2025 UT App 35
THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHAWN MICHAEL SMITH,
Appellant.
Opinion
No. 20220135-CA
Filed March 6, 2025
Fifth District Court, Cedar City Department
The Honorable Matthew L. Bell
No. 201500605
Benjamin Miller and Debra M. Nelson,
Attorneys for Appellant
Derek E. Brown and Jeffrey D. Mann,
Attorneys for Appellee
JUDGE JOHN D. LUTHY authored this Opinion, in which
JUDGES DAVID N. MORTENSEN and RYAN D. TENNEY concurred.
LUTHY, Judge:
¶1 In 2003, thirteen-year-old Maddison 1 reported to police
that Shawn Michael Smith, the husband of her friend’s sister, had
raped her. After processing Maddison’s cervical swabs for DNA
and misinterpreting the results as exonerating Smith, the State
declined to prosecute the case. In reality, the results indicated not
that Smith’s DNA failed to match a profile generated from sperm
found on the swabs, but that the sperm fraction was too small to
generate any DNA profile with the technology available at the
time. In 2018, however, the swabs were sent to another laboratory,
which was able to generate a DNA profile therefrom. This profile
1. A pseudonym.
State v. Smith
matched a profile generated from a sample of Smith’s blood.
Smith was then charged with and later convicted of rape.
¶2 Smith appeals, arguing that the district court erred by
denying his motion to dismiss based on the destruction of certain
evidence in the years between when the State initially declined to
prosecute and when it later charged him. Smith also claims that
his trial counsel (Counsel) provided ineffective assistance by
(1) not objecting to testimony regarding a DNA match between
Smith’s blood and sperm found on Maddison’s cervical swabs
because the State’s failure to present the witness who developed
the DNA profile from Smith’s blood violated the Confrontation
Clause, (2) not objecting to the testimony comparing the two DNA
profiles because of a lack of foundation, (3) not objecting to
testimony by an analyst that she “found very little of his DNA” in
2003, (4) not objecting when the court failed to instruct the jury at
the beginning of trial about the presumption of innocence and
burden of proof, (5) not objecting to a comment by the State in
closing argument that the presumption of innocence was “gone,”
and (6) not filing a motion to suppress a pocketknife found on
Smith because the search that produced the knife violated the
Fourth Amendment. Finally, Smith contends that when
accumulated, these various alleged errors prejudiced him. None
of Smith’s claims are availing, so we affirm his conviction.
BACKGROUND 2
The Assault
¶3 In June 2003, thirteen-year-old Maddison was staying at a
friend’s apartment. Among the people living in the apartment
2. “On appeal, we review the record facts in a light most favorable
to the jury’s verdict and recite the facts accordingly. We present
conflicting evidence only as necessary to understand issues raised
(continued…)
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State v. Smith
were the friend’s older sister and her husband, Smith. One day,
Maddison went to a gym with her friend, the friend’s sister, and
Smith. After Maddison was informed that without a parent’s
permission she could not use the equipment, Smith offered to
drop her back off at the apartment. When they arrived, Maddison
called another friend (Scott 3) to come over and hang out until the
others returned from the gym. Maddison then went to the
bathroom to get ready for Scott to arrive. Meanwhile, Maddison
saw, through the reflection in the bathroom mirror, Smith lock the
door to the apartment.
¶4 Smith then came to the bathroom and “started to rub up
against [Maddison] and mak[e] comments about how [they]
should have sex.” Maddison felt very uncomfortable and told him
no. She reminded him that she was only thirteen, that he was
married to her friend’s sister, and that Scott was on his way over.
But Smith “kept rubbing up against [her] and persisting [in saying
they] should have sex.” When Maddison walked out of the
bathroom, Smith “pushed [her] up against the wall” and, with one
hand, “put a knife to [her] throat,” while putting his other hand
over her mouth and asking, “What if I make you?” There was
knocking at the door—Maddison believed it was Scott—but
Smith kept the knife to Maddison’s throat. Maddison was crying
and repeatedly told Smith, “No, please, please don’t kill me.
Please, please, please don’t kill me.” Finally, because she was “so
scared,” she said “okay,” and Smith pulled her into the back
bedroom.
¶5 Smith then undressed himself and Maddison. He lay down
on a mattress on the floor and put his penis in Maddison’s mouth.
Then he directed Maddison to lie down, after which he penetrated
on appeal.” State v. Thomas, 2019 UT App 177, n.1,
474 P.3d 470
(cleaned up).
3. A pseudonym.
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State v. Smith
her vaginally. After Smith finished, he took Maddison into the
bathroom and instructed her to stand over the toilet while he
repeatedly squeezed into her vagina soap and water he had mixed
in a baby oil bottle. He then told Maddison not to tell anyone what
had happened and climbed out the back window of the
apartment.
¶6 After Smith left, Maddison went to the front door, where
Scott was waiting and had been knocking intermittently
throughout the assault. Maddison was “crying hysterically” while
she told Scott that Smith had “just raped [her] and that he had
[held] a knife up to [her] throat and . . . douched . . . [her] with the
baby oil bottle.” Scott stayed with Maddison “[u]ntil nightfall.”
Later that evening, Maddison left the apartment with a different
friend and stayed with her overnight. The next day, after
Maddison told that friend what had happened, the friend took her
to an emergency room. Hospital staff completed a rape kit,
including by taking swabs of Maddison’s vagina and cervix.
The Investigation
¶7 Police were alerted, and a detective (Detective) began an
investigation. Detective interviewed Maddison after the medical
examination. Maddison recounted the events described above
and also told Detective that the knife Smith had used was a
“pocket type knife with a blade length of more than two inches”
that was “possibly red.”
¶8 The following day, Detective interviewed Scott. Detective’s
report indicated that Scott recounted that he had come over after
Maddison called and that after Maddison did not answer the
door, Scott went to the parking lot and saw Smith coming out
from behind the apartment. Scott reported that Smith gave him a
funny look and did not respond when Scott asked, “[W]hat’s up?”
¶9 Detective’s report from the day he interviewed Scott
indicated that Detective spoke with the prosecutor after that
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State v. Smith
interview and that the prosecutor “stated that he wanted an
interview [with Smith] before a decision to arrest was made.”
Detective’s report indicated that this decision to interview Smith
was “based partially on the delay of reporting and the lack of
evidence at [that] time.”
¶10 Detective tried to contact Smith several times but was
unable to make contact until five days after the assault. Detective
went to Smith’s mother’s home and found Smith there, and Smith
agreed to meet Detective at Detective’s office shortly thereafter.
When Smith arrived at Detective’s office, Detective searched
Smith. During the search, he found a “black Gerber folding knife”
in Smith’s pants pocket.
¶11 Detective informed Smith of his Miranda rights, and Smith
“signed a waiver indicating he would speak with [Detective]
without an attorney present.” Detective asked Smith about
Maddison’s allegations, and Smith denied having sex with
Maddison. “He claimed that she was mad at him because earlier
in the week or maybe even two weeks earlier they had been to a
party and [Maddison] was there with some older guys” and Smith
had told the men Maddison’s age. Detective told Smith that the
rape kit would be sent to the crime lab for DNA testing and asked
Smith if his DNA would be present. Smith “said there’s no way,
that he hadn’t done anything, and that it wouldn’t be present.”
Smith said he was willing to provide a DNA sample. Two months
later, Detective asked Smith to provide a DNA sample, and Smith
consented to a blood draw.
