State v. Evans

              THE UTAH COURT OF APPEALS

                      STATE OF UTAH,
                        Appellee,
                            v.
                  DOUGLAS DWAYNE EVANS,
                        Appellant.

                           Opinion
                      No. 20170340-CA
                    Filed August 22, 2019

          Third District Court, Salt Lake Department
                 The Honorable Ann Boyden
                         No. 141906586

            Herschel Bullen, Attorney for Appellant
       Sean D. Reyes, Nathan D. Anderson, and Karen A.
               Klucznik, Attorneys for Appellee

    JUDGE RYAN M. HARRIS authored this Opinion, in which
   JUDGES GREGORY K. ORME and MICHELE M. CHRISTIANSEN
                   FORSTER concurred.

HARRIS, Judge:

¶1     A jury convicted Douglas Dwayne Evans of murdering a
man (Victim) he suspected was intimately involved with his
fiancée (Fiancée). Evans appeals, arguing that the trial court
erred by denying his motion to suppress the results of a DNA
sample taken from him by force he contends was unreasonable,
and arguing that his trial attorney provided ineffective
assistance by failing to object to certain evidence. We find
Evans’s arguments unpersuasive, and therefore affirm.
                           State v. Evans


                        BACKGROUND 1

¶2      Evans and Fiancée were engaged to be married, but had a
relationship that Fiancée described as difficult and
argumentative. Each of them had on various occasions accused
the other of infidelity, and Evans was apparently particularly
jealous of Fiancée’s relationship with forty-nine-year-old Victim,
whom Fiancée considered a long-time family friend. About ten
days before the murder, Evans composed a letter to Fiancée—
that he never sent or delivered—in which he wrote, among other
things, that he could not “imagine someone [else] touching
[her]” and that if he learned such activities were occurring he
did not “know what [he] would do.” A few days later, Evans
sent a series of text messages to Fiancée in which he was more
explicit, stating that he knew that it was Victim’s “old ass [she
had] been going to see sneaky” and that he intended to go “on a
ram page” and that he “know[s] where dat old f[…] [Victim]
live[s].” He made clear that he had previously warned Fiancée:
“I told u u cheat u die it was ur choice u chose.” One of his last
text messages to Fiancée on the day of the murder contained a
picture of a black handgun, and instructed her to “[j]ust please
be honest wit me for once, please.”

¶3      Somewhat ironically, Evans’s anger and jealousy burned
hottest upon his return from an overnight trip to Wendover,
Nevada with a female friend (Friend). During the trip, Evans
had been wearing a red L.A. Angels baseball cap, and he and
Friend had traveled to and from Wendover in Evans’s silver
Infiniti sedan notable for its showy and distinctive metal wheel
rims. Late in the afternoon on May 31, 2014, after returning from
Wendover earlier that day, Evans drove the same silver sedan
into Victim’s neighborhood in Kearns, Utah. One of Victim’s


1. “On appeal, we construe the record facts in a light most
favorable to the jury’s verdict.” State v. Maestas, 

,

 (quotation simplified).



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                           State v. Evans


neighbors (Neighbor) noticed a silver sedan with “really large”
rims parked in front of Victim’s house, and observed a man
matching Evans’s description emerge from the vehicle and start
walking toward Victim’s house.

¶4      Evans went up to Victim’s door and knocked. At the time,
Victim was home, accompanied by a female guest (Guest). Guest
later testified that, after hearing a knock at the door, Victim left
his bedroom to answer it and, although she could not see the
door, she heard Victim say “I haven’t seen her, I swear.”
Immediately thereafter, she heard a “loud crack” that “sounded
like a doorjamb breaking.” She waited a moment before going to
the door to investigate, and by the time she got there she saw,
out of the front window, a “darker man with longer hair”
walking away from the house down the driveway, then get in a
silver sedan and drive off. She found Victim lying face down
next to the door, his forehead swollen, and not breathing. She
saw “blood everywhere” and could smell gunpowder. On the
ground next to Victim detectives discovered a red L.A. Angels
baseball cap.

¶5     Evans left the scene in the Infiniti sedan, but abandoned
the car later that day several miles from the scene of the
shooting. He then picked up Friend in a different car—a Cadillac
Escalade Evans had previously given to Fiancée as a Mother’s
Day present—and the two of them drove back to Wendover.

