2020 UT App 168

THE UTAH COURT OF APPEALS

STATE OF UTAH,

Appellee,

v.

SHAYNE MIKEL WALL,

Appellant.

Opinion

No. 20180759-CA

Filed December 17, 2020

Third District Court, Salt Lake Department

The Honorable Amber M. Mettler

No. 161901773

Mary C. Corporon, Crystal Lynn Orgill, and Kristen 

C. Kiburtz, Attorneys for Appellant

Simarjit S. Gill and Liesel Roscher, Attorneys

for Appellee

JUDGE MICHELE M. CHRISTIANSEN FORSTER authored this Opinion, 

in which JUDGES JILL M. POHLMAN and RYAN M. HARRIS

concurred.

CHRISTIANSEN FORSTER, Judge:

¶1 Shayne Mikel Wall appeals his conviction for assault

stemming from a physical altercation with the partner of his 

former girlfriend. Arguing that his trial counsel was deficient in 

various ways both before and after trial, Wall claims that he 

received ineffective assistance of counsel. Although we express 

concerns with trial counsel’s handling of the case, we affirm.
State v. Wall

20180759-CA 2 2020 UT App 168

BACKGROUND1

¶2 While dating a woman (Girlfriend), Wall developed a 

relationship with her seven-year-old child (Child), which he 

continued to maintain even after Wall and Girlfriend ended their 

relationship. Wall made plans with Girlfriend to take Child to a 

basketball game one evening in January 2016.

¶3 Earlier that day, Girlfriend’s then romantic partner 

(Victim) became upset with Wall when he learned that Wall had 

grabbed Girlfriend’s “private parts.” Victim responded by 

sending Wall a text message: “Hey fuck face (redneck) I heard 

that you wanna to get your [ass] kick! You touched my gf 

asshole. Just let me know when and where and do[n’t] go crying 

to your mamma after ok! Just don’t cry later pothead.”2

¶4 Unfortunately, the evening did not end on a positive note. 

At around 10:00 p.m., Wall returned to Girlfriend’s house after 

the game to drop off Child. Victim was also at Girlfriend’s house 

at this time, waiting outside in his car for Girlfriend as she 

readied herself for a date with Victim. After Wall dropped Child

off at the door, a verbal altercation between Wall and Victim

soon escalated into a physical fight. Victim’s injuries included 

extensive abrasions and swelling to his face, which caused him 

to miss three weeks of work and suffer from ongoing headaches. 

Wall had some injuries to his knuckles. After investigation, the 

State came to believe that Wall had been the aggressor and

charged him with one count of assault.

 

1. “On appeal, we recite the facts from the record in the light 

most favorable to the jury’s verdict and present conflicting 

evidence only as necessary to understand issues raised on 

appeal.” State v. Daniels, 2002 UT 2, ¶ 2, 40 P.3d 611.

2. Because the complete text does not appear in the record, we 

quote here from Wall’s rule 23B motion and the police report. See 

infra ¶ 12.
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20180759-CA 3 2020 UT App 168

¶5 Wall retained an attorney (Counsel). It appears Counsel’s 

diligence in representing Wall was less than exemplary. Counsel 

failed to respond to the State’s discovery request, even after the

district court ordered him to provide the requested information. 

Counsel also failed to appear at several pretrial proceedings. 

Counsel eventually sent an email to the court explaining that he 

had been absent because his bar license was “no longer active” 

and that he had been advised by the Utah State Bar “to talk as 

little as possible to the court and or clients until this matter” 

concerning his license was resolved. He stated that he was under 

the impression that the Utah State Bar would notify “the court 

explaining that [Counsel] was no longer licensed and that [he] 

would not be at any of the hearings.” Counsel requested that any 

hearings be continued until his license was reactivated. After 

Counsel emailed the court but again failed to appear, the district 

court issued an order “to show cause why [Counsel] should not 

be held in contempt of court for failure to appear on multiple 

occasions on this case,” and Counsel finally appeared before the 

court to explain his previous absences. The court withdrew the 

order to show cause and moved forward with Wall’s pretrial 

proceedings and a jury trial. While the record contains few 

details about the reinstatement of Counsel’s license, it appears 

that he had been returned to good standing by February 16, 

2018, the date of the hearing at which he attempted to explain his 

previous failures to appear. After the court withdrew the order 

to show cause, Counsel represented Wall for the remainder of 

the district court proceedings.

