State v. Samples

               THE UTAH COURT OF APPEALS

                       STATE OF UTAH,
                         Appellee,
                             v.
                  BRANDON MICHAEL SAMPLES,
                         Appellant.

                            Opinion
                        No. 20200537-CA
                    Filed November 10, 2022

        Seventh District Court, Castle Dale Department
                The Honorable Don Torgerson
                         No. 191700095

           Emily Adams and Freyja Johnson, Attorneys
          for Appellant, assisted by law students Rachel
           Johnson, Hunter Sullivan, and Brock Mason 1
         Sean D. Reyes and William M. Hains, Attorneys
                         for Appellee

    JUDGE RYAN D. TENNEY authored this Opinion, in which
     JUDGE GREGORY K. ORME and JUSTICE JILL M. POHLMAN
                        concurred. 2




1. See Utah R. Jud. Admin. 14-807 (governing law student practice
in the courts of Utah).

2. Justice Jill M. Pohlman began her work on this case as a member
of the Utah Court of Appeals. She became a member of the Utah
Supreme Court thereafter and completed her work on the case
sitting by special assignment as authorized by law. See generally

 R. 3-108(4).
                          State v. Samples


TENNEY, Judge:

¶1     In early May 2019, an oil worker found a body lying on the
side of a rural road in Emery County, Utah. The body was badly
bruised and missing a finger. After law enforcement arrived and
identified the victim (Victim), officers learned that Victim had
spent his last night with two people: Brandon Samples and
Samples’s girlfriend (Girlfriend).

¶2      Police soon located Girlfriend, and over the course of
several interviews, Girlfriend told officers that Samples had killed
Victim and cut off his finger. Based on her claims and other
collected evidence, the State charged Samples with murder,
desecration of a human body, and three counts of obstructing
justice. The case later went to trial, and at its close, the jury
convicted Samples.

¶3     On appeal, Samples challenges his murder conviction on
multiple grounds. First, Samples claims that his trial counsel
(Counsel) was ineffective for not asking the district court for a
midtrial continuance to allow him to locate a rebuttal expert to
counter some of the State’s medical evidence, and Samples asks
us to remand so that he can introduce evidence to support this
claim. See Utah R. App. P. 23B. Second, Samples claims that two
officers should not have been allowed to repeat some of
Girlfriend’s out-of-court statements during their trial testimonies.
Third, Samples contends that Counsel was ineffective for not
objecting when a detective gave his opinion about whether
Girlfriend could have caused Victim’s injuries. Finally, Samples
argues that he was prejudiced by the cumulative effect of the
alleged errors.

¶4     For the reasons set forth below, we reject each of Samples’s
arguments (including his request for a rule 23B remand) and
affirm his conviction.




 20200537-CA                     2              

                         State v. Samples


                        BACKGROUND 3

                           The Murder

¶5     On Sunday, April 28, 2019, Brandon Samples was with
Girlfriend at her house in Huntington, Utah, when he suggested
that they visit Victim at Victim’s motel room in Price, Utah.
Girlfriend agreed. Girlfriend had “never met [Victim] before,” so
when they arrived, she “just sat there” while Samples and Victim
chatted. While there, Victim showed them a “stone” that he had
made in memory of his late mother. He then offered to make one
for Samples because Samples’s mother, whom Victim had been
friends with, had recently passed away. Samples had previously
been in a “playful mood,” but this offer angered him, presumably
because Samples believed that Victim had killed his mother.

¶6      Samples and Girlfriend then left and went to the house
where Samples lived. Once there, Samples borrowed some power
saws from his landlord and plugged them in so that they could
charge. While the saws were charging, the couple ran a few
errands, during which time Samples used meth twice. Girlfriend
also tried to inject herself, but she was apparently unsuccessful.

¶7     Samples and Girlfriend later went back to Victim’s motel
room. While there, Victim, who was looking for a place to live,
mentioned that he “had a U-Haul full of his stuff.” Girlfriend
offered to let him store things in her shed, which she mentioned
had electricity. Victim said something about the shed “sound[ing]
like some place where [he] could live,” and Samples “got really
upset and started acting really jealous.” From Girlfriend’s
perspective, it seemed like Samples thought she and Victim “had
something going on.”



3. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly.” State v.
Rivera, 

, 

 (quotation simplified).


 20200537-CA                    3               

                          State v. Samples


¶8       The three decided to look at Girlfriend’s shed, so they got
in her car and drove to her house in Huntington. It was a cold
night, and once they were there, Girlfriend went inside to put on
warmer clothes while Victim and Samples went to look at the
shed. But Girlfriend had a problem—namely, she’d recently
broken her dominant arm, she’d had a cast on it for about a week,
and it was “difficult [for her] to use” her arm because she was
“still in pain.” Once inside, she realized that she needed Samples’s
help just to tie her shoes. 4

¶9     After the three were back together in the house and ready
to go back to Price, Samples told Victim that the car was unlocked
and that he and Girlfriend would “be out in just a minute.” When
Victim left, Samples shut the door and said, “I’m going to kill
[Victim].” At that point, Girlfriend “really wasn’t sure” that
Samples was going to do anything. But before they left, Samples
instructed Girlfriend to put her phone in the bedroom “so that
[they] couldn’t be tracked.”

¶10 The group took “the back roads to Price” and started
driving on a dirt road. Samples suggested they stop and go rock
hunting, something that Girlfriend enjoyed doing. Around 1:00
a.m., Samples pulled off the road and Girlfriend “jumped out” of
the car with a flashlight and “took off . . . straight out from the
car.” Girlfriend “was quite a ways from the car” when she turned
around and saw Samples standing by her car. He was putting on
latex gloves and had placed two metal baseball bats against the


4. There was some inconsistency at trial about whether it was
Girlfriend’s arm or instead her hand that was broken. At trial, she
said that her “arm was broke[n],” but she also agreed with the
statement that her “right hand” was broken. For consistency, we
refer to her as having a broken arm because that was the more
common description of her injury at trial. But to the extent that
any of our conclusions turn on her broken arm, we would reach
the same conclusions if it was her hand that was broken.


 20200537-CA                     4              

                         State v. Samples


side of her car. Despite her earlier doubts, when Girlfriend saw
Samples with the bats, she now believed “[t]hat he was serious
about what he said at the house, that he was going to kill
[Victim].” She was also scared for her own life because Samples
had previously threatened her.

¶11 Victim had walked up the road a bit, and Girlfriend felt like
she needed to warn him. She pointed her flashlight at the ground
and started walking toward him. But before Girlfriend could get
to him, she heard what sounded like a bat swinging and hitting
Victim. Girlfriend heard Victim say, “No, [Samples]. Why?” She
heard Victim “[b]egging for his life,” after which she heard
Samples say, “You know why.”

¶12 When Girlfriend got to where Samples was standing, he
handed her a bat and told her to hit Victim. Victim said to
Girlfriend, “No, not you.” But Girlfriend was “scared of
[Samples],” so she “hit [Victim] in the arm and in the leg” as
Samples had requested. Girlfriend could “[b]arely” grip the bat
because of her cast, and her arm “hurt like hell” when she swung
the bat. After she hit Victim, Girlfriend “dropped the bat” and ran
back to her car. As she stood there, she heard Samples hit Victim
“a few more times,” after which he returned to the car. Samples
said, “I think he’s dead,” but he then grabbed Girlfriend’s
flashlight and flashed it back in Victim’s direction. When Samples
saw that Victim had crawled away, he went back to him and said,
“You thought you were going to get away, huh?” Victim asked,
“Why are you doing this, [Samples]?” Samples replied, “You
know why I’m doing this. You killed my mom.” Samples then
“started swinging” the bat “uncontrollably” at Victim. During
this beating, the bat that Samples was using—which already had
a “small crack in it”—broke in two. Girlfriend “heard a gurgling,”
which she believed was Victim “choking on his own blood.”