¶12 After Detective’s initial interview of Smith, Detective and
another officer searched the apartment where the rape had
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State v. Smith
occurred for the baby oil bottle Maddison referred to, but they did
not find any such bottle. 4
¶13 Four months after the assault, after the DNA and blood
samples were processed, Detective was informed that the lab
report was complete. He recorded in his police report, “I have
been told that there is no DNA present of the suspect[], only the
victim.” A week later, Detective received the DNA report. The
report indicated that a small amount of sperm was found in the
DNA sample on the cervical swab. Specifically, it indicated that
“[n]o DNA profile was developed on sample Q1S”—the “sperm
fraction” obtained from the DNA on the cervical swab. This was
because the sample of sperm was too small for the technology
available at the time to obtain a DNA profile from it. But Detective
misunderstood the report. He recorded, “It indicates that the
blood standard from . . . Smith does not match the sample marked
Q1E and could not have originated from the same donor.” While
this was true, Q1E was the portion of the DNA from the cervical
swab that was female DNA, and this DNA was matched with
Maddison.
¶14 In other words, Detective misunderstood the report to be
saying that the sperm fraction did not match Smith, when in fact it
said that the female DNA sample did not match Smith. Again, there
was no male DNA profile generated from the small sample of
sperm, so the lab could not have determined whether Smith was
a match or not.
¶15 Two months after this, the prosecutor assigned to the case
asked Detective to interview Scott a second time. After several
failed attempts to contact Scott, law enforcement was able to
finally interview him. Detective reported on December 23, 2003,
4. Maddison later testified that after Smith douched her with the
baby oil bottle, he put it into his pocket, before leaving the
apartment through the back window.
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State v. Smith
that “[t]he second interview of [Scott had] been done and [had]
been sent to” the prosecutor.
¶16 On January 29, 2004, Detective noted that he had spoken
with the prosecutor, who said he “was going to decline to
prosecute this case.” Detective later testified that the reason the
county attorney’s office declined to prosecute was the mistaken
belief that the lab results had indicated that Smith’s DNA did not
match the sperm.
The 2018 and 2019 Lab Results
¶17 In 2018, the Utah State Crime Lab sent Maddison’s cervical
swabs and her blood sample to Bode Cellmark Forensics (Bode),
which has a contract to work on the State Crime Lab’s “backlog
cases.” Based on “advancements in technology and DNA
profiling,” Bode was able to generate a DNA profile for the sperm
fraction identified in this case despite the State Crime Lab having
not been able to do so in 2003. The DNA profile was entered into
the Combined DNA Index System (CODIS) to search for a match.
¶18 In March 2019, the State filed a report indicating that a
DNA extraction had been performed on a sample of Smith’s blood
and a DNA profile had been derived. That report indicated that a
forensic scientist at the State Crime Lab (Scientist) had compared
this DNA profile with the profile generated by Bode from the
sperm fraction. Scientist determined that the two profiles
matched, and she indicated that the frequency of this match
occurring “in a random population” was estimated at one in “5.4
quadrillion Caucasians,” “3.4 quadrillion African Americans,” or
“19 Quadrillion Southwestern Hispanics.” Smith, a Caucasian,
was then charged with rape based on the incident that occurred
in June 2003.
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State v. Smith
Smith’s Pretrial Motion to Dismiss
¶19 During the pretrial stage, it became clear that some—but
not all—of the evidence that law enforcement had collected in
2003 had since been destroyed. While local law enforcement had
not destroyed the forensic evidence or Detective’s report, it had
destroyed the audio recordings of interviews with Maddison,
Smith, and Scott, as well as a copy of the county prosecutor’s letter
declining to prosecute the case. The State informed the court that
“[i]t seem[ed] these items were disposed of as the case was closed
and had been declined by the prosecutors of that time.” The
applicable police department records retention policy was that
felony investigation case files were to be “[r]etain[ed] for 5 years
after [the] case closed and then destroy[ed].”
¶20 Based on the missing evidence, Smith asked the court to
dismiss the case under Brady v. Maryland, 373 U.S. 83 (1963),
arguing that the State had “withheld” evidence and that while
“[t]he absence of the [evidence made] it impossible to know how
detrimental those statements may or may not have been to Mr.
Smith’s defense,” “the presumption should be” that the loss of the
evidence prejudiced Smith. The State responded that these
circumstances should not be analyzed under Brady but, rather,
under State v. Tiedemann,
2007 UT 49,
162 P.3d 1106, which
addresses evidence that is lost or destroyed.
¶21 The court agreed with the State, saying, “There’s no
indication the State has failed to disclose information, that they’ve
held things back. This is clearly a failure to preserve evidence
issue[,] which falls squarely within Tiedemann.” The court then
ruled that Smith had failed to satisfy the threshold requirement in
Tiedemann that he “demonstrate a reasonable probability that the
lost evidence would have been exculpatory.” The court also
addressed the balancing test provided in Tiedemann between “the
culpability of the State in the failure to preserve the evidence and
the prejudice to the [d]efendant.” It found that the State’s
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State v. Smith
culpability here was minimal because there was no evidence that
the destruction “was done in bad faith” and, rather, that “[i]t was
done in compliance with the retention policy.” The court
specifically “disagree[d] that the fact that not all evidence was
destroyed . . . means there’s bad faith,” saying, “It is not
uncommon for things like DNA samples to be preserved . . .
recognizing technology can advance . . . .” The court ultimately
determined that “the strength of the remaining evidence [was]
profound,” concluded that the weighing test fell in the State’s
favor, and denied the motion.
The Jury Selection Process, Preliminary Instructions, and Defense’s
Opening Statement
¶22 A jury trial was held in December 2021. During the voir
dire process on the first day of the trial, before having the
Information read, the court stated to the first group of prospective
jurors, “The Information is only an accusation against the
Defendant, nothing more. It is not evidence. It is not proof of any
guilt.” After the Information was read, the court repeated, “I’m
going to state it again. The Information is not evidence. It is not
proof of guilt, and the Defendant is presumed innocent.” To the
second and third groups of prospective jurors, the court made
essentially the same statements before and after having the
Information read to them.
¶23 The court further stated to the prospective jurors:
The law also provides that when a Defendant enters
a plea of not guilty as has been done here, that the
Defendant is presumed innocent unless the State
proves his guilt beyond a reasonable doubt and if
the State fails to meet that burden the jury must find
the Defendant not guilty. If any of you would have
any hesitancy in applying these legal principles in
jury deliberations please raise your hand.
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State v. Smith
No hands were raised.
¶24 After the jurors were selected and sworn in, the court read
the first seven jury instructions to the jury. Instruction 1 included
the statements “[y]ou will be given additional instructions later in
this case,” “[t]he order in which these instructions are given has
no significance as to their relative importance,” “you should not
single out any instruction or ignore any instruction,” and
“[c]onsider the instructions as a whole.”
¶25 Instruction 2 stated, in relevant part:
The Defendant has been charged with the
commission of a crime in a formal document called
an Information. The clerk has read to you the
Information in this case and has told you that the
Defendant has pled not guilty to the charge in the
Information. In this trial, as in every trial of criminal
charges, there’s a disagreement about whether the
Defendant has committed a crime. It is your duty in
this trial to decide the issues of fact presented by the
charges in the Information and the Defendant’s plea
of not guilty to the charges. You may not consider
the filing of the Information, the Defendant’s not
guilty plea, or the fact that the Defendant has been
brought before the court for trial to be evidence of
the Defendant’s guilt or innocence.
¶26 In the defense’s opening statement, Counsel emphasized
the State’s burden and the presumption of innocence, saying:
It is the State’s responsibility to prove each element
of the crime alleged beyond a reasonable doubt. The
Judge will give you instructions as we continue
through to tell you what your responsibility is. And
it’s the State’s burden to prove beyond a reasonable
doubt that the crime was committed. The Defense
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State v. Smith
has no burden. The burden cannot be shifted. It is
up to the State to prove each element beyond a
reasonable doubt to satisfy you that what has been
alleged to have happened has happened. As we
proceed through the course of trial it is your duty to
presume that Mr. Smith is innocent until a verdict of
something different comes forth or you decide that
the verdict should be not guilty.
