencies resulting
therefrom simply will be construed in favor of a finding that
counsel performed effectively.” State v. Litherland, 2000 UT 76,
¶ 17, 12 P.3d 92. Wright’s failure to point to anything in the
record to substantiate what Counsel failed to do thus requires us
to “presume that [they] did what [they] should have done.”
Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th Cir. 2000)
(cleaned up). Moreover, the record affirmatively demonstrates
that Counsel did investigate the evidence—the rule 23B
court found that Counsel had spoken with at least two
firearms experts.
¶58 To the extent that Wright’s argument can be construed as
a broader assertion that Counsel’s treatment of the evidence was
nevertheless unreasonable, we are not persuaded. For one thing,
Counsel could have reasonably believed that cross-examining
the ballistics expert about how toolmark identification “relies on
the individual examiner’s training and experience,” United States
v. Monteiro, 407 F. Supp. 2d 351, 371 (D. Mass. 2006), would have
bolstered the ballistics expert’s credibility with jurors, given that
the expert had decades’ worth of experience conducting
thousands of toolmark identifications, was extremely
accomplished in his field, and had even published numerous
20100655-CA 30 2021 UT App 7State v. Wright
articles on how to respond to legal challenges to toolmark
identification’s methodology. 10
¶59 And although Counsel’s cross examination of the
ballistics expert was brief, the evidence did not go unaddressed.
Instead, Counsel called numerous lay witnesses who testified
that the last time Wright possessed the gun was months before
the murder, when he placed the gun next to the front door of his
condominium after a shooting trip with friends. And Counsel
successfully introduced photographic evidence to corroborate
Wright’s version of events that the gun went missing shortly
thereafter. Counsel also elicited testimony that Friend had access
10. Nor do we think Counsel’s decision not to challenge the
admissibility of the expert’s testimony under rule 702 of the Utah
Rules of Evidence was objectively unreasonable. Indeed, the
very cases that Wright suggests should have been utilized in
making these motions would have led Counsel to reasonably
conclude that the motions would have been futile. State v. Torres,
2018 UT App 113, ¶ 16, 427 P.3d 550 (“Counsel’s failure to make
a motion that would be futile if raised does not constitute
deficient performance.” (cleaned up)). These cases recognize that
if there was any “sweeping national trend,” it was toward
admitting toolmark identification testimony. See, e.g., United
States v. Willock, 696 F. Supp. 2d 536, 546 (D. Md. 2010) (denying
a motion to suppress toolmark identification testimony because
such a ruling was “consistent with every reported federal
decision to have addressed the admissibility of toolmark
identification evidence”); United States v. Green, 405 F. Supp. 2d
104, 123 (D. Mass. 2005) (“State courts have similarly rejected
Daubert-type challenges to ballistics testimony. . . . [P]recedent
plainly points in favor of admissibility.”). And Counsel’s belief in
this regard would have been all the more reasonable with
specific reference to the State’s ballistics expert, given his
particular credentials.
20100655-CA 31 2021 UT App 7State v. Wright
to Wright’s condominium during this timeframe, and even had a
key to it by virtue of his position as president of the building’s
homeowner’s association.
¶60 Through this lay testimony and photographic evidence,
Counsel laid the groundwork to undermine the inference that
the ballistics evidence was designed to raise—that if Wright’s
gun was the murder weapon, he must be the shooter—arguing
that Wright could not have shot Victim with a gun that he lost
months before the shooting. And this evidence also suggested
that Friend could have used Wright’s gun to commit the murder,
by permitting an inference that the reason Wright’s gun went
missing was because Friend entered Wright’s condominium and
took it. Given that the core theory of Wright’s defense was that
Friend was the shooter, Counsel’s choice to address the ballistics
evidence this way was not objectively unreasonable. See State v.
Vallejo, 2019 UT 38, ¶ 70, 449 P.3d 39 (holding that counsel was
not ineffective for failing to object to an adverse witness
testifying, given that counsel used the witness to highlight
inconsistencies in a manner that furthered the core theory of the
defense, and was thus a “reasonable tactical” decision).
¶61 Based on the foregoing, we conclude that Counsel did not
perform deficiently with respect to the ballistics evidence
presented by the State. Because Wright cannot show the first
element of this ineffective assistance claim, we reject it.
