State v. Wall , 2020 UT App 168 ( 2020 )

2020 UT App 168THE UTAH COURT OF APPEALS
STATE OF UTAH,
Appellee,
v.
SHAYNE MIKEL WALL,
Appellant.
Opinion
No. 20180759-CA
Filed December 17, 2020
Third District Court, Salt Lake Department
The Honorable Amber M. Mettler
No. 161901773
Mary C. Corporon, Crystal Lynn Orgill, and Kristen
C. Kiburtz, Attorneys for Appellant
Simarjit S. Gill and Liesel Roscher, Attorneys
for Appellee
JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion,
in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS
concurred.
CHRISTIANSEN FORSTER, Judge:
¶1 Shayne Mikel Wall appeals his conviction for assault
stemming from a physical altercation with the partner of his
former girlfriend. Arguing that his trial counsel was deficient in
various ways both before and after trial, Wall claims that he
received ineffective assistance of counsel. Although we express
concerns with trial counsel’s handling of the case, we affirm.
State v. Wall
BACKGROUND 1
¶2 While dating a woman (Girlfriend), Wall developed a
relationship with her seven-year-old child (Child), which he
continued to maintain even after Wall and Girlfriend ended their
relationship. Wall made plans with Girlfriend to take Child to a
basketball game one evening in January 2016.
¶3 Earlier that day, Girlfriend’s then romantic partner
(Victim) became upset with Wall when he learned that Wall had
grabbed Girlfriend’s “private parts.” Victim responded by
sending Wall a text message: “Hey fuck face (redneck) I heard
that you wanna to get your [ass] kick! You touched my gf
asshole. Just let me know when and where and do[n’t] go crying
to your mamma after ok! Just don’t cry later pothead.” 2
¶4 Unfortunately, the evening did not end on a positive note.
At around 10:00 p.m., Wall returned to Girlfriend’s house after
the game to drop off Child. Victim was also at Girlfriend’s house
at this time, waiting outside in his car for Girlfriend as she
readied herself for a date with Victim. After Wall dropped Child
off at the door, a verbal altercation between Wall and Victim
soon escalated into a physical fight. Victim’s injuries included
extensive abrasions and swelling to his face, which caused him
to miss three weeks of work and suffer from ongoing headaches.
Wall had some injuries to his knuckles. After investigation, the
State came to believe that Wall had been the aggressor and
charged him with one count of assault.
1. “On appeal, we recite the facts from the record in the light
most favorable to the jury’s verdict and present conflicting
evidence only as necessary to understand issues raised on
appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.
2. Because the complete text does not appear in the record, we
quote here from Wall’s rule 23B motion and the police report. See
infra ¶ 12.
20180759-CA 2 2020 UT App 168State v. Wall
¶5 Wall retained an attorney (Counsel). It appears Counsel’s
diligence in representing Wall was less than exemplary. Counsel
failed to respond to the State’s discovery request, even after the
district court ordered him to provide the requested information.
Counsel also failed to appear at several pretrial proceedings.
Counsel eventually sent an email to the court explaining that he
had been absent because his bar license was “no longer active”
and that he had been advised by the Utah State Bar “to talk as
little as possible to the court and or clients until this matter”
concerning his license was resolved. He stated that he was under
the impression that the Utah State Bar would notify “the court
explaining that [Counsel] was no longer licensed and that [he]
would not be at any of the hearings.” Counsel requested that any
hearings be continued until his license was reactivated. After
Counsel emailed the court but again failed to appear, the district
court issued an order “to show cause why [Counsel] should not
be held in contempt of court for failure to appear on multiple
occasions on this case,” and Counsel finally appeared before the
court to explain his previous absences. The court withdrew the
order to show cause and moved forward with Wall’s pretrial
proceedings and a jury trial. While the record contains few
details about the reinstatement of Counsel’s license, it appears
that he had been returned to good standing by February 16,
2018, the date of the hearing at which he attempted to explain his
previous failures to appear. After the court withdrew the order
to show cause, Counsel represented Wall for the remainder of
the district court proceedings.
¶6 At trial, Wall, Victim, a neighbor (Witness), and a
detective (Detective) testified. Girlfriend, Child, and Girlfriend’s
father, who were all inside the house at the time of the assault,
were not called to testify.