The Evidence at Trial
¶27 During the State’s case, Maddison, Scott, and Detective
testified, recounting the rape and the investigation as described
above. The State also called the doctor who examined Maddison
at the hospital, an officer who drew Smith’s blood, and four
forensic scientists, including Scientist.
¶28 One of the forensic scientists (Analyst) had created the lab
report in 2003, and she testified about that report. Analyst
described the process she used to separate the male and female
cells collected on Maddison’s cervical swabs. She said that “[i]n
this case,” the female sample “had a large amount of DNA” and
the sperm fraction “had a very small amount of DNA.” She then
stated, “[B]ased on the fact that I found very little of his DNA and
lots of hers, I did a procedure to optimize how much DNA I took
on.” She also testified that Maddison matched Q1E—the female
sample—and that Smith did not match that female sample. This
was Analyst’s only direct reference to Smith, apart from her
identifying Maddison and Smith as the individuals involved in
the samples sent to her, which included blood samples from both
individuals. Analyst further testified that “there was no DNA
profile that was developed for Q1S or the sperm fraction of the
cervical swabs.” In response to being asked why she could not
“get a profile from the sperm,” she said she could not do so
“[b]ecause there was a very, very small amount of DNA and it did
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State v. Smith
not meet the requirements of the kit that [she] used to make the
copies of the DNA.”
¶29 Another analyst (Bode Analyst) testified about her role at
Bode in generating a profile of male DNA from cervical swabs
from Maddison. She stated that Bode received cervical swabs and
a blood sample from Maddison but that Bode did not receive a
blood sample from Smith or anything else known to contain his
DNA. Bode Analyst described how she used Maddison’s DNA to
isolate the DNA belonging to the other contributor to the sample
on the cervical swabs. She generated a report identifying the
profile for this male DNA.
¶30 Scientist testified that in 2018, a DNA profile was able to be
generated from the sperm fraction, even though that had not been
accomplished in 2003, because the kits today “are just a lot more
sensitive than the kits that were used in 2003” and, accordingly,
analysts today are “able to develop a full DNA profile from a lot
less starting sample.” She testified that her “role in this case” was
to compare “the standard that was submitted for . . . Smith to the
previously developed foreign profile [that was] reported out by
Bode.” She acknowledged that she “personally did not do the lab
work” to develop Smith’s DNA profile, but she testified that the
DNA profile ascribed to Smith “was generated from a [blood]
sample that we know came from [Smith].” After discussing
advancements in technology since 2003, Scientist then confirmed
that when she compared the DNA profile provided by Bode with
the DNA profile “from [Smith’s] blood sample,” they were
“consistent.” She then gave a “weight to that consistency” by
providing the probabilities related above, see supra ¶ 18.
¶31 The defense called two witnesses. First was Maddison’s
friend who lived in the apartment where the assault had taken
place. She testified that on the day of the assault Smith was gone
from the gym for “less than twenty minutes” and that it took
“[a]bout ten minutes” to get from the apartment to the gym. She
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State v. Smith
also said that from her recollection it was not possible to see the
front door in the mirror in the apartment’s bathroom. The second
was a private investigator, who described the layout of the
apartment and agreed that the front door was not visible in the
bathroom’s mirror.
The Jury Instructions, State’s Closing Argument, and Conviction
¶32 Before closing arguments, the court read to the jury the
instructions it had not read at the beginning of the trial, including
Instruction 8, which correctly instructed the jury as to the
presumption of innocence and burden of proof.
¶33 In closing arguments, the State said, among other things,
the following:
I want to talk about Jury Instruction No. 8 now. . . .
[I]t talks about reasonable doubt. And it’s a
wonderful system that we have[.] [W]hen you’re a
defendant you have a presumption of innocence
when you walk in on the first day of your trial and
that is a guarantee by the United States
[Constitution]. Ladies and gentlemen, that shroud
that the defendant was clothed in that he was
presumed innocent when he came here, it’s gone.
It’s gone. We’ve proven each element beyond a
reasonable doubt that he’s guilty of rape.
I want to read from Jury Instruction No. 8 for
a moment. “Proof beyond a reasonable doubt is
proof that leaves you firmly convinced of the
defendant’s guilt.” There are very few things in the
world that we know with absolute certainty. And in
the criminal case the law doesn’t require proof to
overcome every possible doubt.
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State v. Smith
If based on your consideration of the
evidence, you are firmly convinced that the
defendant is guilty of the crime charged you must
find him guilty.
If, on the other hand, you think that there’s a
real possibility that he’s not guilty, you give him the
benefit of the doubt.
¶34 For his part, Counsel began his closing argument by also
reading from Instruction 8 regarding the presumption of
innocence. He then explained, “Smith is still innocent as he sits
here today. The presumption of innocence benefits the defendant
throughout the trial unless the [State] meets [its] burden.”
¶35 Ultimately, the jury convicted Smith of rape, and Smith
now appeals.
ISSUES AND STANDARDS OF REVIEW
¶36 Smith presents eight issues for review. First, he asserts that
the district court erred by denying his motion to dismiss based on
the destruction of some evidence between 2003 and 2019.
“Whether the State’s destruction of potentially exculpatory
evidence violates due process is a question of law that we review
for correctness. However, because this question requires
application of facts in the record to the due process standard, we
incorporate a clearly erroneous standard for the necessary
subsidiary factual determinations.” State v. Tiedemann, 2007 UT
49, ¶ 12,
162 P.3d 1106 (cleaned up).
¶37 Smith next raises six ineffective assistance of counsel
claims. Smith argues that Counsel was ineffective for (1) not
objecting to Scientist’s testimony regarding a match between a
DNA profile created from sperm found on Maddison’s cervical
swabs and a DNA profile created from Smith’s blood because the
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State v. Smith
State’s failure to present the witness who developed the DNA
profile purportedly from Smith’s blood violated Smith’s rights
under the Confrontation Clause, (2) not objecting to Scientist’s
testimony comparing the two DNA profiles because of a lack of
foundation for the testimony, (3) not objecting to testimony by
Analyst that she “found very little of his DNA” in 2003, (4) not
objecting when the court failed to instruct the jury at the
beginning of trial about the presumption of innocence and burden
of proof, (5) not objecting to a comment by the State in closing
argument that the presumption of innocence was “gone,” and
(6) not filing a motion to suppress a pocketknife found on Smith
because the search that produced the knife violated the Fourth
Amendment. “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. Guerro, 2021 UT App 136, ¶ 25,
502 P.3d 338 (cleaned up).
¶38 Finally, Smith contends that when accumulated, the
various alleged errors prejudiced him. “Under the cumulative
error doctrine, we apply the standard of review applicable to each
underlying claim of error. And we will reverse only if the
cumulative effect of the several errors undermines our confidence
that a fair trial was had.” State v. McNeil,
2013 UT App 134, ¶ 16,
302 P.3d 844 (cleaned up), aff’d,
2016 UT 3,
365 P.3d 699.
ANALYSIS
I. Smith’s Motion to Dismiss
¶39 In the years before the DNA evidence in this case was
reexamined, other evidence obtained in the investigation was
destroyed. Smith maintains that several items that were destroyed
are material: the initial forensic report, evidence of a second
interview with Scott, and recordings of other interviews. Smith
asserts that the district court erred by denying his motion to
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State v. Smith
dismiss this case on the ground that the destruction of the
foregoing evidence violated his due process rights as guaranteed
by the Utah Constitution. See generally Utah Const. art. 1, § 7 (“No
person shall be deprived of life, liberty or property, without due
process of law.”).