B. Historical Cell Phone Data Evidence
¶62 Wright next argues that Counsel performed deficiently
with regard to the State’s historical cell phone data evidence.
This evidence was presented through an expert witness who
concluded that the prepaid cell phone and Wright’s cell phone
were operating from the same geographic areas the day before
the murder. Wright argues that, had Counsel adequately
investigated the evidence, they would have sought to exclude
20100655-CA 32 2021 UT App 7State v. Wright
the State’s expert from testifying and would have cross-
examined him differently.
¶63 The State’s expert testified about his examination of the
respective cell phone towers that the prepaid cell phone,
Wright’s cell phone, and Friend’s cell phone were connecting to
on the day before the murder. He explained that because cell
phones constantly connect to the tower with the strongest signal,
determining which tower a cell phone was connecting to at a
given time can allow investigators to determine a general
geographic location of the phone. More specifically, he explained
that the strength of a signal is a product of both geographic
proximity and “line of sight,” such that phones “usually
connect[] to the [tower] that’s [in the] closest line of sight”—in
other words, if a cell phone is relatively close to two towers, but
one tower is obstructed by a building, the phone will connect to
the unobstructed tower. Because all three cell phones were
registered to different cell phone providers, and in turn
connected to different cell phone towers, the expert’s
conclusions were based on a comparison of the proximity of the
various connections at issue.
¶64 The expert testified that when the prepaid cell phone
made the 9:03 a.m. call to Victim, it was connecting to a tower at
400 South West Temple—about halfway between Wright’s
downtown condominium (approximately 300 South 200 West)
and office (approximately 400 South Main St.). He further
testified that Wright’s cell phone made two calls that morning at
8:57 a.m. and 9:39 a.m., and both connected to another tower
about halfway between his home and office. However, he
testified that when the 9:21 a.m. call was made from the prepaid
cell phone to Victim, it connected to a tower farther east, at
approximately 400 South 400 East. Nevertheless, the expert still
concluded that it was highly likely that Wright’s phone and the
prepaid cell phone were in the same location, explaining that the
9:21 a.m. call could still have been placed from Wright’s office
20100655-CA 33 2021 UT App 7State v. Wright
because—save for a single two-story building in the way—there
was a fairly clear line of sight between Wright’s office and the
tower at 400 South 400 East. The expert also thought the prepaid
cell phone location was more consistent with Wright’s location
than Friend’s location, because the latter’s cell phone connected
to a tower at 850 South 500 West that morning.
¶65 Counsel responded by emphasizing that the expert’s
method purports to provide only a general geographic
placement of a phone, and that this method was ill-suited for
determining the respective locations of two people who lived in
the same building and both worked downtown. And Counsel
noted that while the expert’s methodology relied on the premise
that cell phones generally connect to the closest cell tower in the
line of sight, the expert had apparently failed to adequately
investigate the relevant areas downtown to determine accurate
lines of sight. To this point, Counsel explained that the expert
was wrong about his crucial assumption that there was a clear
line of sight between Wright’s office and the tower at 400 South
400 East. Counsel demonstrated that Wright’s office was on the
ground floor, there were multiple high-rise buildings in the way,
and there were several other obstructions along 400 South.
Counsel also elicited that the expert completely failed to
investigate the lines of sight between Friend’s condominium and
the 850 South 500 West tower relative to other towers closer to
the prepaid cell phone.
¶66 Wright again asks us to infer that Counsel failed to
investigate the historical cell phone data evidence by asserting
that informed counsel would have utilized the “available
information” on the inherent limitations of the expert’s
methodology to exclude him from testifying altogether or, at the
least, would have cross-examined him about those limitations.
As before, we are precluded from inferring that Counsel failed to
investigate the evidence based on ambiguities in the record.
Instead we “presume that [they] did what [they] should have
20100655-CA 34 2021 UT App 7State v. Wright
done.” Chandler v. United States, 218 F.3d 1305, 1314 n.15 (11th
Cir. 2000) (cleaned up).
¶67 Nor do we find that Counsel’s treatment of the evidence
was otherwise objectively unreasonable because we discern
reasonable strategic explanations. As an initial matter, Counsel
could have reasonably believed that the expert’s conclusions
were not supported by his own methodology, given his
inaccurate (or otherwise lacking) line of sight determinations,
and thus that there was no need to also attack the validity of
methodology. See McCloud v. State, 2019 UT App 35, ¶ 48, 440
P.3d 775, cert. granted, 455 P.3d 1058 (Utah 2019) (noting that
competent attorneys can make strategic choices to avoid shifting
the jury’s attention to matters of esoteric forensic science).
