State v. Suhail

2023 UT App 15THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
KARRAR THAER SUHAIL,
Appellant.
Opinion
No. 20200284-CA
Filed February 9, 2023
Third District Court, Salt Lake Department
The Honorable Todd M. Shaughnessy
No. 161913371
Andrea J. Garland, Attorney for Appellant
Sean D. Reyes and Karen A. Klucznik, Attorneys
for Appellee
JUDGE RYAN D. TENNEY authored this Opinion, in which JUDGES
MICHELE M. CHRISTIANSEN FORSTER and DAVID N. MORTENSEN
concurred.
TENNEY, Judge:
¶1 At the close of a several-day trial, a jury convicted Karrar
Suhail of murder, aggravated burglary, aggravated robbery, and
obstructing justice. On appeal, Suhail challenges his convictions
on several grounds, and he also asks for a rule 23B remand for
factual development of an ineffective assistance of counsel claim.
For the reasons set forth below, we affirm his convictions and
deny the request for a remand.
State v. Suhail
BACKGROUND1
The Murder
¶2 For at least four years, Suhail was addicted to oxycodone.
He often bought pills from Victim, who had prescriptions for
alprazolam (Xanax), methadone, and oxycodone and would then
sell his pills to Suhail and other local customers. When Suhail took
the pills, he would be “calm and relaxed.” But when he didn’t get
the pills, he would “act out” and become “upset” and
“[a]gitated.”
¶3 Suhail’s drug use created problems in his relationship with
his ex-girlfriend (Ex-Girlfriend). They had dated on and off for
about seven years and had one child (Child) together. Suhail
sometimes helped financially with Child, but he “wasn’t very
dependable,” and his support was “never consistent.”
¶4 On Thursday, December 8, 2016, Ex-Girlfriend took Child
to see Suhail. Suhail became “emotional” during this visit when
Ex-Girlfriend told him that she had recently had a miscarriage.
After the visit, Ex-Girlfriend took Suhail to his brother’s
restaurant (the Restaurant) and a nearby gas station to buy him
cigarettes. At the gas station, they had an argument about their
relationship. Suhail was “frustrated” that another man was
texting Ex-Girlfriend, and Ex-Girlfriend told Suhail that she
“didn’t want to be with him anymore.” Ex-Girlfriend took Suhail
back to the Restaurant, but she returned at about 10:00 p.m. that
1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict and present conflicting evidence
only as necessary to understand issues raised on appeal.” State v.
Archuleta, 2021 UT App 66, n.1, 492 P.3d 801 (quotation
simplified).
20200284-CA 2 2023 UT App 15State v. Suhail
night to get food. Suhail asked her to give him a ride to Victim’s
apartment, and she dropped him off at Victim’s around 10:20 p.m.
¶5 Victim’s friend (Friend) was at Victim’s apartment when
Suhail arrived. Suhail and Victim went into a separate room and
spoke privately for about five minutes. During that conversation,
Suhail bought a pill from Victim for $20. Victim also “fronted”
Suhail a second pill.2 After getting the pills, Suhail left Victim’s
apartment and went to a hookah lounge; while there, he borrowed
$20 from somebody so that he could pay Victim back for the
fronted pill.
¶6 After Suhail left Victim’s apartment, Friend took Victim to
a nearby gas station for a soda. They then went back to Victim’s
apartment, after which Friend left. Around 11:20 p.m., Victim
texted Friend, asking if he made it home. Meanwhile, Suhail
headed back to Victim’s apartment so that he could pay for the
fronted pill. Around 11:30 p.m., one of Victim’s customers
(Customer) called Victim to see if he could come get pills. Victim
replied that Customer needed to hurry because he had another
customer coming. Customer drove to Victim’s apartment, parked
across the street, and tried to call Victim, who was no longer
answering his phone. Customer sat in his car for 20 to 25 minutes
before he received text messages from Victim. The texts—which
started arriving at 12:22 a.m. on Friday—read, “I left I will be back
in 30 minutes” and “Brotherdon’tcome.”3 Customer thought that
this second text was odd because Victim couldn’t spell very well
2. This use of “front” is commonly understood to mean
“[t]o buy something for someone with anticipation of being paid
back.” Front, Urban Dictionary, https://www.urbandictionary.co
m/define.php?term=front [https://perma.cc/J7A3-LLMX].
3. With respect to these and the other texts recounted in this
section, we’ve left the spelling and formatting unaltered from the
originals.
20200284-CA 3 2023 UT App 15State v. Suhail
in English, so he typically used the voice-to-text feature when
sending text messages. But the “Brotherdon’tcome” message was
oddly spaced, indicating to Customer that it had been typed
manually and not with the voice-to-text feature. Moreover, Victim
didn’t send text messages very often; he would usually just text
“Call me” and then have a phone conversation.
¶7 Customer replied quickly to Victim’s text messages and
then waited for a response. About 20 minutes later, Victim texted
back, saying that he had walked to a nearby gas station and asking
Customer to meet him there. Customer thought this was a bit
unusual because Victim usually didn’t walk places, but he headed
to the gas station anyway. After waiting awhile, he realized
Victim wasn’t there, so he texted Victim and asked if he was at the
gas station. Victim replied, “Yes cine,” and “Are u comeing,” but
Customer waited for about 15 minutes and never saw him.
Customer then drove back to Victim’s apartment and again
parked across the street.
¶8 While sitting in his car, Customer looked at Victim’s
apartment and saw Suhail “coming out of the door.” Suhail “shut
the door behind him and just looked left and right and then
walked off at a fast pace.” Suhail was wearing “a hoodie” and
“red shoes.”4
¶9 Shortly after observing Suhail leave Victim’s apartment,
Customer received a phone call from Suhail. During their
4. At trial, the detective assigned to the case (Detective) testified
that Customer told law enforcement that Suhail’s shoes were
“[r]ed tennis shoes” and “probably Wal-Mart [brand] or
something.” Also at trial, Customer said that Suhail’s shoes were
“[s]imilar to” Vans. The record, however, is somewhat unclear
about whether Customer meant he had seen Suhail wearing Vans
before the night of Victim’s death or whether he meant that Suhail
was wearing Vans that night.
20200284-CA 4 2023 UT App 15State v. Suhail
conversation, Customer told Suhail that he thought he saw him at
Victim’s and asked if Suhail had any pills. Customer was hoping
to get pills from Suhail since Victim wasn’t answering his phone.
Suhail told Customer that he had been at home and that he wasn’t
the person that Customer saw. But Suhail said he had pills, and
the two men arranged to meet up “[l]ater that same day” so that
Customer could get the pills. Customer went home and tried
calling Victim a few more times, but he eventually gave up
because Victim was not answering.
¶10 That same morning—Friday, December 9—Suhail called
Ex-Girlfriend at 7:09 a.m. They agreed to meet up that day so that
Suhail could give Ex-Girlfriend some money and other items for
Child. Ex-Girlfriend went to work, and during her lunch break
she met up with Suhail. She took him to pay some of his bills, and
they went to the Restaurant, where he gave her approximately
$200. Sometime that day, Suhail also gave Child a computer
tablet, a baseball bat, and a baseball glove.
¶11 Ex-Girlfriend believed that Suhail had money because he
sold a car (a Mercedes, possibly), but she didn’t know any details
about the sale, such as who bought the car, how much it sold for,
or when the sale occurred.5 While they were together that day, she
also thought that Suhail was “out of it” and seemed “like a
zombie.” Suhail was “stooped over,” “had difficulty walking,”
“couldn’t keep his eyes open[],” and was “slurr[ing] his words.”
Ex-Girlfriend believed that he was high—“[h]igher than [she’d]
seen him before”—and asked him what was going on. He said
that he hadn’t slept. Girlfriend also noticed what looked like a
5. At trial, Friend testified that he bought a Mercedes from Suhail
“either a month or a couple of weeks” before Victim’s death. He
thought he paid Suhail $1,500 or $1,700 for it.
20200284-CA 5 2023 UT App 15State v. Suhail
“hickey” on Suhail’s neck. When she asked him about it, he “said
that he had got [it] in a fight.”6
¶12 That day, Suhail bought new clothing, including a new
coat and boots. Suhail went to other stores that day too and made
several purchases, paying with cash each time. Around 9:00 or
10:00 a.m., Suhail went to a smokeshop and bought cigarettes. He
asked the employee working the front counter (Employee) when
the store’s owner (Owner) would be in. Suhail wanted to talk to
Owner about purchasing a knife. That afternoon, Suhail came
back to the shop and purchased a small “[s]port knife.” Sometime
during one of these visits to the smokeshop, Suhail asked
Employee for change for a $100 bill.
¶13 Around 5:00 p.m., a woman called Friend and said Victim
wasn’t answering his door. Friend went to Victim’s apartment
and saw Victim’s neighbor (Neighbor). Friend tried to open
Victim’s door, but it was locked. Neighbor, who was drunk, began
yelling at Friend and telling him not to open the door. But Friend
was worried about Victim, so he asked another neighbor to call
the police. While they waited for the police, Neighbor suggested
that they should try to open Victim’s back door. Neighbor jumped
over the fence into Victim’s backyard and tried to push the door
open. Neighbor then started screaming that Victim had been
killed. Police soon arrived, and they had to force Victim’s back
door open because Victim’s body was against the door.
¶14 Later that night, Ex-Girlfriend, Child, and Suhail went to
the Restaurant to have dinner with some members of Suhail’s
family. Suhail’s brother asked Ex-Girlfriend to run an errand for
him; she agreed, and Suhail went with her. During this drive,
Suhail had a phone conversation with somebody. Ex-Girlfriend
6. On cross-examination at trial, Ex-Girlfriend said she thought
Suhail was lying when he said that he got the mark from a fight
and that it wasn’t a hickey.
20200284-CA 6 2023 UT App 15State v. Suhail
didn’t know what the conversation was about because Suhail was
speaking Arabic, which she doesn’t speak, but when the phone
conversation ended, Suhail told her that Victim had been stabbed.
The two also drove past Victim’s apartment while they were out
and saw several police officers outside. Suhail asked Ex-Girlfriend
if she “would keep in contact with him if he were to get locked up
for 25 years.” This conversation started because she was “trying
to encourage him to stop using drugs,” but she still thought this
question “was a little weird.” Suhail also asked Ex-Girlfriend
something like, “[D]o you think I would do that?” When the
prosecutor (Prosecutor) asked her about this question at trial, she
said that she thought that he was asking about Victim’s murder.7
When Suhail and Ex-Girlfriend completed the errand,
Ex-Girlfriend took Suhail to his mother’s apartment and then
went home.
¶15 Later that night, Customer and Suhail met up. Customer
bought two pills from Suhail, and they discussed Victim’s death.
Customer—who had previously gone to Victim’s apartment and
talked to the police when he found out what happened—was sad
and upset. But Suhail seemed “very calm.” Customer began to
suspect that Suhail was involved in Victim’s murder, so he
confronted him. Suhail “arrogantly” denied any involvement and
dismissed the confrontation as though Victim’s death “wasn’t an
important subject to him.”
7. On cross-examination at trial, Ex-Girlfriend agreed that the
conversation about Suhail’s drug use started before they saw the
police. And she testified that she couldn’t remember whether the
question came before or after seeing the police. But on redirect,
Prosecutor directed Ex-Girlfriend to review the transcript of her
preliminary hearing testimony, and she clarified that Suhail made
the comment as they were driving past Victim’s apartment.
20200284-CA 7 2023 UT App 15State v. Suhail
The Investigation
¶16 An autopsy later showed that Victim had been stabbed 39
times. And while police found a few knives in the apartment,
none appeared to be the murder weapon. When the police
searched Victim’s apartment, they didn’t find any pills or money,
nor did they find Victim’s wallet or phone.
¶17 One of the responding officers said there was “blood
everywhere [he] looked.” From this and other evidence at the
scene, it looked to officers like there had been a fight. Also, based
on how dry the blood was when Victim’s body was discovered,
officers believed that Victim likely died late on Thursday the 8th
or early on Friday the 9th.
¶18 When the forensics unit used a chemical spray to look for
shoeprints, they found two shoeprints in the apartment. One of
the shoeprints matched Victim’s shoes, but the police were not
initially able to identify the shoes that made the second shoeprint.
The forensics unit and police also attempted to collect fingerprint
and DNA evidence, but these attempts were ultimately
“[un]successful.”