¶40 In State v. Tiedemann, 2007 UT 49,
162 P.3d 1106, our
supreme court declared:
In cases where a defendant has shown a reasonable
probability that lost or destroyed evidence would be
exculpatory, we find it necessary to require
consideration of the following: (1) the reason for the
destruction or loss of the evidence, including the
degree of negligence or culpability on the part of the
State; and (2) the degree of prejudice to the
defendant in light of the materiality and importance
of the missing evidence in the context of the case as
a whole, including the strength of the remaining
evidence.
Id. ¶ 44. The court later confirmed, in State v. DeJesus, 2017 UT 22,
395 P.3d 111, that Tiedemann “established a two-step analysis,”
holding that before engaging in the foregoing balancing test, “the
defendant must demonstrate a reasonable probability that the lost
evidence would have been exculpatory—the threshold
requirement.” Id. ¶ 27. “Only after the defendant has established
[a threshold reasonable probability that lost or destroyed
evidence is exculpatory] should a court consider the two
Tiedemann factors.” Id. ¶ 29.
¶41 In a separate case, the court explained this threshold
requirement in more detail:
Although a “reasonable probability” is difficult to
define, we have provided some guidelines: A
reasonable probability is a probability sufficient to
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State v. Smith
undermine confidence in the outcome. It is above a
mere possibility, though it may fall substantially
short of the more probable than not standard. . . .
But even though the bar is low, there must be more
than speculation . . . .
State v. Mohamud, 2017 UT 23, ¶ 20,
395 P.3d 133 (cleaned up).
¶42 Smith argues that he has satisfied this threshold
requirement, asserting that the evidence that was destroyed—
particularly the recordings of interviews with Maddison, Smith,
and Scott 5—was likely exculpatory. Smith focuses much attention
on Detective’s second interview with Scott, which we address
below. First, however, we consider his other assertions as to the
likelihood of the destroyed evidence being exculpatory.
¶43 Smith asserts that “the destroyed interviews of [Maddison]
and [Scott] likely would have contained inconsistencies and
impossibilities that could have been used as valuable
5. Smith also asserts that “the State destroyed the initial report
from the forensic testing that showed no connection to Mr. Smith”
and that this report “was incontrovertibly exculpatory.”
However, the 2003 forensic testing report was admitted at trial.
Smith seems to argue that this report was not the one that was
destroyed, saying, “The lone retained police report indicated that
Mr. Smith’s DNA ‘does not match’ the sample and it ‘could not
have originated’ from him,” but “[t]he evidence at trial was that
initially no DNA had been found to try to make a match,” so
“[w]hether the police made a mistake or were operating from a
different, since destroyed, report, is not known.” But, as explained
above, Detective’s record entry reflected a misinterpretation of the
2003 report, and Detective testified to this misunderstanding at
trial. Accordingly, we are not convinced that a separate 2003
forensic report existed and was destroyed.
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State v. Smith
impeachment.” This assertion fails to satisfy the threshold
requirement. Our supreme court has explained that
to establish a reasonable probability that video
evidence is exculpatory for impeachment purposes,
a defendant cannot rest on the claim that the
evidence could have undermined confidence in a
witness’s testimony in some possible way, but must
instead make some proffer as to what testimony
would have been contradicted and how such a
contradiction would have aided the defendant.
Id. ¶ 22 (emphasis added) (cleaned up). For example, our supreme
court has specifically indicated that a defendant’s “speculation
that [destroyed] video evidence could have impeached [police]
officers’ testimony in some unspecified way [was] insufficient to
satisfy the reasonable probability threshold set forth in Tiedemann
and DeJesus.” Id. The same is true here. Smith’s assertion that the
missing evidence would serve some unknown impeachment
function is not sufficient.
¶44 Smith further argues that the destruction of only some of
the evidence initially collected establishes a reasonable
probability that the destroyed evidence was exculpatory. He says
that “[l]aw enforcement’s decision to keep some evidence and
destroy the rest is another piece of circumstantial evidence that
the destroyed evidence contained exculpatory information” and
that because “a decision was made to keep the forensic material,
the knife, and a single police report, but destroy everything else,
an adverse inference against the State is appropriate that the
destroyed evidence would have been harmful to its case.” We
disagree. While it is conceivable that there may be a circumstance
where the destruction of some evidence and retention of other
evidence might support an inference that the destroyed evidence
was exculpatory, we believe that no such inference is justified
here. Nothing beyond Smith’s speculation suggests that in this
20220135-CA 18 2025 UT App 35
State v. Smith
case the State selectively destroyed evidence that was
exculpatory. And Smith does not claim on appeal that the district
court’s factual findings on this point were unsupported by
substantial evidence, so we accept as true the court’s finding that
“[t]here’s no evidence that [the destruction] was done in bad
faith” and, rather, that “[i]t was done in compliance with the
retention policy.” Given that the retention policy supported the
destruction of evidence after five years, the decision to destroy
any particular piece of evidence does not support an inference
that the destroyed evidence was exculpatory.
¶45 Next, we consider Smith’s argument concerning Scott’s
second interview. Here, Smith argues:
It is not “pure speculation” to believe that
whatever was said in that second interview would
have contained exculpatory evidence. Given the
circumstances, it is highly likely that something was
said—or not said—in that interview that
undermined [Maddison’s] allegations, undermined
her credibility, and supported Mr. Smith’s stance
that he was not guilty. The defense does not need to
know precisely what was said to be able to rely on
the relevant, reasonable circumstances to make its
case.
Smith’s reference to “the circumstances” concerns the timing of
the second interview of Scott related to the decision not to
prosecute the case, which Smith believes indicates that the second
interview contained exculpatory evidence. As he puts it in his
brief:
The State argued that the decision not to
arrest was because of the initial results of forensic
testing. But that is not what the timeline establishes.
The police did not decline the case after getting the
DNA results. Police only stopped after their second
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State v. Smith
conversation with [Scott]—an interview they later
destroyed. The police had the forensic results in the
Fall of 2003; they reinterviewed [Scott] in December
after he repeatedly dodged their calls; and in early
January 2004, they declined to proceed.
¶46 While Smith is correct that the prosecutor made the
ultimate decision not to prosecute the case after the second
interview with Scott, we are not convinced that Smith’s
contention that that interview contained exculpatory evidence
goes beyond speculation. This is because the record supports a
different conclusion about the import of this interview.
¶47 Detective’s report on the day of Scott’s first interview with
Detective indicates that Detective spoke with the prosecutor after
interviewing Scott. Detective reported that the prosecutor “stated
that he wanted an interview [with Smith] before a decision to
arrest was made.” Detective indicated that this decision was
“based partially on the delay of reporting and the lack of evidence
at [that] time.” This is critical because it shows that even with
Scott’s first interview—which described him repeatedly knocking
at the door, him seeing Smith come around from behind the
apartment and give him a funny look, and Maddison finally
opening the door, being upset, and telling Scott that she had been
raped—the State felt it did not have enough evidence to arrest and
charge Smith at that time.
¶48 After this point, Detective interviewed Smith, uncovering
the pocketknife but also hearing Smith adamantly deny any
wrongdoing and insist that he would cooperate. Detective then
searched the bathroom of the apartment where the rape allegedly
took place and found no baby oil bottle. Later, the State received
the initial DNA results, which Detective misinterpreted as
precluding a match with Smith. Importantly, the State did not
then arrest or charge Smith, suggesting that it did not believe it
had sufficient evidence to prosecute him at that time.
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State v. Smith
¶49 Only some weeks later did the prosecutor ask Detective to
reinterview Scott, and within two weeks, a report of Detective’s
second interview of Scott was sent to the prosecutor. Over a
month after that, the prosecutor informed Detective that he was
declining to prosecute the case.
