State v. Gourdin

2024 UT App 74

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JERAD GOURDIN,
Appellant.

Opinion
No. 20200091-CA
Filed May 16, 2024

Fourth District Court, Provo Department
The Honorable Thomas Low
No. 181402519

Douglas J. Thompson and Jennifer L. Foresta,
Attorneys for Appellant
Sean D. Reyes and David A. Simpson,
Attorneys for Appellee

JUDGE RYAN M. HARRIS authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and
DAVID N. MORTENSEN concurred.

HARRIS, Judge:

¶1 A jury convicted Jerad Gourdin of murdering a sixty-year-
old woman (Victim) in her home during an apparent burglary.
Gourdin appeals that conviction, asserting that his trial attorneys
rendered constitutionally ineffective assistance. In particular,
Gourdin asserts that his attorneys should have objected to the
State’s effort to introduce recordings of his police interviews, and
that they should have done more to investigate the DNA issues in
the case, including requesting copies of the State’s DNA experts’
files and consulting with a DNA expert of their own. We conclude
that Gourdin’s attorneys did not render ineffective assistance in
deciding not to object to admission of the police interviews. But
State v. Gourdin

we find merit in some of Gourdin’s arguments regarding the
DNA issues, and on that basis we reverse his conviction and
remand this case for further proceedings, including a new trial.

BACKGROUND 1

The Day of the Murder

¶2 In 2014, Victim lived with her adult son (Son) in a small
house in a usually quiet and “safe” neighborhood. Shortly before
4:00 p.m. on May 21, Son came home from work and found his
mother’s lifeless body on the living room floor; she had been
strangled with an electrical cord that had apparently been taken
from the back of a “boombox.” Chemicals that Son thought
smelled like bleach had been dumped on Victim’s body. Son
began screaming for help; the next-door neighbor heard his cries
and rushed over to the house. Son attempted to perform CPR, but
his efforts were unavailing. While Son was attending to Victim,
the neighbor called 911. When paramedics arrived, they quickly
determined that there was nothing they could do for Victim.

¶3 Gourdin—who had just recently been released from
prison—was living in a house two doors down from where Victim
and Son lived. The owner of this house was caring for Gourdin’s
one-year-old daughter, and she often allowed Gourdin’s ex-
girlfriend (Girlfriend)—the girl’s mother—to live there too. Upon
Gourdin’s release from prison, the owner allowed him to live
there temporarily also; he slept on a couch in the living room.

¶4 Directly across the street from Victim’s residence was a
house the neighbors referred to as “Tweakerville,” because the

1. “On appeal, we recite the facts from the record in the light most
favorable to the jury’s verdict.” Wilson v. Sanders, 2019 UT App
126, n.2, 447 P.3d 1240 (quotation simplified), cert. denied, 458 P.3d
747 (Utah 2020).

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residents of that house had a reputation for drug use in general
and methamphetamine use in particular. While Gourdin was in
prison, Girlfriend had become pregnant by a man who lived at
Tweakerville; despite that fact, Girlfriend and Gourdin were—at
least at first—“trying to work things out.” During this time,
Girlfriend was “smoking weed and taking pills and doing meth,”
and she often visited Tweakerville. When Gourdin first got out of
prison, he did not participate with Girlfriend in any drug use, but
after a while he started using methamphetamine with her. By
mid-May 2014, he had progressed to injecting methamphetamine
intravenously, and Girlfriend felt that he was becoming “a really
scary person”; by this time, their relationship had become “super
rocky,” and she had begun “questioning having anything to do
with him because of how crazy he was” behaving.

¶5 On the morning of May 21, Gourdin—who was at that time
unemployed—left the house early to try to drum up some
neighborhood yardwork jobs. Gourdin asked one neighbor if he
could borrow his lawnmower, but the neighbor refused because
Gourdin was acting “bizarre” and made him feel “really, really
uneasy.” According to this neighbor, Gourdin “was grinding his
teeth,” was “looking past” him into his house as they spoke, and
was “really sweaty.” After borrowing a lawnmower from a
different neighbor, Gourdin was able to obtain one mowing job,
from another neighbor who testified that Gourdin made her, too,
feel uneasy because he was so “nervous and fidgety.” He did a
“very good job” mowing her lawn, though, and she paid him $20.

¶6 Around 10:30 or 11:00 that morning, Gourdin stopped by
Victim’s house to see if he could mow her lawn. 2 At some point
during the interaction, Victim came outside with Gourdin so he
could take a look at her backyard grass. Gourdin did not go into
the backyard, but just stood at the fence. Due at least in part to

2. Details of Gourdin’s interactions with Victim that day come
from Gourdin’s own responses to police interview questions.

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difficulty surmounting a language barrier (Victim was a native
Spanish speaker), Gourdin and Victim were unable to reach an
agreement about a lawnmowing job, and Victim suggested that
he “talk to [Son] when he gets home.” While standing in the
doorway, Gourdin shook Victim’s hand, and Victim handed
Gourdin “an address book” to write his phone number in.
Gourdin took the book, but he “didn’t have a number,” so he
wrote nothing in the book; instead, he set the book down just
inside the house on a sewing machine located to the left of the
door, and he told Victim he lived just two houses down from her.

¶7 When Gourdin returned home, Girlfriend asked where he
had been. Gourdin refused to answer and went “right into the
bathroom” to take the first of what would be two unusually long
showers that day. When Girlfriend asked why he had showered,
he denied that he had and said he was just washing his face.

¶8 Around noon, Gourdin went to a nearby convenience
store; the store’s clerk observed that he appeared to be “drenched
in sweat” and was acting “really paranoid.” Gourdin paced up
and down the aisles for about thirty minutes and then spent
another thirty minutes in the restroom. The clerk got “a really bad
vibe” from Gourdin’s behavior and “just didn’t feel very safe.”

¶9 Gourdin continued his search for neighborhood yard jobs
that afternoon. One neighbor refused to answer the door when
Gourdin knocked because she “didn’t feel safe” around him,
especially as she noticed him looking at the sides and back of her
house. Yet another neighbor, noting how methamphetamine was
a problem in the neighborhood, thought Gourdin was “high on
meth or something” and felt “really uncomfortable” having
Gourdin at his house. Sometime between 2:00 and 4:00 p.m., a
neighbor noticed Gourdin “acting weird” because it looked like
he was “trying to walk” but “wanted to run”; as she described it,
Gourdin “would run for a minute and then . . . stop and look over
[his] shoulder.” The neighbor’s first thought was that Gourdin

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State v. Gourdin

must have done something wrong. Not too long after that, Son
returned home from work and found his mother dead.

The Investigation

¶10 Soon after arriving at Victim’s house on the afternoon of
May 21, police officers immediately began processing the crime
scene, collecting (among other things) the electrical cord that had
been wrapped around Victim’s neck, Victim’s purse, which was
missing about $300, and three empty bottles of cleaning agents
that were located near the body: Lysol toilet-bowl cleaner,
windshield de-icer, and Liquid-Plumr drain cleaner. Officers also
collected a fresh-looking “Camel filter” cigarette butt with a red
stripe in Victim’s backyard; the cigarette butt stood out to them
because neither Son nor Victim smoked. Son later found a
Walmart receipt, which detectives corroborated with the store’s
video surveillance, that indicated Victim had been shopping at
Walmart—and was therefore still alive—at 1:06 p.m., thus
narrowing the time of death to sometime between 1:15 and 3:45
p.m. Initially, police suspected that Son might have had
something to do with his mother’s death, but he had an ironclad
alibi: police could confirm his presence at his workplace all day.
Police then began speaking with various neighbors, an exercise
that led them to start investigating Gourdin.

¶11 The police spoke with Gourdin three times during their
investigation. The first encounter was on the evening of the
murder, when police informally questioned Gourdin outside his
house as part of their initial neighborhood canvass. During this
discussion, Gourdin said he had visited Victim’s house that
morning to ask for work but had been unable to effectively
communicate with her due to a language barrier, so he “just left.”

¶12 The second encounter occurred the following day—on
May 22—when Gourdin voluntarily went to the police station to
make a formal statement. By that point, police considered
Gourdin a “person of interest” in their investigation. During this

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State v. Gourdin

encounter, Gourdin provided some additional details about his
May 21 visit to Victim’s house: he had been at Victim’s door and
had “[p]ossibly” stepped “just inside the doorway,” but he had
made no physical contact with her. During this interview,
Gourdin also told officers that, at some point after police began
questioning people in the neighborhood, Girlfriend made
statements to him openly wondering about Gourdin being “gone”
at times on the day of the murder, statements Gourdin interpreted
as Girlfriend indirectly accusing him of being involved. Gourdin
told officers that he responded to Girlfriend’s statements by
denying any involvement in Victim’s murder, telling Girlfriend
that he had “nothing to hide.” Gourdin also told officers that he
had recently been in “altercations” with the residents of
Tweakerville “because [his] kid was over there and they all smoke
dope.” Officers recorded this entire interview, and it was
eventually played for the jury at trial in video format.

¶13 The third encounter occurred five days later in the county
jail, where Gourdin was in custody for allegedly assaulting one of
the residents of Tweakerville in an apparently unrelated incident.
By this time, Gourdin was “a lot higher on the radar” for police
“as far as a suspect in this case.” Officers also recorded this
interview, and it was later played for the jury during trial as an
audio recording.

¶14 During this third interview, Gourdin told officers that he
had not only been just inside the door of Victim’s residence on
May 21, but he had also shaken her hand and touched her address
book. Officers made a considerable effort, during this interview,
to elicit a confession from Gourdin, even going so far as to lie to
him about the state of the DNA evidence. In particular, officers
told Gourdin—falsely—that the “evidence says you’re our guy,”
that the “chemicals don’t wash off” the DNA, and that “[y]our
DNA is there and on her.” The detectives continued to press
Gourdin, telling him that the killer “tried to cover their tracks” but
“the science is going to bring that out” and “it’s pointing at you.”