¶13 When Samples stopped hitting Victim, he grabbed the bats
and Victim’s hat and wallet, got in the car, and told Girlfriend to



 20200537-CA                    5               

                          State v. Samples


get in the car and start driving. As Girlfriend drove, Samples
rolled down his window and threw out the bat that Girlfriend had
used and part of his broken bat. He was “excited” and said, “I
can’t believe I broke one of the bats.” Samples then told Girlfriend
that they needed to “get [their] stories straight.” He said, “If
anybody asks, we dropped [Victim] off” by Samples’s landlord’s
house “because he needed to go talk to somebody about owing
them some money and he was going to get a ride back to the
motel.” Girlfriend, who was “in shock” and “scared,” agreed to
tell that story.

¶14 Back at Girlfriend’s house, Samples and Girlfriend ate and
then injected themselves with meth. Samples also called his
brother (Brother), and Girlfriend heard him say, “Remember what
we talked about? Well, it’s done.” After the phone call, Samples
told Girlfriend that they needed to go back to the dirt road
“because he dropped a cigarette butt and he didn’t want no DNA
left up there.” Girlfriend’s car had a flat tire from their earlier
excursion, so Samples borrowed a friend’s car. Before leaving,
Samples put a cooler and the saws in the backseat. On the way to
Victim’s body, they stopped to get gas. There, Samples put a trash
bag in the garbage can next to the pump. Inside the bag was the
remaining piece of the broken bat, Victim’s hat, and Victim’s
wallet.

¶15 Back at the dirt road, Girlfriend helped Samples “tidy up
the crime scene.” While doing so, she found the cigarette butt that
Samples had discarded earlier and put it in the car. She also
picked up Victim’s glasses, some batteries that were in the road,
and a shovel that was lying on the side of the road. The shovel
was from Girlfriend’s car, but she didn’t know why it was lying
there. Girlfriend then went back to the car to meet Samples.
Samples now had the saws out, and “he went over to [Victim] and
tried to cut [Victim] up.” But the “battery wouldn’t work,” so
Samples put the saws back in the car and asked Girlfriend for her
knife.



 20200537-CA                     6              

                          State v. Samples


¶16 Samples took Girlfriend’s knife and went over to Victim’s
body. When he came back, “he had [Victim’s] finger in his hand.”
He told Girlfriend that her knife “had cut through [Victim’s]
finger perfectly. He only had to . . . tear off the last little bit.”
Girlfriend noticed that Victim’s severed finger had a ring on it.
The ring was “sentimental” to Samples because it matched one
that belonged to his mother. After showing her the finger,
Samples put it in a latex glove and placed it in a cooler in the car’s
back seat.

¶17 On the way back to Girlfriend’s house, Samples threw a
different pair of latex gloves out the window. He then said, “Oh,
shit I shouldn’t have done that.” He told Girlfriend, who was
driving, to turn around so they could retrieve the gloves. As they
did, they found the bat that Samples had previously thrown out
of the window. But although they looked, they were unable to
find the other piece of the broken bat that he had thrown out. The
two arrived at Girlfriend’s house sometime around noon. Later
that night, Samples used a corded saw to cut the bat into pieces.
He put the pieces in a trash bag and threw the bag away at a
nearby laundromat.

¶18 The next morning, Samples went to work with his uncle
(Uncle). Before he left, Samples instructed Girlfriend to “make
sure everything was cleaned up.” Girlfriend thoroughly cleaned
her car and then washed all of her and Samples’s clothing. She
also hid the knife that Samples had used to cut off Victim’s finger
under a false bottom in a kitchen cupboard. Girlfriend tried to
vacuum up the metal shavings from where Samples cut the bat,
but she was unable to get them out of the carpet. As she cleaned,
Girlfriend noticed a pair of latex gloves soaking in Drano inside a
trash can.

                          The Investigation

¶19 Two days later, an oil worker was driving down a rural
road when he saw a man’s body lying on the side of the road. The


 20200537-CA                      7               

                          State v. Samples


worker called county dispatch, and officers arrived a short time
later. The responding officers included a captain (Captain) and a
detective (Detective) from the Emery County Sheriff’s Office. The
officers collected evidence at the scene, including a cigarette butt
that they found on the road next to a patch of blood. The officers
did not recognize the man, but they soon learned that Victim had
been reported missing in Carbon County. Officers from Carbon
County arrived shortly after and identified the man as Victim.

¶20 Officers soon spoke to a friend of Victim who said that she
had last seen Victim the previous Sunday in his Price motel room.
She also told officers that Victim had left his room with two
people: Samples and Girlfriend.

¶21 Officers learned that Samples was on parole with Adult
Probation & Parole (AP&P), so they went to Girlfriend’s house to
interview Samples and Girlfriend. Samples’s AP&P agent came as
well, and he had Samples provide a urine sample. Samples tested
positive for drugs and was immediately placed under arrest and
taken to jail.

¶22 After Samples was arrested, Girlfriend agreed to be
interviewed at the sheriff’s office. Once there, Girlfriend was
interviewed by Detective and Captain. When they asked her
about Victim, she initially provided the story that she and
Samples had agreed on earlier—that she and Samples had
dropped Victim off at Samples’s landlord’s house at some earlier
point and that they hadn’t seen him since.

¶23 Captain was skeptical, however, so he told her that he
didn’t believe her and that he suspected there was “some more”
that she wasn’t telling them. After additional questioning,
Girlfriend said that she didn’t want to testify or “get in trouble.”
At that point, Girlfriend changed her story. She said that after
leaving her house together, the three had stopped on a rural road
to go rock hunting. She told the officers how Samples killed




 20200537-CA                     8              

                           State v. Samples


Victim with a bat and threw the bat out the car window on the
drive home.

¶24 Captain and Detective asked Girlfriend to give them
directions to where Victim died. Though it was around 2:00 a.m.,
she took them “right to the body location where [they] had located
[Victim] earlier that day.” Captain and Detective used flashlights
to look for the bat, but they were unable to find it in the dark. Later
that morning, Captain and Detective returned to the crime scene.
Captain found the remainder of the broken bat in a ravine near
where Girlfriend said Samples had thrown it out. The bat was
“black or dark colored,” and “the end of [it] was gone” and
“jaggedy” as if it had broken.

¶25 The next day, Captain and Detective interviewed
Girlfriend again. During this interview, Girlfriend told the officers
about how Samples had borrowed “battery-operated saws.” She
told them for the first time that there had been more than one bat
and that Samples had tried to “dismember [Victim] at the scene.”
She also described Samples’s efforts to destroy the evidence.

¶26 After this interview, Captain and Detective executed a
search warrant at Girlfriend’s home. There, they found latex
gloves in a trash can and noticed a “chemical smell” coming from
the trash can. The officers also found three saws—two of which
were battery-operated and one of which was corded. The corded
saw had “small, metal-metallic pieces or shavings” on it. The
officers tested the battery-operated saws, but “none of them
worked.” The officers also took Girlfriend’s knife after she
showed them where it was hidden underneath her kitchen
cabinet.