¶7 Wall’s defense at trial was that Victim had initiated the
attack and that Wall was acting only in self-defense. Wall
testified that he and Victim had a contentious relationship,
asserting that Victim had appeared at his house “close to ten
times” in the past to tell Wall “to stay away.” Wall admitted that
20180759-CA 3 2020 UT App 168State v. Wall
Victim had never threatened to harm him during these past
encounters and that none of the encounters had escalated to any
physical altercation. With regard to the night of the assault, Wall
said that he parked his vehicle about ten to fifteen feet behind
Victim’s vehicle. He testified that as he was walking back to his
vehicle after having dropped off Child, he and Victim “started to
have a verbal confrontation.” Wall claimed that Victim
approached him and came within three feet of him with “both
hands balled up . . . at his waist.” Wall testified,
I lunged at him, grabbed him by his chest, picked
him off the ground and drove him straight to his
back. I believe he was unconscious at that point. I
grabbed him by his throat and probably held him
for a few seconds. I was [lying] over the top of him.
I would say it took five seconds before he moved
again and at the end of that five seconds he started
hitting me in the back of my head from his back.
Wall explained that he then “popped up” off Victim but that
Victim “was still trying to hit” him. In response, Wall “grabbed
[Victim] by his head and . . . smashed [Victim’s] head into the
ground twice.” Wall testified that Victim “was pretty hurt at that
point and [Wall] knew it.” Wall explained that when he stood up
at this point, Victim “punched” him in his knee. So, Wall “went
right back down on top of [Victim],” “grabbed him at his
throat,” “and punched him three more times.” Wall claimed
that, even after Victim was unconscious, he still feared for his
life, explaining, “I don’t know that he don’t got a weapon. He’s
waiting for me in the dark. And he’s been nothing but a problem
the entire time.” After seeing a car drive by, Wall again got off
Victim and left in his vehicle. Wall said that he did not have
injuries from the altercation other than abrasions to his hands
and a sore knee the next day. Finally, Wall denied having a
weapon with him.
¶8 Victim testified that he had been dating Girlfriend for
about six years and that he was planning on visiting her at her
20180759-CA 4 2020 UT App 168State v. Wall
house on the night of the altercation. Victim admitted that he
was “very upset” with Wall for having grabbed Girlfriend’s
“private parts” earlier that day and that he responded to this
behavior by sending the threatening text message to Wall.
Victim said that he had visited Wall’s residence in the past on
three different occasions to clarify the nature of Wall’s
relationship with Girlfriend but that these prior interactions
between Wall and Victim consisted of only verbal disagreements
and were never physical.
¶9 Victim further denied that he was lying in wait for Wall
outside of Girlfriend’s house. Rather, he explained that he chose
to wait curbside in his vehicle for Girlfriend for a few minutes
after he learned, en route to her house, that Girlfriend was
showering. Victim estimated that Wall parked his vehicle down
the street about forty-five to fifty feet away from his vehicle.
Victim began to exit his vehicle as Wall walked back to his own
vehicle after returning Child to Girlfriend. Victim testified that
Wall was calling him names as Wall returned to his vehicle,
opened the door, and retrieved a “long object” from under the
driver seat. Wall then “came running towards [Victim] with the
object.” Victim testified,
I didn’t even move. I was just kind of right outside
my car. . . . [H]e came at me swinging the object. I
remember getting hit the first time on the left side
of my face and then a couple times in the back of
my head. I lost consciousness. I cannot tell you for
how long I was unconscious.
Victim then recalled awakening on his back next to his vehicle
with Wall on top of him, while Wall proceeded to punch him
nine or ten times, choke him, and slam his “head into the
ground.” Feeling “very dizzy” and “disoriented,” Victim
recalled seeing some lights in the road and Wall “running to his
car.” Victim said he sustained injuries to his eyes, face, nose,
mouth, neck, and side and back of his head as a result of the
attack. He noted that he suffered substantial pain, pressure in his
20180759-CA 5 2020 UT App 168State v. Wall
head, and vision problems after the assault. He was under a
neurologist’s care because he continued to suffer from headaches
after the incident.
¶10 Witness testified that as she was driving home, she saw
two people fighting in the road around 10:00 p.m. She recalled
seeing Victim lying on his back near his vehicle with Wall to his
side. She saw Wall hit Victim “[a]t least three” times, but she did
not see Victim throw any punches. She testified that shortly after
her arrival, Wall left the scene.