¶6     Guest reported the shooting to police, who began an
investigation. Two days later, police arrested Evans, who denied
any involvement in the shooting and claimed that he could not
have committed the crime because he had been in Wendover at
the time. Evans also told police that, a few days earlier, he had
lent his Infiniti to either his “lady” or his cousin and had not
seen it since. Evans eventually gave an address to police where
he thought the Infiniti was located, but the vehicle was not there.
Evans then gave a phone number for his cousin to police, but the
phone number was no good. In spite of Evans’s misinformation,
police eventually recovered the Infiniti and found a cell phone


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                          State v. Evans


inside, as well as blood on the driver’s side door. Police also
recovered an additional four cell phones from Evans’s Escalade,
and later obtained cell site location information (CSLI) 2 for all
five phones from the relevant cellular service providers. That
information, combined with time-stamped surveillance camera
footage from both a hotel and a convenience store in Wendover,
allowed police to ascertain Evans’s general whereabouts on May
30 and 31. According to that evidence, Evans had indeed been in
Wendover overnight on May 30, but had returned to the Salt
Lake Valley during the late morning of May 31, before driving
back to Wendover later that night. The CSLI also showed that,
during the late afternoon of May 31, right around the time of the
shooting, Evans had been within 200 meters of Victim’s home.

¶7    Investigators also wanted to verify if the red baseball cap
found at the crime scene belonged to Evans, and sent the cap to


2. The United States Supreme Court recently explained CSLI:
       Cell phones continuously scan their environment
       looking for the best signal, which generally comes
       from the closest cell site. Most modern devices,
       such as smartphones, tap into the wireless network
       several times a minute whenever their signal is on,
       even if the owner is not using one of the phone’s
       features. Each time the phone connects to a cell
       site, it generates a time-stamped record known as
       cell-site location information (CSLI). The precision
       of this information depends on the size of the
       geographic area covered by the cell site. The
       greater the concentration of cell sites, the smaller
       the coverage area. As data usage from cell phones
       has increased, wireless carriers have installed more
       cell sites to handle the traffic. That has led to
       increasingly compact coverage areas, especially in
       urban areas.
Carpenter v. United States, 

, 2211–12 (2018).



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                           State v. Evans


be analyzed for DNA. Evans refused to voluntarily provide a
DNA sample, so investigators sought and obtained a search
warrant authorizing them to collect Evans’s DNA by using a
“buccal swab” technique—essentially, a simple and painless
swab of the inside of a person’s cheek with a cotton swab. See
State v. White, 

, 

 (describing a
buccal swab). Even after investigators obtained the search
warrant and showed a copy of it to him, Evans continued to
resist, refusing to open his mouth, and thrashing and kicking at
officers attempting to perform the swab. Police then forcibly
obtained the DNA sample by handcuffing him, placing him in
leg irons and a belly chain, and using “four or five pretty large
detectives” to hold him down, employ a “control hold” on one of
his wrists, and “hold his mouth” so that a technician could,
“through clenched teeth,” “get into [Evans’s] cheek and do the
swab.” After testing, that sample conclusively matched the
major DNA profile on the baseball cap found at the crime scene;
according to the State’s DNA expert, the odds that the DNA on
the cap belonged to someone other than Evans was 1 in 227,000.

¶8      Based on the evidence it gathered during its investigation,
the State eventually charged Evans with three crimes: murder,
aggravated burglary, and possession of a dangerous weapon by
a restricted person. Prior to trial, Evans filed a motion asking the
trial court to suppress the DNA evidence, on the ground that the
State had used unreasonable force in obtaining the DNA sample
from him. The trial court denied Evans’s motion, concluding that
“the force that was used was solely in response to [Evans’s]
efforts to resist the execution of a properly obtained warrant”
and was therefore not unreasonable.

¶9      The case proceeded to a five-day jury trial. During its
case-in-chief, the State presented testimony from more than
twenty witnesses, including Fiancée, Friend, Neighbor, and
Guest, who provided testimony about what happened on May
31, 2014; a DNA expert and a CSLI expert, who provided
scientific testimony; and two individuals who had met Evans in
jail and who both testified that Evans had confessed the murder


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                           State v. Evans


to them. In addition, the State presented the unsent letter Evans
had written to Fiancée ten days before the shooting, as well as
several pre-shooting photographs of Evans standing in front of
both the silver Infiniti sedan and the Cadillac Escalade; in some
of these photos, Evans was wearing a red L.A. Angels baseball
cap, and in three of the photos, Evans is making a distinctive
hand gesture. Evans’s trial counsel did not object to the
admission of the letter or any of the photos, even the three in
which Evans was making the hand gesture. The State introduced
the photos, at least in part, to demonstrate that Evans possessed
the Infiniti and the Escalade, and that he often wore a red L.A.
Angels baseball cap; discussion of the photos at trial did not go
much beyond those topics, and no witness or attorney ever
mentioned the hand gesture, let alone stated or implied that the
gesture might be gang-related.

¶10 Evans’s attorneys vigorously cross-examined the State’s
witnesses, but elected not to present any defense witnesses, and
Evans did not testify. In cross-examination and argument,
counsel emphasized the State’s burden to prove guilt beyond a
reasonable doubt by calling attention to discrepancies in witness
testimony, presenting Evans’s relationship with Friend as proof
that he no longer cared about Fiancée, and questioning the
accuracy of the DNA and CSLI evidence. At the conclusion of
the trial, the jury found Evans guilty on all charges.