¶50 Based on the foregoing investigative timeline, there is no
reason to believe that the second interview of Scott was
exculpatory. Smith points to nothing other than the timing of
Scott’s second interview and the prosecutor’s ultimate decision
not to prosecute as the basis for us to assume that Scott’s second
interview yielded exculpatory evidence. Yet it is at least as likely
that this interview simply yielded no additional information and,
thus, that the State felt the same way after the interview as it did
before—that it lacked sufficient evidence to prosecute Smith. In
other words, the investigative timeline is decidedly inconclusive,
thus supporting only a speculation as to whether the second
interview of Scott contained exculpatory information.
¶51 Because Smith cannot satisfy the threshold requirement set
forth in Tiedemann, we have no need to engage in the balancing
test given therein. The district court did not err in denying Smith’s
motion to dismiss on due process grounds.
II. Ineffective Assistance of Counsel
¶52 Smith asserts six claims of ineffective assistance of counsel.
To demonstrate ineffective assistance of counsel, an appellant
must satisfy both prongs of the test articulated in Strickland v.
Washington, 466 U.S. 668 (1984). Under the first prong, “the
defendant must show that counsel’s performance was deficient”
in that it “fell below an objective standard of reasonableness.”
Id.
at 687–88. We “afford[] a strong presumption that counsel’s
actions were within the broad range of conduct considered a
sound trial strategy.” State v. Hutchings,
2012 UT 50, ¶ 18,
285 P.3d
1183 (cleaned up). Under the second prong, “the defendant must
show that the deficient performance prejudiced the defense.”
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State v. Smith
Strickland, 466 U.S. at 687. This is achieved by showing “a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,”
thereby “undermin[ing] confidence in the outcome.”
Id. at 694.
“Because failure to establish either prong of the test is fatal to an
ineffective assistance of counsel claim, we are free to address [a
defendant’s] claims under either prong.” Honie v. State,
2014 UT
19, ¶ 31,
342 P.3d 182. We now address Smith’s six ineffective
assistance claims in turn.
A. The Confrontation Clause and Scientist’s Testimony
¶53 The Sixth Amendment to the United States Constitution
declares that “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.” U.S. Const. amend. VI. “The confrontation guarantee of the
Sixth Amendment . . . is to be enforced against the States under
the Fourteenth Amendment according to the same standards that
protect those personal rights against federal encroachment.”
Pointer v. Texas,
380 U.S. 400, 406 (1965) (cleaned up). Those
federal standards dictate that in a criminal trial, when a
testimonial statement is admitted for its truth, the defendant must
be allowed to cross-examine the declarant unless the declarant is
unavailable and the defendant has had a previous opportunity to
cross-examine the declarant. Crawford v. Washington,
541 U.S. 36,
59 & n.9 (2004).
¶54 In this case, Scientist testified that “another qualified
analyst” at the State Crime Lab developed a DNA profile “from a
[blood] sample that we know came from [Smith].” Scientist
further testified that the DNA profile developed “from [Smith’s]
blood sample” matched the DNA profile developed by Bode from
the sperm fraction derived from the DNA on Maddison’s cervical
swabs. Smith argues that the Confrontation Clause required that
he “be able to confront the analyst who did the work” that
resulted in the DNA profile ascribed to him. He asserts that
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State v. Smith
“[w]ithout testimony from the analysts who created his DNA
profile . . . , [he] was unable to meaningfully explore on crossexamination whether the results [Scientist] used were obtained
through mistake, incompetence, or fraud.” Based on these
assertions, Smith further contends that Counsel performed
deficiently by not objecting to Scientist’s testimony on
Confrontation Clause grounds. We need not decide the merits of
Smith’s Confrontation Clause argument because we determine
that, even if Scientist’s testimony violated the Confrontation
Clause and, therefore, that an objection by Counsel on that
ground would have been successful, Counsel did not perform
deficiently by not objecting to Scientist’s testimony.
¶55 Counsel’s decision not to object to Scientist’s testimony on
Confrontation Clause grounds was not deficient performance
because Counsel could have reasonably assumed that such an
objection would have likely led to the State calling the expert who
prepared the DNA profile developed from Smith’s blood to testify
to the accuracy of that profile. When analyzing an ineffective
assistance claim, we must recognize that defense counsel “knew
of materials outside the record.” Harrington v. Richter, 562 U.S. 86,
105 (2011). And we must proceed on the “strong presumption that
counsel’s actions were within the broad range of conduct
considered a sound trial strategy,” Hutchings,
2012 UT 50, ¶ 18
(cleaned up), unless material in the record makes counsel’s
deficient performance “a demonstrable reality,” State v. Munguia,
2011 UT 5, ¶ 30,
253 P.3d 1082 (cleaned up). Because there is no
indication in the record here that Smith could have countered
such testimony, we must conclude that Counsel’s decision to
avoid that potential outcome was reasonable. As the United States
Supreme Court has said in a related context,
It is unlikely that defense counsel will insist on live
testimony whose effect will be merely to highlight
rather than cast doubt upon the forensic analysis.
Nor will defense attorneys want to antagonize the
20220135-CA 23 2025 UT App 35
State v. Smith
judge or jury by wasting their time with the
appearance of a witness whose testimony defense
counsel does not intend to rebut in any fashion.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 328 (2009)
(explaining why the Court’s holding that the Confrontation
Clause requires in-person testimony from analysts who identify
seized substances will not impose an excessive burden on the
prosecution of drug crimes). Additionally, by forgoing an
objection, Counsel created an opportunity to assert during closing
arguments that the State’s DNA evidence was flawed. Indeed,
that is essentially what Counsel did when he reminded the jury,
“[Scientist] just got two [DNA profiles] and she put them in the
system and said, this is what it is. . . . [She] didn’t analyze any of
that. [She] just took what [she] was given and [reported a match].”
¶56 Smith counters by contending that Counsel’s failure to
object was unreasonable because “[t]he State had no witness
available it could have called” to establish the accuracy of the
DNA profile developed from Smith’s blood. In support of that
contention, Smith does not point to any evidence that the analyst
who prepared the DNA profile developed from his blood was
unavailable to testify. Rather, he cites rule 16 of the Utah Rules of
Criminal Procedure, which requires prosecutors to disclose “no
later than 14 days, or as soon as practicable, before trial . . . , a
written list of the names and current contact information of all
persons whom the prosecution intends to call as witnesses at
trial.” Utah R. Crim. P. 16(a)(5)(A). And he explains that “[n]o
expert who the State noticed or who appeared on the witness list
was involved in developing the DNA profile [from Smith’s
blood].” Thus, he asserts, had Counsel objected, “the State would
have been unable to present the needed witness.”
¶57 But exclusion is not the default sanction for failure to
satisfy the notice requirements for expert witnesses in a felony
case. Section 77-17-13 of the Utah Code specifically governs expert
20220135-CA 24
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State v. Smith
witnesses in felony prosecutions. Under that section, if a party
“fails to substantially comply” with the disclosure requirements
for expert witnesses in a felony case, “the opposing party shall, if
necessary to prevent substantial prejudice, be entitled a
continuance of the trial . . . sufficient to allow preparation to meet
the testimony.” Utah Code § 77-17-13(4)(a). “The remedy of
exclusion of the expert’s testimony will only apply if the court
finds that a party deliberately violated the provisions of [section
77-17-13].” Id. § 77-17-13(4)(b). And here, Smith asserts no
deliberate violation by the prosecution.
¶58 Admittedly, section 77-17-13 “does not apply to the use of
an expert who”—like the State Crime Lab analyst who prepared
the DNA profile from Smith’s blood sample—“is an employee of
the [S]tate . . . , so long as the opposing party is on reasonable
notice through general discovery that the expert may be called as
a witness at trial, and the witness is made available to
cooperatively consult with the opposing party upon reasonable
notice.” Id. § 77-17-13(6). In such a case, rule 16 of the Utah Rules
of Criminal Procedure—which addresses discovery in criminal
cases generally—arguably governs the relief to be provided for
the prosecution’s failure to include a particular person in its list of
witnesses it intends to call at trial.
