State v. Wall , 2020 UT App 36 ( 2020 )

2020 UT App 36THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
JOHNNY BRICKMAN WALL,
Appellant.
Amended Opinion∗
No. 20151017-CA
Filed March 5, 2020
Third District Court, Salt Lake Department
The Honorable James T. Blanch
No. 131903972
Troy L. Booher, Freyja Johnson, and Beth Kennedy,
Attorneys for Appellant
Sean D. Reyes and Tera J. Peterson, Attorneys
for Appellee
JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES GREGORY K. ORME and JILL M. POHLMAN concurred.
HAGEN, Judge:
¶1 A jury convicted Johnny Brickman Wall of murdering his
ex-wife, Uta von Schwedler. 1 Wall appeals his conviction,
∗ This Amended Opinion replaces the opinion issued December
12, 2019, State v. Wall, 2019 UT App 205.
1. “This court typically does not include the names of crime
victims, witnesses, or other innocent parties in its decisions. We
make an exception in this case due to the considerable notoriety
this criminal episode has attracted. The [victim’s] identity is well
known, and obscuring her identity in this decision would serve
(continued…)
State v. Wall
arguing that there was insufficient evidence to convict him, that
the district court erred in admitting certain DNA evidence, and
that his trial counsel was ineffective in failing to object to the
State’s closing argument involving the DNA evidence. We
conclude that Wall has not carried his burden on appeal to show
there was insufficient evidence to support his murder
conviction. Further, the district court did not exceed its
discretion in admitting certain DNA evidence, and Wall’s trial
counsel did not perform deficiently in failing to object to the
prosecutor’s characterization of that evidence in closing
argument. Accordingly, we affirm Wall’s conviction.
BACKGROUND
Marriage and Divorce
¶2 In 1988, a mutual friend introduced Uta to Wall while
they were each completing doctorate programs on the west
coast. Wall and Uta married in 1990, and Wall graduated from
medical school four years later. After medical school, Uta, Wall,
and their newborn son moved to Utah for Wall’s residency
program. Over the next few years, they had three more children
together.
¶3 By 2005, the marriage had failed and Uta moved out of
the family home, leaving the four children to live primarily with
Wall. The couple divorced in 2006.
(…continued)
no purpose.” State v. Chavez-Reyes, 2015 UT App 202, ¶ 2 n.2, 357
P.3d 1012. Additionally, although we generally refer to relevant
parties by their last names, we will refer to the victim in this case
as Uta because that is how all of the witnesses referred to her at
trial.
20151017-CA 2 2020 UT App 36State v. Wall
¶4 Wall and Uta responded differently to the divorce.
According to their children, Wall was “very, very sad” and
depressed after the divorce, but over time his mood changed
from sadness to “anger, even hatred” toward Uta. Wall
frequently complained to the children about Uta, saying that she
was “a bad parent,” that she was “selfish,” and that she made his
“life difficult.” The children said that Wall never treated Uta
“nicely or kindly” after the divorce. At one point, Wall
“physically removed” Uta from his property when she “tried to
come in the front yard” to pick up the children for her parent
time.
¶5 Most people who knew Wall knew that he “despised”
Uta. He asked his friends, “Would it be bad if Uta wasn’t here
anymore?” and “How would my life be if she weren’t around?”
He sent emails to Uta accusing her of immoral acts and
threatening to “move away” with the children “or continue
towards obtaining full custody.” He blamed Uta for his
unhappiness and accused her of “hurt[ing] people that matter
deeply” to him. When she reached out to him regarding requests
from the children’s friends for weekend trips, he asked her to
“please stop inserting [herself] in [his] parent time.”
¶6 It was clear that Wall did not want Uta in the children’s
lives. The summer before her death, Wall took the children to
California but refused to tell them when they were returning to
Utah because he did not want them to tell Uta. If the children
attempted to communicate with Uta while they were with Wall,
“he would become very upset” and would sometimes take their
phones away from them. He was uncooperative with Uta
regarding parent-time exchanges and adjustments to the custody
arrangement. Wall frequently ignored Uta’s messages, and she
had to organize parent-time schedules through her older
children.
¶7 Uta’s response to the divorce was quite different. Her
friends, family, coworkers, and other acquaintances who
testified at trial knew Uta to be “very outgoing, very friendly,
20151017-CA 3 2020 UT App 36State v. Wall
very cheerful,” and “full of life.” Those witnesses said her
positive attitude continued after the divorce, and some people
“certainly thought she was happier” after the divorce. She was
welcoming to newcomers and frequently brought homemade
treats to work or to social gatherings. She regularly engaged in
physical activities such as swimming, running, hiking, skiing,
and camping. Uta was in a “very happy” relationship with a
man (the boyfriend) whom the children liked, and the two eldest
children told family members that they “were so happy that Uta
had [the boyfriend]” because he was “a really, really good match
for Uta.” No witness testified that Uta was unhappy or suicidal,
except for Wall.
¶8 Uta was very involved in her children’s lives. Although
she “had a great love and passion for science,” she arranged
with her supervisor to work a “30-hour work week” because “it
was important to her to be available for [her children] after
[school] hours.” “Uta’s greatest pleasure in life was the love of
her four children,” and she wanted to spend more time with
them. She attended their sporting events and musical
performances and created photo albums for each of them.
¶9 One of the few things that upset Uta was attempting to
work with Wall regarding the children. A few years after the
divorce, Uta hired an attorney to file a petition to modify the
divorce decree regarding parent time, and the court ordered
mediation. Although Wall and Uta reached an agreement during
mediation, Wall later refused to sign the proposed order. Thus,
for years following the divorce, the custody arrangement was
never sorted out and remained a “constant battle.”
¶10 Early in September 2011, after years of unsuccessfully
attempting to work out a better custody arrangement outside of
court, Uta reached out to her attorney to discuss filing a new
petition to modify the divorce decree and to consider moving to
appoint a custody evaluator. Wall ignored Uta’s inquiries related
to the children, including whether he would either agree to sign
the custody evaluation request or agree to the proposed parent-
20151017-CA 4 2020 UT App 36State v. Wall
time schedule for the upcoming school year. He also frequently
ignored his own attorney’s communications related to these
requests. The week before Uta’s death, in an apparent change of
course, Wall agreed to sign the custody evaluation request the
following week. But after he left the children in Uta’s care for the
weekend, Wall “excited[ly]” told a new acquaintance that “he
was getting his kids back.”
Uta’s Final Days
¶11 The week before her death, Uta had made a discovery in
her research that could advance a new treatment for childhood
leukemia. According to her supervisor, the “long-term
implications of that discovery” were “very exciting on a
professional level, on a career level, both for Uta and . . . the lab,
because [it would] lead[] to new peer-reviewed publications,
grants, [and] presentations.” This was a “milestone” in Uta’s
career that would have had “positive implications” for her.
¶12 On September 26, 2011, the day before her body was
discovered, Uta had a meeting with her supervisor and another
coworker related to this new discovery, and they were all “quite
enthusiastic” because “[t]his was one of the biggest discoveries
[they] had had thus far in the laboratory.” Later that evening,
Uta attended one of the children’s soccer games and was “in a
great mood.” She spread out a blanket and shared treats with
other parents. Uta told a fellow parent that she “had been
camping that weekend with her kids and [her boyfriend]” and
was looking forward to her upcoming trip to California with her
two youngest children later that week while Wall took the two
eldest children to visit universities back east.
¶13 After the soccer game, Wall arrived at Uta’s house to take
the children back home. When he arrived, Uta tried to talk with
him to finalize the details for the California trip, but Wall “rolled
up his window and ignored her.” According to the children,
Wall appeared annoyed on the drive home.
20151017-CA 5 2020 UT App 36State v. Wall
¶14 With the children out of the house, Uta went about her
usual Monday evening routine of “deep cleaning” the house.
Uta called her boyfriend and made plans with him for the
following night. At around 10:45 p.m., Uta spoke with a friend
over the phone about potential plans for the next day. That was
the last time anyone heard from Uta.
September 27, 2011
¶15 The following morning, on September 27, 2011, Uta’s
neighbors did not see her at her kitchen table drinking coffee
and reading her newspaper, as she did all other mornings.
Instead, the newspaper remained in the driveway, and the
garbage cans Uta put out for collection the night before
remained on the street.