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Officers also suggested that Gourdin might have committed the
murder while high on drugs, and therefore he might not
remember it, telling him that “you seem like a nice guy” so “[t]his
has got to be the drugs.” Gourdin admitted to officers that he had
“a problem with drugs” and that family members had described
him as “violent.” Officers also took Gourdin to task for what they
perceived to be his shifting story of how much contact he had with
Victim on the day of her murder, noting that “every time we ask
you about touching [Victim] and where you were at [in Victim’s
house], it changes.” Toward the end of the interview, Gourdin
asked the officers, “[W]hat do you guys all got on me . . . to say
that I did this?” Officers responded by offering their view that
“that’s not what somebody says . . . [who] is innocent.” But
despite the considerable effort by the officers, Gourdin did not
confess. He consistently denied any involvement in Victim’s
murder, telling officers that he might be a “criminal” who had
“done a lot of messed-up things,” but saying, “I’m not that.”

¶15 Officers also actively pursued forensic evidence. They
searched for prints at the scene but were unable to find any that
were usable. They also enlisted the assistance of the State’s crime
lab (the crime lab) and, later, Sorenson Forensics (Sorenson), a
private lab, to test a number of items for DNA, including the
following: the electrical cord; Victim’s wallet and purse; the coffee
table in Victim’s living room; the cigarette butt found in Victim’s
backyard; Victim’s fingernail scrapings; one of the chemical
bottlecaps; and parts of both Victim’s and Gourdin’s clothing. The
particulars of these tests are discussed more fully below but, in
summary, some of the tests definitively excluded Gourdin as a
possible match, and the rest of them were “inconclusive.” None
of the DNA tests pointed conclusively to Gourdin.

¶16 More than a year after the murder, in or about September
2015, no charges had been filed against anyone in connection with
Victim’s death. At that point, officers made the decision to
conduct a coordinated “inmate interview blitz” of Gourdin’s

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State v. Gourdin

current and former cellmates. In this way, officers came into
contact with one of Gourdin’s former cellmates (Informant 1),
who claimed to have information about Victim’s murder and
offered to testify against Gourdin in exchange for a transfer to a
prison closer to his ailing mother. Informant 1 explained that he
was a former member of the “Latin Kings” gang and had been
discussing the requirements for joining the gang with Gourdin
when they were cellmates. According to Informant 1, he told
Gourdin that a person had to commit murder—or, as he put it, to
“catch a body”—to be able to join the Latin Kings, and Gourdin
then asked if it would count if he “already did something bad to
that extent.” Informant 1 also stated that Gourdin had expressed
concern that he might have left something behind at the murder
scene, “like a cigarette butt or something that connected him to
it.” Informant 1 was, however, careful to specify that Gourdin
never expressly told him he had committed murder, although he
did get “the impression” that Gourdin “was saying he had killed
somebody, even though he didn’t say it directly.”

¶17 Finally, in August 2018—more than four years after Victim
was murdered—the State filed an aggravated murder charge
against Gourdin. According to the probable cause statement, the
State’s case relied largely on testimony from Girlfriend and the
neighbors regarding Gourdin’s dodgy behavior on the day of the
murder, the fact that Gourdin admitted to being at Victim’s house
that day, and the testimony from Informant 1.

¶18 In January 2019, as the case was in its early stages, officers
received a letter from a second informant (Informant 2), who had
been cellmates with Gourdin in 2018. He told authorities that
Gourdin had shown him a “187” tattoo on his chest. That number
is apparently prison slang for murder—a term derived from the
section of the California Penal Code dealing with murder—so
Informant 2 asked Gourdin, “Do you have a body?”, and Gourdin
responded affirmatively. According to Informant 2, Gourdin went
on to explain that he had murdered “some Paisa”—which

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Informant 2 explained was a “derogatory term” for “Mexicans”
that is sometimes used in prison—when he had broken into her
house to steal money and unexpectedly found her there.
Informant 2 said Gourdin told him additional details of the crime:
that he had been casing the neighborhood to get money to buy
drugs; that even though he wore gardening gloves he still worried
about his DNA being found at the crime scene because he had
been sweating so much; and that he poured “bleach and Drano”
on the victim and planned to come back and set everything on
fire, but was ultimately unable to do so before the police arrived. 3
Informant 2 asked corrections officials for “special attention”
during his parole hearing in consideration for his cooperation
with Gourdin’s case.

Pretrial Proceedings

¶19 After the State filed the aggravated murder charge in
August 2018, the case moved along toward trial. Early in the case,
the State provided Gourdin’s counsel (Trial Counsel) 4 with copies
of the various DNA reports—but not the technicians’ underlying
notes and files—generated by the laboratories that ran the DNA
tests. In February 2019, the court, acting as magistrate, held a two-
day preliminary hearing. Among other evidence, the State
presented the DNA reports and argued that, even though some of

3. Informant 2 admitted that Gourdin shared some of his
discovery papers with him, a fact that—as Gourdin’s counsel
pointed out at trial—makes it possible for Informant 2 to have
learned some of the details of the crime from those documents
rather than from Gourdin directly. But as the State pointed out at
trial, Informant 2 also knew certain details about the crime that
were not in the discovery documents Gourdin shared with him.

4. During the case, including at trial, Gourdin was represented by
two defense attorneys. We refer to them collectively as Trial
Counsel, but we also refer to them individually as needed.

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State v. Gourdin

the tests ruled out Gourdin, others were inconclusive and allowed
for the possibility that Gourdin might have been involved,
especially considering the fact that the killer tried to eradicate any
trace of DNA by using chemicals and likely wearing gloves. At
the conclusion of the preliminary hearing, the court took the
matter under advisement, and it later issued a written ruling
binding Gourdin over for trial on the aggravated murder charge.

¶20 At a hearing in March 2019, the court scheduled a trial to
occur in September 2019. At that hearing, the court asked counsel
for each side if they planned on using expert witnesses so it could
schedule disclosure deadlines. Trial Counsel responded that they
planned to make a decision about whether to hire defense experts
after receiving the State’s expert witness disclosures, and they
indicated that if they received the State’s disclosures some two
months prior to trial, that would be “enough time” to contact and
hire defense experts if necessary.

¶21 A month later, at a pretrial conference, the court again
asked Trial Counsel whether they planned to use expert witnesses
at trial. Trial Counsel acknowledged that they “might have to get
a DNA expert” but that they were “waiting to see what the State’s
DNA testimony would be.” The court then set July 28 as the
deadline for the State’s expert disclosures, and August 28 as the
deadline for any defense expert disclosures. In late July, before the
deadline, the State filed its disclosures, and indicated that it
would call two separate DNA experts, one from the crime lab and
one from Sorenson. At a hearing on August 28, Trial Counsel told
the court that “at this point, [they were] leaning towards not
bringing experts in to testify to refute” the State’s DNA evidence,
and that they did not “anticipate that changing.”

¶22 Trial Counsel later explained that the “decision not to
consult a defense DNA expert was based in large part [on]
Gourdin’s instruction not to.” Trial Counsel made this decision
after reviewing the DNA reports produced by the State and

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State v. Gourdin

concluding that—in light of the fact that none of the DNA
evidence pointed conclusively toward Gourdin—“the risk of
discovering inculpatory evidence” with further DNA analysis
“was worse than the inconclusive results [they] already had.” 5
Trial Counsel’s concerns were based, in part, on their experience
where, in certain instances, additional investigations had ended
up harming their client’s defense. But Trial Counsel made this
decision after reviewing only the DNA reports submitted by the
State’s experts; Trial Counsel did not interview or question the
authors of the State’s DNA reports, did not ask the State to
produce the data or laboratory notes that supported the DNA
reports, and did not consult an expert of their own.

¶23 Trial was eventually postponed from September to
December 2019. Just a few weeks before trial, in November 2019,
two notable events occurred. First, the State produced three new
DNA reports that, for the first time, demonstrated that one of the
“unknown” male profiles on some of the DNA tests—including
the one on the cord used to strangle Victim—matched an evidence
technician (Evidence Technician) who had gathered evidence at
the crime scene. This new evidence demonstrated that Evidence
Technician—who apparently had a cold and had been coughing
on the day he was at the crime scene—had contaminated the scene
with his own DNA. It also eliminated the possibility that the
previously unknown “male profile” could belong to a different
killer. This new revelation would likely have entitled Gourdin to
a postponement of the trial had he wanted one, but Gourdin
himself elected to proceed with the trial as scheduled.

¶24 Second, Trial Counsel filed a motion in limine seeking to
limit the State’s expert testimony regarding the DNA test results.
In the motion, Trial Counsel acknowledged that any DNA

5. The statements in this paragraph come from sworn testimony
provided by Trial Counsel at the rule 23B hearing, as described
more fully later. See infra ¶¶ 47–49; see also Utah R. App. P. 23B(e).

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evidence that purported to conclusively establish someone’s
presence at the scene, or that purported to conclusively eliminate
the possibility of someone’s presence at the scene, was admissible
evidence. But they argued that the “inconclusive” DNA evidence
was, in this case, inadmissible, because that evidence did not
come accompanied by any “ratios as to the likelihood the DNA
could be” Gourdin’s. Trial Counsel asserted that this
“inconclusive” evidence would give rise to the possibility that the
jury could give it “undue weight and speculate” that Gourdin
might have been at the scene. Accordingly, Trial Counsel argued
that the State’s DNA experts should be limited to discussing only
those portions of the DNA evidence that were conclusive, one
way or the other.

¶25 In response, the State argued that, for two reasons, it
needed to be able to introduce all the DNA evidence. First, the
State asserted that even the “inconclusive” DNA evidence was
relevant “for the purpose of showing the completeness” of its
investigation. And second, the State argued that “it is certainly
probative for the jury to know that there was other human DNA
on the power cord beside[s] the major profiles that exclude”
Gourdin, and that excluding the “inconclusive” DNA evidence
would create “an unfair advantage for [Gourdin] by presenting
only the DNA results favorable to him in a way that would
mislead the jury about the full truth of the DNA evidence.”

¶26 After hearing oral argument on the motion, the court
offered its view that Gourdin’s “concern that the jury may infer
the inconclusive test results indicate the DNA belongs to
[Gourdin] is well-taken,” and that if the State were to argue to the
jury that “the DNA evidence does not exclude” Gourdin, that
would be “an error” and would be “wrong.” But the court
nevertheless denied Gourdin’s motion, concluding that the
“inconclusive” DNA evidence was “relevant to show that” the
State conducted “a complete investigation of the scene,” as well
as to provide a complete and accurate “summary of the evidence.”