¶59 However, even if rule 16 would have controlled the relief
provided for the prosecution’s failure to timely identify the
missing analyst in this case (something that Smith has not
demonstrated), rule 16 also does not require automatic exclusion
of a witness who was not included in the prosecution’s list of
persons it intends to call at trial. See Utah R. Crim. P. 16(e). Rather,
“[w]hen a party fails to comply with the disclosure requirements
of [rule 16], the court may”—in its discretion (and as relevant
here)—“grant a continuance,” “prohibit the party from
introducing evidence not disclosed,” or “order such other relief as
the court deems just under the circumstances.” Id. And Counsel
could have reasonably concluded here that even under rule 16, if,
20220135-CA 25 2025 UT App 35
State v. Smith
in response to a Confrontation Clause objection, the prosecution
had sought to call the analyst who prepared Smith’s DNA profile,
the district court would not have excluded that testimony.
¶60 The prosecutor was required to “disclose to the defendant”
any “report . . . of any scientific test or experiment” that was
“directly related to the case of which the prosecution team [had]
knowledge and control,” id. R. 16(a)(1)(B), and Smith does not
assert that the prosecutor failed to comply with this duty
regarding the DNA profile developed by the State Crime Lab
from Smith’s blood sample. Nor has Smith shown that the analyst
who prepared the DNA profile from Smith’s blood sample would
have been unavailable to testify if called. Smith also does not
assert that a continuance would have been insufficient to allow
Counsel to prepare to meet the analyst’s testimony. And he does
not contend that the court’s or counsel’s calendars could not have
accommodated a reasonable continuance. Given these facts and
the discretion given to district courts under rule 16 in crafting
appropriate relief for a party’s failure to timely identify a witness
prior to trial, Counsel could have reasonably concluded that
under either section 77-17-13 or rule 16, any objection to Scientist’s
testimony on Confrontation Clause grounds would not have
resulted in the exclusion of the missing analyst’s testimony but,
instead, at most a continuance to allow Counsel to prepare for that
testimony. 6
¶61 Because Counsel could have reasonably concluded that an
objection to Scientist’s testimony on Confrontation Clause
grounds would have led to the prosecution calling the missing
6. At oral argument, Smith suggested that a continuance would
not have been a viable course for the court to take in response to
a midtrial objection to Scientist’s testimony because, at that point,
jeopardy had already attached. But a defendant is “not placed in
double jeopardy . . . simply because a [midtrial] continuance [is]
granted.” State v. Bradshaw,
680 P.2d 1036, 1040 (Utah 1984).
20220135-CA 26
2025 UT App 35
State v. Smith
analyst to testify, that the court would not have excluded that
testimony, and that admission of that testimony would have only
hurt Smith’s defense, Counsel’s decision not to object to Scientist’s
testimony on Confrontation Clause grounds did not constitute
deficient performance. Thus, this ineffective assistance claim fails.
B. Foundation of Scientist’s Testimony
¶62 Smith next asserts that Counsel provided ineffective
assistance when he did not also object to a lack of foundation for
Scientist’s testimony. Smith argues that Counsel should have
objected on the ground that “[n]ot presenting the testimony or
even a report from the analyst who developed [Smith’s DNA]
profile” rendered Scientist’s “ultimate expert conclusion
baseless.” Smith claims that without establishing the
“foundational facts” that Scientist “based her opinion on”—
namely, that Smith’s DNA profile was actually and accurately
developed from his blood—the State failed to clear the “threshold
of reliability,” a circumstance that should have precluded
admission of Scientist’s testimony. However, withholding an
objection about the threshold reliability of Scientist’s expert
testimony was reasonable for the same reasons that withholding
an objection on Confrontation Clause grounds was reasonable.
Counsel could have reasonably concluded that an objection to
Scientist’s testimony on foundation grounds would have likewise
led to the prosecution calling the missing analyst to lay
foundation for Scientist’s testimony, that the court would have
allowed the foundation testimony, and that the foundation
testimony would have only hurt the defense. Accordingly, this
ineffective assistance claim fails as well.
C. Analyst’s Testimony About “His DNA”
¶63 Smith contends that Counsel was ineffective for failing to
object when Analyst testified that she “found very little of his
DNA and lots of hers” when she tested the sample in 2003. Smith
20220135-CA 27 2025 UT App 35
State v. Smith
asserts that by this testimony Analyst “told the jury that in 2003
they did find ‘very little of [Smith’s] DNA.’”
¶64 While it is true that “the State may not knowingly use false
evidence to obtain a conviction,” State v. Cruz, 2020 UT App 157,
¶ 27,
478 P.3d 631 (cleaned up), that is not what happened here.
Analyst, who testified regarding the lab report she created in 2003,
said that “[i]n this case,” the female sample “had a large amount
of DNA” and the sperm fraction “had a very small amount of
DNA.” She then stated that because she “found very little of his
DNA and lots of hers,” she “did a procedure to optimize” the
presence of the DNA. Given this context, Smith’s claim that
Counsel performed deficiently by not objecting fails. Analyst was
talking about male and female DNA. Counsel could have
reasonably concluded that by saying “his DNA,” Analyst was
merely differentiating it from the female DNA also in play.
Analyst did not say “Smith’s DNA” for a reason, namely, that the
identity of the male donor was not established. And Counsel
could have reasonably understood this distinction in the context
of the testimony and determined there was no reason to object.
Smith has therefore failed to demonstrate that Counsel performed
deficiently by not objecting to Analyst’s reference to “his DNA,”
and, accordingly, this claim of ineffective assistance fails. 7
7. Even if Analyst’s reference to “his DNA” could have been
understood to mean “Smith’s DNA,” Analyst thereafter clearly
testified that her testing did not reveal Smith as the source of the
sperm. She said that “there was no DNA profile that was
developed for Q1S or the sperm fraction of the cervical swabs.”
And in response to being asked why she could not “get a profile
from the sperm,” she said it was “[b]ecause there was a very, very
small amount of DNA and it did not meet the requirements of the
kit that [she] used to make the copies of the DNA.” In other words,
she told the jury that she could not match Smith—or any other
(continued…)
20220135-CA 28 2025 UT App 35
State v. Smith
D. Jury Instructions on the Presumption of Innocence and
Burden of Proof
¶65 Smith next argues that Counsel provided ineffective
assistance by not objecting when the district court did not instruct
the jury at the beginning of trial about the presumption of
innocence and the State’s burden of proof. Smith does not assert
that the jury instruction on this topic was erroneous but instead
asserts that it was given too late. Moreover, Smith says that the
district court compounded the problem of late presumption of
innocence and burden of proof instructions when, at the outset of
trial, it characterized the jury’s role as settling a “disagreement”
between the two sides. 8 While conceding that a “failure to instruct
on the core principles at the outset may not always be error,”
Smith asserts that when “combined with misstating the nature of
a criminal trial,” the delayed instructions amounted to a “serious
infringement” of his “right to a fair trial” and that it was
“ineffective assistance for his attorney not to object.”
¶66 It is well settled that “in reviewing the adequacy of jury
instructions, we look at the jury instructions in their entirety and
will affirm when the instructions taken as a whole fairly instruct
male—to the sperm fraction because there was not enough male
DNA to generate a profile using the technology available in 2003.
Hence, even if the jury had initially understood the reference to
“his DNA” as indicating that a small amount of Smith’s DNA was
present on the swabs, Analyst’s own statements thereafter
prevented any prejudice from this misunderstanding.
