MEMORANDUM DECISION
DAVIS, Judge:
11 Marco Heimuli appeals his convictions of murder, a first degree felony, see Utah Code Ann. § 76-5-208(2)-@8) (Supp.2011), and attempted murder, a second degree felony, see id. § 76-4-101 (2008); id. § 76-4-102(2) (2008) (current version at id. § 76-4-102(1)(b)-(c) (2008)). We affirm.
12 Heimuli was convicted, along with his co-defendant, Anthony David Milligan, for shooting one man and killing another in July 2006. See State v. Milligan, 2011 UT App 390, ¶ 2, 265 P.3d 132 (reciting additional background relating to the shooting). At trial, the State presented evidence that following the shooting, Heimuli fled from the scene, changed his appearance, and left Utah. A witness who assisted Heimuli in fleeing the state testified that Heimuli told him that he had just "shot two guys in the
face" and "need[ed] to go, get away." The State also introduced the testimony of a number of witnesses who identified Heimuli as one of the shooters. However, the reliability of the witnesses was questionable because the shooting occurred at night when visibility was limited, most of the witnesses were under the influence of drugs and alcohol at the time, and the witnesses' stories were inconsistent and may have been influenced by discussions with other witnesses.
13 First, Heimuli argues that he is entitled to a new trial because his counsel performed ineffectively by failing to introduce expert testimony regarding the reliability of eyewitness testimony. In order to support an ineffective assistance of counsel claim, a defendant must demonstrate, first, that "counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment," and, second, that "counsel's deficient performance was prejudicial-i.e., that it affected the outcome of the case." State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
4 In analyzing the deficient performance prong, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, because an analysis regarding the effectiveness of counsel must make "every effort ... to eliminate the distorting effects of hindsight, to reconstruct the cireumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," see id., we must consider the law in effect at the time of trial in evaluating whether counsel performed 'deficiently, see State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993).
T5 At the time of Heimuli's trial in September 2009, Utah trial courts routinely employed "a de facto presumption against eyewitness expert testimony." State v. Clopten, 2009 UT 84, ¶ 13, 223 P.3d 1108. This presumption arose in response to case law discouraging the use of such testimony,
as well as the appellate courts' long history of declining to reverse convictions based on failure to admit expert testimony relating to eyewitness identification. See id. 18. However, three months after Heimulf's trial, in the case of State v. Clopten, 2009 UT 84, 223 P.3d 1103, the Utah Supreme Court reversed this practice, holding that "the testimony of a qualified expert regarding factors that have been shown to contribute to inaccurate eyewitness identifications should be admitted whenever it meets the requirements of rule 702 of the Utah Rules of Evidence." See id. 130. See generally Utah R. Evid. 702 (setting forth the requirements for admission of expert testimony).
T6 The State argues that counsel's decision not to attempt to introduce eyewitness expert testimony could not be considered deficient performance because under the law at the time of Heimuli's trial, the de facto presumption against admission of such testimony was still in force. Though Heimuli acknowledges the state of the law at the time of trial, including the "seeming reinforcement [of the presumption] by appellate courts," he contends that the presumption "did not relieve counsel of his responsibility to request an eyewitness identification expert" in light of scientific evidence demonstrating that "cross-examination and cautionary instructions alone were an insufficient safeguard against mistaken identifications." We disagree with Heimuli's assertion that counsel had an obligation to request that 'the trial court admit eyewitness expert testimony under the cireumstances. The de facto presumption against such testimony, which enjoyed a long precedent prior to the supreme court's decision in Clopten, would have effectively foreclosed any effort counsel might have made to admit the testimony. The fact
that counsel could have or even should have
been aware of the research Heimuli refers to does not alter the fact that our supreme court, prior to its decision in Clopten, had consistently upheld trial courts' exelusion of eyewitness expert testimony even in the face of such research. See, eg., State v. Maestas, 2002 UT 123, ¶¶ 62-69, 63 P.3d 621 (Durrant, J., dissenting and concurring); id. 1% 185-39 (Russon, J., concurring and dissenting); State v. Hubbard, 2002 UT 45, ¶¶ 14-20, 48 P.3d 953; State v. Butterfield, 2001 UT 59, ¶¶ 42-44, 27 P.3d 1133. Thus, regardless of the scientific research that may have supported admission, Heimuli's counsel did not perform below an objective standard of reasonableness by not pursuing admission of expert testimony. See generally State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 ("[Tlhe failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." (alteration in original) (internal quotation marks omitted)).
