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State v. Wall

Court of Appeals of Utah

December 12, 2019

State of Utah, Appellee,
v.
Johnny Brickman Wall, Appellant.

          Third District Court, Salt Lake Department The Honorable James T. Blanch No. 131903972

          Troy L. Booher, Freyja Johnson, and Beth Kennedy, Attorneys for Appellant

          Sean D. Reyes and Tera J. Peterson, Attorneys for Appellee

          Judge Diana Hagen authored this Opinion, in which Judges Gregory K. Orme and Jill M. Pohlman concurred.

          HAGEN, JUDGE.

         ¶1 A jury convicted Johnny Brickman Wall of murdering his ex-wife, Uta von Schwedler.[1] Wall appeals his conviction, arguing that there was insufficient evidence to convict him, that the district court erred in admitting certain DNA evidence, and that his trial counsel was ineffective in failing to object to the State's closing argument involving the DNA evidence. We conclude that Wall has not carried his burden on appeal to show there was insufficient evidence to support his murder conviction. Further, the district court did not exceed its discretion in admitting certain DNA evidence, and Wall's trial counsel did not perform deficiently in failing to object to the prosecutor's characterization of that evidence in closing argument. Accordingly, we affirm Wall's conviction.

         BACKGROUND

         Marriage and Divorce

         ¶2 In 1988, a mutual friend introduced Uta to Wall while they were each completing doctorate programs on the west coast. Wall and Uta married in 1990, and Wall graduated from medical school four years later. After medical school, Uta, Wall, and their newborn son moved to Utah for Wall's residency program. Over the next few years, they had three more children together.

         ¶3 By 2005, the marriage had failed and Uta moved out of the family home, leaving the four children to live primarily with Wall. The couple divorced in 2006.

         ¶4 Wall and Uta responded differently to the divorce. According to their children, Wall was "very, very sad" and depressed after the divorce, but over time his mood changed from sadness to "anger, even hatred" toward Uta. Wall frequently complained to the children about Uta, saying that she was "a bad parent," that she was "selfish," and that she made his "life difficult." The children said that Wall never treated Uta "nicely or kindly" after the divorce. At one point, Wall "physically removed" Uta from his property when she "tried to come in the front yard" to pick up the children for her parent time.

         ¶5 Most people who knew Wall knew that he "despised" Uta. He asked his friends, "Would it be bad if Uta wasn't here anymore?" and "How would my life be if she weren't around?" He sent emails to Uta accusing her of immoral acts and threatening to "move away" with the children "or continue towards obtaining full custody." He blamed Uta for his unhappiness and accused her of "hurt[ing] people that matter deeply" to him. When she reached out to him regarding requests from the children's friends for weekend trips, he asked her to "please stop inserting [herself] in [his] parent time."

         ¶6 It was clear that Wall did not want Uta in the children's lives. The summer before her death, Wall took the children to California but refused to tell them when they were returning to Utah because he did not want them to tell Uta. If the children attempted to communicate with Uta while they were with Wall, "he would become very upset" and would sometimes take their phones away from them. He was uncooperative with Uta regarding parent-time exchanges and adjustments to the custody arrangement. Wall frequently ignored Uta's messages, and she had to organize parent-time schedules through her older children.

         ¶7 Uta's response to the divorce was quite different. Her friends, family, coworkers, and other acquaintances who testified at trial knew Uta to be "very outgoing, very friendly, very cheerful," and "full of life." Those witnesses said her positive attitude continued after the divorce, and some people "certainly thought she was happier" after the divorce. She was welcoming to newcomers and frequently brought homemade treats to work or to social gatherings. She regularly engaged in physical activities such as swimming, running, hiking, skiing, and camping. Uta was in a "very happy" relationship with a man (the boyfriend) whom the children liked, and the two eldest children told family members that they "were so happy that Uta had [the boyfriend]" because he was "a really, really good match for Uta." No witness testified that Uta was unhappy or suicidal, except for Wall.

         ¶8 Uta was very involved in her children's lives. Although she "had a great love and passion for science," she arranged with her supervisor to work a "30-hour work week" because "it was important to her to be available for [her children] after [school] hours." "Uta's greatest pleasure in life was the love of her four children," and she wanted to spend more time with them. She attended their sporting events and musical performances and created photo albums for each of them.

         ¶9 One of the few things that upset Uta was attempting to work with Wall regarding the children. A few years after the divorce, Uta hired an attorney to file a petition to modify the divorce decree regarding parent time, and the court ordered mediation. Although Wall and Uta reached an agreement during mediation, Wall later refused to sign the proposed order. Thus, for years following the divorce, the custody arrangement was never sorted out and remained a "constant battle."