¶16 That same morning, Uta’s eldest daughter awoke at
around 6:00 a.m. and got ready for school. She searched the
house for Wall, who usually drove her to the light rail station,
but she could not find him anywhere. The eldest daughter
testified that if Wall had to leave for the hospital in the middle of
the night, he would “generally . . . text [her] or call [her]” to let
her know, but he had not left her any messages that morning.
After calling him twice with no answer, the eldest daughter
walked to the station to go to school. Wall was spotted by the
eldest daughter’s schoolmate and her mother at 7:05 a.m.,
driving some distance away from and in the opposite direction
of his house, and Wall still had not returned home to get the
youngest children ready for school by the time the eldest son left
for school around 7:30 a.m. But the two youngest children
remembered speaking with Wall at some point before leaving
for school. Specifically, they remembered seeing an injury to
Wall’s eye. Wall told them that he had slept outside on the porch
and had been scratched by their dog, but the youngest daughter
thought Wall was acting “weird, almost paranoid.” Just after
8:00 a.m., a carwash facility photographed Wall dropping off his
car. Wall took his car there to “detail the inside” and asked the
20151017-CA 6 2020 UT App 36State v. Wall
carwash attendant to focus “extra heavy” in the trunk cargo area
and on a spot on the driver’s side back seat.
¶17 After leaving his car to be detailed, Wall arrived late for
appointments with patients. He “looked disheveled and
anxious,” appeared not to have bathed, and wore the same
clothes as the previous day. A medical assistant noticed that he
had a scratch on the left side of his face and that his left eye was
“reddened and bloodshot.” Although two people who worked
in Wall’s office said that this scratch looked like it was caused by
a fingernail, “Wall volunteered an explanation for the scratch,
saying that his dog jumped on him and scratched his face while
he was sleeping outside.” One of the assistants “thought [this]
explanation was odd because [Wall] had his dog for a long time
and she had never seen it scratch him before.” When Wall
noticed that his assistant was looking at additional scratches on
his arms, he “quickly” rolled down his sleeves. After seeing one
patient, Wall left to see an eye doctor and did not return to work.
¶18 When the eldest children returned home, they too noticed
the scratch to Wall’s face and eye. Wall told them that he had
been sleeping outside occasionally over the past few months and
that their dog had scratched him the night before while he slept
outside on the porch. None of the children had ever seen Wall
sleep outside on the porch, and none of them knew their dog to
scratch anyone.
The Crime Scene
¶19 At around 7:45 p.m. on September 27, 2011, Uta’s
boyfriend went to visit her as they had planned the night before.
Uta’s garbage cans were still on the street, and her newspaper
was still in the driveway. The boyfriend walked into her house
through her unlocked door, which Uta normally locked before
going to bed. He noticed that her bathroom door was slightly
ajar and that the light was on. On his way to the bathroom, he
walked past her bedroom and noticed that the blinds, which
were always open, had been pulled shut. The boyfriend reached
20151017-CA 7 2020 UT App 36State v. Wall
the bathroom, announced his presence, opened the door, and
found Uta dead in her bathtub with the cold water running but
not overflowing. She wore only her pajama shorts, and her
bloodied tank top was folded at the edge of the bathtub. The
boyfriend called the police, who quickly arrived on the scene.
¶20 Upon entering the house, the first responders noted that
there were pills strewn across the bedroom floor, a lamp had
toppled over on the bed, and a vase and books from the
nightstand had been knocked onto the floor. The comforter on
the bed had been balled up in a way that appeared to conceal
several dried bloodstains. The fitted bed sheet contained one
large pool of blood and two smaller pools of blood that
“show[ed] motion in three different directions,” indicating “a
sign of a real struggle.” There was also a bloodstain on the
pillowcase. In the bathroom, there was blood smeared on the
sink and below the windowsill located above the bathtub, but
there was no blood smeared on the walls between Uta’s
bedroom and bathroom or on any of the light switches. There
was a shampoo bottle standing upright in the middle of the
bathroom floor, which was usually kept in the windowsill above
the bathtub. Under Uta’s body, the first responders found a large
kitchen knife. Also in the bathwater was a magazine, the sports
section of the newspaper (which Uta never read), and the
youngest daughter’s photo album. There were dried bloodstains
that looked like shoeprints on the kitchen floor.
¶21 Some of the officers testified that the scene appeared
“suspicious,” as if “there could have been a struggle,” and that it
“did not appear consistent with an overdose or accidental
death.” After leaving the scene, one of the officers contacted
detectives to conduct an investigation.
Wall’s First Version of the Events of September 26 and 27
¶22 Later that night, the detectives arrived at Wall’s house to
ask him “if he was willing to come down to [the] police station
20151017-CA 8 2020 UT App 36State v. Wall
to talk.” The officers did not tell Wall what they wanted to talk
about, and he did not ask them.
¶23 While Wall waited to be interviewed, the detectives first
interviewed the boyfriend. The boyfriend was “compliant” and
“helpful.” He did not “have any trouble time-lining himself,
explaining what he had been doing the weekend before, [or
what happened] the day before. He seemed to be honest in all of
his answers.”
¶24 In contrast, Wall’s responses to the detectives’ questions
were vague and he spoke in generalities rather than directly
answering questions about what occurred the previous
night. When the detectives asked where he went the night
before after picking up the children from Uta’s house, Wall
said, “I don’t know . . . I don’t rem . . . I mean, I don’t
usually remember every . . . what I do, but . . . ah . . . usually
what we do.” (Omissions in original.) He went on tangents
about what usually happened when he retrieved the children
from Uta’s house at the conclusion of her parent time. The
officers kept redirecting Wall, stating, “So what happened last
night, though, [Wall]? This was just last night.” But Wall
continued to respond to inquiries about the previous night with
things the family “usually” did on Monday evenings or what the
children “sometimes” did when they got back to Wall’s house.
Wall could not say if he had been home the entire night or if he
had gone back to Uta’s house after picking up the children.
Wall evaded direct answers about the last time he had seen Uta,
and he could not remember if he had recently touched Uta or
the last time he had been inside Uta’s house. When directly
asked if he had been inside Uta’s house on September 26 or 27,
Wall responded, “I don’t think so.” When asked if there
was “any reason, whatsoever, that [his] DNA . . . would be
under [Uta’s] fingernails,” Wall responded, “I don’t know.”
When he was asked if he killed Uta, he said, “I don’t think I
did it,” “I don’t think I was there,” and, “If I did it, I did make a
mistake, and I am sorry. But I don’t think I did it.”
20151017-CA 9 2020 UT App 36State v. Wall
¶25 Eventually, over the span of three hours, Wall gave an
account of the things he did on September 27, 2011. He told the
detectives that he went to a gas station near his house to
purchase eggs between 6:45 a.m. and 7:00 a.m. He said he
returned to the house and had breakfast with his two youngest
children before taking them to school. Wall then went to a
carwash facility because he had “extra time” that morning and
there were “burritos spilled all over” the front passenger seat.
He talked about going to his office, seeing the eye doctor
regarding the scratch on his eye—which he again said his dog
caused—and returning to the carwash to get his car before
driving to his office at the hospital. At the hospital, Wall
apparently parked his car and left his windows rolled down
with his cell phone still inside the vehicle. He claimed that his
cell phone had been stolen by the time he returned.
¶26 Wall could not tell the officers what he had done between
8:00 p.m. on September 26, 2011, and 6:45 a.m. the following day.
¶27 After interviewing Wall, the detectives had photographs
taken of Wall’s injuries and had a technician take his
fingerprints. Wall was not arrested, and a detective arranged a
ride home for him. One of the detectives testified at trial that
Wall was “surprised” that he was being released and asked,
“[S]o I’m not going to jail?” When the detective said he was not,
Wall responded, “[B]ut I’m a monster.”
Wall’s Conduct Following Uta’s Death
¶28 When Wall returned home from his interview with the
detectives at around 2:30 a.m., he bluntly told the children,
“Uta’s dead and they think I did it.” He told the youngest
daughter “not to leave him alone because he was scared he
would do something he would regret.” Wall curled up “in the
fetal position” and cried. He started “babbling and rambling”
and “saying things along the line of: ‘Am I a monster? Only a
monster could have done this. How do I know what I do when
I’m asleep? What if I did it and I don’t remember?’” The children
20151017-CA 10 2020 UT App 36State v. Wall
and family friends testified that Wall repeatedly referred to
himself as a monster in the days following Uta’s death. The
eldest son explained that Wall’s ramblings made him “question[]
[Wall’s] involvement in [his] mother’s death.”