¶6 At trial, Wall, Victim, a neighbor (Witness), and a

detective (Detective) testified. Girlfriend, Child, and Girlfriend’s 

father, who were all inside the house at the time of the assault, 

were not called to testify.

¶7 Wall’s defense at trial was that Victim had initiated the 

attack and that Wall was acting only in self-defense. Wall 

testified that he and Victim had a contentious relationship, 

asserting that Victim had appeared at his house “close to ten 

times” in the past to tell Wall “to stay away.” Wall admitted that 
State v. Wall

20180759-CA 4 2020 UT App 168

Victim had never threatened to harm him during these past 

encounters and that none of the encounters had escalated to any 

physical altercation. With regard to the night of the assault, Wall 

said that he parked his vehicle about ten to fifteen feet behind 

Victim’s vehicle. He testified that as he was walking back to his 

vehicle after having dropped off Child, he and Victim “started to 

have a verbal confrontation.” Wall claimed that Victim 

approached him and came within three feet of him with “both 

hands balled up . . . at his waist.” Wall testified,

I lunged at him, grabbed him by his chest, picked 

him off the ground and drove him straight to his 

back. I believe he was unconscious at that point. I 

grabbed him by his throat and probably held him 

for a few seconds. I was [lying] over the top of him. 

I would say it took five seconds before he moved 

again and at the end of that five seconds he started 

hitting me in the back of my head from his back.

Wall explained that he then “popped up” off Victim but that 

Victim “was still trying to hit” him. In response, Wall “grabbed 

[Victim] by his head and . . . smashed [Victim’s] head into the 

ground twice.” Wall testified that Victim “was pretty hurt at that 

point and [Wall] knew it.” Wall explained that when he stood up 

at this point, Victim “punched” him in his knee. So, Wall “went 

right back down on top of [Victim],” “grabbed him at his

throat,” “and punched him three more times.” Wall claimed 

that, even after Victim was unconscious, he still feared for his 

life, explaining, “I don’t know that he don’t got a weapon. He’s 

waiting for me in the dark. And he’s been nothing but a problem 

the entire time.” After seeing a car drive by, Wall again got off 

Victim and left in his vehicle. Wall said that he did not have 

injuries from the altercation other than abrasions to his hands 

and a sore knee the next day. Finally, Wall denied having a 

weapon with him.

¶8 Victim testified that he had been dating Girlfriend for 

about six years and that he was planning on visiting her at her 
State v. Wall

20180759-CA 5 2020 UT App 168

house on the night of the altercation. Victim admitted that he 

was “very upset” with Wall for having grabbed Girlfriend’s 

“private parts” earlier that day and that he responded to this 

behavior by sending the threatening text message to Wall. 

Victim said that he had visited Wall’s residence in the past on 

three different occasions to clarify the nature of Wall’s 

relationship with Girlfriend but that these prior interactions 

between Wall and Victim consisted of only verbal disagreements 

and were never physical.

¶9 Victim further denied that he was lying in wait for Wall 

outside of Girlfriend’s house. Rather, he explained that he chose 

to wait curbside in his vehicle for Girlfriend for a few minutes 

after he learned, en route to her house, that Girlfriend was 

showering. Victim estimated that Wall parked his vehicle down 

the street about forty-five to fifty feet away from his vehicle.

Victim began to exit his vehicle as Wall walked back to his own 

vehicle after returning Child to Girlfriend. Victim testified that 

Wall was calling him names as Wall returned to his vehicle, 

opened the door, and retrieved a “long object” from under the 

driver seat. Wall then “came running towards [Victim] with the 

object.” Victim testified,

I didn’t even move. I was just kind of right outside 

my car. . . . [H]e came at me swinging the object. I 

remember getting hit the first time on the left side 

of my face and then a couple times in the back of 

my head. I lost consciousness. I cannot tell you for 

how long I was unconscious.

