State v. Evans, 082219 UTCA, 20170340-CA

Docket Nº20170340-CA
Opinion JudgeHARRIS, JUDGE
Party NameState of Utah, Appellee, v. Douglas Dwayne Evans, Appellant.
AttorneyHerschel Bullen, Attorney for Appellant Sean D. Reyes, Nathan D. Anderson, and Karen A. Klucznik, Attorneys for Appellee
Judge PanelJudge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.
Case DateAugust 22, 2019
CourtCourt of Appeals of Utah

2019 UT App 145

State of Utah, Appellee,


Douglas Dwayne Evans, Appellant.

No. 20170340-CA

Court of Appeals of Utah

August 22, 2019

Third District Court, Salt Lake Department The Honorable Ann Boyden No. 141906586

Herschel Bullen, Attorney for Appellant

Sean D. Reyes, Nathan D. Anderson, and Karen A. Klucznik, Attorneys for Appellee

Judge Ryan M. Harris authored this Opinion, in which Judges Gregory K. Orme and Michele M. Christiansen Forster concurred.


¶1 A jury convicted Douglas Dwayne Evans of murdering a man (Victim) he suspected was intimately involved with his fiancée (Fiancée). Evans appeals, arguing that the trial court erred by denying his motion to suppress the results of a DNA sample taken from him by force he contends was unreasonable, and arguing that his trial attorney provided ineffective assistance by failing to object to certain evidence. We find Evans's arguments unpersuasive, and therefore affirm.


¶2 Evans and Fiancée were engaged to be married, but had a relationship that Fiancée described as difficult and argumentative. Each of them had on various occasions accused the other of infidelity, and Evans was apparently particularly jealous of Fiancée's relationship with forty-nine-year-old Victim, whom Fiancée considered a long-time family friend. About ten days before the murder, Evans composed a letter to Fiancée- that he never sent or delivered-in which he wrote, among other things, that he could not "imagine someone [else] touching [her]" and that if he learned such activities were occurring he did not "know what [he] would do." A few days later, Evans sent a series of text messages to Fiancée in which he was more explicit, stating that he knew that it was Victim's "old ass [she had] been going to see sneaky" and that he intended to go "on a ram page" and that he "know[s] where dat old f[***] [Victim] live[s]." He made clear that he had previously warned Fiancée: "I told u u cheat u die it was ur choice u chose." One of his last text messages to Fiancée on the day of the murder contained a picture of a black handgun, and instructed her to "[j]ust please be honest wit me for once, please."

¶3 Somewhat ironically, Evans's anger and jealousy burned hottest upon his return from an overnight trip to Wendover, Nevada with a female friend (Friend). During the trip, Evans had been wearing a red L.A. Angels baseball cap, and he and Friend had traveled to and from Wendover in Evans's silver Infiniti sedan notable for its showy and distinctive metal wheel rims. Late in the afternoon on May 31, 2014, after returning from Wendover earlier that day, Evans drove the same silver sedan into Victim's neighborhood in Kearns, Utah. One of Victim's neighbors (Neighbor) noticed a silver sedan with "really large" rims parked in front of Victim's house, and observed a man matching Evans's description emerge from the vehicle and start walking toward Victim's house.

¶4 Evans went up to Victim's door and knocked. At the time, Victim was home, accompanied by a female guest (Guest). Guest later testified that, after hearing a knock at the door, Victim left his bedroom to answer it and, although she could not see the door, she heard Victim say "I haven't seen her, I swear." Immediately thereafter, she heard a "loud crack" that "sounded like a doorjamb breaking." She waited a moment before going to the door to investigate, and by the time she got there she saw, out of the front window, a "darker man with longer hair" walking away from the house down the driveway, then get in a silver sedan and drive off. She found Victim lying face down next to the door, his forehead swollen, and not breathing. She saw "blood everywhere" and could smell gunpowder. On the ground next to Victim detectives discovered a red L.A. Angels baseball cap.

¶5 Evans left the scene in the Infiniti sedan, but abandoned the car later that day several miles from the scene of the shooting. He then picked up Friend in a different car-a Cadillac Escalade Evans had previously given to Fiancée as a Mother's Day present-and the two of them drove back to Wendover.