¶68 And in a trial in which there was no genuine dispute that
Wright purchased the prepaid cell phone, Counsel could have
reasonably believed that any harm in further linking Wright to
the prepaid cell phone was outweighed by the benefit to be
gained from the State’s own experts further linking Friend to the
prepaid cell phone. After all, Friend’s cell phone connected to a
tower just blocks away from the prepaid cell phone’s tower.
Moreover, given that Lead Investigator’s early decision that
Friend was not a viable suspect was partially based on the
expert’s purported examination of Friend’s cell phone activity
relative to the prepaid cell phone, allowing the expert to testify
and highlight his faulty investigation into the lines of sight
furthered the defense theory about the police’s failure to
adequately investigate Friend as a suspect.
¶69 In light of our determination that Counsel did not
perform deficiently, we need not evaluate whether Wright was
prejudiced by Counsel’s performance. Nevertheless, we are not
persuaded that, even if Counsel successfully moved to preclude
all the historical cell phone evidence, there is a substantial
likelihood that Wright would not have been convicted. Given the
20100655-CA 35 2021 UT App 7State v. Wright
apparent concession that Wright bought the prepaid cell phone,
the jury could have reasonably inferred that Wright possessed
and used the prepaid cell phone to arrange the 7:00 a.m. meeting
based on this fact alone.
¶70 Accordingly, Wright has failed to demonstrate either
deficient performance or prejudice stemming from Counsel’s
treatment of the historical cell phone data evidence. As a result,
we reject this ineffective assistance claim.
C. DNA Evidence
¶71 Wright next argues that Counsel performed ineffectively
by failing to consult with an expert about the State’s DNA
evidence. Wright argues that Counsel failed to understand and
convey to the jury that the DNA evidence was largely favorable
to Wright’s defense, and that Counsel would have been apprised
of the favorable nature of the DNA results had they consulted
with DNA experts.
¶72 Wright’s claim regarding the DNA evidence was one
issue remanded under rule 23B of the Utah Rules of Appellate
Procedure. The rule 23B court rejected Wright’s arguments and
determined that Counsel did not perform deficiently. Wright
asserts that the rule 23B court “correctly concluded [C]ounsel
failed to investigate or present evidence from a DNA expert but
incorrectly concluded the failure to investigate was a ‘legitimate
strategic choice.’” 11 He adds that “Counsel cannot make ‘a
11. At the rule 23B remand, Wright argued that Counsel
performed deficiently in not having an expert testify, and there
are some suggestions made in this regard in Wright’s appellate
brief. The rule 23B court found that Counsel’s decision to present
the favorable DNA evidence through the State’s experts and
cross-examination was a reasonable tactical decision because it
(continued…)
20100655-CA 36 2021 UT App 7State v. Wright
legitimate strategic choice’ not to investigate,” and frames the
rule 23B court’s conclusion as being “premised on the idea
[C]ounsel could—without investigation—strategically not
investigate.”
¶73 Wright simply mischaracterizes the rule 23B court’s
findings and conclusion. To start, the rule 23B court never found
that Counsel failed to investigate the DNA evidence. Quite to the
contrary, the rule 23B court made several specific findings as to
the investigatory steps taken by Counsel—they reviewed the
DNA results, did their own independent research, and spoke
with the State’s DNA experts about the test results. The rule 23B
court also found that Counsel had previously “dealt with DNA
experts, questioned them, learned the science, and gone to the
State Crime Lab.” And based on Counsel’s investigatory steps
and their familiarity with DNA evidence, the rule 23B court
further found that they “knew the DNA test results were
favorable,” particularly the “test results from the steering
wheel,” and that the one result in which Wright was a “possible
contributor” was from a degraded sample that could easily be
explained. Wright fails to challenge any of these factual findings,
all of which establish that counsel investigated the DNA
evidence. The rule 23B court then concluded that Counsel made
a reasonable choice not to include consulting with an
independent expert as part of their investigation into the
evidence. This was based on the rule 23B court’s findings that
consultation with an expert would not have “materially aided
[C]ounsel in understanding or presenting to the jury the
favorable nature of the DNA results,” given their own
(…continued)
allowed Wright to argue that the State’s own experts supported
his defense. Wright does not specifically challenge this
conclusion or the related findings in his brief, and we agree with
the rule 23B court’s determination.