¶19 Officers also found a bottle of “red and gooey” liquid
in Victim’s kitchen. The liquid was pigeon food (Victim had a
pigeon coop in his backyard), and the liquid was not only in
the bottle, but also on the kitchen counter and “around the
kitchen.”
¶20 Law enforcement requested a “ping” of Victim’s phone. At
trial, there was testimony that a ping uses GPS technology and
that it can narrow a phone’s present location “down to 3 meters.”
When law enforcement pinged Victim’s phone on December 10th,
it was in Ammon, Idaho. Victim’s phone made a call in Ammon
and then went dead. An Idaho sheriff’s department went to the
20200284-CA 8 2023 UT App 15State v. Suhail
location of the ping and found five parked cars with Utah license
plates.8
¶21 Within a week, Suhail was arrested on unrelated charges
while riding in a friend’s car. At the time of this arrest, Suhail was
sitting in the front passenger seat, and police discovered 40 Xanax
pills in the car door next to Suhail’s seat. They also found a
“handful of receipts” in his “immediate personal space” and
“over $1,000 on [his] person.” The receipts were all from cash
purchases that had been made after Victim’s murder. The police
also seized Suhail’s phone.
¶22 Detective interviewed Suhail shortly after his arrest.
The interview lasted seven hours, and Suhail appeared to
be under the influence of drugs. Throughout the interview,
Suhail denied having anything to do with Victim’s murder.
He claimed that on the night of the murder, he actually went
to Victim’s apartment at 7:00 p.m. (not later in the evening as
other witnesses later testified), and that once there, he
purchased one pill from Victim for $20 and that Victim
fronted him a second pill. Suhail said he went to a hookah
lounge next and borrowed $20 from somebody to pay for the pill
Victim fronted him. Suhail said that around 10:00 p.m., he
went back to Victim’s to pay for the fronted pill, but that he
left when Victim didn’t answer the door. Suhail also claimed
that he had cash on him when arrested because he sold a car
to Friend.
¶23 After interviewing Suhail, Detective looked through
Suhail’s phone and discovered a photo that Suhail took of himself
8. No explanation was ever provided for why Victim’s phone
would be in Ammon, Idaho.
20200284-CA 9 2023 UT App 15State v. Suhail
two months before Victim’s death. In the photo, Suhail was
wearing red Asics Gel Resolution 5 shoes.9
¶24 Detective also investigated Suhail’s cell phone activity.
This examination showed that at 11:05 and 11:06 p.m. on
Thursday the 8th, Suhail called Neighbor, but the calls were very
short, indicating to Detective that Neighbor didn’t answer. The
next activity recorded on Suhail’s phone was an outgoing call to
Customer at 1:04 a.m. on Friday the 9th. At 3:28 a.m., Suhail texted
Victim asking if he could “please come get couple of them.”
Around 4:00 a.m., Suhail texted another drug dealer, “I have to
sell thos 30s tall I get the 600$ do you want them g?” And at
6:47 a.m., Suhail texted the drug dealer again, saying, “Bro
remember I have 240 30s in there and 80 zany.” At trial, Detective
testified that “30s” means “30-milligram oxycodone” and “zany”
means “2 milligram[] Xani bars.” For the next few hours, Suhail
continued to text the drug dealer about “zany” and “30s.”
¶25 Detective was also able to collect Suhail’s and Victim’s “call
detail records,” which he described as “a capture of what [a] cell
phone does” and what phone towers it connects to and at what
times. Detective explained that, in essence, the records can
provide the “general location” of a phone, but unlike GPS
technology, these records can’t provide an exact location. Between
midnight and 1:00 a.m., Victim’s phone was in the general vicinity
of his apartment. The phone turned off around 1:00 a.m., turned
back on at 2:27 a.m., and received two text messages while it was
in the general vicinity of Suhail’s mother’s apartment. As for
Suhail’s phone, until about 1:40 a.m., it appeared to be in the
general vicinity of Victim’s apartment. Starting around 1:40 a.m.,
9. Suhail reportedly lived with his mother, and law enforcement
searched her apartment, as well as Suhail’s brother’s apartment,
for Asics Gel Resolution 5 shoes. They never found that model of
shoe.
20200284-CA 10 2023 UT App 15State v. Suhail
Suhail’s phone was connecting to towers in the general vicinity of
his mother’s apartment.
¶26 Based on the findings of its investigation, the State charged
Suhail with murder, aggravated burglary, aggravated robbery,
and obstructing justice.
Suhail’s Motion to Exclude
¶27 Officers sent a photograph of the unidentified shoeprint
from the crime scene to a forensic scientist (Technician) who
specializes in “footwear examination.” They asked her to identify
the type of shoe that left the unidentified shoeprint. Technician
ran the shoeprint through a database that stores numerous
photographs of shoe outsole patterns.10 Technician was unable to
find a match in the database, but she did see Asics shoes in the
database that had a similar outsole pattern. Because of this, she
went to the Asics website, looked at its shoes, and determined that
the shoeprint in question matched the outsole of the Asics Gel
Resolution 5 shoe. She then submitted an initial report to law
enforcement identifying that model of shoe as the likely creator of
the shoeprint.
¶28 Technician also contacted Asics, and its representatives
told her that the Asics Gel Resolution 5’s outsole is unique to that
model of shoe and that Asics does not license its outsole patterns
to other companies. Asics also provided her with blueprints and
diagrams for every size of Asics Gel Resolution 5 shoes that it
manufactured. Using those blueprints, Technician estimated that
the shoe responsible for creating the shoeprint was a men’s size
9.5 to 11.5 or a women’s size 11 to 12. But she was “[n]ot very”
10. A shoe’s outsole is “[t]he exposed part of the sole that is [in]
contact with the ground.” Anatomy of the Shoe, Shoe Guide,
https://www.shoeguide.org/shoe_anatomy/ [https://perma.cc/T2
4Z-MHHA].
20200284-CA 11 2023 UT App 15State v. Suhail
confident in this estimate because she had “no knowledge” or
“experience” in making size estimates. Moreover, the blueprints
were two-dimensional, while the shoeprint was
three-dimensional and created by a shoe in motion.
¶29 The State acquired two pairs of Asics Gel Resolution 5
shoes—a size 14 and a size 10—and sent them to Technician for
comparison. The shoes were not marked as men’s or women’s
shoes. Unbeknownst to Technician, the size 10 was a women’s
size 10. Technician concluded that neither of these shoe sizes
matched the size of the shoe that made the shoeprint at the scene.
¶30 Before trial, Suhail’s counsel (Counsel) moved to “exclude
any bloody footprint evidence.” Counsel explained that the State
was seeking
to admit evidence that (1) a partial bloody footprint
was found at the scene of the homicide; (2) an expert
will testify that the shoe that made the partial
bloody shoeprint at the scene was [a] men’s size 9.5
to an 11;[11] (3) the expert will testify that the shoe
print tread belongs to an ASICS running shoe; (4)
Mr. Suhail was seen . . . wearing an ASICS shoe that
has a similar tread to the shoe print found at the
scene of the homicide[;] and that (5) Mr. Suhail’s
shoe size is a men’s size 8.12
11. Although Suhail’s motion stated the estimated size range was
“9.5 to an 11,” Technician’s testimony at trial was that the shoes
were size 9.5 to 11.5.
12. From the record, it is not clear when Technician compared the
size 14 and size 10 shoes to the shoeprint. Because Suhail’s motion
to exclude did not mention these example shoes, it appears that
(continued…)
20200284-CA 12 2023 UT App 15State v. Suhail
¶31 Counsel argued that this evidence should be excluded as
irrelevant under rule 401 of the Utah Rules of Evidence because
there was no “connection between the shoe prints found at the
scene and the shoes owned by” Suhail. Counsel further argued
that although Technician matched the shoeprint’s outsole to a
model of shoe that Suhail owned, Suhail’s shoe size (men’s 8) was
much smaller than Technician’s estimated size range (men’s 9.5 to
11.5). According to Counsel, this made Technician’s testimony
irrelevant because Suhail could not have created the shoeprint at
the scene.
¶32 Alternatively, Counsel argued that the evidence should be
excluded under rule 403 of the Utah Rules of Evidence. He
contended that the jury would be confused and misled if the State
was allowed to present evidence that Suhail owned the same
model of shoe that left the shoeprint at the scene, despite its “own
expert’s testimony that the print belonged to a much larger shoe.”
¶33 In its opposing memorandum, the State clarified that it did
not intend to ask Technician “to testify as an expert in calculating
shoe sizes from footwear impressions.” It further clarified that
Technician was “neither trained nor certified in this area” and that
her size estimates “would likely not meet the standards of rule
702.” See Utah R. Evid. 702. But in citing State v. Yalowski, 2017 UT
App 177, 404 P.3d 53, the State argued that Technician’s outsole
comparison was admissible as lay testimony under rule 701 of the
Utah Rules of Evidence. See id. ¶¶ 32–39 (holding that a forensic
technician’s outsole comparison “was proper opinion testimony
under rule 701”).
¶34 At a hearing on the motion to exclude, Prosecutor stated
that Technician was not qualified to offer an opinion on the size
of shoe that left the shoeprint. Prosecutor also explained that the
Counsel did not know about the comparison or that the
comparison had not yet occurred.
20200284-CA 13 2023 UT App 15State v. Suhail
State had an example size 14 pair of Asics Gel Resolution 5 shoes.
And later in the hearing, he referenced a second pair of example
shoes, which he thought were “perhaps” a men’s size 8.5.
Prosecutor did not otherwise elaborate on these example shoes or
discuss Technician’s conclusions about them. But Prosecutor did
clarify that the State was intending to introduce those example
shoes at trial so that the jury could examine their outsoles.
¶35 In response, Counsel argued that if Technician was a lay
witness, she shouldn’t be able to testify about information she
learned from Asics, such as how it doesn’t license its designs to
other companies. See Utah R. Evid. 701 (stating that opinion
testimony by a lay witness must be “rationally based on the
witness’s perception”). The court asked Prosecutor how he
intended to admit Technician’s testimony that Asics told her that
it doesn’t “license the [outsole] design to anybody else and it was
only used on that particular model of shoe.” Prosecutor
responded that he was “not strongly inclined to try to go that
avenue.”
¶36 In the alternative, Counsel argued that if Technician was
ultimately allowed to testify about her outsole comparison, he
should then be allowed to ask her about her size estimates.
Counsel explained that he wanted to argue that Suhail wore a
men’s size 8, which fell outside Technician’s estimated size range.
The court responded, “I suppose you can do what you want with
it.”
¶37 The court denied Suhail’s motion to exclude. It stated that
the “evidence is sort of functionally equivalent to the evidence
that the court in Yalowski said was admissible under [rule] 701.”
When Counsel asked for clarification on what type of witness
Technician would be, the court explained that she would “be
offering lay opinion testimony.”
20200284-CA 14 2023 UT App 15State v. Suhail
The Trial
¶38 The case proceeded to a five-day jury trial. The State called
an officer who responded to the crime scene, Ex-Girlfriend,
Friend, Technician, Customer, Employee, Neighbor’s wife,
Detective, and Owner. The witnesses testified to the events as
explained above. Below, we elaborate on three additional aspects
of the trial that are relevant to this appeal.
1. Shoeprint Evidence
¶39 After jury selection, the parties asked the court to clarify its
earlier ruling on Suhail’s motion to exclude the shoeprint
evidence. The State believed that Technician was allowed to
testify that the shoeprint from the crime scene matched the
outsole of the Asics Gel Resolution 5 (i.e., the outsole comparison)
but that she was not allowed to testify about her size estimates.
Counsel, however, thought he was allowed to bring up the size
estimates in cross-examination. The court told the parties it would
review the hearing transcript and resolve the dispute before
Technician testified.13
¶40 The following day, the attorneys and the court again
discussed Technician’s testimony. The court referred to
Technician as “the expert, the 701 expert, the lay expert.”
Prosecutor stated that Technician would be “testifying as an
expert in the area of . . . footwear impression examination.” But
he argued that she wasn’t qualified to testify about the size
estimates, so he asked that any substantive evidence about the
size be prohibited. And he also anticipated Technician being able
to testify that she received two example shoes: “a men’s size
fourteen and a men’s size eight and a half.” Counsel pushed back,
13. The hearing on Suhail’s motion to exclude was in August 2019.
The trial was in November 2019, meaning there was about a
three-month gap between the court’s initial ruling and trial.