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However, the court “caution[ed] the State to ensure [that] its
expert provides neutral testimony on this subject so as not to
encourage the jury to draw an improper inference from the
evidence,” and instructed that “[t]he jury is not to use the test
results as direct evidence of [Gourdin’s] guilt.” And the court
indicated that, if the State crossed the line in this regard, the court
would “have a jury instruction ready to give” that “indicates that
the DNA evidence is inconclusive and bears no relevance to
[Gourdin’s] guilt.”

The Trial

¶27 A ten-day jury trial was held in December 2019. In support
of its case-in-chief, the State presented testimony from numerous
fact witnesses, including Son, Girlfriend, and both informants, as
well as some of Son’s co-workers who corroborated Son’s alibi.
Girlfriend testified that as soon as she found out about the
murder, she “instantly ran into the house” and asked Gourdin,
“Did you murder her?” She testified that he replied, “Don’t accuse
me of that.” According to Girlfriend, Gourdin acted “[s]uper
paranoid” when officers arrived at Victim’s house; he “couldn’t
sit still” and paced back and forth, “looking out the windows,”
which Girlfriend found odd because “usually he’s the type of
person that if he sees something going on, he’s going to go outside
and see what’s up,” yet he “refused to go outside at all.” In
addition, nine neighbors and the convenience store clerk testified
about their interactions with Gourdin on the day of the murder.

¶28 Various police officers also testified about law
enforcement’s investigation of the crime. The officer who
questioned Gourdin on the evening of the murder testified how
Gourdin “seemed off” and “wouldn’t make eye contact,” and
how he “was grinding his teeth” and “clenching his jaw every
time [police] tried to talk to him.” Another officer recalled
searching the yard of the house where Gourdin was staying: he
testified about finding charred clothing in a backyard fire pit, and

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about finding four Camel cigarette butts—some with red stripes
and some with blue stripes—at various places in the yard.

¶29 During some of the officers’ testimony, the State—without
objection by Trial Counsel—played for the jury the recordings of
Gourdin’s two formal police interviews. The one that took place
at the police station the day after the murder was presented to the
jury as a video; the State had “edited out” certain “portions of the
interview that were inadmissible for one reason or another.” The
one that took place at the jail a week after the murder was played
for the jury as an audio recording. After the interviews were
played, the interviewing detectives acknowledged that they lied
to Gourdin about the state of the DNA evidence as a tactic to elicit
a confession. One of them also described how Gourdin rose
higher up their list of suspects after each interview, particularly
after the last one when Gourdin “put himself further into
[Victim’s] home and worried about [his] fingerprints on an
address book that was inside of her home.”

¶30 The State also took quite a bit of trial time to present expert
testimony about the DNA testing results conducted at both the
crime lab and at Sorenson. As a general matter, the experts
testified that DNA tests can sometimes reveal both a “major
profile” and a “minor component,” and they explained that, when
multiple people are contributing to a DNA sample, there may be
instances when it is clear that one person has contributed more
DNA than the others; that contributor is then identified as the
“discernible major profile.” If there are no “discernible major and
minor” profiles on a sample, it is considered a complex mixture,
and when the DNA in a sample is too complex—when the
scientists “just can’t tell who’s in there and who’s not”—then no
meaningful comparisons can be made from the sample.

¶31 The senior forensic scientist from the crime lab testified
that “there are no DNA results that match [Gourdin]” from items
tested at the crime lab. The expert from Sorenson offered similar

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testimony. But the State presented the DNA evidence in much
more detail, beyond those basic conclusions. In particular, the
State presented DNA test results with regard to a number of
items, as follows:

• Electrical cord: The electrical cord used to
strangle Victim was cut into several sections for
analysis. Initial testing, conducted in 2014, found
“a mixture of DNA profiles from a minimum of
two contributors,” at least one of which was
male, and one of whom was likely Victim. Son
was excluded as a possible contributor. Later
testing excluded Gourdin as the source for the
“major” DNA profile and confirmed that the
“major” profile belonged to Evidence
Technician. But the State’s experts testified that
“the minor portion of this profile [was]
inconclusive,” at least with regard to one
segment of the cord—the plug end—and that no
conclusions could be drawn from it.

• Victim’s purse: No male DNA was found on
Victim’s purse.

• Coffee table: Swabs from the coffee table
contained “a mixture from more than two
individuals” but “did not exhibit a discernible
major or minor profile.” Accordingly, because of
the “complexity of the mixture,” the experts
could “not make any meaningful comparisons”
and couldn’t “tell who’s in there and who’s not.”

• Wallet: Testing on Victim’s wallet revealed “a
mixture of DNA from more than two
individuals,” including a “discernible major
profile and minor components.” The major
profile matched Victim and excluded both Son

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and Gourdin, but the minor profile was
inconclusive, and the experts were unable to
“make any conclusions” about it.

• Cigarette butt: The red-striped Camel cigarette
butt found in Victim’s backyard was tested for
DNA. 6 Specifically, the experts tested the “filter
paper that’s over the filter” because “that’s the
part that will be in [the] mouth” of the person
smoking the cigarette, and saliva often gives “a
better DNA profile” than things people merely
touch with their fingers. Testing revealed at least
two profiles—a major and a minor. The minor
profile was too “low” to be “able to be used for
comparison purposes,” and initial testing
excluded all the residents of Tweakerville from
the major profile. In what the State later called “a
police oversight,” the crime lab—in its initial
testing in 2014—was not asked to compare the
cigarette butt against Son’s or Gourdin’s DNA
profiles. And when Sorenson was later asked to
run those comparisons, 7 it declined to do so
because it was not “comfortable making a
comparison based on the complexity of the
mixture.” Thus, no evidence was presented to
the jury about whether the DNA on the cigarette
butt located in Victim’s yard matched Gourdin;
other individuals were excluded, but Gourdin

6. Multiple cigarette butts were collected by investigators,
including some that were found in the backyard of the house
where Gourdin had been living, see supra ¶¶ 10, 28, but only the
butt found in Victim’s backyard was submitted for DNA analysis.

7. The crime lab later discontinued certain types of DNA testing,
so the cigarette butt was sent to Sorenson.

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State v. Gourdin

was never either included or excluded because
the crime lab had not been asked to run the
relevant tests and because Sorenson declined to
do so.

• Gourdin’s clothing: Victim was excluded as a
possible contributor to the DNA found on
Gourdin’s jacket. Testing on Gourdin’s t-shirt
was “too complex” to lead to any conclusions.
And none of the chemicals used at the crime
scene were found on any of Gourdin’s clothing.

• Victim’s clothing: Gourdin was excluded as a
possible contributor to the major profile found
on Victim’s clothing.

• Victim’s fingernail scrapings: No male DNA was
detected on Victim’s fingernail scrapings.

• The bottle cap from the de-icing chemical bottle:
The experts concluded that there was
insufficient DNA on the bottle cap to obtain a
useful profile.

¶32 In his defense, Gourdin presented three witnesses, all of
whom presented testimony aimed at undermining the credibility
of the two informants. To that end, the defense called an expert
witness regarding prison gangs, but it did not call any witness—
expert or otherwise—to discuss the State’s DNA evidence.

¶33 During its opening statement, the State had discussed the
DNA evidence—inconclusive though it was—in some detail,
telling the jury that “inconclusive forensic evidence is still
evidence.” The State acknowledged that “the DNA evidence
either does not identify [Gourdin] or is inconclusive.” But it also
pointed out that the DNA evidence on the cigarette butt
“excluded all of the” residents of Tweakerville but that the data

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State v. Gourdin

was “insufficient to make any meaningful comparisons” to
Gourdin’s DNA, and that Gourdin had acknowledged, in one of
the police interviews, that it was “possibly his cigarette butt” that
was found in Victim’s yard. The State made a similar argument
regarding the electrical cord, noting that DNA tests excluded
Gourdin and Son as contributors to the major profile, but that the
tests showed “traces of at least four other people on the cord” and
“there was not enough” DNA for the experts “to make any
meaningful comparisons” there. The State also pointed out that
the killer had used bleach and other chemicals to try to destroy
any DNA evidence, which was a possible reason why Gourdin’s
DNA did not show up on the items tested.

¶34 During trial, the State ended up spending a lot of time
discussing the cigarette butt found in Victim’s yard. In total, the
State brought up cigarettes generally or the cigarette butt
specifically during opening and closing arguments and with
twelve different witnesses; issues related to cigarette-butt
evidence are discussed on over ninety-five different pages of the
trial transcript. In fact, during closing argument, the State
apologized to the jury for spending so much trial time on DNA
evidence that it described as ultimately “inconclusive,” and
frankly acknowledged to the jury that “the answer to this case is
not in the forensic evidence.” The State admitted that there had
been “a lot of talk about cigarettes and about this cigarette in
particular, probably more than it deserved, but it’s just one of
those things that kind of ended up happening that way.” The State
also specifically acknowledged the “police oversight” that
resulted in the crime lab’s apparent failure to test the cigarette butt
for Gourdin’s DNA. Yet the State argued that the “circumstances
do suggest that” the cigarette butt was indeed Gourdin’s, pointing
out that the butt was the same brand as the cigarettes Gourdin
was known to smoke and that other red-striped Camels were
found in the backyard of Gourdin’s house. The State even
specifically theorized that Gourdin had spent some of the $20 he
earned mowing lawns on the morning of the murder on a pack of

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State v. Gourdin

red-striped Camels purchased at the convenience store, and that
he and others smoked that pack on May 21 before switching to
blue-striped Camels on May 22. The State asserted that “the
evidence is very suggestive of the fact that Mr. Gourdin did drop
that red-striped Camel . . . cigarette in [Victim’s] yard.”

¶35 The State also emphasized the fact that the killer had used
bleach and other chemicals to destroy any DNA evidence at the
murder scene, and pointed out that not even Son’s DNA was
conclusively found on the electrical cord despite the fact that Son
admittedly touched the cord after finding his mother’s body.
From this, the State argued that “the fact that [DNA testing] can’t
put Mr. Gourdin on the [electrical] cord doesn’t mean anything
except that the chemicals did their job and/or he had gloves on.”