            ISSUES AND STANDARDS OF REVIEW

¶11 Evans now appeals his convictions, and asks us to review
two main issues. 3 Evans first asserts that the trial court erred in

3. In his opening brief, Evans also challenged the introduction of
the CSLI evidence, based on his belief that it had been obtained
without a warrant. In response, the State pointed out that four of
the nine search warrants obtained in this case had to do with the
various cell phones found in Evans’s possession. In his reply
                                                    (continued…)


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                           State v. Evans


denying Evans’s motion to suppress the DNA evidence obtained
by means of the buccal swab. “We review a trial court’s decision
to grant or deny a motion to suppress for an alleged Fourth
Amendment violation as a mixed question of law and fact.” State
v. Fuller, 

, 

. “While the court’s
factual findings are reviewed for clear error, its legal conclusions
are reviewed for correctness, including its application of law to
the facts of the case.” 

¶12 Evans, through new counsel on appeal, next argues that
his trial attorney provided constitutionally ineffective assistance.
“When a claim of ineffective assistance of counsel is raised for
the first time on appeal, there is no lower court ruling to review
and we must decide whether the defendant was deprived of the
effective assistance of counsel as a matter of law.” State v. Craft,

, 

 (quotation simplified).


                            ANALYSIS

                                 I

¶13 Evans first contends that the trial court erred in denying
his motion to suppress the DNA evidence investigators obtained
by forcibly swabbing his cheek pursuant to a search warrant.
Specifically, he asserts that the search warrant did not—either
expressly or impliedly—give police officers the authority to
obtain his DNA by means of force, and that even if it did, the
force that police officers used to collect the sample was
excessive. For the reasons that follow, we find Evans’s
arguments unpersuasive.




(…continued)
brief, Evans withdrew his challenge to the CSLI evidence, and
we therefore do not further address this withdrawn argument.



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                          State v. Evans


                                A

¶14 Officers obtained a search warrant to obtain Evans’s
DNA. That warrant authorized officers to “make a search” of
Evans’s person, by means of a “[b]uccal swab[],” so that the State
could conduct “DNA testing.” Evans does not challenge the
validity of that warrant, and does not contest the fact that the
State had the right to obtain his DNA by means of a buccal swab.

¶15 But Evans does challenge the officers’ right to use force in
executing the warrant. This particular search warrant did not
explicitly authorize the use of “reasonable force” in connection
with its execution, nor did it explicitly forbid it; instead, the
warrant was silent on the issue. Evans contends that officers
executing such a warrant are not authorized to use any kind of
force, even reasonable force; indeed, Evans asserts that, in the
face of his resistance to the execution of this warrant, officers
were required to stand down until they had obtained a second
warrant, one that expressly authorized the use of reasonable
force. But Evans’s position, while energetically offered, is
supported by neither law nor policy.

¶16 The United States Supreme Court has made clear that
search warrants need not specify the “precise manner in which
they are to be executed,” and that “it is generally left to the
discretion of the executing officers to determine the details of
how best to proceed with the performance of a search authorized
by warrant.” Dalia v. United States, 

 (1979).
Indeed, “courts have upheld the use of forceful breaking and
entering where necessary to effect a warranted search, even
though the warrant gave no indication that force had been
contemplated,” and there is “[n]othing in the decisions of [the
U.S. Supreme Court that] indicates that officers requesting a
warrant would be constitutionally required to set forth the
anticipated means for execution even in those cases where they
know beforehand that unannounced or forced entry likely will
be necessary.” 

 at 257 & n.19; see also Los Angeles County v.
Rettele, 

 (2007) (“When officers execute a valid


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                           State v. Evans


warrant and act in a reasonable manner to protect themselves
from harm . . . the Fourth Amendment is not violated.”); State v.
Clary, 

 (Ariz. Ct. App. 2000) (stating that “the
Fourth Amendment [does not] preclude the use of reasonable
force to overcome defendant’s resistance to the execution of a
warrant”); cf. United States v. Husband, 

, 638–40 (7th
Cir. 2000) (Easterbrook, J., dissenting) (stating that “every
warrant authorizes” the “police to use force to overcome
resistance,” and that, once the suspect refused the warrant, “the
police were entitled to use force” to execute it).

¶17 The law is even more clear in the context of arrest
warrants—the United States Supreme Court has held that “the
right to make an arrest or investigatory stop necessarily carries
with it the right to use some degree of physical coercion or threat
thereof to effect it,” see Graham v. Connor, 

 (1989),
and even Evans acknowledged, at oral argument before this
court, that arrest warrants come complete with implied authority
to employ reasonable force, if necessary, in executing them. 4
Both types of warrants—one authorizing a search, the other a
seizure—are analyzed under Fourth Amendment 5 standards and


4. Indeed, under Utah law, it is a crime to actively resist arrest.
See 

(1) (LexisNexis 2017). In some
states, it is also a crime to actively resist execution of a search
warrant. See, e.g., State v. Gonzalez, 

 (Conn. App.
Ct. 2013) (affirming a conviction for violation of a state statute
criminalizing resistance to the execution of search warrants, in a
case where the defendant had refused to open his mouth for a
buccal swab authorized by a valid search warrant). Utah does
not appear to have a specific statute criminalizing resistance to a
search warrant; in any event, the State does not contend that
Evans violated Utah law by resisting the buccal swab.