20200284-CA 15 2023 UT App 15State v. Suhail
however, arguing that the State had presented Technician as a lay
witness, not an expert witness, and as a result, Technician was not
allowed to “rely on information given to her by [Asics] because
that would be hearsay since she’s not a 702 expert.” He also
argued that the State shouldn’t be allowed to present only the
favorable aspects of Technician’s findings. Because Technician
estimated that the shoeprint was made by a men’s size 9.5 to 11.5
shoe, Counsel intended to introduce evidence that Suhail wore a
size 8 and then argue that by Technician’s own estimates, Suhail
could not have created the shoeprint. At the close of this
discussion, the court ruled that Counsel could ask Technician
about the size estimates.
¶41 After this clarification and ruling, Technician testified, and
she started by describing how she makes outsole comparisons. As
Technician was explaining how she uses a database to find
potential matches, Counsel objected. In a sidebar discussion,
Counsel argued that the State’s position had been that Technician
was a lay witness and not an expert witness and that Technician
should therefore not be allowed to testify about the database
because it was hearsay. Prosecutor responded that Technician
was “an expert in latent print examination” but was not an expert
in “size estimation.” The court asked if Technician was disclosed
before trial as an expert witness, and Prosecutor responded,
“Yes.” Counsel did not affirm or deny Prosecutor’s
representation, but he continued to argue that the State had
always said that Technician was a lay witness. The court appeared
to agree with Prosecutor, and it overruled Counsel’s objection.
¶42 Technician then explained how she made the outsole
comparison. She also stated that she didn’t find any other model
of shoe that had a matching outsole to that of the shoeprint. And
she further testified that Asics representatives had told her that
Asics does not license its shoe molds to other companies and that
the outsole of the Asics Gel Resolution 5 is unique to that model
20200284-CA 16 2023 UT App 15State v. Suhail
of shoe. Counsel did not object to Technician’s testimony that
Asics does not sell its shoe molds.
¶43 Prosecutor then asked Technician about the size estimates.
She explained that Asics sent her blueprints for every size of Asics
Gel Resolution 5 shoes that it manufactured. Using those
blueprints, she said that the shoe responsible for creating the
shoeprint at the scene “could potentially be” a men’s size 9.5 to
11.5 or a women’s size 11 to 12. But Technician said she was “[n]ot
very” confident in this estimation. This was because she had
“never looked at blueprints from shoes before.” Moreover, she
explained that it’s difficult to compare a two-dimensional
blueprint to a three-dimensional shoeprint because a blueprint is
“flatter and larger” and contains the “entire outsole and the sides”
of the shoe, whereas the actual outsole “roll[s] up” the sides of the
shoe.
¶44 The State admitted the example Asics Gel Resolution 5
shoes into evidence, and Technician testified that neither shoe size
made the impression at the scene. She explained that the size 14
shoes were “extremely large and could completely be eliminated,
but the [size 10 shoes] were closer to the relative size of the shoe
impressions found at the scene.” Prosecutor asked her if the size
10 shoes were larger or smaller than the shoeprint at the scene,
but Technician said it was “really hard for [her] to say
definitively” and that she didn’t “know either way.” But
Prosecutor pressed her for an answer, and she said that the
shoeprint “looked slightly larger than” the size 10 shoes.
¶45 The example shoes were labeled as size 14 and size 10, and
they were not labeled as men’s or women’s shoes. Technician
stated that she did not know if the shoes were men’s or women’s
shoes. But she testified that a women’s shoe is typically one and a
half numerical sizes larger than a men’s shoe of the same actual
size. So, for example, a women’s size 10 is the equivalent of a
men’s size 8.5.
20200284-CA 17 2023 UT App 15State v. Suhail
¶46 On cross-examination, Counsel asked Technician if she
was “told that [Suhail] wore a size eight.” Technician replied, “I
was never told anything about what the defendant wore.”
Counsel also asked Technician to confirm her earlier testimony
that the shoeprint from the scene looked “slightly larger” than the
size 10 shoe. Technician responded, “It might have been, yeah.”
Counsel then asked, “Would you agree that a size eight is
substantially smaller?” Technician said, “Yes,” and at this point
Prosecutor asked to approach the bench. The parties approached,
and Prosecutor informed the court and Counsel that the size 10
shoe was a women’s size 10, meaning it was a men’s size 8.5.
Counsel told the court that he didn’t know it was a women’s shoe
and that he had never received Technician’s report on the size 10
shoe. Counsel described the situation as “an ambush” and “a due
process violation.” He said that if he had known that the shoes
were a men’s size 8.5, he wouldn’t have stipulated to them being
introduced as evidence. Because Technician didn’t know if the
shoes were men’s or women’s shoes, the court decided to allow
her to finish her testimony and then discuss the matter further.
¶47 Counsel continued the cross-examination, and he asked
Technician whether shoes are ever counterfeited. She said that
they are, but it’s mostly “higher-end shoes, like Air Force 1s,
Michael Jordan shoes.” Counsel also asked her what she told the
State about her qualifications to “make a size analysis or a size
comparison.” She responded, “I told them I had no knowledge
and no experience and that I shouldn’t be making a
qualification . . . .” When Counsel brought up the size estimates,
Technician said, “I—again, on that, it was me guessing from the
blueprints. It was a complete guess. I don’t know what size these
shoes made from the blueprints. I don’t have a clue.”
¶48 After Technician testified, Counsel moved to exclude the
example shoes that the State admitted as evidence. He explained
that he hadn’t received a report about the shoes and that he hadn’t
objected before because he thought when they were introduced as
20200284-CA 18 2023 UT App 15State v. Suhail
size 10 shoes, they were men’s size 10 shoes. The court pointed out
that Technician only testified about the size estimates because
Counsel argued that he should be allowed to cross-examine her
about them, but Counsel explained that he took that path without
knowing that the size 10 shoes were women’s shoes. Prosecutor,
however, argued that the court and the attorneys would be
misleading the jury if they didn’t inform the jury that the shoes
were women’s shoes, and the court pointed out that if the shoes
didn’t go to the deliberation room with the rest of the evidence,
the jury would want to know where they were. The court decided
to take the matter under advisement.
¶49 The next day, the parties and the court again discussed the
shoeprint evidence. The court first made a finding that “the
confusion that developed was not the result of any kind of effort
by anyone involved, any of the lawyers or the witness[,] to in any
way attempt to mislead the tribunal or somehow present evidence
to the tribunal that was not understood by everybody involved.”
It further stated, “[T]o the extent it was a mistake, it was an
innocent one.”
¶50 The court also said that it wasn’t clear what disclosures the
State had made regarding Technician’s work and planned
testimony. But the court then noted that at the hearing on the
motion to exclude, Prosecutor had mentioned “a men’s size eight-
and-a-half shoe, . . . [s]o that issue was at least out there.” And to
the extent that the State did not disclose more detailed
information about the size estimates, the court concluded that was
“understandable under the circumstances since the State’s
position going into this was that [it was] not going to introduce
evidence of the shoe size.”
¶51 The court accordingly ruled that it would allow the State to
present evidence that the size 10 shoes were a women’s size 10.
And it denied Counsel’s motion to exclude the example shoes. But
20200284-CA 19 2023 UT App 15State v. Suhail
it also ruled that that the State could not present evidence of
Suhail’s shoe size.
¶52 Counsel asked for a mistrial based on the State’s failure to
disclose. He explained that there was never any disclosure about
the size 10 shoe and that his strategy would have been different
had he known that the size 10 shoes were women’s shoes. As part
of his argument, he contended that there was not “any foundation
saying this is a [women’s] size 10.” The court denied Counsel’s
motion for a mistrial.
¶53 When Detective testified, Prosecutor asked him if he made
“any efforts to find a pair of shoes to use for comparison.”
Detective affirmed that he had and explained that it was difficult
to find Asics Gel Resolution 5 shoes because they weren’t sold
anymore. Prosecutor asked to approach, and at a sidebar, he
asked the court if he could ask Detective what size the example
shoes were. The court said, “Well, you can ask him what size he
ordered.” When the direct examination resumed, Prosecutor
asked Detective if he knew what size the size 10 shoes were.
Detective responded, “10 women’s, eight-and-a-half men’s.”
Counsel did not object to this statement.
2. Detective’s Other Testimony
¶54 During direct examination, Prosecutor asked Detective, “In
general[,] and putting aside the defendant, did any of the people
that you spoke with provide you with any information, evidence,
eyewitness evidence that contradicted the testimony that’s been
presented by the witness[es] so far?” Counsel objected, arguing
that the question called for a conclusion and bolstering. The court
asked Prosecutor to repeat the question, which he did, and the
parties approached the bench for a sidebar. Counsel argued that
in addition to calling for bolstering, the question was “not
relevant” and “prejudicial.” The court overruled Counsel’s
objection, and Prosecutor asked Detective, “[D]uring your
20200284-CA 20 2023 UT App 15State v. Suhail
investigation did you uncover any evidence that contra[dicted]
the testimony given by the witnesses?” Detective replied, “No.”
¶55 When Counsel cross-examined Detective, they had the
following exchange:
Q. [Y]ou were asked if there was any evidence that
contradicted the testimony of witnesses, but you
were here when [Customer] changed his story
several times, correct?
A. I was.
Q. And you also, yourself heard, when [Friend] said
10:00, but you put down in your police report 7:00,
correct?
A. I did.
Q. So there was evidence that things contradicted,
correct?
A. There is.
¶56 Counsel also cross-examined Detective about the red
pigeon food that was found in Victim’s apartment.
Detective agreed that to feed the pigeons, somebody would need
to grab the bottle of food from the kitchen and walk to the coop
in the backyard, which would take the person through the
area where Victim’s body was found. While Detective agreed
with Counsel that it was “possible” that the shoeprint found at
the scene was made before the murder and in pigeon food,
not blood, Detective then explained the “reason [he] would say
no” to that theory was that the pigeon food was “really sticky”
and “where there was pigeon food, there was dog hair caked
to it.” But there wasn’t any dog hair caked to the
20200284-CA 21 2023 UT App 15State v. Suhail
shoeprint. Detective did acknowledge, however, that the hair
“could have been scraped off” the shoeprint.
3. Defense Witness
¶57 Suhail elected not to testify in his own defense.
He presented testimony from just one witness—a private
investigator (Investigator) who reviewed police reports about
Neighbor. She testified about three incidents involving Neighbor.
First, in February 2019, Neighbor chased his neighbor with a
knife and then stabbed a different man who was getting into his
car parked outside Neighbor’s apartment. Second, that
same night, law enforcement received a call saying that Neighbor
was “knocking on the front door of a residence holding an ax
handle and asking if the resident had anything, and smiling in a
very strange way.” And third, about a month later, Neighbor
stabbed a car’s dashboard with a knife because he was angry with
the driver.
4. Closing Arguments
¶58 During his closing argument, Prosecutor argued that the
shoeprint from the crime scene was made in blood and not pigeon
food. He stated,
I want to go back to the scene photographs,
there was a lot of discussion about this chicken
feed bullshit. There was no evidence, and there’s
nothing in the evidence to suggest that [Victim]
spilled a gallon of chicken food on the floor,
collapsed, and that the blood then somehow
mingled with that, was then smeared around and
that the chicken food was what created the
footprints in the floor.
20200284-CA 22 2023 UT App 15State v. Suhail
Counsel did not object to Prosecutor’s reference to “chicken feed
bullshit.”14
¶59 Prosecutor also discussed Suhail’s question to
Ex-Girlfriend about whether she would “keep in contact with him
if he were to get locked up for 25 years.” Prosecutor apparently
wanted the jury to surmise that Suhail was talking about a
sentence from a potential murder conviction and not about one
stemming from his drug use. In an apparent attempt to head off
another potential response from the defense, Prosecutor then
pointed out that Customer had admitted he was on probation for
robbery. Counsel objected, asserting that this argument was
misleading because there wasn’t any evidence about what a
sentence for robbery is, but the court overruled the objection.
Prosecutor then stated, “Twenty-five years isn’t—isn’t a drug
time, it’s not robbery time; it’s murder time.” Counsel objected,
and this time the court sustained the objection. The court then
instructed the jury to “[d]isregard the statement about the number
of years.”
¶60 Prosecutor also emphasized evidence that supported the
State’s theory that Suhail murdered Victim. For example, he
reminded the jury that when officers searched Victim’s
apartment, they did not find cash, pills, or Victim’s phone. And
he described how before Victim’s death, Suhail had no money and
no pills, but after Victim’s death, he was trying to sell pills, made
several cash purchases, and gave $200 in cash to Ex-Girlfriend.