¶29 One of the children called a family friend to help Wall.
Wall told this friend, “Uta is dead and they think I did it . . . .”
When she asked him, “[D]id you do these things that—that the
police said you did?” Wall responded, “If I did them, I don’t
remember.” When this friend started looking for some of Wall’s
medications, he told her that he had been “sleeping outside
recently” and that “the dog scratched him on his face.” She
asked him, “Why are you telling me this?” And then he showed
her his eye. The friend noticed other scratches and “gouges” on
Wall’s body, which he quickly covered up. Because Wall was so
“distraught,” the friend wanted to offer him a sedative and
asked him if he was familiar with Xanax. Even though he was a
medical doctor and had twice prescribed himself Xanax after his
divorce from Uta, Wall claimed not to know what it was. After
the friend explained Xanax’s purpose, Wall claimed to remember
recently prescribing his mother Xanax “because she’s afraid to
fly.” Wall then started telling the friend that “[a]ll he wanted
was for Uta to be happy . . . and that’s all he ever wanted,”
which the friend found to be “unusual because [she] felt like he
was very angry at Uta” and did not believe that Wall really
wanted her to be happy.
¶30 That same morning, Wall checked himself into a
psychiatric facility where he stayed for about a week. While he
was receiving treatment, the eldest son and a family friend
visited him and asked him questions about Uta’s death. During
this conversation, Wall asked his son, “If the police found my
phone there [at Uta’s house,] what could I say to refute that?”
¶31 After Wall’s release from psychiatric treatment, the
children resumed living with him, but his behavior changed.
Over time, Wall restricted the children’s communication with
Uta’s family and the boyfriend. Wall told the children that the
20151017-CA 11 2020 UT App 36State v. Wall
boyfriend should have “come to him and comforted him in his
time of need,” and therefore the boyfriend should not be allowed
to communicate with the children. (Emphasis added.) Wall also
began telling his children that Uta committed suicide and told
the youngest son, “[M]aybe it’s better that she’s dead.” He
became more “confrontational,” “aggressive and intimidating”
toward the children regarding Uta’s death. The eldest son
moved out of Wall’s house the day after an “uncomfortable
incident” in January 2012, in which Wall asked him “what [he]
knew about [his] mom’s death” and “what attorneys [he] had
contacted.” By May of that year, the three other children were
also no longer living with Wall.
¶32 After Uta’s death, the eldest son went to Uta’s house to
collect the children’s photo albums to send them to Uta’s family
in Germany. He could not enter the house on his own because
the spare key that was normally left outside for the children was
missing and never found. After receiving help from the
boyfriend to gain access to the house, the eldest son retrieved the
albums and sent them to Germany. The eldest son informed
Wall that he had sent the photo albums to Germany and that
Wall would receive copies of the albums. In November 2012,
Wall sued the eldest son for conversion and demanded to have
the photo albums returned to him. In response, the eldest son
filed a counterclaim against Wall for Uta’s wrongful death.
Wall’s Second Version of the Events of September 26 and 27
¶33 At a hearing on the wrongful death claim, at which Wall
was present, the lead detective testified that he was actively
investigating Uta’s death as a homicide and that Wall was the
primary suspect. He further testified that “DNA samples had
been submitted to [a] lab for testing” and that those results were
still pending.
¶34 After this hearing, Wall was deposed and asked about his
whereabouts between September 26 and 27. During his
deposition, Wall offered new details to account for how his or
20151017-CA 12 2020 UT App 36State v. Wall
Uta’s DNA might have transferred to the areas tested by police.
For instance, police took a swatch of fabric from the driver’s side
back seat where Wall had pointed out a spot at the carwash.
Wall volunteered that, when he picked up the children from
Uta’s house the night before her death, Uta had opened the
driver’s side rear passenger door to hug the youngest daughter.
Wall also claimed, for the first time, that he had caught Uta
walking out of his garage later that night. Wall said he pursued
Uta and “[s]he turned around and hit [him] in the face” and
might have scratched him. He claimed that Uta had broken into
his basement “multiple times in the previous months,” but that
he never reported it to the police.
¶35 Although the DNA results were still pending, counsel
deposing Wall asked him, “Why is your DNA in Uta’s
bedroom?” He said he did not know if his DNA was there, but
that Uta had invited him into her bedroom before “to seduce
[him],” although he declined her advances. He could not
remember when she last invited him into her bedroom but said
that it could have been one or two months before her death.
¶36 Wall also testified in his deposition that Uta attempted
suicide once on their honeymoon in 1991 and again while she
was pregnant with their youngest son. But Wall said that he
never reported either suicide attempt 2 or helped Uta seek
counseling or treatment.
¶37 Finally, Wall gave a different version of events regarding
his whereabouts on September 27, 2011, than what he told the
detectives. This time, Wall explained that after allegedly chasing
Uta away and being hit by her in the face, he went back inside
his house to sleep. He woke up around 5:00 a.m. and decided to
go to the hospital to work on his patients’ charts but realized that
he forgot his identification and could not enter the hospital. Wall
2. Wall claimed to have told Uta’s father, but Uta’s father had
died before Uta and therefore could not corroborate this claim.
20151017-CA 13 2020 UT App 36State v. Wall
said he decided to go for a hike up a nearby canyon before the
sun rose and before going to the carwash facility and then to
work. Unlike the story he told at his police interview, this
version of events did not include Wall being at home that
morning with the two youngest children and the newly
purchased eggs before school, even though the youngest
children testified to that effect.
The Investigation
¶38 While Wall was getting psychiatric treatment in
September 2011, Uta’s body was sent to a medical examiner to
perform an autopsy. Although some of the officers believed
there could have been foul play and that her death appeared
suspicious, an investigator’s report provided to the medical
examiner said her death was “a probable suicide overdose.” The
medical examiner later testified that, had the “case been
presented . . . as a suspicious death or homicide,” he would have
taken more photographs of the body and conducted a more
thorough examination. The medical examiner noted “sharp force
injuries on her left wrist . . . in three separate locations,” a bruise
on her lip, an abrasion on her cheek, and a laceration to her
lower leg. Uta also had internal hemorrhages in her neck, which
could have been sustained by a “broad and/or soft blunt object
being applied in that location,” and petechiae (burst capillaries)
in her right eye, each of which were consistent with
strangulation. Uta had a near-lethal dose of Xanax in her system,
but there were no pill remnants in her stomach. The medical
examiner was “not looking specifically for an injection site
anywhere,” because the case was brought to him as a probable
suicide, but he testified that any of the injuries on Uta’s body
“could potentially obscure an injection site” if that was how the
Xanax got into her system. The medical examiner explained that
the nature of Uta’s wounds was “not like anything [he] had ever
seen in a suicide,” because they appeared to be defensive rather
than self-inflicted, and that he had concerns that the police were
“dealing with a homicide.”
20151017-CA 14 2020 UT App 36State v. Wall
¶39 After conducting the autopsy, the medical examiner
concluded that Uta’s cause of death was drowning but could not
determine the manner of death. Based on his concerns that the
manner of death may have been homicide, the medical examiner
asked the officers to meet with him to discuss his findings.
Because he could not determine how the Xanax got into her
system, he asked the officers if they were conducting further
investigation. The sergeant in charge of the case at that time
“basically [said] that we think this is a suicide, period.” The
medical examiner told the officers that he was “not going to call
this a suicide,” and that the manner of death was
“undetermined” based on what he knew. The medical examiner
explained that the scene of the crime was “suspicious,” that it
appeared “more consistent with homicide than anything else,”
and that “but for the Xanax” in Uta’s system, he “would have
certified the death as a homicide.”
¶40 A few weeks after the medical examiner performed the
autopsy, the investigation stalled. Between November 2011 and
November 2012, the boyfriend, an ex-boyfriend, the eldest son,
and some of Uta’s other family members kept pressing the police
to investigate the case as a homicide. Finally, in November 2012,
the investigation resumed in earnest.