         ¶10 Early in September 2011, after years of unsuccessfully attempting to work out a better custody arrangement outside of court, Uta reached out to her attorney to discuss filing a new petition to modify the divorce decree and to consider moving to appoint a custody evaluator. Wall ignored Uta's inquiries related to the children, including whether he would either agree to sign the custody evaluation request or agree to the proposed parent-time schedule for the upcoming school year. He also frequently ignored his own attorney's communications related to these requests. The week before Uta's death, in an apparent change of course, Wall agreed to sign the custody evaluation request the following week. But after he left the children in Uta's care for the weekend, Wall "excited[ly]" told a new acquaintance that "he was getting his kids back."

         Uta's Final Days

         ¶11 The week before her death, Uta had made a discovery in her research that could advance a new treatment for childhood leukemia. According to her supervisor, the "long-term implications of that discovery" were "very exciting on a professional level, on a career level, both for Uta and . . . the lab, because [it would] lead[] to new peer-reviewed publications, grants, [and] presentations." This was a "milestone" in Uta's career that would have had "positive implications" for her.

         ¶12 On September 26, 2011, the day before her body was discovered, Uta had a meeting with her supervisor and another coworker related to this new discovery, and they were all "quite enthusiastic" because "[t]his was one of the biggest discoveries [they] had had thus far in the laboratory." Later that evening, Uta attended one of the children's soccer games and was "in a great mood." She spread out a blanket and shared treats with other parents. Uta told a fellow parent that she "had been camping that weekend with her kids and [her boyfriend]" and was looking forward to her upcoming trip to California with her two youngest children later that week while Wall took the two eldest children to visit universities back east.

         ¶13 After the soccer game, Wall arrived at Uta's house to take the children back home. When he arrived, Uta tried to talk with him to finalize the details for the California trip, but Wall "rolled up his window and ignored her." According to the children, Wall appeared annoyed on the drive home.

         ¶14 With the children out of the house, Uta went about her usual Monday evening routine of "deep cleaning" the house. Uta called her boyfriend and made plans with him for the following night. At around 10:45 p.m., Uta spoke with a friend over the phone about potential plans for the next day. That was the last time anyone heard from Uta.

         September 27, 2011

         ¶15 The following morning, on September 27, 2011, Uta's neighbors did not see her at her kitchen table drinking coffee and reading her newspaper, as she did all other mornings. Instead, the newspaper remained in the driveway, and the garbage cans Uta put out for collection the night before remained on the street.

         ¶16 That same morning, Uta's eldest daughter awoke at around 6:00 a.m. and got ready for school. She searched the house for Wall, who usually drove her to the light rail station, but she could not find him anywhere. The eldest daughter testified that if Wall had to leave for the hospital in the middle of the night, he would "generally . . . text [her] or call [her]" to let her know, but he had not left her any messages that morning. After calling him twice with no answer, the eldest daughter walked to the station to go to school. Wall was spotted by the eldest daughter's schoolmate and her mother at 7:05 a.m., driving some distance away from and in the opposite direction of his house, and Wall still had not returned home to get the youngest children ready for school by the time the eldest son left for school around 7:30 a.m. But the two youngest children remembered speaking with Wall at some point before leaving for school. Specifically, they remembered seeing an injury to Wall's eye. Wall told them that he had slept outside on the porch and had been scratched by their dog, but the youngest daughter thought Wall was acting "weird, almost paranoid." Just after 8:00 a.m., a carwash facility photographed Wall dropping off his car. Wall took his car there to "detail the inside" and asked the carwash attendant to focus "extra heavy" in the trunk cargo area and on a spot on the driver's side back seat.

         ¶17 After leaving his car to be detailed, Wall arrived late for appointments with patients. He "looked disheveled and anxious," appeared not to have bathed, and wore the same clothes as the previous day. A medical assistant noticed that he had a scratch on the left side of his face and that his left eye was "reddened and bloodshot." Although two people who worked in Wall's office said that this scratch looked like it was caused by a fingernail, "Wall volunteered an explanation for the scratch, saying that his dog jumped on him and scratched his face while he was sleeping outside." One of the assistants "thought [this] explanation was odd because [Wall] had his dog for a long time and she had never seen it scratch him before." When Wall noticed that his assistant was looking at additional scratches on his arms, he "quickly" rolled down his sleeves. After seeing one patient, Wall left to see an eye doctor and did not return to work.

         ¶18 When the eldest children returned home, they too noticed the scratch to Wall's face and eye. Wall told them that he had been sleeping outside occasionally over the past few months and that their dog had scratched him the night before while he slept outside on the porch. None of the children had ever seen Wall sleep outside on the porch, and none of them knew their dog to scratch anyone.