Victim then recalled awakening on his back next to his vehicle 

with Wall on top of him, while Wall proceeded to punch him

nine or ten times, choke him, and slam his “head into the 

ground.” Feeling “very dizzy” and “disoriented,” Victim 

recalled seeing some lights in the road and Wall “running to his 

car.” Victim said he sustained injuries to his eyes, face, nose,

mouth, neck, and side and back of his head as a result of the 

attack. He noted that he suffered substantial pain, pressure in his 
State v. Wall

20180759-CA 6 2020 UT App 168

head, and vision problems after the assault. He was under a 

neurologist’s care because he continued to suffer from headaches 

after the incident.

¶10 Witness testified that as she was driving home, she saw 

two people fighting in the road around 10:00 p.m. She recalled 

seeing Victim lying on his back near his vehicle with Wall to his 

side. She saw Wall hit Victim “[a]t least three” times, but she did 

not see Victim throw any punches. She testified that shortly after 

her arrival, Wall left the scene.

¶11 Detective testified that based on where Victim’s vehicle 

was parked, there was between fifteen and twenty-five feet 

separating Wall’s and Victim’s vehicles. Detective stated that 

blood was found only on the driver side door of Victim’s car and 

on the road by that door. Detective opined that this blood 

evidence was not consistent with Wall’s contention that Victim 

had charged at him, stating, “[I]f the fight would have happened 

where . . . Wall said, we would have seen blood or some 

evidence of that incident happening there. But where we find it, 

actually, is in front of [Victim’s] car.” Detective testified that he 

found no weapon during his investigation. Finally, Detective 

noted that Wall had no injuries apart from “some light abrasions 

to his knuckles.”

¶12 The jury convicted Wall as charged, and Wall appeals. In 

connection with his claims of ineffective assistance of counsel, 

Wall sought a remand for an evidentiary hearing under rule 23B 

of the Utah Rules of Appellate Procedure to establish additional 

findings of fact. This court denied the motion. On appeal, Wall 

seeks reversal and remand for a new trial. In the alternative, 

Wall renews his request for remand pursuant to rule 23B.

ISSUE AND STANDARD OF REVIEW

¶13 The sole issue on appeal is whether Counsel rendered 

constitutionally ineffective assistance to Wall. “An ineffective 
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20180759-CA 7 2020 UT App 168

assistance of counsel claim raised for the first time on appeal 

presents a question of law.” State v. Reyos, 2018 UT App 134, 

¶ 11, 427 P.3d 1203 (quotation simplified).

ANALYSIS

¶14 Wall argues that Counsel was ineffective in a number of 

ways and that, as a result, he was deprived of his right to 

effective assistance of counsel under the Sixth Amendment to the 

United States Constitution. Wall’s primary contentions focus on 

Counsel’s alleged deficiencies in investigating and presenting 

evidence on the question of who was the initial aggressor of the 

altercation. Wall also contends that Counsel acted deficiently by

not appearing at certain pretrial hearings, not objecting to a selfdefense jury instruction, calling Wall to testify at trial, and not 

focusing on the elements of self-defense in closing argument.

¶15 To succeed on a claim of ineffective assistance, Wall must 

show (1) that his counsel performed deficiently and (2) that he 

was prejudiced as a result. See Strickland v. Washington, 466 U.S. 

668, 687 (1984). “Because failure to establish either prong of the 

test is fatal to an ineffective assistance of counsel claim, we are 

free to address [Wall’s] claims under either prong.” See Honie v. 

State, 2014 UT 19, ¶ 31, 342 P.3d 182.

¶16 To show deficient performance, Wall must overcome the 

presumption that Counsel‘s actions fell “within the wide range 

of reasonable professional assistance.” Strickland, 466 U.S. at 689. 