From these facts, Prosecutor argued that Suhail murdered Victim
and then stole his pills and money. Prosecutor also discussed
Detective’s testimony about the cell phone records and
Technician’s outsole comparison, among other evidence.
14. Although Prosecutor said “chicken feed,” it seems apparent
from the context of the evidence that he was referring to the
pigeon food.
20200284-CA 23 2023 UT App 15State v. Suhail
¶61 When Prosecutor finished his closing, Counsel moved “for
a mistrial for prosecutorial misconduct about the 25 years as
prison . . . time for murder.” In the alternative, he asked for a jury
instruction “[t]hat the sentence for murder is not 25 years.” The
court denied the motion for a mistrial but said it would “instruct
the jury [that] the sentence for murder is not 25 years.” Counsel,
however, wanted the instruction to say that the sentence for
murder is “up to life.” The court instructed the jury “that the
sentence for murder is not[,] under the law, 25 years.”
¶62 During his closing, Counsel argued that Suhail had money
not because he stole from Victim but because he sold a car to
Friend. He also emphasized Customer’s testimony that the shoes
he saw Suhail wearing the night of Victim’s death were
“Van-like” and not tennis shoes. He also pointed out that it was
odd that Victim’s phone pinged in Ammon, Idaho, and posited
that the murderer could have “taken it up there.” And he then
argued that Neighbor was the murderer, not Suhail. As part of
this argument, he reiterated Investigator’s testimony about how
Neighbor chased his neighbor with a knife, ended up stabbing
someone else, and then, at a later date, also stabbed a car
dashboard after getting angry at the driver. He also pointed out
that Neighbor acted erratically when he found Victim’s body and
argued that because Neighbor lived next door, he could have
killed Victim and then easily gone home to wash off the blood.
Moreover, he reminded the jury that one of Victim’s neighbors
spoke with Suhail shortly after the murder and didn’t report
anything about seeing blood on him. Counsel argued that it
would have been difficult for Suhail to stab Victim without
getting blood on himself, especially given how much blood there
was at the crime scene. And he reminded the jury that Suhail
maintained his innocence during a seven-hour interview where
he was lied to by police officers and under the influence of drugs.
¶63 After deliberations, the jury convicted Suhail on all
charges.
20200284-CA 24 2023 UT App 15State v. Suhail
Motion for New Trial
¶64 Suhail later moved for a new trial. He argued that
Prosecutor committed prosecutorial misconduct in his closing
statement by (1) stating that 25 years is “murder time” and (2)
calling the defense argument about the pigeon food “bullshit.”
Suhail also argued that he was entitled to a new trial because the
State failed to disclose Technician’s report and failed to file notice
that it was calling Technician as an expert. Suhail contended that
these failures amounted to a misrepresentation of the nature of
Technician’s testimony and thus resulted in an unfair trial.
¶65 The court denied Suhail’s motion “for the reasons
articulated by the court on the record at the time it ruled on each
of the issues identified.” As to Suhail’s claims that hadn’t been
raised before, the court “decline[d] to consider such issues on the
merits in the context of a motion for [a] new trial.”
¶66 Suhail now appeals his convictions.
ISSUES AND STANDARDS OF REVIEW
¶67 On appeal, Suhail raises six claims regarding the shoeprint
evidence.
¶68 First, Suhail argues that the district court erred when it
denied his motion to exclude Technician’s outsole comparison.
We review a district court’s evidentiary rulings for an abuse of
discretion. See State v. Alzaga, 2015 UT App 133, ¶ 31, 352 P.3d 107.
¶69 Second, he argues that Detective’s testimony that the
size 10 shoes were women’s shoes lacked foundation and that the
court thus erred by allowing it. As explained below, this issue was
not preserved, so Suhail must show plain error to prevail on
appeal. “To demonstrate plain error, a defendant must establish
20200284-CA 25 2023 UT App 15State v. Suhail
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” State v. Johnson, 2017
UT 76, ¶ 20, 416 P.3d 443 (quotation simplified).
¶70 Third, Suhail contends that the State violated the Expert
Notice Statute with respect to Technician’s testimony and that the
court erred by not striking her testimony, granting a mistrial, or
granting a new trial. “The correct standard of review for a trial
court’s decision to admit or exclude expert witness testimony is
abuse of discretion.” State v. Peraza, 2020 UT 48, ¶ 33 n.6, 469 P.3d
1023 (quotation simplified).
Because a district judge is in an advantaged position
to determine the impact of courtroom events on the
total proceedings, once a district court has exercised
its discretion and denied a motion for a mistrial, we
will not reverse the court’s decision unless it is
plainly wrong in that the incident so likely
influenced the jury that the defendant cannot be
said to have had a fair trial.
State v. Allen, 2005 UT 11, ¶ 39, 108 P.3d 730 (quotation simplified).
Similarly, “[w]e will not reverse a trial court’s denial of a motion
for a new trial absent a clear abuse of discretion.” State v. Maestas,
2012 UT 46, ¶ 103, 299 P.3d 892.
¶71 Fourth, he argues that the State violated rule 16 of the Utah
Rules of Criminal Procedure with respect to Technician’s
testimony and that the court erred by not striking her testimony,
granting a mistrial, or granting a new trial. If a district court
denies relief requested under rule 16, we review that denial for an
abuse of discretion. See State v. Knight, 734 P.2d 913, 918 (Utah
1987).
¶72 Fifth, Suhail contends that if we reject the arguments
outlined above, Counsel was constitutionally ineffective for not
20200284-CA 26 2023 UT App 15State v. Suhail
sufficiently investigating Technician’s testimony. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Lopez-Gonzalez, 2020 UT App
15, ¶ 17, 459 P.3d 1049 (quotation simplified).
¶73 Sixth, Suhail requests—as an alternative to the above
arguments—that we remand his case under rule 23B of the Utah
Rules of Appellate Procedure for entry of findings of fact to
support an argument that Counsel was constitutionally
ineffective for not presenting evidence of Neighbor’s shoe size. A
rule 23B remand is “available only upon a nonspeculative
allegation of facts, not fully appearing in the record on appeal,
which, if true, could support a determination that counsel was
ineffective.” Utah R. App. P. 23B(a).
¶74 Suhail also raises a number of claims that are separate from
the shoeprint evidence. With respect to these, Suhail first argues
that the court erred when it allowed Detective to testify that the
evidence did not contradict the State’s witnesses. We review the
district court’s decision to admit evidence for an abuse of
discretion. See Alzaga, 2015 UT App 133, ¶ 31.
¶75 Suhail next contends that there were two incidents of
prosecutorial misconduct in Prosecutor’s closing statement: (1)
the comment that 25 years was not “murder time” and (2) the
“chicken feed bullshit” comment. Suhail argues that the court
erred by not granting a mistrial or a new trial in response to these
comments. We review claims relevant to the “murder time”
comment for an abuse of discretion. See State v. Harmon, 956 P.2d
262, 276 (Utah 1998) (“Because a trial court is in the best position
to determine an alleged error’s impact on the proceedings, we will
not reverse a trial court’s denial of a mistrial motion based on
prosecutorial misconduct absent an abuse of discretion.”); see also
Maestas, 2012 UT 46, ¶ 103. Because Suhail’s arguments with
respect to the “chicken feed bullshit” comment were not
20200284-CA 27 2023 UT App 15State v. Suhail
preserved, we review that claim for plain error. See Johnson, 2017
UT 76, ¶ 20.
¶76 And finally, Suhail argues that the cumulative effect of
these errors requires reversal. “Under the cumulative error
doctrine, we apply the standard of review applicable to each
underlying claim or error and reverse only if the cumulative effect
of multiple errors undermines our confidence that a fair trial was
had.” State v. White, 2016 UT App 241, ¶ 14, 391 P.3d 311(quotation simplified).
ANALYSIS
I. Shoeprint Evidence
¶77 As noted, Suhail raises several claims regarding the
shoeprint evidence. We address each in turn.
A. Motion to Exclude
¶78 Suhail first argues that Technician’s outsole comparison
violated rules 401 and 403 of the Utah Rules of Evidence and that
the district court abused its discretion by denying his motion to
exclude.15 We disagree.
1. Rule 401
¶79 “Evidence is relevant if: (a) it has any tendency to make a
fact more or less probable than it would be without the evidence;
15. Because the State did not initially intend to admit the size
estimates, the court’s ruling on Suhail’s initial motion to exclude
was that the outsole comparison was admissible. Only later did
the court rule that the size estimates were admissible, and it did
so based on Counsel’s arguments that he should be able to
cross-examine Technician about the size estimates.
20200284-CA 28 2023 UT App 15State v. Suhail
and (b) the fact is of consequence in determining the action.” Utah
R. Evid. 401. Put differently, evidence is relevant if it “has any
tendency to prove or disprove the existence of any material fact.”
State v. Colwell, 2000 UT 8, ¶ 27, 994 P.2d 177. If evidence is
relevant, it is admissible unless the U.S. Constitution, Utah
Constitution, a statute, or applicable rules provide otherwise. See
Utah R. Evid. 402.
¶80 Technician testified that she matched the unidentified
shoeprint from the crime scene to the outsole of the Asics Gel
Resolution 5 shoe—a specific shoe from a particular shoe
company. The State later presented evidence that Suhail owned a
pair of Asics Gel Resolution 5 shoes. Accordingly, Technician’s
testimony tended to make it more probable that Suhail left the
shoeprint at the crime scene. See id. R. 401. And whether Suhail
left the shoeprint at the crime scene was, of course, of some
“consequence [to] determining” whether Suhail murdered
Victim. See id.¶81 Suhail, however, contends that the testimony was
irrelevant because the State couldn’t show that the shoeprint
matched Suhail’s actual shoes, the State couldn’t show that the
shoeprint matched Suhail’s shoe size, and Customer testified that
he saw Suhail wearing shoes “[s]imilar to” Vans—not Asics
shoes—the night of the murder. True, these are all potential
weaknesses in this evidence, and Suhail is thus essentially
arguing that Technician’s testimony could have been stronger.
But the “standard for determining the relevancy of the evidence
is very low, and even evidence with the slightest probative value
is relevant.” State v. Smedley, 2003 UT App 79, ¶ 15, 67 P.3d 1005(quotation simplified). We also disagree with Suhail’s assertion
that Technician’s testimony was irrelevant because the State
couldn’t show that shoeprints “corresponded to Suhail’s shoes”
and matched his shoe size. Technician’s testimony might have
been stronger had she been able to examine Suhail’s shoes and
provide a reliable size estimate. But that doesn’t mean her
20200284-CA 29 2023 UT App 15State v. Suhail
testimony was irrelevant without those components. Again, the
standard is whether the evidence has “any tendency” to make a
material fact “more or less probable.” Utah R. Evid. 401. Because
Technician’s testimony had at least some tendency to make it
more likely that Suhail murdered Victim, it was sufficiently
relevant to pass rule 401’s low threshold, and the identified
arguments about the potential shortcomings of her testimony
were properly left for jury consideration. See State v. Wall, 2020 UT
App 36, ¶ 53, 460 P.3d 1058 (“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.” (quotation simplified)); see also R. Collin
Mangrum & Dee Benson, Mangrum & Benson on Utah Evidence 161
(2020–2021 ed.) (explaining that “the weight to be given any item
of evidence and the conclusions to be drawn from the evidence in
totality are jury questions that arise once the court determines the
threshold question of relevancy and sufficiency”).
¶82 The court did not abuse its discretion by ruling that the
outsole comparison was relevant.
2. Rule 403
¶83 Even if evidence is relevant, the court may exclude it “if its
probative value is substantially outweighed by a danger of one or
more of the following: unfair prejudice, confusing the issues,
misleading the jury, undue delay, wasting time, or needlessly
presenting cumulative evidence.” Utah R. Evid. 403. Suhail
argues that the outsole comparison should have been excluded
under this rule because the fact “that the [shoeprints] might have
been made by shoes of the same brand and model as a pair
believed to have been worn—months ago—by Suhail was less
probative than prejudicial.” Suhail further argues that the
testimony “likely confused and misled the jury into speculating
that Suhail’s size-8’s could have left the larger-sized [shoeprints].”
We disagree.