¶36 Later, during the State’s rebuttal closing argument, it again
acknowledged that the scientific evidence in the case was
“limited” and did not directly implicate Gourdin. But it asserted
that “[n]either does the forensic evidence exonerate” Gourdin,
and it argued that “the lack of forensic evidence was caused by”
Gourdin. It reiterated that the evidence was “inconclusive” and
that it “does not prove that Mr. Gourdin did not do it, just like it
doesn’t prove that he did do it.” Later, it again emphasized what
it believed was “an important point,” namely, that the forensic
evidence “doesn’t let [Gourdin] off the hook.”

¶37 After deliberation, the jury found Gourdin guilty of
aggravated murder, and the trial court later sentenced him to life
in prison without parole.

Rule 23B Remand Hearing

¶38 After his sentence was imposed, Gourdin filed an appeal
of his conviction, asserting that Trial Counsel had rendered
ineffective assistance. In connection with his appeal, Gourdin
filed a motion, pursuant to rule 23B of the Utah Rules of Appellate
Procedure, seeking to supplement the record to include evidence

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State v. Gourdin

that he believed would support one of his claims of ineffective
assistance: that Trial Counsel was ineffective for not obtaining the
data underlying the State’s DNA reports and for not at least
consulting with (and potentially calling at trial) a DNA expert of
their own. We granted that motion and remanded the case to the
trial court to make findings on the issues raised.

¶39 On remand, the court held an evidentiary hearing. At that
hearing, the court heard testimony from several witnesses,
including both of Gourdin’s trial attorneys, the lead investigating
detective (Lead Detective), two forensic scientists from the crime
lab (Scientist 1 and Scientist 2), and a forensic scientist retained by
Gourdin’s appellate attorneys (Expert).

¶40 During the hearing, Gourdin’s trial attorneys testified
about their motives for taking certain actions and about their trial
strategy generally. In addition, various witnesses discussed two
broad categories of evidence that was not introduced at trial: (1)
documents regarding the crime lab’s testing on the cigarette butt
that were in existence at the time of trial but not known to Trial
Counsel, and (2) evidence—including probabilistic genotyping
evidence 8—that could have been generated had Trial Counsel
hired a DNA expert. The first category included, among other
things, two documents that are especially relevant to our analysis:
(a) a handwritten note created by Scientist 1 indicating that he had
conducted—against the crime lab’s protocol—an informal
analysis of whether Gourdin’s DNA matched the DNA found on

8. “Probabilistic genotyping refers to the use of
biological modeling, statistical theory, computer algorithms,
and probability distributions to calculate likelihood ratios
. . . .” U.S. Dep’t of Justice, Uniform Language for Testimony
and Reports for Forensic Autosomal DNA Examinations
Using Probabilistic Genotyping Systems 2 n.2 (2022),
https://www.justice.gov/olp/page/file/1095961/download
[https://perma.cc/2L6M-9CWE].

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State v. Gourdin

the cigarette butt found in Victim’s yard, which analysis indicated
that Gourdin’s DNA was not on that cigarette butt; and (b) a
“quantifiler duo worksheet” (the Worksheet) generated by the
crime lab, which shows that the primary contributor of DNA on
the cigarette butt was female. Both documents were discovered
when Gourdin’s appellate counsel filed a GRAMA request. 9 We
summarize this evidence in the following paragraphs.

¶41 Cigarette Butt Evidence. Lead Detective testified that, at
some point before trial, he discovered that Gourdin’s DNA profile
had not been included in the crime lab’s analysis of “multiple
items,” including the cigarette butt, so he sent DNA profiles of
both Gourdin and Son to Scientist 1 for analysis. Lead Detective
could not recall, however, whether Scientist 1 responded or
whether Gourdin’s profile was compared to the cigarette butt. He
testified that, at the time, the cigarette butt did not seem like
especially valuable evidence because “frankly, an animal, a bird
could have picked that up, could have moved that from
anywhere,” so to him, at least at the time, “that cigarette [butt]
didn’t hold a lot of value as far as evidence.”

¶42 Scientist 1 testified that, between 2014 to 2019, he regularly
supervised the other analysts at the crime lab and interacted with
the agencies that submitted evidence to the lab. Scientist 1 was not
initially assigned to Gourdin’s case, but he was “pulled into the
case” later when Lead Detective asked to be kept abreast of the
crime lab’s progress. At some point, Lead Detective realized that
Gourdin’s profile had not been tested against those from the
cigarette butt, and he asked the crime lab to find out if Gourdin’s
and Son’s DNA “would show up on the cigarette.” Scientist 1—in

9. “GRAMA” is shorthand for Utah’s Government Records Access
and Management Act, a statute that allows citizens, under some
circumstances, to obtain “easy and reasonable access to
unrestricted” government records and documents. See Utah Code
§§ 63G-2-102, -301.

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State v. Gourdin

an action that is apparently against crime lab policy—conducted
an informal analysis on that point, and he jotted down the results
of that analysis in an undated, handwritten note comparing the
DNA profile found on the cigarette butt to the DNA profiles of
Gourdin and Son. Scientist 1 stated that the fact he didn’t date the
note struck him as “odd” and indicates that his analysis was more
like a “case consultee looking through things and making
probably self notes of what [he] was seeing, and didn’t intend for
it to be in the case file.” During his testimony, Scientist 1 stated
that his analysis had not been “complete” and that the crime lab
would have needed to “run these reference samples and make a
complete comparison” before any “official report could be made.”
But according to Scientist 1’s informal analysis, Gourdin was
excluded from the cigarette butt’s major profile.

¶43 At the hearing, the court also heard evidence about the
Worksheet, which is a spreadsheet created by the crime lab
containing notations depicting the results of the “process of
estimating how much DNA” was found on the cigarette butt, and
specifically “how much male . . . DNA there is.” As Expert
explained, the Worksheet reveals that “there is far more female
DNA” on the cigarette butt “than male DNA,” and that therefore
the major profile found there has to be from a female. He testified
that the crime lab’s report on the cigarette butt did not indicate
that the major contributor to it was female, and he stated that the
only way to have known that was from the data found in the
Worksheet. Scientist 2 agreed with Expert that the Worksheet
shows that the primary source of DNA on the cigarette is “most
likely” female. Scientist 2 also testified that, had the document
been presented at trial, 10 one of the State’s experts “would have

10. Scientist 2—who testified at the original trial—confirmed that
she had not seen the Worksheet before she testified because it was
created by an analyst (Analyst) who left the crime lab before trial
and who “was not available at the time” to testify. Instead,
(continued…)

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State v. Gourdin

been able to identify that the primary source of DNA” on the
cigarette was “most likely a female.”

¶44 From his review of Scientist 1’s notes and the Worksheet,
Expert arrived at certain conclusions. Most notably, he concluded
that Gourdin could be excluded as not only the major contributor
to the cigarette butt but also as a minor contributor. And Expert
opined that he could not have made such a determination
“without access to . . . the underlying data or the notes” associated
with the crime lab’s reports. He testified that, had he been
retained as a defense expert prior to trial, he would have asked
for and received Scientist 1’s notes and the Worksheet and would
have been able to inform Trial Counsel that Gourdin’s DNA was
not on the cigarette butt. Finally, Expert testified that the relevant
documents in the crime lab’s underlying files—Scientist 1’s notes
and the Worksheet—would not have been useful to a lay reader,
or even to an attorney, without consulting a DNA expert. Indeed,
he stated that he has “never met an attorney who actually knows
enough about the intricacies of [DNA] testing to be able to simply
read a report [like the Worksheet] and know sort of what code is
imbedded in all of the words.”

¶45 Probabilistic Genotyping Evidence. In addition to
discussing the additional evidence discovered in the crime lab’s
files, Expert also provided testimony about additional testing he
could have done had he been hired by Trial Counsel before trial.
Expert described how he could have done his own “probabilistic
genotyping” of the DNA samples, a relatively new innovation
that allows him to analyze at least some of the complex samples

Scientist 2 offered testimony at trial regarding Analyst’s ultimate
report; she “was allowed to testify to anything that [Analyst] had
written in his report,” including “his conclusions,” but she was
“not able to testify to any of his notes because that would be the
work he [had] actually done himself.” The Worksheet was
considered part of Analyst’s notes.

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State v. Gourdin

that Sorenson and the crime lab declined to interpret and reported
as inconclusive. Expert took issue with the notion that
“inconclusive” necessarily means “exculpatory,” stating that
“inconclusive” means “we really don’t know anything about the
DNA” and that “[i]t’s as if the test was not done.” Expert testified
that, as part of his engagement with Gourdin’s appellate
attorneys, he had conducted probabilistic genotype testing on
samples taken from Victim’s wallet, the coffee table, and the
electrical cord—items for which some of the profiles had been
presented as inconclusive at trial—and that his testing showed
that the data were better explained by Gourdin’s absence than by
his presence. For instance, he calculated that, accounting for the
probability of Evidence Technician 11 and Victim as contributors,
it “is 9 million times more likely” that a random person, rather
than Gourdin, is the third contributor to the electrical cord.

¶46 Testimony indicated, however, that the crime lab was not
set up to conduct probabilistic genotype testing in 2018 or 2019—
the relevant time period here—and, in fact, was unable to perform
such tests until early 2023. Sorenson began performing
probabilistic genotype testing in January or February 2019, but
Sorenson’s chief executive officer testified that he was not aware
of any defense attorneys in Utah asking Sorenson to do
probabilistic genotype testing in 2019.

¶47 Trial Counsel’s Strategy. Gourdin’s two trial attorneys
also testified about their strategy, particularly regarding their
decision not to request the underlying files and data from the
State’s DNA experts or to retain a DNA expert of their own. They
“did not automatically rule out consulting a defense DNA
expert,” but retaining such an expert did not seem critical to them
because the State’s DNA testing yielded “inconclusive results that

11. As noted earlier, see supra ¶ 23, Evidence Technician had a cold
when he collected evidence at the crime scene, and his DNA was
discovered on the electrical cord before trial.

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State v. Gourdin

[didn’t] implicate” Gourdin and, in their view, indicated “a poor
investigation.” They saw the DNA evidence as a weakness for the
State because “the State bears the burden” to prove guilt “beyond
a reasonable doubt,” and they theorized that the lack of any
“connection between the DNA evidence and [Gourdin]” would
form the “basis for reasonable doubt.” Moreover, both attorneys
described experiences in past cases where additional
investigation ended up backfiring by unearthing evidence
unfavorable to their clients.