¶27 The officers later obtained security footage from the gas
station that Samples and Girlfriend had visited shortly after
Victim died. The video showed “Samples open the [car] door,
reach in, his feet come out, lean to the garbage can, then back in,
the feet come up, and the door shuts.” The officers searched the


 20200537-CA                      9                

                         State v. Samples


dumpsters, but they had been emptied since Samples and
Girlfriend were there.

¶28 The next day, Captain interviewed Samples, who was still
in custody. Samples admitted that he and Victim were friends, but
he denied being involved in Victim’s murder. Samples gave the
same story that Girlfriend had initially given—namely, that
Samples, Girlfriend, and Victim went to look at Girlfriend’s shed
and that the night had ended when Samples and Girlfriend
dropped Victim off by Samples’s landlord’s house.

                             The Trial

¶29 The State charged Samples with murder, desecration of a
human body, and three counts of obstructing justice. The case
proceeded to a five-day jury trial. At trial, the State presented
testimony from several witnesses, including the oil worker who
found Victim’s body, Girlfriend, Captain, Detective, Uncle,
Brother, a biologist from the state crime lab, the medical examiner
(Medical Examiner), and an inmate (Inmate 1) who knew Samples
in prison.

¶30 Girlfriend testified to the events recounted above, giving
her account of how Samples killed Victim and attempted to
dispose of the evidence. On cross-examination, Counsel went
over Girlfriend’s interviews with Captain and Detective,
highlighting her initial lies and inconsistencies. During this
questioning, Girlfriend acknowledged that she had initially lied
to the police and also that she had taken “the long way around a
lot of things.” But on questioning from the State, Girlfriend said
that she lied because she was scared of Samples, claiming that she
eventually told the truth once she felt safe.

¶31 In his testimony, Captain detailed the investigation that led
to Samples’s arrest. Captain also recounted some of what
Girlfriend had said during her interviews. Counsel did not object
to the portions of Captain’s testimony in which he recounted


 20200537-CA                    10              

                          State v. Samples


some of Girlfriend’s statements. Instead, on cross-examination,
Counsel prompted Captain to discuss the various lies and
inconsistencies in Girlfriend’s statements to police.

¶32 Detective likewise detailed the investigation. Like Captain,
Detective also recounted some of Girlfriend’s interview answers.
Counsel objected on hearsay grounds when Detective repeated
Girlfriend’s statements. But the court overruled the objection,
stating, “It’s been in court. We’ve heard her testimony. I want to
see if that is consistent.”

¶33 On direct examination, the prosecutor asked Detective
whether he thought it was “logical” that Girlfriend could have
caused all of Victim’s injuries even with her arm being in a cast.
Detective responded,

       I – I don’t think so, just based on that cast on her
       wrist and running through the palm of her hand. I
       think that would make that difficult to control of
       that. I don’t know. I’ve held many things in my
       hands at the same time and it’s never been a
       comfortable thing, but – I wouldn’t think so, but I –
       that’s just my opinion.

¶34 A biologist from the state crime lab also testified. She
testified that the lab had tested the cigarette butt, the broken bat,
Girlfriend’s cast, and Girlfriend’s knife. She said that there was no
blood detected on Girlfriend’s cast. She also said that DNA from
the cigarette butt, a bloodstain on the broken bat, and a bloodstain
on Girlfriend’s knife all matched Victim’s DNA.

¶35 In her testimony, Medical Examiner recounted her findings
from the autopsy. She testified that Victim’s face had “multiple
tears of the skin and fractures . . . that went from his forehead
down to below his chin.” She said that Victim had “knocked out”
and loose teeth. She explained that Victim’s “outer skull had
multiple fractures” and that “all of the bones on the left side [of


 20200537-CA                     11              

                          State v. Samples


the skull] had fractures that radiated through them.” She said that
Victim’s head had twelve “distinct injuries,” indicating twelve
“distinct sites of impact.” She further said that Victim had injuries,
bleeding, and bruising to his brain. As for Victim’s upper body
and arms, Medical Examiner testified that there were “some
bruises and scrapes on the skin of the chest” and “bruising of both
of the arms.” She testified that his left arm had “a very visible
deformity to it” and “bruises that went from the upper arm down
to the fingers.” She testified that bones in his left forearm were
“broken below the elbow” and “right above the wrist.” And on
his right arm, she said that there were “pretty large bruises with
swelling mostly to the right hand.”

¶36 The prosecutor also asked Medical Examiner to explain the
term “defensive injury.” Medical Examiner responded that a
“[d]efensive injury is an injury somebody obtains when they’re
trying to protect themselves.” The prosecutor then asked a few
more questions about defensive injuries, and Medical Examiner
answered them without offering an opinion as to whether
Victim’s injuries were defensive injuries. Later, however, Medical
Examiner confirmed that Victim’s bruising could “be another
indication of a possible defensive wound.”

¶37 Medical Examiner also discussed Victim’s missing finger.
She opined that it was “probably” amputated after death “given
the absence of blood in the tissues around the cuts.” When the
prosecutor asked about the bruising, Medical Examiner
responded:

       So the bruising would have been inflicted before he
       had died. You don’t bruise after you’re dead
       because – after you’re dead because you need
       circulation of blood through your body to bruise. So
       the bruising would have been – would have
       occurred before he died and then his finger would
       have been amputated after he was already dead.



 20200537-CA                     12               

                          State v. Samples


She noted that Victim’s “bruises have the same general
appearance and the same color to them,” and she explained that
this led her to “think that they were all obtained at the same time.”

¶38 When Brother testified, he confirmed that his mother and
Victim were friends and had matching rings. He testified that
Samples thought Victim had poisoned their mother. Brother
further testified that on the night Victim died, Samples was upset
with Victim over living arrangements. He said that Samples told
him, “I am getting tired of [Victim’s] shit. I’m just going to slap
him.” According to Brother, Samples called later that night and
said something to the effect of “the deed’s done.” Brother thought
this was in reference to “slapping [Victim] or beating him up.”

¶39 Brother also testified that the day after the phone call,
Samples visited him and told him that he and Girlfriend “took
[Victim] out to the desert and hit him with a bat.” He said that
Samples told him that Girlfriend hit Victim “with a bat first.”
According to Brother, Samples then asked Brother if he wanted
“to see a hand” and began to “pull out like a Ziplock baggie out
of his coat.” Brother didn’t see anything else, and he told Samples
to leave. 5

¶40 The prosecution also called Inmate 1 to testify. Inmate 1
and Samples spent time in prison together after Samples was
arrested for Victim’s murder, and Inmate 1 now claimed that they
became friends. 6 According to Inmate 1, Samples “broke down”
one day and said, “I fucking did it. I killed him. I don’t know what


5. Counsel called Uncle as a rebuttal witness, and Uncle testified
that he “wouldn’t believe a word [Brother] says.”

6. Persons who are charged with offenses but have not yet been
tried are typically held in jail. Here, though AP&P initially took
Samples to jail after he failed the drug test, Samples was taken to
prison while awaiting trial because of a parole violation.


 20200537-CA                     13              

                          State v. Samples


to do. Do you think I’m screwed? Do you think I’m going to do
the rest of my life in prison.” According to Inmate 1, Samples said
that “after the guy was dead, his finger was too swollen to pull off
the ring so he had to cut off the finger to get the ring.” When asked
why he was testifying, Inmate 1 explained that he was in prison
on a federal gun charge and that he hoped the “federal
government” would take his testimony “into consideration with
[his] sentence.” But he also clarified that he wasn’t “guaranteed”
anything.