8. Smith’s point here appears to be that characterizing the criminal
prosecution as a mere “disagreement” between the parties subtly
suggested to the jury that the parties are on equal footing, thus
undermining the presumption of innocence and the State’s
obligation to carry its affirmative burden of proving guilt beyond
a reasonable doubt.
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State v. Smith
the jury on the law applicable to the case.” State v. Dominguez, 2019
UT App 116, ¶ 20,
447 P.3d 1224 (cleaned up); see also State v. Pence,
2018 UT App 198, ¶ 30,
437 P.3d 475; State v. Moore,
2015 UT App
112, ¶ 4,
349 P.3d 797. “Thus, even if one or more of the
instructions, standing alone, are not as full or accurate as they
might have been, counsel is not deficient in approving the
instructions as long as the trial court’s instructions constituted a
correct statement of the law.” State v. Lee,
2014 UT App 4, ¶ 23,
318
P.3d 1164 (cleaned up).
¶67 As to when instructions are to be given, rule 17(f) of the
Utah Rules of Criminal Procedure, which outlines the “order” of
a criminal trial, states, “When the evidence is concluded and at
any other appropriate time, the court shall instruct the jury.” Utah
R. Crim. P. 17(f)(6) (emphasis added). And rule 19 indicates that
“[a]fter the jury is sworn and before opening statements, the court
may instruct the jury concerning the jurors’ duties and conduct,
the order of proceedings, the elements and burden of proof for the
alleged crime, and the definition of terms.”
Id. R. 19(a) (emphasis
added). It also explains that “[d]uring the course of the trial, the
court may instruct the jury on the law if the instruction will assist
the jurors in comprehending the case.”
Id. R. 19(b) (emphasis
added).
¶68 Given this caselaw and the discretion afforded district
courts by our procedural rules regarding the timing of giving
instructions, we see no deficient performance on the part of
Counsel.
¶69 First, while Smith complains that Instruction 2 did not
properly tell the jury about the presumption of innocence and the
burden of proof because it stated that “there’s a disagreement
about whether the Defendant has committed a crime,” there is no
dispute that Instruction 8 accurately stated the law on the
presumption of innocence and the burden of proof. The
“disagreement” language might seem a bit soft from a defense
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State v. Smith
perspective, but a competent attorney could believe that, when
viewing the instructions as a whole, this instruction did not
undermine or contradict the clear articulation of the presumption
of innocence and the burden of proof in Instruction 8.
¶70 Second, our procedural law is clear that instructions may
be given after the presentation of the evidence. We—along with
the parties—are not aware of any case that requires the
presumption of innocence or the burden of proof to be addressed
or defined at the beginning of trial. We cannot fault Counsel for
not objecting to a practice that was clearly allowed by the Utah
Rules of Criminal Procedure and apparently unaddressed in
caselaw. Given the lack of legal impetus to support an objection,
there is no foundation upon which we might base a conclusion
that Counsel performed deficiently by not objecting to the timing
of the burden of proof and presumption of innocence instructions.
Moreover, Counsel would have had little motive to object for
another reason. During voir dire, the court stated the burden of
proof and presumption of innocence correctly multiple times.
And Counsel reiterated them without objection during his
opening statement. Counsel could have reasonably decided that
the jury, having been informed of the burden of proof and
presumption of innocence during voir dire and opening
statements, could wait until the final instructions to hear them
again. At the very least, reasonable counsel could have concluded
that there was little strategic advantage to be gained through the
court repeating the burden of proof and presumption of
innocence at the start of trial. 9
9. While our rules and caselaw do not create an obligation to
instruct the jury on the presumption of innocence and burden of
proof at the beginning of trial, the Model Utah Jury Instructions
recommend giving such instructions at both the beginning and
the end of trial, see MUJI 2d CR 102–04, 208–09,
(continued…)
20220135-CA 31 2025 UT App 35
State v. Smith
¶71 Because Counsel did not perform deficiently by not
objecting when the court did not instruct the jury at the beginning
of trial about the presumption of innocence and the State’s burden
of proof, this ineffective assistance claim fails.
E. The State’s Closing Argument Comment on the
Presumption of Innocence
¶72 Smith next asserts that Counsel provided ineffective
assistance by not objecting to the State’s comment during closing
argument that the presumption of innocence was “gone.” In his
closing argument, the prosecutor stated:
[I]t’s a wonderful system that we have[.] [W]hen
you’re a defendant you have a presumption of
innocence when you walk in on the first day of your
trial and that is a guarantee by the United States
[Constitution]. Ladies and gentlemen, that shroud
that the defendant was clothed in that he was
presumed innocent when he came here, it’s gone.
It’s gone. We’ve proven each element beyond a
reasonable doubt that he’s guilty of rape.
Smith asserts that this statement was obviously improper because
it incorrectly suggested that the presumption of innocence is
overcome when the State presents sufficient evidence of guilt
rather than when the jury decides to convict a defendant because
it has no reasonable doubt as to the defendant’s guilt.
https://legacy.utcourts.gov/muji/?cat=2 [https://perma.cc/5KR6-
F3S5], and we encourage courts to follow this best practice.
Moreover, our supreme court, through its Advisory Committee
on the Rules of Criminal Procedure, may wish to consider
adopting a rule mandating that certain instructions pertaining to
the presumption of innocence and burden of proof be given prior
to opening statements or before the presentation of evidence.
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State v. Smith
Accordingly, Smith argues that Counsel needed to object to the
statement and that failing to object harmed Smith.
¶73 “When we review an attorney’s failure to object to a
prosecutor’s statements during closing argument, the question is
not whether the prosecutor’s comments were proper, but whether
they were so improper that counsel’s only defensible choice was to
interrupt those comments with an objection.” State v. Houston,
2015 UT 40, ¶ 76,
353 P.3d 55 (cleaned up). In many instances,
defense counsel enjoys “the prerogative . . . to swallow their
tongue instead of making an objection.” State v. Hummel,
2017 UT
19, ¶ 110,
393 P.3d 314. The “many legitimate, strategic reasons
why an attorney might choose to not object to a statement made
during closing argument” include
the possible fear that objecting [will] call attention to
the improper statements and suggest to the jury that
they were damaging when counsel felt they were
not, the concern that the jury [is] weary and
inattentive to the prosecutor and that objecting
[will] only serve to focus [its] attention on the
remark, and the concern that an objection [will]
create antipathy to the defense if the jury perceive[s]
that counsel’s repeated objections [are] only
prolonging the proceedings.
State v. Harris, 2024 UT App 191, ¶ 21,
562 P.3d 1215 (cleaned up),
cert. denied, Feb. 25, 2025 (No. 20250077). Another instance where
defense counsel is not obligated to object is when “uncertainties
in the law” make it “far from certain” that the objection will
succeed, because in that circumstance, counsel can reasonably
believe that “the court might deny the objection” and thereby
“give some appearance of judicial approval or official imprimatur
to the prosecutor’s comments.” Id. ¶ 31 (cleaned up).
¶74 Here, as noted, the prosecutor’s arguably objectionable
comment was that by the time of closing arguments, the
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State v. Smith
presumption of innocence that Smith “was clothed in” “on the
first day of [his] trial” was “gone.” We recognize that by this
comment, the prosecutor may very well not have meant that
Smith’s presumption of innocence was “gone” even without the
jury’s input but, rather, that the State had done its job of proving
each element of the crime beyond a reasonable doubt. In fact,
immediately after saying that the presumption of innocence was
“gone,” that is exactly what Counsel argued: “We’ve proven each
element beyond a reasonable doubt that he’s guilty of rape.”
Nevertheless, the prosecutor was treading on thin ice.