¶48 The attorneys explained that they made their decision
regarding DNA evidence in consultation with Gourdin. When
they told Gourdin that the State could not conclusively locate his
DNA on any item at the crime scene, Gourdin stated that he did
not want them to investigate the DNA evidence further. Trial
Counsel made it clear to Gourdin that only he could know “to
what extent there might be a risk of finding incriminating DNA
evidence,” so when he “instructed [them] not to pursue that,”
they were concerned about what might be uncovered. Gourdin
apparently felt confident he was going to be acquitted, and he told
Trial Counsel that his “principal priority” was to be done with the
trial. Even after Evidence Technician’s DNA was found on the
electrical cord in November 2019, Gourdin instructed Trial
Counsel not to request a continuance.

¶49 Finally, because Trial Counsel decided not to hire a DNA
expert, they did not see a reason to request the underlying DNA
notes or data from Sorenson or the crime lab. Trial Counsel
“believed if there was something else in some other file that was
exculpatory, that the prosecution would provide that to” the
defense. For example, Trial Counsel explained that, when the
State learned that one of the unidentified profiles belonged to
Evidence Technician, it “provided that to” the defense,
confirming to Trial Counsel that “if [the State] had something
exculpatory they would give it to” Trial Counsel.

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State v. Gourdin

¶50 In sum, testimony at the rule 23B hearing centered on
(1) already-existing evidence—Scientist 1’s handwritten note and
the Worksheet—about the cigarette butt that Trial Counsel could
have accessed if they had asked for the State’s witnesses’
underlying notes and data, (2) new probabilistic genotyping
evidence that Trial Counsel could have presented at trial had they
retained a DNA expert, and (3) Trial Counsel’s strategy for not
using either approach.

Findings on Remand

¶51 After the hearing concluded, the court took the matter
under advisement and later issued almost forty pages of findings,
including the following findings about the cigarette butt, Scientist
1’s handwritten note, and the Worksheet:

• the crime lab “analyzed the cigarette butt and
concluded that it contained a discernible major
and minor profile,” but in “an apparent
oversight, the crime lab did not compare either
profile to Gourdin”;

• in 2016, Lead Detective emailed to Scientist 1 the
DNA profiles of Gourdin and Son, asking
Scientist 1 to compare those profiles to the DNA
found on the cigarette butt and to notify him
“when the report [was] available to review”;

• at some point, possibly—but not necessarily—in
response to Lead Detective’s email, Scientist 1
compared the DNA profile from the cigarette
butt to Gourdin and Son in a handwritten note
that Scientist 1 does not recall creating;

• Trial Counsel was aware of this oversight and
made “a deliberate strategic choice not to alert

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State v. Gourdin

the State to the oversight” or to independently
test the cigarette butt;

• when the State later discovered its failure to
compare the DNA profile on the cigarette butt to
Gourdin and asked Sorenson to conduct the
comparison, Sorenson refused, stating that the
DNA sample “was too complex for a reliable
comparison”;

• the Worksheet indicated that the major profile
found on the cigarette butt belongs to a female,
and that, outside of the Worksheet, “no one
identified that the primary source of DNA on the
cigarette was female”;

• “an attorney would not have known that the
major contributor to the cigarette was a female”
because the only indication of that came from the
Worksheet, which was not decipherable to
attorneys absent expert consultation;

• if Scientist 2 had seen the Worksheet at trial, she
would have been able to testify that “the primary
source of DNA on the cigarette was ‘most likely’
female”; and

• the crime lab did not include the conclusions
from the Worksheet in its formal report because
it did not “type for female DNA.”

¶52 In addition, the court found that, although the labs in this
case could identify DNA types in the complex mixtures, they
“correctly” declined to interpret them because they did not have
the capacity between 2014 and 2016 to perform probabilistic
genotype testing. However, the court found that, had Trial
Counsel retained Expert in 2018 or 2019, Expert would have been

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State v. Gourdin

able to use probabilistic genotyping to analyze those complex
DNA mixtures, and would have been able to testify that the DNA
profiles found on the items at the crime scene are “better
explained by the absence of [Gourdin] than his presence.”

¶53 And regarding Trial Counsel’s strategy and motives, the
court observed that Trial Counsel “did not consult with a DNA
expert” or request the underlying DNA notes or data. As for the
reasons why, the court found that Trial Counsel believed that
eliciting testimony from the State’s experts was more effective
with juries than using their own experts, who are often viewed as
“hired guns,” and that Gourdin, during conversations with Trial
Counsel, had given them some reason to believe “there was a risk
that additional DNA investigations would not be favorable.” And
at least as of November 2019, Trial Counsel opted not to ask for a
continuance because Gourdin didn’t want one.

ISSUE AND STANDARD OF REVIEW

¶54 Gourdin asserts that he is entitled to a new trial because
Trial Counsel rendered constitutionally ineffective assistance. 12
“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

12. Gourdin also raised a Brady claim for the first time in his
supplemental appellate brief after the rule 23B hearing, claiming
that “the State violated [Gourdin’s] constitutional right to due
process by failing to disclose exculpatory evidence possessed by
the [crime lab].” See Carter v. State, 2019 UT 12, ¶ 48, 439 P.3d 616
(“The United States Supreme Court has held that ‘the suppression
by the prosecution of evidence favorable to an accused . . . violates
due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the
prosecution.’” (quoting Brady v. Maryland, 373 U.S. 83, 87 (1963))).
Because we reverse Gourdin’s conviction on one of his ineffective
assistance of counsel claims, we need not reach this issue.

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State v. Gourdin

we must decide whether the defendant was deprived of effective
assistance of counsel as a matter of law.” State v. Reid, 2018 UT
App 146, ¶ 17, 427 P.3d 1261 (quotation simplified), cert. denied,
432 P.3d 1225 (Utah 2018). This standard does not change merely
because the case was remanded for supplementation of the record
pursuant to rule 23B: when a “trial court has held a rule 23B
hearing and made specific findings relevant to an ineffective
assistance of counsel claim, we defer to” those findings, “apply
the appropriate legal principles to the facts, and decide, for the
first time on appeal, whether the defendant received ineffective
assistance of counsel.” State v. Forbush, 2024 UT App 11, ¶ 72, 544
P.3d 1 (quotation simplified), petition for cert. filed, Feb. 26, 2024
(No. 20240205).

ANALYSIS

¶55 To succeed on a claim of ineffective assistance of counsel,
Gourdin must make a two-part showing: (1) that Trial Counsel’s
performance was deficient in that it “fell below an objective
standard of reasonableness,” and (2) that this deficient
performance “prejudiced the defense” such that “there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); accord
State v. Scott, 2020 UT 13, ¶ 28, 462 P.3d 350; State v. Ray, 2020 UT
12, ¶ 24, 469 P.3d 871.

¶56 The first part of the test requires Gourdin to show that Trial
Counsel’s performance “fell below an objective standard of
reasonableness.” Scott, 2020 UT 13, ¶ 31 (quotation simplified). In
evaluating the reasonableness of counsel’s actions, courts will
often look to whether the actions counsel took were motivated by
trial strategy. See id. ¶ 35 (“To be sure, the performance inquiry
will often include an analysis of whether there could have been a
sound strategic reason for counsel’s actions.”). And while “the
ultimate question is not whether there was a possible strategic

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State v. Gourdin

reason for counsel’s conduct, but instead whether that conduct
was objectively reasonable,” see id., “[i]f it appears counsel’s
actions could have been intended to further a reasonable strategy,
a defendant has necessarily failed to show unreasonable
performance,” Ray, 2020 UT 12, ¶ 34.

¶57 The second part of the test requires Gourdin to show that
he was prejudiced by Trial Counsel’s deficient performance.
“Prejudice exists when there is a reasonable probability that the
case would have had a different outcome had trial counsel not
performed deficiently.” State v. Whytock, 2020 UT App 107, ¶ 28,
469 P.3d 1150, cert. denied, 481 P.3d 1043 (Utah 2021). “[A]
reasonable probability is a probability sufficient to undermine
confidence in the outcome” of the proceeding. Strickland, 466 U.S.
at 694. In assessing prejudice, 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).

¶58 In this case, Gourdin asserts that Trial Counsel rendered
ineffective assistance in two specific respects. First, Gourdin takes
issue with Trial Counsel’s decision not to object to the State’s
effort to play for the jury the recordings of his two police
interviews. Second, he challenges some of Trial Counsel’s DNA-
related decisions, in particular the decision not to request the data
underlying the State’s DNA reports and the decision not to
consult with, or call as a witness, a defense DNA expert. We
address these two issues in turn. In sum, we reject Gourdin’s
arguments regarding the police interviews, but we find merit in
some of Gourdin’s arguments regarding the DNA evidence.

I. The Police Interviews

¶59 Gourdin’s first claim is that Trial Counsel rendered
ineffective assistance by not objecting to the State’s request to play

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State v. Gourdin

for the jury the recordings of his two police interviews. 13 As noted,
the first interview—the one that took place at the police station
the day after the murder—was presented to the jury as a video,
from which the State had “edited out” certain “portions of the
interview that were inadmissible for one reason or another.” The
second interview—the one that took place at the jail a week after
the murder—was played for the jury as an audio recording.

¶60 Because a “failure to establish either prong of the test is
fatal to an ineffective assistance of counsel claim, we are free to
address [Gourdin’s] claims under either prong.” State v. Popp,
2019 UT App 173, ¶ 25, 453 P.3d 657 (quotation simplified), cert.
denied, 485 P.3d 943 (Utah 2021). With regard to this first
argument, Gourdin falls short of proving deficient performance
because there exists a clear strategic reason why a reasonable
attorney might have chosen to forgo any objection to the State’s
request to admit the interview recordings: admission of those

13. Gourdin also asserts that the court committed plain error by
not sua sponte acting to bar the jury from hearing certain portions
of the interview recordings. “To demonstrate plain error, a
defendant must establish that (i) an error exists; (ii) the error
should have been obvious to the [trial] court; and (iii) the error is
harmful.” State v. Hedgcock, 2019 UT App 93, ¶ 11, 443 P.3d 1288
(quotation simplified). “In our adversarial system, [trial] courts
should be circumspect about interfering in the parties’ strategic
decision-making regarding the admission of evidence,” and a
court “is not expected to intervene in the proceedings unless the
evidence would serve no conceivable strategic purpose.” State v.
Anderson, 2020 UT App 135, ¶ 31, 475 P.3d 967 (quotation
simplified), cert. denied, 481 P.3d 1044 (Utah 2021). As we discuss,
Trial Counsel had valid strategic reasons not to object to the
introduction of the recordings. Accordingly, it was not plain error
for the court to refrain from interfering with Trial Counsel’s
“strategic decision-making regarding” admission of the
recordings. See id.