¶41 After the State rested, the defense presented its case. There
were two defense witnesses: Samples and another inmate (Inmate
2). In his testimony, Samples denied having any motive to kill
Victim, claiming that Victim was his friend and had been there for
Samples during his “hardest times.” Samples denied believing
that Victim killed his mother. And, of note, Samples blamed
Girlfriend for Victim’s death. According to Samples, Girlfriend
got mad at him while they were driving Victim back to Price. He
said that she started “clubbing” him on the head, so he jumped
out of the car, and she drove off. Samples said that he started
walking along the road and that she came back a while later
without Victim. He said that when they got back to Girlfriend’s
house, Girlfriend started to cry and told him that Victim “forced
himself on her” after they stopped to go rock hunting. In response,
she allegedly grabbed a bat from her car and started “smacking”
Victim with it, breaking the bat in the process. According to
Samples, she tried to use a “mini shovel” to dig a hole but couldn’t
“because of her hand and the size of the shovel.”

¶42 During cross-examination, Samples was asked how
Girlfriend could have swung a bat with her cast. Samples
responded that although she couldn’t dig a hole, “she does
everything herself” and “could swing a bat.” When Samples was
asked if he believed Girlfriend’s story that Victim attacked her, he
said, “I do, kind of, but I don’t know.” He added, “I’ve known
[Victim] personally and I don’t see him just grabbing somebody.



 20200537-CA                     14              

                          State v. Samples


But that’s what she told me. And she was pretty hysterical, so I
believed her.”

¶43 Samples also testified that after hearing Girlfriend’s story,
the two came “up with a plan to either get rid of [Victim] and
dispose of his body or rough him up and . . . make him look like
he fell.” But Samples said that when they got to the scene, they
had difficulty moving Victim’s body because Girlfriend “couldn’t
really lift a lot.” Samples said that though he had a saw, he
decided against “chopping him up,” so he instead got a bat and
“started hitting [Victim].” Samples admitted that he hit Victim in
the face “[p]robably like four or five times, six times,” and that it
“[c]ould have been more.” He also admitted that he hit Victim in
the arm, “[p]robably like three times.” He said that he then
handed the bat to Girlfriend and that she hit Victim as well.
Samples also explained Victim’s missing finger. He said that he,
his mother, and Victim all had matching rings. Samples didn’t
have his anymore, so when he saw the ring on Victim’s finger, he
decided to take it because it was “sentimental.” By his own
account, he was unable to get the ring off Victim’s finger, so he
decided to cut the finger off. Qualifying his own actions, however,
he said that he didn’t take any of Victim’s other jewelry because
“[t]hat would be wrong.” Samples said he put the ring in a latex
glove, and they left. Samples later testified that he “ended up
throwing [the ring] out.”

¶44 Samples also admitted that he cut up the bat but only
because he was helping Girlfriend get rid of the evidence. He said
that he put the pieces of the bat, Victim’s hat, a pair of gloves, and
Victim’s finger into a trash bag, after which he walked to a nearby
laundromat and put the bag in its garbage can. 7 Samples also


7. Although Samples testified that he threw the finger away at the
laundromat, the State presented evidence at trial that a cadaver
dog gave a “reliable indication” that there were human remains
in a fire pit behind Samples’s house.


 20200537-CA                     15               

                         State v. Samples


talked about his phone call with Brother. He admitted that the
conversation happened, but he claimed that he was talking about
arranging a ride and not about harming Victim.

¶45 Samples further admitted that he didn’t “expect nobody to
believe” him. He said that he wouldn’t be surprised if nobody
believed that a woman with a broken arm killed somebody she
just met. All in all, he agreed that his story was “ridiculous.”

¶46 After Samples testified, the defense called Inmate 2. Inmate
2 said that he “briefly” lived on the same cell block as Samples
and Inmate 1. Inmate 2 said that he had “never once seen Mr.
Samples have a conversation with [Inmate 1]” and recalled that
when somebody else once mentioned Inmate 1, Samples “had no
idea who [the] guy was.” According to Inmate 2, Samples and
Inmate 1 “were no different than two people passing in the
street.” He further noted that Inmate 1 had recently been housed
with Brother, and from this, he speculated that Inmate 1 might
have heard useful details about this case from Brother.

¶47 In his closing argument, the prosecutor acknowledged
potential credibility problems with Girlfriend, but he claimed
that the State had “corroborated” her account with testimony
from officers and expert witnesses. The prosecutor then referred
to Samples as the State’s “best witness,” pointing out that Samples
had admitted to beating Victim. The prosecutor argued that
the only question was whether Samples had beaten Victim
before or after he died. He then reminded the jury of Medical
Examiner’s testimony that “all of those injuries occurred at the
same time and all of them occurred before [Victim] died.”
He further stated, “It was her opinion that all of it happened
before death, the beating, except for one, the finger.” The
prosecutor argued that it “doesn’t even make sense” that
Girlfriend would be able to bludgeon a man to death, given that
she had a broken arm, let alone that she could do so without
getting any blood on her cast.



 20200537-CA                    16              

                         State v. Samples


¶48 In his closing, Counsel argued that Girlfriend was “not
credible at all.” He reminded the jury that she told “many
different stories within each interview.” He also discussed
Brother’s and Inmate 1’s credibility issues. And Counsel further
contended that Girlfriend would have had the strength to kill
Victim because she was high on meth and had adrenaline in her
system. He also pointed out that Girlfriend herself admitted to
swinging the bat. Regarding Medical Examiner’s testimony,
Counsel challenged the prosecutor’s interpretation of her
testimony. He argued, “[T]here was no evidence that I heard that
said – or they could say that there were no – that [Victim] was not
stricken on that body after he was deceased.” In rebuttal,
however, the prosecutor claimed that he was “right about”
Medical Examiner’s testimony, but he also told jurors that they
could relisten to Medical Examiner’s testimony.

¶49 After relistening to Medical Examiner’s testimony, the jury
convicted Samples on all charges. Samples then timely appealed
his murder conviction. 8


            ISSUES AND STANDARDS OF REVIEW

¶50 Samples first argues that Counsel “was ineffective when he
did not request a continuance to find a rebuttal expert who could
have testified about when the injuries were inflicted on Victim.”
Because the evidence for this claim is not in the record, Samples
asks us to remand the case under rule 23B of the Utah Rules of
Appellate Procedure so that the district court can make the
relevant findings. 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).




8. Samples did not appeal his other convictions.


 20200537-CA                    17              

                          State v. Samples


¶51 Samples next argues that the district court erred by
allowing Detective to recount Girlfriend’s out-of-court
statements. We review “the legal questions underlying the
admissibility of evidence” for correctness, but we review the
district court’s ultimate “decision to admit or exclude evidence”
for an abuse of discretion. State v. Griffin, 

, 

 (quotation simplified). Samples relatedly argues that
Counsel was ineffective for not objecting when Captain testified
about Girlfriend’s out-of-court statements. “An ineffective
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Fleming, 

,

 (quotation simplified).

¶52 Samples also argues that Counsel was ineffective for not
objecting when Detective offered his opinion about whether
Girlfriend could have caused Victim’s injuries. This presents a
question of law. See 

¶53 Finally, Samples argues that there was cumulative error.
Under the cumulative error doctrine, we “reverse only if the
cumulative effect of the several errors undermines our confidence
that a fair trial was had.” State v. Goodrich, 

,

 (quotation simplified).