“The court gives trial counsel wide latitude in making tactical 

decisions and will not question such decisions unless there is no 

reasonable basis supporting them.” State v. Clark, 2004 UT 25, 

¶ 6, 89 P.3d 162 (quotation simplified). Moreover, “the question 

of deficient performance is not whether some strategy other than 

the one that counsel employed looks superior given the actual 

results of trial. It is whether a reasonable, competent lawyer 

could have chosen the strategy that was employed in the realtime context of trial.” State v. Nelson, 2015 UT 62, ¶ 14, 355 P.3d 
State v. Wall

20180759-CA 8 2020 UT App 168

1031 (quotation simplified). And “even where a court cannot 

conceive of a sound strategic reason for counsel’s challenged 

conduct, it does not automatically follow that counsel was 

deficient. . . . [T]he ultimate question is always whether, 

considering all the circumstances, counsel’s acts or omissions 

were objectively unreasonable.” State v. Scott, 2020 UT 13, ¶ 36, 

462 P.3d 350; see also State v. Ray, 2020 UT 12, ¶¶ 34–36, 469 P.3d 

871.

¶17 “To establish prejudice, [a defendant] must show that 

there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have 

been different. A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” State v. 

Popp, 2019 UT App 173, ¶ 29, 453 P.3d 657 (quotation simplified).

In assessing whether a defendant has met this standard, we 

“consider the totality of the evidence before the judge or jury 

and then ask if the defendant has met the burden of showing 

that the decision reached would reasonably likely have been 

different absent the errors.” State v. Garcia, 2017 UT 53, ¶ 28, 424 

P.3d 171 (quotation simplified).

A. Ineffectiveness Claims Related to Self-Defense 

¶18 Several of Wall’s claims on appeal focus on his assertion

that Counsel performed deficiently by failing to investigate or 

present evidence that Victim was the initial aggressor, which 

was necessary to support Wall’s defense that he acted in selfdefense. Specifically, Wall first contends that Counsel did not

adequately address inconsistencies in certain factual allegations 

made at trial (e.g., the location of the vehicles, Victim’s reason 

for visiting Girlfriend, the reason Victim exited his vehicle, and 

the history of conflict between Wall and Victim). Wall next 

asserts that Counsel was deficient in failing to call Girlfriend, 

Girlfriend’s father, and Child as witnesses at trial. Wall also 

claims that Counsel failed to produce a witness list or request 

discovery from the State, which he argues demonstrates “a 

marked absence of any contemplation, investigation, or intent to 
State v. Wall

20180759-CA 9 2020 UT App 168

call witnesses.” Lastly, Wall claims that Counsel should have 

sought to introduce the “full content” of Victim’s threatening 

text message, including “the exculpatory part[] of the text,” into 

evidence and that having the text message as an exhibit would 

have helped convince the jury that Victim started the fight.

¶19 Assuming that Counsel performed deficiently as Wall 

claims, Counsel’s inadequate representation does not give rise to 

a determination of ineffective assistance counsel, because even if 

Counsel could have done more to persuade the jury that Victim 

was the first aggressor, Wall cannot show how he was 

prejudiced at trial in light of the evidence produced of his 

disproportionate response to Victim’s alleged aggression. This is 

because the law on self-defense does not allow for 

disproportionate use of defensive force. Using force “in excess of 

the amount necessary to subdue any threat” posed by another 

person is “unjustified” and “unreasonable.” See State v. Folsom, 

2019 UT App 17, ¶¶ 51, 53–54, 438 P.3d 992. Most certainly, “[a]

person is justified in threatening or using force against another 

when and to the extent that the person reasonably believes that 

force or a threat of force is necessary to defend the person 

. . . against another person’s imminent use of unlawful force.” 

Utah Code Ann. § 76-2-402(1)(a) (LexisNexis Supp. 2012). But 

“reasonable” in the self-defense context means “objectively 

reasonable.” State v. Sherard, 818 P.2d 554, 561 (Utah Ct. App. 

1991) (quotation simplified); accord In re R.J.Z., 736 P.2d 235, 236 

(Utah 1987); Folsom, 2019 UT App 17, ¶ 49; State v. Duran, 772 

P.2d 982, 985 (Utah Ct. App. 1989). Moreover, the “nature” and 

“immediacy of the danger” are factors in “determining 

. . . reasonableness” of defensive force. See Utah Code Ann. § 76-

2-402(5)(a)–(b).