¶41 A crime scene reconstructionist reviewed the photographs
taken by the investigators the night Uta’s body was found,
visited Uta’s house after it had been cleaned, and reviewed the
items collected from the scene. The reconstructionist determined
that Uta had been murdered and that the murderer had staged
the scene to look like a suicide. The reconstructionist, who had
special training and expertise in “blood pattern interpretation,”
analyzed the blood patterns on Uta’s comforter and fitted sheet
and concluded that a “violent struggle” occurred and that Uta
struggled “under a restraint.” The reconstructionist also
analyzed Uta’s bloodied tank top that had been folded and laid
over the side of the bathtub. Although there was one saturated
spot on the chest where it appeared Uta had held her bleeding
wrist against her body, there was “no hand transfer” of blood
20151017-CA 15 2020 UT App 36State v. Wall
onto the tank top where one would expect to see it if Uta had
removed the tank top herself. The reconstructionist opined that
the bloodstains in the bathroom under the windowsill and on
the sink appeared to have occurred while Uta was being pushed
into the bathroom. The bloodstains were not consistent with Uta
being “intoxicated and stumbling around her house on her own”
because there were no apparent patterns on the walls of
someone staggering or touching surfaces to get from the
bedroom to the bathroom.
¶42 Forensic testing also revealed that there were bloody
shoeprints in the bathroom and the bedroom and that there was
a bloody spot above Uta’s headboard. These blood stains
initially went undetected because they had been cleaned up
before the boyfriend discovered Uta’s body and first responders
arrived at the scene. A crime scene technician discovered these
bloodstains using a special chemical that changes color when it
comes into contact with blood protein, which helped to make the
“partially visible” or “faint” bloodstains in the bedroom and on
the bathroom floor more visible.
¶43 Unlike the faint bloodstains that were overlooked by the
first responders, dried-blood shoeprints had been immediately
apparent in Uta’s kitchen. The crime scene reconstructionist
explained that those stains would not have come from
“rehydrated blood” because if the blood had dried and a person
with a wet shoe stepped into the blood and started walking, that
person “might get flakes . . . [or] portions” of blood, but it would
not make a full bloody shoeprint. The reconstructionist
concluded that the evidence showed another person had been
present and attacked Uta and that “this scene was a homicide
that was staged to look like a suicide.”
¶44 Investigators searched to find where the Xanax may have
come from. Uta was never prescribed Xanax, she had never told
anyone she had taken it, and no prescription bottle for it was
found at her house. Even though Uta sometimes stored her
medication in film canisters, those canisters were always labeled.
20151017-CA 16 2020 UT App 36State v. Wall
Further, Uta kept a yearly “medicine calendar” in which she
dutifully documented the medications she took, the amount she
took, and her “level of wellness” related to those medications.
Nowhere on these calendars did Uta document taking Xanax.
¶45 On the other hand, Wall had twice prescribed himself .5
milligrams of Xanax following the divorce. And, just four
months before Uta’s death, Wall wrote a prescription for the
highest dosage of immediate release Xanax, which is 2
milligrams, and filled that prescription at a pharmacy that he
had never used before or since. Wall claimed that he filled this
prescription for his mother who lived in California, but in their
initial interviews with investigators, Wall’s parents could not
confirm whether they ever received such a medication.
¶46 At the crime scene, the investigators collected, among
other things, a pillowcase and scrapings from underneath Uta’s
fingernails to be tested for DNA evidence. Using different
techniques, investigators extracted DNA samples from each of
these items. The forensic analysis revealed that Wall was a
possible contributor to the DNA located on the pillowcase, but
Wall could not be included or excluded as a possible contributor
to the male DNA located under Uta’s fingernails. Uta’s ex-
boyfriend, the boyfriend, and the first responders were all
excluded as possible contributors to the DNA located under
Uta’s fingernails.
¶47 More than two years after Uta’s death, the State charged
Wall with murder. During the four-week jury trial, the State
presented the evidence detailed above. The jury also heard,
among other things, from two forensic pathologists who were
given Uta’s autopsy report with photographs, police reports,
crime scene photographs, crime laboratory reports, photographs
of Wall’s face taken on September 27, 2011, the report from
Wall’s eye doctor, the preliminary hearing testimony of the
medical examiner, and Uta’s healthcare reports. Both agreed that
Uta’s wounds to her wrists and leg were not self-inflicted and
were instead defensive wounds. They both determined that,
20151017-CA 17 2020 UT App 36State v. Wall
although there was a near-lethal dose of Xanax in her system, the
low level of Xanax in Uta’s stomach was consistent with either
the drug being injected into her body or swallowed as a slurry—
meaning that the pills had been crushed and mixed with a
liquid. Both of the forensic pathologists concluded that Uta’s
manner of death was homicide.
¶48 The jury convicted Wall of murder. Wall now appeals.
ISSUES AND STANDARDS OF REVIEW
¶49 Wall argues that the evidence of guilt was insufficient to
support the jury’s verdict “because the inference that [Wall]
killed [Uta] is less likely than the inference that [Uta] killed
herself, whether accidentally or intentionally.” “In considering
an insufficiency-of-evidence claim, we review the evidence and
all reasonable inferences drawn therefrom in a light most
favorable to the verdict.” State v. Jones, 2015 UT 19, ¶ 15, 345 P.3d
1195 (cleaned up). “We will reverse only when the evidence, so
viewed, is sufficiently inconclusive or inherently improbable that
reasonable minds must have entertained a reasonable doubt that
the defendant committed the crime of which he or she was
convicted.” Id. (cleaned up).
¶50 Wall next argues that the district court erroneously
admitted certain DNA evidence through expert testimony. We
review the district court’s decision to admit expert testimony
under an abuse-of-discretion standard, and “we will not reverse
a decision to admit or exclude expert testimony unless the
decision exceeds the limits of reasonability.” Walker v. Hansen,
2003 UT App 237, ¶ 12, 74 P.3d 635 (cleaned up).
¶51 Wall also argues that his trial counsel “was ineffective for
failing to object when the State mischaracterized the DNA
results” in closing argument. “An ineffective assistance of
counsel claim raised for the first time on appeal presents a
question of law. In such a situation, there is no lower court
ruling to review and we must decide whether the defendant was
20151017-CA 18 2020 UT App 36State v. Wall
deprived of the effective assistance of counsel as a matter of
law.” State v. Archuleta, 2019 UT App 136, ¶ 17, 449 P.3d 223(cleaned up).
ANALYSIS
I. Sufficiency of the Evidence
¶52 Wall argues that “the evidence is insufficient to exclude
reasonable doubt.” Specifically, he argues that “the State’s
construal of circumstantial evidence . . . that [Uta] was attacked,
restrained, and injected with Xanax, all without leaving restraint
marks on her body or any DNA evidence . . . was physically
possible,” but “it [was] not the most reasonable explanation.”
Instead, he claims that the most reasonable explanation is that
Uta’s death was an accident or a suicide.
¶53 To succeed on a sufficiency of the evidence challenge, the
appellant “has the burden to marshal the evidence in support of
the verdict and then demonstrate that the evidence is insufficient
when viewed in the light most favorable to the verdict.” State v.
Jones, 2015 UT 19, ¶ 68, 345 P.3d 1195 (cleaned up). On appeal,
we do not reweigh the evidence presented to the jury. “When
the evidence presented is conflicting or disputed, the jury serves
as the exclusive judge of both the credibility of witnesses and the
weight to be given particular evidence.” State v. Workman, 852
P.2d 981, 984 (Utah 1993). “Ordinarily, a reviewing court may
not reassess credibility or reweigh the evidence, but must
resolve conflicts in the evidence in favor of the jury verdict.” Id.We are thus restricted to “evaluat[ing] whether the evidence is
so inconclusive or inherently improbable that it could not
support a finding of guilt beyond a reasonable doubt.” Id.¶54 Wall concedes throughout his brief that “suicide and
homicide are at least equally probable.” He says that all of the
evidence is “consistent with homicide” but that the same
evidence is at least “equally consistent” with suicide and that
some evidence is “more consistent” with suicide. In making this
20151017-CA 19 2020 UT App 36State v. Wall
argument, Wall relies on language from State v. Cristobal, 2010
UT App 228, 238 P.3d 1096. In that case, we suggested that
“[w]hen the evidence supports more than one possible
conclusion, none more likely than the other, the choice of one
possibility over another can be no more than speculation.” Id.
¶ 16. But as our supreme court has since clarified, “the fact that
we can identify an ‘equally’ plausible alternative inference is not
nearly enough to set [a] verdict aside.” State v. Ashcraft, 2015 UT
5, ¶ 25, 349 P.3d 664. On appeal, “[t]he question presented is not
whether some other (innocent) inference might have been
reasonable,” but “simply whether the inference adopted by the
jury was sustainable.” Id. ¶ 27.