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State v. Gourdin

exhibits allowed the jury to hear Gourdin—in his own voice—
clearly deny that he had murdered Victim, without Gourdin
having to be subjected to cross-examination by the prosecution.
During the interviews, Gourdin consistently maintained his
innocence, and he did so in the face of robust and aggressive
police tactics—including outright lies about the state of the
evidence—designed to try to elicit a confession. Indeed, in the
interviews, Gourdin readily acknowledged his criminal past,
conceding to the interviewing officers that he might be a
“criminal” who had “done a lot of messed-up things,” but he
consistently maintained that he had not had anything to do with
Victim’s murder. Trial Counsel had good reason to want the jury
to hear Gourdin consistently deny his involvement in the murder,
and admission of these interview recordings allowed Trial
Counsel to accomplish that objective without subjecting Gourdin
to cross-examination at trial. Thus, there was a clear strategic
reason for Trial Counsel to forgo any objection to the admission
of the interview recordings.

¶61 Gourdin asserts, however, that even if Trial Counsel had a
strategic reason to forgo any objection to the admission of the
recordings in their entirety, Trial Counsel should at least have
made an effort to seek redactions by lodging objections to certain
discrete portions of the recordings. Gourdin acknowledges—as he
must—that portions of the recordings may have been admissible.
See Utah R. Evid. 801(d)(2)(A) (stating that statements made by a
party-opponent are “not hearsay”). But he believes that other
parts of the interviews were subject to various evidentiary
objections, and therefore Trial Counsel should at least have made
an effort to excise those parts from the recordings that were
played for the jury.

¶62 The first problem with this argument is that, although
Gourdin does identify certain general topics that he believes were
objectionable, he never specifies exactly which portions of the

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State v. Gourdin

recordings he thinks should have been redacted, making it
difficult for us to assess the strength of his argument.

¶63 But more substantively, Trial Counsel had good reason to
choose not to make even the more limited objections Gourdin now
identifies. Many of those potential objections have to do with the
tactics the officers used during the interviews. For instance,
Gourdin claims that Trial Counsel should have objected to
officers’ “distortion of Gourdin’s own statements regarding his
activities on the day [Victim] was killed”; officers’ allegedly
inaccurate “statements on DNA longevity and testing”; officers’
“accusations that Gourdin was changing his story”; officers’
“unfounded opinions on drugs and their effects on people”; and
officers’ lies about the state of the DNA evidence. But as already
noted, Trial Counsel had a solid strategic reason not to object to
all of this: a reasonable attorney could very well have wanted the
jury to hear about the officers’ tactics in order to make Gourdin’s
consistent denials in the face of these tactics seem even more
believable. And the officers, at trial, admitted that they had lied
about the state of the DNA evidence during the interviews, and
therefore the jury was not at risk of assuming that the statements
the officers made about that evidence were true.

¶64 Two of the objections Gourdin now identifies do not have
to do with police tactics, but in our view Trial Counsel had good
reason to forgo those objections too. First, Gourdin asserts that
Trial Counsel should have objected to any discussion, during the
interviews, of any of Gourdin’s prior bad acts, including evidence
of his previous incarceration or evidence that he had been
involved in altercations or confrontations with the residents of
Tweakerville. Gourdin claims that this evidence made Gourdin
seem like a violent person, and that it was subject to exclusion
pursuant to rule 404(b) of the Utah Rules of Evidence. But Trial
Counsel had reason not to object to this evidence as well. The fact
that Gourdin had previously served time in prison helped bolster
the defense narrative that police focused on Gourdin solely

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because he was a parolee with a criminal past. And the fact that
Gourdin was not on good terms with—and sometimes
aggressively confronted—the residents of Tweakerville could be
seen as helping Trial Counsel distance Gourdin from
Tweakerville and humanize him as a protective father; indeed, the
evidence showed that one of the confrontations occurred because
Gourdin was upset when he learned that his young daughter had
spent time at Tweakerville and he “didn’t want [her] over there.”

¶65 Second, Gourdin asserts that Trial Counsel should have
objected to the portion of the interviews in which Gourdin
describes Girlfriend’s suspicion of him on the day of the murder.
But Girlfriend herself testified to this, and thus the jury was
already aware of these facts; under these circumstances, any
objection to this portion of the interviews would almost certainly
have been overruled. 14 See State v. Kelley, 2000 UT 41, ¶ 26, 1 P.3d
546 (“Failure to raise futile objections does not constitute
ineffective assistance of counsel.”).

¶66 In short, we conclude that Trial Counsel had reasonable
strategic reasons to decline to lodge any objection to the
admission of the interview recordings. Accordingly, Gourdin has
not carried his burden of demonstrating that Trial Counsel
performed deficiently, and on that basis has failed to satisfy the
first part of the Strickland test. We therefore reject Gourdin’s first
assertion that Trial Counsel rendered ineffective assistance.

II. The DNA Evidence

¶67 Next, Gourdin claims that Trial Counsel rendered
ineffective assistance in their handling of certain issues related to
DNA evidence. Gourdin points to three ways in which he believes

14. And, for similar reasons, even if Trial Counsel had succeeded
in excising from Gourdin’s interview any reference to Girlfriend’s
suspicion of him, that would not have been reasonably likely to
have made a difference in the outcome of the trial.

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State v. Gourdin

Trial Counsel performed deficiently in this regard: (1) “by failing
to obtain the underlying data and notes from the DNA tests
performed by the State”; (2) “by failing to consult a DNA expert
regarding those tests and the data”; and (3) “by failing to present
significant exculpatory DNA evidence” in the form of
probabilistic genotype testing results. Each of these arguments
implicates Trial Counsel’s duty to investigate the facts and
circumstances of the case. See Strickland, 466 U.S. at 690 (stating
that defense attorneys have a “duty to investigate” the
circumstances of their clients’ cases). We agree with Gourdin, at
least to some extent, on the first two points: that Trial Counsel
rendered ineffective assistance by not requesting the underlying
DNA files and by not consulting with an expert to help them
understand the contents of those files. But we reject Gourdin’s
argument that Trial Counsel performed deficiently by electing not
to retain an expert to run probabilistic genotype testing.

A. Deficient Performance

¶68 Criminal defense attorneys have an obligation to
reasonably and adequately investigate the facts of their clients’
cases. See id.; see also State v. J.A.L., 2011 UT 27, ¶ 28, 262 P.3d 1
(“We have repeatedly held that one of criminal defense counsel’s
most fundamental obligations is to investigate the underlying
facts of a case.”). This investigation then informs the strategic
choices attorneys make about how best to defend the case; such
choices are considered “virtually unchallengeable” as long as
those choices are made “after thorough investigation of law and
facts relevant to plausible options.” Strickland, 466 U.S. at 690.
Thus, in order to put themselves in a position to make reasonable
strategic decisions to which courts rightly defer, defense attorneys
must conduct a reasonably thorough investigation of the case;
indeed, “strategic choices made after less than complete
investigation are reasonable precisely to the extent that reasonable
professional judgments support the limitations on investigation.”
Id. at 690–91; see also State v. Griffin, 2015 UT 18, ¶ 33, 441 P.3d 1166

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State v. Gourdin

(stating that defense counsel “has the duty to adequately
investigate the underlying facts of the case because investigation
sets the foundation for counsel’s strategic decisions about how to
build the best defense” (quotation simplified)); State v. Templin,
805 P.2d 182, 188 (Utah 1990) (“It is only after an adequate inquiry
has been made that counsel can make a reasonable decision to call
or not to call particular witnesses for tactical reasons.”).

¶69 In this case, Trial Counsel made the decision not to request
the notes, files, or data underlying the State’s DNA experts’
reports, as well as the decision not to consult with a DNA expert
or to seek further DNA testing that the State had not undertaken.
Trial Counsel offered various strategic reasons for truncating their
investigation into the DNA issues in the case: they believed that
eliciting testimony from the State’s experts was more effective
with juries than using their own experts, who they believed were
often viewed as “hired guns,” and they were concerned, after
speaking with Gourdin, that “there was a risk that additional
DNA investigations would not be favorable.”

¶70 We agree with the State that, with regard to whether to
seek additional DNA testing, including probabilistic genotype
testing, Trial Counsel’s strategic reasons were sound. Probabilistic
genotype testing was brand-new in 2019; the crime lab was not
even set up to conduct this kind of testing at that time, and
Sorenson had only just then begun doing so. Sorenson’s chief
executive officer testified that he was unaware of any defense
attorneys in Utah asking Sorenson to do probabilistic genotyping
in 2019. For this reason alone, the State’s argument—that it was
not necessarily unreasonable for Trial Counsel to forgo exploring
this type of testing—has considerable force.

¶71 But even if probabilistic genotype testing had been readily
available in early 2019, Trial Counsel in this case had sound
strategic reasons not to seek it. The DNA evidence that the State
was set to present at trial was either exculpatory for Gourdin or

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inconclusive. Trial Counsel was concerned, after speaking with
Gourdin, that further testing might result in unearthing evidence
that would be less favorable to Gourdin. In this situation, an
attorney makes a reasonable choice by forgoing the opportunity
for further and more detailed DNA testing. See Strickland, 466 U.S.
at 691 (“[W]hen a defendant has given counsel reason to believe
that pursuing certain investigations would be fruitless or even
harmful, counsel’s failure to pursue those investigations may not
later be challenged as unreasonable.”). We therefore conclude that
Trial Counsel did not perform deficiently by electing not to
pursue probabilistic genotype testing in this case.