5. At various points in his briefing, Evans alludes to the Utah
Constitution, noting that Article I, Section 14 sometimes has been
                                                     (continued…)


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                          State v. Evans


principles, and Evans offers no persuasive rationale why search
warrants should be treated any differently than arrest warrants
with regard to whether a reasonable force authorization is
implied with issuance. 6



(…continued)
construed to provide “a greater expectation of privacy than the
Fourth Amendment.” But Evans develops this argument no
further than a conclusory citation, and makes no reasoned and
specific argument for construing our state constitution more
broadly in this particular context. Without more fulsome briefing
on the question, our supreme court generally refuses to consider
state constitutional arguments, see State v. Fuller, 

, 

 (concluding that a state constitutional
argument was “inadequately briefed” when it was supported
only by “general statements regarding the Fourth Amendment
and Article I, Section 14 of the Utah Constitution” and a “bare
analysis of how our state constitution affords, in certain
instances, greater protections than the federal constitution,” and
failed to include any discussion of “how the protections afforded
under the Utah Constitution impact” the defendant’s specific
claims); State v. Worwood, 

, ¶¶ 18–19, 

(stating that “cursory references to the state constitution within
arguments otherwise dedicated to a federal constitutional
claim,” without “distinct legal argument or analysis” of the state
constitution, are “inadequate” to properly brief the state
constitutional issues), and we do likewise here.

6. Evans directs our attention to two statutes, both inapplicable
here, that specifically authorize officers to act with reasonable
force in particular contexts. See 

(3)
(LexisNexis 2015) (authorizing the collection of DNA samples
from certain individuals, and specifically stating that “[t]he
responsible agency may use reasonable force . . . to collect the
DNA sample if the person refuses to cooperate with the
                                                    (continued…)


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                           State v. Evans


¶18 Finally, Evans’s position—which would allow suspects to
thwart, or at least delay, execution of a search warrant simply by
resisting—has strong policy drawbacks. Many courts have noted
that it makes little sense to incentivize noncompliance with (or
active resistance to) the execution of search warrants. See, e.g.,
United States v. Bullock, 

, 176 & n.4 (5th Cir. 1995)
(stating that the suspect “had no right to resist execution of a
search warrant” and that, due to his resistance, “he was the one
who decided that physical force would be necessary”); United
States v. Johnson, 

 (3d Cir. 1972) (stating that “a
person does not have the right to forcibly resist execution of a
search warrant”); United States v. Jensen, No. CR. 08-50031, 

, at *36 (D.S.D. Feb. 12, 2010) (stating that a
defendant “cannot resist a lawfully-executed search warrant and
then be rewarded for his conduct with the exclusion of
potentially-incriminating evidence”); Clary, 

(stating that the “defendant had no right to resist service of a
court order authorizing extraction of his blood,” and that
“[w]hen he refused to [voluntarily submit], he left the officers no
alternative but to overcome his resistance with reasonable
force”); Carr v. State, 

 (Ind. 2000) (stating that
the law should not “create an incentive to refuse to comply with


(…continued)
collection”); 

 § 77-23-210(4) (Supp. 2018) (stating that officers
executing warrants for the search of physical structures (e.g.,
buildings) “may use only that force which is reasonable and
necessary to execute the warrant”). The State does not argue that
either of these statutes applies here, and Evans correctly notes
that, because these statutes are inapplicable, they do not provide
independent authorization for the officers’ use of force in
collecting the DNA sample from Evans. But winning this point
does not help Evans in the long run, because it does not follow
from the officers’ lack of statutory authority to use reasonable
force that their actions were constitutionally impermissible. See
Dalia v. United States, 

, 257 & n.19 (1979).



20170340-CA                     11               

                           State v. Evans


valid search warrants”). Institution of a legal rule under which
officers would be compelled, upon encountering resistance to
the execution of a warrant, to return to the magistrate to obtain a
specific authorization for the use of reasonable force would
create just such a perverse incentive.

¶19 For these reasons, we conclude that a validly issued
search warrant carries with it an implicit authorization for the
use of reasonable force, when necessary, in its execution. Even
though the warrant in question here did not contain an express
statement authorizing the use of reasonable force, such an
authorization was implied in the issuance of the warrant, and
officers did not need to return to the magistrate to obtain a
second warrant containing specific instructions as to how it
should be executed.