¶6 Guest reported the shooting to police, who began an investigation. Two days later, police arrested Evans, who denied any involvement in the shooting and claimed that he could not have committed the crime because he had been in Wendover at the time. Evans also told police that, a few days earlier, he had lent his Infiniti to either his "lady" or his cousin and had not seen it since. Evans eventually gave an address to police where he thought the Infiniti was located, but the vehicle was not there. Evans then gave a phone number for his cousin to police, but the phone number was no good. In spite of Evans's misinformation, police eventually recovered the Infiniti and found a cell phone inside, as well as blood on the driver's side door. Police also recovered an additional four cell phones from Evans's Escalade, and later obtained cell site location information (CSLI)[2] for all five phones from the relevant cellular service providers. That information, combined with time-stamped surveillance camera footage from both a hotel and a convenience store in Wendover, allowed police to ascertain Evans's general whereabouts on May 30 and 31. According to that evidence, Evans had indeed been in Wendover overnight on May 30, but had returned to the Salt Lake Valley during the late morning of May 31, before driving back to Wendover later that night. The CSLI also showed that, during the late afternoon of May 31, right around the time of the shooting, Evans had been within 200 meters of Victim's home.

¶7 Investigators also wanted to verify if the red baseball cap found at the crime scene belonged to Evans, and sent the cap to be analyzed for DNA. Evans refused to voluntarily provide a DNA sample, so investigators sought and obtained a search warrant authorizing them to collect Evans's DNA by using a "buccal swab" technique-essentially, a simple and painless swab of the inside of a person's cheek with a cotton swab. See State v. White, 2016 UT App 241, ¶ 4, 391 P.3d 311 (describing a buccal swab). Even after investigators obtained the search warrant and showed a copy of it to him, Evans continued to resist, refusing to open his mouth, and thrashing and kicking at officers attempting to perform the swab. Police then forcibly obtained the DNA sample by handcuffing him, placing him in leg irons and a belly chain, and using "four or five pretty large detectives" to hold him down, employ a "control hold" on one of his wrists, and "hold his mouth" so that a technician could, "through clenched teeth," "get into [Evans's] cheek and do the swab." After testing, that sample conclusively matched the major DNA profile on the baseball cap found at the crime scene; according to the State's DNA expert, the odds that the DNA on the cap belonged to someone other than Evans was 1 in 227, 000.

¶8 Based on the evidence it gathered during its investigation, the State eventually charged Evans with three crimes: murder, aggravated burglary, and possession of a dangerous weapon by a restricted person. Prior to trial, Evans filed a motion asking the trial court to suppress the DNA evidence, on the ground that the State had used unreasonable force in obtaining the DNA sample from him. The trial court denied Evans's motion, concluding that "the force that was used was solely in response to [Evans's] efforts to resist the execution of a properly obtained warrant" and was therefore not unreasonable.

¶9 The case proceeded to a five-day jury trial. During its case-in-chief, the State presented testimony from more than twenty witnesses, including Fiancée, Friend, Neighbor, and Guest, who provided testimony about what happened on May 31, 2014; a DNA expert and a CSLI expert, who provided scientific testimony; and two individuals who had met Evans in jail and who both testified that Evans had confessed the murder to them. In addition, the State presented the unsent letter Evans had written to Fiancée ten days before the shooting, as well as several pre-shooting photographs of Evans standing in front of both the silver Infiniti sedan and the Cadillac Escalade; in some of these photos, Evans was wearing a red L.A. Angels baseball cap, and in three of the photos, Evans is making a distinctive hand gesture. Evans's trial counsel did not object to the admission of the letter or any of the photos, even the three in which Evans was making the hand gesture. The State introduced the photos, at least in part, to demonstrate that Evans possessed the Infiniti and the Escalade, and that he often wore a red L.A. Angels baseball cap; discussion of the photos at trial did not go much beyond those topics, and no witness or attorney ever mentioned the hand gesture, let alone stated or implied that the gesture might be gang-related.

¶10 Evans's attorneys vigorously cross-examined the State's witnesses, but elected not to present any defense witnesses, and Evans did not testify. In cross-examination and argument, counsel emphasized the State's burden to prove guilt beyond a reasonable doubt by calling attention to discrepancies in witness testimony, presenting Evans's relationship with Friend as proof that he no longer cared about Fiancée, and questioning the accuracy of the DNA and CSLI evidence. At the conclusion of the trial, the jury found Evans guilty on all charges.


¶11 Evans now appeals his convictions, and asks us to review two main issues.3 Evans first asserts that the trial court erred in denying Evans's motion to suppress the DNA evidence obtained by means of the buccal swab. "We review a trial court's decision to grant or deny a motion to suppress for an...

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