¶55 Wall argues that the jury’s verdict was not based on
reasonable inferences, but on speculation. He posits that the
“distinction [between reasonable inferences and speculation]
turns on whether there are equally likely interpretations of the
evidence.” Here, because “the evidence and inferences did not
preclude the reasonable alternative hypothesis presented by the
defense,” he contends that the jury’s verdict was based on
speculation, which does not constitute proof beyond a
reasonable doubt. (Quoting State v. Cardona-Gueton, 2012 UT
App 336, ¶ 11, 291 P.3d 847 (cleaned up).) Despite the broad
language used in some of our past opinions, “the law is well
established that the existence of one or more alternate reasonable
hypotheses does not necessarily prevent the jury from
concluding that a defendant is guilty beyond a reasonable
doubt.” Cardona-Gueton, 2012 UT App 336, ¶ 11 (cleaned up). “It
is the exclusive province of the jury to weigh the competing
theories of the case, in light of the evidence presented and the
reasonable inferences drawn therefrom, and to conclude which
one they believe.” Id. (cleaned up). Therefore, “despite the
existence of theoretically ‘reasonable’ hypotheses, it is within the
province of the jury to judge the credibility of the testimony,
assign weight to the evidence, and reject these alternate
hypotheses.” State v. Blubaugh, 904 P.2d 688, 694–95 (Utah Ct.
App. 1995). Indeed, “a finding that a defendant is guilty beyond
a reasonable doubt is necessarily a finding that any alternative
20151017-CA 20 2020 UT App 36State v. Wall
hypothesis of innocence presented at trial was not reasonable
under the jury’s view of the evidence.” Cardona-Gueton, 2012 UT
App 336, ¶ 12.
¶56 Consequently, it is not enough for Wall to show that the
evidence would have permitted a reasonable juror to accept the
defense’s theory that Uta’s death was an accident or suicide.
“These are fair arguments for counsel to present to the jury in
closing.” Ashcraft, 2015 UT 5, ¶ 24. But once the jury has rejected
the alternative explanation offered by the defense, “an appellate
court will reverse such a finding only where no reasonable juror
could have taken that view of the evidence.” Cardona-Gueton,
2012 UT App 336, ¶ 12. “The question presented is not whether
we can conceive of alternative (innocent) inferences to draw
from individual pieces of evidence, or even whether we would
have reached the verdict embraced by the jury.” Ashcraft, 2015
UT 5, ¶ 24. Instead, it is “simply whether the jury’s verdict is
reasonable in light of all of the evidence taken cumulatively,
under a standard of review that yields deference to all
reasonable inferences supporting the jury’s verdict.” Id.¶57 The jury’s determination that Uta was murdered is well
supported by the evidence admitted at trial. As to the crime
scene, multiple witnesses testified that there was evidence of a
“violent struggle.” Items throughout Uta’s bedroom were
knocked over onto the floor and the bed, even though there was
no blood pattern on the walls to suggest that Uta might have
caused the disarray by stumbling around the room on her own.
The blood patterns on Uta’s comforter and sheet showed that
Uta struggled “under a restraint.” The bloodstains under the
bathroom windowsill and sink were consistent with Uta being
pushed into the bathroom with blood on her hands. The lack of
hand-transfer bloodstains on Uta’s tank top suggested that she
had not removed it herself. And although the defense expert
drew different conclusions from this same evidence, the weight
to be given to such conflicting expert opinions is solely the
province of the jury. See State v. Berchtold, 357 P.2d 183, 186 (Utah
1960).
20151017-CA 21 2020 UT App 36State v. Wall
¶58 As to Uta’s injuries, she sustained defensive wounds on
her arms and on the back of one of her legs, suggesting that she
tried to defend herself from an attacker. She had hemorrhaging
in her neck and petechiae in her eye, each of which is consistent
with strangulation. She also had male DNA under her
fingernails, which is consistent with scratching an attacker.
¶59 Additional evidence supported the prosecution’s theory
that a second person left the home shortly after Uta had been
subdued. The blinds in Uta’s bathroom and bedroom—which
were normally open—had been shut, and bloody shoeprints in
those rooms had been wiped clean, as well as a bloody spot
above Uta’s headboard. In the kitchen, which had no blinds, no
effort had been made to clean up dried-blood shoeprints. The
prints did not match any of the first responders’ or the
boyfriend’s shoes. In any event, the reconstructionist testified
that Uta’s blood would have dried in the hours between her
death and the discovery of her body and that the prints were
inconsistent with the later transfer of rehydrated blood.
Evidence that someone had tracked fresh blood through the
kitchen around the time of Uta’s death and had tried to clean up
blood in those rooms where the activity could take place behind
closed blinds was strong evidence supporting the jury’s
conclusion that Uta was murdered.
¶60 Other evidence further undercut the defense’s theory that
Uta’s death was a suicide or accidental overdose. Without
exception, the witnesses who knew Uta testified that she was not
suicidal. To the contrary, she was excited about a breakthrough
at work, was looking forward to an upcoming trip with the
younger children, and was making plans up until the night
before her death. And although there was a near-lethal dose of
Xanax found in Uta’s system, there was no evidence that Uta
had ever been prescribed or taken Xanax, and no prescription
bottles or labeled film canisters for the drug were found at Uta’s
house. In addition, there were no pill remnants in her stomach
that would account for the concentration of Xanax in her system,
supporting the prosecution’s theory that Uta was either injected
20151017-CA 22 2020 UT App 36State v. Wall
with or forced to swallow a slurry containing a high
concentration of Xanax.
¶61 Two forensic pathologists reviewed all of the relevant
reports from the police, medical practitioners, and the autopsy
and testified that the cause of death was homicide. Even the
medical examiner, who had been told that Uta’s death was “a
probable suicide overdose,” found the evidence to be “more
consistent with homicide than anything else,” refused “to call
this a suicide,” and “would have certified the death as a
homicide” had it not been for the ambiguity created by the
Xanax in Uta’s system. The medical examiner’s uncertainty was
understandable because, as the crime scene reconstructionist
explained, “this scene was a homicide that was staged to look
like a suicide.” Based on all of this evidence, a reasonable
jury could find beyond a reasonable doubt that Uta was
murdered.
¶62 There was also sufficient evidence to support the jury’s
determination that Wall was the murderer. Wall had a
well-established motive to kill Uta. They were involved in an
acrimonious ongoing custody dispute, and those familiar with
him knew that Wall “despised” Uta. He often complained that
she made his “life difficult” and blamed her for his unhappiness.
Mere days before Uta’s body was discovered, Wall informed a
new acquaintance that he was “getting his kids back.” And after
her death, Wall told their youngest son that “maybe it’s better
that she’s dead.”
¶63 Wall also had the opportunity to commit the murder. He
could not account for his whereabouts around the time of Uta’s
death. In his first police interview, Wall told the detectives that
he had gone to a gas station near his house to purchase eggs
between 6:45 a.m. and 7:00 a.m. and then returned home to make
breakfast. But his older children indicated that he was already
gone when they awoke for school around 6:00 a.m. and had not
returned by the time the eldest son left for school at 7:30 a.m. In
a deposition more than a year later, he claimed that he woke up
20151017-CA 23 2020 UT App 36State v. Wall
early and went to the hospital to work on charts, even though a
hospital witness testified that doctors know that they cannot
access the medical records office before 8:00 a.m. Wall claimed
that he could not access the hospital because he had forgotten his
identification and then decided to go on a pre-dawn hike,
despite having left no word for his children, as had been his
practice. No one could corroborate his whereabouts between the
time the children went to bed the night before and 7:05 a.m. the
next morning when he was spotted driving his car some distance
from his house. 3 He later appeared for work disheveled and
wearing the same clothes as the day before as if he had not been
home to sleep or get ready for work. Not only did Wall have the
time and opportunity to commit the murder, the jury had ample
reason to find his evolving story incredible.
¶64 The lack of forced entry at Uta’s home also supported the
conclusion that the crime was not committed by a stranger.
When Uta’s body was discovered, the door to her house was
unlocked, even though Uta always locked it before bed. The
eldest son testified that Uta kept a spare key hidden outside the
house for the children and that the key was missing after Uta’s
3. On appeal, Wall makes much of the fact that the autopsy
report did not document any changes to Uta’s skin, known as
“washerwoman syndrome,” from having been immersed in
water for a long period of time. Wall argues that the absence of
such evidence conclusively proves that Uta’s death occurred
shortly before her body was found in the evening rather than
during the early morning hours when Wall had no alibi. But the
medical examiner testified that, although he did not note
washerwoman changes in his report, he had not been looking for
them because the death had not been presented as a possible
homicide. And there was conflicting testimony from defense and
State experts about whether washerwoman changes could be
seen in the autopsy photographs. The jury could reasonably
conclude that the apparent absence of washerwoman syndrome
was entitled to less weight than the defense believed it deserved.