17 In any case, we are not convinced that "the result of the proceeding would have been different," see Strickland, 466 U.S. at 694, 104 S.Ct. 2052, had the jury been educated by an expert on the reliability of eyewitness testimony. Although eyewitness testimony comprised a large part of the State's case, the jury's verdiet is also supported by evidence that Heimuli fled the state following the shooting and admitted to an acquaintance that he had "shot two guys in the face." It is unlikely, under these cireumstances, that expert testimony would have sufficiently undermined the eyewitnesses' credibility
so as to have led the jury to have "a reasonable doubt respecting guilt," see id. at 695, 104 S.Ct. 2052.
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MEMORANDUM DECISION
DAVIS, Judge:
11 Marco Heimuli appeals his convictions of murder, a first degree felony, see Utah Code Ann. § 76-5-208(2)-@8) (Supp.2011), and attempted murder, a second degree felony, see id. § 76-4-101 (2008); id. § 76-4-102(2) (2008) (current version at id. § 76-4-102(1)(b)-(c) (2008)). We affirm.
12 Heimuli was convicted, along with his co-defendant, Anthony David Milligan, for shooting one man and killing another in July 2006. See State v. Milligan, 2011 UT App 390, ¶ 2, 265 P.3d 132 (reciting additional background relating to the shooting). At trial, the State presented evidence that following the shooting, Heimuli fled from the scene, changed his appearance, and left Utah. A witness who assisted Heimuli in fleeing the state testified that Heimuli told him that he had just "shot two guys in the
face" and "need[ed] to go, get away." The State also introduced the testimony of a number of witnesses who identified Heimuli as one of the shooters. However, the reliability of the witnesses was questionable because the shooting occurred at night when visibility was limited, most of the witnesses were under the influence of drugs and alcohol at the time, and the witnesses' stories were inconsistent and may have been influenced by discussions with other witnesses.
13 First, Heimuli argues that he is entitled to a new trial because his counsel performed ineffectively by failing to introduce expert testimony regarding the reliability of eyewitness testimony. In order to support an ineffective assistance of counsel claim, a defendant must demonstrate, first, that "counsel's performance was deficient, in that it fell below an objective standard of reasonable professional judgment," and, second, that "counsel's deficient performance was prejudicial-i.e., that it affected the outcome of the case." State v. Litherland, 2000 UT 76, ¶ 19, 12 P.3d 92 (citing Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).
4 In analyzing the deficient performance prong, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052. Furthermore, because an analysis regarding the effectiveness of counsel must make "every effort ... to eliminate the distorting effects of hindsight, to reconstruct the cireumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time," see id., we must consider the law in effect at the time of trial in evaluating whether counsel performed 'deficiently, see State v. Dunn, 850 P.2d 1201, 1228 (Utah 1993).
T5 At the time of Heimuli's trial in September 2009, Utah trial courts routinely employed "a de facto presumption against eyewitness expert testimony." State v. Clopten, 2009 UT 84, ¶ 13, 223 P.3d 1108. This presumption arose in response to case law discouraging the use of such testimony,
as well as the appellate courts' long history of declining to reverse convictions based on failure to admit expert testimony relating to eyewitness identification. See id. 18. However, three months after Heimulf's trial, in the case of State v. Clopten, 2009 UT 84, 223 P.3d 1103, the Utah Supreme Court reversed this practice, holding that "the testimony of a qualified expert regarding factors that have been shown to contribute to inaccurate eyewitness identifications should be admitted whenever it meets the requirements of rule 702 of the Utah Rules of Evidence." See id. 130. See generally Utah R. Evid. 702 (setting forth the requirements for admission of expert testimony).