¶20 “Defensive force is . . . an act of emergency that is 

temporally and materially confined, with the narrow purpose of 

warding off the pending threat.” State v. Berriel, 2013 UT 19, ¶ 14, 

299 P.3d 1133 (quotation simplified). While every person has the 

right to use force in self-defense, “a defendant may use only 

reasonable force to repel the perceived attack.” Parker v. United 
State v. Wall

20180759-CA 10 2020 UT App 168

States, 155 A.3d 835, 845 (D.C. 2017) (quotation simplified). It is 

assault and not self-defense when a defendant fights back with a 

level of violence that is out of proportion to the provocation.

Defensive force thus “must be proportionate to the requirements 

of the situation. Where a person has used more force than is 

reasonably necessary to repel an attack, the right of self-defense 

is extinguished, and the ultimate result is that the intended 

victim then becomes the perpetrator.” Geralds v. State, 647 N.E.2d 

369, 373 (Ind. Ct. App. 1995) (quotation simplified); see also People 

v. Lauderdale, 2012 IL App (1st) 100939, ¶ 33, 967 N.E.2d 939 

(“The contact between the defendant and the victim was not on 

equal terms and the defendant’s response was out of all 

proportion.”). Here, “the question is thus whether [Wall’s] use of 

force [was] a proportionate reaction to the threat that [he] 

perceived while in the heat of the moment.” See Parker, 155 A.3d 

at 846 (quotation simplified).3

¶21 “[U]nder the law of self-defense,” even if Victim had been 

the first aggressor here and evidence of the provocation was 

presented to the jury, “there still is no reasonable likelihood that 

the jury would have found that the State failed to prove that the 

magnitude of the force [Wall] used against Victim was 

unjustified. The circumstances of this case eliminate any 

reasonable likelihood that the jury could view [Wall’s] use of 

force as reasonable.” See Folsom, 2019 UT App 17, ¶ 51. Evidence 

 

3. We note that the jury was instructed on proportionality as it 

relates to self-defense:

The reasonableness of a belief that a person is 

justified in using force in self-defense is an 

objective standard and must be determined from 

the viewpoint of a reasonable person acting under 

the then-existing circumstances. Further, the force 

used must be proportional. That is, only to the 

extent necessary to defend oneself or a third person 

from the imminent use of unlawful force.
State v. Wall

20180759-CA 11 2020 UT App 168

introduced at trial demonstrated that Wall continued to beat 

Victim even after he was unconscious and that Victim suffered 

significant injuries from Wall’s beating. Wall did not use 

defensive force in a “confined” way for the “narrow purpose of 

warding off” the perceived threat. See Berriel, 2013 UT 19, ¶ 14 

(quotation simplified). Rather, Wall’s use of force was retaliatory 

and out of all proportion with the threat posed by the

unconscious Victim. Put another way, it was not “objectively 

reasonable” for Wall to continue to beat Victim in self-defense 

after Victim had lost consciousness. See Sherard, 818 P.2d at 561 

(quotation simplified). The unconscious Victim did not present a 

danger, let alone an immediate danger, justifying Wall’s 

continued use of defensive force under the facts of this case. See

Utah Code Ann. § 76-2-402(5)(a)–(b). “Even accepting that 

Victim attacked [Wall] first, considering [Wall’s] superficial 

wounds relative to Victim’s numerous [and] serious . . . injuries 

strongly evidences that [Wall] responded with a far greater 

amount of force than was necessary to defend himself in the 

manner he described.” See Folsom, 2019 UT App 17, ¶ 53.