                                  B

¶20 But an authorization to use “reasonable force” in the
execution of a search warrant does not function as permission
for officers to act however they please when executing such
warrants. See Hummel-Jones v. Strope, 

 (8th Cir.
1994) (stating that “possession of a search warrant does not give
the executing officers a license to proceed in whatever manner
suits their fancy”). The force used in executing warrants must, of
course, be reasonable; indeed, “[e]ven when armed with a valid
search warrant, law enforcement may violate a defendant’s
Fourth Amendment rights if the manner in which the warrant is
executed is unreasonable or unnecessarily harmful.” See United
States v. Jensen, No. CR. 08-50031, 

, at *32
(D.S.D. Feb. 12, 2010); see also Dalia v. United States, 

 (1979) (stating that “the manner in which a warrant is
executed is subject to later judicial review as to its
reasonableness”).

¶21 Evans asserts that the force the detectives applied to him
in this case was unreasonable and excessive. He points out that
he was placed in handcuffs, leg irons, and a belly chain, and that


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                           State v. Evans


four or five “pretty large” detectives held him down, applied a
“control hold,” and forcibly accessed his mouth to perform the
swab. He asserts, no doubt accurately, that these actions caused
him pain, and claims that the force used was unreasonable.

¶22 In assessing the reasonableness of force used in the
execution of a valid search warrant, we apply the balancing test
articulated by the United States Supreme Court in Graham v.
Connor, 

 (1989). In that case, the Court declared that
“all claims that law enforcement officers have used excessive
force—deadly or not—in the course of an arrest, investigatory
stop, or other ‘seizure’ of a free citizen should be analyzed under
the Fourth Amendment and its ‘reasonableness’ standard.” 

. Assessing the reasonableness of the force used in a
particular situation “requires a careful balancing” of (a) “the
nature and quality of the intrusion on the individual’s Fourth
Amendment interests” against (b) “the countervailing
governmental interests at stake.” 

 (quotation
simplified). While Graham involved an arrest warrant, courts
assessing the reasonableness of force used in executing an
otherwise-valid search warrant have applied the two-prong
balancing test articulated in Graham, see, e.g., Jensen, 

, at *32–33; State v. Clary, 

 (Ariz. Ct.
App. 2000), and we do likewise here. 7




7. Instead of the two-prong Graham test, both sides ask us to
apply a slightly different three-part balancing test articulated by
the United States Supreme Court in Winston v. Lee, 

(1985). Pursuant to that test, courts are to weigh (a) “the extent to
which the procedure may threaten the safety or health of the
individual”; (b) “the extent of intrusion upon the individual’s
dignitary interests in personal privacy and bodily integrity”; and
(c) “the community’s interest in fairly and accurately
determining guilt or innocence.” 

 at 761–62. In our view, that
test is more properly used to assess the reasonableness of a
                                                      (continued…)


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                           State v. Evans


¶23 Under the Graham test, the “‘reasonableness’ of a
particular use of force must be judged from the perspective of a
reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Graham, 

 (articulating a standard of
“reasonableness at the moment”). Indeed, “not every push or
shove, even if it may later seem unnecessary in the peace of a
judge’s chambers, violates the Fourth Amendment.” 

(quotation simplified). “The calculus of reasonableness must
embody allowance for the fact that police officers are often
forced to make split-second judgments—in circumstances that
are tense, uncertain, and rapidly evolving—about the amount of
force that is necessary in a particular situation.” 

 at 396–97.
Moreover, “the reasonableness inquiry in an excessive force case


(…continued)
search procedure that is either proposed to be used pursuant to a
requested warrant or that has been used already, without
judicial pre-approval, in an exigent situation. See 

 (applying
the three-part test to the question of whether a court should
issue an order allowing surgical invasion of a suspect’s body to
retrieve a bullet); State v. Hodson, 

 (Utah 1995)
(applying the three-part test to the question of the
reasonableness of officers’ actions in conducting a warrantless
search of a suspect’s mouth based upon probable cause in an
exigent situation). When a warrant has already been properly
obtained, and the propriety of the search procedure (e.g., a
buccal swab) authorized by that warrant is uncontested, and the
only question is whether the force used in executing the warrant
is reasonable, the better test is the Graham test; indeed, the first
factor in the Winston test—analyzing the procedure to be used—
may not be directly applicable to a situation like ours where no
party contests the propriety of the search procedure. We
therefore apply the two-factor Graham test to this situation, but
note that—due to the similarity between the two Graham factors
and the latter two Winston factors—the outcome of this case
would be the same under either analysis.



20170340-CA                     14               

                           State v. Evans


is an objective one: the question is whether the officers’ actions
are objectively reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent or
motivation.” Id. at 397 (quotation simplified). This test is factspecific and “not capable of precise definition or mechanical
application,” and “its proper application requires careful
attention to the facts and circumstances of each particular case,
including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others,
and whether he is actively resisting” the officers’ efforts. Id. at
396 (quotation simplified).