¶11 Detective testified that based on where Victim’s vehicle
was parked, there was between fifteen and twenty-five feet
separating Wall’s and Victim’s vehicles. Detective stated that
blood was found only on the driver side door of Victim’s car and
on the road by that door. Detective opined that this blood
evidence was not consistent with Wall’s contention that Victim
had charged at him, stating, “[I]f the fight would have happened
where . . . Wall said, we would have seen blood or some
evidence of that incident happening there. But where we find it,
actually, is in front of [Victim’s] car.” Detective testified that he
found no weapon during his investigation. Finally, Detective
noted that Wall had no injuries apart from “some light abrasions
to his knuckles.”
¶12 The jury convicted Wall as charged, and Wall appeals. In
connection with his claims of ineffective assistance of counsel,
Wall sought a remand for an evidentiary hearing under rule 23B
of the Utah Rules of Appellate Procedure to establish additional
findings of fact. This court denied the motion. On appeal, Wall
seeks reversal and remand for a new trial. In the alternative,
Wall renews his request for remand pursuant to rule 23B.
ISSUE AND STANDARD OF REVIEW
¶13 The sole issue on appeal is whether Counsel rendered
constitutionally ineffective assistance to Wall. “An ineffective
20180759-CA 6 2020 UT App 168State v. Wall
assistance of counsel claim raised for the first time on appeal
presents a question of law.” State v. Reyos, 2018 UT App 134,
¶ 11, 427 P.3d 1203 (quotation simplified).
ANALYSIS
¶14 Wall argues that Counsel was ineffective in a number of
ways and that, as a result, he was deprived of his right to
effective assistance of counsel under the Sixth Amendment to the
United States Constitution. Wall’s primary contentions focus on
Counsel’s alleged deficiencies in investigating and presenting
evidence on the question of who was the initial aggressor of the
altercation. Wall also contends that Counsel acted deficiently by
not appearing at certain pretrial hearings, not objecting to a self-
defense jury instruction, calling Wall to testify at trial, and not
focusing on the elements of self-defense in closing argument.
¶15 To succeed on a claim of ineffective assistance, Wall must
show (1) that his counsel performed deficiently and (2) that he
was prejudiced as a result. See Strickland v. Washington, 466 U.S.
668, 687 (1984). “Because failure to establish either prong of the
test is fatal to an ineffective assistance of counsel claim, we are
free to address [Wall’s] claims under either prong.” See Honie v.
State, 2014 UT 19, ¶ 31, 342 P.3d 182.
¶16 To show deficient performance, Wall must overcome the
presumption that Counsel‘s actions fell “within the wide range
of reasonable professional assistance.” Strickland, 466 U.S. at 689.
“The court gives trial counsel wide latitude in making tactical
decisions and will not question such decisions unless there is no
reasonable basis supporting them.” State v. Clark, 2004 UT 25,
¶ 6, 89 P.3d 162 (quotation simplified). Moreover, “the question
of deficient performance is not whether some strategy other than
the one that counsel employed looks superior given the actual
results of trial. It is whether a reasonable, competent lawyer
could have chosen the strategy that was employed in the real-
time context of trial.” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d
20180759-CA 7 2020 UT App 168State v. Wall
1031 (quotation simplified). And “even where a court cannot
conceive of a sound strategic reason for counsel’s challenged
conduct, it does not automatically follow that counsel was
deficient. . . . [T]he ultimate question is always whether,
considering all the circumstances, counsel’s acts or omissions
were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36,
462 P.3d 350; see also State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d
871.
¶17 “To establish prejudice, [a defendant] must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” State v.
Popp, 2019 UT App 173, ¶ 29, 453 P.3d 657 (quotation simplified).
In assessing whether a defendant has met this standard, we
“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, ¶ 28, 424
P.3d 171 (quotation simplified).
A. Ineffectiveness Claims Related to Self-Defense
¶18 Several of Wall’s claims on appeal focus on his assertion
that Counsel performed deficiently by failing to investigate or
present evidence that Victim was the initial aggressor, which
was necessary to support Wall’s defense that he acted in self-
defense. Specifically, Wall first contends that Counsel did not
adequately address inconsistencies in certain factual allegations
made at trial (e.g., the location of the vehicles, Victim’s reason
for visiting Girlfriend, the reason Victim exited his vehicle, and
the history of conflict between Wall and Victim). Wall next
asserts that Counsel was deficient in failing to call Girlfriend,
Girlfriend’s father, and Child as witnesses at trial. Wall also
claims that Counsel failed to produce a witness list or request
discovery from the State, which he argues demonstrates “a
marked absence of any contemplation, investigation, or intent to
20180759-CA 8 2020 UT App 168State v. Wall
call witnesses.” Lastly, Wall claims that Counsel should have
sought to introduce the “full content” of Victim’s threatening
text message, including “the exculpatory part[] of the text,” into
evidence and that having the text message as an exhibit would
have helped convince the jury that Victim started the fight.