20151017-CA 24 2020 UT App 36State v. Wall
death. The jury could reasonably infer that Wall knew of the
spare key and used it to enter the house on the night of the
murder.
¶65 Wall also had access to the drug used to subdue Uta. In
fact, he had recently written a prescription for the highest dose
of Xanax, purportedly for his mother who lived in California,
although she could not confirm receiving it. The jury could
reasonably conclude that Wall filled the prescription at a
pharmacy that he had not used before or since (and later feigned
ignorance of the drug) to make it harder to link him to the drug
he used in the course of killing Uta.
¶66 The jury could also reasonably conclude that Wall’s
behavior and statements showed consciousness of guilt. When
the police asked him if he killed Uta, he responded with
equivocal statements such as, “I don’t know, I don’t think I did
it,” “I don’t think I was there,” and “If I did it, I made a mistake,
and I am sorry. But I don’t think I did it.” When Wall was
released after the police interview, he was surprised and said,
“[B]ut I’m a monster.” When he returned home, Wall announced
to the children, “Uta’s dead and they think I did it.” Rather than
comfort the children, Wall acted “distraught,” curled into the
fetal position and cried, and forced the children to take care of
him because “he was scared he would do something he would
regret.” He kept calling himself a monster and repeatedly asked
the children, “What if I did it and I don’t remember?”
¶67 Furthermore, Wall volunteered implausible explanations
for physical evidence that might connect him to the crime. Even
before Uta’s body was discovered, Wall tried to explain the
scratch on his eye by telling everyone that he had recently
started sleeping on his porch and that his dog scratched him
while he slept. No one ever saw him sleep on the porch, and no
one had ever seen the dog scratch anyone. And to those who
testified, the scratch to Wall’s eye looked like it was caused by a
fingernail. Wall also had scratches on his arms and legs that he
quickly covered up when people noticed. When interviewed by
20151017-CA 25 2020 UT App 36State v. Wall
police, he was vague about the last time he had seen or touched
Uta and whether he might have been in her house around the
time of her death. He told the police that his cell phone was
stolen from his unsecured car that same day but later asked his
eldest son, “If the police found my phone [at Uta’s house] what
could I say to refute that?”
¶68 Significantly, Wall offered new explanations when he
knew that DNA test results were pending. When he was
deposed in the wrongful death lawsuit, Wall offered a new story
that would explain why his DNA might be found under Uta’s
fingernails. For the first time, Wall claimed that he had not only
seen Uta again after picking up the children on the night of her
death, but that the two of them had gotten into an altercation
and that she had struck him in the face. He also claimed that she
had once tried to seduce him in her bedroom, which could
explain why his DNA might be found at the crime scene. And
Wall took care to mention that Uta had leaned into the back seat
of his car the night before her death to give their daughter a hug,
touching the part of the seat that the investigators collected to
search for DNA evidence, although her DNA ultimately was not
found in that sample. The jury could reasonably infer that Wall
offered these explanations because he knew that the results of
the DNA testing could link him to the crime.
¶69 While this summary is by no means an exhaustive review
of all of the evidence supporting Wall’s guilt, it is more than
sufficient to demonstrate that the jury’s verdict was supported
by substantial evidence. This is not a case in which the evidence
was so inconclusive or inherently improbable that it could not
support a finding of guilt beyond a reasonable doubt. The State
presented sufficient evidence to support the jury’s conclusion
that Uta was murdered and that Wall was her murderer.
II. Admissibility of DNA Evidence
¶70 Wall next argues that the district court should have
excluded the DNA evidence that was extracted from Uta’s
20151017-CA 26 2020 UT App 36State v. Wall
pillowcase because “the State failed to make the threshold
showing that [the forensic laboratory’s] methodology was
reliable or reliably applied” under rule 702(b) of the Utah Rules
of Evidence. Rule 702(b) provides that “[s]cientific, technical or
other specialized knowledge may serve as the basis for expert
testimony only if there is a threshold showing that the principles
or methods that are underlying the testimony” are “reliable,”
“based upon sufficient facts or data,” and “have been reliably
applied to the facts.” Utah R. Evid. 702(b).
¶71 In applying rule 702(b), the district court “performs an
important gatekeeping function, intended to ensure that only
reliable expert testimony will be presented to the jury.” Gunn
Hill Dairy Props., LLC v. Los Angeles Dep’t of Water & Power, 2012
UT App 20, ¶ 31, 269 P.3d 980. But this function is “limited” to
“ensuring a minimal ‘threshold’ of reliability for the knowledge
that serves as the basis of an expert’s opinion” and must not
“displace the province of the factfinder to weigh the evidence.”
State v. Jones, 2015 UT 19, ¶ 26, 345 P.3d 1195 (cleaned up).
Although “the line between assessing reliability and weighing
evidence can be elusive,” appellate courts “must be mindful of
this important distinction because the factfinder bears the
ultimate responsibility for evaluating the accuracy, reliability,
and weight of the testimony.” Id. (cleaned up). “When
performing their gatekeeping function, judges should approach
expert testimony with rational skepticism. But the degree of
scrutiny that should be applied to expert testimony by trial
judges is not so rigorous as to be satisfied only by scientific or
other specialized principles or methods that are free of
controversy or that meet any fixed set of criteria fashioned to test
reliability.” Gunn Hill Dairy Props., 2012 UT App 20, ¶ 32
(cleaned up).
¶72 Before trial, Wall moved to exclude, among other things,
the DNA results from the pillowcase, arguing that he “should be
excluded as a possible contributor” because some alleles were
missing from the sample and because the “statistical probability”
calculated by the forensic laboratory was unreliable. The district
20151017-CA 27 2020 UT App 36State v. Wall
court held an evidentiary hearing to determine whether the
evidence and expert testimony met the minimum threshold of
reliability necessary for its admission.
¶73 At that hearing, the court heard testimony from two
experts from the forensic laboratory that conducted the DNA
tests and one expert for the defense. All of the experts testified to
DNA composition in general and forensic DNA testing. DNA is
made up of twenty-three pairs of chromosomes and is found in
most cells of the human body. Twenty-two of the chromosomal
pairs control non-sex traits (autosomal) and the twenty-third
chromosome is sex determining—either male or female. Except
for identical twins, no person has the same DNA as another
person. But only one percent of human DNA differs from person
to person based on short tandem repeats (STRs), which are
patterns of alleles at a certain locus within human DNA. “At
each given locus, you would expect to see two alleles because
you get one from your mother and one from your father.” But
sometimes there is only one allele at a given locus, which occurs
“when you get the same [allele] from both your mother and your
father.” Forensic DNA analysts focus on these patterns to
discover the identity of the source of the DNA.
¶74 When conducting an autosomal STR analysis, as was
done in this case, the forensic analyst targets sixteen of the
individualized STR locations along the twenty-two autosomal
chromosomes. There are five steps to the test: extraction,
quantification (determining how much DNA was isolated at the
targeted sixteen loci), amplification (creating copies of the DNA
sample by splitting the DNA “ladder” down the middle and
re-bonding the DNA to create a sufficient number of copies of
the sample for testing), the actual testing (using florescent dye
and an electrophoresis machine), and analysis.
¶75 The experts further explained that, during the testing
stage, the analyst injects the DNA with fluorescent dye and runs
it through an electrophoresis machine, which measures the
alleles’ fluorescence in “relative fluorescence units” (RFUs).
20151017-CA 28 2020 UT App 36State v. Wall
Then, a software program creates a graph of this data and
shows the “peaks” of each allele (i.e., the strength of the
fluorescence) at the sixteen tested loci. The peaks will appear
taller or shorter depending on how much DNA is present at that
allele and a taller peak means it “has more DNA.” If an allele
reaches a peak of fifty RFUs, then it has reached the “analytical
threshold” and the analyst can rely on that as a match of alleles
on that locus between the crime-scene sample and the possible-
contributor sample. If an allele’s peak is below fifty RFUs, it is
unclear whether the allele represents DNA or “background
noise.”