                            ANALYSIS

                        I. Rule 23B Motion

¶54 As discussed, Medical Examiner testified that Victim’s
bruises “would have occurred before he died” because bruising
requires “circulation of blood.” Medical Examiner also opined
that although “[i]t’s difficult to know,” the bruises were likely “all
obtained at the same time.” In his closing argument, the
prosecutor relied on this testimony to argue that Victim’s “injuries
occurred at the same time and all of them occurred before he
died.” This interpretation conflicted with Samples’s testimony



 20200537-CA                     18               

                         State v. Samples


because Samples claimed that he hit Victim’s body (and, thus,
caused some of the injuries) after Victim was dead.

¶55 In his rule 23B motion, Samples argues that Counsel should
have requested “a continuance to find a rebuttal expert who could
have testified about when the injuries were inflicted on Victim.”
In support of this motion, Samples includes the unsworn
declaration of a medical doctor who says that, if called, he would
have testified that Victim’s “arms could have been fractured
pre- or post-mortem” because “[t]here is no way to tell whether
the arm fractures were from defensive wounds pre-mortem or
from inflicted injuries post-mortem.” The doctor further opines
that, in apparent contrast to the testimony at trial from Medical
Examiner, “it is very difficult—if not impossible—to distinguish
between pre-mortem bruises and post-mortem bruises or
discolorations that resemble pre-mortem bruises.” Samples
contends that if the jury had heard this testimony, “there is a
reasonable probability that the jury could have believed
[Samples’s] testimony that [Girlfriend] killed Victim and asked
[Samples] to dispose of the body later, and that it was only after
Victim had been dead for several hours that [Samples] inflicted
the injuries on Victim.”

¶56 We first set out the relevant law regarding rule 23B,
ineffective assistance claims, and requests for continuances.
Applying that law to Samples’s motion, we then reject Samples’s
request for a rule 23B remand.

A.    Relevant Law

¶57 Under rule 23B, “[a] party to an appeal in a criminal case
may move the court to remand the case to the trial court for entry
of findings of fact, necessary for the appellate court’s
determination of a claim of ineffective assistance of counsel.”
Utah R. App. P. 23B(a). “The motion will be available only upon
a nonspeculative allegation of facts, not fully appearing in the
record on appeal, which, if true, could support a determination


 20200537-CA                   19              

                          State v. Samples


that counsel was ineffective.” 

 If the motion cannot “meet the
test for ineffective assistance of counsel,” then “there is no reason
to remand the case.” State v. Griffin, 

, 

.

¶58 A criminal defendant claiming ineffective assistance must
show that trial counsel performed deficiently and that the
deficient performance was prejudicial. See Strickland v.
Washington, 

 (1984); accord State v. Ray, 

, 

. “Because both prongs of the Strickland test
must be met to establish ineffective assistance of counsel, we need
not address both prongs if a defendant’s claim clearly fails on one
of them.” State v. Hurwitz, 

, 

(quotation simplified).

¶59 As explained below in Part I(B), we resolve Samples’s
request for a remand on deficient performance grounds alone. To
show deficient performance, a “defendant must show that
counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 

. We measure counsel’s
performance “under prevailing professional norms,” and our
“scrutiny of counsel’s performance must be highly deferential.”

 at 688–89. When a defendant claims that counsel performed
deficiently by not filing a motion, the defendant must
“demonstrate that the motion would likely have been granted had
it been filed.” State v. Vallejo, 

, 

. “This
is because the decision not to pursue a futile motion is almost
always a sound trial strategy,” and “where there is a sound
strategy, a defendant cannot satisfy his burden of demonstrating
that counsel’s performance fell below an objective standard of
reasonable professional judgment.” State v. Bond, 

, 

 (quotation simplified); see also State v. Makaya,

, 

 (“A futile motion necessarily
fails both the deficiency and prejudice prongs of the Strickland
analysis because it is not unreasonable for counsel to choose not
to make a motion that would not have been granted . . . .”).



 20200537-CA                     20               

                          State v. Samples


¶60 Consistent with this approach, we have held that counsel
did not render ineffective assistance by failing to request a
continuance when counsel “could have reasonably concluded
that the trial court would not continue the proceedings.” State v.
Gunter, 

, 

; cf. State v. Carter, 

, 

 (Hagen, J., dissenting) (agreeing that
“[w]hen determining whether a motion would have been futile,
Utah appellate courts invariably analyze the merits of the motion”
and that “[t]he only instance in which we consider the trial judge’s
perceived receptiveness to the argument is when the judge has
discretion in making the ruling”), cert. granted, July 11, 2022 (No.
20220297); Mackin v. State, 

, 

(explaining that whether to grant a continuance “is at the
discretion of the trial judge” (quotation simplified)). Moreover,
when a defendant “moves for a continuance to procure the
testimony of an absent witness,” the defendant “must show” that:
(1) “the testimony sought is material and admissible,” (2) “the
witness could actually be produced,” (3) “the witness could be
produced within a reasonable time,” and (4) “due diligence has
been exercised before the request for a continuance.” Mackin, 

 (quotation simplified). 9



9. Samples cites State v. Torres-Garcia, 

, 

, which identifies additional factors that might be
assessed when considering whether a continuance should be
granted. But courts have applied these factors when considering
a defendant’s request for a continuance based on the State’s
failure to provide the notice required by Utah Code section 77-17-
13. See, e.g., State v. Tolano, 

, 

(“When reviewing a trial court’s denial of a requested
continuance for a section 77-17-13 notice violation, we consider
four factors.”). Samples’s argument is not based on a failure of
notice under section 77-17-13. We accordingly focus our analysis
on the test formulated by our supreme court for the situation at
                                                    (continued…)


 20200537-CA                     21               

                          State v. Samples


¶61 In sum, we will only grant Samples’s rule 23B motion if it
contains a “nonspeculative allegation of facts,” “which, if true,
could support a determination that counsel was ineffective.” Utah
R. App. P. 23B(a). And to “support a determination that counsel
was ineffective,” 

 Samples’s 23B motion must demonstrate that
a motion to continue “would likely have been granted had it been
filed,” Vallejo, 

.

B.     Samples’s Rule 23B Motion

¶62 Again, Samples faults Counsel for not requesting a
continuance to locate a rebuttal expert, and in his rule 23B motion,
Samples asserts that Counsel “could have found an expert that
could have challenged the medical examiner’s testimony about
the timing of the injuries.” We conclude that, even if true, the
nonspeculative allegation of facts in Samples’s rule 23B motion
does not establish that Counsel performed deficiently. This is so
for three reasons.

¶63 First, Samples has failed to make the requisite proffer. As
noted, when a defendant “moves for a continuance to procure the
testimony of an absent witness,” the defendant “must show,”
among other things, that “the witness could actually be
produced” and that “the witness could be produced within a
reasonable time.” Mackin, 

 (quotation simplified).
In support of his motion, Samples includes the curriculum vitae
and declaration of a medical doctor, and that declaration includes
the doctor’s explanation of what he would have testified to had


issue here. See Mackin v. State, 

, 

; State
v. Creviston, 

 (Utah 1982). But even under the test
Samples cites, whether to grant a continuance still “lies within the
broad discretion of the trial court.” Torres-Garcia, 

 (quotation simplified). And as we explain, Counsel had good
reason to believe that the district court would not use its
discretion to grant a continuance in this high-profile murder case.


 20200537-CA                     22               

                          State v. Samples


he been called at trial. But Samples does not specifically allege or
proffer that this or any other doctor who could have given similar
testimony could have been produced within any particular
timeframe, let alone a “reasonable time.” For this reason alone,
this claim fails for lack of proffered evidence.