20100655-CA 37 2021 UT App 7State v. Wright
independent investigation and existing familiarity with DNA
evidence.
¶74 We agree with the rule 23B court that—based on the
unchallenged findings—Counsel’s decision not to consult with
an independent expert was reasonable. See McCloud v. State, 2019
UT App 35, ¶ 64, 440 P.3d 775, cert. granted, 455 P.3d 1058 (Utah
2019) (“Based on various legitimate considerations, trial counsel
made a reasonable judgment call against consulting experts in
the case.” (cleaned up)); see also State v. King, 2017 UT App 43,
¶¶ 27–28, 392 P.3d 997 (noting that counsel’s prior experience
with a category of evidence precluded additional need to consult
with an expert). We thus reject Wright’s ineffective assistance
claim regarding Counsel’s treatment of the DNA evidence.
D. Voice Identification Evidence
¶75 Wright next argues that Counsel performed ineffectively
by choosing “not to consult with voice identification experts” or
have any such expert testify at trial regarding the Voicemail.
Wright asserts that Counsel was unfamiliar with voice
identification evidence, and thus should have consulted an
expert. Wright relatedly asserts that Counsel should have called
an expert to testify about the poor quality of the recording used
to capture the Voicemail. 12
12. Specifically, Wright asserts that Counsel should have used
the expert called by the State at the rule 23B hearing, who
testified that the recording used to capture the voice on the
Voicemail was of too low quality to be forensically compared
under prevailing FBI standards and protocols. This was in
response to the assertion by Wright’s expert—whom the rule 23B
court found could not testify based on various problems under
rule 702 of the Utah Rules of Evidence—that he analyzed and
(continued…)
20100655-CA 38 2021 UT App 7State v. Wright
¶76 Wright’s claim regarding the voice identification
testimony was also remanded under rule 23B. 13 Wright asserts
that the rule 23B court “incorrectly concluded” that a reasonable
basis existed for Counsel to not consult with or have an expert
testify at trial “based on several incorrect conclusions about
[C]ounsel’s performance, none of which actually made it
reasonable not to investigate this evidence and consult with an
expert.” The rule 23B court made numerous findings to support
its conclusions that Counsel’s conduct was reasonable, and
Wright does challenge a great many as being clearly erroneous.
But we need not address most of Wright’s challenges because
the rule 23B court’s conclusions can be supported on the findings
discussed below.
(…continued)
compared the Voicemail recording with other recordings of
Wright’s voice and determined that the speaker in the Voicemail
was not Wright.
13. In his motion for the rule 23B remand, Wright also asserted
that Counsel should have called a number of his family members
to testify that the voice on the Voicemail was not his, rather than
having only one witness who was familiar with Wright’s voice
but not related to him testify to the same. We granted the motion
based on this ground as well, but it is unclear if Wright is
actually challenging the rule 23B court’s findings or conclusion
that Counsel’s conduct was reasonable in this regard. To the
extent that he is, we simply note that we agree with the rule 23B
court’s findings and conclusion that it was a reasonable strategy
for Counsel not to call a number of witnesses who could have
been easily impeached for bias. This is especially true in light of
the unchallenged factual finding that, mid-trial, Wright’s uncle
expressed his belief to Counsel that it was indeed Wright’s voice
on the Voicemail.
20100655-CA 39 2021 UT App 7State v. Wright
¶77 The rule 23B court concluded that “Counsel’s decision not
to hire or have a voice identification expert testify at trial was a
legitimate strategic choice.” The rule 23B court found, among
other facts, that Counsel knew the State’s position at trial was
that the voice on the Voicemail belonged to Wright,” knew
“multiple recordings of [Wright’s] voice were going to be played
at trial [and] that the jurors themselves could contrast the
voices,” and “reasonably believed it was plain that the voice on the
[Voicemail] was not [Wright’s] when compared with the other
voice recordings and that this would be obvious to anyone,”
including the jurors. (Emphasis added.) Accordingly, the rule
23B court found that Counsel “reasonably believed that hiring a
voice identification expert to tell [the jury members]” what they
could determine on their own “was not necessary.” The rule 23B
court also found that Counsel’s strategy was based on a
“reasonable belie[f] that if they called a voice identification
expert, the State would have countered by calling its own expert,
and that the voice identification issue would turn on which
expert was more believable.”