T6 The State argues that counsel's decision not to attempt to introduce eyewitness expert testimony could not be considered deficient performance because under the law at the time of Heimuli's trial, the de facto presumption against admission of such testimony was still in force. Though Heimuli acknowledges the state of the law at the time of trial, including the "seeming reinforcement [of the presumption] by appellate courts," he contends that the presumption "did not relieve counsel of his responsibility to request an eyewitness identification expert" in light of scientific evidence demonstrating that "cross-examination and cautionary instructions alone were an insufficient safeguard against mistaken identifications." We disagree with Heimuli's assertion that counsel had an obligation to request that 'the trial court admit eyewitness expert testimony under the cireumstances. The de facto presumption against such testimony, which enjoyed a long precedent prior to the supreme court's decision in Clopten, would have effectively foreclosed any effort counsel might have made to admit the testimony. The fact
that counsel could have or even should have
been aware of the research Heimuli refers to does not alter the fact that our supreme court, prior to its decision in Clopten, had consistently upheld trial courts' exelusion of eyewitness expert testimony even in the face of such research. See, eg., State v. Maestas, 2002 UT 123, ¶¶ 62-69, 63 P.3d 621 (Durrant, J., dissenting and concurring); id. 1% 185-39 (Russon, J., concurring and dissenting); State v. Hubbard, 2002 UT 45, ¶¶ 14-20, 48 P.3d 953; State v. Butterfield, 2001 UT 59, ¶¶ 42-44, 27 P.3d 1133. Thus, regardless of the scientific research that may have supported admission, Heimuli's counsel did not perform below an objective standard of reasonableness by not pursuing admission of expert testimony. See generally State v. Whittle, 1999 UT 96, ¶ 34, 989 P.2d 52 ("[Tlhe failure of counsel to make motions or objections which would be futile if raised does not constitute ineffective assistance." (alteration in original) (internal quotation marks omitted)).
17 In any case, we are not convinced that "the result of the proceeding would have been different," see Strickland, 466 U.S. at 694, 104 S.Ct. 2052, had the jury been educated by an expert on the reliability of eyewitness testimony. Although eyewitness testimony comprised a large part of the State's case, the jury's verdiet is also supported by evidence that Heimuli fled the state following the shooting and admitted to an acquaintance that he had "shot two guys in the face." It is unlikely, under these cireumstances, that expert testimony would have sufficiently undermined the eyewitnesses' credibility
so as to have led the jury to have "a reasonable doubt respecting guilt," see id. at 695, 104 S.Ct. 2052.
18 Next, Heimuli argues that there was insufficient evidence to prove that he caused the victim's death. However, Heimuli failed to satisfy his marshaling burden because his brief merely lists the evidence presented at trial and then concludes, without any analysis, that the evidence was insufficient to support the verdict. See generally Kimball v. Kimball, 2009 UT App 233, ¶ 21, 217 P.3d 733 ("The marshaling requirement is not satisfied if parties just list all the evidence presented at trial ...."); id. ¶ 20 n. 5 ("If there is some supportive evidence, onee that evidence is marshaled it is the challenger's burden to show the 'fatal flaw in that supportive evidence, and explain why the evidence is legally insufficient to support the [verdiet]." (citation omitted)). To the extent that Heimuli's brief may be construed as providing any analysis, it focuses on his assertion that Heimuli could not be found guilty as a principal because it was impossible to determine whether the victim was killed by a bullet from his gun or Milligan's. But Heimuli was charged as a party, not a principal: he was specifically charged as a party in the information, the State explained at trial that both Milligan and Heimuli were being charged as parties because it was unknown which bullet killed the victim, and the
jury instructions included 'an instruction on party liability.
Thus, even if Heimuli had appropriately marshaled the evidence, his assertion that the evidence was insufficient to show that his bullet killed the victim would not undermine the jury's verdict.
1 9 Because a de facto presumption against the admission of expert eyewitness testimony existed at the time of Heimuli's trial, his counsel did not perform deficiently by not requesting that the trial court admit such testimony. And because the eyewitness testimony was corroborated by Heimuli's flight and his own statements, the lack of expert testimony was not prejudicial. Furthermore, we reject Heimult's claim regarding the sufficiency of the evidence because he was con-viected as a party, rather than a principal, and because he did not adequately analyze the marshaled evidence. We therefore affirm Heimult's convictions.
110 WE CONCUR: WILLIAM A. THORNE JR. and STEPHEN L. ROTH, Judges.