¶64 Second, even if Counsel could have found such an expert,
Counsel could have still reasonably decided that at this point in
the trial, a continuance could actually be harmful to his client. The
court had scheduled a week-long jury trial, with proceedings
starting on Monday and “continu[ing] through” Friday “if
necessary.” The trial took the full week and ended on Friday. As
a result, any additional continuance—even if it had been a short
one—would have extended the case through the weekend.

¶65 But this murder trial took place in a small county with a
relatively small population. Though seemingly speaking in jest,
one potential juror said during voir dire, “All the folks in Emery
County are related.” Moreover, these were decidedly sensational
charges. During voir dire, a potential juror said that “[r]umors”
about the murder were “rampant” in Huntington and that it’s “a
big thing” when somebody is “arrested for murder in Emery
County.” Another potential juror said that “there’s a lot of
information floating around.” And yet another potential juror
explained, “[W]e live in small communities, so I think we’ve all
heard [inaudible] but I don’t know.” 10 As a result, the court
mentioned during voir dire that it had summoned “more than
double the number of people that are usually” summoned for a
jury trial.

¶66 Given the potentially combustible combination of a small
town and a high-profile trial, Counsel could have reasonably
believed that there might be some risk of jury contamination if the
empaneled jurors were sent home for the weekend after having


10. None of these potential jurors served on the jury.


 20200537-CA                     23              

                          State v. Samples


just heard a week’s worth of evidence. And for similar reasons,
Counsel could also have reasonably surmised that the court
would be unlikely to grant any such request for a continuance at
this critical juncture. From all this, Counsel “could have
reasonably concluded that the trial court would not continue the
proceedings,” Gunter, 

, so Counsel did not
perform deficiently by not requesting it.

¶67 Third, rather than addressing Medical Examiner’s
testimony through a proposed continuance and additional
testimony, it appears that Counsel simply chose to respond to
Medical Examiner’s testimony in a different way. See generally
Ray, 

 (“If it appears counsel’s actions could have
been intended to further a reasonable strategy, a defendant has
necessarily failed to show unreasonable performance.”). After the
prosecutor argued during closing argument that “all of” Victim’s
“injuries occurred at the same time and all of them occurred
before he died,” Counsel responded in his closing argument by
pointing out that the State “did not provide any evidence to state
[Victim] was not hit after he was deceased.” And on this, Counsel
was correct. Again, Medical Examiner only opined that the
bruising couldn’t have occurred after death, but she did not say
that the injuries couldn’t have been inflicted after death. (As noted,
aside from the bruising in question, Victim’s other injuries
included fractures to his face and skull, broken bones in his left
forearm, and missing teeth.) As a result, when the jury relistened
to Medical Examiner’s testimony after closing arguments, it
would have known that the State’s attempted use of this
testimony was based on a false premise, thus undermining the
argument from the State that is now at issue.

¶68 Samples has not demonstrated that it was objectively
unreasonable for Counsel to address Medical Examiner’s
testimony through argument, as opposed to requesting a
continuance so that he could present contrary testimony. Again,
as recognized by Strickland, there “are countless ways to provide



 20200537-CA                     24               

                         State v. Samples


effective assistance in any given case,” and “[e]ven the best
criminal defense attorneys would not defend a particular client in
the same way.” 

; see also Harrington v. Richter, 

 (2011) (“Rare are the situations in which the wide
latitude counsel must have in making tactical decisions will be
limited to any one technique or approach.” (quotation
simplified)). Here, while Counsel could have chosen a different
option, he was not required to do so.

¶69 Because of this, we conclude that the nonspeculative
allegations in Samples’s rule 23B motion do not “support a
determination that counsel was ineffective.” Utah R. App. P.
23B(a). We therefore decline “to remand the case to the trial court
for entry of findings of fact.” 

                           II. Hearsay

¶70 In his trial testimony, Captain repeated some of
Girlfriend’s statements about the murder. Counsel did not object.
Detective also recounted some of the statements that Girlfriend
made about the murder, including, of note, Girlfriend’s claim that
Samples hit Victim with a baseball bat and then “continued to
strike” Victim after Victim crawled away. Counsel objected on
hearsay grounds, but the court overruled the objection.

¶71 On appeal, Samples argues that the court erred in allowing
Detective’s testimony. For similar reasons, Samples argues that
Counsel was ineffective for not objecting to Captain’s testimony.
We see no basis for reversing on these grounds, however, because
of our conclusion that Samples was not prejudiced.

A.    Detective’s Testimony

¶72 Even if the court erred in allowing Detective’s testimony,
Samples must show that he was prejudiced by the error. See Utah
R. Crim. P. 30(a) (“Any error, defect, irregularity or variance
which does not affect the substantial rights of a party shall be



 20200537-CA                    25              

                           State v. Samples


disregarded.”). An error is prejudicial “when we conclude that,
absent the error, there was a reasonable likelihood of a result more
favorable to the accused.” State v. Bell, 

 (Utah
1988).

¶73 Samples initially contends that he was prejudiced by
Detective’s testimony because it “improperly bolstered
[Girlfriend’s] credibility.” To be sure, “a witness may not offer a
direct opinion of another witness’s truthfulness on a particular
occasion.” State v. King, 

, 

(quotation simplified). But that’s not what happened here.
Detective repeated some of Girlfriend’s out-of-court statements,
but he did not testify, for example, that Girlfriend “appeared to be
genuine, seemed to be quite candid about what she was telling”
the officers, “or displayed indicators that would show a likelihood
of honesty.” State v. Nunes, 

, 

(quotation simplified). Because Detective did not “offer a direct
opinion” of Girlfriend’s “truthfulness on a particular occasion,”
King, 

 (quotation simplified), we agree with
the State that “this is not” actually “a bolstering case” at all, Nunes,

.

¶74 Even so, Samples also argues that he was prejudiced by the
sheer repetition involved in the challenged testimony. When
“testimony is merely cumulative,” however, we are usually
“disinclined to find prejudice even when the testimony was
improperly admitted.” State v. Jones, 

, 

. This is so because cumulative testimony typically
doesn’t offer anything “new or additional” to the evidentiary
picture. State v. Thomas, 

 (Utah 1989).

¶75 Here, Detective’s challenged testimony was cumulative of
Girlfriend’s testimony. Indeed, at oral argument, Samples
conceded (correctly, we think) that Detective did not add
anything substantive when recounting Girlfriend’s claims. While
we acknowledge the possibility that repetition alone could



 20200537-CA                      26               

                         State v. Samples


conceivably cause prejudice in certain circumstances, we
nevertheless conclude that there was no prejudice here for several
reasons.

¶76 First, Girlfriend testified at some length, and during her
testimony, she gave a vivid firsthand account of Victim’s murder.
Of note, she described how Samples repeatedly hit Victim with a
bat, how Samples ordered her to hit Victim too, how the couple
disposed of the evidence after the murder, and how Samples cut
off Victim’s finger. Girlfriend also repeated several incriminating
statements that Samples made before, during, and after the
murder. During Girlfriend’s testimony, the jury had the
opportunity to observe her demeanor and assess her credibility
for itself. We are unconvinced that, having done so, the jury’s
assessment of her claims would have been swayed in any
meaningful way by Detective later repeating a few of her
statements during his own testimony.