¶19 Assuming that Counsel performed deficiently as Wall
claims, Counsel’s inadequate representation does not give rise to
a determination of ineffective assistance counsel, because even if
Counsel could have done more to persuade the jury that Victim
was the first aggressor, Wall cannot show how he was
prejudiced at trial in light of the evidence produced of his
disproportionate response to Victim’s alleged aggression. This is
because the law on self-defense does not allow for
disproportionate use of defensive force. Using force “in excess of
the amount necessary to subdue any threat” posed by another
person is “unjustified” and “unreasonable.” See State v. Folsom,
2019 UT App 17, ¶¶ 51, 53–54, 438 P.3d 992. Most certainly, “[a]
person is justified in threatening or using force against another
when and to the extent that the person reasonably believes that
force or a threat of force is necessary to defend the person
. . . against another person’s imminent use of unlawful force.”
Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp. 2012). But
“reasonable” in the self-defense context means “objectively
reasonable.” State v. Sherard, 818 P.2d 554, 561 (Utah Ct. App.
1991) (quotation simplified); accord In re R.J.Z., 736 P.2d 235, 236
(Utah 1987); Folsom, 2019 UT App 17, ¶ 49; State v. Duran, 772
P.2d 982, 985 (Utah Ct. App. 1989). Moreover, the “nature” and
“immediacy of the danger” are factors in “determining
. . . reasonableness” of defensive force. See Utah Code Ann. § 76-
2-402(5)(a)–(b).
¶20 “Defensive force is . . . an act of emergency that is
temporally and materially confined, with the narrow purpose of
warding off the pending threat.” State v. Berriel, 2013 UT 19, ¶ 14,
299 P.3d 1133 (quotation simplified). While every person has the
right to use force in self-defense, “a defendant may use only
reasonable force to repel the perceived attack.” Parker v. United
20180759-CA 9 2020 UT App 168State v. Wall
States, 155 A.3d 835, 845 (D.C. 2017) (quotation simplified). It is
assault and not self-defense when a defendant fights back with a
level of violence that is out of proportion to the provocation.
Defensive force thus “must be proportionate to the requirements
of the situation. Where a person has used more force than is
reasonably necessary to repel an attack, the right of self-defense
is extinguished, and the ultimate result is that the intended
victim then becomes the perpetrator.” Geralds v. State, 647 N.E.2d
369, 373 (Ind. Ct. App. 1995) (quotation simplified); see also People
v. Lauderdale, 2012 IL App (1st) 100939, ¶ 33, 967 N.E.2d 939(“The contact between the defendant and the victim was not on
equal terms and the defendant’s response was out of all
proportion.”). Here, “the question is thus whether [Wall’s] use of
force [was] a proportionate reaction to the threat that [he]
perceived while in the heat of the moment.” See Parker, 155 A.3d
at 846 (quotation simplified). 3
¶21 “[U]nder the law of self-defense,” even if Victim had been
the first aggressor here and evidence of the provocation was
presented to the jury, “there still is no reasonable likelihood that
the jury would have found that the State failed to prove that the
magnitude of the force [Wall] used against Victim was
unjustified. The circumstances of this case eliminate any
reasonable likelihood that the jury could view [Wall’s] use of
force as reasonable.” See Folsom, 2019 UT App 17, ¶ 51. Evidence
3. We note that the jury was instructed on proportionality as it
relates to self-defense:
The reasonableness of a belief that a person is
justified in using force in self-defense is an
objective standard and must be determined from
the viewpoint of a reasonable person acting under
the then-existing circumstances. Further, the force
used must be proportional. That is, only to the
extent necessary to defend oneself or a third person
from the imminent use of unlawful force.