         The Crime Scene

         ¶19 At around 7:45 p.m. on September 27, 2011, Uta's boyfriend went to visit her as they had planned the night before. Uta's garbage cans were still on the street, and her newspaper was still in the driveway. The boyfriend walked into her house through her unlocked door, which Uta normally locked before going to bed. He noticed that her bathroom door was slightly ajar and that the light was on. On his way to the bathroom, he walked past her bedroom and noticed that the blinds, which were always open, had been pulled shut. The boyfriend reached the bathroom, announced his presence, opened the door, and found Uta dead in her bathtub with the cold water running but not overflowing. She wore only her pajama shorts, and her bloodied tank top was folded at the edge of the bathtub. The boyfriend called the police, who quickly arrived on the scene.

         ¶20 Upon entering the house, the first responders noted that there were pills strewn across the bedroom floor, a lamp had toppled over on the bed, and a vase and books from the nightstand had been knocked onto the floor. The comforter on the bed had been balled up in a way that appeared to conceal several dried bloodstains. The fitted bed sheet contained one large pool of blood and two smaller pools of blood that "show[ed] motion in three different directions," indicating "a sign of a real struggle." There was also a bloodstain on the pillowcase. In the bathroom, there was blood smeared on the sink and below the windowsill located above the bathtub, but there was no blood smeared on the walls between Uta's bedroom and bathroom or on any of the light switches. There was a shampoo bottle standing upright in the middle of the bathroom floor, which was usually kept in the windowsill above the bathtub. Under Uta's body, the first responders found a large kitchen knife. Also in the bathwater was a magazine, the sports section of the newspaper (which Uta never read), and the youngest daughter's photo album. There were dried bloodstains that looked like shoeprints on the kitchen floor.

         ¶21 Some of the officers testified that the scene appeared "suspicious," as if "there could have been a struggle," and that it "did not appear consistent with an overdose or accidental death." After leaving the scene, one of the officers contacted detectives to conduct an investigation.

         Wall's First Version of the Events of September 26 and 27

         ¶22 Later that night, the detectives arrived at Wall's house to ask him "if he was willing to come down to [the] police station to talk." The officers did not tell Wall what they wanted to talk about, and he did not ask them.

         ¶23 While Wall waited to be interviewed, the detectives first interviewed the boyfriend. The boyfriend was "compliant" and "helpful." He did not "have any trouble time-lining himself, explaining what he had been doing the weekend before, [or what happened] the day before. He seemed to be honest in all of his answers."

         ¶24 In contrast, Wall's responses to the detectives' questions were vague and he spoke in generalities rather than directly answering questions about what occurred the previous night. When the detectives asked where he went the night before after picking up the children from Uta's house, Wall said, "I don't know . . . I don't rem . . . I mean, I don't usually remember every . . . what I do, but . . . ah . . . usually what we do." (Omissions in original.) He went on tangents about what usually happened when he retrieved the children from Uta's house at the conclusion of her parent time. The officers kept redirecting Wall, stating, "So what happened last night, though, [Wall]? This was just last night." But Wall continued to respond to inquiries about the previous night with things the family "usually" did on Monday evenings or what the children "sometimes" did when they got back to Wall's house. Wall could not say if he had been home the entire night or if he had gone back to Uta's house after picking up the children. Wall evaded direct answers about the last time he had seen Uta, and he could not remember if he had recently touched Uta or the last time he had been inside Uta's house. When directly asked if he had been inside Uta's house on September 26 or 27, Wall responded, "I don't think so." When asked if there was "any reason, whatsoever, that [his] DNA . . . would be under [Uta's] fingernails," Wall responded, "I don't know." When he was asked if he killed Uta, he said, "I don't think I did it," "I don't think I was there," and, "If I did it, I did make a mistake, and I am sorry. But I don't think I did it."

         ¶25 Eventually, over the span of three hours, Wall gave an account of the things he did on September 27, 2011. He told the detectives that he went to a gas station near his house to purchase eggs between 6:45 a.m. and 7:00 a.m. He said he returned to the house and had breakfast with his two youngest children before taking them to school. Wall then went to a carwash facility because he had "extra time" that morning and there were "burritos spilled all over" the front passenger seat. He talked about going to his office, seeing the eye doctor regarding the scratch on his eye-which he again said his dog caused-and returning to the carwash to get his car before driving to his office at the hospital. At the hospital, Wall apparently parked his car and left his windows rolled down with his cell phone still inside the vehicle. He claimed that his cell phone had been stolen by the time he returned.

         ¶26 Wall could not tell the officers what he had done between 8:00 p.m. on September 26, 2011, and 6:45 a.m. the following day.

         ¶27 After interviewing Wall, the detectives had photographs taken of Wall's injuries and had a technician take his fingerprints. Wall was not arrested, and a detective arranged a ride home for him. One of the detectives testified at trial that Wall was "surprised" that he was being released and asked, "[S]o I'm not going to jail?" When the detective said he was not, Wall responded, "[B]ut I'm a monster."

         Wall's Conduct ...


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