¶78 We agree with the rule 23B court that Counsel’s decision
not to consult with an expert was not objectively unreasonable if
Counsel reasonably believed that it would be obvious to the
jurors that Wright’s voice did not match that on the Voicemail.
State v. King, 2017 UT App 43, ¶ 26, 392 P.3d 997 (“Strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” (cleaned
up)); State v. Montoya, 2004 UT 5, ¶ 24, 84 P.3d 1183 (“If counsel
has reason to believe that pursuing certain evidence would be
fruitless or even harmful, a tactical decision not to investigate
may indeed be reasonable.” (cleaned up)). And Wright has not
demonstrated that it was clearly erroneous for the rule 23B court
to find that counsel’s belief in this regard was reasonable;
instead, Wright only argues that Counsel’s belief was “wrong”
because he was convicted. But the possibility that Counsel’s
20100655-CA 40 2021 UT App 7State v. Wright
belief about the Voicemail may have been wrong does not
preclude a finding that the belief was nevertheless reasonable.
And other evidence in the record supports that Counsel’s belief
was reasonable—in particular, testimony from Wright’s own
expert at the rule 23B hearing, who expressed his opinion that
“any objective listener” could tell the difference between the
voice on the Voicemail and other recordings of Wright’s voice.
We thus agree with the rule 23B court that Counsel’s choice not
to consult with an expert was objectively reasonable under these
circumstances.
¶79 We likewise agree with the rule 23B court that Counsel’s
decision not to call an expert at trial was not objectively
unreasonable under the circumstances. See State v. Alzaga, 2015
UT App 133, ¶ 86, 352 P.3d 107 (“Counsel’s decision to call or
not to call an expert witness is a matter of trial strategy, which
will not be questioned and viewed as ineffectiveness unless there
is no reasonable basis for that decision.” (cleaned up)). As noted
above, the rule 23B court’s conclusion was based on Counsel’s
reasonable belief that they did not need to call an expert to
explain something the jury members could determine on their
own and because it was not objectively unreasonable for Counsel
to avoid a possible battle of the experts. Wright only argues that
the rule 23B court erred with regard to its finding about the
battle of the experts, asserting that “[t]his ignores the point of a
criminal trial, to subject evidence and theories to meaningful
adversarial testing.” But “there are countless ways to provide
effective assistance in any given case,” and Wright’s conclusory
argument fails to demonstrate why Counsel was constitutionally
required to present an expert. See id. (cleaned up); see also
McCloud v. State, 2019 UT App 35, ¶ 48, 440 P.3d 775, cert.
granted, 455 P.3d 1058 (Utah 2019) (noting that counsel can make
strategic choices to avoid “transform[ing] the case into a battle of
the experts” (cleaned up)).
20100655-CA 41 2021 UT App 7State v. Wright
¶80 Based on the foregoing, Wright has failed to demonstrate
that Counsel performed deficiently with regard to the Voicemail.
Accordingly, we reject this ineffective assistance claim.
E. Closing Arguments
¶81 Wright next argues that Counsel was ineffective for not
objecting to two instances of alleged prosecutorial misconduct
during the State’s closing arguments. First, Wright argues that
the State engaged in misconduct when it suggested that Counsel
intended to mislead the jury. Second, Wright argues the State
engaged in misconduct when it “asserted argument from
evidence the court had properly excluded.” Wright concludes
that it was objectively unreasonable for Counsel to fail to object
to either instance of alleged misconduct.
¶82 To demonstrate that Counsel performed deficiently in
failing to object to the State’s comments at closing argument,
Wright must first show that the State’s comments were
improper, meaning that they “call[ed] to the attention of the
jurors matters which they would not be justified in considering
in determining their verdict.” State v. Jones, 2015 UT 19, ¶ 54, 345
P.3d 1195 (cleaned up). Assuming he can demonstrate this,
Wright must also demonstrate that Counsel’s failure to object
was objectively unreasonable, i.e., that the State’s comments
“were so improper that [C]ounsel’s only defensible choice was to
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76, 353 P.3d 55 (cleaned up).