¶22 Thus, Wall’s claims of ineffective assistance related to the 

investigation and presentation of evidence that Victim was the 

initial aggressor fail because the evidence—including Wall’s

own testimony—showed that the magnitude of force Wall used 

against Victim was unjustified. Because there was no reasonable 

likelihood that the jury could have viewed his use of force as 

reasonable, Wall was not prejudiced, even assuming Counsel 

performed deficiently.4

 

4. Wall also seeks to renew a previously denied rule 23B motion 

for remand. See Utah R. App. P. 23B(a) (“The motion will be 

available only upon a nonspeculative allegation of facts, not fully 

appearing in the record on appeal, which, if true, could support 

a determination that counsel was ineffective.”). In his rule 23B 

motion, Wall argues that Girlfriend’s testimony would have 

contradicted Victim’s testimony, thereby calling Victim’s 

(continued...)
State v. Wall

20180759-CA 12 2020 UT App 168

B. Counsel’s Pretrial Actions

¶23 Wall contends that Counsel’s pretrial actions amounted to 

deficient performance. Specifically, Wall points to Counsel not 

having an active bar license and failing to appear at several 

pretrial hearings to demonstrate Counsel’s ineffectiveness.

¶24 While Counsel’s representation during the pretrial stage 

was hardly commendable, Wall does not explain how he was 

prejudiced by Counsel’s lack of engagement in the early stages 

of the pretrial process. As an initial matter, Counsel’s failure to 

respond to the State’s discovery request prejudiced the State, not 

Wall. Furthermore, even if Counsel did not have an active 

license during a portion of the pretrial proceedings, Wall has not 

shown how that fact either impaired Counsel’s representation 

once his license was reactivated or hampered Counsel’s ability to 

 

(...continued)

credibility into question. Specifically, Girlfriend stated that she 

told Victim to come inside the house on his arrival but that 

Victim told her he would wait for her outside in his car. In 

contrast, Victim testified that he was told to wait outside: “[S]he 

told me she was in the shower. She said give [her] a couple 

minutes and [she would] be out . . . .” Girlfriend’s affidavit also 

contains a statement that Victim had told her earlier in the day 

that “he was going to meet [Wall] at [Girlfriend’s] house later 

that evening . . . to ‘kick his ass.’” But even if the information 

Wall alleges in his rule 23B motion is true and Girlfriend had 

been called as a witness at trial, any evidence challenging 

Victim’s credibility would not have changed the fact that the 

physical evidence and Wall’s own testimony demonstrated that 

he responded with disproportionate force to Victim’s alleged 

aggression. Accordingly, we deny the renewed motion for 

remand for the same reasons we reject Wall’s ineffective 

assistance claims regarding evidence of who was the initial 

aggressor.
State v. Wall

20180759-CA 13 2020 UT App 168

develop a defense during the period his license was inactive. See 

McCormick v. State, 2014 UT App 49, ¶ 3, 321 P.3d 1172 (stating 

that an attorney being investigated by the bar and eventually 

losing his license, standing alone, “is insufficient to demonstrate 

ineffective assistance of counsel”). Finally, Wall has not

articulated how he was harmed by Counsel’s failure to appear at 

several pretrial hearings such that our confidence in the verdict 

should be undermined. Accordingly, Wall has not shown that 

Counsel’s pretrial lacunae created a reasonable probability of a 

different outcome.

C. Jury Instructions

¶25 Wall asserts that Counsel was also deficient in failing to 

object to the court’s self-defense instructions. Specifically, he 

asserts that Counsel stipulated to “inaccurate language of the 

statutory requirements for self-defense [being] included in the 

State’s proposed instruction.” The instruction given to the jury 

stated “that a person is justified in threatening or using force 

against another only when and to the extent that he or she

reasonably believes that force is necessary to defend him or 

herself or a third party against the other person’s imminent use 

of unlawful force.” (Emphasis added.) In contrast, the statute 

provides that “[a] person is justified in threatening or using force 

against another when and to the extent that the person 

reasonably believes that force or a threat of force is necessary to 

defend the person or a third person against another person’s 

imminent use of unlawful force.” Utah Code Ann. § 76-2-

402(1)(a) (LexisNexis Supp. 2012). Thus, Wall contends that the 

addition of the word “only” in the jury instruction had “the 

effect of limiting the protections to [Wall] of the statute and 

definition of self-defense.”

¶26 We are unpersuaded by Wall’s argument. Here, the jury 

instruction constituted a correct statement of the law even with 

the inclusion of the additional word. The statutory language has 

one condition for the use of force in self-defense, namely, a 

reasonable belief that force is necessary to defend oneself or
State v. Wall

20180759-CA 14 2020 UT App 168

another individual against the imminent use of unlawful force. 

