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-yearold 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 
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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.

BACKGROUND1

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 exgirlfriend (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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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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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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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 twoday 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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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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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. 
State v. Gourdin 

20200091-CA 17 2024 UT App 74

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
State v. Gourdin

20200091-CA 18 2024 UT App 74

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 
State v. Gourdin

20200091-CA 19 2024 UT App 74

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 
State v. Gourdin 

20200091-CA 20 2024 UT App 74

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 

evidence8—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]. 
State v. Gourdin 

20200091-CA 21 2024 UT App 74

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. 
State v. Gourdin

20200091-CA 22 2024 UT App 74

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...)
State v. Gourdin 

20200091-CA 23 2024 UT App 74

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. 
State v. Gourdin 

20200091-CA 24 2024 UT App 74

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 Technician11 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. 
State v. Gourdin

20200091-CA 25 2024 UT App 74

[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. 
State v. Gourdin

20200091-CA 26 2024 UT App 74

¶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 
State v. Gourdin

20200091-CA 27 2024 UT App 74

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 
State v. Gourdin

20200091-CA 28 2024 UT App 74

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. 
State v. Gourdin

20200091-CA 29 2024 UT App 74

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 
State v. Gourdin

20200091-CA 30 2024 UT App 74

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 DNArelated 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 
State v. Gourdin 

20200091-CA 31 2024 UT App 74

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. 
State v. Gourdin

20200091-CA 32 2024 UT App 74

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 
State v. Gourdin

20200091-CA 33 2024 UT App 74

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 
State v. Gourdin

20200091-CA 34 2024 UT App 74

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.
State v. Gourdin

20200091-CA 35 2024 UT App 74

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 
State v. Gourdin

20200091-CA 36 2024 UT App 74

(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 
State v. Gourdin

20200091-CA 37 2024 UT App 74

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 
State v. Gourdin

20200091-CA 38 2024 UT App 74

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 
State v. Gourdin

20200091-CA 39 2024 UT App 74

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. 
State v. Gourdin 

20200091-CA 40 2024 UT App 74

¶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 
State v. Gourdin

20200091-CA 41 2024 UT App 74

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, 
State v. Gourdin

20200091-CA 42 2024 UT App 74

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. 
State v. Gourdin

20200091-CA 43 2024 UT App 74

¶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
State v. Gourdin

20200091-CA 44 2024 UT App 74

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).
State v. Gourdin

20200091-CA 45 2024 UT App 74

¶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 
State v. Gourdin

20200091-CA 46 2024 UT App 74

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 redstriped 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 redstriped 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 
State v. Gourdin

20200091-CA 47 2024 UT App 74

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 
State v. Gourdin

20200091-CA 48 2024 UT App 74

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.