¶83 Wright first argues that the State made improper
comments when it allegedly suggested that Counsel
intentionally misled the jury. Wright points to the State’s
arguments to the jury that “the defense does not have a good
defense—they are grasping at straws . . . providing multiple
stories hoping you will buy off one” and that the jury should not
be “conned by the distractions that have been presented in this
20100655-CA 42 2021 UT App 7State v. Wright
case.” Wright argues that Counsel’s duty to object to this
argument is established by our line of cases holding that “calling
defense counsel’s theory a distraction or irrelevant is permissible
but accusing opposing counsel of using such a distraction as part
of a purposeful scheme to mislead the jury is not.” State v. Fouse,
2014 UT App 29, ¶ 30, 319 P.3d 778.
¶84 Wright has failed to show that Counsel’s decision not to
object to these arguments was objectively unreasonable. The first
quoted statement merely amounted to an argument about the
lack of evidence to support the “multiple” stories presented by
the defense, and thus reasonable counsel could decline to lodge
an objection. The second quoted statement does contain
language that, in a vacuum, could amount to arguing that
Counsel deliberately attempted to mislead or “con” the jury. But
a closer examination of the overall context of this argument
convinces us that Counsel could have reasonably concluded that
the State’s comment was a permissible argument that the
defense theory—Friend as the shooter—was “a distraction from
the ultimate issue.” Fouse, 2014 UT App 29, ¶ 32 (cleaned up).
Counsel repeatedly referred to Friend as a “con man”
throughout the trial and emphasized that, not only was he
unethical, but he had even “faked his own death” and “went to
prison for wire fraud.” Emphasizing that Friend was a “con
man” was meant to suggest that he had the motive and capacity
to kill Victim, and to cast doubt on investigators’ early decision
that Friend was not a suspect worth investigating. Counsel thus
could have reasonably concluded that the State’s argument
about not being “conned by the distractions presented in the
case” was a reference to the theory that Friend was the shooter,
and did not merit an objection.
¶85 Wright next argues that the State made improper
comments when it argued that it would not have been difficult
for Wright—who was left-handed—to shoot the gun with his
right hand. Wright points to the fact that the district court
20100655-CA 43 2021 UT App 7State v. Wright
excluded the State from presenting an expert witness, who
would have testified about non-dominant hand shooting, and
asserts that the district court ruled that this evidence was
“irrelevant.” Wright thus argues that Counsel was required to
object to the State’s closing arguments because a “prosecutor
may not assert arguments” that “refer to evidence not in the
record or evidence that has been excluded by the trial court.”
State v. Larrabee, 2013 UT 70, ¶ 24, 321 P.3d 1136 (cleaned up).
¶86 Wright again fails to show that Counsel’s decision to not
object was objectively unreasonable. As an initial matter, the
district court did not exclude the State’s expert on the ground
that his testimony was irrelevant; instead, the district court
excluded the expert on the ground that his testimony was not
“going to significantly aid or assist the jury in understanding the
issue of nondominant hand shooting.” Accordingly, the district
court did not make a categorical ruling that non-dominant hand
shooting was irrelevant or excluded. Nor was the permissibility
of the State’s closing argument contingent on the expert
testifying about non-dominant hand shooting. Rather, the State’s
closing argument merely asked the jury to make a reasonable
inference, based on common sense and deductions drawn from
other evidence presented, that Wright used his non-dominant
hand to shoot the victim. See State v. Bakalov, 1999 UT 45, ¶ 59,
979 P.2d 799 (“[T]he prosecutor may fully discuss with the jury
reasonable inferences and deductions drawn from the
evidence.”). And the district court’s ruling further suggested that
this type of inference was one a jury could make without the aid
of expert testimony. Accordingly, Counsel could have
reasonably concluded that the State’s closing argument about
non-dominant hand shooting did not merit an objection. 14
14. Wright also argued that the cumulative error doctrine
warrants reversal. But “[a]lthough [Wright] has alleged several
(continued…)
20100655-CA 44 2021 UT App 7State v. Wright
CONCLUSION
¶87 The district court did not err in admitting Eyewitness’s
identification testimony at Wright’s trial. Nor did Counsel
provide ineffective assistance.
¶88 Affirmed.
(…continued)
errors, we have found none. Therefore, the cumulative error
doctrine does not apply.” State v. Widdison, 2001 UT 60, ¶ 73, 28
P.3d 1278.
20100655-CA 45 2021 UT App 7