20180759-CA 10 2020 UT App 168State v. Wall
introduced at trial demonstrated that Wall continued to beat
Victim even after he was unconscious and that Victim suffered
significant injuries from Wall’s beating. Wall did not use
defensive force in a “confined” way for the “narrow purpose of
warding off” the perceived threat. See Berriel, 2013 UT 19, ¶ 14
(quotation simplified). Rather, Wall’s use of force was retaliatory
and out of all proportion with the threat posed by the
unconscious Victim. Put another way, it was not “objectively
reasonable” for Wall to continue to beat Victim in self-defense
after Victim had lost consciousness. See Sherard, 818 P.2d at 561(quotation simplified). The unconscious Victim did not present a
danger, let alone an immediate danger, justifying Wall’s
continued use of defensive force under the facts of this case. See
Utah Code Ann. § 76-2-402(5)(a)–(b). “Even accepting that
Victim attacked [Wall] first, considering [Wall’s] superficial
wounds relative to Victim’s numerous [and] serious . . . injuries
strongly evidences that [Wall] responded with a far greater
amount of force than was necessary to defend himself in the
manner he described.” See Folsom, 2019 UT App 17, ¶ 53.
¶22 Thus, Wall’s claims of ineffective assistance related to the
investigation and presentation of evidence that Victim was the
initial aggressor fail because the evidence—including Wall’s
own testimony—showed that the magnitude of force Wall used
against Victim was unjustified. Because there was no reasonable
likelihood that the jury could have viewed his use of force as
reasonable, Wall was not prejudiced, even assuming Counsel
performed deficiently. 4
4. Wall also seeks to renew a previously denied rule 23B motion
for remand. See 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 that counsel was ineffective.”). In his rule 23B
motion, Wall argues that Girlfriend’s testimony would have
contradicted Victim’s testimony, thereby calling Victim’s
(continued…)
20180759-CA 11 2020 UT App 168State v. Wall
B. Counsel’s Pretrial Actions
¶23 Wall contends that Counsel’s pretrial actions amounted to
deficient performance. Specifically, Wall points to Counsel not
having an active bar license and failing to appear at several
pretrial hearings to demonstrate Counsel’s ineffectiveness.
¶24 While Counsel’s representation during the pretrial stage
was hardly commendable, Wall does not explain how he was
prejudiced by Counsel’s lack of engagement in the early stages
of the pretrial process. As an initial matter, Counsel’s failure to
respond to the State’s discovery request prejudiced the State, not
Wall. Furthermore, even if Counsel did not have an active
license during a portion of the pretrial proceedings, Wall has not
shown how that fact either impaired Counsel’s representation
once his license was reactivated or hampered Counsel’s ability to
(…continued)
credibility into question. Specifically, Girlfriend stated that she
told Victim to come inside the house on his arrival but that
Victim told her he would wait for her outside in his car. In
contrast, Victim testified that he was told to wait outside: “[S]he
told me she was in the shower. She said give [her] a couple
minutes and [she would] be out . . . .” Girlfriend’s affidavit also
contains a statement that Victim had told her earlier in the day
that “he was going to meet [Wall] at [Girlfriend’s] house later
that evening . . . to ‘kick his ass.’” But even if the information
Wall alleges in his rule 23B motion is true and Girlfriend had
been called as a witness at trial, any evidence challenging
Victim’s credibility would not have changed the fact that the
physical evidence and Wall’s own testimony demonstrated that
he responded with disproportionate force to Victim’s alleged
aggression. Accordingly, we deny the renewed motion for
remand for the same reasons we reject Wall’s ineffective
assistance claims regarding evidence of who was the initial
aggressor.
20180759-CA 12 2020 UT App 168State v. Wall
develop a defense during the period his license was inactive. See
McCormick v. State, 2014 UT App 49, ¶ 3, 321 P.3d 1172 (stating
that an attorney being investigated by the bar and eventually
losing his license, standing alone, “is insufficient to demonstrate
ineffective assistance of counsel”). Finally, Wall has not
articulated how he was harmed by Counsel’s failure to appear at
several pretrial hearings such that our confidence in the verdict
should be undermined. Accordingly, Wall has not shown that
Counsel’s pretrial lacunae created a reasonable probability of a
different outcome.