¶76 After providing this background, the analysts from the
forensic laboratory (the State’s experts) then testified directly to
the DNA samples and comparisons in this case. Relevant to the
sample collected from the pillowcase using the M-Vac process, 4
the State’s experts found that Wall’s entire autosomal STR
profile was present in that sample, but that three of the alleles
were detected below the analytical threshold. Because three
alleles did not meet the analytical threshold, the State’s experts
followed the laboratory’s policy to conduct a second
amplification test to see if the results were reproduced. The
second test produced the same results, 5 and the analysts
determined that Wall could not be excluded as a possible
contributor because a “repeat” event “gives more credence or
4. According to expert testimony, “[a]n M-Vac is basically like a
DNA wet vac[uum]” that has a “buffer” in it that will not
degrade or harm the DNA sample. The M-Vac soaks the targeted
area and then “sucks up the liquid.” The liquid is “run through a
series of filters” to extract the DNA from the targeted area for
forensic analysis.
5. One of the alleles that was above the analytical threshold in
the first test was below the threshold in the second test. But the
State’s experts explained in great detail why this could occur and
why it did not undermine their confidence in that allele.
20151017-CA 29 2020 UT App 36State v. Wall
reliability to that event.” The State’s experts explained that a
finding that a person cannot be excluded as a possible
contributor does not mean that the person is an “actual”
contributor. The defense’s expert disagreed with the laboratory’s
policy to retest the sample and concluded that any DNA sample
with an allele that does not reach the analytical threshold should
amount to an exclusion of the individual as a possible
contributor to the sample.
¶77 Following the hearing, the court issued a detailed written
order denying Wall’s motion to exclude the evidence. The court
explained that although the director of the forensic laboratory
determined that there was “questionable activity” with respect
to alleles on three loci within the DNA sample, it is the
laboratory’s policy “not to disregard it.” Instead, the director
determined that these results showed that Wall could not be
excluded as a possible contributor to the DNA sample because
the three loci where the alleles were recorded “below the
analytic threshold at the points where [Wall’s] alleles should
have been” showed that “it is possible these loci could contain”
Wall’s alleles based on the results of the repeat amplification.
The court found that many laboratories have similar policies and
that this particular laboratory’s “policy has been subjected to
third party assessment and has been approved by auditing
companies and at least one previous director of the lab.” The
court explained that although there was conflicting expert
testimony from the State and the defense regarding the
reliability of the results of this DNA sample, it was “not the
court’s role to decide which expert is correct,” and the court
determined that Wall’s “objection to this evidence is a matter of
weight rather than reliability.” The court concluded that the
State “made a threshold showing of reliability” and admitted the
evidence.
¶78 On appeal, Wall asserts that the forensic laboratory’s
“director . . . testified that the [laboratory’s] method of including
[Wall] as a possible contributor was unreliable.” But as articulated
above, the director testified that data below the analytical
20151017-CA 30 2020 UT App 36State v. Wall
threshold is “not reliable” with respect to conclusively including
or excluding an individual for statistical purposes, but that the
laboratory is “not going to put blinders on and just completely
ignore it.” This is because the presence of “some activity” or
“amplification” at these loci shows that something is “detected.”
The director explained that ignoring the below-threshold
information with respect to certain alleles and excluding an
individual as a possible contributor can make “exclusion
inaccurate.”
¶79 Wall also asserts that the “State did not demonstrate
that . . . [the laboratory’s] methods were reliable and reliably
applied to include [Wall] as a possible contributor.” But the
district court made specific findings that the laboratory’s policy
against excluding a person where a possible match is detected
below analytical thresholds is consistent with the practice of
other laboratories and that recent audits and third-party
assessments have approved this policy. The district court acted
well within its discretion in relying on this evidence to conclude
that the laboratory’s methods met the minimum threshold of
reliability.
¶80 We therefore conclude that Wall has not shown that the
district court exceeded its discretion when it admitted the DNA
evidence and expert testimony under rule 702(b) of the Utah
Rules of Evidence.
III. Ineffective Assistance of Counsel
¶81 Finally, Wall argues that his trial counsel was ineffective
in failing to object to the prosecutors’ statements in closing
argument that he asserts misconstrued the DNA evidence. 6 To
6. In his opening brief, Wall argued that trial counsel was also
ineffective for failing to object to certain statements elicited on
direct examination of the State’s expert witnesses. But at oral
argument, appellate counsel conceded that “the issue about the
(continued…)
20151017-CA 31 2020 UT App 36State v. Wall
prove that trial counsel was ineffective, Wall must show that
trial “counsel’s performance was deficient, in that it fell below an
objective standard of reasonable professional judgment,” and
“that counsel’s deficient performance was prejudicial.” State v.
Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92; see also Strickland v.
Washington, 466 U.S. 668, 687–88 (1984). The “failure to establish
either prong of the test is fatal to an ineffective assistance of
counsel claim.” State v. Torres, 2018 UT App 113, ¶ 14, 427 P.3d
550 (cleaned up). Consequently, “there is no reason for a court
deciding an ineffective assistance claim . . . to address both
components of the inquiry if the defendant makes an insufficient
showing on one.” Strickland, 466 U.S. at 697. Here, Wall has not
shown that his counsel performed deficiently.
¶82 When we review a claim of deficient performance, we
“presume[] that counsel has rendered adequate assistance,” and
“if the challenged act or omission might be considered sound
trial strategy, we will not find that it demonstrates inadequacy of
counsel.” State v. Kingston, 2002 UT App 103, ¶ 8, 46 P.3d 761(cleaned up). “When we review an attorney’s failure to object to
a prosecutor’s statements during closing argument, the question
is not whether the prosecutor’s comments were proper, but
whether they were so improper that counsel’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). This is
because “counsel for both sides have considerable latitude in
their closing arguments. They have the right to fully discuss
(…continued)
DNA is all about closing argument and closing argument only.”
This court asked the clarifying question, “Your [ineffective
assistance of counsel claim] is failure to object during closing
arguments, not the failure to object during the expert
testimony?” And appellate counsel responded, “That’s right.”
We therefore do not address whether trial counsel was
ineffective for failing to object during direct examination of the
State’s expert witnesses.
20151017-CA 32 2020 UT App 36State v. Wall
from their perspectives the evidence and all inferences and
deductions it supports.” Id. (cleaned up). “Moreover, a
prosecutor has the duty and right to argue the case based on the
total picture shown by the evidence.” Id. (cleaned up). Through
this lens, we review the three points in the State’s closing
arguments to which Wall claims any reasonably competent trial
counsel would have lodged an objection.
¶83 First, Wall challenges a statement made by the prosecutor
in the first part of the State’s closing arguments. The prosecutor
stated, “We have male DNA being found under [Uta’s] right-
hand fingernail clippings. I would submit to you it was as if
[Uta] was standing in this courtroom and pointing to [Wall] as
her killer.” Wall argues that this statement violated the court’s
order related to DNA evidence, which informed the parties that
they could not use the DNA evidence to show conclusively that
he was the contributor to the DNA, and therefore trial counsel
was deficient in failing to object to it. The prosecutor correctly
noted that male DNA was found under Uta’s fingernail, not that
Wall’s DNA was underneath her fingernail, but essentially told
the jury that the reasonable inference was that Wall’s DNA was
under Uta’s fingernail. Assuming without deciding that this
statement was improper, trial counsel may have based his
decision to forgo an objection on sound trial strategy, choosing
instead to undermine the State’s characterization of the
fingernail-DNA evidence in his own closing argument. This is
exactly what trial counsel did. Trial counsel argued that the
DNA evidence was “just meaningless,” it “doesn’t prove
anything” because Wall was excluded as a possible contributor
to some of the DNA samples, the DNA test results were
“unreliable,” and the DNA evidence “doesn’t put [Wall] in
[Uta’s] house.” We therefore conclude counsel was not deficient
in failing to object to the State’s characterization of the fingernail-
DNA evidence. See State v. King, 2012 UT App 203, ¶ 14, 283 P.3d
980 (explaining that counsel performs deficiently only where
there is no “conceivable tactical basis for counsel’s actions”
(cleaned up)).
20151017-CA 33 2020 UT App 36State v. Wall
¶84 Next, Wall argues that in the State’s rebuttal closing
argument, the prosecutor improperly told the jury that it was in
a better position to determine Uta’s cause of death because the
medical examiner who wrote the report “didn’t know about all
the DNA work” and that counsel should have objected to that
statement. The challenged statement was a direct response to
statements made by Wall’s trial counsel in his closing argument.