20200284-CA 30 2023 UT App 15State v. Suhail
¶84 As explained above, Technician’s testimony was probative
because it tended to make it more probable that Suhail murdered
Victim. Suhail’s complaints about her testimony—namely, that
the State didn’t find Asics Gel Resolution 5 shoes in Suhail’s
possession and didn’t have definitive testimony about the size of
the shoeprint—don’t demonstrate that the probative value of her
testimony was “substantially outweighed” by a danger of unfair
prejudice, confusion, or misleading the jury. See id.¶85 “Because all effective evidence is prejudicial in the sense of
being damaging to the party against whom it is offered, rule 403
does not require a court to exclude all prejudicial evidence.”
Anderson-Wallace v. Rusk, 2021 UT App 10, ¶ 18, 482 P.3d 822(quotation simplified). “The type of prejudicial evidence that calls
for exclusion is evidence that creates an undue tendency to
suggest decision on an improper basis, commonly but not
necessarily an emotional one, such as bias, sympathy, hatred,
contempt, retribution or horror.” Id. ¶ 23 (quotation simplified).
Here, we are not persuaded that Technician’s testimony created
“an undue tendency to suggest decision on an improper basis.”
Id. (quotation simplified). Technician explained her background
and qualifications to the jury, outlined how she identified the shoe
in this case, and informed the jury that there were limitations to
her size testimony. The State then used this testimony to argue
that Suhail left the shoeprint at the crime scene because he owned
Asics Gel Resolution 5 shoes. Accordingly, Technician’s
testimony was “highly probative of the very questions the jury
was required to decide.” Id. ¶ 24. And “[w]here evidence is
undeniably probative of the central issue in a case, the danger of
unfair prejudice substantially outweighing the probative value of
the evidence is low.” Id. (emphasis in original). Because
Technician’s testimony was “highly probative” of whether Suhail
killed Victim, we are not convinced that it was so unfairly
prejudicial that the district court abused its discretion by allowing
the testimony. See id.
20200284-CA 31 2023 UT App 15State v. Suhail
¶86 For similar reasons, we are unpersuaded that Technician’s
testimony created a meaningful danger of confusing or
misleading the jury. The jury knew that the State never found
Suhail’s Asics Gel Resolution 5 shoes. It also knew that
Technician’s outsole comparison and size testimony were based
on information she found on the Asics website, blueprints from
Asics, and example shoes. And Technician testified several times
that she was not confident in her size estimates. So the limitations
that Suhail points to would have been evident to the jury, and we
don’t think there was any danger that the jury was confused or
misled—or, at the very least, we don’t think any potential danger
substantially outweighed the probative value of Technician’s
testimony. See Utah. R. Evid. 403.
¶87 Because any potential danger from Technician’s testimony
was not “substantially outweighed” by the probative value of her
testimony, the court did not abuse its discretion by ruling that the
outsole comparison did not violate rule 403.
B. Foundation for Detective’s Testimony
¶88 Detective testified that the size 10 shoes that were used for
size comparison were women’s shoes. On appeal, Suhail argues
that this testimony lacked foundation and was therefore
inadmissible. We conclude that this argument was not preserved
and that Suhail has not shown plain error.
¶89 “An issue is preserved for appeal when it has been
presented to the district court in such a way that the court has an
opportunity to rule on it.” State v. Johnson, 2017 UT 76, ¶ 15, 416
P.3d 443 (quotation simplified). “To provide the court with this
opportunity, the issue must be specifically raised by the party
asserting error, in a timely manner, and must be supported by
evidence and relevant legal authority.” Id. (quotation simplified).
20200284-CA 32 2023 UT App 15State v. Suhail
¶90 When Detective testified that the size 10 shoes were
women’s shoes, Counsel did not object. As a result, Suhail’s
argument on appeal that this testimony lacked foundation was
not raised below and is thus unpreserved. See id.¶91 Suhail resists this conclusion, pointing to his argument in
support of his mistrial motion. In that argument, which occurred
before Detective testified, Counsel stated, “We are now without
any foundation saying that is a [women’s] size 10, so therefore it
is a [men’s] size eight-and-a-half . . . when we have no proof that
it actually is a [men’s] equivalent of a [men’s] eight-and-a-half.”
But this was part of Counsel’s argument about how the State’s
alleged lack of notice resulted in Suhail being ill-prepared to
challenge Technician’s testimony, and we accordingly
understand this to have been an argument that there was no
foundation for Technician’s testimony that a women’s size 10 shoe
is the equivalent of a men’s size 8.5 shoe. But because Detective
testified after Technician, and because he did so based on his own
knowledge, we don’t think that this earlier argument from
Counsel about the alleged lack of foundation for Technician’s
testimony provided the court with any opportunity to rule on
whether there was a separate foundation for Detective’s own
testimony about this issue. See id. We thus conclude that this
argument is unpreserved and that Suhail must show plain error
to succeed on appeal.
¶92 “To demonstrate plain error, a defendant must establish
that (i) an error exists; (ii) the error should have been obvious to
the trial court; and (iii) the error is harmful.” Id. ¶ 20 (quotation
simplified). “If any one of these requirements is not met, plain
error is not established.” Id. (quotation simplified). We conclude
that Suhail has not shown plain error because he has not shown
that Detective’s testimony obviously lacked foundation.
¶93 Witness opinion testimony—whether lay or expert—must
be based on proper foundation. See Utah R. Evid. 701–703. A lay
20200284-CA 33 2023 UT App 15State v. Suhail
witness’s opinion testimony must be “rationally based on the
witness’s perception” and cannot be “based on scientific,
technical, or other specialized knowledge.” Id. R. 701. Suhail
argues that Detective’s testimony lacked foundation “because the
shoes themselves did not indicate whether they were men’s or
women’s.” But we don’t think it would have been obvious to the
district court that Detective’s testimony was not “rationally based
on [his] perception.” See id.¶94 Before Detective testified that the size 10 shoes were
women’s shoes, Prosecutor asked him, “Did you encounter
any . . . difficulties in your efforts to obtain a pair of Asics gel
resolution 5s?” Detective explained that it was difficult to find the
shoes because “there’s only two [that] existed.” And when
Prosecutor asked if the example shoes were purchased new or
used, Detective explained that one pair was new and one pair was
used. From the verbiage used in this exchange, it seems apparent
that Detective had ordered the shoes himself. Because of this, it
would have been likewise apparent that he was capable of
testifying what sizes he had personally ordered. Indeed, at a
sidebar conversation, the court told Prosecutor that he could ask
Detective “what size he ordered,” indicating that the court also
understood Detective to be testifying about shoes that he had
personally ordered. We accordingly don’t think it was obvious
that Detective’s testimony that the size 10 shoes were women’s
shoes lacked foundation. The court therefore did not plainly err
by not sua sponte interrupting Detective’s testimony and
requiring the State to lay more foundation on this point.16
16. If Suhail is also challenging Detective’s testimony that the
women’s size 10 shoes were the equivalent of men’s size 8.5 shoes,
we reject that argument for lack of prejudice. See State v. Johnson,
2017 UT 76, ¶ 20, 416 P.3d 443 (explaining that a defendant
claiming plain error “must establish that . . . the error is harmful”
(continued…)
20200284-CA 34 2023 UT App 15State v. Suhail
C. Expert Notice Statute
¶95 Suhail argues that the State violated the Expert Notice
Statute by not disclosing Technician as an expert or providing the
results of her investigation. He further argues that the court
should have responded to this alleged violation by striking “all
shoe-related exhibits and Technician’s testimony or grant[ing]
Suhail’s motions for mistrial and new trial.” We reject Suhail’s
argument because, even if the State violated the Expert Notice
Statute, Suhail has not shown that he is entitled to any of the
remedies sought below or sought now on appeal.
¶96 The Expert Notice Statute establishes what notice parties to
a criminal case must provide if they intend to call an expert
witness. See Utah Code § 77-17-13(1). It also sets forth when the
parties must provide “the results of any tests or other specialized
data.” See id. § 77-17-13(2). And of note here, the statute then
outlines the available remedies if a party doesn’t comply with the
statute’s requirements: “If the defendant or the prosecution fails
to substantially comply with the requirements of this section, the
opposing party shall, if necessary to prevent substantial prejudice,
be entitled to a continuance of the trial or hearing sufficient to
allow preparation to meet the testimony.” Id. § 77-17-13(4)(a).
If the court finds that the failure to comply with this
section is the result of bad faith on the part of any
party or attorney, the court shall impose
appropriate sanctions. The remedy of exclusion of
the expert’s testimony will only apply if the court
(quotation simplified)). This is because Technician had already
testified (with no objection) that women’s shoes are about
one-and-a-half sizes larger than men’s shoes of the same actual
size.
20200284-CA 35 2023 UT App 15State v. Suhail
finds that a party deliberately violated the
provisions of this section.
Id. § 77-17-13(4)(b).
¶97 Thus, by its plain terms, the Expert Notice Statute provides
only two remedies: a continuance or, if the violation was the result
of bad faith, “appropriate sanctions,” and an order excluding
evidence then requires a finding of a deliberate violation. See id.
§ 77-17-13(4)(a)–(b); see also State v. Peraza, 2020 UT 48, ¶ 36, 469
P.3d 1023 (stating that the “Expert Notice Statute prescribes two
remedies” and then explaining when a continuance or exclusion
are appropriate).
¶98 Suhail did not ask for a continuance below, and on appeal
he has not asserted that he should have been given a continuance.
So even if the State did violate the Expert Notice Statute, Suhail
waived the remedy of a continuance because he did not ask for it.
See Utah Code § 77-17-13(4)(a); see also State v. Perez, 2002 UT App
211, ¶ 41, 52 P.3d 451 (explaining that under Utah Code
§ 77-17-13(4)(a), the district court has no duty to grant a
continuance that a party does not ask for).
¶99 Suhail did, however, request that Technician’s testimony
be excluded. But again, exclusion is available only when “the
court finds that a party deliberately violated the” Expert Notice
Statute. Utah Code § 77-17-13(4)(b). The court here did not make
that finding. Rather, it found that “[t]o the extent the State did not
disclose, it’s understandable under the circumstances since the
State’s position” had been that it wouldn’t introduce evidence
about shoe size estimates. And regarding the size 10 shoes, the
court found that any “confusion that developed was not the result
of any kind of effort by anyone involved, any of the lawyers or the
witness[,] to in any way attempt to mislead the tribunal or
somehow present evidence to the tribunal that was not
understood by everybody involved.” Suhail has not challenged
20200284-CA 36 2023 UT App 15State v. Suhail
these findings on appeal. And without a finding that the State
“deliberately violated” the Expert Notice Statute, Suhail was not
entitled to exclusion of Technician’s testimony.
¶100 Thus, even if we assume the State violated the Expert
Notice Statute, we cannot conclude that the court abused its
discretion in denying him any relief based on this alleged
violation because Suhail has not shown that he was entitled to any
of the prescribed remedies.
D. Rule 16
¶101 Suhail argues that the State violated rule 16 of the Utah
Rules of Criminal Procedure when it “failed to give the defense
the complete results of Technician’s investigation.” And he again
asserts that the district court should have responded to this
alleged violation by striking “all shoe-related exhibits and
Technician’s testimony or grant[ing] Suhail’s motions for mistrial
and new trial.”17
17. In conjunction with his arguments under the Expert Notice
Statute, Suhail claims that the State’s failure to disclose Technician
as an expert violated rule 16 as well. But the text of the rule doesn’t
mention the word “expert,” and Suhail points to no authority
establishing that rule 16 creates expert notice requirements of its
own. Moreover, in at least one case, we’ve suggested that the rule
does not cover the ground that is otherwise occupied by the
Expert Notice Statute. See State v. Mills, 2012 UT App 367, ¶ 28 n.8,
293 P.3d 1129.
That said, the rule does require the prosecution to provide
a list of all persons the prosecution intends to call at trial. See Utah
R. Crim. P. 16(a)(5). And it further requires, on a showing of good
cause, the disclosure of any “item of evidence” that the court
determines should be made available to allow the defendant “to
(continued…)
20200284-CA 37 2023 UT App 15State v. Suhail
¶102 Rule 16(a) dictates what “material” and “information” a
prosecutor must disclose to the defense in a criminal case, while
adequately prepare a defense.” Id. R. 16(a)(4). Perhaps with these
aspects of rule 16 in mind, our supreme court has recently
suggested that the Expert Notice Statute and rule 16 currently
function as “two sets of procedural rules running on parallel
tracks.” State v. Peraza, 2020 UT 48, ¶ 36 n.7, 469 P.3d 1023(quotation simplified).