See State v. Berriel, 2013 UT 19, ¶ 13, 299 P.3d 1133 (“The key 

terms in section 76-2-402 for purposes of this case are ‘imminent’

and ‘necessary.’”). Likewise, the jury instruction explained the

one condition justifying the use of force as self-defense, namely, 

a reasonable belief that force is necessary to defend oneself or a 

third party against another person’s imminent use of unlawful 

force. Thus, the addition of “only” to the jury instruction was 

largely superfluous and had no effect on the singular nature of 

the condition for the use of force in self-defense. Cf. State v. Karr, 

2015 UT App 287, ¶ 15, 364 P.3d 49 (expressing doubt that the 

omission of superfluous words in a jury instruction had an effect 

on the outcome of a trial). Because the jury instruction in 

question accurately reflected the law, we conclude that Counsel 

was not deficient in failing to object to it. See State v. Vigil, 2019 

UT App 131, ¶ 11, 448 P.3d 738 (“Failure to object to jury 

instructions that correctly state the law is not deficient 

performance.” (quotation simplified)).

D. The Decision to Have Wall Testify

¶27 Wall contends that he was “forced to take the stand in his 

own defense” because Counsel’s errors resulted in there being

“no other witnesses available to rebut [Victim’s] testimony.”

¶28 The Supreme Court has “recognized that the accused has 

the ultimate authority to make certain fundamental decisions 

regarding the case, as to whether to plead guilty, waive a jury, 

testify in his or her own behalf, or take an appeal.” Jones v. 

Barnes, 463 U.S. 745, 751 (1983); see also State v. Brooks, 833 P.2d 

362, 364 (Utah Ct. App. 1992) (“This fundamental right [to testify 

on one’s own behalf] is guaranteed by both the United States 

Constitution and the Utah Constitution. The defendant retains 

ultimate authority in deciding whether or not to testify.”

(quotation simplified)).

¶29 Here, Wall offers no evidence that he was effectively 

“forced” to testify due to Counsel’s failure to call any other 
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20180759-CA 15 2020 UT App 168

witnesses. We first note that there were no other witnesses to 

the assault besides Victim, Witness, and Wall. The witnesses 

that Wall alleges should have been called (namely, 

Girlfriend, Girlfriend’s father, and Child) did not witness 

the assault itself. Given this circumstance, it seems likely that 

the decision to have Wall testify was sound trial strategy, 

one that Wall would readily embrace as being to his benefit. 

Counsel “may have thought [Wall’s] apparently vivid 

recall would impress the jury.” See State v. Callahan, 866 P.2d 

590, 594 (Utah Ct. App. 1993). Furthermore, Wall was the 

only person able to offer rebuttal testimony to the testimony 

offered by the two State witnesses (namely, Victim and Witness). 

In addition, Victim described Wall as using some sort of object 

as a weapon during the assault. Counsel may have concluded 

that the best—and perhaps only—way to refute this allegation 

was to have Wall tell his story to the jury. See id. at 594 n.2 (“In 

this case, only [the] defendant could testify to his state of mind 

[during the altercation]. Trial counsel may well have decided 

that taking the stand was [the] defendant’s only chance of an 

acquittal, given the prosecution’s case against him.”). Thus, 

“[C]ounsel’s decision to allow [Wall] to freely testify as to his 

version of the events meets the deferential Strickland standard 

under which the performance of trial counsel is evaluated.” See 

id. at 594.

E. Closing Arguments

¶30 Lastly, Wall contends that Counsel performed deficiently 

in failing to make sufficient reference to legal standards 

underlying a claim of self-defense in his closing argument. 

Specifically, Wall contends that Counsel “failed to make a single 

reference to the standard, the elements, the jury instructions, the 

theory of self-defense, or how self-defense impacted the charge” 

in closing argument.