¶72 We reach a different conclusion, however, when it comes
to Trial Counsel’s decision not to request the files, notes, and data
underlying the State’s witnesses’ DNA reports. It is one thing to
decide not to generate additional evidence that the State does not
already have, especially where counsel is concerned that the
additional evidence might be unfavorable. But it is another thing
to decline to take steps to adequately understand the evidence
that is already in the State’s possession and about which the
State’s witnesses are scheduled to testify. Trial Counsel’s decision
not to request the relevant files—and their follow-on decision not
to enlist the assistance of an expert to help them understand the
contents of those files—left Trial Counsel in a position where they
did not fully understand key portions of the State’s evidence. All
strategic decisions made after that—including the decision not to
consult a DNA expert—were made “after less than complete
investigation,” and such decisions “are reasonable precisely to the
extent that reasonable professional judgments support the
limitations on investigation.” See id. Here, no reasonable
professional judgments support Trial Counsel’s decision not to
request the files.

¶73 Trial Counsel’s fear of unearthing new evidence
unfavorable to Gourdin does not apply here: the files in question
were already in the State’s possession (or in the possession of its

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experts), and their contents were presumably already known to
the State and its experts. There was no additional marginal risk of
unearthing new, unfavorable evidence simply by requesting the
State’s files. And the State proffers no other potential strategic
reason Trial Counsel might have had for opting not to request the
State’s witnesses’ DNA files.

¶74 Moreover, we find unconvincing Trial Counsel’s
statement, made during the remand hearing, that they didn’t
request the files because they were depending on the State’s Brady
obligation to disclose anything exculpatory. It is certainly a
correct statement of the law that the State has an obligation to turn
over to the defense any exculpatory evidence. See Brady v.
Maryland, 373 U.S. 83, 87 (1963). But this reality does not absolve
defense attorneys of their general investigatory obligation to ask
the State to turn over the evidence it intends to present in support
of its case. See State v. Jarrell, 608 P.2d 218, 225 (Utah 1980)
(“Generally, evidence is not improperly withheld if the defense
has knowledge of that evidence and defense counsel simply fails
to request it.”); see also People v. May, 745 P.2d 218, 221 (Colo. 1987)
(en banc) (“It is the duty of the lawyer to . . . secure information in
the possession of the prosecution and law enforcement
authorities.” (quoting ABA Standards for Criminal Justice, Defense
Function § 4–4.1 (1986))); Shields v. State, 2020 WY 101, ¶ 50, 468
P.3d 1097 (“An investigation should always include efforts to
secure information in the possession of the prosecution and law
enforcement authorities. It follows that counsel must make some
effort to learn the information in the possession of the prosecution
and law enforcement authorities.” (quotation simplified)); cf. Cade
v. State, 658 So. 2d 550, 554 (Fla. Ct. App. 1995) (stating that, “since
ours is a system that relies largely on the adversarial system for
truth-seeking, it is dangerous to give all the tools to the [S]tate and
hope it will do the right thing and always do it well”).

¶75 We recognize, as noted above, that the absence of any
reasonable strategic explanation for a defense attorney’s conduct

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State v. Gourdin

does not necessarily lead to the conclusion that the attorney
performed deficiently. See State v. Scott, 2020 UT 13, ¶ 36, 462 P.3d
350 (“[E]ven where a court cannot conceive of a sound strategic
reason for counsel’s challenged conduct, it does not automatically
follow that counsel was deficient.”). In the end, “the ultimate
question is not whether there was a possible strategic reason for
counsel’s conduct, but instead whether that conduct was
objectively reasonable.” Id. ¶ 35. Here, in our view, reasonable
counsel would have requested the DNA files from the State. There
was simply no other way for Trial Counsel to have fully
understood the contents of the State’s evidence against Gourdin,
an understanding that was necessary to be able to make informed,
reasonable strategic choices going forward.

¶76 Important to our conclusion in this case is the fact that the
DNA evidence the State intended to present was, in large part,
inconclusive. After all, the term “inconclusive” can mean a
number of different things, and in this case the State intended to
argue, from the “inconclusive” testing, that Gourdin’s DNA
might nevertheless be present on certain items of evidence. The
trial court found, after the remand hearing, that there is a
“difference between DNA evidence that ‘excludes’ a suspect and
DNA evidence that is merely ‘inconclusive,’” and that Trial
Counsel understood that distinction. Trial Counsel was also
aware, as early as February 2019 after the preliminary hearing,
that the State intended to present “inconclusive” DNA testing as
evidence that left open the possibility that Gourdin’s DNA might
be present. Indeed, Trial Counsel filed a motion in limine
regarding this topic in the months leading up to trial. Where the
critical DNA evidence in the case is in significant part
“inconclusive”—as opposed to entirely exculpatory—and where
the State intends to try to use that “inconclusive” evidence in its
favor, it becomes important for the defense to seek disclosure of
the underlying DNA files, which may contain further detail as to
the reasons for the inconclusive nature of the evidence.

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State v. Gourdin

¶77 Had Trial Counsel asked for those files in this case, they
would have soon discovered that they could not fully understand
the contents of those files without the assistance of a DNA expert.
For instance, the two documents discussed at some length
above—Scientist 1’s handwritten note and the Worksheet—are
not comprehensible to a layperson or even to most experienced
attorneys. The handwritten note contains a bunch of numbers
arranged in rows and columns; it comes with no narrative
explanation, and it would not be evident, to a person without
scientific knowledge and training, that the document contains
conclusions potentially helpful to Gourdin. Similarly, the
Worksheet appears to be a page from a spreadsheet, again
containing mostly numbers arranged in rows and columns. While
the Worksheet does contain a few narrative words, it would
likewise not be evident to laypersons that the document contains
any conclusions helpful to Gourdin. There may be some lawyers
who have the scientific training necessary to understand
documents like these, but most don’t. Most lawyers will need the
assistance of scientifically trained experts to help them
understand DNA-related documentation like this.

¶78 These realities led the American Bar Association, in
2007, to include in its “Standards for Criminal Justice”
the admonition that “[e]xpert assistance should be provided . . .
prior to and during trial if there is reason to believe that the
prosecution will present DNA evidence or if expert assistance
may lead to the discovery of relevant evidence.” ABA Standards
for Criminal Justice: DNA Evidence 90 (3d ed. 2007)
https://www.americanbar.org/content/dam/aba/publications/cri
minal_justice_standards/dna_evidence.pdf [https://perma.cc/T4S
9-NR4A]. In support of this admonition, the ABA cited several
cases from around the country discussing the complexity of DNA
evidence and the reality that most attorneys are not able to fully
understand such evidence without the assistance of a DNA
expert. See id. at 91 (citing Ex Parte Dubose, 662 So. 2d 1189, 1196
(Ala. 1995) (“Given the complexity of DNA technology, it is

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State v. Gourdin

doubtful that a defense attorney will have the requisite
knowledge to effectively [examine such evidence] without expert
assistance.”)). And the ABA cited another study that “indicated
that experts will be needed in most [DNA] cases,” even cases in
which “the admissibility of the results” of the DNA testing “is not
in question,” because “there is still a need to review the quality of
the laboratory work and the interpretation of results.” Id.
(quotation simplified). The ABA specifically referred to “mixture
samples” as a topic that may be particularly difficult for defense
attorneys to understand and interpret. Id. at 91–92. And it
concluded by stating that “[a]dequate representation, therefore,
often requires expert assistance” in DNA cases. Id. at 92.

¶79 In assessing attorneys’ conduct in light of the Sixth
Amendment’s reasonableness standard, “[c]ourts frequently rely
on the professional standards established by the [American Bar
Association] when determining the relevant professional norms
under the first prong of the Strickland analysis.” Menzies v. Galetka,
2006 UT 81, ¶ 90, 150 P.3d 480; see also Strickland, 466 U.S. at 688
(recognizing that “[p]revailing norms of practice as reflected in
American Bar Association standards and the like . . . are guides to
determining what is reasonable”). We therefore have no trouble
concluding that reasonable attorneys who receive DNA evidence
from the State that they can’t adequately understand will usually
need to seek expert assistance to help them adequately
understand that evidence.

¶80 We acknowledge that the argument that counsel
performed deficiently by failing to consult an expert is often a
difficult argument for a defendant to make. In many cases, Utah
appellate courts have rejected this type of argument, because
defense attorneys are often able to articulate strategic reasons,
developed after adequate investigation, not to seek the assistance
of an expert witness. See, e.g., McCloud v. State, 2021 UT 51, ¶¶ 84–
89, 496 P.3d 179 (concluding that the attorney “made a reasonable
strategic decision to not consult or call experts”); State v. Hales,

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State v. Gourdin

2007 UT 14, ¶ 80, 152 P.3d 321 (stating that “an attorney may often
provide adequate assistance without hiring an expert to do a
separate examination of the evidence”); State v. King, 2017 UT App
43, ¶¶ 16–24, 392 P.3d 997 (concluding that the attorney did not
perform deficiently by opting not to call or consult experts). But
in this specific situation—where DNA evidence from the State
exists and defense counsel are not able to adequately understand
that evidence on their own—reasonable attorneys will usually
need to seek the assistance of a consulting expert.

¶81 In this respect, the case before us is similar to State v. Hales,
2007 UT 14, 152 P.3d 321. In that case, an infant died from brain
injuries and the defendant was convicted of murder. Id. ¶ 1. Our
supreme court held that the trial attorney performed deficiently
by opting not to have an expert review the infant’s CT scans prior
to trial. Id. ¶ 3. The attorney had been on notice, since the
preliminary hearing, that the CT scans were “critical” to the
State’s case, yet the attorney chose not to obtain a qualified expert
to review the scans. Id. ¶¶ 74, 76, 78. Some evidence on the CT
scans—referred to as “changes in gray/white differentiation”—
indicated that the infant’s injuries had occurred earlier than his
contact with the defendant. Id. ¶ 87. But a layperson—even an
experienced attorney—wouldn’t have been able to tell that from
looking at the CT scans. Accordingly, the court held that the
attorney had performed deficiently by failing to consult with a
medical expert who could have helped the attorney understand
the CT scans. Id. ¶¶ 82–83.

¶82 As in Hales, Trial Counsel here failed to take advantage of
the “significant opportunity to discover crucial new information”
that consultation with an expert would have presented. See id.
¶ 82. Had Trial Counsel consulted with an expert, they would
have been able to interpret the handwritten note and the
Worksheet, and they would have ascertained that the majority of
the DNA on the cigarette butt was female and that Gourdin could
be excluded as a DNA contributor to the cigarette butt.