¶24 The first general factor to consider is “the nature and
quality of the intrusion on the individual’s Fourth Amendment
interests.” Id. (quotation simplified). In this situation, Evans was
already in custody at the time the search was performed, and
officers had already obtained a valid warrant to search his
person for DNA by means of a buccal swab. Evans does not
contest the propriety of either his arrest or the search warrant.
Moreover, as already noted, the procedure officers planned to
use to execute the warrant (a buccal swab) is relatively noninvasive, quick, and painless, and had already been specifically
authorized by a magistrate. Had the officers been able to execute
the warrant without encountering resistance, not even Evans
(given his acknowledgment that the warrant was valid) would
contend that any Fourth Amendment violation occurred. And
this is not a situation in which the officers wanted to apply force,
or in which they applied force before giving Evans a chance to
voluntarily comply. See Jensen, 

, at *34 (stating
that “[t]his is not a case where law enforcement initiated the
hostility”). Here, officers asked Evans to voluntarily open his
mouth, and even showed him a copy of the search warrant they
had obtained that authorized the buccal swab. It was only upon
Evans’s resistance that officers began to apply force.

¶25 And in this case, Evans’s resistance was substantial.
According to the officers, he was thrashing and kicking his arms
and legs in an effort to resist the swab, a circumstance that could


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                          State v. Evans


have resulted in injury to the officers. According to the record,
Evans was held down and placed in handcuffs, leg irons, and a
belly chain only after he began thrashing and kicking, and we
discern nothing inappropriate or excessive about using such
restraints in the face of such active resistance.

¶26 The record submitted to us is somewhat vague about
exactly how officers gained access to Evans’s mouth. Evans
maintains that the “control hold” used on his wrist was painful,
a contention we have no reason to disbelieve. But the record
does not tell us what a “control hold” is, nor does it contain
much specific information about the mechanism by which
officers eventually succeeded in swabbing Evans’s cheek. The
most fulsome description of that process that we have been able
to find is the technician’s testimony that officers “h[e]ld
[Evans’s] mouth” while he “managed to get into [Evans’s] cheek
and do the swab” “through clenched teeth.” Certainly, officers
may not employ excessive force to compel an individual to open
his mouth. We know from previous Utah case law, as well as
common sense, that placing a gun to a suspect’s head or choking
a suspect’s airway in an effort to compel him to open his mouth
would constitute excessive force. See State v. Hodson, 

, 1157–58 (Utah 1995) (determining that excessive force was
used when officers held a gun to a suspect’s head, and put an
arm around the suspect’s neck and throat, in an effort to compel
the suspect to disgorge the contents of his mouth). But in the
absence of more detailed information about a “control hold” or
about the precise mechanism used to gain access to Evans’s
mouth, we cannot conclude that Evans has carried his burden of
persuading us that the force used was excessive. See State v.
Alverez, 

, 

 (determining that officers
did not use excessive force when they grabbed the suspect’s
arms and wrists and “twisted them,” which “forced him to bend
forward” thus “making it more difficult for him to swallow” the
contents of his mouth).

¶27 In the end, the Fourth Amendment intrusion Evans
complains of resulted from his own resistance to a benign


20170340-CA                    16              

                            State v. Evans


procedure executed under a lawful warrant. 8 See Graham, 

 (stating that, among other things, courts should
consider whether the suspect “is actively resisting” officers’
efforts); Hodson, 

 (stating that, “in the absence of
any resistance, violence, or opposition to them, police officers
cannot reasonably threaten to hurt people they are searching”).
Evans’s assertion that he “was physically assaulted by police in
order to allow the detectives to forcibly obtain the evidence they
sought” does not account for Evans’s significant role in
complicating what would otherwise have been a brief,
straightforward, and minimally invasive encounter. See United
States v. Bullock, 

, 176 & n.4 (5th Cir. 1995) (stating that


8. The State appropriately acknowledges the strength of Evans’s
argument that his DNA “could have been obtained another
day,” and that it “was not going anywhere.” If Evans’s resistance
had been related to, say, some sort of temporary medical
condition, the State should of course have waited for a more
appropriate moment to collect the DNA sample. But on this
record, there is no indication that Evans’s resistance was related
to any momentary condition, or that he would have been more
cooperative on a later occasion. Any suggestion to the contrary is
pure speculation. See United States v. Jensen, No. CR. 08-50031,

, at *37 (D.S.D. Feb. 12, 2010) (stating that “the
court cannot speculate as to whether [the suspect] would have
been more cooperative at some later date”). And as a general
matter, officers are not required to wait until a time convenient
for the suspect to execute the search warrant, as long as officers
do not act unreasonably. See State v. Alverez, 

,

 (stating that “[t]he administration of justice and
crime prevention require convenient access to evidence where
this access can be provided in a reasonable fashion,” and
concluding that officers were not required to wait for drugs
concealed in the suspect’s mouth to “reappear[] in some form in
the future” so long as “the method of preventing the [suspect’s]
concealment was a reasonable one”).