Specifically, Wall’s counsel made the following argument:
Here’s the part you guys have been waiting for, the
conclusion. There’s been a lot of evidence
introduced here. And we’ve heard a lot of evidence
about the relationship of two people, about their
lives, their mental states, their problems. You’ve
heard a lot of evidence about forensics, about shoe
identification, blood stains and pathology. But the
most critical testimony in this case, the most critical
input came from the state medical examiner.
He went on to explain that the medical examiner’s testimony
was key because it “indicated that [Uta’s death] was either a
homicide or suicide” and that the medical examiner’s “opinions
were affected by the presence of Xanax in [Uta’s] body.” The
defense theory was that the medical examiner’s inability to
conclude one way or the other “establishe[d] reasonable doubt.”
¶85 In rebuttal, the prosecutor opened with the following
response:
I’d like to start first with the last thing that was
said [in trial counsel’s closing argument], the
critical piece of evidence was the medical
examiner. And I want you to remember what the
medical examiner said because you all have a
better position than he did when he wrote that
report. He said he didn’t have [Uta’s] medical and
mental health records. He didn’t know about all
the DNA work. He didn’t know about all the
20151017-CA 34 2020 UT App 36State v. Wall
witnesses that [testified]. You, ladies and
gentlemen, know more about this case than he did
when he wrote his report . . . . You know
everything. You know all the witnesses who said
she was not suicidal, that she didn’t do this. And so
you can confidently find this individual guilty.
¶86 The prosecutor’s statement that the medical examiner
“didn’t know about all the DNA work” is an accurate
characterization of the evidence. The medical examiner testified
that he did not have all of Uta’s medical records, all of the police
reports or witness statements, the crime scene reconstructionist’s
report, the bloodstain expert reports, or “any of the DNA reports
that had been done.” Moreover, the prosecutor’s statement did
not suggest, as Wall claims, that the DNA evidence alone
conclusively established that Uta had been murdered. Instead,
the prosecutor pointed to “everything” the jury heard during the
trial that the medical examiner did not know, including not just
the DNA evidence, but also information about Uta’s medical and
mental health records and the testimony of numerous witnesses
offered during the four-week trial. In context, the prosecutor’s
argument neither misstated the evidence nor overemphasized
the importance of the admittedly inconclusive DNA evidence.
As a result, any objection made by trial counsel to this statement
would have been futile and did not constitute deficient
performance. See State v. Perez-Avila, 2006 UT App 71, ¶ 7, 131
P.3d 864 (“It is well settled that counsel’s performance at trial is
not deficient if counsel refrains from making futile objections,
motions, or requests.”).
¶87 Wall also argues that trial counsel should have objected to
the prosecutor’s statements about DNA found on Uta’s
comforter. One of the forensic laboratory’s analysts testified that
the laboratory collected DNA using different methods on five
areas of Uta’s comforter and submitted them for testing. Four of
the test results either excluded Wall or were inconclusive for
male DNA. The fifth test included Wall as possible contributor.
The analyst also conceded on cross-examination that, based on
20151017-CA 35 2020 UT App 36State v. Wall
the results of the test, all four children’s alleles are accounted for
[and Wall’s] alleles are accounted for” in that sample. Wall
contends that the prosecutor erroneously “insisted the DNA
must be from [Wall] rather than the Wall children” because the
State mischaracterized how the DNA samples were collected
from the comforter when it said that the DNA came from
“pinpoint location[s].”
¶88 As an initial matter, we note that trial counsel moved to
exclude all of the DNA evidence prior to trial based on
“inaccurate statistical evidence for DNA mixtures” but later
withdrew that motion with respect to the DNA collected from
Uta’s comforter. Trial counsel chose instead to advance the
theory at trial—through the defense’s own expert testimony and
through cross-examination of the State’s experts—that there was
a “possibility of all of the children being [contributors]” to some
of the DNA samples, including the comforter, and therefore “it’s
impossible to determine if [Wall’s] DNA is in that sample.” Trial
counsel reiterated this point in closing argument:
Now [the State] is probably going to talk to you
about if [Wall’s] and [Uta’s] allele charts are both
present, if their genetic patterns are both there,
then all the kids are going to be there too. Use your
common sense. You have four kids living in the
house and [Uta] living in the house . . . . Whose
DNA is going to be on the comforter? The people
living in the house.
....
And if you remember the hypothetical that I gave
to [the State’s expert] that if all the children used
the towel when they’d been out hiking or sweating
and had DNA placed in the towel . . . to a sufficient
degree that it could be tested, that even if [Wall]
was in Australia, . . . he would be found to be a
possible contributor.
20151017-CA 36 2020 UT App 36State v. Wall
¶89 In the State’s rebuttal closing argument, the prosecutor
reminded the jury that the two eldest children testified they had
“never been on [Uta’s] bed for a long time . . . [s]o their DNA
won’t be there.” He also said that the DNA was not “all over the
comforter” and was instead at “a very pinpoint location.” He
further explained:
That’s where you are going to find [Wall’s] DNA.
And it’s not going to be because the children were
there, because you need to have all four children to
be on that same spot. And you’re going to tell me
that at these particular locations all four children
went and equally touched that spot to make that
combination? That’s ridiculous. The more likely
and the real reasonable [explanation] is that one
person touched it, and it’s [Wall].
¶90 It is unclear why trial counsel would be deficient for
failing to object to the very argument that he forecasted for the
jury in his own closing argument. Trial counsel had already
presented a counterargument to the State’s theory by providing
the jury an alternative explanation for why certain DNA samples
could have included Wall’s DNA without Wall having ever
touched the relevant items. And trial counsel reiterated at many
points throughout trial and in closing argument that the DNA
evidence was “meaningless” because Wall was excluded as a
possible contributor to some of the DNA samples and that he
should have been excluded as a possible contributor to other
DNA samples because the laboratory’s methods were
“unreliable.” Trial counsel’s strategy related to this DNA
evidence was clear, and his strategic decision not to object to the
State’s alternative characterization of this same evidence was not
deficient.
¶91 Further, any objection to the prosecutor’s statement
would have been futile. See Perez-Avila, 2006 UT App 71, ¶ 7. Just
as trial counsel was free to argue that it was more reasonable
that the children’s DNA had combined on the comforter to
20151017-CA 37 2020 UT App 36State v. Wall
create a sample that happened to be consistent with Wall’s DNA,
the State was free to argue that it was more likely that a single
person, Wall, was the contributor. See Houston, 2015 UT 40, ¶ 76
(recognizing that “counsel for both sides have considerable
latitude in their closing arguments,” that “they have the right to
fully discuss from their perspectives the evidence and all
inferences and deductions it supports,” and that the State has
“the duty and right to argue the case based on the total picture
shown by the evidence” (cleaned up)).
¶92 Relatedly, Wall has not persuaded us that trial counsel
was deficient in failing to object to the prosecutor’s statement
that the DNA was extracted at a “pinpoint location” and that all
of the children would have had to touch that exact spot. The
State’s expert testified that the DNA was collected via M-Vac
only on the locations where there were bloodstains. Thus, the
samples were not drawn from the entire comforter, as Wall
suggests. And trial counsel could have reasonably determined
that objecting would have been futile and would have drawn
greater attention to that evidence. See Perez-Avila, 2006 UT App
71, ¶ 7; see also State v. Ott, 2010 UT 1, ¶ 39, 247 P.3d 344 (noting
“that avoidance of drawing the jury’s attention to certain facts or
over-emphasizing aspects of the facts is a well recognized trial
strategy”).
¶93 “The object of an ineffectiveness claim is not to grade
counsel’s performance.” Strickland v. Washington, 466 U.S. 668,
697 (1984). Instead, we “must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable
professional assistance.” Id. at 689. In this case, Wall has not
shown “that the challenged actions cannot be considered sound
strategy under the circumstances.” See State v. Torres, 2018 UT
App 113, ¶ 16, 427 P.3d 550 (cleaned up).
CONCLUSION
¶94 We conclude that there was sufficient evidence to support
Wall’s murder conviction. We further conclude that the district
20151017-CA 38 2020 UT App 36State v. Wall
court did not exceed its discretion in admitting certain DNA
evidence because the State made the threshold showing that the
forensic laboratory’s methods and policies were reliable. Finally,
Wall has not persuaded us that his trial counsel performed
deficiently in failing to object to certain parts of the State’s
closing arguments because the State did not mischaracterize the
evidence and the arguments fairly responded to the theories
argued by the defense.
¶95 Affirmed.
20151017-CA 39 2020 UT App 36