¶31 “Closing argument serves to sharpen and clarify the 

issues for resolution by the trier of fact in a criminal case. Its 

purpose is to enlighten the jury and to help the jurors remember 
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20180759-CA 16 2020 UT App 168

and interpret the evidence.” State v. Moses, 332 P.3d 767, 780 

(Idaho 2014) (quotation simplified). And “courts grant 

considerable freedom during closing arguments for counsel to 

discuss fully from their standpoints the evidence and the 

inferences and deductions arising therefrom.” State v. Thompson, 

2014 UT App 14, ¶ 51, 318 P.3d 1221 (quotation simplified). 

Thus, there is no mechanical formula defining what a closing 

argument must contain. Rather, closing arguments give counsel 

“a final opportunity to review with the jury the admitted 

evidence, discuss what it means, apply the applicable law to that 

evidence, and argue why the evidence and law compel a 

favorable verdict.” People v. Green, 2017 IL App (1st) 152513, 

¶ 77, 100 N.E.3d 491. Reviewing the evidence and arguing why it 

supported Wall’s claim of self-defense was exactly what Counsel 

did here.

¶32 While it is true that Counsel did not specifically invoke 

the words “self-defense,” “proportionality,” or “reasonable 

doubt” in his closing argument, Counsel took steps to see that 

the jury was adequately exposed to these concepts by alluding to 

them in his closing. With regard to self-defense, Counsel told the 

jury, “[U]nless you believe firmly that [Wall] started this fight, 

then he’s not guilty.” Counsel also argued in closing that Wall 

“defended himself” and that he had “a right to defend himself” 

in response to Victim’s aggression as Victim “waited in the dark 

. . . to make good on his threats.” And Counsel addressed 

reasonable doubt about who instigated the fight by pointing out

that Wall and Victim likely moved around during the fight to 

explain why all the blood evidence was found by Victim’s 

vehicle. In regard to proportionality, the evidence did not leave 

Counsel much leeway to argue that the beating was 

proportional, and so Counsel appears to have legitimately tried 

to focus the jury on the question Wall could win, telling it to 

assuage its concern that Victim looked like he got “beat up a 

little too much” by emphasizing who started the fight. In 

addition, Counsel had already addressed the issue of 

proportionality in his opening statement when he explained that 
State v. Wall

20180759-CA 17 2020 UT App 168

Wall did not sustain any injuries to his face because “the person 

who wins the fight looks like that. They’re not supposed to look 

like the guy that got beat up. They’re supposed to look like the 

guy that didn’t get beat up.” See State v. Henfling, 2020 UT App 

129, ¶ 87, 474 P.3d 994 (“Attorneys often use parlance to keep 

their comments succinct and to avoid detracting from the point 

they are making, especially during closing argument, a practice 

permitted under the considerable latitude afforded to counsel 

during closing argument.”), petition for cert. filed, Oct. 27, 2020 

(No. 20200800).

¶33 Finally, the information that Wall complains was 

missing from Counsel’s closing argument was included in 

the jury instructions,5 and Counsel was entitled to rely on 

the jury’s awareness of the instructions rather than articulate

every aspect of Wall’s defense in closing. Indeed, the jury 

was specifically instructed, “When the lawyers give their 

closing arguments, keep in mind that they are advocating 

their views of the case. . . . If they say anything about the law 

that conflicts with these instructions, you are to rely on these 

instructions.” “In the absence of any circumstances suggesting 

otherwise, courts presume that the jury follows such 

instructions,” and we will not fault Counsel for relying on the 

presumption that the jury would follow the instructions. See

State v. Campos, 2013 UT App 213, ¶ 62, 309 P.3d 1160 (quotation 

simplified).

¶34 In sum, because Counsel employed his closing for the 

purpose of arguing why the evidence supported Wall’s claim of 

self-defense, we conclude that this ineffectiveness claim fails on 

the first prong of Strickland.

 

5. The jury instructions provided the legal definition of the selfdefense, listed the conditions for determining whether an act of 

defensive force was reasonable, and explained that a self-defense 

claim is unavailable to an aggressor.
State v. Wall

20180759-CA 18 2020 UT App 168

CONCLUSION

¶35 Wall’s various claims of ineffective assistance fail for the 

reasons stated. We further deny his request to renew his rule 23B 

motion for remand.

¶36 Affirmed.