20170340-CA                      17                

                           State v. Evans


the suspect “had no right to resist execution of a search warrant”
and that, due to his resistance, “he was the one who decided that
physical force would be necessary”); State v. Clary, 

 (Ariz. Ct. App. 2000) (stating that “defendant had no right
to resist service of a court order authorizing extraction of his
blood,” and that “[w]hen he refused to [voluntarily submit], he
left the officers no alternative but to overcome his resistance with
reasonable force”).

¶28 The other factor to consider under Graham is the
government’s countervailing interest in obtaining the evidence
in question. Here, the State has a compelling interest in
preserving the safety of the community by accurately identifying
perpetrators of serious crimes. See Alverez, 

(stating that “[t]he administration of justice and crime
prevention require convenient access to evidence where this
access can be provided in a reasonable fashion”). And the crime
Evans was suspected of committing was a very serious one:
murder. See Graham, 

 (stating that, among other
things, courts should consider “the severity of the crime at
issue”). In addition, the evidence sought here consisted of DNA,
a type of evidence that provides “unparalleled accuracy” in
identifying criminals. 9 See Maryland v. King, 

, 451


9. In his reply brief, Evans asserts that, because he had been
convicted of a felony in 2005, his DNA should already have been
“on file with the Bureau of Forensics,” and therefore the State
had no pressing need to again obtain his DNA in 2014 by means
of a cheek swab. See 

, -404(2)(a)
(LexisNexis 2015) (authorizing the collection of DNA samples
from certain individuals, including anyone convicted of “any
felony”). While this argument certainly contains potential force,
it fails in this case for two reasons. First, Evans raised the
argument for the first time in his reply brief, and therefore the
State has not had a chance to respond to it. For this reason, we
do not permit appellants to raise issues for the first time in their
                                                     (continued…)


20170340-CA                     18               

                           State v. Evans


(2013). In this instance, proving that the red L.A. Angels baseball
cap belonged to Evans was an important part of the State’s case.

¶29 On balance, we conclude that the State’s interest in
obtaining probative evidence far outweighs the intrusion on
Evans’s Fourth Amendment rights, especially where that
intrusion was necessitated by Evans’s active and physical
resistance to the search warrant, and where (at least on this
record) the actions taken by the officers constituted a measured
and proportionate response to the level of Evans’s resistance.
“Viewed from the objective perspective of a reasonable officer at
the scene, the use of force in this case was reasonable.” See
Jensen, 

, at *37. We therefore affirm the trial
court’s decision to deny Evans’s motion to suppress. 10




(…continued)
reply brief. See Brown v. Glover, 

, 

(stating that “issues raised by an appellant in the reply brief that
were not presented in the opening brief are considered waived
and will not be considered by the appellate court” in order “to
prevent the resulting unfairness to the respondent if an
argument or issue was first raised in the reply brief and the
respondent had no opportunity to respond”). Second, while the
State apparently had the right to take a sample of Evans’s DNA
in 2005 when he was previously convicted, there is no evidence
in this record that it ever did so, or that it remains on file and
readily available today; all we have in this record is Evans’s
speculative assertion that his DNA might have been on file with
the State. This is insufficient to satisfy Evans’s burden on appeal.

10. Because we conclude that no constitutional violation
occurred here, we do not reach the question of whether, on the
facts of this case, suppression would have been the proper
remedy for any such violation. See Hudson v. Michigan, 

, 591–92 (2006) (“Whether the exclusionary sanction is
                                                 (continued…)


20170340-CA                     19               

                           State v. Evans


                                 II

¶30 Evans also argues that his trial attorney provided
constitutionally ineffective assistance by failing to object to two
different categories of evidence introduced by the State: (a) three
photographs of Evans, standing in front of his vehicles, in which
he was making a distinctive hand gesture; and (b) the letter
Evans wrote (but did not send) to Fiancée.

¶31 “The Sixth Amendment to the United States Constitution
guarantees all defendants the right to effective assistance of
counsel.” State v. J.A.L., 

, 

. “To succeed
on a claim of ineffective assistance of counsel, a defendant must
show both ‘that counsel’s performance was deficient’ and ‘that
the deficient performance prejudiced the defense.’” State v.
Galindo, 

, 

 (quoting Strickland v.
Washington, 

 (1984)). “Proof of ineffective
assistance of counsel cannot be a speculative matter but must be
a demonstrable reality.” State v. Munguia, 

, 

 (quotation simplified). “Because both deficient
performance and resulting prejudice are requisite elements of an
ineffective assistance of counsel claim, a failure to prove either
element defeats the claim,” State v. Hards, 

,

, and therefore “a court need not determine whether
counsel’s performance was deficient before examining the
prejudice suffered by the defendant as a result of the alleged
deficiencies,” Strickland, 

.