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State v. Gourdin

¶83 The State contends that Hales is distinguishable because the
CT scans in that case were “directly inculpatory” and central to
the State’s case, whereas here the DNA evidence was either
exculpatory or inconclusive, and the State was using it “solely to
show the completeness of its investigation.” For two reasons, we
find these arguments unpersuasive. First, whether the CT scans in
Hales were inculpatory or exculpatory depended on which expert
was asked. The State’s case “was based, in large part, on expert
interpretation of the CT scans.” Id. ¶ 28. Yet the expert the
defendant’s appellate attorney hired opined that the scans
showed that the infant “was not in [the defendant’s] care when he
was injured,” a conclusion that renders the scans exculpatory. Id.
¶ 84. What matters more, however, is that the CT scans, like the
underlying DNA files here, were left unanalyzed by the defense
and therefore the State’s position as to what they represented
went unrebutted, at least in certain important particulars. Second,
the State spent too much time on the DNA evidence at trial to
plausibly claim that the only purpose for that evidence was to
demonstrate the completeness of its investigation. Indeed, the
State expressly argued, during closing argument, that the DNA
evidence, although at best inconclusive, “doesn’t let [Gourdin] off
the hook” and that it left the door open that Gourdin’s DNA might
nevertheless have been present on certain items of evidence.

¶84 For all of these reasons, we conclude that Gourdin has not
demonstrated that Trial Counsel performed deficiently by
deciding not to pursue the opportunity for additional DNA
testing, including probabilistic genotype testing. Trial Counsel
has articulated reasonable strategic reasons for that decision. But
we also conclude that, under the unique circumstances of this
case—where the State intended to present DNA evidence,
through experts, which was in large part “inconclusive,” and
intended to argue therefrom that Gourdin might nevertheless be
implicated by the DNA evidence—Trial Counsel performed
deficiently by not requesting the files, notes and data underlying
the State’s experts’ DNA reports. We further conclude that, in this

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State v. Gourdin

situation, where parts of the DNA files were apparently not
understandable to laypersons without expert assistance, Trial
Counsel performed deficiently by not enlisting the assistance of a
consulting expert to help them decipher the contents of the files.
Reasonable counsel would have done those things in this case.
Accordingly, Gourdin has met his burden of demonstrating
deficient performance on those portions of his DNA-evidence
ineffective assistance claim.

B. Prejudice

¶85 Because we have concluded that Trial Counsel performed
deficiently in not requesting the DNA files and not hiring an
expert to help them understand those files, we must consider
whether that deficient performance prejudiced Gourdin. After all,
“[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if
the error had no effect on the judgment.” Strickland, 466 U.S. at
691. To succeed on his ineffective assistance claim, Gourdin must
show that “there is a reasonable probability that the case would
have had a different outcome had trial counsel not performed
deficiently.” State v. Whytock, 2020 UT App 107, ¶ 28, 469 P.3d
1150, cert. denied, 481 P.3d 1043 (Utah 2021). “[A] reasonable
probability is a probability sufficient to undermine confidence in
the outcome” of the proceeding. Strickland, 466 U.S. at 694.

¶86 “Prejudice analysis is counterfactual. To decide whether a
trial affected by error is reasonably likely to have turned out
differently we have to consider a hypothetical—an alternative
universe in which the trial went off without the error.” State v.
Ellis, 2018 UT 2, ¶ 42, 417 P.3d 86; see also State v. Soto, 2022 UT
App 107, ¶ 25, 518 P.3d 157 (“Under a counterfactual analysis, we
consider whether, in the absence of improperly admitted [or
misleading] evidence, the likelihood of a different outcome is
sufficiently high to undermine our confidence in the verdict.”
(quotation simplified)), cert. denied, 526 P.3d 827 (Utah 2022).

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State v. Gourdin

¶87 We begin our prejudice analysis by describing the evidence
that has since come to light and that was not presented during
Gourdin’s trial. As we see it, that evidence consists of these two
things: (1) that the DNA “major profile” on the cigarette butt was
female, and therefore was not Gourdin’s; and (2) that, if Scientist 1
had completed his back-of-the-envelope analysis, he would have
concluded that Gourdin’s DNA was also not present in the
“minor profile” on the cigarette butt either. Thus, the new
evidence operates to completely exclude Gourdin from the
cigarette butt found in Victim’s backyard.

¶88 The question presented is whether it is at least reasonably
probable that the outcome of Gourdin’s trial would have been
different if the jury had learned that Gourdin could be completely
excluded as a contributor to the DNA on the cigarette butt. After
examining the record, we answer that question in the affirmative.

¶89 Prior to trial, it was far from clear that the cigarette butt
would end up to be all that big of a deal in the grand evidentiary
scheme of this case. Indeed, Lead Detective testified at the remand
hearing that, during his investigation of the case, the cigarette butt
did not seem like especially valuable evidence because “frankly,
an animal, a bird could have picked that up, could have moved
that from anywhere,” so to him, at least at the time, “that cigarette
[butt] didn’t hold a lot of value as far as evidence.” Certainly,
prosecutors could have made a decision to de-emphasize the
cigarette butt and to try the case largely on the strength of other
evidence. But that is not what happened.

¶90 As the trial ended up playing out, the cigarette butt became
an important part of the State’s case. As noted already, see supra
¶ 34, the State brought up cigarettes generally or the cigarette butt
specifically with twelve different witnesses, and the cigarette butt
was discussed on over ninety-five different pages of the trial
transcript. The State emphasized the cigarette-butt evidence
during its closing argument, noting that the DNA evidence on

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State v. Gourdin

that score was “inconclusive” but nevertheless arguing that other
evidence in the case “suggest[ed] that” the cigarette butt was
Gourdin’s. The State’s arguments on this point were remarkably
specific. After pointing out that the butt was the same brand as
the cigarettes Gourdin was known to smoke, and that other red-
striped Camels were found in the backyard of Gourdin’s house,
the State theorized that Gourdin had spent some of the $20 he
earned mowing lawns on the morning of the murder on a pack of
red-striped Camels purchased at the convenience store, and that
he and others smoked that pack on May 21 before switching to
blue-striped Camels on May 22. The State summed up its
argument on this point by offering its view that “the evidence is
very suggestive of the fact that Mr. Gourdin did drop that red-
striped Camel . . . cigarette in [Victim’s] yard.”

¶91 When the State emphasizes evidence to this extent in
closing argument, that is a very good clue that the evidence
mattered. See Ellis, 2018 UT 2, ¶ 43 (stating that one factor leading
to the conclusion that the admission of evidence mattered was
that the “prosecution emphasized [it] during closing argument”);
see also State v. Burnett, 2018 UT App 80, ¶ 40, 427 P.3d 288 (stating
that the “prosecution’s emphasis in closing argument” of
particular evidence “is not only an indicator that the State
considered” that evidence “important corroborative evidence, but
also that the [evidence] was important enough to make a
difference”), cert. denied, 432 P.3d 1232 (Utah 2018).

¶92 We note also that the jurors seem to have picked up on the
State’s emphasis of the cigarette-butt evidence. Of the twenty-five
questions the jury asked during the trial, seven were about
cigarettes. For example, jurors asked about the brand of cigarette
found at the crime scene and at the house where Gourdin was
staying. Jurors also asked whether cigarettes can be DNA tested,
whether the “[C]amel cigarettes with the red stripe and blue”
were “found anywhere else in the neighborhood,” and what type
of brand of cigarettes were found in Gourdin’s “property from the

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State v. Gourdin

jail.” These juror questions are also an indication that the
cigarette-butt DNA evidence was an important part of the trial.
Cf. McDaniel v. Brown, 558 U.S. 120, 136 (2010) (per curiam) (noting
that “DNA testing can provide powerful new evidence unlike
anything known before,” and that such evidence is often
“persuasive[] . . . in the eyes of the jury” (quotation simplified));
State v. Johnson, 862 N.W.2d 757, 774 (Neb. 2015) (noting “the
significance that jurors will likely attach to DNA evidence”).

¶93 Finally, we reject the State’s assertion that the evidence it
presented at trial—aside from the now-discredited “inconclusive”
cigarette-butt DNA evidence—was so overwhelming in favor of
guilt as to render the new evidence inconsequential. The State’s
evidence did not include any fingerprints or inculpatory DNA
evidence, and it did not include any testimony from anyone who
had witnessed the murder. No evidence placed Gourdin at the
crime scene during the window of time in which the murder
occurred. And Gourdin did not confess, despite considerable
pressure from police to do so. As such, the State’s case ended up
being largely circumstantial, and was built on three pillars. First,
the State relied on evidence from Girlfriend and various
neighbors that Gourdin had been acting erratically, even
suspiciously, on the day of the murder. Second, the State relied on
the fact that Gourdin lived near Victim and had been at her house
earlier that same morning. And third, the State relied on the
testimony of the two jailhouse informants. To be sure, this
evidence does support the State’s position that Gourdin
committed the murder. But in our view, the State’s case was not
strong enough to render inconsequential the new evidence
regarding the cigarette butt.

¶94 In the end, our confidence in the outcome of the trial, as it
was presented to the jury, is undermined by the new evidence
Gourdin has unearthed. Had this jury—the one to whom the State
argued that the cigarette butt found in Victim’s yard represented
important inculpatory evidence—learned that Gourdin was

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State v. Gourdin

excluded as a possible contributor of DNA to that cigarette butt,
it is at least reasonably probable that it would have reached a
different verdict. Thus, Gourdin has demonstrated that he was
prejudiced by Trial Counsel’s deficient performance.

CONCLUSION

¶95 We reject some of Gourdin’s claims that Trial Counsel
rendered constitutionally ineffective assistance. In particular,
Gourdin has not shown that Trial Counsel performed deficiently
by opting not to object to the State’s introduction of the recorded
interviews or by opting not to pursue probabilistic genotype
testing. But on the facts of this particular case, we find merit in
Gourdin’s assertion that Trial Counsel rendered ineffective
assistance by opting not to request the DNA files from the State’s
experts and by not seeking the assistance of an expert in helping
them understand the contents of those files. On that basis, we
reverse Gourdin’s conviction and remand the case for further
proceedings, including a new trial, consistent with this opinion.

20200091-CA 48 2024 UT App 74