We need not resolve this potential conundrum here. Even
if it’s true that there is some implied expert disclosure component
to rule 16 (which, again, we do not decide), we would resolve that
aspect of Suhail’s rule 16 argument for the same reason we resolve
the others below: namely, Suhail was not prejudiced by any such
violation.
We further note that in conjunction with his Expert Notice
Statute and rule 16 arguments, Suhail also briefly references the
Due Process Clause. “Under both the Utah and United States
Constitutions, the prosecution bears a fundamental duty to
disclose material, exculpatory evidence to the defense in criminal
cases.” State v. Bisner, 2001 UT 99, ¶ 32, 37 P.3d 1073 (emphasis
added, quotation simplified). We don’t see the relevance of the
Due Process Clause to Suhail’s claims because his assertion is that
the shoeprint evidence was inculpatory, not exculpatory. See State
v. Rugebregt, 965 P.2d 518, 522 (Utah 1998) (stating that because
the evidence was inculpatory, not exculpatory, “the prosecutor’s
discovery duty was limited to disclosures under Rule 16”). But
even if we considered Suhail’s due process argument, we would
reject it for the same reason that we reject his rule 16 argument—
lack of prejudice. See, e.g., State v. Newton, 2020 UT 24, ¶ 37, 466
P.3d 135 (rejecting a failure-to-disclose claim for lack of prejudice);
State v. McHugh, 2011 UT App 62, ¶ 3, 250 P.3d 1006 (per curiam)
(rejecting a Brady-based due process claim for lack of prejudice
based on the “strength of the other evidence”).
20200284-CA 38 2023 UT App 15State v. Suhail
rule 16(b) sets forth the defense’s disclosure obligations. See Utah
R. Crim. P. 16(a)–(b).18
If a party has failed to comply with this rule, the
court may take one or more of the following actions:
(A) order such party to permit the discovery or
inspection, of the undisclosed material or
information; (B) grant a continuance of the
proceedings; (C) prohibit the party from
introducing evidence not disclosed; or (D) order
such other relief as the court deems just under the
circumstances.
Id. R. 16(e)(1).
¶103 If we determine that a prosecutor violated these discovery
rules, “the next question is whether the trial court erred in
refusing to grant any of the relief sought by defense counsel.”
State v. Knight, 734 P.2d 913, 918 (Utah 1987). The district court
errs if it abuses its discretion. See id. A court abuses its discretion
“when, taking into account any remedial measures ordered by the
trial court, the prejudice to the defendant still satisfies the
standard for reversible error set forth in [rule 30 of the Utah Rules
of Criminal Procedure], and the remedial measures requested but
refused would have obviated this prejudice.” Id.¶104 Under rule 30, “an error warrants reversal only if a review
of the record persuades the court that without the error there was
a reasonable likelihood of a more favorable result for the
defendant.” Id. at 919 (quotation simplified). But in a
failure-to-disclose scenario, there are “difficulties posed by the
record’s silence.” Id. at 921. Accordingly, if a prosecutor fails to
18. Rule 16 was amended after Suhail’s trial. Because those
amendments do not affect our prejudice analysis, we cite the
current version for the reader’s convenience.
20200284-CA 39 2023 UT App 15State v. Suhail
disclose and the defendant makes “a credible argument that the
prosecutor’s errors have impaired the defense, it is up to the State
to persuade the court that there is no reasonable likelihood that
absent the error, the outcome of trial would have been more
favorable for the defendant.” Id.¶105 The bulk of Suhail’s lack-of-notice argument is focused on
the State’s failure to inform him that the size 10 shoe used for
comparison was a women’s shoe, which meant that this shoe was
much closer to Suhail’s shoe size than Counsel realized.
¶106 For purposes of this issue, we assume (without deciding)
that the State violated rule 16 by not disclosing Technician’s
reports or results about the size evidence. From there, we believe
that Suhail has made “a credible argument” that this assumed
failure impaired his defense. Id. But because the State has carried
its burden of showing “that there is no reasonable likelihood that
absent the error, the outcome of trial would have been more
favorable for” Suhail, we decline to reverse. Id.¶107 To assess this, we consider what the trial would have
looked like if Technician’s size testimony—but not the outsole
comparison—had been excluded. See State v. Ellis, 2018 UT 2, ¶ 42,
417 P.3d 86 (“To decide whether a trial affected by error is
reasonably likely to have turned out differently we have to
consider a hypothetical—an alternative universe in which the trial
went off without the error.”). And for purposes of this analysis,
we further assume that Technician would not have testified that
Asics does not license their outsole patterns to other
manufacturers.
¶108 We begin by noting that there’s reason to think that in the
actual trial, Technician’s size testimony didn’t matter much. This
is because the size testimony was decidedly equivocal and, thus,
weak. Technician testified that the shoeprint from the crime scene
“could potentially be” a men’s size 9.5 to 11.5, but she also told
20200284-CA 40 2023 UT App 15State v. Suhail
the jury that she was “[n]ot very” confident in that estimate. And
although she stated that the shoeprint looked “slightly larger
than” the size 10 shoes, she said it was “really hard for [her] to say
definitively” and that she didn’t “know either way.” She
explained to the jury that it was difficult to make a size estimate
because the actual shoeprint is three-dimensional, while the
blueprints from Asics were two-dimensional and thus “flatter and
larger than the actual impressions on the shoes.” Technician was
even more equivocal on cross-examination. When Counsel
pressed her about size, she answered, “It was a complete guess. I
don’t know what size these shoes made from the blueprints. I
don’t have a clue.” And when Counsel asked whether she had
told the State about her inability to make a size estimate, she
replied, “I told them I had no knowledge and no experience and
that I shouldn’t be making a qualification.” In light of Technician’s
own repeated disclaimers about this testimony, we’re somewhat
skeptical that the jury would have nevertheless placed great
emphasis on it in deliberations. See, e.g., State v. Samples, 2022 UT
App 125, ¶¶ 87–88, 521 P.3d 526 (holding that a defendant was
not prejudiced by a witness’s allegedly improper testimony where
the testimony at issue was “decidedly equivocal”), petition for cert.
filed, Jan. 3, 2023 (No. 20230007).
¶109 Also, in his closing argument, Prosecutor only referenced
Technician’s size testimony once. This may indicate that the State
didn’t think that testimony would persuade the jury. But more to
the point, Prosecutor’s lack of emphasis on this testimony also
undermines any suggestion that the jury likely focused on it.
¶110 Moreover, in a hypothetical trial in which there was no
such evidence, we still see no reasonable likelihood of a different
outcome. It’s true that the State’s case was based on circumstantial
evidence. But “[d]irect evidence is not required” to support a
conviction, and “[s]ustainable verdicts are entered every day on
the sole basis of circumstantial evidence.” State v. Nielsen, 2014 UT
20200284-CA 41 2023 UT App 15State v. Suhail
10, ¶ 47, 326 P.3d 645. And in our view, the State’s case here,
circumstantial as it was, was still quite strong.
¶111 First, Customer testified that he saw Suhail walking out of
Victim’s apartment shortly after midnight on Friday the 9th, and
Detective testified that Suhail’s phone was in the general vicinity
of Victim’s apartment from about midnight until 2:00 a.m. on
Friday. Yet in a phone conversation with Customer, Suhail denied
being at Victim’s apartment and claimed he had been at home.
This suggested not only that Suhail was lying, but that he thought
he had something to hide with respect to his presence at Victim’s
home that very night.
¶112 Second, the cell phone data suggests that Suhail took
Victim’s phone. Detective testified that Suhail’s and Victim’s
phones were both in the general vicinity of Victim’s apartment
between midnight and 2:00 a.m. on Friday, and he also testified
that after 2:00 a.m., both phones were in the general vicinity of
Suhail’s mother’s apartment. And Customer testified that he
received text messages shortly after midnight on Friday from
somebody claiming to be Victim, but it didn’t seem to him like the
texts actually were from Victim—Customer thought the spacing
was odd, he noted that Victim usually just texted “Call me,” and
in these texts the sender claimed to have walked to a gas station,
which was something that Victim usually didn’t do.
¶113 Third, before Victim died, Suhail had no money, but after
Victim died, Suhail made several cash purchases. On the night of
Thursday the 8th, Suhail met with Victim and got two pills; he
purchased the first pill for $20, but Victim had to front him the
second pill. Indeed, Suhail had to borrow $20 from somebody just
so that he could pay Victim back. But the very next morning,
Victim paid his phone bill and gave Ex-Girlfriend $200. Suhail
made several other cash purchases that day, including clothes,
boots, and a knife. Moreover, when police arrested Suhail, he had
over $1,000 on his person. And although Suhail later claimed that
20200284-CA 42 2023 UT App 15State v. Suhail
he had money because he sold a car, that explanation made little
sense because he also told police that Victim had to front him a
pill when he couldn’t afford to pay $20 for it.
¶114 Fourth, even though Suhail had scrambled to get just two
pills from Victim on Thursday the 8th, around 4:00 a.m. on Friday
the 9th, Suhail was texting another drug dealer and attempting to
sell him large quantities of pills. And when police arrested Suhail,
there were 40 Xanax pills in the car door next to where he was
sitting.
¶115 Fifth, when police searched Victim’s apartment, they
didn’t find his phone or any cash or pills, even though he was
known for dealing drugs. This indicated that whoever murdered
Victim also stole his phone, money, and pills.
¶116 Sixth, Ex-Girlfriend testified that on Friday morning,
Suhail had a mark on his neck, which he said he “got in a fight.”
¶117 Seventh, when Suhail and Ex-Girlfriend drove past
Victim’s apartment and saw police, Suhail asked Ex-Girlfriend if
she “would keep in contact with him if he were to get locked up
for 25 years.” The jury could draw its own inferences about what
Suhail meant, and in doing so, it could consider the relevant
circumstances. Here, the relevant circumstances were that Suhail
made this comment while driving past Victim’s apartment shortly
after Victim had been murdered and while Suhail was now
observing a police presence there. One natural inference given
those circumstances is that he was alluding to the possibility that
he would be implicated in Victim’s death.
¶118 Finally, a photo on Suhail’s phone showed him wearing
Asics Gel Resolution 5 shoes two months before Victim’s death,
and Technician concluded that the unidentified shoeprint from
the crime scene was created by an Asics Gel Resolution 5 shoe.
And even if Technician didn’t inform the jury that Asics doesn’t
20200284-CA 43 2023 UT App 15State v. Suhail
license their outsole patterns to other manufacturers, she still
could have testified that she didn’t find any other shoes that
matched the shoeprint. Moreover, when the police searched
Suhail’s mother’s and brother’s apartments, they never found his
Asics Gel Resolution 5 shoes, which—given all this surrounding
context—could have suggested that Suhail had disposed of them
to avoid detection.
¶119 The most reasonable inferences to be drawn from these
collected details are quite clear—namely, Suhail killed Victim and
was bruised during the confrontation, stole Victim’s money and
drugs, tampered with Victim’s phone in an attempt to show that
Victim was still alive after he had left, and was then caught with
Victim’s money and drugs soon after.
¶120 Of course, Suhail made arguments to counter this
evidence. For example, Customer said that when he saw Suhail
leaving Victim’s apartment, Suhail was wearing shoes that were
similar to Vans. There was also some evidence that Suhail had
money because he sold a car. And Suhail presented evidence that
Neighbor had been in several violent incidents, including two that
involved knives. But the evidence linking Suhail to this crime and
its cover-up was far more direct, so even considering these
counterarguments and even removing Technician’s size
testimony, the State has persuaded us that there was not a
reasonable likelihood of a more favorable outcome for Suhail. See
Knight, 734 P.2d at 921. Because there was no prejudice to Suhail,
we conclude that the court did not abuse its discretion when it
denied his request for relief based on the alleged rule 16 violation.
See id. at 918.19
19. In the prejudice portion of his argument about the
lack-of-notice issues, Suhail asserts that Technician’s testimony
about the outsole comparison or even the type of shoe was based
(continued…)
20200284-CA 44 2023 UT App 15State v. Suhail
on “information from [Asics]” (such as the database), which
qualifies as hearsay. Because lay witnesses can’t rely on hearsay,
see Utah R. Evid. 701, he then asks us to assume, as part of our
prejudice analysis on the lack of notice, that Technician shouldn’t
have been allowed to make any outsole comparison at all.
We disagree with Suhail’s suggestion that this testimony
was attributable to a lack of notice of proposed expert testimony.