¶77 Second, although Detective recited the basic details of what
happened, his recitation was fairly banal in comparison to
Girlfriend’s. For example, Detective testified that Girlfriend said
that “she saw Mr. Samples strike [Victim] with a baseball bat” and
heard Victim say, “No. Stop,” and, “Why are you doing this?” But
Girlfriend’s account was less sanitized—she talked about hearing
the bat hit Victim, hearing Victim beg for his life, hearing a
“gurgling” sound, and seeing Samples swing the bat
“uncontrollably” at Victim. Similarly, Detective testified that
Girlfriend said Samples cut off Victim’s finger. But Girlfriend
testified further, talking about how she saw Victim’s finger in
Samples’s hand and that she heard Samples say he had to “tear
off the last little bit.” In these and other similar exchanges,
Girlfriend’s in-court testimony went far beyond the brief snippets
offered by Detective. Thus, although Detective recounted the
basics of Girlfriend’s version, we are unpersuaded that there was
any harm to Samples where Girlfriend’s testimony was far more
graphic and detailed.



 20200537-CA                    27              

                          State v. Samples


¶78 Third, Detective’s repetition of Girlfriend’s claims helped
the defense in certain key respects. As noted, Girlfriend’s initial
accounts of what had happened were both inconsistent and
self-serving. Seizing on this, Counsel argued in closing that
Girlfriend was “not credible” because she was “evasive” and had
told “many different stories within each interview.” Counsel
reminded the jury that Girlfriend’s story changed “at least three
times.” Counsel further argued that with each successive
interview, Detective and Captain had given Girlfriend “every
chance she could to change her story and start thinking of ways
to point the finger at [Samples] and get the finger off of her, and
that’s what she did.”

¶79 Given this, even if it is true that Detective’s repetition
solidified the effects of Girlfriend’s testimony, this would have cut
both ways because Girlfriend’s testimony was both good and bad
for the defense. In other words, at the very same time that
Detective’s testimony was reinforcing the State’s version of
events, it was also reinforcing Samples’s argument that Girlfriend
was dishonest. As a result, we cannot say that this repetition
prejudiced Samples’s case.

B.     Captain’s Testimony

¶80 Samples makes a similar challenge to Captain’s testimony,
but this time through an ineffective assistance claim. As noted
above, Samples can only prevail on this claim if he shows both
deficient performance and “that the deficient performance
prejudiced the defense.” Strickland, 

; accord Ray,

. And to satisfy the prejudice prong, Samples
“must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” Strickland, 

. “A




 20200537-CA                     28              

                         State v. Samples


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

 11

¶81 Even assuming that Counsel was deficient for not objecting
to Captain’s testimony, we conclude that Samples has not shown
that his defense was prejudiced as a result. This is so for
essentially the same reasons given above with respect to
Detective’s testimony. First, Captain’s testimony was merely
cumulative of the much more detailed account that Girlfriend
gave in her own testimony. As with Detective’s testimony, we see
no basis for concluding that Captain’s brief recitation of certain
portions of her testimony would have persuaded the jury to give
her testimony any more or less credence.

¶82 Second, Counsel questioned Captain about Girlfriend’s
inconsistencies, again pointing out that Girlfriend gave the
officers “several different versions” of what happened and that
she likewise left key details out. As a result, any prejudice that
Samples suffered from this testimony would have been
counterbalanced by the benefits that he received from it.




11. Samples argues that a court’s “‘confidence in the outcome may
be undermined at some point substantially short’ of it being ‘more
probable than not’ that the jury would have reached a different
result.” (Quoting State v. Knight, 

 (Utah 1987)
(emphasis added).) The State, however, quotes Harrington v.
Richter, 

 (2011), for the proposition that “the
difference between Strickland’s prejudice standard and a moreprobable-than-not standard is slight and matters only in the rarest
case.” (Quotation simplified.) (Emphasis added.) We need not
resolve this disagreement, however, because we conclude that
Samples has not shown prejudice under either proposed
standard.


 20200537-CA                    29              

                            State v. Samples


¶83 For these reasons, we conclude that Samples has not shown
prejudice. We reject his ineffective assistance claim as a result. 12

                        III. Opinion Statement

¶84 Samples next argues that Counsel was ineffective for not
objecting when Detective “speculat[ed] as to whether [Girlfriend]
could have caused Victim’s injuries while wearing a cast.” Even if
Counsel was deficient in not objecting, we conclude that
Samples’s argument again fails because of a lack of prejudice.

¶85 As explained, Samples “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland, 

. When conducting a prejudice analysis
of this sort, “we assess counterfactual scenarios.” Ross v. State,

, ¶ 76, 

. When doing so, we “consider a
hypothetical”—i.e., the “alternative universe in which the trial
went off without the error.” State v. Ellis, 

, 

. Here, we don’t believe that there’s a reasonable probability
that Samples would have obtained a more favorable result if
Counsel had successfully objected to Detective’s challenged
opinion testimony. This is so for several reasons.

¶86 First, we think it’s unlikely that the jury’s assessment of
Girlfriend’s ability to swing the bat turned in any meaningful way
on Detective’s opinion. This is primarily because the jury had
several bases for assessing Girlfriend’s abilities that were more
direct and more probative. Of note, Girlfriend was questioned
about her abilities in light of the injury. She testified that as a result

12. As discussed in more detail in Part IV, we are also not
persuaded that the repetitions from Detective and Captain
prejudiced Samples because of the strength of the overall
evidence against him. In other words, even without these alleged
errors, we see no reasonable probability or likelihood that
Samples would have obtained a more favorable result.


 20200537-CA                       30                

                          State v. Samples


of her broken arm and the cast, she couldn’t tie her own shoes and
had difficulty holding and swinging the bat. Samples also testified
about her impairment, and in doing so, he acknowledged it.
Samples told the jury that Girlfriend’s cast prevented her from
digging a hole and made it difficult for her to help him move
Victim’s body. Given this testimony on this very subject from
Girlfriend and Samples, we’re not convinced that the jury would
have naturally relied on Detective’s assessment of how her injury
would have impacted her physical capabilities.

¶87 Second, it’s also unlikely that Detective’s opinion
meaningfully mattered given that Detective was decidedly
equivocal. When the prosecutor asked Detective if he thought it
was “logical” that Girlfriend could have “done all of the damage”
to Victim “especially with a cast on,” Detective started by saying,
“I – I don’t think so.” Detective then pointed out that Girlfriend
had a “cast on her wrist and running through the palm of her
hand.” Continuing, Detective said, “I think that would make that
difficult to control of that. I don’t know. I’ve held many things in
my hands at the same time and it’s never been a comfortable
thing, but – I wouldn’t think so, but I – that’s just my opinion.”
Thus, while it’s true that Detective said he didn’t “think”
Girlfriend could have “done all of the damage” to Victim, he then
undercut the force of his own opinion by stating that he “[didn’t]
know” and by reminding the jury without prompting that it was
“just [his] opinion.”

¶88 Despite all this, Samples suggests that Detective’s opinion
was still “likely to carry weight with the jury because it came from
a law enforcement officer who seemed to have experience or
training in this area.” But Detective did not say that he was
speaking from “expertise or training in this area”—rather, he told
the jury that this particular opinion was based on his experience
holding “many things in [his] hands at the same time,” an
experience that would hardly be unique to Detective. Moreover,
even if the jury chose to infer on its own that Detective was



 20200537-CA                    31              

                           State v. Samples


speaking based on some unspoken source of expertise, that
inference, too, could have cut both ways. Again, Detective
qualified his opinion, stating that he “[didn’t] know” and that it
was “just [his] opinion.” If the State’s “expert” witness couldn’t
definitively or confidently say that Girlfriend was incapable of
causing Victim’s injuries, the jury could have taken that as some
support for the supposed plausibility of Samples’s story.