¶75 As we recently noted in State v. Harris, 2024 UT App 191,
562 P.3d 1215, cert. denied, Feb. 25, 2025 (No. 20250077)—a case
that also involved the prosecutor arguing in closing that the
presumption of innocence was by that point “gone”—“[b]oth the
Utah Supreme Court and this court have previously said in
passing that the presumption of innocence applies until the
defendant has been convicted,” id. ¶¶ 22, 25 (citing Price v. Turner,
502 P.2d 121, 122 (Utah 1972); Stewart v. State,
830 P.2d 306, 308
(Utah Ct. App. 1992)), and “the United States Supreme Court has
likewise said that the presumption applies ‘throughout the trial
process’ until ‘a jury returns a guilty verdict,’”
id. ¶ 25 (quoting
Martinez v. Court of Appeal of Cal., Fourth App. Dist.,
528 U.S. 152,
162 (2000)). We also acknowledged that “[b]ased on similar
principles,” courts in a number of other jurisdictions have deemed
“statements like the one at issue” here to be “impermissible.”
Id.
(compiling cases). And Smith has identified two additional cases
to add to that list. See United States v. Starks,
34 F.4th 1142, 1158‒
59 (10th Cir. 2022) (concluding that it was plain error for the trial
court to allow the prosecution’s statements during closing that the
presumption of innocence was “‘no longer true’” and “‘ha[d] been
changed’” to “stand uncorrected before the jury”); Mahorney v.
Wallman,
917 F.2d 469, 471, 474 (10th Cir. 1990) (per curiam)
(reversing a conviction based on the prosecutor’s comments
during closing arguments that the presumption of innocence “no
longer exist[ed]” and “ha[d] been removed”).
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State v. Smith
¶76 At the same time, however, we observed in Harris that
while the cited Utah appellate cases “addressed the presumption
of innocence generally,” “no Utah appellate case has addressed
the more particular question of whether a prosecutor can make
. . . a statement [like the one at issue here] in closing argument.”
2024 UT App 191, ¶ 26. We also noted that “the Utah Code states
that the presumption of innocence applies ‘until each element of
the offense charged against [the defendant] is proved beyond a
reasonable doubt,’” perhaps “suggest[ing] that the question turns
on whether the State has presented sufficient proof, as opposed to
whether the defendant has been convicted.”
Id. (quoting Utah
Code § 76-1-501(1) (first alteration in original)). We then identified
“several cases from other jurisdictions in which courts [have] held
that a prosecutor does have leeway to argue in closing argument
that the defendant should no longer be presumed innocent
because the evidence presented at trial had . . . proven the
defendant’s guilt beyond a reasonable doubt.” Id. (citing cases).
¶77 Ultimately, we concluded in Harris that defense counsel
there “could have reasonably believed that if he had objected, the
district court might [have] overrule[d] the proposed objection on
legal grounds” due to “the legal uncertainty attendant to this
question” and, therefore, that defense counsel’s “decision to
refrain from objecting . . . was not objectively unreasonable.”
Id. ¶¶ 30‒31. The instant case is indistinguishable from Harris on
this point, and we reach the same conclusion here. Counsel’s
decision not to object to the prosecutor’s statement that the
presumption of innocence was “gone” did not constitute deficient
performance.
¶78 In Harris, we found the foregoing conclusion to be
bolstered by the fact that during his own closing argument,
defense counsel had read the court’s presumption of innocence
instruction and reminded the jury that the “‘presumption persists
unless the prosecution’s evidence convinces you beyond a
reasonable doubt that the defendant is guilty.’” Id. ¶ 33. And
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State v. Smith
Counsel did the same thing here. He likewise read to the jury from
the court’s instruction on the presumption of innocence and then
explained, “Smith is still innocent as he sits here today. The
presumption of innocence benefits the defendant throughout the
trial unless the [State] meets [its] burden.” Because the cases are,
again, indistinguishable, we again adopt Harris’s conclusion:
Given the uncertainty in the law discussed above,
Counsel could reasonably think that this was the
optimal approach, because approaching the
problem this way allowed Counsel to remind jurors
of the presumption of innocence without the
potential exposure that would come if an objection
to the prosecutor’s statement was overruled in front
of the jury.
Id.
¶79 In sum, Counsel did not perform deficiently by not
objecting to the prosecutor’s statement about the presumption of
innocence being “gone,” and Smith’s ineffective assistance claim
based on that statement fails.
F. Suppression of the Knife
¶80 Smith’s final ineffective assistance claim is that Counsel
should have sought to suppress the knife, alleging it was the fruit
of an unlawful search in violation of the Fourth Amendment.
However, even if we assume, without deciding, that Counsel
performed deficiently by not seeking to suppress the knife, we
conclude that Smith was not harmed by its admission. See
generally Honie v. State,
2014 UT 19, ¶ 31,
342 P.3d 182 (“Because
failure to establish either prong of the test is fatal to an ineffective
assistance of counsel claim, we are free to address [such] claims
under either prong.”).
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State v. Smith
¶81 To establish that Counsel’s performance prejudiced him, it
“is not enough for the defendant to show that the errors had some
conceivable effect on the outcome of the proceeding” because
“virtually every act or omission of counsel would meet that test.”
Strickland v. Washington, 466 U.S. 668, 693 (1984) (cleaned up).
Instead, “a court must 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,
2017 UT 53,
¶ 42,
424 P.3d 171 (cleaned up). And in the context of the Fourth
Amendment, a defendant must show “that there is a reasonable
probability that the verdict would have been different absent the
excludable evidence in order to demonstrate actual prejudice.”
Kimmelman v. Morrison,
477 U.S. 365, 375 (1986).
¶82 Here, Smith cannot establish a reasonable probability of a
different outcome had the knife been successfully excluded. In the
overall evidentiary picture, the knife does not occupy a central
role. Even without the knife’s admission, the State’s case would
have remained strong, as it was supported by the following robust
evidence: (1) Maddison’s testimony about the rape; (2) Scott’s
testimony that he was outside the locked apartment during the
incident, witnessed Smith leaving, and then immediately heard
Maddison recount the incident while “crying hysterically”;
(3) forensic evidence indicating the presence of sperm on
Maddison’s cervix; (4) DNA evidence linking that sperm to Smith;
and (5) Smith’s insistence to Detective that he did not have sex
with Maddison and that there was “no way” his DNA would be
found on her, which, in light of the later DNA evidence, likely
rendered Smith wholly incredible. Excluding the knife from the
trial would not have significantly altered “the evidentiary
landscape in a way that had a reasonable probability of affecting
the outcome of the trial.” State v. Nunes,
2020 UT App 145, ¶ 25,
476 P.3d 172.
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State v. Smith
¶83 Because Smith has failed to demonstrate prejudice, this
final claim of ineffective assistance is also unavailing.
III. Cumulative Error
¶84 As to Smith’s claim of cumulative error, we have held
elsewhere that “the cumulative error doctrine . . . does not apply”
when there is “no other error with which to cumulate [t]rial
[c]ounsel’s [non-prejudicial] presumed . . . errors.” State v. Torres-Orellana, 2021 UT App 74, ¶ 30 n.11,
493 P.3d 711. Here, we have
concluded that the district court did not err by denying Smith’s
motion to dismiss and that, as to five out of six of Smith’s
ineffective assistance claims, Counsel did not perform deficiently.
As to Smith’s last ineffective assistance claim, we determined that
Counsel’s assertedly deficient performance did not prejudice
Smith. Because there is no error to accumulate with the last
ineffective assistance claim, the cumulative error doctrine does
not apply. See
id.
CONCLUSION
¶85 The district court did not err in denying Smith’s motion to
dismiss on due process grounds. On his claims of ineffective
assistance of counsel, Smith has either not shown deficient
performance or not shown prejudice resulting from Counsel’s
assertedly deficient performance. And Smith’s claim of
cumulative error is likewise unavailing. We therefore affirm
Smith’s conviction.
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