Well before trial, Suhail filed a motion to exclude “any bloody
footprint evidence,” and as part of that argument, he argued that,
as a lay witness, Technician couldn’t testify about information
she’d received from Asics. Although the State asserted that
Technician would not be testifying as an expert, and although it
agreed (at that time, anyway) that it wouldn’t ask her about some
of the information she had received from Asics (such as whether
Asics licensed its sole design to other companies), the State still
argued that Technician could make an outsole comparison.
Despite Suhail’s objection, the court allowed Technician to offer
this testimony as a lay witness.
Thus, while Suhail now suggests that the outsole
comparison itself is one form of prejudice stemming from the lack
of notice of potential expert testimony, the record shows that
notice was not the problem there. Suhail clearly knew that the
proposed outsole comparison testimony existed before trial
(which is why he objected to it), and he even received an adverse
ruling that allowed it to come in as lay testimony. If Suhail wanted
to appeal that ruling on the basis of Technician’s reliance on
hearsay, he could have done so directly. But he didn’t. Instead, in
the portion of his brief that focused on the outsole comparison, he
argued relevancy and rule 403, but he said nothing about hearsay
generally or the database more particularly. On this basis of the
unchallenged portion of the court’s ruling, this testimony would
have therefore come in even without the notice of expert
testimony.
(continued…)
20200284-CA 45 2023 UT App 15State v. Suhail
E. Ineffective Assistance of Counsel
¶121 In the alternative, Suhail argues that Counsel was
ineffective for failing “to investigate Technician’s opinions.” We
reject this argument for lack of prejudice.
¶122 A defendant arguing ineffective assistance of counsel must
show that counsel was deficient and that the deficient
performance prejudiced the defense. See Strickland v. Washington,
466 U.S. 668, 687 (1984). To establish prejudice, the “defendant
must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. “A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.” Id.¶123 As we understand his argument, Suhail is asserting that
had Counsel investigated Technician’s testimony more
thoroughly, he would have known that the size 10 shoe was a
women’s shoe. And if Counsel had known that, Suhail suggests,
Counsel would have attempted to keep the State from introducing
In any event, even if we accept Suhail’s assertion that he
can essentially backdoor this hearsay issue through the prejudice
portion of his lack-of-notice arguments, we’d still conclude that
he wasn’t prejudiced. Separate from the size testimony, it’s of
course true that the State also relied on the outsole comparison
testimony. Our above discussion makes that clear enough. But in
light of the large quantity of other evidence discussed above
linking Suhail to this crime that was unconnected to the shoeprint
at all, we still see no reasonable probability that, even if all of the
shoeprint testimony had been excluded, the jury would have
reached a different verdict.
20200284-CA 46 2023 UT App 15State v. Suhail
Technician’s size testimony.20 Even assuming that’s all true, we
are unpersuaded that there was any material harm to Suhail. As
explained above, Technician’s size testimony was weak because
she told the jury that she was making “a complete guess” and was
not qualified to make size estimates. And as also explained, the
State presented strong circumstantial evidence beyond the
outsole comparison. So even if Counsel had investigated
Technician’s testimony more thoroughly and decided against
using any size testimony, Suhail has not shown a reasonable
probability of a more favorable outcome. Id.¶124 Suhail also seems to suggest that had Counsel investigated
Technician’s opinions more thoroughly, he could have called an
expert to challenge Technician’s testimony about
sole-counterfeiting. But Suhail has not provided any support for
21
his claim that Counsel did not investigate a sole-counterfeiting
20. As previously explained, Prosecutor argued that Technician’s
size estimates were unreliable and asked the court to prohibit
questions about those estimates. But Counsel argued that he
should be able ask questions about the size estimates, and the
court agreed. So although the State asked Technician about her
size estimates on direct examination, it presumably only did so
because it anticipated that Counsel would ask about them on
cross-examination. For this issue, we take as correct Suhail’s
assertion that had Counsel known the size 10 shoes were women’s
shoes, he would have realized that Technician’s size estimates
were not favorable, he would have decided against arguing that
the size estimates were fair game in trial, and neither party would
have questioned Technician about her size estimates of the
shoeprint.
21. As a reminder, Technician testified that shoes can be
counterfeited but that it’s mostly “higher-end shoes, like Air Force
1s, Michael Jordan shoes,” that get counterfeited.
20200284-CA 47 2023 UT App 15State v. Suhail
expert. See State v. de la Cruz-Diaz, 2012 UT App 179, ¶ 6, 282 P.3d
1041 (rejecting a failure-to-investigate claim when the defendant
failed “to provide support in the record for his claim that counsel
did not consult with an expert”). Nor has Suhail identified an
expert that would have been available to testify and what that
expert’s testimony would have been. See State v. Gerber, 2015 UT
App 76, ¶ 14, 347 P.3d 852 (rejecting a defendant’s claim that trial
counsel was ineffective for not calling a medical expert when the
defendant did not identify “any medical expert who would have
testified on her behalf at trial or set forth that expert’s expected
testimony in the record”); see also Samples, 2022 UT App 125,
¶¶ 62–63 (rejecting a rule 23B remand request when the defendant
did not allege or proffer that the provided expert “could have
been produced within any particular timeframe”). Accordingly,
any argument that more investigation would have resulted in
useful expert testimony is speculative and not sufficient to show
a reasonable likelihood of a more favorable outcome for Suhail.
F. Rule 23B Remand
¶125 In addition to the above arguments regarding the
shoeprint evidence, Suhail requests a rule 23B remand so that he
may present evidence that Neighbor wore a men’s size 11 to 12
shoe. See Utah R. App. P. 23B. Suhail contends that this
information will support an argument that Counsel was
ineffective for not informing the jury about Neighbor’s shoe size,
which would have then supported the defense theory at trial that
Neighbor was the actual killer.
¶126 A rule 23B remand is “available only upon a
nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination
that counsel was ineffective.” Id. R. 23B(a). Accordingly, “a
defendant must present the court with the evidence he intends to
present on remand and explain how that evidence supports both
prongs of the ineffective assistance of counsel test.” State v.
20200284-CA 48 2023 UT App 15State v. Suhail
Gallegos, 2018 UT App 192, ¶ 23, 437 P.3d 388 (quotation
simplified).
¶127 Suhail’s memorandum includes a sworn affidavit from
Counsel. There, Counsel avers that he knew that Neighbor wore
size 11 to 12 shoes and that he planned on presenting that
evidence to support the defense theory that Neighbor, not Suhail,
murdered Victim. But Counsel says that he then got distracted
during trial and simply failed to present the evidence. From this,
Suhail now contends that this would show that Counsel
performed deficiently by not presenting the evidence, and Suhail
further argues that there is a reasonable likelihood of a more
favorable result if the evidence had been presented.
¶128 Suhail has presented us with “a nonspeculative allegation
of facts, not fully appearing in the record on appeal.” Utah R. App.
P. 23B(a). But even assuming that Suhail has demonstrated
deficient performance, we decline to remand the case because he
has not shown prejudice.
¶129 Technician testified that the shoeprint at the crime scene
could “potentially” have been created by a men’s size 9.5 to 11.5
shoe. So if Counsel had presented evidence that Neighbor wore a
men’s size 11 to 12, Counsel could have argued that Neighbor fit
within Technician’s estimated size range. But this argument has
limited potential. As explained above, Technician’s size testimony
was weak because she acknowledged that her own estimation of
size was a “complete guess” and that she didn’t “have a clue”
what size of shoe had made the shoeprint. As a result, any
argument about Neighbor’s shoe size would have been based on
this same shaky foundation.
¶130 Moreover, there was no evidence presented at trial that
Neighbor ever owned a pair of Asics Gel Resolution 5 shoes, but
the jury saw a photograph from Suhail’s phone showing Suhail
wearing these very shoes. There also was no evidence presented
20200284-CA 49 2023 UT App 15State v. Suhail
at trial that Neighbor was at Victim’s apartment around the time
of his death, that Neighbor went from having no money or pills
before the murder to suddenly having large quantities of both
after the murder, or that Neighbor ever had Victim’s cell phone,
let alone in the hours after the murder.
¶131 In short, even with this proffered evidence about the size
question, the strong circumstantial evidence recounted above still
would have implicated Suhail, not Neighbor, in Victim’s death.
Suhail therefore has not shown that there’s a reasonable
probability of a better outcome had the jury known of Neighbor’s
shoe size. See Strickland, 466 U.S. at 694. We decline to remand the
case for development of that evidence.
II. Detective’s Allegedly Improper Testimony
¶132 Separate from the various questions he raises about the
shoeprint testimony, Suhail also argues that the district court
exceeded its discretion when it allowed Detective to testify in
direct examination that he did not find any evidence that
contradicted the testimony from the State’s witnesses. Suhail
argues that this testimony “was irrelevant, inadmissible lay
opinion, bolstering, an inadmissible conclusion, substantially
more prejudicial than probative, and prejudicial.” Even if
Detective’s testimony was improper, Suhail is not entitled to a
reversal unless he was prejudiced by the testimony. “Trial error
requires reversal only if a review of the record persuades the
appellate court that without the error there was a reasonable
likelihood of a more favorable result for the defendant.” State v.
Boyle, 2019 UT App 28, ¶ 16, 440 P.3d 720 (quotation simplified).
We are not persuaded.
¶133 On cross-examination, Counsel brought up this testimony
but then asked Detective if it was true that Customer had
“changed his story several times.” Detective agreed that
Customer had. On further questioning from Counsel, Detective
20200284-CA 50 2023 UT App 15State v. Suhail
agreed that there were inconsistencies between his police report
and Friend’s testimony about what time Friend said he saw Suhail
at Victim’s apartment. Furthermore, when Counsel asked if there
“was evidence that things contradicted,” Detective replied,
“There is,” thus undermining his own earlier claim.
¶134 Suhail, however, contends that Counsel’s cross-
examination was still not sufficient because it “did not adequately
address and reaffirm all the contradictions.” But it didn’t need to.
The complained-of testimony was that there were no
contradictions at all, and yet Counsel’s cross-examination showed
that there had been. Counsel didn’t need to go through each
contradiction to make this point—simply questioning Detective
about a few of them and then having Detective agree that there
were contradictions successfully rebutted Detective’s initial
claim. Because Counsel’s cross-examination mitigated any
potential harm caused by Detective’s allegedly improper
testimony, Suhail has not shown prejudice.
III. Prosecutorial Misconduct
¶135 Finally, Suhail argues that Prosecutor committed
prosecutorial misconduct twice during closing argument, and
Suhail then argues that the district court should have granted a
mistrial or a new trial as a result.
¶136 “Both prosecutors and defense counsel enjoy considerable
latitude during closing argument and may discuss fully from their
viewpoints the evidence and inferences and deductions arising
therefrom.” State v. Carvajal, 2018 UT App 12, ¶ 24, 414 P.3d 984(quotation simplified). But this latitude is not unlimited. See State
v. Alarid, 2022 UT App 84, ¶ 44, 514 P.3d 610. For instance, “a
prosecutor may not prompt the jury to consider matters outside
the evidence.” Id. (quotation simplified). “Such comments are
problematic because of the possibility that the jury will give
special weight to a prosecutor’s statements, not only because of
20200284-CA 51 2023 UT App 15State v. Suhail
the prestige associated with the prosecutor’s office, but also
because of the fact-finding facilities presumably available to the
office.” Id. (quotation simplified). Additionally, arguments are
improper when they “amount to a personal attack on defense
counsel or an insinuation that the defense intends to mislead the
jury.” State v. Jones, 2015 UT 19, ¶ 55, 345 P.3d 1195.
¶137 With respect to both of the statements in question here, we
conclude that, even if there was prosecutorial misconduct, Suhail
was not prejudiced by it.
A. “Murder Time”
¶138 During his closing argument, Prosecutor discussed
Ex-Girlfriend’s testimony that Suhail asked her whether she
would “keep in contact with him if he were to get locked up for
25 years.” Prosecutor then suggested that Suhail was implicating
himself in Victim’s murder, rather than some lesser crime. As part
of this, Prosecutor said, “Twenty-five years isn’t—isn’t a drug
time, it’s not robbery time; it’s murder time.”