¶32 To show prejudice, a “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. A

(…continued)
appropriately imposed in a particular case is an issue separate
from the question whether the Fourth Amendment rights of the
party seeking to invoke the rule were violated by police
conduct.” (quotation simplified)).



20170340-CA                     20               

                          State v. Evans


reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 

.
“Strickland’s prejudice prong requires a court to ‘consider the
totality of the evidence before the judge or jury’ and then ‘ask if
the defendant has met the burden of showing that the decision
reached would reasonably likely have been different absent the
errors.’” State v. Garcia, 

, 

 (quoting
Strickland, 466 U.S. at 695–96).

                                A

¶33 Evans first argues that his attorney was ineffective
for failing to object to three photographs admitted into evidence
which showed Evans making a peculiar hand gesture—one
that Evans now asserts could only be understood as a gang
sign. We reject Evans’s argument, because Evans has not
shown that the admission of the three photographs prejudiced
him.

¶34 The three photographs to which Evans now objects were
admitted during a five-day trial that featured more than a
hundred exhibits and more than twenty witnesses. Two of the
photographs show Evans standing in front of the silver Infiniti
sedan, wearing a red L.A. Angels baseball cap, red sneakers, and
red shorts. The third shows Evans, wearing different clothing,
standing in front of the Escalade identified by Fiancée as the
vehicle that Evans had given her as a Mother’s Day present. In
all three of these photos, Evans can be seen making a distinctive
hand gesture.

¶35 Evans has not persuaded us that there exists a reasonable
probability that, but for the admission of these three
photographs, the outcome of the trial would have been different.
While the sedan, the Escalade, and Evans’s clothing were
all relevant to the issues discussed at trial, at no time did
any lawyer or witness mention the hand gesture depicted in
the photographs, or make any statements tying Evans to
gang activities. And the motive for the murder proffered by


20170340-CA                    21               

                          State v. Evans


the    State—romantic      jealousy—was      purely    personal,
unconnected to any type of gang involvement. Evans speculates
both that the hand gesture is indeed a gang sign (given that no
one mentioned the hand gesture at trial, there is no actual
evidence to support that assertion) and that some of the jurors
might have inferred from the photographs that Evans was a
member of a gang. We find these inferences speculative, but
conclude that, even if some or all of the jurors had drawn the
conclusion that Evans was a gang member, there is no
reasonable probability that the outcome of the trial would have
been any different.

¶36 In this case, the overall evidence of Evans’s guilt
was overwhelming enough to make it extremely unlikely that
any gang inferences the jury might have silently and improperly
drawn (without any help from any of the attorneys) would
have made a material difference to the outcome. The CSLI
and surveillance camera footage constituted compelling
evidence of Evans’s whereabouts, effectively debunking Evans’s
initial claim that he was in Wendover at the time of the shooting.
The DNA evidence constituted additional compelling evidence
that Evans had been present at the scene of the shooting where
his cap was left behind. And the testimony from the various
witnesses (i.e., Neighbor, Friend, Fiancée, Guest, and the two
jailhouse informants), as well as the documentary evidence (i.e.,
text messages), all strongly supported the State’s theory of the
case.

¶37 Taken together, this evidence pointed overwhelmingly
toward Evans’s guilt, and none of it relied on showing that
Evans was affiliated with a gang or gang activity. Under these
circumstances, Evans has not shown that, had his attorney
succeeded in excluding these three photographs, there was “a
reasonable probability that . . . the result of the proceeding
would have been different.” See Strickland, 

. We
accordingly conclude that Evans’s counsel was not ineffective for
failing to object to the three photographs.



20170340-CA                    22              

                          State v. Evans


                                B

¶38 Next, Evans argues that his attorney was ineffective for
failing to object to the admission of the unsent letter that he
composed for Fiancée some ten days before the shooting. In
addition to discussing his concerns about Fiancée’s alleged
infidelity, Evans also described himself, in the letter, as “moody”
and an “asshole.” While this evidence was certainly no help to
Evans, we are unpersuaded that there exists any reasonable
probability that the outcome of the trial would have been
different had this letter been excluded. The State presented it
merely as background evidence supporting its theory of the case,
and it was hardly a smoking gun, especially considering the
much more explicit text messages that came into evidence. And,
as noted above, the overall evidence of Evans’s guilt was
overwhelming. Under these circumstances, Evans has not shown
that, had the letter been excluded from evidence, there exists “a
reasonable probability that . . . the result of the proceeding
would have been different.” See 

 Accordingly, his counsel was
not ineffective for failing to object to admission of the letter.


                         CONCLUSION

¶39 The trial court did not err in denying Evans’s motion to
suppress the DNA evidence resulting from the forcible cheek
swab, because the search warrant came with an authorization to
use reasonable force, and the force used in this case was not
unreasonable. Moreover, Evans has not persuaded us that his
trial attorney provided ineffective assistance.

¶40   Affirmed.




20170340-CA                    23