¶89 In short, in a hypothetical trial in which Counsel
successfully objected to Detective’s challenged testimony, the jury
would still have had more direct evidence of Girlfriend’s abilities
(testimony from Girlfriend and Samples about this), with the only
change being the removal of Detective’s equivocal statement
about his perception of Girlfriend’s abilities. For these reasons, we
are unpersuaded that Samples was prejudiced by the alleged
deficient performance. This claim accordingly fails. 13

                       IV. Cumulative Error

¶90 Samples’s final argument is that the cumulative effect of
the alleged errors requires reversal. We reverse under the
cumulative error doctrine if we “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 [our] confidence in the outcome.”
State v. Martinez-Castellanos, 

, 

. The
third element requires an assessment of “whether the defendant
received a ‘fair trial.’” 

 ¶ 39 n.27. And a “defendant is deprived
a ‘fair trial’ when there is a reasonable probability that, but for the
several errors, a different verdict or sentence would have




13. In addition to these issue-specific reasons for holding there
was no prejudice on this claim, we likewise conclude that Samples
suffered no prejudice due to the strength of the evidence against
him, which, again, we discuss in Part IV.


 20200537-CA                      32               

                          State v. Samples


resulted.” Id.; see also Ellis, 

 (recognizing that a
“[p]rejudice analysis is counterfactual”).

¶91 As detailed above, we’ve concluded that Samples was not
prejudiced by Detective and Captain repeating statements from
Girlfriend during their testimonies or Detective opining about
Girlfriend’s ability to injure Victim. But whether these sources of
prejudice are viewed individually or collectively, our “confidence
in the outcome” of the trial is also not undermined, Martinez-Castellanos, 

, nor do we see a reasonable
probability of a different outcome without any or all of the alleged
errors. This is so because of the strength of the case against
Samples.

¶92 At trial, Girlfriend gave a firsthand account of the murder.
She was questioned at length by both the State and the defense,
and the jury had the opportunity to evaluate her credibility
directly. Samples’s defense, however, rested on his contention
that it was Girlfriend, not Samples, who killed Victim. But
Samples’s version had several significant problems.

¶93 Chief among them was that the jury had good reason to
believe that Girlfriend could not have caused Victim’s injuries. As
discussed throughout this opinion, Girlfriend had a broken arm
that was in a cast. At trial, Girlfriend explained to the jury how
her broken arm (and the accompanying cast) impaired her ability
to do even simple tasks like tying her shoes. Even so, while she
acknowledged that she managed to hit Victim in the arm and leg
(after Samples ordered her to), she testified that this “hurt like
hell” and that she could “[b]arely” grip the bat. Samples himself
also acknowledged that Girlfriend was limited because of her
injury. For example, in his version of the events, he said that
Girlfriend’s broken arm prevented her from digging a hole and
made it difficult for her to help move Victim’s body.

¶94 But the jury received evidence showing that the killer had
the ability to inflict significant injuries on Victim through the use


 20200537-CA                     33              

                         State v. Samples


of violent and, of some note, repetitive force. The jury saw
pictures of Victim’s body, and those pictures showed the damage
that was done to him. The jury also heard Medical Examiner
testify in-depth about the damage to Victim’s body: she said that
his head had twelve “distinct injuries,” that “all of the bones on
the left side [of his skull] had fractures that radiated through
them,” that his brain was bruised, that both bones in his left
forearm were broken, that his right arm had bruises and
swelling, and that a finger was missing. Aside from the
injuries themselves, the jury also heard that the assailant struck
Victim with enough force to break a metal bat. Samples’s story
thus required the jury to believe that Girlfriend, whose broken
arm made it difficult for her to dig a hole, move a body, or even
tie her own shoes, was somehow able to repeatedly hit Victim
with a bat with enough force to kill Victim and even break the
metal bat.

¶95 This was implausible. Indeed, Samples acknowledged as
much at trial, stating that he wouldn’t be surprised if nobody
believed that a woman with a broken arm had killed somebody in
this manner. Samples even agreed that his own story sounded
“ridiculous.”

¶96 And the problems with his version of the events extended
beyond Girlfriend’s physical limitations. Of note, the jury heard
testimony that no blood was found on her cast. This, too, makes it
seem unlikely that she managed to hit Victim several times (even
breaking the bat in the process) without some blood reaching the
cast that was on her dominant hand.

¶97 The State’s account was further corroborated by the
testimony about motive. In her testimony, Girlfriend identified
Samples’s motive for the killing: Samples believed Victim killed
his mother. This apparent belief was corroborated by Brother,
who testified that Samples had spoken of Victim “maybe having
something to do with [their] mother’s death.”



 20200537-CA                   34              

                          State v. Samples


¶98 By contrast, there was scant evidence of Girlfriend having
any motive to kill Victim. Indeed, Girlfriend and Victim had never
met before that night. While Samples nevertheless testified that
Girlfriend killed Victim because he was attempting to sexually
assault her, Samples acknowledged that “[s]omething [was] just
not adding up” with his own story because he couldn’t “see
[Victim] just grabbing somebody.” And beyond that, there was
reason for the jury to doubt Samples’s general credibility. At trial,
he confirmed that he had seventeen prior convictions, all of which
involved him being “dishonest” in some form.

¶99 Girlfriend’s account of the killing was further corroborated
by Inmate 1, who said that Samples confided in him and confessed
to killing Victim and then cutting off his finger to get the ring. We
recognize that Inmate 2 testified that he never saw Samples and
Inmate 1 talk to each other. But Inmate 2 acknowledged that he
had only “briefly” lived on the same cell block as Inmate 1 and
Samples, so the jury could have concluded that Inmate 2’s
testimony did not negate Inmate 1’s.

¶100 Finally, there’s the ring. At trial, Samples admitted that he
cut off Victim’s finger because he wanted to take his ring. This is
abhorrent behavior by any stretch, and it would have
corroborated the State’s claims about Samples’s state of mind, his
antipathy toward Victim, and his disregard for the sanctity of
human life. While Samples tried justifying this action by claiming
that the ring had “sentimental” value to him, Samples then
admitted that he threw the ring away a short time later, thus
undermining his credibility with respect to his own description of
his own supposed motivation.

¶101 In short, the jury was tasked with deciding who killed
Victim: Samples or Girlfriend. Samples had two working arms
and a known motive for the killing that was corroborated by two
witnesses, and his acknowledged behavior after the killing was
consistent with the State’s insistence that he was the perpetrator



 20200537-CA                     35              

                         State v. Samples


of this crime. By contrast, Girlfriend had a broken arm, no
previously known motive for hurting Victim, and no blood on the
cast that was on her arm the entire time. So when the jury heard
Samples admit that his story sounded like “a ridiculous story,”
his concession was reflective of the overall evidentiary picture.

¶102 Given this, we have no hesitation in concluding that the
effect of the various alleged errors—either individually or
cumulatively—is not enough to “undermine[] our confidence that
a fair trial was had.” Martinez-Castellanos, 

(quotation simplified).


                         CONCLUSION

¶103 We deny Samples’s request for a rule 23B remand because
his motion and proffer do not “support a determination that
counsel was ineffective.” Utah R. App. P. 23B(a).

¶104 We also conclude that Samples has not shown that he was
prejudiced by any alleged error with respect to either the
repetition of Girlfriend’s out-of-court statements by Detective and
Captain or Detective’s equivocal statement about Girlfriend’s
ability to injure Victim. Finally, we are unpersuaded that the
cumulative effect of the alleged errors requires reversal.

¶105 Affirmed.




 20200537-CA                    36