¶139 We agree with Suhail that this statement was improper
because it prompted “the jury to consider matters outside the
evidence,” Alarid, 2022 UT App 84, ¶ 44 (quotation simplified)—
i.e., what the sentence is for murder. The State did not admit
evidence at trial establishing what the usual sentence is for
murder, and indeed, it likely couldn’t have. See State v. Gallegos,
2018 UT App 112, ¶ 32, 427 P.3d 578 (“Possible punishment is
usually not a proper matter for jury consideration.” (quotation
simplified)). And we further agree with Suhail’s suggestion that
the jury would likely “give special weight,” Alarid, 2022 UT App
84, ¶ 44 (quotation simplified), to Prosecutor’s comment that 25
years is “murder time” because it would have naturally assumed
that Prosecutor, as an employee of the district attorney’s office,
would know the potential sentences for various crimes. We thus
conclude that this comment was improper.
20200284-CA 52 2023 UT App 15State v. Suhail
¶140 But even so, we will not reverse unless Suhail has shown
that the district court abused its discretion by not granting a
mistrial or a new trial. See State v. Maestas, 2012 UT 46, ¶ 103, 299
P.3d 892; State v. Harmon, 956 P.2d 262, 276 (Utah 1998). “This
standard is met only if the error is substantial and prejudicial such
that there is a reasonable likelihood that in its absence, there
would have been a more favorable result for the defendant.”
Harmon, 956 P.2d at 276 (quotation simplified). But this was not so
here.
¶141 After Prosecutor made the improper comment, Counsel
objected. The district court sustained the objection and then
instructed the jury to “[d]isregard the statement about the number
of years.” Addressing the same comments moments later, the
court gave a curative instruction in which it affirmatively
informed the jury “that the sentence for murder is not[,] under the
law, 25 years.”
¶142 We are not convinced that this course of action was an
abuse of discretion. “Jurors are presumed to have followed a trial
court’s instructions.” Zazzetti v. Prestige Senior Living Center LLC,
2022 UT App 42, ¶ 44, 509 P.3d 776. And “curative instructions
are ordinarily presumed on appeal to be effective, absent a
substantial and prejudicial underlying error or irregularity.” State
v. Curtis, 2013 UT App 287, ¶ 25, 317 P.3d 968 (quotation
simplified). After the court told the jury to disregard the “murder
time” statement and gave its curative instruction, Prosecutor did
not attempt to make this same argument again. And we have no
reason to doubt that the jury disregarded the statement (as it had
been instructed to do) or that it accepted the court’s curative
instruction on this point. See Zazzetti, 2022 UT App 42, ¶ 44; Curtis,
2013 UT App 287, ¶ 25. We are accordingly not persuaded that the
misconduct was so “substantial and prejudicial” that the court
abused its discretion by not granting a mistrial or a new trial. See
Harmon, 956 P.2d at 276 (quotation simplified).
20200284-CA 53 2023 UT App 15State v. Suhail
¶143 Despite this, Suhail argues that the curative instruction was
inadequate because it said only “what a murder sentence is not.”
Suhail then suggests that his requested instruction—“that a
murder sentence may be for life”—“might have cured the error
by resolving the question the prosecutor’s misstatement
provoked.” But Prosecutor was attempting to argue that by
saying “[t]wenty-five years,” Suhail must have been referring to
murder and not some other crime. The court disrupted that
argument when it told the jury to disregard the statement and
when it then instructed “that the sentence for murder is not[,]
under the law, 25 years.” We are thus unpersuaded “that the
prosecutor’s comment was so prejudicial as to defeat the
mitigating effect of the court’s curative instruction[].” Taylor v.
State, 2007 UT 12, ¶ 115, 156 P.3d 739 (quotation simplified); see
also Harmon, 956 P.2d at 276–77 (holding that a district court did
not abuse its discretion when it denied a mistrial motion based on
prosecutorial misconduct, in part because the district court gave
a curative instruction); State v. Almaguer, 2020 UT App 117, ¶ 18,
472 P.3d 326 (holding that a defendant was not prejudiced by a
prosecutor’s misstatement when the district court “swiftly and
explicitly condemned” the misstatement and “reiterated” a
relevant jury instruction).
B. “Chicken Feed Bullshit”
¶144 During closing, Prosecutor also characterized one of
Counsel’s arguments as “chicken feed bullshit.” Suhail contends
that this comment was prosecutorial misconduct because it “was
a personal attack, insinuating that Suhail attempted [to] mislead[]
the jury.” We reject this argument because it was not preserved
and because Suhail has not demonstrated plain error.
¶145 When Prosecutor made this comment, Counsel did not
object. Nor did Counsel challenge this comment when he later
moved for a mistrial. Rather, Counsel’s claim that this comment
was prosecutorial misconduct first appeared in Counsel’s motion
20200284-CA 54 2023 UT App 15State v. Suhail
for a new trial. But “our supreme court has explained that raising
an objection that could have been raised at trial for the first time
in a post-trial motion is insufficient to preserve the issue for
appellate review, because doing so deprives the trial court of an
opportunity to address the claimed error, and if appropriate,
correct it.” State v. Fredrick, 2019 UT App 152, ¶ 21, 450 P.3d 1154(quotation simplified); see also State v. Fullerton, 2018 UT 49, ¶ 49
n.15, 428 P.3d 1052 (explaining “that an objection that could have
been raised at trial cannot be preserved in a post-trial motion”).
¶146 Suhail’s claim is thus unpreserved, and he must
accordingly show plain error to succeed on appeal. And again, a
defendant claiming plain error “must establish that (i) an error
exists; (ii) the error should have been obvious to the trial court;
and (iii) the error is harmful.” Johnson, 2017 UT 76, ¶ 20 (quotation
simplified).
¶147 Here, there’s no real question that Prosecutor used a
profane term as a pejorative description for one part of the
defense’s theory. We agree that this was both intemperate and
unprofessional. And under understood norms of decorum and
civility, this comment had no place in this trial. See State v. Condon,
789 N.E.2d 696, 715 (Ohio Ct. App. 2003) (explaining that a
prosecutor’s use of “bullshit” was “grossly unprofessional and
clearly meant to inflame the jury”); State v. Ward, No. 18211, 2001
WL 220244, at *6 (Ohio Ct. App. Mar. 2, 2001) (stating that it was
“entirely unprofessional” for a prosecutor to call expert testimony
“bullshit”). Comments such as this one should not be made in an
attorney’s argument.
¶148 But again, the question before us is whether Suhail is
entitled to reversal of his conviction as a result, and as we’ve
explained, Suhail must show that he was prejudiced.
¶149 Aside from its incivility, Suhail argues that the term
“bullshit” was prejudicial because, according to the Urban
20200284-CA 55 2023 UT App 15State v. Suhail
Dictionary, the term carries a particular meaning that implies
that the speaker is attempting to mislead someone.22 While we
acknowledge the potential linguistic appeal of this interpretation,
we nevertheless don’t see it as one that should have been
obvious to the district court. When the district court heard this
comment, it could have instead concluded that Prosecutor was
simply challenging the strength of Counsel’s substantive
argument (as opposed to Counsel’s personal veracity) in a vulgar
way.23 We are thus unpersuaded that the particular meaning
that Suhail now gives this term should have been so obvious to
the district court that it needed to interfere. See Johnson, 2017 UT
76, ¶ 20.
¶150 Furthermore, even if Suhail’s particular interpretation of
“bullshit” is one that should have been obvious to the
district court, we still believe that the court could have reasonably
concluded that it would be better not to interject. In
some ineffective assistance of counsel cases, we have held
that trial counsel did not perform deficiently for declining to
object to a challenged statement if doing so might have
drawn further attention to it. See, e.g., State v. Hulse, 2019 UT App
105, ¶ 40, 444 P.3d 1158 (explaining that when a witness called
the defendant “evil,” it was “conceivable that a competent
attorney would have chosen not to draw the jury’s further
attention to the fleeting exchange by objecting to its content”);
State v. Jimenez, 2007 UT App 116, ¶ 11, 158 P.3d 1128.
This dynamic holds true here too with regards to what the
court was or was not required to do. In the very same moment
22. See Bullshit, Urban Dictionary, https://www.urbandictionary.
com/define.php?term=Bullshit [https://perma.cc/2GPQ-UUNL]
(defining “bullshit” as “lies or untrue stuff”).
23. See id. (defining “bullshit” as “[a]nything ridiculous, and/or
unnecessary”).
20200284-CA 56 2023 UT App 15State v. Suhail
in which the court would have had to decide whether to say
something about this comment sua sponte, the same things that
made the comment inappropriate in the first place (namely, its
incivility and its disparagement of the defense’s case) would have
also suggested that the court might not want to focus the jury’s
attention on the comment by calling it out. Given this, it’s not
obvious that the court was required to intervene on its own
without any prompting from Counsel. Put differently, since
Counsel could reasonably think it was in the defense’s best
interests to simply let this comment slide without correction, the
court could too.
¶151 Because there was no obvious error, we conclude that
Suhail has not shown plain error. Because there was no plain
error, we do not reverse on this ground.
IV. Cumulative Error
¶152 Suhail’s final argument is that even if no individual error
merits reversal, the cumulative effect of the errors does.
¶153 A court must make “three determinations before reversing
a verdict or sentence under the cumulative error doctrine: it must
determine that (1) an error occurred, (2) the error, standing alone,
has a conceivable potential for harm, and (3) the cumulative effect
of all the potentially harmful errors undermines its confidence in
the outcome.” State v. Martinez-Castellanos, 2018 UT 46, ¶ 42, 428
P.3d 1038.
¶154 For purposes of Suhail’s claim, we assume that the
following errors occurred: (1) the admission of Technician’s size
testimony, (2) Counsel’s failure to tell the jury about Neighbor’s
shoe size, (3) Detective’s testimony that the evidence did not
contradict the State’s witnesses, and (4) Prosecutor’s “murder
20200284-CA 57 2023 UT App 15State v. Suhail
time” and “chicken feed bullshit” comments.24 We also assume
that each of these errors, “standing alone, has a conceivable
potential for harm.” Id.¶155 Even if we combine these errors, we are not persuaded that
they merit reversal. This is because—as explained above—
Technician’s shoe size testimony was relatively weak and Counsel
effectively countered Detective’s testimony by getting Detective
to admit that there were contradictions. Additionally, the State
presented a strong circumstantial evidence case. As recounted
above, there was evidence placing Suhail at Victim’s apartment
around the time of death, evidence that Suhail left a bloody
shoeprint in Victim’s apartment, evidence that Suhail had a bruise
on his neck the day after the murder, evidence that Suhail took
Victim’s phone, cash, and pills and had them after Victim’s death,
and testimony that Suhail made potentially incriminating
comments to Ex-Girlfriend. Given all this, “the cumulative effect
of all the potentially harmful errors” does not undermine our
confidence in the outcome of Suhail’s trial. See id. We therefore
decline to reverse based on the cumulative error doctrine.
CONCLUSION
¶156 The district court did not abuse its discretion by admitting
Technician’s outsole comparison. Nor did it plainly err by not
24. We note that we can’t truly aggregate all these errors together.
This is because Counsel would not have introduced Neighbor’s
shoe size if Technician’s size testimony had been excluded.
Accordingly, we’re considering two different hypothetical trials:
one where there is no testimony about shoe sizes at all, and one
where there is testimony about shoe sizes (but now including
Neighbor’s). In either hypothetical trial, our confidence in the
outcome of the trial is not undermined. See State v. Martinez-
Castellanos, 2018 UT 46, ¶ 42, 428 P.3d 1038.
20200284-CA 58 2023 UT App 15State v. Suhail
interfering when Detective testified that the size 10 shoes were
women’s shoes. Suhail has not shown that the district court
abused its discretion by declining to exclude evidence, grant a
mistrial, or grant a new trial based on the State’s alleged violation
of the Expert Notice Statute and rule 16 of the Utah Rules of
Criminal Procedure. He also has not shown that he was
prejudiced by Counsel’s alleged failure to investigate
Technician’s testimony or Counsel’s failure to introduce
Neighbor’s shoe size.
¶157 Suhail also has not shown that he was prejudiced by
Detective’s testimony that the evidence did not contradict the
State’s witnesses. Nor has he shown that the court erred by not
granting a mistrial or a new trial based on Prosecutor’s “murder
time” statement. And he has not shown that the court plainly
erred by not interrupting when Prosecutor referred to Suhail’s
argument as “chicken feed bullshit.” Finally, the cumulative effect
of the alleged errors does not undermine our confidence in the
outcome of Suhail’s trial.
¶158 Affirmed.
20200284-CA 59 2023 UT App 15