C. Jury Instructions
¶25 Wall asserts that Counsel was also deficient in failing to
object to the court’s self-defense instructions. Specifically, he
asserts that Counsel stipulated to “inaccurate language of the
statutory requirements for self-defense [being] included in the
State’s proposed instruction.” The instruction given to the jury
stated “that a person is justified in threatening or using force
against another only when and to the extent that he or she
reasonably believes that force is necessary to defend him or
herself or a third party against the other person’s imminent use
of unlawful force.” (Emphasis added.) In contrast, the statute
provides that “[a] person is justified in threatening or using force
against another when and to the extent that the person
reasonably believes that force or a threat of force is necessary to
defend the person or a third person against another person’s
imminent use of unlawful force.” Utah Code Ann. § 76-2-
402(1)(a) (LexisNexis Supp. 2012). Thus, Wall contends that the
addition of the word “only” in the jury instruction had “the
effect of limiting the protections to [Wall] of the statute and
definition of self-defense.”
¶26 We are unpersuaded by Wall’s argument. Here, the jury
instruction constituted a correct statement of the law even with
the inclusion of the additional word. The statutory language has
one condition for the use of force in self-defense, namely, a
reasonable belief that force is necessary to defend oneself or
20180759-CA 13 2020 UT App 168State v. Wall
another individual against the imminent use of unlawful force.
See State v. Berriel, 2013 UT 19, ¶ 13, 299 P.3d 1133 (“The key
terms in section 76-2-402 for purposes of this case are ‘imminent’
and ‘necessary.’”). Likewise, the jury instruction explained the
one condition justifying the use of force as self-defense, namely,
a reasonable belief that force is necessary to defend oneself or a
third party against another person’s imminent use of unlawful
force. Thus, the addition of “only” to the jury instruction was
largely superfluous and had no effect on the singular nature of
the condition for the use of force in self-defense. Cf. State v. Karr,
2015 UT App 287, ¶ 15, 364 P.3d 49 (expressing doubt that the
omission of superfluous words in a jury instruction had an effect
on the outcome of a trial). Because the jury instruction in
question accurately reflected the law, we conclude that Counsel
was not deficient in failing to object to it. See State v. Vigil, 2019
UT App 131, ¶ 11, 448 P.3d 738 (“Failure to object to jury
instructions that correctly state the law is not deficient
performance.” (quotation simplified)).
D. The Decision to Have Wall Testify
¶27 Wall contends that he was “forced to take the stand in his
own defense” because Counsel’s errors resulted in there being
“no other witnesses available to rebut [Victim’s] testimony.”
¶28 The Supreme Court has “recognized that the accused has
the ultimate authority to make certain fundamental decisions
regarding the case, as to whether to plead guilty, waive a jury,
testify in his or her own behalf, or take an appeal.” Jones v.
Barnes, 463 U.S. 745, 751 (1983); see also State v. Brooks, 833 P.2d
362, 364 (Utah Ct. App. 1992) (“This fundamental right [to testify
on one’s own behalf] is guaranteed by both the United States
Constitution and the Utah Constitution. The defendant retains
ultimate authority in deciding whether or not to testify.”
(quotation simplified)).
¶29 Here, Wall offers no evidence that he was effectively
“forced” to testify due to Counsel’s failure to call any other
20180759-CA 14 2020 UT App 168State v. Wall
witnesses. We first note that there were no other witnesses to
the assault besides Victim, Witness, and Wall. The witnesses
that Wall alleges should have been called (namely,
Girlfriend, Girlfriend’s father, and Child) did not witness
the assault itself. Given this circumstance, it seems likely that
the decision to have Wall testify was sound trial strategy,
one that Wall would readily embrace as being to his benefit.
Counsel “may have thought [Wall’s] apparently vivid
recall would impress the jury.” See State v. Callahan, 866 P.2d
590, 594 (Utah Ct. App. 1993). Furthermore, Wall was the
only person able to offer rebuttal testimony to the testimony
offered by the two State witnesses (namely, Victim and Witness).
In addition, Victim described Wall as using some sort of object
as a weapon during the assault. Counsel may have concluded
that the best—and perhaps only—way to refute this allegation
was to have Wall tell his story to the jury. See id. at 594 n.2 (“In
this case, only [the] defendant could testify to his state of mind
[during the altercation]. Trial counsel may well have decided
that taking the stand was [the] defendant’s only chance of an
acquittal, given the prosecution’s case against him.”). Thus,
“[C]ounsel’s decision to allow [Wall] to freely testify as to his
version of the events meets the deferential Strickland standard
under which the performance of trial counsel is evaluated.” See
id. at 594.
E. Closing Arguments
¶30 Lastly, Wall contends that Counsel performed deficiently
in failing to make sufficient reference to legal standards
underlying a claim of self-defense in his closing argument.
Specifically, Wall contends that Counsel “failed to make a single
reference to the standard, the elements, the jury instructions, the
theory of self-defense, or how self-defense impacted the charge”
in closing argument.
¶31 “Closing argument serves to sharpen and clarify the
issues for resolution by the trier of fact in a criminal case. Its
purpose is to enlighten the jury and to help the jurors remember
20180759-CA 15 2020 UT App 168State v. Wall
and interpret the evidence.” State v. Moses, 332 P.3d 767, 780
(Idaho 2014) (quotation simplified). And “courts grant
considerable freedom during closing arguments for counsel to
discuss fully from their standpoints the evidence and the
inferences and deductions arising therefrom.” State v. Thompson,
2014 UT App 14, ¶ 51, 318 P.3d 1221 (quotation simplified).
Thus, there is no mechanical formula defining what a closing
argument must contain. Rather, closing arguments give counsel
“a final opportunity to review with the jury the admitted
evidence, discuss what it means, apply the applicable law to that
evidence, and argue why the evidence and law compel a
favorable verdict.” People v. Green, 2017 IL App (1st) 152513,
¶ 77, 100 N.E.3d 491. Reviewing the evidence and arguing why it
supported Wall’s claim of self-defense was exactly what Counsel
did here.
¶32 While it is true that Counsel did not specifically invoke
the words “self-defense,” “proportionality,” or “reasonable
doubt” in his closing argument, Counsel took steps to see that
the jury was adequately exposed to these concepts by alluding to
them in his closing. With regard to self-defense, Counsel told the
jury, “[U]nless you believe firmly that [Wall] started this fight,
then he’s not guilty.” Counsel also argued in closing that Wall
“defended himself” and that he had “a right to defend himself”
in response to Victim’s aggression as Victim “waited in the dark
. . . to make good on his threats.” And Counsel addressed
reasonable doubt about who instigated the fight by pointing out
that Wall and Victim likely moved around during the fight to
explain why all the blood evidence was found by Victim’s
vehicle. In regard to proportionality, the evidence did not leave
Counsel much leeway to argue that the beating was
proportional, and so Counsel appears to have legitimately tried
to focus the jury on the question Wall could win, telling it to
assuage its concern that Victim looked like he got “beat up a
little too much” by emphasizing who started the fight. In
addition, Counsel had already addressed the issue of
proportionality in his opening statement when he explained that
20180759-CA 16 2020 UT App 168State v. Wall
Wall did not sustain any injuries to his face because “the person
who wins the fight looks like that. They’re not supposed to look
like the guy that got beat up. They’re supposed to look like the
guy that didn’t get beat up.” See State v. Henfling, 2020 UT App
129, ¶ 87, 474 P.3d 994 (“Attorneys often use parlance to keep
their comments succinct and to avoid detracting from the point
they are making, especially during closing argument, a practice
permitted under the considerable latitude afforded to counsel
during closing argument.”), petition for cert. filed, Oct. 27, 2020
(No. 20200800).
¶33 Finally, the information that Wall complains was
missing from Counsel’s closing argument was included in
the jury instructions, 5 and Counsel was entitled to rely on
the jury’s awareness of the instructions rather than articulate
every aspect of Wall’s defense in closing. Indeed, the jury
was specifically instructed, “When the lawyers give their
closing arguments, keep in mind that they are advocating
their views of the case. . . . If they say anything about the law
that conflicts with these instructions, you are to rely on these
instructions.” “In the absence of any circumstances suggesting
otherwise, courts presume that the jury follows such
instructions,” and we will not fault Counsel for relying on the
presumption that the jury would follow the instructions. See
State v. Campos, 2013 UT App 213, ¶ 62, 309 P.3d 1160 (quotation
simplified).
¶34 In sum, because Counsel employed his closing for the
purpose of arguing why the evidence supported Wall’s claim of
self-defense, we conclude that this ineffectiveness claim fails on
the first prong of Strickland.
5. The jury instructions provided the legal definition of the self-
defense, listed the conditions for determining whether an act of
defensive force was reasonable, and explained that a self-defense
claim is unavailable to an aggressor.
20180759-CA 17 2020 UT App 168State v. Wall
CONCLUSION
¶35 Wall’s various claims of ineffective assistance fail for the
reasons stated. We further deny his request to renew his rule 23B
motion for remand.
¶36 Affirmed.
20180759-CA 18 2020 UT App 168